Common use of Technology and Intellectual Property Rights Clause in Contracts

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights and applications and registrations for any of the foregoing; (ii) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and other rights in any third party product or any third party intellectual property described in (i) through (iii) above; that are owned or held by or on behalf of Diamond or any Subsidiary or that are being, and/or have been, used, or are currently under development for use, in the business of Diamond or any Subsidiary as it has been, is currently or is currently planned to be conducted; provided, however, that Diamond Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Diamond Disclosure Schedule lists: (i) all patents, copyright registrations, registered trademarks, registered service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Diamond Intellectual Property and owned by or on behalf of Diamond or any Subsidiary; (ii) all hardware products and tools, software products and tools and services that are currently published, offered, or under development by Diamond or any Subsidiary; and (iii) all licenses, sublicenses and other agreements to which Diamond or any Subsidiary is a party and pursuant to which Diamond or any Subsidiary or any other person is authorized to use any Diamond Intellectual Property or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Diamond Intellectual Property consists solely of items and rights that are either: (i) owned solely by Diamond or any of its Subsidiaries; (ii) in the public domain; or (iii) rightfully used and authorized for use by Diamond or any Subsidiary and their successors pursuant to a valid license. All Diamond Intellectual Property that consists of license or other rights to third party property is separately set forth in Section 3.5 of the Diamond Disclosure Schedule. Diamond and its Subsidiaries have all rights in Diamond Intellectual Property necessary to carry out Diamond's or any Subsidiary's current, former and planned future activities, including without limitation rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign and sell Diamond Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. (d) Diamond is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of Diamond's obligations hereunder or the consummation of the Merger, will Diamond be, in violation of any license, sublicense or other agreement relating to any Diamond Intellectual Property to which Diamond or any Subsidiary is a party or otherwise bound. Diamond is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Diamond or Surviving Corporation, as successor to Diamond, in Diamond Intellectual Property. (e) To the knowledge of Diamond or any of its Subsidiaries, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary does not infringe any copyright, patent, trade secret, trademark, service ▇▇▇▇, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, or right in personal data of any Person. No claims (i) challenging the validity, effectiveness, or ownership by Diamond or any Subsidiary of any Diamond Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary infringes or will infringe on any intellectual property or other proprietary or personal right of any Person have been asserted to Diamond or any Subsidiary or, to the knowledge of Diamond and its Subsidiaries, are threatened by any Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Diamond Intellectual Property, other than review of pending applications for patent, and Diamond and its Subsidiaries are not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other Person. All granted or issued patents and all registered trademarks and copyright registrations owned by Diamond or any Subsidiary are valid, enforceable and subsisting. To the knowledge of Diamond and its Subsidiaries, there is no unauthorized use, infringement, or misappropriation of any Diamond Intellectual Property by any third party, employee or former employee. (f) Section 3.5 of the Diamond Disclosure Schedule separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond Intellectual Property. Diamond and its Subsidiaries have secured from all parties who have created any portion of, or otherwise have any rights in or to, Diamond Intellectual Property valid and enforceable written assignments of any such work or other rights to or such Subsidiaries and has provided true and complete copies of such assignments to Parent. (g) Diamond has obtained written agreements from all employees and from third parties with whom Diamond, to its knowledge, has shared confidential proprietary information (i) of Diamond or any Subsidiary or (ii) received from others that Diamond is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond has made available copies of such written agreements, as executed, to Parent.

