Software and Information Systems. Schedule 4.12 sets forth an accurate and complete list and summary description of all the Software. Schedule 4.12 identifies or describes (i) Software which is owned by the Selling Entities; and (ii) Software which is licensed to the Selling Entities by third parties. Except as provided on Schedule 4.12, with respect to the Software that is reflected as being owned by one or more of the Selling Entities: (a) all Software documentation for the end user is reasonably current, accurate and sufficient in detail and content to identify, explain the nature and permit the intended use thereof; (b) all source codes, object codes and source code comments included in the Software are sufficient to the extent reasonably necessary to enable Buyer to maintain and modify the Software, using persons skilled in the programming language, operating systems, and hardware involved; (c) Except for Incorporated Products (as hereinafter defined), the applicable Selling Entity has good, sole, and marketable right, title, and interest in and to the Software (including the exclusive right to make, copy, sell, exploit, and provide to others the use of the Software and all derivative works thereof) free and clear of any liens, claims, encumbrances and adverse rights of every kind, nature, and description. The applicable Selling Entity is in actual and sole possession of and will transfer to Buyer at Closing all copies of the source code, source code comments and object code (except for copies of object code held by licensees) and other proprietary rights included in the Software. Schedule 4.12 lists all current and former employees of the Selling Entities who were authors of the Software and to the knowledge of the Selling Entities any other person or entity who materially participated in the development of the Software or any portion thereof or performed any work related to the Software (such authors and other persons or entities are collectively referred to as the "Software Authors"). Each Software Author identified as "internal" made his contribution to the Software within the scope of employment with the applicable Selling Entity, as "work made for hire." Except for the Incorporated Products, the Software and every portion thereof is an original creation of the Software Authors (or other persons not having any rights thereto) and does not contain any source code or portions of source code (including any "canned program") created by any parties other than the Software Authors (or other persons not having any rights thereto). The Selling Entities have not, by any acts or omissions, or by acts or omissions of affiliates, directors, officers, employees, agents, or representatives caused any of their proprietary rights in the Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected to any material extent. (d) Except as set forth in Schedule 4.12: (i) there are no defects or errors in the Software, which defects or errors could materially and adversely affect Buyer's or any licensee's use of the Software or the functioning of the Software in accordance with the specifications for the Software published by the applicable Selling Entity or provided to customers, the Software has all the features described in the user manuals or advertisements and materials made available to the applicable Selling Entity's customers; and the Software does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines or hardware components designed to permit unauthorized access, to disable or erase software, hardware, or data in a manner unauthorized by, and contrary to the intentions of, the user, or to perform any other similar unauthorized destructive type of functions; (ii) no person or entity other than the applicable Selling Entity has any interest of any kind or nature in or with respect to the Software, including the right to use, make, copy, sell, exploit and provide to others the use of, the Software and all derivative works thereof, and no government funding or university or college facilities were used in the development of the Software, and the Software was not developed pursuant to an agreement giving any person or entity rights to the Software, and no situation, matter, or agreement exists that would preclude Buyer from making any change to the Software or combining it with other software in any lawful manner; (iii) all copies of copyrighted Software contain copyright legends; the Selling Entities have no knowledge that any third party is violating or has violated any of the applicable Selling Entity's proprietary rights in the Software; other than license fees for Incorporated Products, no third party has any interest in, or right to compensation from the Selling Entities by reason of, the use, exploitation, or sale of the Software; there are no restrictions on the ability of the Selling Entities (or any successor or assignee of the Selling Entities, including Buyer) to use or otherwise exploit the Software, and such use or exploitation does not and will not obligate the Selling Entities (or any successor or assignee of the Selling Entities, including Buyer) to pay any royalty, fee, or other compensation to any person or entity other than license fees for Incorporated Products; and the Selling Entities have not received any notice and do not have any knowledge of any complaint, assertion, threat, or allegation inconsistent with the preceding statements in this paragraph; and (iv) the Software has been licensed for use by third parties only pursuant to the terms of the standard license agreement in form attached to Schedule 4.12 which has been in effect since January 1, 1996, and prior to January 1, 1996, pursuant to the standard form in effect at the time the license was granted, copies of which have been made available to Buyer and no license contains any term or provision other than those set forth in the applicable standard form, except for such minor deviations therefrom as do not materially and adversely effect the Licensor's rights or obligations thereunder. (e) The Selling Entities have delivered or will deliver at Closing all of their records with respect to Software fixes (including fixes currently in progress), problem lists, maintenance of the Software, and customer complaints, and all warranty claims (including any pending claims) related to the Software all of which are described in Schedule 4.12. Except as set forth in Schedule 4.12, there are no representations and warranties that have been made with respect to the Software. (f) Schedule 4.12 contains a complete list of all third party software and patent rights which are a component of or incorporated in or specifically required to develop or support any of the Software ("Incorporated Products"), and a list of all restrictions on the Selling Entities' unrestricted right to use, incorporate or distribute the Incorporated Products. The Selling Entities are not in violation of any license, sublicense or agreement with respect to an Incorporated Product. (g) No person or entity is entitled to receive the source code for any Software for any reason; and the Selling Entities have not disclosed the source code for any Software to any third party except as set forth on Schedule 4.12. (h) Notwithstanding the foregoing, with respect to Software designated as "obsolete" on Schedule 4.12, the Buyer shall be entitled to indemnification with respect to breaches of the representations and warranties in paragraphs (a), (b) and (d)(i) only in connection with claims of third parties.
