Signature plus Software License Agreement

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SIGNATURE PLUS SOFTWARE LICENSE AGREEMENT ("AGREEMENT")





This Agreement is made effective this 18th day of December, 1998 by and between FirePond, Inc., a Minnesota corporation with offices at 1983 Premier Drive, Mankato, Minnesota, 56001, ("FirePond"), and BCBSM, Inc., dba Blue Cross and Blue Shield of Minneso ta, a corporation having a place of business at 3535 Blue Cross Road, St. Paul, Minnesota 55122, ("Licensee").



Whereas FirePond desires to grant Licensee and Licensee desires to accept from FirePond, a license to use Signature Plus Software and the Signatu re Plus ToolKit upon the terms and conditions hereinafter set forth. NOW, THEREFORE, FirePond and Licensee agree as follows:



1. DEFINITIONS



1.1. "Attachment(s)" means any writing that is specifically identified as

attached to this Agreement and forming part of this Agreement and is signed

by authorized representatives of both parties.



1.2. "Documentation" means FirePond's standard documentation, which is

delivered to Licensee under this Agreement, including FirePond's standard

manuals, functional specifications, minimum hardware configuration required

and third party software required.



1.3. "Proprietary Information" means (i) with respect to FirePond, the

Software, Tools and Documentation and any complete or partial copies thereof,

the concepts, techniques, ideas and know-how in such programs, any

third-party software licensed with or as part of the Software or Tools,

benchmark results, and any other information identified or reasonably

identifiable as confidential and proprietary information of FirePond or their

licensors ("FirePond Proprietary Information"); and (ii) with respect to

Licensee, information identified or reasonably identifiable as the

confidential and proprietary information of Licensee ("Licensee Proprietary

Information"), provided that, any part of the FirePond or Licensee

Proprietary Information which: (a) is or becomes publicly available through

no act or failure of the other party; or (b) was or is rightfully acquired by

the other party from a source other than the disclosing party prior to

receipt from the disclosing party; or (c) becomes independently available to

the other party as a matter of right, shall be excluded.



1.4. "Software" means all Signature Plus software including Signature Plus

Sales (for laptops and/or desktops), Signature Plus Web (available via the

Internet), and EBridge identified in the Documentation in machine-readable

form licensed to Licensee hereunder, including all corrections,

modifications, enhancements and updates to the Software.



1.5. "Tools" means the Signature Plus ToolKit software identified in the

Documentation in machine-readable form licensed to Licensee hereunder,

including all corrections, modifications, enhancements and updates to the



1.6. "Use" means to load, execute, employ, utilize, store, or display the

Software for the limited purpose of helping Licensee salespeople and

customers learn about, sell and/or buy products or services manufactured,

distributed or sold by Licensee and to load, execute, employ, utilize, store,

or display Tools for the limited purpose of supporting the Software and to

maintain, distribute and synchronize Licensee's data to be used in the



1.7. "Licensee" means those entities set forth in an Attachment "Licensee."



2. GRANT OF LICENSE





2.1. Subject to the terms and conditions of this Agreement FirePond grants

and Licensee accepts a non-exclusive, non-transferable license with rights to

Use the Software, Documentation and other FirePond Proprietary Information

provided by FirePond to Licensee and to sublicense the Software to the number

of individuals identified in an Attachment who are authorized to Use the

Signature Plus Sales version of the Software ("Named Users") and to allow

access to the Software to the number of individuals identified in an

Attachment [See Note] as allowed access to the Signature Plus Web version of

the Software ("Concurrent Users"). In order to sublicense the Software to

Named Users, Licensee shall have in effect with such Named Users agreements

sufficient to obligate such Named Users to terms substantially similar to the

terms of Exhibit A. Licensee may transfer the Software from one Named User to

another Named User provided the Software is promptly deleted by the Named

User no longer using the Software and provided Licensee shall notify FirePond

quarterly of such transfers.





2.2. Subject to the terms and conditions of this Agreement FirePond grants

and Licensee accepts a non-exclusive, non-transferable license with rights to

Use the Tools at the sites identified in the Signature Plus License Fee

Attachment ("Designated Site(s)"). Licensee may use the Tools on as many

single computer stations as needed at the Designated Site. Licensee may

transfer the Tools from one Designated Site to another Designated Site upon

prior written notice to FirePond. The Tools must be promptly deleted in their

entirety from the Designated Site no longer in use. Licensee may use a

third-party certified by FirePond to Use the Tools on behalf of Licensee.



