Intellectual Property; Software. (a) Schedule 4.17(a) contains a list and description (showing in each case any the status, application number and/or registration number, as applicable) of all registered copyrights, patents and Trademarks owned by the Company, together with any applications for registration thereof (the “Registered Intellectual Property” and, together with all other Intellectual Property rights currently used in the Company’s business, the “Company Intellectual Property”). (b) Schedule 4.17(b) contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by, licensed to or used by the Company, except for generally commercially available Software licensed to the Company substantially on standard terms or Software that is not material to the Company’s conduct of the Business. (c) Schedule 4.17(c) contains a list and description (showing in each case the parties thereto and the title thereof) of any and all (i) licenses, sublicenses and assignments by the Company of any Company Intellectual Property; (ii) express agreements by the Company to indemnify any third party with respect to infringement of any Intellectual Property right of any third party; (iii) licenses and other agreements pursuant to which the Company is an express licensee under any Trade Secrets owned by any third party, except for license agreements for generally commercially available Software licensed to the Company substantially on standard terms; and (iv) any Software listed in Schedule 4.17(b). (d) Except as disclosed in Schedule 4.17(d), the Company (i) owns the entire right, title and interest in and to the Registered Intellectual Property, free and clear of any Encumbrance; and (ii) has all required rights (whether by ownership, license or otherwise) to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality of the Company’s current Web site, as the same is currently used in the Company’s business. (e) Except as disclosed in Schedule 4.17(e): (i) all maintenance fees due with respect to the copyrights, patents and Trademarks identified in Schedule 4.17(a) as being owned by the Company have been paid, and all applications to register any such copyrights, patents and Trademarks have been duly filed and maintained in accordance with the rules of the applicable Governmental Body, and have not been challenged in writing by any third party; (ii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Registered Intellectual Property, and to the Actual Knowledge of Seller and the Company, there is no basis for any such action; (iv) the Company is not in material breach of any agreement affecting any material item of Company Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Company Intellectual Property. Correct and complete copies of: (x) registrations for all Registered Intellectual Property; and (y) all pending applications to register Company Intellectual Property (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Seller to Buyer. (f) Except as set forth in Schedule 4.17(f), (i) to the Actual Knowledge of the Company, no infringement of any Intellectual Property of any other Person has occurred or results in any way from the operations, activities, products, Software, equipment, machinery or processes currently used in the Company’s business; (ii) no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations of the Company’s business; (iii) no written claim or assertion of invalidity of any Registered Intellectual Property has been made; (iv) no proceedings are pending or, to the Actual Knowledge of the Company, threatened which challenge the validity, ownership or use by the Company of any Company Intellectual Property; and (v) none of the Seller nor the Company has had notice of, or Actual Knowledge of any basis for, a claim against Seller that the operations, activities, products, software, equipment, machinery or processes of the Company infringe any Intellectual Property of any other Person. (g) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by the Company to the Buyer prior to the Closing, (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any (the “Owned Software”), (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the Company owns all right, title and interest in and to the Owned Software; (iv) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company); (v) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; and (vi) the Company’s use of the Owned Software has complied in all material respects with all applicable Legal Requirements relating to the export or reexport of the same. (h) Except as disclosed in Schedule 4.17(h), all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any material Intellectual Property or Software on behalf of the Company or any predecessor in interest thereto either: (i) is a party to a “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in such material. (i) Schedule 4.17(i) sets forth an accurate list of all of the domain names owned by the Company or used by the Company in the operation of the Business (the “Company Domain Names”). The Company is the sole owner and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules of the applicable Domain Name registration authorities.
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Intellectual Property; Software. (ai) Schedule 4.17(a3(s) of the Company Disclosure Letter contains a ------------- true and complete list and description (showing in each case any the status, application number and/or registration number, as applicable) of all registered copyrightspatents, patents trademarks, service marks and Trademarks copyright registrations, and all pending applications for patents, trademarks, service marks and copyright registrations, owned by or licensed to the CompanyCompany (collectively, together with any applications for registration thereof (the “Registered "Intellectual Property” and, together with all other Intellectual Property rights currently used in the Company’s business, the “Company Intellectual Property”").
(bii) Schedule 4.17(b3(s) of the Company Disclosure Letter contains a ------------- true and complete list and description (showing in each case any owner, licensor or licensee) of all Software owned by, licensed to or used by the Company, except for generally commercially available Software licensed to the Company substantially on standard terms or Software that is not material to the Company’s conduct of the Business.
(c) Schedule 4.17(c) contains a list and description (showing in each case the parties thereto and the title thereof) of any and all (i) licenses, sublicenses and assignments all computer software owned by the Company of any and all computer software licensed by the Company Intellectual Property; (collectively, the "Software"), (ii) express agreements all -------- 19 Software licensed (or sublicensed) by the Company to indemnify any third party with respect to infringement of any Intellectual Property right of any third party; its customers and (iii) all licenses and other agreements pursuant to which the Company is an express licensee under any Trade Secrets owned by any third party, except for license agreements for generally commercially available licenses or sublicenses Software licensed to the Company substantially on standard terms; and (iv) any Software listed in Schedule 4.17(b).
