Intellectual Property; Privacy. (a) Section 3.12(a) of the Disclosure Schedule sets forth, with respect to all Business Intellectual Property, a complete and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in the Business Intellectual Property (“Acquired Trademarks”) has been or is now involved in any cancellation proceeding and, to the knowledge of the Sellers, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business Intellectual Property has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the Sellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third party. (b) Section 3.12(b) of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use or practice any rights under any Business Intellectual Property (“Licensed Intellectual Property”), whether a Seller is the licensee or licensor thereunder, and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification or similar obligations relating to any Licensed Intellectual Property to which a Seller is a party or otherwise bound (collectively, the “License Agreements”), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither such Seller nor, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default by the Sellers or, to the knowledge of the Sellers, the other party or parties thereto of any of the foregoing. No consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction Document, or the transactions contemplated hereby or thereby. (c) The Business Intellectual Property constitutes all of the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used in the conduct of the Business as currently conducted. (d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Business Intellectual Property except pursuant to the License Agreements set forth in Section 3.12(d) of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas and works, whether or not patented or patentable or otherwise protectable under Law, created, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the operation of the Business and material to the operation of the Business are the sole property of such Seller and were either created, prepared, developed or conceived by (i) employees of such Seller within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to such Seller pursuant to enforceable written agreements. (e) Each Seller owns all Business Intellectual Property purported to be owned by such Seller, and has a valid, enforceable, transferable and sufficient right to use for the purposes such Seller has previously used, the Business Intellectual Property licensed or otherwise used by such Seller, free and clear of all Liens. (f) The use of the Business Intellectual Property by Sellers as currently used in the Business does not infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. Neither Seller has received notice of any allegation that the use of any Business Intellectual Property or the conduct of the Business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Sellers, no Person is misappropriating, infringing, violating or making unlawful use of any Business Intellectual Property. There is no Action pending or, to the knowledge of the Sellers, threatened alleging that either Sellers’ activities or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has threatened to bring and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business Intellectual Property. (g) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge of the Seller, none of the Acquired Business Software (i) is designed to intentionally disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices). The Sellers have delivered to the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the Sellers. (h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession of any of the Trade Secrets or Software included in the Business Intellectual Property. (i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closing, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected. (j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Buyer’s ownership or rights in and to any of the Acquired Business Intellectual Property, require the Buyer to grant to any third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual Property.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a3.11(a) of the Disclosure Schedule sets forth, with respect to all Business Company Intellectual Property, a complete and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for unregistered Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and registered Copyrights of each Seller the Company are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in of the Business Intellectual Property (“Acquired Trademarks”) Company has been or is now involved in any cancellation proceeding and, to the knowledge of the SellersCompany, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks of the Company have been in continuous use by the Sellers Company since they were first used by the SellersCompany. To the knowledge of the SellersCompany, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks of the Company have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in of the Business Intellectual Property Company has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the SellersCompany, there are no potentially conflicting Trademarks or potentially interfering Patents of any third party.
(b) Section 3.12(b3.11(b) of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use or practice any rights under any Business Company Intellectual Property (“Licensed Intellectual Property”), whether a Seller the Company is the licensee or licensor thereunder, and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification settlements or similar obligations relating to any Licensed Intellectual Property to which a Seller the Company is a party or otherwise bound (collectively, the “License Agreements”“), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, Company and of each other party thereto enforceable in accordance with their respective terms, and neither such Seller the Company nor, to the knowledge of the SellersCompany, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default or alleged default by the Sellers Company or, to the knowledge of the SellersCompany, the other party or parties thereto of any of the foregoing. No Except as set forth in Section 3.11(b) of the Disclosure Schedule, no consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction DocumentRelated Agreement, or the transactions contemplated hereby or thereby.
(c) The Business Company Intellectual Property constitutes all of the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used in or necessary for the conduct of the Business Company’s business as currently conducted and proposed to be conducted.
(d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Business Company Intellectual Property except pursuant to the License Agreements set forth in Section 3.12(d3.11(d) of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas and works, whether or not patented or patentable or otherwise protectable under Lawlaw, created, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the operation of the Business and material to the operation of the Business Company are the sole property of such Seller the Company and were either created, prepared, developed or conceived by (i) employees of such Seller the Company within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to such Seller the Company pursuant to enforceable written agreements.
(e) Each Seller The Company owns all Business Company Intellectual Property purported to be owned by such Sellerthe Company, and has a valid, enforceable, transferable and sufficient right to use for the purposes such Seller the Company has previously used, the Business all Company Intellectual Property licensed or otherwise used by such Sellerthe Company, free and clear of all LiensEncumbrances.
(f) The Neither the use of any of the Business Company Intellectual Property by Sellers as currently used nor the conduct of the Company’s business does or will, when conducted in substantially the Business does not same manner following the Closing, infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. Neither Seller The Company has not received notice of any allegation that the use of any Business Company Intellectual Property or the conduct of the Business Company’s business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the SellersCompany, no Person is misappropriating, infringing, violating or making unlawful use of any Business Company Intellectual Property. There is no Action pending or, to the knowledge of the SellersCompany, threatened alleging that either Sellers’ the Company’s activities or the conduct of the Business its business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has The Company had not threatened to bring and neither Seller the Company has not brought any Action regarding the ownership, use, validity or enforceability of any Business Company Intellectual Property.
(g) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge of the Seller, none of the Acquired Business Software (i) is designed to intentionally disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices). The Sellers have delivered to the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the Sellers.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession of any of the Trade Secrets or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closing, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the BuyerCompany’s ownership or rights in and to any of the Acquired Business Company Intellectual Property, require the Buyer Company to grant to any third party any right to any Acquired Business Company Intellectual Property or obligate the Buyer Company to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Company Intellectual Property.