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights and applications and registrations for any of the foregoing; (ii) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and other rights in any third party product or any third party intellectual property described in (i) through (iii) above; that are owned or held by or on behalf of Diamond or any Subsidiary Navigator or that are being, and/or have been, used, or are currently under development for use, in the business of Diamond or any Subsidiary Navigator as it has been, is currently or is currently planned to be conducted; provided, however, that Diamond Navigator Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Diamond Navigator Disclosure Schedule lists: (i) all ------------------------------------------------ patents, copyright registrations, mask works, registered trademarks, registered service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Diamond Navigator Intellectual Property and owned by or on behalf of Diamond or any SubsidiaryNavigator; (ii) all hardware products and tools, software products and tools and services that are currently published, offered, or under development by Diamond or any SubsidiaryNavigator; and (iii) all licenses, sublicenses and other agreements to which Diamond or any Subsidiary Navigator is a party and pursuant to which Diamond or any Subsidiary Navigator or any other person is authorized to use any Diamond Navigator Intellectual Property or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Diamond Navigator Intellectual Property consists solely of items and rights that are either: (i) owned solely by Diamond or any of its SubsidiariesNavigator; (ii) in the public domain; or (iii) rightfully used and authorized for use by Diamond or any Subsidiary Navigator and their its successors pursuant to a valid license. All Diamond Navigator Intellectual Property that consists of license or other rights to third party property is separately set forth in Section 3.5 of the Diamond Navigator Disclosure Schedule. Diamond and its Subsidiaries have Navigator has ------------------------------------------------ all rights in Diamond Navigator Intellectual Property necessary to carry out Diamond's or any SubsidiaryNavigator's current, former and planned future activities, including without limitation rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign and sell Diamond Navigator Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. (d) Diamond Navigator is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of DiamondNavigator's obligations hereunder or the consummation of the Merger, will Diamond Navigator be, in violation of any license, sublicense or other agreement relating to any Diamond Navigator Intellectual Property to which Diamond or any Subsidiary Navigator is a party or otherwise bound. Diamond Navigator is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Diamond Navigator or Surviving CorporationParent, as successor to DiamondNavigator, in Diamond Navigator Intellectual Property. (e) To the knowledge of Diamond or any of its Subsidiaries, the The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rightsNavigator Intellectual Property, by Diamond or any Subsidiary Navigator does not infringe any copyright, patent, trade secret, trademark, service ▇▇▇▇, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, or right in personal data of any Person. No claims (i) challenging the validity, effectiveness, or ownership by Diamond or any Subsidiary Navigator of any Diamond Navigator Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, Navigator Intellectual Property by Diamond or any Subsidiary Navigator infringes or will infringe on any intellectual property or other proprietary or personal right of any Person have been asserted to Diamond or any Subsidiary Navigator or, to the knowledge of Diamond and its SubsidiariesNavigator (as defined below), are threatened by any Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Diamond Navigator Intellectual Property, other than review of pending applications for patent, and Diamond and its Subsidiaries are Navigator is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other Person. All granted or issued patents and mask works and all registered trademarks and copyright registrations owned by Diamond or any Subsidiary Navigator are valid, enforceable and subsisting. To the knowledge of Diamond Navigator and its Subsidiariesthe Stockholder, there is no unauthorized use, infringement, infringement or misappropriation of any Diamond Navigator Intellectual Property by any third party, employee or former employee. (f) Section 3.5 of the Diamond Navigator Disclosure Schedule separately lists ------------------------------------------------ all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond Navigator Intellectual Property. Diamond and its Subsidiaries have Navigator has secured from all parties who have created any portion of, or otherwise have any rights in or to, Diamond Navigator Intellectual Property valid and enforceable written assignments of any such work or other rights to or such Subsidiaries Navigator and has provided true and complete copies of such assignments to Parent. (g) Diamond Navigator has obtained written agreements from all employees and from third parties with whom DiamondNavigator, to its and Stockholder's knowledge, has shared confidential proprietary information (i) of Diamond or any Subsidiary Navigator or (ii) received from others that Diamond Navigator is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond Navigator has made available copies of such written agreements, as executed, to Parent.