2.3. Licensee shall maintain accurate records of all Named Users. Upon

FirePond's request, Licensee shall provide FirePond with a copy of such

records and executed agreements. In addition, FirePond shall have the right

to inspect such records for compliance with the terms of this Agreement no

more frequently than annually, during Licensee's normal business hours and

upon reasonable advance notice. Licensee shall cooperate with FirePond to

ensure that each Named User upholds the requirements imposed upon them

through this Agreement or the agreement set forth in Exhibit A and will take

reasonable steps to ensure that such Named Users comply with such terms and

conditions. Licensee shall not be required to track Concurrent Users.

Licensee agrees to notify FirePond immediately after gaining knowledge of the

possession, use, disclosure or reproduction of Software or Tools by any

person or other party not authorized to have the benefit of such possession,

use, disclosure, or reproduction and to cooperate with FirePond and its

representatives in any investigation of and litigation against such

unauthorized use.



2.4. Licensee may make one copy of the Software and Tools for archival

purposes. Licensee may reproduce or copy any portion of the Documentation

into machine-readable or printed form for its internal use and for

distribution to Named Users. Licensee shall not remove any proprietary,

copyright, trademark, or service mark legend from the Software, Tools,

Documentation or FirePond Proprietary Information and shall include such

legends on any complete or partial copies of the Software, Tools,

Documentation or FirePond Proprietary Information.



3. FEES AND PAYMENT TERMS



3.1. In consideration of the licenses granted hereunder, Licensee shall pay

to FirePond license fees for the Software and Tools as set forth in

Attachments. The amount of license fees shall be calculated based on the

total number of Named Users for the Software, the total number of Concurrent

Users accessing the Software, and the number of Designated Sites for Tools.

As set forth in an Attachment, fees for Maintenance Services shall be paid

annually in advance in an amount calculated as a percentage of the License

Fees. FirePond and Licensee shall agree to any other services under a

separate Services Agreement.



3.2. Travel expenses and incidental expenses of FirePond shall be billed in

accordance with the current Blue Cross and Blue Shield of Minnesota Per Diem

Expense Allowance for Consultants Policy, a current copy of which is attached

hereto as Attachment A. FirePond shall bill such fees and expenses monthly.



3.3. Invoices are payable in full upon receipt of invoice. If the payment of

such invoice(s) is subject to a good faith dispute between the parties, the

project managers at FirePond and Licensee shall use their best efforts to

expeditiously resolve the dispute. If the project managers are unable to

resolve the dispute within fifteen (15) days, it shall be referred to a

FirePond executive or his/her designee and a Licensee executive or his/her

designee for mutual resolution. If the dispute is not resolved at the

executive level within fifteen





[Note: This License Agreement is an enterprise license, accordingly there is

no attachment identifying the number of individuals allowed access to the

software to this agreement.]









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(15) days, FirePond shall have the right to bring suit on an open account.

All payments are to be made in U.S. dollars. Licensee shall pay a one and one

half percent penalty per month retroactive to the invoice date for payment(s)

received after thirty (30) days.



4. PROPRIETARY RIGHTS



4.1. Licensee acknowledges ownership of and title in and to all intellectual

property rights, including patent, trademark, service mark, copyright, and

trade secret rights, in the FirePond Proprietary Information are and shall

remain in FirePond and its respective licensors.



4.2. Except as permitted in this Agreement, Licensee shall not copy,

translate, disassemble, or decompile, nor create or attempt to create, by

reverse engineering or otherwise the source code from the object code of the

Software or Tools licensed hereunder or use it to create a derivative work,

unless authorized in writing by FirePond.



4.3. In order to protect the rights of FirePond and Licensee in their

respective Proprietary Information, FirePond and Licensee agree as follows:



4.3.1. Neither party shall, without the other party's prior written consent,

disclose, provide or make available any of the Proprietary Information of the

other party in any form to any person, except to bona fide employees,

officers, directors, or consultants or such party whose access is necessary

to enable such party to exercise its rights hereunder. Each party agrees that

prior to disclosing any Proprietary Information of the other party to any

consultant, it will obtain from that consultant a written acknowledgement

that such consultant will be bound by the same terms as specified in this

Section 4.



4.3.2. Licensee and FirePond acknowledge that any disclosure to third parties

of Proprietary Information may cause immediate and irreparable harm to the

owner of the disclosed Proprietary Information; therefore, each party agrees

to take all reasonable steps and the same protective precautions to protect

the Proprietary Information from disclosure to third parties as with its own

proprietary and confidential information.



4.4. Upon any termination hereunder, Licensee shall immediately cease Use of

the Software, Tools, Documentation and other FirePond Proprietary Information

and shall irretrievably delete and/or remove such items from all machines and

media and return such Software, Tools, Documentation and Proprietary

Information to FirePond within 30 days. Within 30 days after any termination,

FirePond shall return the Licensee Proprietary Information to Licensee.



