OR TO EACH ITEM OF
SELLER OWNED INTELLECTUAL PROPERTY.
NO THIRD PARTY INVENTIONS, METHODS,
SERVICES, MATERIALS, PROCESSES OR SOFTWARE ARE INCLUDED IN OR REQUIRED TO
EXPLOIT THE ACQUIRED ASSETS.
NONE OF THE ACQUIRED ASSETS INCLUDES "SHAREWARE,"
"FREEWARE" OR OTHER SOFTWARE OR OTHER MATERIAL THAT WAS OBTAINED BY THE SELLER
FROM THIRD PARTIES OTHER THAN PURSUANT TO THE LICENSE AGREEMENTS LISTED IN
SECTION 2.9(H) OF THE DISCLOSURE SCHEDULE.
(I)
SOURCE CODE.
THE SELLER HAS NOT
LICENSED, DISTRIBUTED OR DISCLOSED, AND KNOWS OF NO DISTRIBUTION OR DISCLOSURE
BY OTHERS (INCLUDING ITS EMPLOYEES AND CONTRACTORS) OF, THE SELLER SOURCE CODE
TO ANY PERSON, OTHER THAN BUYER, EXCEPT PURSUANT TO THE AGREEMENTS LISTED IN
SECTION 2.9(I) OF THE DISCLOSURE SCHEDULE, AND THE SELLER HAS TAKEN ALL
REASONABLE PHYSICAL AND ELECTRONIC SECURITY MEASURES TO PREVENT DISCLOSURE OF
SUCH SELLER
7
SOURCE CODE. TO THE KNOWLEDGE OF THE SELLER, NO EVENT HAS OCCURRED, AND NO
CIRCUMSTANCE OR CONDITION EXISTS, THAT (WITH OR WITHOUT NOTICE OR LAPSE OF TIME,
OR BOTH) WILL, OR WOULD REASONABLY BE EXPECTED TO, NOR WILL THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY, RESULT IN THE DISCLOSURE OR RELEASE OF
SUCH SELLER SOURCE CODE BY THE SELLER, ITS ESCROW AGENT(S) OR ANY OTHER PERSON
TO ANY THIRD PARTY.
(J)
AUTHORSHIP.
ALL OF THE SOFTWARE AND
DOCUMENTATION COMPRISING, INCORPORATED IN OR BUNDLED WITH THE ACQUIRED ASSETS OR
INTERNAL SYSTEMS HAVE BEEN DESIGNED, AUTHORED, TESTED AND DEBUGGED BY REGULAR
EMPLOYEES OF THE SELLER WITHIN THE SCOPE OF THEIR EMPLOYMENT OR BY INDEPENDENT
CONTRACTORS OF THE SELLER WHO HAVE EXECUTED VALID AND BINDING AGREEMENTS
EXPRESSLY ASSIGNING ALL RIGHT, TITLE AND INTEREST IN SUCH COPYRIGHTABLE
MATERIALS TO THE SELLER, WAIVING THEIR NON-ASSIGNABLE RIGHTS (INCLUDING MORAL
RIGHTS) IN FAVOR OF THE SELLER AND ITS PERMITTED ASSIGNS AND LICENSEES, AND HAVE
NO RESIDUAL CLAIM TO SUCH MATERIALS.
(K)
OPEN SOURCE CODE.
SECTION 2.9(K) OF THE
DISCLOSURE SCHEDULE LISTS ALL OPEN SOURCE MATERIALS THAT THE SELLER HAS UTILIZED
IN ANY WAY IN THE EXPLOITATION OF THE SOFTWARE OR DOCUMENTATION INCLUDED IN THE
INTERNAL SYSTEMS AND DESCRIBES THE MANNER IN WHICH SUCH OPEN SOURCE MATERIALS
HAVE BEEN UTILIZED, INCLUDING, WITHOUT LIMITATION, WHETHER AND HOW THE OPEN
SOURCE MATERIALS HAVE BEEN MODIFIED AND/OR DISTRIBUTED BY THE SELLER.
THE
SELLER HAS NOT (I) INCORPORATED OPEN SOURCE MATERIALS INTO, OR COMBINED OPEN
SOURCE MATERIALS WITH, THE ACQUIRED ASSETS; (II) DISTRIBUTED OPEN SOURCE
MATERIALS IN CONJUNCTION WITH ANY OTHER SOFTWARE DEVELOPED OR DISTRIBUTED BY THE
SELLER; OR (III) USED OPEN SOURCE MATERIALS THAT CREATE, OR PURPORT TO CREATE,
OBLIGATIONS FOR THE SELLER WITH RESPECT TO THE ACQUIRED ASSETS OR GRANT, OR
PURPORT TO GRANT, TO ANY THIRD PARTY, ANY RIGHTS OR IMMUNITIES UNDER
INTELLECTUAL PROPERTY RIGHTS (INCLUDING, BUT NOT LIMITED TO, USING ANY OPEN
SOURCE MATERIALS THAT REQUIRE, AS A CONDITION OF EXPLOITATION OF SUCH OPEN
SOURCE MATERIALS, THAT OTHER SOFTWARE INCORPORATED INTO, DERIVED FROM OR
DISTRIBUTED WITH SUCH OPEN SOURCE MATERIALS BE (X) DISCLOSED OR DISTRIBUTED IN
SOURCE CODE FORM, (Y) LICENSED FOR THE PURPOSE OF MAKING DERIVATIVE WORKS, OR
(Z) REDISTRIBUTABLE AT