Technology and Intellectual Property. (a) Set forth on Schedule 4.18(a)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Exclusively Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by the Companies or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether or not material, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement. (b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliates, and that is reasonably necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether or not material, is the “Licensed Generally Used Intellectual Property”). (c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever in the Transferred Owned Intellectual Property. (d) To the Knowledge of Seller Parent, (i) the conduct of the Business of the Companies, in whole or in part, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret or any other proprietary right; (ii) since January 1, 2007, none of the Companies or Sellers has received any written notice of any claim that the conduct of the Business of the Companies, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do not, to the Knowledge of Seller Parent, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Property. (e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Person. (f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property. (g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement. (h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business. (i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawful.
Appears in 2 contracts
Sources: Purchase Agreement (Tower Group, Inc.), Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Technology and Intellectual Property. (ai) Set forth on Schedule 4.18(a)(iBuyer has been given access to review (A) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Exclusively Used Intellectual Propertyowned by Borrower and ALSC, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii(B) hereto is a correct pending patent applications and complete listing applications for registrations of all material other Intellectual Property filed by Borrower or ALSC (of which there are none), (C) unregistered trade names and corporate names owned by or under which Borrower or ALSC conducts its business, and (D) all other than commercially available software and any customizations thereto) licensed Intellectual Property owned by the Companies Borrower or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary for the conduct of the Business as it is currently conducted ALSC (all such Intellectual Property, whether or not materialcollectively, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliates, and that is reasonably necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether or not material, is the “Licensed Generally Used Intellectual Property”).
(cii) Set forth on Schedule 4.18(c) are Borrower or ALSC is the sole and exclusive owner of, and has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of, sell and license, without payment to any other Person, all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property free and clear of any Encumbrances, and the consummation of the Contemplated Transactions does not and will not conflict with, alter or Licensed Intellectual Property impair any such rights. During the past five years, neither Borrower nor ALSC has received any written notice or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive any notice from any Person asserting any ownership of all of Sellers’ respective rights whatsoever interest in the Transferred Owned Intellectual Property.
(diii) To Schedule 4(ii)(iii) sets forth a list of all Intellectual Property that is licensed by Borrower or ALSC from another Person (collectively, the “Licensed Intellectual Property” and, together with the Owned Intellectual Property, the “Borrower Intellectual Property”). With respect to the Licensed Intellectual Property:
(A) each contract covering such Licensed Intellectual Property is legal, valid, binding, enforceable and in full force and effect and the applicable entity among Borrower and ALSC possesses legally enforceable rights to use, in the manner currently used and proposed to be used, the Licensed Intellectual Property, and the consummation of the Contemplated Transactions does not and will not conflict with, alter or impair any such rights;
(B) neither Borrower (nor ALSC) nor, to the Knowledge of Seller ParentBorrower and ALSC any other party to a contract covering such Licensed Intellectual Property is in breach or default, no event has occurred which with notice or lapse of time would constitute a material breach or default or permit termination, modification or acceleration thereunder, and no party to such contract has repudiated any provision thereof; and
(iC) the conduct neither Borrower, ALSC, nor any employee, agent, consultant or independent contractor thereof, has modified, enhanced or prepared a derivative component of any Licensed Intellectual Property.
(iv) Borrower Intellectual Property constitutes all of the Business Intellectual Property that is necessary to operate and conduct the business of Borrower and ALSC as currently conducted and proposed to be conducted.
(v) Buyer has been given access to review a list of all of Borrower Intellectual Property that (A) is licensed by Borrower or ALSC to another Person or (B) another Person has access to or a right to use, sell or distribute, other than agreements with customers in the CompaniesOrdinary Course of Business. Other than as set forth on Schedule 4(ii)(v), in whole neither Borrower nor ALSC has granted to any Person any options, licenses or in partagreements relating to Borrower Intellectual Property.
(vi) Neither Borrower nor ALSC has challenged, does not infringe on or is currently challenging, the intellectual property validity, ownership or right to use, sell, license, distribute, or dispose of, any Intellectual Property rights of any other Person. Neither Borrower nor ALSC has, including rights nor are they currently infringing, misappropriating or diluting any Intellectual Property right of copyrightany Person, trademark, patent, trade secret or any other proprietary right; (ii) since January 1, 2007, none of the Companies or Sellers and neither Borrower nor ALSC has received any written notice or any oral notice from any Person claiming that Borrower or ALSC, the operation of their business or any of their acts, products, technologies, or services infringes, misappropriates, violates or dilutes any Intellectual Property right of any claim that Person. No Person has infringed, violated or misappropriated or is currently infringing, violating or misappropriating or challenging the conduct validity, ownership or right to use, sell, license, distribute, or dispose of, any of Borrower Intellectual Property. Neither Borrower nor ALSC is subject to any outstanding action (other than in the ordinary course of prosecution of pending applications for patents and other registrations included in Borrower Intellectual Property) or settlement involving Borrower Intellectual Property.