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights and applications and registrations for any of the foregoing; (ii) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and other rights in any third party product or any third party intellectual property described in (i) through (iii) above; that are owned or held by or on behalf of Diamond or any Subsidiary Alacrity or that are being, and/or have been, used, or are currently under development for use, in the business of Diamond or any Subsidiary Alacrity as it has been, is currently or is currently planned to be conducted; provided, however, that Diamond Alacrity Intellectual Property will not include any commercially available intellectual property of any third party software or related intellectual propertysoftware. (b) Section 3.5 of the Diamond Alacrity Disclosure Schedule lists: (i) all patents, copyright registrations, mask works, registered trademarks, registered service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Diamond Alacrity Intellectual Property and owned by or on behalf of Diamond or any SubsidiaryAlacrity; (ii) all hardware products and tools, software products and tools and services that are currently published, offered, or under development by Diamond or any SubsidiaryAlacrity; and (iii) all licenses, sublicenses and other agreements to which Diamond or any Subsidiary Alacrity is a party and pursuant to which Diamond or any Subsidiary Alacrity or any other person is authorized to use any Diamond Alacrity Intellectual Property or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Diamond Alacrity Intellectual Property consists solely of items and rights that are either: (i) owned solely by Diamond or any of its SubsidiariesAlacrity; (ii) in the public domain; or (iii) rightfully used and or authorized for use by Diamond or any Subsidiary Alacrity and their its successors pursuant to a valid license, and none of such items or rights are in the public domain or are "free-▇▇▇▇" or "shareware". All Diamond Alacrity Intellectual Property that consists of license or other rights to third party property is separately set forth in Section 3.5 of the Diamond Alacrity Disclosure Schedule. Diamond and its Subsidiaries have Alacrity has all rights in Diamond Alacrity Intellectual Property necessary to carry out Diamond's or any SubsidiaryAlacrity's current, former and currently planned future activities, including without limitation rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign and sell Diamond Alacrity Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. (d) Diamond Alacrity is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of DiamondAlacrity's obligations hereunder or the consummation of the Merger, will Diamond Alacrity be, in violation of any license, sublicense or other agreement relating to any Diamond Alacrity Intellectual Property to which Diamond or any Subsidiary Alacrity is a party or otherwise bound. Diamond Alacrity is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Diamond Alacrity or Surviving CorporationTranSwitch, as successor to DiamondAlacrity, in Diamond Alacrity Intellectual Property. (e) To the knowledge of Diamond or any of its Subsidiaries, the The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary Alacrity does not infringe any copyright, patent, trade secret, trademark, service ▇▇▇▇, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, or right in personal data of any Person. No claims (i) challenging the validity, effectiveness, or ownership by Diamond or any Subsidiary Alacrity of any Diamond Alacrity Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary Alacrity infringes or will infringe on any intellectual property or other proprietary or personal right of any Person have been asserted to Diamond or any Subsidiary Alacrity or, to the knowledge of Diamond and its SubsidiariesAlacrity (as defined below), are threatened by any Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Diamond Alacrity Intellectual Property, other than review of pending applications for patent, and Diamond and its Subsidiaries are Alacrity is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other Person. All granted or issued patents and mask works and all registered trademarks and copyright registrations owned by Diamond or any Subsidiary Alacrity are valid, enforceable and subsisting. To the knowledge of Diamond and its SubsidiariesAlacrity, there is no unauthorized use, infringement, or misappropriation of any Diamond Alacrity Intellectual Property by any third party, employee or former employee. (f) Section 3.5 of the Diamond Alacrity Disclosure Schedule separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond such Alacrity Intellectual PropertyProperty other than Alacrity Intellectual Property that is licensed to Alacrity. Diamond and its Subsidiaries have Alacrity has secured from all parties who have created any portion of, or otherwise have any rights in or to, Diamond Alacrity Intellectual Property valid and enforceable written assignments of any such work or other rights to or such Subsidiaries Alacrity and has provided true and complete copies of such assignments to ParentTranSwitch. (g) Diamond Alacrity has obtained written agreements from all employees and from third parties with whom DiamondAlacrity, to its knowledge, has shared confidential proprietary information (i) of Diamond or any Subsidiary Alacrity or (ii) received from others that Diamond Alacrity is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond Alacrity has made available copies of such written agreements, as executed, to ParentTranSwitch.

