Common use of Computer Software and Hardware Clause in Contracts

Computer Software and Hardware. (a) Notwithstanding the introductory paragraph to Article III.A., OneBeacon has set forth on SCHEDULE 3.13(a)(i) hereto a true and complete listing of all Owned Exclusively Used Software. SCHEDULE 3.13(a)(i) hereto also sets forth a true and complete list of Licensed Exclusively Used Software, except for such software the failure of which to have the use of would otherwise not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect. OneBeacon has set forth on SCHEDULE 3.13(a)(ii) hereto a true and complete listing of all Licensed Generally Used Software, except for such software the failure of which to have the use of would otherwise not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect. Other than those set forth on SCHEDULE 3.13(a)(i), SCHEDULE 3.13(a)(ii) or Exhibit C to the Software License Agreement, there are no material computer software programs or databases used in the conduct of the Business or the operation of the Data Centers. Notwithstanding the introductory paragraph to Article III.A., subject to consummation of the Closing, Liberty and its designated Affiliates will have exclusive ownership of all rights, including all copyright and other rights whatsoever, in the Owned Exclusively Used Software, free and clear of any royalty or other payment obligations or Liens (except for Permitted Liens). Subject to consummation of the Closing, Liberty and its designated Affiliates will have (A) pursuant to an assignment or sublicense of all of the OneBeacon Subsidiaries' and OneBeacon's rights to the Licensed Exclusively Used Software (except with respect to any Licensed Exclusively Used Software as to which the underlying licensor has not consented to such assignment or sublicense or has consented on altered terms other than those terms that allow the software to continue to reside and operate on systems owned by OneBeacon or the OneBeacon Subsidiaries and, if applicable, to permit Liberty or its designated Affiliates to have its data processed by the software) in accordance with Section 5.05(c) or 5.05(d), subject to the same terms, rates and conditions of the existing license to the OneBeacon Subsidiaries or OneBeacon for the Licensed Exclusively Used Software, the right to use the Licensed Exclusively Used Software in the same manner as used by the OneBeacon Subsidiaries and OneBeacon prior to the Closing Date and, as of the Closing Date, free and clear of any Liens (except for Permitted Liens) and (B) pursuant to a sublicense granted by one or more of the OneBeacon Subsidiaries or OneBeacon (as applicable) to Liberty or its designated Affiliates (except with respect to any Licensed Generally Used Software as to which the underlying licensor has not consented to such sublicense or has consented on altered terms other than those terms that allow the software to continue to reside and operate on systems owned by OneBeacon or the OneBeacon Subsidiaries and, if applicable, to permit Liberty or its designated Affiliates to have its data processed by the software) in accordance with Section 5.05(c) or 5.05(d), subject to the same terms and conditions of the existing license to the OneBeacon Subsidiaries or OneBeacon for the Licensed Generally Used Software, the right to use the Licensed Generally Used Software in the same manner as used by the OneBeacon Subsidiaries and OneBeacon prior to the Closing Date, solely in connection with the conduct of the Business and the operation of the Data Centers, free and clear, as of the Closing Date, of any Liens (except for Permitted Liens). As of the date hereof, the use by OneBeacon and the OneBeacon Subsidiaries of the Owned Exclusively Used Software, Licensed Exclusively Used Software or Licensed Generally Used Software is not, nor will use by Liberty or any of its designated Affiliates of the Owned Exclusively Used Software, Licensed Exclusively Used Software to the extent assigned or sublicensed to Liberty or its designated Affiliates, or Licensed Generally Used Software to the extent sublicensed to Liberty or its designated Affiliate, in each case, substantially in the same manner used by OneBeacon or any OneBeacon Subsidiary, for the conduct of the Business, the operation of the Data Centers, and the provision of any services by Liberty and its designated Affiliates in accordance with the Administrative Services Agreements and the Imaging Transition Services Agreement be, in conflict with or violation or infringement of any patent, copyright, trade secret, trademark, service ▇▇▇▇, trade name, right of privacy, or any contractual or proprietary rights of any other person, except where such conflict, violation or infringement would not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect or a Liberty Material Adverse Effect, as applicable. Neither OneBeacon nor any OneBeacon Subsidiary has received any written notice of any conflict, violation or infringement of any patent, copyright, trade secret, trademark, service ▇▇▇▇, trade name, right of privacy or any contractual or proprietary rights of any other