(h) Section 3.11(h) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used by the Company. The Company has not sold or licensed any Software to a third party. All Software owned by the Company, and to the knowledge of the Company, all Software licensed from third parties by the Company, is free from any significant software defect or programming or documentation error, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, if applicable, and, with respect to the Software owned by the Company, the applications can be compiled from their associated source code without undue burden if the failure to be able to do any one of which could reasonably be expected to have a Material Adverse Effect. None of the Company’s Software (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any Company Assets (e.g., viruses or worms); (ii) would disable any Company Assets or any computer system or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks or drop dead devices); (iii) would permit any third party to access any Company Assets or any computer system (e.g., traps, access codes or trap door devices); or (iv) would permit the Company or any third party to track, monitor or otherwise report the operation and use of any Company Assets. The Company has delivered to Parent all required documentation relating to use, maintenance and operation of the Software owned, license or used by the Company. For purposes hereof, “Software” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in human readable form (such as source code programs, macros or scripts) or machine readable form (such as object code), (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) the technology supporting any Internet site(s) operated by or on behalf of Company and (v) all documentation, including user manuals and training materials, relating to any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Alloy Inc)
Intellectual Property; Privacy. (a) Section 3.12(a) of the Disclosure Schedule Letter sets forthforth an accurate and complete list, with respect to all Business as of the date of this Agreement, of (i) each item of Registered Intellectual Property that is Company Intellectual Property, a complete (ii) the jurisdiction in which such item of Registered Intellectual Property has been registered or filed and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdictionapplication, registration number (registration, or application serial or other similar identification number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment (iii) any Person that has an ownership interest in such item of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in the Business Registered Intellectual Property (“Acquired Trademarks”and the nature of such ownership interest. Each item of Registered Intellectual Property listed or required to be listed on Section 3.12(a) has been or of the Disclosure Letter is now involved in any cancellation proceeding subsisting and, to the knowledge Knowledge of the SellersCompany, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; valid and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business Intellectual Property has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the Sellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third partyenforceable.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a complete The Company exclusively owns, free and accurate list clear of all Liens (other than Company Permitted Exceptions), all right, title and interest to any Intellectual Property owned or purported to be owned by the Company (the “Company Intellectual Property”) and owns or has a valid license agreements granting any or right to use or practice any rights under any Business all other material Intellectual Property (“Licensed used by the Company. The Company owns or otherwise has the right to use all Intellectual Property used in, held for use in or necessary for the conduct of the business of the Company as currently conducted, provided that the foregoing shall not be deemed a representation or warranty regarding non-infringement, validity or enforceability of Intellectual Property”). The Company has not received, whether a Seller since January 1, 2018, any written charge, complaint, claim, demand or notice challenging the validity of any Company Intellectual Property. The Company is the licensee or licensor thereundernot bound by, and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification or similar obligations relating to any Licensed no material Company Intellectual Property to which a Seller is a party or otherwise bound (collectively, the “License Agreements”), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither such Seller nor, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default by the Sellers or, to the knowledge of the Sellers, the other party or parties thereto of any of the foregoing. No consent of, or notice subject to, any Person is required under Contract containing any License Agreement as a result covenant or other provision that materially limits or restricts the ability of the Company to use, assert, enforce or otherwise exploit any material Company Intellectual Property anywhere in connection withthe world. The Company has taken commercially reasonable security measures consistent with the industry in which the Company operates to protect the secrecy, confidentiality and value of all material trade secrets included in the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction Document, or the transactions contemplated hereby or therebyCompany Intellectual Property.
(c) The Business Intellectual Property constitutes all of the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used in the conduct of the Business as conducted since January 1, 2018 and as currently conductedconducted does not infringe upon, misappropriate or otherwise violate the Intellectual Property of any other Person, other than for immaterial image take-down requests that have been settled or otherwise fully resolved in the ordinary course of business. The Company has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company that has not been settled or otherwise fully resolved. To the Knowledge of the Company, no other Person is engaging in, or has since January 1, 2018, engaged in, any activity that infringes, misappropriates or otherwise violates the Company Intellectual Property.
(d) No royaltiesThe execution, honoraria or other fees are payable to any third parties for delivery and performance by the use of or right to use any Business Intellectual Property except pursuant to Contributor and the License Agreements set forth in Section 3.12(d) Company of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas Transaction Agreements to which they are parties and works, whether or not patented or patentable or otherwise protectable under Law, created, prepared, developed or conceived the consummation by employees or independent contractors of a Seller in connection with the operation Contributor and the Company of the Business and material Transactions, will not, with or without notice or the lapse of time, result in, or give any other Person the right or option to the operation of the Business are the sole property of such Seller and were either createdcause or declare, prepared, developed or conceived by (i) employees of such Seller within the scope of their employment a loss of, or Lien on, any material Company Intellectual Property, (ii) the release, disclosure, or delivery of any material Company Intellectual Property by independent contractors who have duly assigned their rights or to any escrow agent or other Person or (iii) the grant, assignment, or transfer to any other Person of any license or other right or interest under, to, or in any material Company Intellectual Property, including any such Seller pursuant grant, assignment or transfer by Acquiror or its Affiliates (excluding any such grant, assignment or transfer of any license or other right or interest that arises from any Contract to enforceable written agreementswhich Acquiror or any of its Affiliates is a party but neither the Company nor the Contributor is a party).
(e) Each Seller owns all Business Intellectual Property purported to be owned by such SellerNo funding, and has a validfacilities, enforceableor personnel of any Governmental Authority or any university, transferable and sufficient right to use for the purposes such Seller has previously college, other educational institution, multi-national, bi-national or international organization, or research center were used, the Business to develop or create, in whole or in part, any Company Intellectual Property licensed Property. The Company is not a party to any Contract with any Governmental Authority or otherwise used by any university, college, other educational institution, multi-national, bi-national or international organization that grants to such Seller, free and clear of all LiensGovernmental Authority any right or license with respect to any Company Intellectual Property.
(f) The use To the Knowledge of the Business Intellectual Property Company, no product or service offered, owned, developed, marketed, licensed, sold, performed, distributed or otherwise made available by Sellers the Company (“Company Products”) contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as currently used such terms are commonly understood in the Business does not infringe uponsoftware industry) or any other code designed or intended to have, violateor capable of performing or facilitating, misappropriate any of the following functions: (i) materially disrupting, disabling, harming, or make unlawful use of otherwise impeding in any Intellectual Property manner the operation of, or providing unauthorized access to, a computer system or network or other rights device on which such code is stored or installed; or (ii) materially compromising the privacy or data security of a user or damaging or destroying any other Persondata or file without the user’s consent (collectively, “Malicious Code”). Neither Seller has received notice The Company implements industry standard measures designed to prevent the introduction of any allegation that the use of any Business Intellectual Property or the conduct of the Business infringes uponMalicious Code into Company Products, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Sellers, no Person is misappropriating, infringing, violating or making unlawful use of any Business Intellectual Property. There is no Action pending or, to the knowledge of the Sellers, threatened alleging that either Sellers’ activities or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has threatened to bring including firewall protections and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business Intellectual Propertyregular virus scans.
(g) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with the operation of the Business (“Acquired Business Software”) and indicates whether the software No Company Product is subject to an escrow agreement andany “copyleft” or other obligation or condition (including any obligation or condition under any Open Source Software license such as the GNU Public License, if soLesser GNU Public License, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge of the Seller, none of the Acquired Business Software Mozilla Public License) that (i) is designed would require, or could condition the use or distribution of such Company Product or portion thereof on, (A) the disclosure, licensing, or distribution of any material source code for a Company Product or any portion thereof, (B) the granting to intentionally disruptlicensees of the right to reverse engineer or make derivative works or other modifications to any Company Products or any portion thereof, disable, harm (C) licensing or otherwise impede in distributing or making available any mannerCompany Product or any portion thereof for a nominal or otherwise limited fee or charge or (D) granting any Intellectual Property Rights to any third party, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable could otherwise impose any computer system material limitation, restriction, or impair in any way its operation based condition on the elapsing right or ability of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices). The Sellers have delivered to the Buyer all documentation relating Company to use, maintenance and operation of the Acquired Business Software held by the Sellerslicense distribute or charge for any Company Product or any Intellectual Property therein.
(h) The Sellers information technology systems used by the Company (“Company IT Systems”) are implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the business of the Company, including with the respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (i) the Company has taken commercially reasonable steps and implemented commercially reasonable procedures to ensure that the Company IT Systems are free from Malicious Code, and (ii) the Company has in effect industry standard disaster recovery plans, procedures and facilities for their businesses and have taken all reasonable steps in accordance with normal industry practice to protect safeguard the Business Intellectual Property, including security and the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct integrity of the BusinessCompany IT Systems. To the Knowledge of the Company, there have been delivered no unauthorized intrusions or made available breaches of security with respect to the Buyer Company IT Systems. The Company has implemented any and all security patches or upgrades that are generally available for the Company IT Systems.