(vii) All registrations, applications and filings, including maintenance and renewal fees, necessary to preserve the rights of Borrower and ALSC in respect of the Business of the Companies, in whole or in part, infringes the Registered Intellectual Property rights have been made, are in effect and are in good standing in all material respects. No registrations with respect to Borrower Intellectual Property (including, without limitation, patent registration) have been rejected or revoked by any Governmental Entity.
(viii) Each current and former employee, consultant, contractor or other Person who has contributed to or participated in the creation or development of any third party; Owned Intellectual Property on behalf of Borrower or ALSC or any predecessors in interest thereto has a legal duty sufficient to vest all right, title, and interest in Borrower or ALSC of all such Owned Intellectual Property created by such employee in the scope of his or her employment with such entity (iii) each a “Work Product Agreement”). Neither Borrower nor ALSC have any written Work Product Agreements. No current or former employee, consultant or contractor or any other Person will, after giving effect to the software and databases that are part of the Transferred Contemplated Transactions, have any right, claim or interest in or to any Owned Intellectual Property.
(ix) Borrower and ALSC have taken commercially reasonable actions to protect, whether through license and where necessary to register, Borrower Intellectual Property. Borrower and ALSC have not taken any action that would materially impair or assignment, do not, otherwise materially adversely affect its rights in Borrower Intellectual Property.
(x) Borrower and ALSC have taken commercially reasonable steps to protect and preserve the Knowledge confidentiality of Seller Parent, contain all Borrower Intellectual Property. No trade secret included in Borrower Intellectual Property has been authorized to be disclosed or has been actually disclosed by Borrower or ALSC to any Person other than pursuant to a written non-disclosure agreement restricting the disclosure and use thereof.
(xi) No software included within Borrower Intellectual Property contains any “virusesback door,” trojan horses, “time bomb,” “Trojan horse,” “drop dead device,” “virus,” spyware or other software routines designed to permit unauthorized access to or disabling or erasure enable the unauthorized collection of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d)data, to hinder, disable or erase software, hardware, or data, or to perform any other such actions. Neither Borrower, ALSC, nor the Knowledge of Seller Parentemployees, no agents or subcontractors thereof have at any time knowingly or intentionally introduced or caused to be introduced any such routine into such software. The source code for the software included within the Owned Intellectual Property that is material not in the possession of any other Person, and Borrower and ALSC have used commercially reasonable efforts consistent with industry standards to maintain the confidentiality of such source code.
(xii) The software is subject to or freeware used in, incorporated into, integrated or bundled with Borrower Intellectual Property does not contain any “open source” license such as source software, freeware, or other software distributed under similar licensing or distribution models (including software licensed or distributed under GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), the GNU Artistic License, the Mozilla Public License, Lesser GNU the Netscape Public License, the Sun Community License or Mozilla Public (SCSL), the Sun Industry Standards License that (a) requires or could requireSISL), the BSD License, or condition or could conditionthe Apache License), the use or distribution of and no such software on has been incorporated into any of Borrower Intellectual Property that would in any way obligate Borrower or ALSC to disclose to any other Person the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as Borrower and ALSC are in compliance with the open source license for each of the open source software programs set forth on in Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise4(ii)(xii), which are in full force and effect, to use all Licensed Intellectual Property.
(exiii) The Companies and Sellers have taken reasonable steps to protect (i) All of the security, confidentiality and integrity material computer systems that are used in the businesses of transactions executed through their computer systemsBorrower or ALSC as currently conducted, including through appropriate security protocols hardware, software, databases, firmware, telecommunications and techniques related cabling, wiring and peripherals (iicollectively, the “Information Technology Systems”) are in good working order and have capacity and functions that are adequate for the securityconduct of the businesses of Borrower and ALSC, confidentiality as conducted as of the date hereof and integrity of all confidential or proprietary Data and Consumer Privacy Information anticipated to be conducted in the possession or under the control future. No part of the CompaniesInformation Technology Systems is or has ever been infected by any virus or other extraneously induced malfunction that has caused a material loss of performance of the Information Technology Systems or the loss of any material data stored on the Information Technology Systems, no part of the Information Technology Systems has experienced any substantial and unscheduled outage or malfunction and there has been no breach, security incident or unauthorized access to or disclosure, use or loss of any personally identifiable information, whether on or through the Information Technology Systems or through any third-party service provider working on behalf of Borrower or ALSC, that has required notification to any Person or Governmental Entity pursuant to any applicable breach notification Laws or privacy Laws, or that has required the taking of any other action as required by any privacy Law. Borrower and ALSC are in compliance with their own privacy and security policies and any Privacy Laws. To the Knowledge of Seller Parent, each Seller extent not restricted by applicable Law or by their own internal privacy and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006security policies to the extent not waivable by the Borrower or ALSC, neither the Companies Borrower nor (with respect ALSC is prohibited from providing Lender with, or transferring to the Business) Lender, all or any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Person.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any portion of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (personally identifiable information and other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parentconfidential information collected, all Owned Intellectual Property processed, stored, acquired and used in the conduct of the Business by any Company businesses of Borrower or any Seller that ALSC on or after the date hereof, in connection with the Contemplated Transactions. Borrower and ALSC have implemented and followed industry standard security programs and policies containing technical and organizational measures to protect and safeguard personally identifiable information, including ongoing review and updating of all such plans and policies.