(d) from other persons. Except as disclosed in specified on Schedule 4.17(d), the Company (i3(s) owns the entire right, title and interest in and to the Registered Intellectual Property, free and clear of any Encumbrance; and (ii) has all required rights (whether by ownership, license or otherwise) to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality of the Company’s current Web site, as the same is currently used in the Company’s business.
(e) Except as disclosed in Schedule 4.17(e): (i) all maintenance fees due with respect to the copyrights, patents and Trademarks identified in Schedule 4.17(a) as being owned by the Company have been paid, and all applications to register any such copyrights, patents and Trademarks have been duly filed and maintained in accordance with the rules of the applicable Governmental Body, and have not been challenged in writing by any third party; (ii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Registered Intellectual Property, and to the Actual Knowledge of Seller and the Company, there is no basis for any such action; (iv) the Company is not in material breach of any agreement affecting any material item of Company Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Company Intellectual Property. Correct and complete copies of: (x) registrations for all Registered Intellectual Property; and (y) all pending applications to register Company Intellectual Property (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Seller to Buyer.
(f) Except as set forth in Schedule 4.17(f), (i) to the Actual Knowledge of the Company, no infringement of any Intellectual Property of any other Person has occurred or results in any way from the operations, activities, products, Software, equipment, machinery or processes currently used in the Company’s business; (ii) no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations of the Company’s business; (iii) no written claim or assertion of invalidity of any Registered Intellectual Property has been made; (iv) no proceedings are pending or, to the Actual Knowledge of the Company, threatened which challenge the validity, ownership or use by the Company of any Company Intellectual Property; and (v) none of the Seller nor the Company has had notice of, or Actual Knowledge of any basis for, a claim against Seller that the operations, activities, products, software, equipment, machinery or processes of the Company infringe any Intellectual Property of any other Person.
(g) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by Disclosure Letter the Company to the Buyer prior to the Closing, (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any (the “Owned Software”), (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the ------------- Company owns all right, title and interest in and to the Owned Software; (iv, free and clear of any liens, claims or encumbrances of any kind or nature, or, in the case of Software identified on Schedule 3(s) of the ------------- Company Disclosure Letter as owned by third parties and licensed to the Company, the Company has an irrevocable right to use such Software under licenses with respect to the third party Software required in connection with the conduct of its business. All Software owned by the Company was developed by the Owned Software Company entirely through its the Company's own efforts and for its own account without the aid or account. The use of any consultantsSoftware licensed to the Company from third parties (including the sublicensing of such licensed Software to customers) does not violate the terms of the respective license agreements with respect to such licensed Software.
(iii) No patent, agentstrademark, independent contractors service ▇▇▇▇, copyright, trade secret, computer software or Persons (other intellectual property right other than Persons that are employees the Intellectual Property set forth on Schedule 3(s) of the Company); ------------- Company Disclosure Letter and software set forth on Schedule 3(s) of ------------- the Company Disclosure Letter is necessary for the Company to conduct, or is used by the Company in its operation of, its business as it is now being conducted.
(viv) there are no Schedule 3(s) of the Company Disclosure Letter contains a ------------- true and complete list of all licenses, sublicenses, covenants or agreements or arrangements in effect which have been entered into by the Company with respect to the marketingIntellectual Property.
(v) The conduct by the Company of its business as currently conducted, distributiondoes not and will not conflict with or infringe upon any patent, licensing trademark, service ▇▇▇▇, copyright, trade secret or promotion other intellectual property right of any third party, nor has the Owned Software Company been notified of any alleged infringement by the Company of any other Person; and such third party rights.
(vi) the Company’s use No officer, employee (including both current and former employees), consultant (including both current and former consultants) or independent contractor (including both current and former contractors) of the Owned Software has complied Company owns, directly or indirectly, in all material respects with all applicable Legal Requirements relating to whole or in part, any patent, trademark, service ▇▇▇▇, copyright, computer software, trade secret or other intellectual property right which the export Company is using or reexport which is necessary for the business of the sameCompany as now conducted.
(hvii) Except The Intellectual Property and Software listed on Schedule -------- 3(s) to the Company Disclosure Letter as disclosed being owned by the Company ---- are referred to in this Agreement as the "Owned Intangible Rights," and the Intellectual ----------------------- Property and Software listed on Schedule 4.17(h)3(s) to the Company ------------ Disclosure Letter as being licensed to the Company are referred to in this Agreement as the "Licensed Intangible Rights." The Owned -------------------------- Intangible Rights are not subject to any arrangement requiring any payment to any person or the obligation to grant rights to any person in exchange for such owned Intangible Rights. All personnel, all including employees, agents, consultants or contractors and contractors, who have contributed to or participated in the creation or conception and development of any material Intellectual Property or Software on behalf of the Company or any predecessor in interest thereto either: Owned Intangible Rights either (i) is a have been party to a “work-for-hire” hire arrangement or agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of with the Company (or such predecessor in interest, as applicable) of pursuant to which all right, title and interest pertaining to such Owned Intangible Rights was assigned to the Company) or (ii) have executed appropriate instruments of assignment in such material.
