M&A Boot Camp booklet 2023 - Flipbook - Page 112
(k) No Harmful Code. None of the software (including firmware and other software embedded in hardware devices) owned, developed
(or currently being developed), used, marketed, distributed, licensed or sold by the Company (excluding any third party software that is
generally available on standard commercial terms and is licensed to the Company solely for internal use on a non-exclusive basis)
(collectively, the “Company Software”) contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as
such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing,
any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing
unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (ii) damaging or
destroying any data or file without the user’s consent.
(l) Source Code. The source code for all Company Software developed by the Company contains reasonably clear and accurate
annotations and programmer’s comments, and otherwise has been documented in a professional manner that is both: (i) consistent with
customary code annotation conventions and practices in the software industry; and (ii) sufficient to independently enable a programmer of
reasonable skill and competence to understand, analyze, and interpret program logic, correct errors and improve, enhance, modify and
support such Company Software. No source code for any Company Software has been delivered, licensed or made available by the Company
to any escrow agent or other Person who is not, as of the date of this Agreement, an employee or independent contractor of the Company.
The Company has no duty or obligation (whether present, contingent or otherwise) to deliver, license or make available the source code for
any Company Software to any escrow agent or other Person. No event has occurred, and no circumstance or condition currently exists, that
(with or without notice or lapse of time) will, or could reasonably be expected to, result in the delivery, license or disclosure of the source
code for any Company Software to any other Person.
(m) Use of Open Source Code. Part 2.10(m) of the Disclosure Schedule accurately identifies and describes: (i) each item of Open Source
Code that is contained in or distributed with the Company Software or from which any part of any Company Software is derived; (ii) the
applicable license for each such item of Open Source Code; and (iii) the Company Software to which each such item of Open Source Code
relates. No Company Software contains, is derived from, or is distributed with Open Source Code that is licensed under any terms that:
(i) impose or could impose a requirement or condition that any Company Software or part thereof: (A) be disclosed or distributed in source
code form; (B) be licensed for the purpose of making modifications or derivative works; or (C) be redistributable at no charge; or
(ii) otherwise impose or could impose any other material limitation, restriction, or condition on the right or ability of the Company to use or
distribute any Company Software.
(n) Privacy Policies. Part 2.10(n) of the Disclosure Schedule contains each Company Privacy Policy in effect at any time and identifies,
with respect to each Company Privacy Policy: (i) the period of time during which such privacy policy was or has been in effect; (ii) whether
the terms of a later Company Privacy Policy apply to the data or information collected under such privacy policy; and (iii) if applicable, the
mechanism (such as opt-in, opt-out or notice only) used to apply a later Company Privacy Policy to data or information previously collected
under such privacy policy. The Company has complied at all times and in all material respects with all of the Company Privacy Policies and
with all applicable Legal Requirements pertaining to privacy, User Data or Personal Data. Neither the execution, delivery or performance of
this Agreement or any of the other agreements referred to in this Agreement nor the consummation of any of the transactions contemplated
by this Agreement or any such other agreements, nor Parent’s possession or use of the User Data or any data or information in the Company
Databases as permitted by or in accordance with the applicable Company Privacy Policy, will result in any violation of any Company Privacy
Policy or any Legal Requirement pertaining to privacy, User Data or Personal Data in effect as of the Closing.
22.