(xiv) Borrower has been licensed by implemented reasonable and industry standard plans, in the Companies or any Seller event of a failure of the Information Technology Systems (whether due to another Personnatural disaster, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements power failure or otherwise), and all Licensed Intellectual Property that is licensed from intended to reasonably minimize any disruption to the operations of Borrower or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) ALSC in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property event of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawfulfailure.
Appears in 2 contracts
Sources: Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Vespoint LLC), Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Midwest Holding Inc.)
Technology and Intellectual Property. (a) Set forth on Schedule 4.18(a)(i) hereto is a correct and complete listing of all Registered All Intellectual ------------------------------------ Property that is Owned Exclusively Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and registered with any customizations thereto) licensed Governmental Authority by the Companies Company, any of its Subsidiaries or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether Non-Registered Funds or not material, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor subject to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the an application for registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and with any customizations thereto) licensed Governmental Authority submitted by or on behalf of the Companies Company, any of its Subsidiaries or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the Non-Registered Funds is listed in Section 2.17 of the Company Disclosure Schedule (the "Registered IP"), which also sets forth a list of all jurisdictions in which such Registered IP is registered or registrations have been applied for and all related registration and application numbers. All Registered IP owned by the Company, any of its Subsidiaries or any of the Non-Registered Funds has been duly registered in, filed in or issued by the appropriate Governmental Authority. Other than as expressly indicated otherwise in the Parent Interim Services Agreement, each of the Company, its Subsidiaries and the Non-Registered Funds has (and upon consummation of the transactions contemplated hereby will have) ownership of, or such other businesses rights by license, lease or other agreement in and to, all Intellectual Property necessary to conduct the business of Seller Parent the Company, its Subsidiaries and the Non-Registered Funds substantially in the manner presently conducted, and the consummation of the transactions contemplated hereby does not and will not materially conflict with, materially alter or materially impair any such ownership or rights. None of the Company nor any of its Subsidiaries has granted any option or license of any kind to any third party relating to any Registered IP or Symphony Signals (as defined in the Asset Purchase Agreement) used by the Company or its Affiliates, Subsidiaries or the marketing or distribution thereof and that is reasonably necessary for the conduct none of the Business as it is currently conducted (all such Intellectual PropertyCompany nor any of its Affiliates has granted any option or license of any kind to any third party relating to any Registered IP or Symphony Signals owned or used solely by the Company or its Subsidiaries or the marketing or distribution thereof. All material Technology of the Company, whether or not material, is its Subsidiaries and the “Licensed Generally Used Intellectual Property”).
(c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except Non-Registered Funds has been maintained in confidence in accordance with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever protection procedures customarily used in the Transferred Owned Intellectual Property.
(d) industry to protect rights of like importance. None of the Symphony Parties has received any written notice that any of the Technology owned by the Company is invalid or unenforceable. To the Knowledge of Seller Parentthe Symphony Parties, (i) the conduct none of the Business of Company, its Subsidiaries or the CompaniesNon-Registered Funds has infringed or violated any trademark, in whole or in parttrade name, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret right or other proprietary right of others, nor, to the Knowledge of the Symphony Parties, has any other Person infringed on a continuing basis any rights that the Company or any of its Subsidiaries has in the Registered IP, other proprietary right; (ii) since January 1than as would not, 2007individually or in the aggregate, none have a Company Material Adverse Effect. Following the execution of the Companies Parent Agreements, each of the Company, each of its Subsidiaries and each of the Non-Registered Funds will own or Sellers license all computer software developed or currently used by it which is material to the conduct of its business as currently conducted ("Computer Software") and will have the right to use such software in accordance with the terms of any applicable license without infringing upon the intellectual property rights (including trade secrets rights) of any third party, in each case other than any Terminated Services (as defined in the Parent Interim Services Agreement) or other than as would not, individually or in the aggregate, have a Company Material Adverse Effect. None of the Company, its Subsidiaries or the Non-Registered Funds has received any written notice of any claim that the conduct respecting any violation or infringement of the Business of Computer Software by the CompaniesCompany, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do not, to the Knowledge of Seller Parent, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Property.
(e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers its Subsidiaries or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized PersonNon-Registered Funds.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawful.