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Software and Information Systems. Schedule 4.12 SCHEDULE 4.9 sets forth an accurate and complete list and summary description of all the Software. Schedule 4.12 SCHEDULE 4.9 identifies or describes (i) Software which is owned by the Selling Entities; and (ii) Software which is licensed to the Selling Entities by third parties. Except as provided on Schedule 4.12SCHEDULE 4.9, with respect to the Software that is reflected as being owned by one or more of the Selling Entities:
(a) all Software documentation for the end user is reasonably current, accurate and sufficient in detail and content to identify, explain the nature and permit the intended use thereof;
(b) all source codes, object codes and source code comments included in the Software are sufficient to the extent reasonably necessary to enable Buyer to maintain and modify the Software, using persons skilled in the programming language, operating systems, and hardware involved;
(c) Except for Incorporated Products (as hereinafter defined), the applicable Selling Entity has good, sole, and marketable right, title, and interest in and to the Software (including the exclusive right to make, copy, sell, exploit, and provide to others the use of the Software and all derivative works thereof) free and clear of any liens, claims, encumbrances and adverse rights of every kind, nature, and description. The applicable Selling Entity is in actual and sole possession of and will transfer to Buyer at Closing all copies of the source code, source code comments and object code (except for copies of object code held by licensees) and other proprietary rights included in the Software. Schedule 4.12 SCHEDULE 4.9 lists all current and former employees of the Selling Entities who were authors of the Software and to the knowledge of the Selling Entities any other person or entity who materially participated in the development of the Software or any portion thereof or performed any work related to the Software (such authors and other persons or entities are collectively referred to as the "Software Authors"). Each Software Author identified as "internal" made his contribution to the Software within the scope of employment with the applicable Selling Entity, as "work made for hire." Except for the Incorporated Products, the Software and every portion thereof is an original creation of the Software Authors (or other persons not having any rights thereto) and does not contain any source code or portions of source code (including any "canned program") created by any parties other than the Software Authors (or other persons not having any rights thereto). The Selling Entities have not, by any acts or omissions, or by acts or omissions of affiliates, directors, officers, employees, agents, or representatives caused any of their proprietary rights in the Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected to any material extent.
(d) Except as set forth in Schedule 4.12SCHEDULE 4.9:
(i) there are no defects or errors in the Software, which defects or errors could materially and adversely affect Buyer's or any licensee's use of the Software or the functioning of the Software in accordance with the specifications for the Software published by the applicable Selling Entity or provided to customers, the Software has all the features described in the user manuals or advertisements and materials made available to the applicable Selling Entity's customers; and the Software does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines or hardware components designed to permit unauthorized access, to disable or erase software, hardware, or data in a manner unauthorized by, and contrary to the intentions of, the user, or to perform any other similar unauthorized destructive type of functions;
(ii) no person or entity other than the applicable Selling Entity has any interest of any kind or nature in or with respect to the Software, including the right to use, make, copy, sell, exploit and provide to others the use of, the Software and all derivative works thereof, and no government funding or university or college facilities were used in the development of the Software, and the Software was not developed pursuant to an agreement giving any person or entity rights to the Software, and no situation, matter, or agreement exists that would preclude Buyer from making any change to the Software or combining it with other software in any lawful manner;
(iii) all copies of copyrighted Software contain copyright legends; the Selling Entities have no knowledge that any third party is violating or has violated any of the applicable Selling Entity's proprietary rights in the Software; other than license fees for Incorporated Products, no third party has any interest in, or right to compensation from the Selling Entities by reason of, the use, exploitation, or sale of the Software; there are no restrictions on the ability of the Selling Entities (or any successor or assignee of the Selling Entities, including Buyer) to use or otherwise exploit the Software, and such use or exploitation does not and will not obligate the Selling Entities (or any successor or assignee of the Selling Entities, including Buyer) to pay any royalty, fee, or other compensation to any person or entity other than license fees for Incorporated Products; and the Selling Entities have not received any notice and do not have any knowledge of any complaint, assertion, threat, or allegation inconsistent with the preceding statements in this paragraph; and
(iv) the Software has been licensed for use by third parties only pursuant to the terms of the standard license agreement in form attached to Schedule 4.12 which has been in effect since January 1, 1996, and prior to January 1, 1996, pursuant to the standard form in effect at the time the license was granted, copies of which have been made available to Buyer and no license contains any term or provision other than those set forth in the applicable standard form, except for such minor deviations therefrom as do not materially and adversely effect the Licensor's rights or obligations thereunderSCHEDULE 4.9.
(e) The Selling Entities have delivered or will deliver at Closing all of their records with respect to Software fixes (including fixes currently in progress), problem lists, maintenance of the Software, and customer complaints, and all warranty claims (including any pending claims) related to the Software all of which are described in Schedule 4.12SCHEDULE 4.9. Except as set forth in Schedule 4.12SCHEDULE 4.9, there are no representations and warranties that have been made with respect to the Software.
(f) Schedule 4.12 SCHEDULE 4.9 contains a complete list of all third party software and patent rights which are a component of or incorporated in or specifically required to develop or support any of the Software ("Incorporated Products"), and a list of all restrictions on the Selling Entities' unrestricted right to use, incorporate or distribute the Incorporated Products. The Selling Entities are not in violation of any license, sublicense or agreement with respect to an Incorporated Product.
(g) No person or entity is entitled to receive the source code for any Software for any reason; and the Selling Entities have not disclosed the source code for any Software to any third party except as set forth on Schedule 4.12.
(h) Notwithstanding the foregoingSCHEDULE 4.9. Prior to Closing, with respect to Software designated as "obsolete" on Schedule 4.12no employee, the Buyer shall be entitled to indemnification with respect to breaches Consultant or agent of the representations and warranties in paragraphs (a)Selling Entities has improperly used, (b) and (d)(i) only in connection with claims of third partiestaken or copied the Software.
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