person with respect to the Owned Exclusively Used Software, Licensed Exclusively Used Software or Licensed Generally Used Software. (b) As of the date hereof, the OneBeacon Subsidiaries and OneBeacon have the rights to grant the information and data licenses set forth in Section 8.02 to Liberty or its designated Affiliates, free and clear of all Liens (except for Permitted Liens) and Liberty's use of such information, data and hardware, substantially in the same manner used by OneBeacon or any OneBeacon Subsidiary, for the conduct of the Business, the operation of the Data Centers and the provision of any services by Liberty and its designated Affiliates in accordance with the Administrative Services Agreements and the Imaging Transition Services Agreement shall not infringe the rights of other Persons, including, without limitation, any patent, copyright, trade secret, trademark, service ▇▇▇▇, trade name, right of privacy, or any contractual or proprietary rights therein, except where any such infringement would not, individually or in the aggregate, reasonably be expected to have a Liberty Material Adverse Effect. (c) Notwithstanding the introductory paragraph to Article III.A., SCHEDULE 3.13(c) sets forth all hardware systems owned by OneBeacon or the OneBeacon Subsidiaries and used in the Data Centers and all hardware systems owned by North Pacific or Oregon Auto. In addition, SCHEDULE 3.13(c) sets forth all hardware systems leased by OneBeacon or the OneBeacon Subsidiaries and used in the Data Centers and all hardware systems leased by North Pacific or Oregon Auto, except such systems the failure of which to have the use of would not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect. As of the Closing Date, all hardware systems listed in SCHEDULE 3.13(c) are in all material respects in reasonable and usable operating condition. (d) Notwithstanding the introductory paragraph to Article III.A., SCHEDULE 3.13(d) hereto sets forth a true and correct list of all maintenance fees and third party licensing fees that exceed $10,000 per year associated with the Licensed Exclusively Used Software, Licensed Generally Used Software, Owned Exclusively Used Software, and any hardware listed on SCHEDULE 3.13(c).

Computer Software and Hardware. (a) Notwithstanding the introductory paragraph to Article III.A., OneBeacon has set forth on SCHEDULE 3.13(a)(iSchedule 3.16(a) hereto sets forth a true and complete listing of all Owned Exclusively Used SoftwareComputer Software used principally in the conduct of the Business. SCHEDULE 3.13(a)(iSchedule 3.16(a) hereto also sets forth a true and complete list of Licensed Exclusively whether each such Computer Software is (i) owned by Fremont (the "Owned Principally Used Software, except for such software ") or (ii) licensed by Fremont from a third party (the failure of which to have the use of would otherwise not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect"Licensed Principally Used Software"). OneBeacon has Except as set forth on SCHEDULE 3.13(a)(iiin Schedule 3.16(a), Fremont has neither (i) licensed any of the Owned Principally Used Software to any other Person, or (ii) entered into any exclusive agreements granting rights to the Owned Principally Used Software to any other Person. Schedule 3.16(b) hereto sets forth a true and complete listing of all Computer Software used in both the conduct of the Business and the conduct of Fremont's other businesses and not used principally in the conduct of the Business. Schedule 3.16(b) hereto also sets forth whether each such Computer Software is (i) owned by Fremont (the "Owned Generally Used Software") or (ii) licensed by Fremont from a third party (the "Licensed Generally Used Software"). In addition, Schedule 3.16(b) also includes a list of all licenses, sub-licenses, or other agreements as well as all royalty or similar payment obligations with respect to the Licensed Principally Used Software and the Licensed Generally Used Software, except and the renewal or expiration dates for such software the failure of which to have the use of would otherwise not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effectlicenses. Other than those as set forth on SCHEDULE 3.13(a)(i)Schedule 3.16(b) hereto, SCHEDULE 3.13(a)(iion the Closing Date Employers Insurance shall have (A) or Exhibit C to the Software License Agreement, there are no material computer software programs or databases used a one hundred percent (100%) undivided ownership interest in the conduct of the Business or the operation of the Data Centers. Notwithstanding the introductory paragraph to Article III.A., subject to consummation of the Closing, Liberty and its designated Affiliates will have exclusive ownership of all rightsOwned Principally Used Software, including all copyright and other rights whatsoeverin its source code, in the Owned Exclusively Used Softwareobject code, documentation and all physical copies thereof, free and clear of any royalty or other payment obligations or Liens Liens, (except for Permitted Liens). Subject to consummation of B) the Closing, Liberty and its designated Affiliates