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights rights, and applications and registrations for any of the foregoing; (ii) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and other similar rights in any third party product or any third party intellectual property of the types described in (i) through (iii) above; that are owned or held by or on behalf of Diamond or any Subsidiary Excell or that are being, and/or have been, used, or are currently under development for use, in the business of Diamond or any Subsidiary Excell as it has been, is currently or is currently planned to be conducted; provided, however, that Diamond Excell Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Diamond Excell Disclosure Schedule lists: (i) all patents, copyright registrations, mask works, registered trademarks, registered service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Diamond Excell Intellectual Property and owned by or on behalf of Diamond or any SubsidiaryExcell; (ii) all the general types of hardware products and tools, software products and tools and services that are currently published, offered, or under development by Diamond or any SubsidiaryExcell; and (iii) all licenses, sublicenses and other similar agreements to which Diamond or any Subsidiary Excell is a party and pursuant to which Diamond or any Subsidiary Excell or any other person (as used in this Agreement, the term "person" includes any entity) is authorized to use any Diamond Excell Intellectual Property or exercise any other right with regard thereto------ Property. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Diamond Excell Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that are either: (i) owned solely by Diamond or any of its SubsidiariesExcell; (ii) in the public domain; or (iii) rightfully used and authorized for use by Diamond or any Subsidiary Excell and their its successors pursuant to a valid license. All Diamond Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell Intellectual Property that consists of a license or other rights to sublicense of intellectual property of a third party property is separately set forth in Section 3.5 of the Diamond Disclosure Scheduleparty. Diamond and its Subsidiaries have Excell has all rights in Diamond Excell Intellectual Property necessary to carry out DiamondExcell's or any Subsidiary's current, former current activities and planned future activities, including without limitation rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign and sell Diamond Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicensesactivities that are under active current development. (d) Diamond Excell is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of DiamondExcell's obligations hereunder or the consummation of the Merger, will Diamond Excell be, in violation of any license, sublicense or other agreement relating to any Diamond Excell Intellectual Property to which Diamond or any Subsidiary Excell is a party or otherwise bound. Diamond is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Diamond or Surviving Corporation, as successor to Diamond, in Diamond Intellectual Propertybound and which violation would have a material adverse effect on Excell's Business Condition. (e) To The use of the knowledge of Diamond Excell Intellectual Property by Excell or any of its Subsidiaries, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary customers does not infringe any copyright, patent, trade secret, trademark, service ▇▇▇▇, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, or right in personal data of any Personperson, which infringement, if prosecuted, would have a material adverse effect on Excell's Business Condition. No claims (i) challenging the validity, effectiveness, or ownership by Diamond or any Subsidiary Excell of any Diamond Excell Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary Excell infringes or will infringe on any intellectual property or other proprietary or personal right of any Person person have been asserted to Diamond or any Subsidiary Excell or, to the knowledge of Diamond and its SubsidiariesExcell (as defined below), are threatened by any Person person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Diamond Excell Intellectual Property, other than review of pending applications for patentpatents or trademarks, and Diamond and its Subsidiaries are Excell is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other Personperson. All granted or issued patents and mask works and all registered trademarks owned by Excell and all copyright registrations owned held by Diamond or any Subsidiary Excell are valid, enforceable and subsisting. To the knowledge of Diamond and its SubsidiariesExcell, there is no unauthorized use, infringement, or misappropriation of any Diamond Excell Intellectual Property by any third party, employee or former employee. (f) Section 3.5 of the Diamond Disclosure Schedule separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond Intellectual Property. Diamond and its Subsidiaries have Excell has secured from all parties who have created any portion of, or otherwise have any rights in or to, Diamond Excell Intellectual Property valid and enforceable written assignments of any such work or other rights to or such Subsidiaries and has provided true and complete copies of such assignments to ParentExcell. (g) Diamond Excell has obtained written agreements from all employees and from third parties with whom DiamondExcell, to its knowledge, has shared confidential proprietary information (i) of Diamond or any Subsidiary Excell or (ii) received from others that Diamond Excell is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond has made available copies of such written agreements, as executed, to Parent.