(i) Schedule 4.17(i) sets forth an accurate list favor of the Company as assignee that have conveyed to the Company full, effective, and exclusive ownership of all tangible and intangible property thereby arising. Except as disclosed on Schedule 3(s) to the Company Disclosure Letter, the ------------- validity of the domain names owned by Owned Intangible Rights and title thereto and the Company validity of the Licensed Intangible Rights have not been questioned in any prior litigation and are not the subject of any threatened or used by proposed litigation. The consummation of the Company transactions contemplated hereby will not result in the operation loss or impairment of any of the Business (the “Company Domain Names”). The Company is the sole owner and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules Owned Intangible Rights or any of the applicable Domain Name registration authoritiesLicensed Intangible Rights.
Appears in 1 contract
Intellectual Property; Software. (a) Schedule 4.17(a) 4.12 contains a list and description (showing in each case any product, device, process, service, business or publication covered thereby, the statusregistered or other owner, application number and/or registration expiration date and number, as applicableif any) of all registered copyrightsCopyrights, patents Patent Rights, Trademarks and Trademarks owned by the Company, together with any applications for registration thereof (the “Registered Intellectual Property” and, together with all other Intellectual Property rights currently owned by, licensed to and by the Company or used in by the Company’s business, the “Company Intellectual Property”).
(b) Schedule 4.17(b) 4.12 contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by, licensed to and by the Company or used by the Company, except for generally commercially available Software licensed to the Company substantially on standard terms or Software that is not material available in consumer retail stores and subject to the Company’s conduct of the Business“shrink-wrap” license agreements.
(c) Schedule 4.17(c) 4.12 contains a list and description (showing in each case the parties thereto and the title material terms thereof) of any all agreements, contracts, licenses, sublicenses, assignments and all indemnities which relate to (i) licensesany Copyrights, sublicenses Patent Rights, Trademarks or other Intellectual Property rights listed in Schedule 4.12, (ii) any Trade Secrets owned by, licensed to and assignments by the Company of any Company Intellectual Property; (ii) express agreements or used by the Company to indemnify any third party with respect to infringement of any Intellectual Property right of any third party; or (iii) licenses and other any Software listed in Schedule 4.12 or (iv) any Website run by the Company.
(d) Schedule 4.12 contains a list of all agreements pursuant to which the Company is an express licensee under any Trade Secrets owned by makes royalty payments to any third partyparty and where it is required, except notification to administrative bodies such as INPI for license agreements for generally commercially available Software licensed to the Company substantially on standard terms; International technical transfers and (iv) any Software listed in Schedule 4.17(b)royalties incurred.
(de) Except as disclosed in Schedule 4.17(d)4.12, the Company either: (i) owns the entire right, title and interest in and to the Registered Intellectual Property, Software and Website included in its assets and properties, free and clear of any Encumbrance; and or (ii) has all required rights (whether by ownershipthe perpetual, license or otherwise) royalty-free right to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality of the Company’s current Web site, as the same is currently used in (this applies also, without any limitation, to any Intellectual Property assigned within the Company’s business.Group)
(ef) Except as disclosed in Schedule 4.17(e): 4.12: (i) all maintenance fees due with respect to the copyrightsregistrations for Copyrights, patents Patent Rights, Trademarks and Trademarks other Intellectual Property rights identified in Schedule 4.17(a) 4.12 as being owned by the Company have been paidare valid and in force, and all applications to register any such copyrightsunregistered Copyrights, patents Patent Rights and Trademarks have been duly filed so identified are pending and maintained in accordance with the rules good standing, all without challenge of the applicable Governmental Body, and have not been challenged in writing by any third partykind; (ii) the Intellectual Property owned by the Company is valid and enforceable; (iii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Registered Intellectual Property, Software and Website owned by the Company, and to the Actual Knowledge knowledge of Seller and the Companyeach Seller, there is no basis for any such action; (iv) the Company has taken all actions reasonably necessary to protect, and where necessary register, the Copyrights, Trademarks, Software, Patent Rights, Trade Secrets, Website or other Intellectual Property rights; and (v) the Company is not in material breach of any agreement affecting any material item of Company the Intellectual Property, and the Company has not taken any action which would impair or otherwise adversely affect its rights in the Company Intellectual Property. Correct and complete copies of: (x) registrations for all Registered registered Copyrights, Patent Rights, Trademarks and other Intellectual PropertyProperty rights identified in Schedule 4.12 as being owned by the Company; and (y) all pending applications to register Company unregistered Copyrights, Patent Rights, Trademarks and other identified Intellectual Property rights identified in Schedule 4.12 as being owned by the Company (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Seller Sellers to Buyer.
(fg) Except as set forth in Schedule 4.17(f)4.12, (i) to the Actual Knowledge of the Company, no infringement of any Intellectual Property nor violation of personality and image rights of any other Person has occurred or results in any way from the operations, activities, products, Software, equipment, machinery or processes currently processes, notably internet website used in the Company’s business; (ii) no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations of the Company’s business; (iii) no written claim or assertion of invalidity of any Registered Copyright, Trademark or Patent Right, Software, Website or Trade Secret or any other Intellectual Property right has been made; (iv) no proceedings are pending or, to the Actual Knowledge knowledge of the CompanySellers, threatened which challenge the validity, ownership or use by the Company of any Company Intellectual Property; and (v) none of neither the Seller Sellers nor the Company has had notice of, or Actual Knowledge knowledge of any basis for, a claim against any Seller or the Company that the operations, activities, products, software, equipment, machinery or processes of the Company infringe any Intellectual Property of any other Person.
