Software License Agreement

Software License Agreement


This computer software license agreement ("Agreement") is entered into as of the 21st day of November, 2003, by and between OneShield, Inc. ("Licensor"), a Delaware corporation with its principal place of business at 304 Cambridge Road, Woburn, MA, and Darwin Professional Underwriters, Inc. a Delaware corporation, whose principal address is 76 Batterson Park Road, Farmington, Connecticut, 06032 ("Licensee").


RECITALS


A. Licensor develops and markets computer software applications for the insurance industry, including a product known as Dragon; and


B. Licensee desires to acquire a license to use the Software and Documentation for its own internal use in processing professional D&O, E&O, Medical Malpractice, Fidelity and Crime, Fiduciary, EPLI, and related professional liability insurance policies underwritten by Licensee (the "Intended Use") and Licensor desires to grant Licensee such a license.


THEREFORE, the parties agree as set forth herein.


1. DEFINITIONS


1.1 AUTHORIZED PLATFORM


"Authorized Platform" means the computer or operating system, or both, on
which Licensee is authorized to use the Software pursuant to this
Agreement. A list of the Authorized Platforms is set forth in Schedule A,
attached to this Agreement and incorporated by this reference. As used
herein, the term "Authorized Platform" refers to all Authorized Platforms
included on the aforementioned list.


1.2 DOCUMENTATION


"Documentation," means the user manuals, specifications and other material
listed in Schedule B, attached to this Agreement and incorporated by this
reference, which describe the functionality and use of the Software.


1.3 SOFTWARE


"Software," means the computer program or programs marketed and sold as
Dragon, in object code form only, and the Documentation. Software includes
any Updates and Upgrades and excludes any version of the Software or other
software developed or marketed by Licensor that constitutes a separate
product because of differences in function or features.


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2. LICENSOR'S OBLIGATIONS


2.1 DELIVERABLES


Promptly following the execution of this Agreement, Licensor shall make the
Software available to Licensee in a format appropriate for the Authorized
Platform together with the Documentation (the "Delivery Date").


2.2 IMPLEMENTATION SERVICES


Licensor shall provide Licensee with implementation services in connection
with Licensee's use of the Software according to the Implementation
Services Agreement executed on or about the date of this Agreement.


2.3 SUPPORT AND MAINTENANCE


Licensor shall provide Licensee with technical support in connection with
Licensee's use of the Software according to the Maintenance and Support
Agreement executed on or about the date of this Agreement.


3. GRANT OF LICENSE


3.1 GRANT


Subject to the terms and conditions set forth in this Agreement, Licensor
hereby grants to Licensee, and Licensee accepts, a nonexclusive,
royalty-bearing, nontransferable, perpetual license in the Software, to use
and reproduce the Software exclusively for the Intended Use on the
Authorized Platform and to use the Documentation solely in connection with
Licensee's use of the Software.


3.2 LICENSE RESTRICTIONS


Except as specifically granted in this Agreement, Licensor owns and retains
all right, title, and interest in the Software, Documentation, and any and
all related materials. This Agreement does not transfer ownership rights of
any description in the Software, Documentation, or any related materials to
Licensee or any third party. Licensee shall reproduce, install, and render
the Software operational only on the Authorized Platform and for the
Intended Use. Licensee shall not distribute the Software to any persons or
entities nor shall Licensee sell the Software to any person or make any
other commercial use of the software, provided that, Licensee may allow
access to the Software to other persons and entities for the sole purpose
of facilitating Customer's Intended Use. Licensor shall retain all
copyright and trademark notices on the Software and Documentation and shall
take other necessary steps to protect Licensor's intellectual property
rights.


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4. LICENSE FEES


4.1 LICENSE FEES


In consideration for the License granted to Licensee under this Agreement
the Licensee shall pay Licensor $175,000 (the "License Fee"). Licensee
shall be responsible for all fees, and compliance with terms and conditions
associated with third party software whether such fees are paid directly by
Licensee or indirectly through Licensor. The License Fee shall be due and
payable upon Licensee's acceptance under the Deployment Plan as defined in
the Implementation Services Agreement. Amounts not paid within 10 days of
their due date shall bear interest at the lesser of 1.5% per month or the
highest amount allowed by law.


4.2 TAXES


In addition to other amounts payable under this Agreement, Licensee shall
pay any and all federal, state, municipal, or other taxes, duties, fees, or
withholding currently or subsequently imposed on Licensee's use of the
Software or the payment of the License Fee to Licensor, other than taxes
assessed against Licensor's net income. Such taxes, duties, fees,
withholding, or other charges shall be paid by Licensee or Licensee shall
provide the appropriate authority with evidence of exemption from such tax,
duty, fee, withholding, or charge. If Licensor is required to pay any such
tax, duty, fee, or charge, or to withhold any amount from monies due to
Licensor from Licensee pursuant to this Agreement, Licensee shall promptly
reimburse Licensor any such amounts.


5. TERM AND TERMINATION


5.1 TERM


This Agreement becomes effective on the date first set forth above. Unless
sooner terminated as set forth in Section 5.2, below, the Agreement shall
continue in effect until the expiration of Licensor's rights in the
Software.


5.2 TERMINATION FOR CAUSE


Either party, as applicable, shall have the right, in addition, and without
prejudice to any other rights or remedies, to terminate this Agreement as
follows:


(a) By Licensor, upon 10 days' written notice, if Licensee fails to
pay the amounts due to Licensor pursuant to this Agreement that is not
cured within such 10 days;


(b) By either party, upon 60 days' written notice, if the other party
has committed a material breach of this Agreement, other than failure
to make payments under Section 4, that is not cured within such 60
days; or


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(d) By either party, immediately upon written notice, if (a) all or a
substantial portion of the assets of the other party are transferred
to an assignee for the benefit of creditors, to a receiver, or to a
trustee in bankruptcy, (b) a proceeding is commenced by or against the
other party for relief under bankruptcy or similar laws and such
proceeding is not dismissed within 60 days, or (c) the other party is
adjudged bankrupt.


5.3 RIGHTS ON TERMINATION


Licensor has and reserves all rights and remedies that it has by operation
of law or otherwise to enjoin the unlawful or unauthorized use of Software
or Documentation. On termination, (a) all rights granted to Licensee under
this Agreement cease and Licensee will promptly cease all use and
reproduction of the Software and Documentation and (b) Licensee will
promptly return all copies of the Software to Licensor or destroy all of
Licensee's copies of the Software and so certify to Licensor in writing
within fourteen (14) days of termination. Sections 4.1, 6, 7, and 8 will
survive termination or expiration of this Agreement as will any cause of
action or claim of either party, whether in law or in equity, arising out
of any breach or default.


6. WARRANTIES, DISCLAIMER AND LIMITATIONS


6.1 WARRANTIES


Licensor hereby warrants to Licensee that (a) Licensor is the owner of the
Software and the Documentation or has the right to grant to Licensee the
license to use the Software and Documentation in the manner and for the
purposes set forth in this Agreement without violating any rights of a
third party, (b) that the software is free from material deviations fro ...