(collectively, the “Proprietary Information Agreements”i) The Company and, to the knowledge Knowledge of the SellersCompany, no such person is in breach any Person acting for or violation of any such agreement. To the knowledge on behalf of the SellersCompany are in compliance with and have, except pursuant since January 1, 2018, complied with, (i) all applicable Laws relating to enforceable confidentiality obligations in favor privacy and data security, (ii) all of the SellersCompany’s publicly available policies and notices regarding information that identifies or could be used to identify an individual person or comes within the definition of “personally identifiable information”, “personal data”, “personal information” or any similar term under applicable Laws (“Personal Information”), and (iii) all of the Company’s contractual obligations with respect to Personal Information, except, in the case of (i) through (iii), as would not reasonably be expected to be material to the Business or the Company. Except as would not reasonably be expected to be material to the Business or the Company, (i) the Company and, to the Knowledge of the Company, any Person acting for or on behalf of the Company has, since January 1, 2018, taken or caused to be taken reasonable steps (including implementing and monitoring technical and physical security) to protect the Personal Information and other confidential data owned or controlled by the Company or, to the extent related to the Business as conducted by the Company, by the Contributor or any of its Affiliates, against loss and against unauthorized access, use or disclosure and (ii) since January 1, 2018, to the Knowledge of the Company, there has been no disclosure unauthorized access to, theft or misuse of any Personal Information owned or controlled by the confidential information or Trade Secrets included in Company or, to the extent related to the Business Intellectual Propertyas presently conducted by the Company, by the Contributor or any of its Affiliates. To Since January 1, 2018, the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession Company has not received any written notice of any of the Trade Secrets claims of, or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closingbeen charged with, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Buyer’s ownership or rights in and to any of the Acquired Business Intellectual Property, require the Buyer to grant to any third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess violation of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual PropertyLaws concerning Personal Information.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a3.19(a) of the Company Disclosure Schedule sets forth, with respect to all Business Intellectual Propertyas of the date hereof, a complete and accurate list of all United States (i) issued patents and foreign Patentspending patent applications, Trademarks (including Internet domain name registrations ii) registered trademarks and pending trademark applications, (iii) registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarkscopyrights, and the payment of filing(iv) registered domain names, examination and maintenance fees and proof of working or use with respect to Patents), in each case that are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in the Business Company Intellectual Property (collectively, the “Acquired TrademarksCompany Registered IP”) has been ). Each item of Company Registered IP is subsisting. Except as would not, individually or is now involved in any cancellation proceeding andthe aggregate, reasonably be expected to result in material liability to the knowledge of the SellersCompany and its Subsidiaries, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business Intellectual Property has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the Sellerstaken as a whole, there are no potentially conflicting Trademarks suits or potentially interfering Patents actions pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries challenging the validity or enforceability of any third partyissued or registered Company Registered IP.
(b) Section 3.12(bExcept as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company and its Subsidiaries are the sole and exclusive owner of each item of material Company Intellectual Property, free and clear of any Liens (other than Permitted Liens) and (ii) the Company and its Subsidiaries own or otherwise have sufficient rights in and to, and immediately after the Closing will continue to own or have sufficient rights in and to, all Intellectual Property that is used in the business of the Disclosure Schedule sets forth a complete Company and accurate list of its Subsidiaries as currently conducted in all license agreements granting any right to use or practice any rights under any Business Intellectual Property (“Licensed Intellectual Property”), whether a Seller is the licensee or licensor thereunder, and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification or similar obligations relating to any Licensed Intellectual Property to which a Seller is a party or otherwise bound (collectively, the “License Agreements”), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither such Seller nor, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default by the Sellers or, to the knowledge of the Sellers, the other party or parties thereto of any of the foregoing. No consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction Document, or the transactions contemplated hereby or therebymaterial respects.
(c) There are no Proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries in the past three years alleging that the Company or any of its Subsidiaries has infringed, misappropriated or violated any Third Party’s Intellectual Property, in each case that would reasonably be expected to result in material liability to the Company and its Subsidiaries, taken as a whole. The Business Intellectual Property constitutes all operation of the business of the Company and its Subsidiaries as currently conducted and as conducted in the past three years, does not infringe, misappropriate, or violate, and has not infringed, misappropriated or violated, the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used of any Third Party, except as has not resulted and would not, individually or in the conduct aggregate, reasonably be expected to result in any material liability to the Company and its Subsidiaries, taken as a whole. To the Knowledge of the Business Company, no Third Party is currently infringing, misappropriating or violating any Company Intellectual Property, except as currently conductedwould not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(d) No royaltiesExcept as would not reasonably be expected to have, honoraria individually or other fees are payable to any third parties for in the use of or right to use any Business Intellectual Property except pursuant to aggregate, a Company Material Adverse Effect, during the License Agreements set forth in Section 3.12(d) of the Disclosure Schedule. All inventionslast three years, discoveries, trade secrets, ideas and works, whether or not patented or patentable or otherwise protectable under Law, created, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the operation of the Business and material to the operation of the Business are the sole property of such Seller and were either created, prepared, developed or conceived by (i) employees the Company and its Subsidiaries have taken steps that are commercially reasonable under the circumstances to protect and maintain the secrecy, confidentiality, and value of such Seller within all material Trade Secrets owned by the scope of their employment Company or any its Subsidiaries and (ii) by independent contractors who have duly assigned their rights to such Seller pursuant to enforceable written agreements.
(e) Each Seller owns all Business Intellectual Property purported to be owned by such Seller, and has a valid, enforceable, transferable and sufficient right to use for the purposes such Seller has previously used, the Business Intellectual Property licensed or otherwise used by such Seller, free and clear of all Liens.
(f) The use Knowledge of the Business Intellectual Property by Sellers as currently used in the Business does not infringe uponCompany, violate, misappropriate there have been no material unauthorized uses or make unlawful use disclosures of any Intellectual Property or other rights of any other Person. Neither Seller has received notice of any allegation that the use of any Business Intellectual Property or the conduct of the Business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Personsuch Trade Secrets. To the knowledge Knowledge of the Sellers, no Person is misappropriating, infringing, violating or making unlawful use of any Business Intellectual Property. There is no Action pending or, to the knowledge of the Sellers, threatened alleging that either Sellers’ activities or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has threatened to bring and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business Intellectual Property.
(g) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge of the Seller, none of the Acquired Business Software (i) is designed to intentionally disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices). The Sellers have delivered to the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the Sellers.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the SellersCompany, no current or former employee, consultant, independent contractor or potential partner other Person who has been involved in the development or investor creation of either Seller any Intellectual Property material to the Company or any of its Subsidiaries is in material breach of any obligation of confidentiality or assignment of Intellectual Property (including by operation of law) to the Company or any of its Subsidiaries binding on such employee, independent contractor or other Person.
(e) Except as has not resulted and would not reasonably be expected to result in material liability to the Company and its Subsidiaries, taken as a whole, the information technology systems (in each case, including all computer hardware, software, firmware, process automation, industrial control systems and telecommunications systems) owned by the Company and its Subsidiaries (the “Systems”) (i) operate and perform in all material respects as required by the Company and its Subsidiaries, and have not malfunctioned or failed during the last three years (other than temporary problems arising in the ordinary course of business that did not materially disrupt the operations of the Company and its Subsidiaries, taken as a whole, and which have been remedied in all material respects), and (ii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other errors, spyware and any other disabling or malicious code. The Company and its Subsidiaries have implemented commercially reasonable data backup, data storage, system redundancy, and disaster avoidance and recovery procedures, as well as a commercially reasonable business continuity plan.