Appears in 1 contract
Technology and Intellectual Property. Each of the Sellers and their Subsidiaries and the Sponsored Investment Companies has (aand upon consummation of the transactions contemplated hereby will have) Set forth on Schedule 4.18(a)(i) hereto is a correct ownership of, or such other rights by license, lease or other agreement in and complete listing to, all intellectual property necessary to conduct the business of all Registered Intellectual Property that is Owned Exclusively Used Intellectual Propertythe Private Partnership and its Subsidiaries and the Sponsored Investment Companies substantially in the manner presently conducted, including and the registration consummation of the Transactions as contemplated hereby does not and will not conflict with, alter or application numbers, if applicable, in each applicable jurisdictionimpair any such ownership or rights. Schedule 4.18(a)(ii) hereto is a correct and complete listing None of all material Intellectual Property (other than commercially available software and the Sellers or their respective Affiliates has granted any customizations thereto) licensed by the Companies option or license of any Seller from a kind to any third party relating to any technology or intellectual property owned, used, filed by or licensed to the Sellers or their Subsidiaries (and used in conducting the business of such entity) or held for use by any Company the marketing or any Seller exclusively distribution thereof. All such material technology has been maintained in and reasonable necessary for confidence in accordance with protection procedures customarily used in the conduct industry to protect rights of like importance. None of the Business as it is currently conducted (all such Intellectual PropertySellers, whether their Subsidiaries or not materialthe Sponsored Investment Companies has, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliates, and that is reasonably necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether or not material, is the “Licensed Generally Used Intellectual Property”).
(c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing DateSeller's knowledge, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Lawsinfringed or violated any trademark, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever in the Transferred Owned Intellectual Property.
(d) To the Knowledge of Seller Parenttrade name, (i) the conduct of the Business of the Companies, in whole or in part, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret right or other proprietary right of others, nor, to the Sellers' knowledge, has any other Person infringed on a continuing basis any rights that the Sellers or any other proprietary right; (ii) since January 1, 2007, none of their Subsidiaries has in the intellectual property. Each of the Sellers, their Subsidiaries and the Sponsored Investment Companies owns or Sellers licenses all computer software developed or currently used by it which is material to the conduct of its business as currently conducted and has the right to use such software without infringing upon the intellectual property rights (including trade secrets rights) of any third party. None of the Sellers, any of their Subsidiaries or any of the Sponsored Investment Companies has received any written notice of any claim that the conduct of the Business of the Companies, in whole respecting any such violation or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do not, to the Knowledge of Seller Parent, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Propertyinfringement.
(e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Person.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawful.
Appears in 1 contract
Sources: Merger Agreement (Nvest Lp)
Technology and Intellectual Property. (a) Set forth Except as disclosed in Section 3.16(a) of the Disclosure Schedule and except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, the Companies and the Subsidiaries (i) exclusively own or possess all right, title and interest in, or have valid, enforceable rights or licenses to use, the patents, trademarks, service marks, trade names, brand names, logos, Internet domain names, copyrights (including any registrations or applications to any of the foregoing), computer programs, trade secrets, know-how and patentable inventions that are used to carry on Schedule 4.18(a)(itheir businesses as now conducted (the “Intellectual Property”) hereto is a correct free and complete listing clear of all Registered Liens, and (ii) will continue to exclusively own or possess all right, title and interest in, or have valid enforceable rights or licenses to use the Intellectual Property that is Owned Exclusively Used immediately following the Business Re-Alignment Transactions and the Closing. Each of Seller, all Affiliates of Seller, the Companies and the Subsidiaries has taken reasonable steps to maintain and protect the Intellectual Property, including except where the registration failure to do so would not reasonably be expected to have a Company Material Adverse Effect. There are no material Actions pending, or application numbersto the Knowledge of Seller, if applicablethreatened in writing: (i) alleging any infringement, in each applicable jurisdiction. Schedule 4.18(a)(iimisappropriation or violation of the rights of any third party with respect to any intellectual property of such Person or (ii) hereto is a correct and complete listing challenging the validity, enforceability or ownership of all material the Intellectual Property (other than commercially available software and any customizations thereto) owned or exclusively licensed by Seller, any Affiliate of Seller, the Companies or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary for the Subsidiaries.
(i) To the Knowledge of Seller, the conduct of the Business as it business of the Companies and the Subsidiaries has not infringed, misappropriated or violated any intellectual property of any third party, except to the extent that such infringement, misappropriation or violation, if determined to be unlawful, would not reasonably be expected to have a Company Material Adverse Effect, (ii) to the Knowledge of Seller, no third party is currently conducted (all such infringing, misappropriating or violating the Intellectual PropertyProperty owned or exclusively licensed by Seller, whether or not materialany Affiliate of Seller, the “Licensed Exclusively Used Companies or the Subsidiaries, and (iii) none of the Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from Property owned or exclusively licensed by Seller, any Affiliate of Seller, the applicable third party licensor to assign Companies or the license in Subsidiaries requires any payment for the use of such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used (except for the payment of licensing or held for use by any maintenance fees that do not exceed $500,000 annually in the aggregate to Persons who are not Affiliates of a Company or any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliates, and that is reasonably necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether or not material, is the “Licensed Generally Used Intellectual Property”Subsidiary).