(gh) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by the Company to the Buyer prior to the Closing, 4.12: (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, pledge or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any owns (the “Owned Software”), ) (including all source code code, system specifications and system specificationsrelated documentation) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the Owned Software has been registered or is eligible for protection and registration under applicable copyright law and has not been forfeited to the public domain; (iv) the Company owns has copies of all prior releases or separate versions of the Owned Software and has secured copies of the updated source codes of the Software at a well known escrow company; (v) the Company has complete and exclusive right, title and interest in and to the Owned Software; (ivvi) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company), specifically hired for the development of the Software and who have developed the Software in accordance with the Company’s instructions, during their business activities for the Company and with the Company means); (vvii) the Owned Software does not infringe any Intellectual Property of any other Person; (viii) any Owned Software includes the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools, and higher level (or “proprietary”) language used for the development, maintenance, implementation and use thereof, so that a trained computer programmer could develop, maintain, enhance, modify, support, compile and use all releases or separate versions of the same that are currently subject to maintenance obligations by the Company; (ix) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; and (vix) the Company’s use of the Owned Software has complied in all material respects complies with all applicable Legal Requirements of Laws relating to the export or reexport of the same; and (xi) the Owned Software may be exported or reexported to all countries without the necessity of any license.
(hi) Except as disclosed in Schedule 4.17(h)4.12, all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any material Intellectual Property or Software or Website on behalf of the Company or any predecessor in interest thereto either: (i) is a party to a “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in such material.
(ij) Schedule 4.17(i) sets forth an accurate list All employees, agents, consultants or contractors who have contributed to or participated in the creation or development of all any Intellectual Property or Software or the Website on behalf of the domain names owned by the Company or used by the Company any predecessor in interest thereof and who are party to a “work-for-hire” agreement, have contributed to or participated in the operation creation or development of any Intellectual Property or Software or Website in the Business (execution of their duties for the “Company Domain Names”). The Company is the sole owner and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules of the applicable Domain Name registration authoritiesCompany.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Med Technologies Inc)
Intellectual Property; Software. (a) Schedule 4.17(a3.19(a)(i) contains a list lists all Intellectual Property and description (showing in each case any the status, application number and/or registration number, as applicable) of all registered copyrights, patents applications and Trademarks renewals for Intellectual Property owned by the Company or filed on its behalf (such items being referred to herein as the “Owned Company Intellectual Property”). Schedule 3.19(a)(ii) lists all licenses (in and out), sublicenses and other agreements to which the Company is a party and pursuant to which Intellectual Property is licensed to the Company, together with any applications for registration thereof or the Company licenses Intellectual Property to a third party (all Intellectual Property that is licensed by the Company (as licensee) pursuant to the agreements set forth on Schedule 3.19(a)(ii) being referred to herein as the “Registered Licensed Company Intellectual Property” and, together with all other ”). The Owned Company Intellectual Property rights currently used in and the Company’s business, Licensed Company Intellectual Property are referred to collectively herein as the “Company Intellectual Property.”).
(b) Schedule 4.17(bEach item of Company Intellectual Property is either: (i) contains a list owned solely by the Company free and description (showing in each case any owner, licensor or licensee) clear of all Software owned byEncumbrances other than licenses to third parties described in Schedule 3.19(a)(ii), licensed to or (ii) rightfully used and authorized for use by the Company as between the Company, except for generally commercially available Software licensed on the one hand, and the licensors of such Company Intellectual Property, on the other hand, pursuant to the Company substantially on standard terms or Software that is not material to the Company’s conduct of the Businessa written Contract.
(c) Except as set forth in Schedule 4.17(c3.19(c), the Company is not in violation of any license, sublicense or other agreement to which it is a party or otherwise bound relating to any Licensed Company Intellectual Property.
(d) contains a list All Owned Company Intellectual Property is valid, subsisting and description (showing enforceable in the Canada and in each case other jurisdiction in which such Owned Company Intellectual Property is presently registered. Except as set forth in Schedule 3.19(d), no trademarks or service marks other than those included in the parties thereto and Owned Company Intellectual Property are used by the title thereof) Company in connection with the current products or services sold by the Company. Each copy of any commercially available software used by the Company is used pursuant to, and all in accordance with, valid license rights in favor of the Company. Except as set forth in Schedule 3.19(d), no claims have been documented in writing to the Company by any Person, either: (i) licenseschallenging the validity, sublicenses and assignments enforceability, effectiveness, right to use or ownership by the Company of any of the Owned Company Intellectual Property; or (ii) express agreements alleging that any Licensed Company Intellectual Property or that any services provided, processes used or products manufactured, used, imported, reproduced, modified, distributed, licensed, sublicensed, offered for sale or sold by the Company to indemnify any third party with respect to infringement of has been infringed, misappropriated or otherwise violated, is or will infringe, misappropriate or otherwise violate any Intellectual Property or other proprietary right of any third party; (iii) licenses and other agreements pursuant Person. Except as set forth in Schedule 3.19(d), to which the Knowledge of the Company there is an express licensee under no and has not been any Trade Secrets owned unauthorized use, infringement, misappropriation or other violation of any of the Owned Company Intellectual Property by any Company Employee, former Company Employee or any third party, except for license agreements for generally commercially available Software licensed to the Company substantially on standard terms; and (iv) any Software listed in Schedule 4.17(b).