5. MAINTENANCE SERVICES



Following expiration of the warranty period as defined in Section 7, Licensee

shall purchase and FirePond shall provide Licensee the maintenance services

identified in an Attachment.



6. INDEMNIFICATION



6.1. Subject to Section 6.2, if one party promptly notifies the other party

in writing of a third-party claim against it, the other party shall indemnify

the notifying party against all claims, liabilities, and costs, including

reasonable attorneys' fees reasonably incurred in the defense of any claim

brought against the notifying party by third parties alleging that the

notifying party's Use of the Software, Tools and Documentation or data or

other information supplied by the other party infringes or misappropriates:

(i) any United States patent; or (ii) a United States copyright; or (iii)

trade secret rights, provided that, the notifying party promptly notifies the

other party in writing of any such claim and the other party is permitted to

control fully the defense and any settlement of such claim. The notifying

party shall cooperate fully in the defense and may appear, at its own

expense, through counsel reasonably acceptable to the other party. The other

party may, in its sole discretion, settle any such claim on a basis requiring

FirePond to substitute for the Software, Tools and Documentation alternative

substantially equivalent non-infringing programs and supporting

documentation. The other party alone shall be responsible for taking such

actions which it determines are reasonably necessary or desirable in its sole

discretion in connection with any infringement or alleged infringement by a

third party of any portion of the Software, Tools and Documentation, provided

that should the software, Tools, or Documentation as delivered by licensee

become the subject of an infringement claim: Firepond at its sold expense

either (i) procure for licensee the right to continue to use the Software,

Tools, and Documentation as contemplated hereunder, or (ii) modify the

Software, Tools, or Documentation to eliminate any infringement claim,

provided that the Software and Tools' performance must remain the same as

provided for in the specifications, or (iii) replace the Software and Tools

with an equally suitable, compatible, and functionally equivalent

non-infringing product at no additional charge to licensee. If none of these

options are reasonably available to Firepond after executing its best efforts

to implement such options, then Firepond shall accept return of the Software,

Tools, and Documentation at Firepond's sole cost and expense and FirePond

shall pay to Licensee up to $3,500,000 as liquidated damages, as amortized

over five year useful life measured from the date of delivery..



6.2. FirePond makes no representation with respect to the possibility of

infringement if the claim of infringement is caused by: (1) Licensee's, Named

User's or Concurrent User's misuse or modification of Software, Tools and/or

Documentation; (2) Licensee's, Named User's or Concurrent User's failure to

use corrections or enhancements made available by FirePond; (3) Licensee's,

Named User's or Concurrent User's use of Software, Tools and/or Documentation

in combination with any product or information not owned or developed by

FirePond; or (4) Licensee's distribution, marketing or use for the benefit of

third parties other than Named Users or Concurrent Users of Software, Tools

and/or Documentation or distribution, marketing or use for the benefit of

third parties.



6.3. THE PROVISIONS OF THIS SECTION 6 STATE THE SOLE, EXCLUSIVE, AND ENTIRE

LIABILITY OF FIREPOND AND ITS LICENSORS TO LICENSEE AND LICENSEE'S SOLE

REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY



7. WARRANTY



7.1. FirePond warrants that the Software and Tools will as delivered

materially conform to the functional specifications contained in the

Documentation and Exhibit B-2 ("Small Group Track") for 90 days following

execution of this Agreement. Services to be provided by FirePond during the

warranty period are those maintenance services identified in Section 5.

FirePond also warrants that the Software and Tools as delivered will be

materially free of all viruses, bombs and other self enacting devices that

could impair the functionality of the Software or Tools.



7.2. Should any component of the Software or Tools fail to conform materially

to the functional specifications therefore during the warranty period,

FirePond's sole obligation shall be, at FirePond's option, to correct the

defect by bringing the performance of the Software or Tools into material

compliance with the functional specifications or to replace the defective





FirePond shall use reasonable commercial efforts to correct the defect by

bringing the performance of the Software into material compliance with the

functional specifications or to replace the defective component within thirty

(30) days or such longer period as is reasonable in the circumstances where

FirePond proceeds with all due diligence to cure such defect. In the event

FirePond is unable to correct or replace such defect within the stated time

period, Licensee shall refund the then present value of such Software to

Licensee, as amortized over a five (5) year useful life measured from the

date of delivery.





7.3. FirePond does not warrant that the Software or Tools will operate

uninterrupted nor that they will be free from minor defects or errors which

do not materially affect such performance nor that the applications contained

in the Software or Tools are designed to meet all Licensee's or Named Users'

or Concurrent Users' business requirements. FirePond makes no representation

or warranty as to the third-party software identified in the Documentation as

required to operate the Software or Tools.