(c) Set forth on Section 3.16(c) of the Disclosure Schedule 4.18(c) are all items contains a true, correct and complete list of Owned Exclusively Used the Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Propertyowned or exclusively licensed by Seller, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensedany Affiliate of Seller, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever in the Transferred Owned Intellectual Property.
(d) To the Knowledge of Seller Parent, (i) the conduct of the Business of the Companies, in whole or in part, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret or any other proprietary right; (ii) since January 1, 2007, none of the Companies or Sellers has received any written notice the Subsidiaries that is the subject of any claim that the conduct a registration or application for registration with a Governmental Entity or Internet domain name registrar (including registration or application number and jurisdiction) and all such registrations or applications for registration are in good standing except as otherwise indicated in Section 3.16(c) of the Business of the Companies, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do not, to the Knowledge of Seller Parent, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such softwareDisclosure Schedule. Except as set forth on Schedule 4.18(din Section 3.16(c) and except for of the Excluded Intellectual PropertyDisclosure Schedule, no action must be taken within one hundred eighty (A180) to days following the Knowledge of Seller ParentClosing, which, if not taken would result in the Companies loss or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear prejudice of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Property.
(e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (right with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers such registrations or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Personapplications for registration.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawful.
Appears in 1 contract
Technology and Intellectual Property. (a) Set Schedule 3.17(a) sets forth on Schedule 4.18(a)(i) hereto is a true, complete and correct and complete listing list of all Registered patents and patent applications, Internet domain names, trademarks and service marks, and trademark, service ▇▇▇▇ and copyright registrations and applications included in the Business Intellectual Property (excluding any applications or software that is Owned Exclusively Used subject to “shrink-wrap” or “click-wrap” license agreements and excluding any of such items containing “Hartford,” “HLPP,” the design for the Hartford stag or any variations of the foregoing) (collectively, the “Scheduled Intellectual Property”), including the registration or application numbersin each case, indicating, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii) hereto is a correct and complete listing of all material the extent to which such Scheduled Intellectual Property (other than commercially available software and any customizations thereto) licensed by the Companies or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary constitutes Transferred Intellectual Property. Any registrations for the conduct of Transferred Intellectual Property are validly issued and enforceable in accordance with their terms. The Transferred Intellectual Property is not subject to any outstanding order, judgment, decree or agreement adversely affecting Sellers’ use thereof or rights thereto. Sellers have sufficient rights to use the Transferred Intellectual Property as currently used in connection with the Business as it is currently conducted (all such Intellectual Property, whether or not material, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreementconducted.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliates, and that is reasonably necessary for the conduct The operation of the Business as it is currently conducted and the products sold and services provided by such Seller or any of its Affiliates in connection therewith (all such Intellectual Property, whether or not material, is including the “Licensed Generally Used Intellectual Property”).
(c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever use in the Transferred Owned Intellectual Property.
(d) To the Knowledge of Seller Parent, (i) the conduct of the Business of the Companies, in whole or in part, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret or any other proprietary right; (ii) since January 1, 2007, none of the Companies or Sellers has received any written notice of any claim that the conduct of Business Intellectual Property and the Business of the Companies, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignmentSoftware), do not and have not, to the Knowledge of Seller Parentsuch Seller, contain since January 1, 2008, infringed, misappropriated or otherwise violated or conflicted with the Intellectual Property Rights of any “viruses,” trojan horsesother Person. Since January 1, 2008, Sellers have not received any written notice of litigation, opposition, cancellation, proceeding, objection or claim pending, asserted or threatened concerning the ownership, validity, registerability, enforceability, infringement, misappropriation, violation or use of, or licensed right to use, any Transferred Intellectual Property. Since January 1, 2008, Sellers have not received any written notice that Sellers are infringing, misappropriating or otherwise violating the Intellectual Property Rights of any other software routines designed Person with respect to permit unauthorized access any Transferred Intellectual Property or any rights licensed pursuant to or disabling or erasure the Transferred IP Contracts. Such Seller and its Affiliates have taken all reasonable measures to protect the confidentiality and value of data without the consent of the user (it being understood all Trade Secrets that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); are Business Intellectual Property, and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parentsuch Seller, no such Owned Intellectual Property Trade Secrets have not been used, disclosed to or discovered by any Person except pursuant to valid and appropriate non-disclosure and/or license agreements, which have not been breached.
(c) Schedule 3.17(c) sets forth a true, complete and correct list of all Transferred IP Contracts (excluding any applications or software that is material software is subject to any “open sourceshrink-wrap” or “click-wrap” license such as the GNU Public Licenseagreements).