(f) Except as has not resulted and would not reasonably be expected to result in material liability to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries (x) are currently in compliance with, and in the last three years have complied with, all Data Security Requirements and (y) have commercially reasonable security measures in place designed to protect any Sensitive Data under their possession or control from any unauthorized possession access, use or disclosure. In the last three years, neither the Company nor any of its Subsidiaries have, to the Knowledge of the Company, (i) experienced any incident (including any data security breach or unauthorized access or use of any of the Trade Secrets Systems) in which Sensitive Data was lost, stolen or Software included in improperly accessed, used or disclosed, or (ii) received any written claims, notices or complaints from any Person with respect to the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection data privacy and data security practices or procedures of, or compliance with the operation of either Acquired Business (the “Databases”). At the ClosingData Security Requirements by, the Databases will have at least the same information and functionality Company or any of its Subsidiaries, in each case except as exists prior would not reasonably be expected to result in material liability to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (Company and its successors and assigns)Subsidiaries, and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collectedtaken as a whole.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Buyer’s ownership or rights in and to any of the Acquired Business Intellectual Property, require the Buyer to grant to any third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual Property.
Appears in 1 contract
Sources: Merger Agreement (Consolidated Communications Holdings, Inc.)
Intellectual Property; Privacy. (a) Section 3.12(a4.10(a) of the Acquiror Disclosure Schedule Letter sets forthforth an accurate and complete list, with respect to all Business as of the date of this Agreement, of (i) each item of Registered Intellectual Property that is Acquiror Intellectual Property, a complete (ii) the jurisdiction in which such item of Registered Intellectual Property has been registered or filed and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdictionapplication, registration number (registration, or application serial or other similar identification number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment (iii) any Person that has an ownership interest in such item of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in the Business Registered Intellectual Property (“Acquired Trademarks”and the nature of such ownership interest. Each item of Registered Intellectual Property listed or required to be listed on Section 4.10(a) has been or of the Acquiror Disclosure Letter is now involved in any cancellation proceeding subsisting and, to the knowledge Knowledge of the SellersAcquiror, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; valid and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business Intellectual Property has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the Sellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third partyenforceable.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a complete The Acquiror exclusively owns, free and accurate list clear of all Liens (other than Acquiror Permitted Exceptions), all right, title and interest to any Intellectual Property owned or purported to be owned by the Acquiror (the “Acquiror Intellectual Property”) and owns or has a valid license agreements granting any or right to use or practice any rights under any Business all other material Intellectual Property (“Licensed used by the Acquiror. The Acquiror owns or otherwise has the right to use all Intellectual Property used in held for use in or necessary for the conduct of the business of the Acquiror as currently conducted, provided that the foregoing shall not be deemed a representation or warranty regarding non-infringement, validity or enforceability of Intellectual Property”). The Acquiror has not received, whether a Seller since January 1, 2018, any written charge, complaint, claim, demand or notice challenging the validity of any Acquiror Intellectual Property. The Acquiror is the licensee or licensor thereundernot bound by, and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification or similar obligations relating to any Licensed no material Acquiror Intellectual Property to which a Seller is a party or otherwise bound (collectively, the “License Agreements”), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither such Seller nor, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default by the Sellers or, to the knowledge of the Sellers, the other party or parties thereto of any of the foregoing. No consent of, or notice subject to, any Person is required under Contract containing any License Agreement as a result covenant or other provision that materially limits or restricts the ability of the Acquiror to use, assert, enforce or otherwise exploit any material Acquiror Intellectual Property anywhere in connection withthe world. The Acquiror has taken commercially reasonable security measures consistent with the industry in which the Acquiror operates to protect the secrecy, confidentiality and value of all material trade secrets included in the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction Document, or the transactions contemplated hereby or therebyAcquiror Intellectual Property.
(c) The Business Intellectual Property constitutes all conduct of the business of Acquiror as conducted since January 1, 2018 and as currently conducted does not infringe upon, misappropriate or otherwise violate the Intellectual Property (of any other Person, other than the Intellectual Property for immaterial image take-down requests that constitute Sellers’ Assets) used have been settled or otherwise fully resolved in the conduct ordinary course of business. The Acquiror has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by Acquiror that has not been settled or otherwise fully resolved. To the Business as currently conductedKnowledge of Acquiror, no other Person is engaging in, or has since January 1, 2018, engaged in, any activity that infringes, misappropriates or otherwise violates the Acquiror Intellectual Property.
(d) No royaltiesTo the Knowledge of Acquiror, honoraria no product or other fees are payable to any third parties for the use of or right to use any Business Intellectual Property except pursuant to the License Agreements set forth in Section 3.12(d) of the Disclosure Schedule. All inventionsservice offered, discoveriesowned, trade secretsdeveloped, ideas and worksmarketed, whether or not patented or patentable licensed, sold, performed, distributed or otherwise protectable under Lawmade available by the Acquiror (collectively, created“Acquiror Products”) contains any material Malicious Code. The Acquiror implements industry standard measures designed to prevent the introduction of Malicious Code into Acquiror Products, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the operation of the Business including firewall protections and material to the operation of the Business are the sole property of such Seller and were either created, prepared, developed or conceived by (i) employees of such Seller within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to such Seller pursuant to enforceable written agreementsregular virus scans.
(e) Each Seller owns all Business No Acquiror Product is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any Open Source Software license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that (i) would require, or could condition the use or distribution of such Acquiror Product or portion thereof on, (A) the disclosure, licensing, or distribution of any material source code for any Acquiror Product or any portion thereof, (B) the granting to licensees of the right to reverse engineer or make derivative works or other modifications to any Acquiror Product or any portion thereof, (C) licensing or otherwise distributing or making available any Acquiror Product or any portion thereof for a nominal or otherwise limited fee or charge or (D) granting any Intellectual Property purported Rights to be owned by such Sellerany third party, and has a validor (ii) could otherwise impose any material limitation, enforceablerestriction, transferable and sufficient or condition on the right or ability of the Acquiror to use use, license distribute or charge for the purposes such Seller has previously used, the Business any Acquiror Product or any Intellectual Property licensed or otherwise used by such Seller, free and clear of all Lienstherein.
(f) The use of the Business Intellectual Property by Sellers as currently used in the Business does not infringe uponNo funding, violatefacilities, misappropriate or make unlawful use personnel of any Intellectual Property Governmental Authority or any university, college, other rights of educational institution, multi-national, bi-national or international organization, or research center were used, to develop or create, in whole or in part, any other Person. Neither Seller has received notice of any allegation that the use of any Business Intellectual Property or the conduct of the Business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Sellers, no Person is misappropriating, infringing, violating or making unlawful use of any Business material Acquiror Intellectual Property. There Acquiror is no Action pending ornot a party to any Contract with any Governmental Authority or any university, college, other educational institution, multi-national, bi-national or international organization that grants to the knowledge of the Sellers, threatened alleging that either Sellers’ activities such Governmental Authority any right or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of license with respect to any other Person. Neither Seller has threatened to bring and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business material Acquiror Intellectual Property.