will have (A) pursuant to an assignment or sublicense of all of the OneBeacon Subsidiaries' and OneBeacon's same rights to the Licensed Exclusively Used Software (except with respect to any Licensed Exclusively all Owned Generally Used Software as to which the underlying licensor has not consented to such assignment or sublicense or has consented on altered terms other than those terms that allow the software to continue to reside and operate on systems owned by OneBeacon or the OneBeacon Subsidiaries and, if applicable, to permit Liberty or its designated Affiliates to have its data processed by the software) in accordance with Section 5.05(c) or 5.05(d), subject to the same terms, rates and conditions of the existing license to the OneBeacon Subsidiaries or OneBeacon for the Licensed Exclusively Used Software, the right to use the Licensed Exclusively Used Software in the same manner as used by the OneBeacon Subsidiaries and OneBeacon Fremont had prior to the Closing Date and, as of the Closing Date, free and clear of any Liens royalty or other payment obligations or Liens, (except for Permitted C) pursuant to an assignment of all of Fremont's rights with respect to any Licensed Principally Used Software selected by Employers Insurance pursuant to Section 5.12(b) hereof, all rights as were granted or licensed to Fremont prior to the Closing Date and free and clear of any Liens) , subject to the terms and conditions of the assigned licenses to the Licensed Principally Used Software, and (BD) pursuant to a sublicense sub-license granted by one or more of the OneBeacon Subsidiaries or OneBeacon (as applicable) Fremont to Liberty or its designated Affiliates (except Employers Insurance, all rights with respect to any Licensed Generally Used Software selected by Employers Insurance pursuant to Section 5.12(b) hereof, as were granted or licensed to which Fremont prior to the underlying licensor has not consented to such sublicense or has consented on altered terms other than those terms that allow the software to continue to reside Closing Date and operate on systems owned by OneBeacon or the OneBeacon Subsidiaries and, if applicable, to permit Liberty or its designated Affiliates to have its data processed by the software) in accordance with Section 5.05(c) or 5.05(d)free and clear of any Liens, subject to the same terms and conditions of the existing license sub-licenses to the OneBeacon Subsidiaries or OneBeacon for the Licensed Generally Used Software. On the Closing Date, Fremont shall have the right, power and authority to grant the rights herein granted, licensed, sub-licensed or assigned to Employers Insurance. No restrictions on the use of the Owned Principally Used Software, the right to use Owned Generally Used Software, the Licensed Principally Used Software and/or the Licensed Generally Used Software would materially affect the use of such Computer Software in the same manner whole or in part. All Owned Principally Used Software and all Owned Generally Used Software was either created by (i) employees of Fremont as used by the OneBeacon Subsidiaries and OneBeacon prior to the Closing Date, solely in connection with the conduct "works-made-for-hire," as such term is defined under Section 101 of the Business United States Copyright Law, within the scope of their employment, (ii) third parties as "works-made-for-hire," as such term is defined under Section 101 of the United States Copyright Law, pursuant to written agreements with Fremont, or (iii) independent contractors who have assigned all of their rights to Fremont pursuant to written agreements, provided that a copy of any written agreement or assignment referenced in this Section 3.16(a) shall be provided to Employers Insurance upon request. To the extent that Fremont has made enhancements, improvements, or customizations to any Licensed Principally Used Software and the operation terms pursuant to which any such software is licensed grant ownership rights to Fremont with respect to any such enhancements, improvements, or customizations, all such enhancements, improvements, or customizations shall be deemed to be Owned Principally Used Software regardless of the Data Centerswhether any such enhancements, free and clearimprovements, as of the Closing Dateor customizations are so listed on Schedule 3.16(a). (b) Fremont is not in conflict with or violation or infringement of, nor has Fremont received any notice of any Liens (except for Permitted Liens). As such conflict with, or violation, infringement or breach of, any patent, copyright, trade secret or any proprietary rights or contract rights of the date hereofany other Person with respect to any Owned Principally Used Software, the use by OneBeacon and the OneBeacon Subsidiaries of the Owned Exclusively Generally Used Software, Licensed Exclusively Principally Used Software or Licensed Generally Used Software. No use of any Owned Principally Used Software, Owned Generally Used Software, Licensed Principally Used Software or Licensed Generally Used Software is notby Fremont as provided hereunder breaches, nor will use by Liberty violates or