(d) Except as disclosed in Schedule 4.17(d), the Company (i) owns the entire right, title and interest in and to the Registered Intellectual Property, free and clear of any Encumbrance; and (ii) has all required rights (whether by ownership, license or otherwise) to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality of the Company’s current Web site, as the same is currently used in the Company’s business.
(e) Except as disclosed set forth in Schedule 4.17(e): (i) all maintenance fees due with respect to the copyrights3.19(e), patents and Trademarks identified in Schedule 4.17(a) as being owned by the Company have been paid, and all applications to register any such copyrights, patents and Trademarks have been duly filed and maintained in accordance with the rules of the applicable Governmental Body, and have not been challenged in writing by any third party; (ii) the Company has secured from all parties (including, but not limited to, Employees) who have created any portion of, or otherwise have any rights in or to, the sole Owned Company Intellectual Property valid and exclusive right enforceable written assignments of any such work, invention, improvement or other rights to bring actions for infringement or unauthorized use the Company to the extent necessary to vest title in such Owned Company Intellectual Property in the Company and waivers of moral rights by all Employees and contractors involved in the creation of any aspect of the Registered Intellectual Property, and to the Actual Knowledge of Seller and the Company, there is no basis for any such action; (iv) the Company is not in material breach of any agreement affecting any material item of Owned Company Intellectual Property. No current or former Employee of the Company has any interest in any item of Owned Company Intellectual Property other than moral rights waived as described in the preceding sentence. The Company has recorded all such assignments with all patent offices worldwide in which any Owned Company Intellectual Property is registered or for which an application has been filed.
(f) The transactions contemplated hereby will not alter, and has not taken any action which would impair encumber, impair, extinguish or otherwise adversely affect its rights in any Owned Company Intellectual Property or impair the right of the Purchaser to develop, use, sell, license or dispose of, or to bring any action for the infringement of, any Owned Company Intellectual Property. Correct and complete copies of: .
(xg) registrations for The Company has taken all Registered Intellectual Property; and (y) all pending applications commercially reasonable measures necessary to register protect the proprietary nature of the Owned Company Intellectual Property (together with any subsequent correspondence, notices or filings relating and to maintain in confidence all trade secrets and confidential information owned by the foregoing) have heretofore been delivered by Seller to BuyerCompany.
(fh) Except as set forth in Schedule 4.17(f3.19(h), all Company employees have executed a non-disclosure agreement in favor of the Company and each such agreement remains in full force and effect. A copy of each such agreement has been delivered to Purchaser.
(i) to To the Actual Knowledge of the Company, no infringement the Company Intellectual Property comprised of software is free of any Intellectual Property of disabling codes or instructions (a “Disabling Code”), and any virus or other Person intentionally created, undocumented contaminant (a “Contaminant”), that may, or may be used to, access, modify, delete, damage or disable any systems or that may result in damage thereto. The Company has occurred or results in any way taken all steps and implemented all procedures to ensure that its internal computer systems are free from Disabling Codes and Contaminants. To the operations, activities, products, Software, equipment, machinery or processes currently used in the Company’s business; (ii) no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations of the Company’s business; (iii) no written claim or assertion of invalidity of any Registered Intellectual Property has been made; (iv) no proceedings are pending or, to the Actual Knowledge of the Company, threatened which challenge the validity, ownership or use by the Licensed Company Intellectual Property is free of any Company Intellectual Property; and (v) none Disabling Codes or Contaminants that may, or may be used to, access, modify, delete, damage or disable any of the Seller nor the Company has had notice of, or Actual Knowledge of any basis for, a claim against Seller that the operations, activities, productshardware, software, equipmentdatabases, machinery or processes of the Company infringe any Intellectual Property of any other Person.
(g) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by the Company to the Buyer prior to the Closing, (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipmentembedded control systems, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any (the “Owned Software”), (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the Company owns all right, title and interest in and to the Owned Software; (iv) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company); (v) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; and (vi) the Company’s use of the Owned Software has complied in all material respects with all applicable Legal Requirements relating to the export or reexport of the same.
(h) Except as disclosed in Schedule 4.17(h), all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any material Intellectual Property or Software on behalf systems of the Company or any predecessor that might result in interest thereto either: (i) is a party to a “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in such material.
(i) Schedule 4.17(i) sets forth an accurate list of all of the domain names owned by the Company or used by the Company in the operation of the Business (the “Company Domain Names”)damage thereto. The Company is the sole owner has taken all commercially reasonable steps to safeguard its systems and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules of the applicable Domain Name registration authoritiesrestrict unauthorized access thereto.