(d) Such Seller and its Affiliates have implemented reasonable backup, Lesser GNU Public License security and disaster recovery technology and procedures that are consistent with industry practices. Such Seller or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution an Affiliate of such software on the disclosure, licensing or distribution of any Seller possesses source code for any portion each version of such software or included in the Software License Agreement (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parentcollectively, the Companies or Sellers have full right“Business Software”). Schedule 3.17(d) sets forth a true, title complete and interest in and to correct list of all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual PropertyBusiness Software.
(e) The Companies and Sellers have taken reasonable steps to protect (iSchedule 3.17(e) the security, confidentiality and integrity sets forth a list of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Person.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property enterprise software used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as Business. Such software are used by them in the conduct of the Business.
(i) Each of the Companies and each such Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been and/or its Affiliates pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third enterprise-wide Contracts with third-party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawfulvendors.
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Sources: Master Transaction Agreement (Tiptree Financial Inc.)
Technology and Intellectual Property. (a) Set forth on Schedule 4.18(a)(i) hereto is a correct and complete listing of all Registered All Intellectual Property that is Owned Exclusively Used Intellectual Propertyregistered with any Governmental Authority by the Company, including or subject to an application for registration with any Governmental Authority submitted by or on behalf of the Company, is listed in Section 2.17 of the Company Disclosure Schedule (the "Registered IP"), which also sets forth a list of all jurisdictions in which such Registered IP is registered or registrations have been applied for and all registration or and application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed All Registered IP owned by the Companies Company has been duly registered in, filed in or any Seller from a third party and used issued by the appropriate Governmental Authority where such registration, filing or held for use by any Company or any Seller exclusively in and reasonable issuance is necessary for the conduct of the Business as it is currently conducted business of the Company substantially in the manner presently conducted. The Company has (and upon consummation of the transactions contemplated hereby will have) ownership of, or such other rights by license, lease or other agreement in and to, all Intellectual Property necessary to conduct the business of the Company substantially in the manner presently conducted, and the consummation of the transactions contemplated hereby does not and will not materially conflict with, materially alter, or materially impair any such ownership or rights. Neither the Company nor Parent or any of its other Subsidiaries has granted any option or license of any kind to any third party relating to any Technology or Intellectual PropertyProperty owned, whether used, filed by or not materiallicensed to, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and any customizations thereto) licensed by or on behalf of the Companies or Sellers from a third party and used or held for use by any Company or the marketing or distribution thereof. The Company has not infringed or violated any Seller in both the conduct of the Business and also in the conduct of any of the other businesses of Seller Parent or its Affiliatestrademark, and that is reasonably necessary for the conduct of the Business as it is currently conducted (all such Intellectual Propertytrade name, whether or not material, is the “Licensed Generally Used Intellectual Property”).
(c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever in the Transferred Owned Intellectual Property.
(d) To the Knowledge of Seller Parent, (i) the conduct of the Business of the Companies, in whole or in part, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret right or any other proprietary right; (ii) since January 1right of others, 2007, none of the Companies or Sellers has received any written notice of any claim that the conduct of the Business of the Companies, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do notnor, to the Knowledge of Seller Parentthe Old Mutual Parties, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Property.
(e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized Person.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted infringed on a continuing basis any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of rights that the Transferred Owned Company has in the Intellectual Property or (ii) owned by the Companies have licensed any material Licensed Intellectual Property to any Person (Company, other than as would not, individually or in the ordinary course of business) aggregate, be reasonably expected to have a Company Material Adverse Effect. The Company owns or (iii) any of the Companies licenses all computer software developed or any of the Sellers has entered into an agreement currently used by it which is material to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that its business as currently conducted ("Computer Software") and has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of such software without infringing upon the material data contained in Records used and necessary to carry on the Business Intellectual Property rights (collectively, the “Data”including trade secrets rights) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject as would not, individually or in the aggregate, be reasonably expected to rules have a Company Material Adverse Effect. The Company has not received notice of professional conduct, any claim respecting any violation or infringement of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party Computer Software by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawfulCompany.
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Technology and Intellectual Property. (a) Set forth on Schedule 4.18(a)(i) hereto is a correct and complete listing of all Registered All Intellectual Property that is Owned Exclusively Used Intellectual Property, including the registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(a)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and registered with any customizations thereto) licensed Governmental Authority by the Companies Company, any of its Subsidiaries or any Seller from a third party and used or held for use by any Company or any Seller exclusively in and reasonable necessary for the conduct of the Business as it is currently conducted (all such Intellectual Property, whether Non-Registered Funds or not material, the “Licensed Exclusively Used Intellectual Property”). Schedule 4.18(a)(ii) also sets forth whether consent from the applicable third party licensor subject to assign the license in such Licensed Exclusively Used Intellectual Property to Buyer is required under the applicable license agreement.