(g) Section 3.12(gThe information technology systems used by the Acquiror (“Acquiror IT Systems”) are implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the business of the Disclosure Schedule lists Acquiror, including with respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (i) the Acquiror has taken commercially reasonable steps and implemented commercially reasonable procedures to ensure that the Acquiror IT Systems are free from Malicious Code, and (ii) the Acquiror has in effect industry standard disaster recovery plans, procedures and facilities for their businesses and have taken all Software which is owned, licensed or otherwise used in connection with reasonable steps to safeguard the operation security and the integrity of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third partyAcquiror IT Systems. To the knowledge Knowledge of the SellerAcquiror, none there have been no unauthorized intrusions or breaches of security with respect to the Acquired Business Software (i) is designed to intentionally disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices)Acquiror IT Systems. The Sellers have delivered to Acquiror has implemented any and all security patches or upgrades that are generally available for the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the SellersAcquiror IT Systems.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) Acquiror and, to the knowledge Knowledge of Acquiror, any Person acting for or on behalf of Acquiror are in compliance with and have, since January 1, 2018, complied with, (i) all applicable Laws relating to privacy and data security, (ii) all of the SellersAcquiror’s publicly available policies and notices regarding Personal Information, no such person is in breach or violation of any such agreement. To the knowledge and (iii) all of the SellersAcquiror’s contractual obligations with respect to Personal Information, except pursuant except, in the case of (i) through (iii), as would not reasonably be expected to enforceable confidentiality obligations in favor be material to Acquiror. Except as would not reasonably be expected to be material to Acquiror, (i) Acquiror and, to the Knowledge of Acquiror, any Person acting for or on behalf of Acquiror has, since January 1, 2018, taken or caused to be taken reasonable steps (including implementing and monitoring technical and physical security) to protect the Personal Information and other confidential data owned or controlled by the Acquiror or, to the extent related to the business as conducted by Acquiror or any of its Affiliates, against loss and against unauthorized access, use or disclosure and (ii) since January 1, 2018, to the Knowledge of the SellersAcquiror, there has been no disclosure unauthorized access to, theft or misuse of any Personal Information owned or controlled by Acquiror or, to the confidential information extent related to the Acquiror’s business as presently conducted by Acquiror or Trade Secrets included in the Business Intellectual Propertyany of its Affiliates. To the knowledge of the SellersSince January 1, no current or former employee2018, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession Acquiror has not received any written notice of any of the Trade Secrets claims of, or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closingbeen charged with, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Buyer’s ownership or rights in and to any of the Acquired Business Intellectual Property, require the Buyer to grant to any third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess violation of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual Propertylaws concerning Personal Information.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a3.17(a) of the Company Disclosure Schedule Letter sets forthforth a list, with respect as of the date of this Agreement, of all Company Registered Intellectual Property. None of the Company Registered Intellectual Property has been adjudged invalid, or unenforceable in whole or in part, and all such Company Registered Intellectual Property owned or purported to all Business be owned by the Company Group, is subsisting, valid and enforceable. As of the date of this Agreement, (i) no Legal Proceeding is pending or threatened in writing (or to the Knowledge of the Company, orally) since January 1, 2021, that challenges the legality, validity, enforceability, registration, use or ownership of any Company Owned Intellectual Property, a complete and accurate list of all United States (ii) the Company and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and its Subsidiaries are not subject to any maintenance fees outstanding Order that restricts or actions falling due within one hundred eighty (180) days after impairs in any respect the Closing Dateuse of any Company Intellectual Property. Neither the Company nor any of its Subsidiaries has received any written charge, complaint, claim, demand or notice since January 1, 2021 challenging such legality, validity, enforceability, registration, use or ownership. No Trademark included in the Business Intellectual Property (“Acquired Trademarks”) has been or is now involved in any cancellation proceeding and, to the knowledge of the Sellers, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business Company Registered Intellectual Property has been cancelled, abandoned, allowed to lapse or is now involved not renewed, except where the Company or one of its Subsidiaries has, in any litigationits reasonable business judgment, interferencedecided to cancel, reissueabandon, re-examination allow to lapse or opposing proceeding. No Copyright not renew such issuance, registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the Sellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third partyapplication.
(b) Section 3.12(b) The Company or one of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use or practice any rights under any Business Intellectual Property (“Licensed Intellectual Property”), whether a Seller its Subsidiaries is the licensee or licensor thereundersole and exclusive owner of and possesses all right, title and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification or similar obligations relating to any Licensed Intellectual Property to which a Seller is a party or otherwise bound (collectively, the “License Agreements”), indicating for each the title, the parties, date executed, whether or not it is exclusive interest in and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither such Seller nor, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default by the Sellers or, to the knowledge of the Sellers, the other party or parties thereto of any of the foregoing. No consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Transaction Document, or the transactions contemplated hereby or thereby.
(c) The Business Intellectual Property constitutes all of the Company Owned Intellectual Property (other than the Company Owned Intellectual Property that constitute Sellers’ Assets) used in the conduct of the Business as currently conducted.
(d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Business Intellectual Property except pursuant exclusively licensed to the License Agreements set forth in Section 3.12(d) of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas and works, whether or not patented or patentable or otherwise protectable under Law, created, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the operation of the Business and material to the operation of the Business are the sole property of such Seller and were either created, prepared, developed or conceived by (i) employees of such Seller within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to such Seller pursuant to enforceable written agreements.
(e) Each Seller owns all Business Intellectual Property purported to be owned by such Seller, and has a valid, enforceable, transferable and sufficient right to use for the purposes such Seller has previously used, the Business Intellectual Property licensed or otherwise used by such SellerCompany), free and clear of all Liens (other than Permitted Liens), and the Company and each of its Subsidiaries have a valid and enforceable right to all other Company Intellectual Property that is used in their businesses. Neither the Company nor any of its Subsidiaries has transferred to any Person ownership of any Intellectual Property that are or would have been, but for such transfer, Company Owned Intellectual Property. Neither the execution and delivery of this Agreement by the Company, nor the performance of this Agreement by the Company, will, pursuant to any Contract by which the Company or its Subsidiaries is bound, result in (i) the loss, forfeiture, termination, or impairment of, or give rise to a right of any Person to limit, terminate, or consent to the continued use of, any rights of the Company or any of its Subsidiaries in any Company Owned Intellectual Property; (ii) (A) Parent and its Affiliates (excluding the Company and its Subsidiaries) granting to any third Person any right to or with respect to any Intellectual Property owned or controlled by Parent or such Affiliates; and (B) the Company or its Subsidiaries granting to any third Person any right to or with respect to any Intellectual Property other than rights granted by the Company and its Subsidiaries on or prior to the Closing Date, or (iii) Parent, the Company or any of their respective Affiliates being bound by, or subject to, any non-compete or other restriction on its freedom to engage in, participate in, operate or compete in any line of business.
(c) Neither the Company nor any of its Subsidiaries nor the conduct of the Company’s or any of its Subsidiaries’ businesses as currently conducted or as previously conducted in the past six (6) years (including the use, practice, offering, licensing, provision, sale, distribution or other exploitation of any Company Offering in the past six (6) years), has infringed, misappropriated, diluted or otherwise violated, or is infringing, misappropriating, diluting, or otherwise violating the Intellectual Property of any Person. Neither the Company nor any of its Subsidiaries has received any written charge, complaint, claim, demand, or notice since January 1, 2021 (or earlier, if presently not resolved) that was or would be material to the Company and its Subsidiaries, taken as a whole, alleging any such infringement, misappropriation, dilution, or violation (including any written claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property of any Person). No Person is infringing, misappropriating, diluting or otherwise violating any material Company Owned Intellectual Property. Neither the Company nor any of its Subsidiaries has made or asserted any written charge, complaint, claim, demand or notice since January 1, 2021 (or earlier, if presently not resolved) that has been or would be material to the Company and its Subsidiaries, taken as a whole, alleging any such infringement, misappropriation, dilution, or violation.