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Intellectual Property; Software. (a) Schedule 4.17(a3.22(a) contains a list and description (showing in each case any showing, where applicable, the statusregistered or other owner, application number and/or registration expiration date and number, as applicableif any) of all registered copyrightsof the following Intellectual Property owned by, licensed to or used by the Company and/or any of its Subsidiaries: (i) active copyright registrations and pending copyright registration applications; (ii) active patents and Trademarks pending patent applications; (iii) trademark and service ▇▇▇▇ registrations and pending trademark and service ▇▇▇▇ registration applications; (iv) material unregistered trademarks and service marks; (v) trade names; and (vi) domain names and pending domain name applications. Schedule 3.22(a) additionally contains a list of (A) all Internet and World Wide Web URLs of websites owned or operated by or on behalf of the Company, together with Company or any applications for registration thereof of its Subsidiaries; and (B) all 800- or 888- prefix phone numbers (or similar toll-free phone numbers) assigned to the “Registered Intellectual Property” and, together with all other Intellectual Property rights currently Company or any of its Subsidiaries and used in connection with the Company’s conduct of its business, the “Company Intellectual Property”).
(b) Schedule 4.17(b3.22(b) contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by, licensed to or used by the CompanyCompany and/or any of its Subsidiaries, except for generally commercially available Software licensed to the Company substantially on standard terms or Software any of its Subsidiaries that is not material available in consumer retail stores and subject to the Company’s conduct of the Business“shrink-wrap” license agreements.
(c) Schedule 4.17(c3.22(c) contains a list and description (showing in each case the parties thereto and the title thereofthereto) of all Contracts which license, sublicense or assign, or otherwise grant permission to use, to or by the Company or any and all of its Subsidiaries (i) licensesany Intellectual Property listed in Schedule 3.22(a), sublicenses and assignments (ii) any trade secrets (as defined under applicable Law) owned by, licensed to or used by the Company or any of any Company Intellectual Property; (ii) express agreements by the Company to indemnify any third party with respect to infringement of any Intellectual Property right of any third party; its Subsidiaries or (iii) licenses and other agreements pursuant to which the Company is an express licensee under any Trade Secrets owned by any third party, except for license agreements for generally commercially available Software licensed to the Company substantially on standard terms; and (iv) any Software listed in Schedule 4.17(b3.22(b).
(d) Except as disclosed in Schedule 4.17(d3.22(d), each of the Company and its Subsidiaries either: (i) owns the entire right, title and interest in and to the Registered Intellectual PropertyProperty and Software necessary for the conduct of its business as conducted as of the Closing, free and clear of any EncumbranceEncumbrance other than Permitted Encumbrances; and or (ii) has all required rights (whether by ownershipthe perpetual, license or otherwise) royalty-free right to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality of the Company’s current Web site, as the same is currently used in the Company’s businesssame.
(e) Except as disclosed in Schedule 4.17(e3.22(e): (i) all maintenance fees due with respect to the copyrightsregistrations for Copyrights, patents Patent Rights and Trademarks identified in Schedule 4.17(a3.22(a) as being owned by the Company have been paidor its Subsidiaries are valid and in force, and all applications to register any such copyrightsunregistered Copyrights, patents Patent Rights and Trademarks have been duly filed so identified are pending and maintained in accordance with the rules good standing, all without challenge of the applicable Governmental Body, and have not been challenged in writing by any third partykind; (ii) the Intellectual Property owned by each of the Company and its Subsidiaries is valid and enforceable; (iii) each of the Company and its Subsidiaries has the sole and exclusive right to bring actions for infringement or unauthorized use of the Registered Intellectual PropertyProperty and Software owned by the Company and its Subsidiaries, and and, to the Actual Knowledge knowledge of Seller the Sellers and the Company, there is no basis for any such action; (iv) each of the Company and its Subsidiaries has taken all actions reasonably necessary to protect, and where necessary register, the Copyrights, Trademarks, Software, Patent Rights or Trade Secrets; and (v) neither the Company nor any of its Subsidiaries is not in material breach of any agreement affecting any material item of Company the Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Company Intellectual Property. Correct and complete copies of: (x) registrations for all Registered Intellectual Propertyregistered Copyrights, Patent Rights and Trademarks identified in Schedule 3.22 as being owned by the Company or any of its Subsidiaries; and (y) all pending applications to register unregistered Copyrights, Patent Rights and Trademarks identified in Schedule 3.22(a) as being owned by the Company Intellectual Property or any of its Subsidiaries (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered made available by Seller the Sellers to the Buyer.