(b) Set forth on Schedule 4.18(b)(i) hereto is a correct and complete listing of all Registered Intellectual Property that is Owned Generally Used Intellectual Property, including the an application for registration or application numbers, if applicable, in each applicable jurisdiction. Schedule 4.18(b)(ii) hereto is a correct and complete listing of all material Intellectual Property (other than commercially available software and with any customizations thereto) licensed Governmental Authority submitted by or on behalf of the Companies Company, any of its Subsidiaries or Sellers from a third party and used or held for use by any Company or any Seller in both the conduct of the Business and also in the conduct of any of the Non-Registered Funds is listed in Section 2.17 of the Company Disclosure Schedule (the "Registered IP"), which also sets forth a list of all jurisdictions in which such Registered IP is registered or registrations have been applied for and all related registration and application numbers. All Registered IP owned by the Company, any of its Subsidiaries or any of the Non-Registered Funds has been duly registered in, filed in or issued by the appropriate Governmental Authority. Other than as expressly indicated otherwise in the Parent Interim Services Agreement, each of the Company, its Subsidiaries and the Non-Registered Funds has (and upon consummation of the transactions contemplated hereby will have) ownership of, or such other businesses rights by license, lease or other agreement in and to, all Intellectual Property necessary to conduct the business of Seller Parent the Company, its Subsidiaries and the Non-Registered Funds substantially in the manner presently conducted, and the consummation of the transactions contemplated hereby does not and will not materially conflict with, materially alter or materially impair any such ownership or rights. None of the Company nor any of its Subsidiaries has granted any option or license of any kind to any third party relating to any Registered IP or Symphony Signals (as defined in the Asset Purchase Agreement) used by the Company or its Affiliates, Subsidiaries or the marketing or distribution thereof and that is reasonably necessary for the conduct none of the Business as it is currently conducted (all such Intellectual PropertyCompany nor any of its Affiliates has granted any option or license of any kind to any third party relating to any Registered IP or Symphony Signals owned or used solely by the Company or its Subsidiaries or the marketing or distribution thereof. All material Technology of the Company, whether or not material, is its Subsidiaries and the “Licensed Generally Used Intellectual Property”).
(c) Set forth on Schedule 4.18(c) are all items of Owned Exclusively Used Intellectual Property that are being transferred to Buyer (the “Transferred Owned Intellectual Property”). Except for the Transferred Owned Intellectual Property, no Owned Intellectual Property or Licensed Intellectual Property or other Intellectual Property is being licensed, sublicensed, assigned or otherwise transferred to Buyer (such Intellectual Property, collectively, the “Excluded Intellectual Property”) except pursuant to the Transition Services Agreement. On the Closing Date, except Non-Registered Funds has been maintained in confidence in accordance with respect to the Excluded Intellectual Property and subject to Section 4.3 and subject to obtaining all applicable consents and Applicable Laws, Buyer will have exclusive ownership of all of Sellers’ respective rights whatsoever protection procedures customarily used in the Transferred Owned Intellectual Property.
(d) industry to protect rights of like importance. None of the Symphony Parties has received any written notice that any of the Technology owned by the Company is invalid or unenforceable. To the Knowledge of Seller Parentthe Symphony Parties, (i) the conduct none of the Business of Company, its Subsidiaries or the CompaniesNon-Registered Funds has infringed or violated any trademark, in whole or in parttrade name, does not infringe on the intellectual property rights of any other Person, including rights of copyright, trademark, patent, trade secret right or other proprietary right of others, nor, to the Knowledge of the Symphony Parties, has any other Person infringed on a continuing basis any rights that the Company or any of its Subsidiaries has in the Registered IP, other proprietary right; (ii) since January 1than as would not, 2007individually or in the aggregate, none have a Company Material Adverse Effect. Following the execution of the Companies Parent Agreements, each of the Company, each of its Subsidiaries and each of the Non-Registered Funds will own or Sellers license all computer software developed or currently used by it which is material to the conduct of its business as currently conducted ("Computer Software") and will have the right to use such software in accordance with the terms of any applicable license without infringing upon the intellectual property rights (including trade secrets rights) of any third party, in each case other than any Terminated Services (as defined in the Parent Interim Services Agreement) or other than as would not, individually or in the aggregate, have a Company Material Adverse Effect. None of the Company, its Subsidiaries or the Non-Registered Funds has received any written notice of any claim that the conduct respecting any violation or infringement of the Business of Computer Software by the CompaniesCompany, in whole or in part, infringes the Intellectual Property rights of any third party; (iii) the software and databases that are part of the Transferred Owned Intellectual Property, whether through license or assignment, do not, to the Knowledge of Seller Parent, contain any “viruses,” trojan horses, or other software routines designed to permit unauthorized access to or disabling or erasure of data without the consent of the user (it being understood that the foregoing does not include routines or mechanisms related to security or that limit the number or locations of users or modifications); and (iv) except as set forth on Schedule 4.18(d), to the Knowledge of Seller Parent, no such Owned Intellectual Property that is material software is subject to any “open source” license such as the GNU Public License, Lesser GNU Public License or Mozilla Public License that (a) requires or could require, or condition or could condition, the use or distribution of such software on the disclosure, licensing or distribution of any source code for any portion of such software or (b) otherwise imposes or could impose any limitation, restriction or condition on the right or ability of the Companies or Sellers to use or distribute such software. Except as set forth on Schedule 4.18(d) and except for the Excluded Intellectual Property, (A) to the Knowledge of Seller Parent, the Companies or Sellers have full right, title and interest in and to all Owned Intellectual Property free and clear of any Encumbrances, and (B) to the Knowledge of Seller Parent, the Companies or Sellers own or have valid and enforceable licenses, agreements or rights (through non-assertion, settlement or similar agreements or otherwise), which are in full force and effect, to use all Licensed Intellectual Property.