(d) The Company and its Subsidiaries take commercially reasonable actions designed to protect and preserve (i) the confidentiality of their trade secrets and other confidential and proprietary information included in Company Intellectual Property and (ii) the security of their material Source Code, websites and systems (including the confidential data transmitted thereby or stored therein), in accordance with procedures that are customarily used in the Company’s industry to protect the information and materials of like importance. There has been no unauthorized access, use or disclosure of any trade secrets or other material confidential or proprietary information included in the Company Owned Intellectual Property, or to the Knowledge of the Company, any other Company Intellectual Property when such Company Intellectual Property was in the Company Group’s custody or control. No material confidential information of the Company Group has been disclosed to any Person other than pursuant to a written confidentiality Contract or other binding obligations restricting the disclosure and use of such confidential information.
(e) The incorporation, linking, calling, distribution or other use in or with any Company Offering of any Free or Open Source Software as incorporated, linked, called, distributed or used by the Company and its Subsidiaries does not (i) obligate the Company or any of its Subsidiaries to disclose, make available, offer or deliver any portion of the Source Code of such Company Software or Company Offering or component thereof to any third party, other than the applicable Free or Open Source Software or (ii) require that any Company Software or Company Offering be licensed under terms that allow reverse engineering, reverse assembly, creation of derivative works, modification or disassembly of any kind, or be redistributed or otherwise made available at no charge, other than the applicable Free or Open Source Software. The Company and its Subsidiaries are in material compliance with all terms and conditions of any license for Free or Open Source Software that is contained in, incorporated into, lined or called by, distributed with, or otherwise used by any Company Software or Company Offering.
(f) The use (i) To the extent not assigned by operation of Law, the Company or one of its Subsidiaries has obtained by valid assignment or transfer pursuant to valid and enforceable Contracts an assignment of all Intellectual Property authored, invented, created or developed by all current or former employees or contractors of the Business Intellectual Property by Sellers Company or any of its Subsidiaries for the Company or such Subsidiary in the course of such employee’s employment or such contractor’s engagement, and (ii) no Person is in material breach of any such Contracts.
(g) Neither the Company nor any of its Subsidiaries has published, provided, deposited, disclosed, licensed or entered into any escrow arrangements with respect to, nor is the Company or any of its Subsidiaries required to publish, provide, deposit, disclose or license to any Person, any Source Code for any Company Offerings or material Company Software except for disclosures to employees or contractors of the Company or any of its Subsidiaries, in each case pursuant to valid and enforceable Contracts that prohibit use or disclosure of Source Code except solely to the extent required for the performances of services for the Company or any of its Subsidiaries.
(h) Except as currently would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company Software and Company Offerings do not contain any defects, vulnerabilities, bugs or errors that materially affect the use, functionality, security or performance of such Company Software or Company Offering. No warranty, indemnification requests or other claims have been asserted against the Company or any of its Subsidiaries in writing related to any Company Offering since January 1, 2021.
(i) No government funding or governmental grants from any Governmental Authority, or support, funding, resources or assistance from any university, college, other academic institutions, or non-profit research centers, were used in the Business does not infringe upon, violate, misappropriate or make unlawful use development of any Company Owned Intellectual Property, and (ii) no Person who was involved in or contributed to the creation or development of any Company Owned Intellectual Property has performed services for any Governmental Authority, in each case of ((i) and (ii)), in a manner that would adversely affect the Company’s or other any of its Subsidiaries’ rights of in and to any other Person. Neither Seller has received notice of any allegation that the use of any Business Intellectual Property or the conduct of the Business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Sellers, no Person is misappropriating, infringing, violating or making unlawful use of any Business such Company Owned Intellectual Property. There The Company Group is no Action pending ornot a member of a standards-setting organization under which the Company Group has granted a license or agreed to grant a license, covenant not to the knowledge of the Sellers, threatened alleging that either Sellers’ activities sue or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has threatened to bring and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business withhold enforcement under Company Owned Intellectual Property.
(gj) Section 3.12(gExcept for actions taken that are expressly described in the Strategic Alternative Disclosure, (i) of the Disclosure Schedule lists all Software which is computer systems, servers, network equipment and other computer hardware owned, leased or licensed or otherwise used in connection with by the Company and its Subsidiaries (“Company IT Systems”) are adequate and sufficient for the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge business of the SellerCompany and its Subsidiaries (taken as a whole) as currently conducted in all material respects. The Company and its Subsidiaries have taken commercially reasonable measures designed to safeguard the availability, none security and integrity of the Acquired Business Software Company IT Systems, including implementing and maintaining commercially reasonable backup, disaster recovery and software and hardware support arrangements.
(k) The Company and its Subsidiaries (i) is have, and since January 1, 2021, as applicable, have had, commercially reasonable security measures in place designed to intentionally disrupt, disable, harm or otherwise impede in any mannerprotect all data, including aesthetical disruptions data relating to the customers of their respective businesses and any other identifiable individual, under their possession or distortionscontrol (“Company Data”) from unauthorized access, the operation of any computer system (e.g.use, viruses disclosure, processing or worms), other misuse and (ii) would disable have implemented commercially reasonable procedures designed to detect Data Security Incidents. The Company and its Subsidiaries have not suffered any computer system breach in security that has permitted or impair resulted in any way its operation based on the elapsing of a period of timeunauthorized access to, the exceeding of an authorized number of copies or the advancement to a particular date disclosure or other numeral misuse or loss of, Company Data or Company IT Systems (e.g.each, time bombsa “Data Security Incident”) such that Information Privacy Laws would have required the Company or its Subsidiaries to notify any individual, time locksbusiness, Governmental Authority or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices)other third party of such Data Security Incident. The Sellers have delivered to the Buyer all documentation relating to use, maintenance Company and operation of the Acquired Business Software held by the Sellers.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession of any of the Trade Secrets or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closing, the Databases will its Subsidiaries have at least the same information and functionality as exists prior to the Closing. No Person has any rightall times since January 1, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance 2021 complied in all material respects with applicable lawInformation Privacy Laws. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with No Legal Proceeding is pending or, to the operation Knowledge of the Business and all information contained in Company, threatened against, the Databases has been collected, used and maintained in all material respects in accordance Company or any of its Subsidiaries alleging any failure to comply with all applicable privacy any Information Privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby Merger by the Company will not result in any violation by the loss Company and its Subsidiaries with any Information Privacy Laws, expect for such conflicts, violations, breaches, defaults or impairment other occurrences which, individually or in the aggregate, would not reasonably be expected to (i) be material to the Company and its Subsidiaries, taken as a whole or (ii) prevent or materially delay the Company from consummating the Merger.
