INFRINGES ANY MARK.
(E)
ALL INTERNET DOMAIN NAMES OF SELLER OR XCEL
JAPAN USED IN THE BUSINESS ARE LISTED ON SECTION 3.22(E) OF THE DISCLOSURE
SCHEDULE. SUCH DOMAIN NAMES HAVE BEEN DULY REGISTERED THROUGH ICANN ACCREDITED
REGISTRAR THROUGH ITS REGISTRATION PROCEDURES AND ARE OPERATING ACTIVE DOMAIN
NAMES. SELLER HAS TAKEN ALL REASONABLE STEPS TO MAINTAIN AND ENFORCE SUCH DOMAIN
NAME REGISTRATIONS.
(F)
NEITHER SELLER NOR XCEL JAPAN HAS ANY
COPYRIGHTS RELATING TO THE BUSINESS.
(I)
EACH OF SELLER (SOLELY WITH RESPECT TO
THE DIGITRAN BUSINESS) AND XCEL JAPAN HAS TAKEN ALL REASONABLE PRECAUTIONS TO
PROTECT THE SECRECY, CONFIDENTIALITY, AND VALUE OF THEIR TRADE SECRETS. TO THE
KNOWLEDGE OF SELLER, NO THIRD PARTY HAS ASSERTED THAT THE USE BY SELLER OF ANY
TRADE SECRET VIOLATES THE RIGHTS OF ANY THIRD PARTY.
46
(II)
EACH OF SELLER (SOLELY WITH RESPECT TO THE
DIGITRAN BUSINESS) AND XCEL JAPAN HAS GOOD TITLE AND AN ABSOLUTE (BUT NOT
NECESSARILY EXCLUSIVE) RIGHT TO USE ITS TRADE SECRETS.
THE TRADE SECRETS ARE
NOT PART OF THE PUBLIC KNOWLEDGE OR LITERATURE, AND, TO THE KNOWLEDGE OF SELLER,
HAVE NOT BEEN USED, DIVULGED, OR APPROPRIATED EITHER FOR THE BENEFIT OF ANY
PERSON (OTHER THAN SELLER OR XCEL JAPAN, AS APPLICABLE) OR TO THE DETRIMENT OF
THE BUSINESS.
NO TRADE SECRET IS SUBJECT TO ANY ADVERSE CLAIM OR HAS BEEN
CHALLENGED OR THREATENED IN ANY WAY.
(G)
TO THE KNOWLEDGE OF SELLER, THE INTELLECTUAL
PROPERTY ASSETS DESCRIBED IN THIS AGREEMENT CONSTITUTE THE ONLY INTELLECTUAL
PROPERTY ASSETS OR RIGHTS RELATED TO THE DIGITRAN BUSINESS.
3.23
CERTAIN PAYMENTS.
SINCE JANUARY 1, 2004, NEITHER
SELLER (SOLELY WITH RESPECT TO THE DIGITRAN BUSINESS) NOR XCEL JAPAN NOR ANY
DIRECTOR, OFFICER, AGENT, OR EMPLOYEE OF THE BUSINESS, OR TO THE KNOWLEDGE OF
SELLER, ANY OTHER PERSON ASSOCIATED WITH OR ACTING FOR OR ON BEHALF OF THE
BUSINESS, HAS DIRECTLY OR INDIRECTLY (A) MADE ANY CONTRIBUTION, GIFT, BRIBE,
REBATE, PAYOFF, INFLUENCE PAYMENT, KICKBACK, OR OTHER PAYMENT TO ANY PERSON,
PRIVATE OR PUBLIC, REGARDLESS OF FORM, WHETHER IN MONEY, PROPERTY, OR SERVICES,
(I) TO OBTAIN FAVORABLE TREATMENT IN SECURING BUSINESS, (II) TO PAY FOR
FAVORABLE TREATMENT FOR BUSINESS SECURED, (III) TO OBTAIN SPECIAL CONCESSIONS,
OR FOR SPECIAL CONCESSIONS ALREADY OBTAINED, FOR OR IN RESPECT OF THE BUSINESS,
OR (IV) IN VIOLATION OF ANY LEGAL REQUIREMENT; OR (B) ESTABLISHED OR MAINTAINED
ANY FUND OR ASSET THAT HAS NOT BEEN RECORDED IN THE BOOKS AND RECORDS OF THE
BUSINESS.
3.24
CUSTOMER / SUPPLIER RELATIONS.
EXCEPT AS SET
FORTH ON SECTION 3.24 OF THE DISCLOSURE SCHEDULE, TO THE KNOWLEDGE OF SELLER,
THERE EXISTS NO CONDITION OR STATE OF FACTS OR CIRCUMSTANCES INVOLVING THE
CUSTOMERS, SUPPLIERS, DISTRIBUTORS OR SALES REPRESENTATIVES OF THE BUSINESS THAT
SELLER CAN REASONABLY FORESEE COULD ADVERSELY AFFECT THE BUSINESS AFTER THE
CLOSING DATE. NEITHER SELLER NOR ANY AFFILIATE OF SELLER HAS ANY OWNERSHIP
INTEREST IN ANY CUSTOMER OR SUPPLIER OF THE BUSINESS.
3.25
PRODUCT WARRANTY.
EXCEPT AS SET FORTH ON
SECTION 3.25 OF THE DISCLOSURE SCHEDULE, EACH PRODUCT MANUFACTURED, SOLD,
LEASED, OR DELIVERED BY THE BUSINESS