(e) The Companies and Sellers have taken reasonable steps to protect (i) the security, confidentiality and integrity of transactions executed through their computer systems, including through appropriate security protocols and techniques and (ii) the security, confidentiality and integrity of all confidential or proprietary Data and Consumer Privacy Information in the possession or under the control of the Companies. To the Knowledge of Seller Parent, each Seller and each Company is in compliance in all material respects with Applicable Laws. Since January 1, 2006, neither the Companies nor (with respect to the Business) any Seller has had a material security breach that resulted in or, to the Knowledge of Seller Parent, required the notification of their customers its Subsidiaries or the employees that the information of such customers or employees had been or may have been compromised or otherwise accessed by an unauthorized PersonNon-Registered Funds.
(f) Other than as set forth on Schedule 4.18(f), there are no material agreements or arrangements pursuant to which (i) the Acquired Companies or the Sellers have licensed to any other Person or otherwise permitted any other Person to use (through non-assertion, settlement or similar agreements or otherwise) any of the Transferred Owned Intellectual Property or (ii) the Companies have licensed any material Licensed Intellectual Property to any Person (other than in the ordinary course of business) or (iii) any of the Companies or any of the Sellers has entered into an agreement to indemnify any Person against a charge of infringement arising out of the authorized use of the Transferred Owned Intellectual Property.
(g) To the Knowledge of Seller Parent, all Owned Intellectual Property used in the conduct of the Business by any Company or any Seller that has been licensed by the Companies or any Seller to another Person, or that the Companies or Sellers permit another Person to use (through non-assertion, settlement or similar agreements or otherwise), and all Licensed Intellectual Property that is licensed from or to another Person by the Acquired Companies, is being used substantially in accordance with the applicable license, agreement or arrangement.
(h) To the Knowledge of Seller Parent, collectively, the Sellers and the Acquired Companies own or have the right to use all of the material data contained in Records used and necessary to carry on the Business (collectively, the “Data”) free and clear of any Encumbrances (other than restrictions on use or disclosure imposed by Applicable Law) in the manner as used by them in the conduct of the Business.
(i) Each of the Companies and each Seller has used commercially reasonable efforts to protect and preserve the confidentiality of trade secrets or other material confidential information and proprietary know-how, ideas and information used or necessary for any business of any of the Companies (“Company Confidential Information”). Except as set forth on Schedule 4.18(i), all current employees of the Companies and Sellers have been required to agree to adhere to a Company’s or a Seller’s respective policies regarding disclosure of confidential or proprietary information relating to the business of any of the Companies or the Business conducted by the Renewal Rights Sellers (collectively, the “Employee Confidentiality Agreements”). To the Knowledge of Seller Parent, (i) no such current or former employee of any of the Acquired Companies or Sellers has breached or violated any of the Employee Confidentiality Agreements in any material respect and (ii) there has been no material infringement or breach of any Company Confidential Information by any other Person. Each of the Companies and (with respect to their conduct of the Business) each Seller has a policy in effect requiring each contractor to execute a proprietary information/confidentiality agreement and all current contractors of the Companies and (with respect to their conduct of the Business) Sellers have executed such an agreement providing for the Companies or Sellers to obtain written assignments or acknowledgements of assignments from such contractors who contributed to the creation or development of any Transferred Owned Intellectual Property of such contractors’ rights to such contributions that the Companies do not already own by operation of law. To the Knowledge of Seller Parent, all material use, disclosure to a third party or appropriation by a third party, other than attorneys and other advisors subject to rules of professional conduct, of Company Confidential Information has been pursuant to the terms of a written agreement between the Companies or a Seller, on the one hand, and such third party, on the other hand. To the Knowledge of Seller Parent, all use, disclosure or appropriation of confidential information of a third party by the Companies or a Seller has been in compliance in all material respects with the applicable confidentiality obligations or is otherwise lawful.
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