(l) Except as has not had, and would not, individually or in the aggregate, reasonably be expected to have, a Company Material Adverse Effect, in connection with each third-party service provider that the Company and its Subsidiaries permit to process or otherwise use Personal Data collected, held, or processed by or on behalf of the Buyer’s ownership or rights in Company and to its Subsidiaries, the Company and its Subsidiaries have entered into data processing agreements required under applicable Information Privacy Laws with any of the Acquired Business Intellectual Property, require the Buyer to grant to any such third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual Propertythat comply with applicable Information Privacy Laws.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a3.17(a) of the Company Disclosure Schedule Letter sets forthforth a list, with respect to as of the date of this Agreement, of all Business Company Registered Intellectual Property. Section 3.17(a) of the Company Disclosure Letter accurately summarizes, a complete where applicable, the following information for each item required to be listed on Section 3.17(a): patent number, application number, registration number, filing date, date of issuance, applicant, registrant, title, name (or mark), owner(s), country of origin, and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and registered and applied for Trademarks) and registered Copyrights, indicating for each, registrar. None of the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and Copyrights of each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark included in the Business Company Registered Intellectual Property (“Acquired Trademarks”) has been or is now involved in any cancellation proceeding and, to the knowledge of the Sellers, and no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks have been in continuous use by the Sellers since they were first used by the Sellers. To the knowledge of the Sellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent included in the Business other Company Owned Intellectual Property has been adjudged invalid or unenforceable in whole or in part and all such Company Registered Intellectual Property and other Company Owned Intellectual Property is now involved subsisting, valid and enforceable. As of the date of this Agreement, (i) no Legal Proceeding is currently or has been pending or threatened in writing (or to the Knowledge of the Company, orally) since January 1, 2022, that restricts, impairs or otherwise challenges or imposes any litigationobligation with respect to the legality, interferencevalidity, reissueenforceability, re-examination registration, use or opposing proceedingownership of any Company Registered Intellectual Property, and (ii) there is not now, and since January 1, 2022 there has not been, any outstanding Order that restricts, impairs or otherwise challenges or imposes any obligation with respect to the legality, validity, enforceability, registration, use or ownership of any Company Registered Intellectual Property. Neither the Company nor any of its Subsidiaries has received any written charge, complaint, claim, demand or notice since January 1, 2022 challenging such legality, validity, enforceability, registration, use or ownership of any Company Owned Intellectual Property. No Copyright registration or Copyrightable work included in the Business Company Registered Intellectual Property and no other Company Owned Intellectual Property has been cancelled, abandoned, invalidated, allowed to lapse or is now involved in any Action. To expire, not renewed, or permitted to enter the knowledge of the Sellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third partypublic domain.
(b) Section 3.12(b) The Company or one of its Subsidiaries has good, valid and legal title to, is the Disclosure Schedule sets forth a complete sole and accurate list exclusive owner of, and possesses all right, title and interest in and to, the Company Owned Intellectual Property (other than Company Owned Intellectual Property exclusively licensed to the Company), free and clear of all license agreements granting any Liens (other than Permitted Liens). The Company and each of its Subsidiaries have a valid and enforceable right to use and exploit all Company Owned Intellectual Property and all other Company Intellectual Property in the manner currently used or practice exploited in their businesses, as well as in any manner necessary for the operation of their businesses. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement, will alter, impair or extinguish any such rights and the Company and its Subsidiaries shall continue to have all such rights following Closing without infringement, misappropriation, or other violation of any Intellectual Property.
(c) Neither the Company nor any of its Subsidiaries has transferred to any Person ownership of any Intellectual Property that is or would have been, but for such transfer, Company Owned Intellectual Property. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement, will result in: (i) the loss, forfeiture, termination, or impairment of, or give rise to a right of any Person to limit, terminate, or consent to the continued use of, any rights of the Company or any of its Subsidiaries in any Company Intellectual Property; (ii) Parent and its Affiliates (excluding the Company and its Subsidiaries) granting to any Person any right in or with respect to any Intellectual Property owned or controlled by Parent or such Affiliates; (iii) the Company or its Subsidiaries granting to any third Person any right in or with respect to any Intellectual Property other than rights granted by the Company and its Subsidiaries on or prior to the Closing Date;, or (iv) Parent and its Affiliates, or the Company or its Subsidiaries, being bound by, or subject to, any non-compete or other restriction on its freedom to engage in, participate in, operate or compete in any line of business.
(d) Neither the Company nor any of its Subsidiaries (including directly, as a contributory infringer, through inducement or otherwise) nor the conduct of the Company’s or any of its Subsidiaries’ businesses (including any of the processes or business methods used by or at the direction of the Company or any Subsidiary or the use, practice, offering, licensing, provision, sale, distribution or other exploitation of any Company Offering), has at any time in the past six years infringed, misappropriated, diluted or otherwise violated, or is infringing, misappropriating, diluting, or otherwise violating, the Intellectual Property of any Person. Neither the Company nor any of its Subsidiaries has received any written charge, complaint, claim, demand, or notice at any time in the past six years (or earlier, if presently not resolved) alleging any such infringement, misappropriation, dilution, or violation (including any written claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property of any Person). To the Company’s Knowledge, there has not been any unauthorized use or disclosure of, or any infringement, misappropriation, dilution or other violation of, any Company Owned Intellectual Property at any time in the past six years and no Person is infringing, misappropriating, diluting or otherwise violating any Company Owned Intellectual Property. Neither the Company nor any of its Subsidiaries has made, asserted or been a part of any written charge, complaint, claim, demand or notice at any time in the past six years (or earlier, if presently not resolved)alleging any such infringement, misappropriation, dilution, or violation. There is no Legal Proceeding related to any Company Owned Intellectual Property other than prosecution proceedings entered into in the ordinary course of business with the applicable issuing or granting Governmental Authority.
(e) The Company and its Subsidiaries have at all times taken all actions reasonable and necessary (and, in any case, all actions required under applicable Law or Contract) to protect and preserve (i) the rights of the Company in and to all Company Owned Intellectual Property, (ii) the confidentiality and secrecy of their trade secrets and other confidential and proprietary information included in Company Intellectual Property and the trade secrets and other confidential or proprietary information of any Business Person, in the possession or control of Company or any Subsidiary of the Company (“Company Confidential Information”), and (iii) the security of their material Source Code, websites and systems (including the confidential data transmitted thereby or stored therein). There has been no suspected or actual unauthorized access, use or disclosure of any Company Confidential Information or any other Company Owned Intellectual Property, or any other Company Intellectual Property in the Company Group’s custody or control. No confidential information of the Company Group has been disclosed to any Person other than pursuant to a written confidentiality Contract or other binding obligations restricting the disclosure and use of such confidential information. There are no actions that must be taken by Company or its Subsidiaries within 90 days of the Closing Date to obtain, maintain, perfect, preserve, or renew any of the Company Intellectual Property (“Licensed other than exclusively licensed in Intellectual Property”), whether a Seller is the licensee ) or licensor thereunder, any rights of Company or its Subsidiaries therein or thereto.
(f) The Company and any assignments, consents, forbearances to ▇▇▇, judgments, orders, settlements, indemnification its Subsidiaries have complied at all times with each license or similar obligations relating agreement applicable to any Licensed Free or Open Source Software. No portion of any Company Offering or any Company Software includes, imbeds, or incorporates, is bundled with or incorporated into, is distributed, delivered, or hosted with, is developed or maintained through the use of, or is otherwise reliant for its operation upon any Free or Open Source Software in such a manner that: (i) could require the Company or any of its Subsidiaries to disclose or license to any Person any Source Code or trade secret; (ii) grants, or purports to grant, to any Person any rights or immunities under any Company Intellectual Property; (iii) requires any Company Intellectual Property to which a Seller is a party be made available at no charge; or (iv) otherwise bound limits or restricts the right or ability of the Company or any of its Subsidiaries to use or distribute any Company Intellectual Property.