Technology and Intellectual Property Rights. (a) For the purposes of this Agreement, "Company Intellectual Property" consists of the following intellectual property, to the extent not in the public domain: (i) all patents, trademarks, trade names, domain names, service marks, trade dress, copyrights and any renewal rights therefor, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights and applications and registrations for any of the foregoing; (ii) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and other rights in any third party product or any third party intellectual property described in (i) through (iii) above; that are owned or held by or on behalf of Diamond or any Subsidiary Company or that are being, and/or have been, used, or are currently under development for use, in the business of Diamond or any Subsidiary Company as it has been, is currently or is currently planned to be conducted; provided, however, that Diamond Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 . Schedule 4.14 of the Diamond Company Disclosure Schedule lists: (i) all patents, copyright registrations, registered trademarks, registered service marks, trade dressdomain names, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Diamond Company Intellectual Property and owned by or on behalf of Diamond or any SubsidiaryCompany; (ii) all hardware products and tools, software products and tools and services that are currently published, offered, or under development by Diamond or any SubsidiaryCompany; and (iii) all licenses, sublicenses and other agreements to which Diamond or any Subsidiary Company is a party and pursuant to which Diamond or any Subsidiary Company or any other person is authorized to use any Diamond Company Intellectual Property or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (cb) Diamond Company Intellectual Property consists solely of items and rights that are either: (i) owned solely by Diamond or any of its Subsidiaries; (ii) in the public domainCompany; or (iiiii) rightfully used and authorized for use by Diamond or any Subsidiary Company and their its successors pursuant to a valid license. All Diamond Company Intellectual Property that consists of license or other rights to third party property is separately set forth in Section 3.5 of the Diamond Disclosure ScheduleSchedule 4.14. Diamond and its Subsidiaries have Company has all rights in Diamond Company Intellectual Property to the extent necessary to carry out Diamond's or any SubsidiaryCompany's current, former and planned future activities, including without limitation rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign and sell Diamond Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. (dc) Diamond Except as set forth in Schedule 4.14(c), the Company is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of DiamondCompany's obligations hereunder or the consummation of the Merger, will Diamond Company be, in violation of any license, sublicense or other agreement relating to any Diamond Company Intellectual Property to which Diamond or any Subsidiary Company is a party or otherwise bound. Diamond Except as set forth in Schedule 4.14(c), the Company is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Diamond Company or Surviving CorporationInterland, as successor to DiamondCompany, in Diamond Company Intellectual Property. (ed) To Subject to the knowledge of Diamond or any of its Subsidiaries"Commercial IP Exception" (defined below), the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary Company does not infringe any copyright, patent, trade secret, trademark, service ▇▇▇▇mark, trade name, domain name, firm name, logo, trade dress, moral right, other ▇▇▇er intellectual property right, right of privacy, or right in personal data of any Person. "The Commercial IP Exception" applies to commercially available software or other intellectual property to which the Company in good faith believes it has a bona fide license from the owner. Company makes no representation that Company's exercise of rights with respect to such intellectual property does not violate the rights of any Person, but only that Company has no knowledge of such violation or infringement. No claims (i) challenging the validity, effectiveness, or ownership by Diamond or any Subsidiary Company of any Diamond Company Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Diamond or any Subsidiary Company infringes or will infringe on any intellectual property or other proprietary or personal right of any Person have been asserted to Diamond Company or any Subsidiary or, to the knowledge of Diamond and its Subsidiaries, are threatened by any Person nor nor, to the best of the knowledge of the Company, are there any valid grounds for any bona fide claim of any such kind. There To the best of the knowledge of the Company there are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Diamond Company Intellectual Property, other than review of pending applications for patent, and Diamond and its Subsidiaries are Company is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other Person. All granted or issued patents and all registered trademarks and copyright registrations owned by Diamond or any Subsidiary Company are valid, enforceable and subsisting. To the best of the knowledge of Diamond and its Subsidiariesthe Company, there is no unauthorized use, infringement, or misappropriation of any Diamond Company Intellectual Property by any third party, employee or former employee. (fe) Section 3.5 of the Diamond Disclosure Schedule 4.14 separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond Company Intellectual Property, other than intellectual property described in the Commercial IP Exception. Diamond and its Subsidiaries have Company has secured from all parties who have created any portion of, or otherwise have any rights in or to, Diamond Company Intellectual Property (other than intellectual property described in the Commercial IP Exception) valid and enforceable written assignments of any such work or other rights to or such Subsidiaries Company and has provided true and complete copies of such assignments to ParentPurchaser. (gf) Diamond Schedule 4.14(f) lists all confidentiality agreements Company has obtained written agreements from all employees and from third parties parties. Company is not in violation of any confidentiality or non-disclosure agreement made with whom Diamond, to its knowledge, has shared confidential proprietary information (i) of Diamond or any Subsidiary or (ii) received from others that Diamond is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond has made available copies of such written agreements, as executed, to Parentparty.