Software and Information Systems. Schedule 3 sets forth an accurate and complete list and summary description of all the Software used in and related to the Business. The Software identified on Schedule 3 is all the software necessary for the operation of the Business as it is presently conducted and as presently proposed to be conducted. 3(l) of the Disclosure Schedule identifies or describes (y) Software which is owned by the Seller and (z) Software which is licensed to the Seller by third parties. Except as provided at 3(l) of the Disclosure Schedule, with respect to the Software that is owned by the Seller: (i) 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. (ii) 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. (iii) Except for Incorporated Products (as hereinafter defined), the Seller 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 Security Interests and adverse rights of every kind, nature, and description. The Seller 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. 3(l) of the Disclosure Schedule lists all current and former employees of the Seller who were authors of the Software and, to the Knowledge of the Seller, 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 Seller 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 Seller has not, by any acts or omissions, or by acts or omissions of Affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected to any material extent. (iv) Except as set forth in 3(l) of the Disclosure Schedule, 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 Seller or provided to customers; the Software has all the features described in the user manuals or advertisements and materials made available to the Seller's customers; and the Software does not contain any "back door," "time bomb," "worm," "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.
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Sources: Asset Purchase Agreement (Digital Television Services Inc)
Software and Information Systems. Schedule 3 sets forth an accurate and complete list and summary description of all the Software used in and related to the Business. The Software identified on Schedule 3 is all the software necessary for the operation of the Business as it is presently conducted and as presently proposed to be conducted. section 3(l) of the Disclosure Schedule identifies or describes (y) Software which is owned by the Seller and (z) Software which is licensed to the Seller by third parties. Except as provided at 3(lsection3(l) of the Disclosure Schedule, with respect to the Software that is owned by the Seller:
(i) 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.
(ii) 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.
(iii) Except for Incorporated Products (as hereinafter defined), the Seller 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 Security Interests and adverse rights of every kind, nature, and description. The Seller 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. section 3(l) of the Disclosure Schedule lists all current and former employees of the Seller who were authors of the Software and, to the Knowledge of the Seller, 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 Seller 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 Seller has not, by any acts or omissions, or by acts or omissions of Affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected to any material extent.
(iv) Except as set forth in section 3(l) of the Disclosure Schedule, 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 Seller or provided to customers; the Software has all the features described in the user manuals or advertisements and materials made available to the Seller's customers; and the Software does not contain any "back door," "time bomb," "worm," "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.
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