(collectivelyg) All Persons who are or were current or former employees, officers, consultants and contractors of the “License Agreements”)Company or its Subsidiaries have each duly executed and delivered valid and binding written agreements with the Company or one of its Subsidiaries: (i) preventing them from disclosing any Company Confidential Information to any Person or making unauthorized use of any Company Confidential Information and otherwise protecting the confidentiality and secrecy of all Company Confidential Information; and (ii) irrevocably assigning, indicating for each without additional consideration, to the Company complete and exclusive ownership of all right, title, the partiesand interest in and to all Intellectual Property, date executedincluding inventions, discoveries, ideas, creations, works of authorship, data, information and content, whether or not it is exclusive patented or patentable, authored, invented, created, developed, conceived, or reduced to practice during the course of their employment or work for the Company or such Subsidiary and waiving all moral rights with respect to the Licensed foregoing, without exclusion of any Intellectual Property covered therebyfrom any such agreement. No current or former employee, officer, consultant or contractor of the Company is in breach of any such agreement. No current or former employee, officer, consultant or contractor of the Company or its Subsidiaries has any claim, right or interest in or to any Company Intellectual Property. The License Agreements are Company and its Subsidiaries has not made use of or employed any Intellectual Property created by any current or former employees, officers, consultants and contractors that is not Company Owned Intellectual Property. The Company and its Subsidiaries have complied with all applicable Laws and Contracts with regard to compensation of employees, officers, independent consultants and contractors for the assignment of their inventions and all such employees, officers, independent consultants and contractors have been fully compensated for all inventions, under applicable Law.
(h) The Source Code for all Company Offerings and all Company Software owned or purported to be owned by the Company or any Subsidiary is in the sole possession and custody of the Company or a Subsidiary. Neither the Company nor any of its Subsidiaries has published, provided, deposited, disclosed, licensed or entered into any escrow arrangements with respect to, nor is the Company or any of its Subsidiaries required to publish, provide, deposit, disclose or license to any Person, any Source Code for any Company Offerings or Company Software, except for disclosures to employees or contractors of the Company or any of its Subsidiaries, in each case pursuant to valid and binding obligations enforceable Contracts that prohibit use or disclosure of the applicable Seller party thereto and, Source Code except solely to the knowledge extent required for the performances of services for the Sellers, Company or any of each other party thereto enforceable in accordance with their respective termsits Subsidiaries. No event has occurred, and neither such Seller norno breach or similar condition exists, to the knowledge of the Sellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which that (with or without due notice or lapse of time, or both) would constitute such a default by could require the Sellers or, disclosure or delivery to the knowledge of the Sellers, the any other party or parties thereto Person of any of Source Code for any Company Software. Neither the foregoing. No consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance execution of this Agreement or any Transaction Document, or nor the consummation of the transactions contemplated hereby could be expected to result in the release of any Source Code for any Company Software from or thereby.
into escrow. The Company and its Subsidiaries have at times obtained and maintained all licenses (cin sufficient quantities and under sufficient terms) The Business necessary or required for the Company and its Subsidiaries to make valid and non-infringing use of all Software or other Intellectual Property constitutes all of owned by any other Person used or held for use by the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used in the conduct of the Business as currently conducted.
(d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Business Intellectual Property except pursuant to the License Agreements set forth in Section 3.12(d) of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas Company and works, whether or not patented or patentable or otherwise protectable under Law, created, prepared, developed or conceived by employees or independent contractors of a Seller its Subsidiaries in connection with the operation business. The Company and its Subsidiaries have at all times complied with all such licenses. The Company and its Subsidiaries own or have the right to exploit, and after Closing, Parent will continue to own or have the right to exploit, each item of the Business Company Software in the same manner and material to the operation of same extent as it was used immediately prior to the Business are the sole property of such Seller and were either created, prepared, developed or conceived by Closing.
(i) employees To the Company’s Knowledge, no part of such Seller within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to such Seller pursuant to enforceable written agreements.
(e) Each Seller owns all Business Intellectual Property purported to be owned by such Sellerany Company Software is copied from, and has a valid, enforceable, transferable and sufficient right to use for the purposes such Seller has previously used, the Business Intellectual Property licensed or otherwise used by such Seller, free and clear of all Liens.
(f) The use of the Business Intellectual Property by Sellers as currently used in the Business does not infringe based upon, violate, misappropriate or make unlawful use of derived from any Intellectual Property or other rights Software of any other Person. Neither Seller has received notice No Company Software, Company Offerings, or Company IT Systems contain any defects, vulnerabilities, bugs or errors, any Software designed to disable any other Software or any computer or system automatically, with the passage of time, under the positive control of any allegation that the use Person or otherwise, or any Software enabling unauthorized access to or operation of or other disruption, impairment, modification, recordation, misuse, transmission, disablement or destruction of any Business other Software or any computer or system. No warranty, indemnification requests or other claims have been asserted against the Company or any of its Subsidiaries related to any Company Offering since January 1, 2022.
(i) No government funding or governmental grants from any Governmental Authority, or support, funding, resources or assistance from any university, college, other academic institutions, or non-profit research centers, were used in the development of any Company Owned Intellectual Property, and (ii) no Person who was involved in or contributed to the creation or development of any Company Owned Intellectual Property has performed services for any Governmental Authority or received support, funding, resources or assistance from any university, college, other academic institutions, or non-profit research centers, in each case of (i) and (ii), in a manner that would adversely affect the Company’s or any of its Subsidiaries’ rights in and to any such Company Owned Intellectual Property or provide any right or interest in any such Intellectual Property to any Governmental Authority or any university, college, other academic institutions, or non-profit research centers. The Company Group is not and has not been a member of or contributor to a standards-setting organization or similar organization under which the conduct of the Business infringes uponCompany Group has granted a license or has agreed or is obligated to grant a license, violates, misappropriates covenant not to sue or makes unlawful use of any withhold enforcement under Company Owned Intellectual Property or other rights of that could, following Closing, require or obligate Parent to grant or offer to any other Person. To the knowledge of the Sellers, no Person is misappropriating, infringing, violating any license or making unlawful use of right to any Business Intellectual Property. There is no Action pending or, to the knowledge of the Sellers, threatened alleging that either Sellers’ activities or the conduct of the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. Neither Seller has threatened to bring and neither Seller has brought any Action regarding the ownership, use, validity or enforceability of any Business Company Intellectual Property.
(gk) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with The Company IT Systems are adequate and sufficient for the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge business of the Seller, none of the Acquired Business Software Company and its Subsidiaries (itaken as a whole) is designed to intentionally disrupt, disable, harm or otherwise impede as currently conducted in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices)all respects. The Sellers have delivered to the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the Sellers.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession of any of the Trade Secrets or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closing, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained Company IT Systems operate in all material respects in accordance with all their documentation and specifications (including any documentation or specifications provided to customers and potential customers of the Company and its Subsidiaries) and are sufficient to support the operation of the business of the Company and its Subsidiaries. All Company Information Systems have been maintained by technically competent personnel in accordance with standards set by the manufacturers or otherwise in accordance with reasonable industry standards. There are no material problems or defects in any Company Information Systems that prevent or would prevent such Company Information Systems from operating substantially as described in its applicable privacy Lawsdocumentation or specifications. The Sellers Company Information Systems have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (not experienced any material malfunction or failure. The Company and its successors Subsidiaries have implemented industry best practices designed to safeguard the availability, security and assigns)integrity of the Company IT Systems, including implementing, maintaining, and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Buyer’s ownership or rights in and to any of the Acquired Business Intellectual Propertycomplying with commercially reasonable backup, require the Buyer to grant to any third party any right to any Acquired Business Intellectual Property or obligate the Buyer to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Acquired Business Intellectual Property.di
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Sources: Agreement and Plan of Merger (Hall of Fame Resort & Entertainment Co)