(f) Except as set forth in Schedule 4.17(f), 3.22(f): (i) to the Actual Knowledge knowledge of the Sellers and the Company, no infringement of any Intellectual Property of any other Person has occurred or results resulted in any way from the operations, activities, products, Software, equipment, machinery or processes currently used in the Company’s and its Subsidiaries’ business; (ii) to the knowledge of the Sellers and the Company, no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations of the Company’s and its Subsidiaries’ business; (iii) to the knowledge of the Sellers and the Company, no written claim or assertion of invalidity of any Registered Intellectual Property Copyright, Trademark or Patent Right, Software or Trade Secret owned by or licensed to the Company or any Subsidiary has been made; (iv) no proceedings are pending or, to the Actual Knowledge knowledge of the Sellers and the Company, threatened which challenge the validity, ownership or use by the Company or any Subsidiary of any Company Intellectual Property; and (v) none of the Seller nor Sellers, the Company or any of its Subsidiaries has had notice of, or Actual Knowledge of any basis for, a claim against Seller the Company or any of its Subsidiaries that the operations, activities, products, software, equipment, machinery or processes of the Company or any of its Subsidiaries infringe any Intellectual Property of any other Person.
(g) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by the Company to the Buyer prior to the Closing, (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any (the “Owned Software”), (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the Company owns all right, title and interest in and to the Owned Software; (iv) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company); (v) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; and (vi) the Company’s use of the Owned Software has complied in all material respects with all applicable Legal Requirements relating to the export or reexport of the same.
(h) Except as disclosed in Schedule 4.17(h), all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any material Intellectual Property or Software on behalf of the Company or any predecessor in interest thereto either: (i) is a party to a “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in such material.
(i) Schedule 4.17(i) sets forth an accurate list of all of the domain names owned by the Company or used by the Company in the operation of the Business (the “Company Domain Names”). The Company is the sole owner and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules of the applicable Domain Name registration authorities.
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Intellectual Property; Software. (a) Schedule 4.17(a) contains a list and description (showing in each case any To the status, application number and/or registration number, as applicable) Knowledge of all registered copyrights, patents and Trademarks owned by the Company, together with any each of the Company and its subsidiaries owns, or is validly licensed or otherwise has the right to use (in each case, free and clear of all material liens and encumbrances) all patents, patent applications, trademarks (both registered and unregistered), trade names, service marks (both registered and unregistered), copyrights (both registered and unregistered) and other proprietary intellectual property rights, computer programs and other technology that are material to the Company’s businesses. Schedule 5.18(a) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, a complete and accurate list of all patents and pending patent applications, trademarks, service marks, trade names, material copyrights (including without limitation, computer software programs), and registrations and applications for registration thereof of copyrights, trademarks, service marks, trade names, trade dress and domain names (the collectively “Registered Intellectual Property” and, together with all other Intellectual Property rights currently used in the Company’s business, the “Company Intellectual Property”)) owned or held for use by the Company or any of its subsidiaries in the conduct of its business.
(b) Schedule 4.17(b5.18(b) contains of the Company Disclosure Schedule sets forth a list and description (showing in each case any owner, licensor or licensee) of all Software owned bymaterial licenses, sublicenses and other similar agreements (whether written or otherwise) (“Material License”) (A) pertaining to any patents, trademarks, service marks, trade names, copyrights, trade secrets, computer software (other than commercially available, off-the-shelf software applications obtained or licensed to for less than $20,000.00), website design or other intellectual property used by the CompanyCompany or its subsidiaries in the conduct of their business, except for generally commercially available Software licensed to and (B) by which the Company substantially on standard terms licenses or Software that is not material otherwise authorizes a third party to use the Company’s conduct or any of its subsidiaries’ Intellectual Property. The Company is in compliance in all material respects with such agreements. Except as set forth in Schedule 5.18(b) of the BusinessCompany Disclosure Schedules, the Transactions, in and of themselves, do not and will not trigger any provision under any Material License to (x) permit the termination of such agreement by the licensor; (y) permit the renegotiation of any terms, including without limitation the amount of any commission, royalty or other fee(s) payable under such agreement; or (z) restrict, in any material way, the Company’s or Surviving Corporation’s use of such intellectual property in the business subsequent to the Effective Time or the purchase of shares of Company Common Stock pursuant to the Offer. To the Knowledge of Company, the computer software and information technology systems owned, leased or licensed for use in the business do not contain any viruses, worms, or other malicious code, and any such software or systems, to the extent applicable, will consistently and accurately perform their intended functions, except to the extent that the failure of such systems to so perform could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Schedule 4.17(c) contains In each of the following cases, except for those matters that have not had and could not reasonably be expected to have, individually or in the aggregate, a list and description (showing in each case the parties thereto and the title thereof) of any and all Company Material Adverse Effect: (i) licensesto the Knowledge of the Company, sublicenses and assignments by the business operations of the Company and its subsidiaries do not infringe, dilute, misappropriate or otherwise violate the patents, trademarks, service marks, trade names, trade dress, copyrights (including computer software), trade secrets or other intellectual property rights of any Person; (ii) to the Knowledge of the Company, no Person is challenging or infringing on or otherwise violating any right of the Company or any of its subsidiaries with respect to any Company Intellectual Property; (iiiii) express agreements neither the Company nor any of its subsidiaries has received any written notice of any claim, demand, suit, order or proceeding that the operations of the Company or any of its subsidiaries infringe, misappropriate or otherwise violate the intellectual property rights of any Person; (iv) to its Knowledge, except as set forth in Schedule 5.18(c) of the Company Disclosure Schedule, all Company Intellectual Property is in full force and effect, is owned by the Company to indemnify any third party with respect to infringement or its subsidiaries free and clear of all liens, encumbrances and other claims, and is not the subject of any Intellectual Property right cancellation or reexamination proceeding or any proceeding challenging their extent or validity, and if such intellectual property is of any third party; (iii) licenses and other agreements pursuant to the type for which ownership is recorded, is held of record by the Company is an express licensee under any Trade Secrets owned by any third party, except for license agreements for generally commercially available Software licensed to the Company substantially on standard termsor one of its subsidiaries; and (ivv) to the Knowledge of the Company, none of the material trade secrets, know-how or other confidential or proprietary information of the Company has been disclosed, with the authority of the Company, to any Software listed Person unless such disclosure was appropriate in Schedule 4.17(b)the reasonable judgment of the Company and made pursuant to an appropriate confidentiality agreement.