infringes any rights of its designated Affiliates of the Owned Exclusively Used Software, Licensed Exclusively Used Software to the extent assigned any other Person or sublicensed to Liberty or its designated Affiliates, or Licensed Generally Used Software to the extent sublicensed to Liberty or its designated Affiliate, in each case, substantially in the same manner used by OneBeacon or any OneBeacon Subsidiary, (except for the conduct payment of computer software licensing or maintenance fees) requires any payment for the Business, the operation of the Data Centers, and the provision of any services by Liberty and its designated Affiliates in accordance with the Administrative Services Agreements and the Imaging Transition Services Agreement be, in conflict with or violation or infringement use of any patent, copyrighttrade name, trade secret, trademarkdomain name, service ▇▇▇▇, trade name, right of privacy, or any contractual or proprietary rights of any other person, except where such conflict, violation or infringement would not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect or a Liberty Material Adverse Effect, as applicable. Neither OneBeacon nor any OneBeacon Subsidiary has received any written notice of any conflict, violation or infringement of any patent, copyright, trade secret, trademark, service ▇▇▇▇copyright or other intellectual property right or technology owned by any other Person. No use of any Owned Principally Used Software or Owned Generally Used Software by any other Person breaches, trade name, right of privacy violates or any contractual or proprietary infringes the rights of any other person with respect Fremont. As to the all Owned Exclusively Principally Used Software and all Owned Generally Used Software, Licensed Exclusively Used Fremont has full right, title and interest in and to such Computer Software or Licensed Generally Used Software. (b) As of the date hereof, the OneBeacon Subsidiaries and OneBeacon have the rights to grant the information and data licenses set forth in Section 8.02 to Liberty or its designated Affiliates, free and clear of Liens, and Fremont's ownership rights and use comply with (i) any and all Liens applicable statutes, laws, ordinances, rules, regulations and orders of any Governmental Entity concerning privacy and (except ii) the internal policies of Fremont or agreements or promises with other Persons concerning privacy (the "Fremont Privacy Policies"). With respect to Licensed Generally Used Software for Permitted Liens) and Libertywhich Fremont grants a sub-license to Employers Insurance, Employers Insurance's use pro rata share of such informationactual maintenance fees, data and hardwareif applicable, substantially in shall be the same manner proportion thereof as used by OneBeacon or any OneBeacon Subsidiaryfor purposes of allocating a share of such fees to the Business on a historical basis. Employers Insurance shall have the right to inspect Fremont's Books and Records with respect to these fees. At Fremont's option, for instead of sub-licensing the conduct of the BusinessLicensed Generally Used Software to Employers Insurance, the operation of the Data Centers and the provision of any services by Liberty and its designated Affiliates in accordance with the Administrative Services Agreements and the Imaging Transition Services Agreement shall not infringe the rights of other Persons, including, without limitation, any patent, copyright, trade secret, trademark, service ▇▇▇▇, trade name, right of privacy, or any contractual or proprietary rights therein, except where any Fremont may assign such infringement would not, individually or in the aggregate, reasonably be expected licenses to have Employers Insurance on a Liberty Material Adverse Effectnovation basis. (c) Notwithstanding the introductory paragraph to Article III.A., SCHEDULE 3.13(cSchedule 3.16(c) sets forth all computer hardware systems (the "Computer Hardware") owned or leased by OneBeacon or the OneBeacon Subsidiaries Fremont and used in the Data Centers and all hardware systems owned by North Pacific or Oregon Auto. In addition, SCHEDULE 3.13(c) sets forth all hardware systems leased by OneBeacon or the OneBeacon Subsidiaries and used in the Data Centers and all hardware systems leased by North Pacific or Oregon Auto, except such systems the failure of which to have the use of would not, individually or in the aggregate, reasonably be expected to have a OneBeacon Material Adverse Effect. As of the Closing Date, all hardware systems listed in SCHEDULE 3.13(c) are in all material respects in reasonable and usable operating condition. (d) Notwithstanding the introductory paragraph to Article III.A., SCHEDULE 3.13(d) hereto sets forth a true and correct list of all maintenance fees and third party licensing fees that exceed $10,000 per year associated connection with the Licensed Exclusively Used Software, Licensed Generally Used Software, Owned Exclusively Used Software, Business and any hardware indicates whether each such Computer Hardware is owned or leased. All Computer Hardware listed on SCHEDULE 3.13(c).Schedule 3.16