(d) Except as disclosed in Schedule 4.17(d), To the Company (i) owns the entire right, title and interest in and to the Registered Intellectual Property, free and clear of any Encumbrance; and (ii) has all required rights (whether by ownership, license or otherwise) to use all other material Company Intellectual Property, including without limitation the Software listed in Schedule 4.17(b) and the content and functionality Knowledge of the Company’s current Web site, as the same is currently material information technology systems owned, licensed, leased, operated on behalf of, or otherwise held for use in the business by Company and any of its subsidiaries, including all computer hardware, software, firmware and telecommunications systems used in the business of Company and its subsidiaries perform reliably and in material conformance with the reasonable requirements of the Company’s . Except for scheduled or routine maintenance and unexpected or unanticipated problems, the information technology systems of Company are fully available for use in the business and, as applicable, by the customers and clients of the Company, 24 hours a day, 7 days a week. Company has taken commercially reasonable steps to provide for the archival, back-up, recovery and restoration of the critical business data of the business.
(e) Except as disclosed in Schedule 4.17(e): (i) all maintenance fees due with respect to To the copyrights, patents and Trademarks identified in Schedule 4.17(a) as being owned by the Company have been paid, and all applications to register any such copyrights, patents and Trademarks have been duly filed and maintained in accordance with the rules of the applicable Governmental Body, and have not been challenged in writing by any third party; (ii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Registered Intellectual Property, and to the Actual Knowledge of Seller and the Company, there is no basis for any such action; (iv) the Company is not in material breach of any agreement affecting any material item of Company Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Company Intellectual Property. Correct and complete copies of: (x) registrations for all Registered Intellectual Property; and (y) all pending applications to register Company Intellectual Property (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Seller to Buyer.
(f) Except as set forth in Schedule 4.17(f), (i) to the Actual Knowledge of the Company, no infringement of any Intellectual Property of any other Person has occurred the Company owns or results possesses the right to use, including without limitation the right to modify and create derivative works of, the design, content, and all material intellectual property rights associated with and contained in any way from the operations, activities, products, Software, equipment, machinery or processes currently used in the Company’s business; (ii) no claim of any infringement of any Intellectual Property of any other Person has been made or asserted in writing in respect of the operations all of the Company’s business; (iii) no written claim or assertion of invalidity of any Registered Intellectual Property has been made; (iv) no proceedings are pending oroperating web sites, to the Actual Knowledge of the Company, threatened which challenge the validity, ownership or use by the Company of any Company Intellectual Property; including without limitation ▇▇▇▇://▇▇▇.▇▇▇▇-▇▇▇▇.com and (v) none of the Seller nor the Company has had notice of, or Actual Knowledge of any basis for, a claim against Seller that the operations, activities, products, software, equipment, machinery or processes of the Company infringe any Intellectual Property of any other Person▇▇▇▇://▇▇▇.
(g) Except as disclosed in Schedule 4.17(g), and except as reflected in documents delivered by the Company to the Buyer prior to the Closing, (i) the Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns, if any (the “Owned Software”), (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are reasonably necessary to protect the proprietary, trade secret or confidential information contained therein, except where the failure so to maintain and protect the Software would not reasonably be expected to result in a Material Adverse Effect; (iii) the ▇▇▇▇▇.▇▇▇. The Company owns all right, title and interest in or has the right to use the design and to the Owned Software; (iv) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any consultants, agents, independent contractors or Persons (other than Persons that are employees content of the Company); (v) there are no agreements web site free and clear of all claims, including without limitation claims or arrangements in effect with respect to the marketing, distribution, licensing or promotion rights of the Owned Software by any other Person; joint owners and (vi) the Company’s use of the Owned Software has complied in all material respects with all applicable Legal Requirements relating to the export or reexport of the same.
(h) Except as disclosed in Schedule 4.17(h), all employees, agents, consultants or contractors who have contributed to or participated other parties involved in the creation development, creation, maintenance or development of any material Intellectual Property or Software on behalf enhancement of the Company or any predecessor in interest thereto either: (i) is a party to a “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in such materialweb site.
(i) Schedule 4.17(i) sets forth an accurate list of all of the domain names owned by the Company or used by the Company in the operation of the Business (the “Company Domain Names”). The Company is the sole owner and has the exclusive right to use the Company Domain Names, subject to applicable law and to the rules of the applicable Domain Name registration authorities.
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Sources: Merger Agreement (Hunt Corp)