7.4. FirePond represents and warrants to Licensee that: (i) the Software and

Tools shall, as delivered: (a) operate correctly and consistently with dates

and times before, during, and after the year 2000, and date and time ranges

before, spanning, and after 0:00 hours on January 1, 2000, and in a









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manner identical to that in which the Software and Tools operate with dates,

times and date and time ranges prior to the year 2000; (b) utilize data

structures (databases, data files, etc.) which accommodate and provide

4-digit date century recognition; (c) operate in a manner which treats the

year 2000 as the year immediately following the year 1999 to 2000 without

material functional or data abnormality; and (d) manage and manipulate data

involving the transition of dates from 1999 to 2000 without material

functional or data abnormality; (ii) the Software and Tools as delivered will

lose no material functionality with respect to the introduction of record

containing dates falling on or after January 1, 2000 provided that all

products (for example, hardware and software) used with the Software and

Tools properly exchange accurate date data with the Software and Tools. The

representations and warranties provided herein shall not be limited to, and

shall survive for so long as maintenance services are purchased. FirePond

shall be responsible for and shall indemnify Licensee from and against all

losses and damages of any kind or nature incurred by Licensee up to the

amount of license fees paid hereunder as a result of any breach of the

foregoing representations and warranties.



7.5. FIREPOND DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING

WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR

A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW

CANNOT BE VALIDLY WAIVED.



8. LIMITATION OF LIABILITY



8.1. Subject to the limited warranty set forth in Section 7, Licensee's sole

and exclusive remedies for any damages or loss in any way connected with the

Software or Tools or services furnished by FirePond, whether due to

FirePond's negligence or breach of any other duty, shall be, at FirePond's

option: (i) replacement of the Software or Tools or performance of services;

or (ii) return or credit of an appropriate portion of any payment made or to

be made by Licensee with respect to the applicable portion of the Software or

Tools or services. The foregoing limitation of liability does not apply to

infringement of the property rights referred to in Section 6, or to personal

injury or death caused solely by the gross negligence or willful misconduct

of FirePond. With respect to damage to tangible property, FirePond will not

be responsible in any amount in excess of the amount by which such damage is

paid by FirePond's liability insurance.



8.2. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO CIR-CUMSTANCES

SHALL FIREPOND AND ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR

ENTITY FOR SPECIAL, INCIDENTAL, CON-SEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF

GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR

MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR

PUNITIVE DAMAGES UNLESS SUCH DAMAGES OR LOSSES ARE DUE TO THE WILLFUL

MISCONDUCT OF FIREPOND.



9. EFFECTIVE DATE, TERM AND TERMINATION



9.1. This Agreement shall become effective upon execution by both parties and

shall continue in effect unless the Agreement is terminated under the terms

of Section 9.2 below.



9.2. This Agreement and the license granted hereunder shall terminate upon

the earliest to occur of the following: (i) thirty days after Licensee gives

FirePond written notice of Licensee's desire to terminate this Agreement, for

any reason, but only after payment of all License and Maintenance Fees then

due and owing; (ii) thirty days after FirePond gives Licensee notice of

Licensee's material breach of any provision of the Agreement (other than

Licensee's breach of its obligations under Section 4 (Proprietary Rights ) or

Section 11 (Assignment), which breach shall result in immediate termination),

including more than thirty days delinquency in Licensee's payment of any

money due hereunder, unless Licensee has cured such breach during such thirty

day period; (iii) immediately if Licensee or FirePond files a petition for

bankruptcy or insolvency, has an involuntary petition filed against it,

commences an action providing for relief under bankruptcy laws, files for the

appointment of a receiver, or is adjudicated a bankrupt concern.



9.3. In the event of any termination hereunder, Licensee shall not be

entitled to any refund of any payments made by Licensee except as otherwise

provided in this Agreement.



9.4. The following sections of this Agreement survive expiration or

termination of this Agreement: Section 4 (Proprietary Rights), Section 6

(Indemnification), Section 7.4 (Warranty Disclaimer), Section 8 (Limitation

of Liability), Section 11.7 (Governing Law), and Section 13 (Export Control).



10. ASSIGNMENT



Licensee may not, without FirePond's prior written consent, assign, delegate,

sublicense, pledge, or otherwise transfer this Agreement, or any of its

rights or obligations under this Agreement, or the Software, Tools or

Documentation, to any party, except as set forth herein. Any permitted

assignment of this Agreement shall provide that the provisions of this

Agreement shall continue in full force and effect and that Licensee shall

guaranty the performance of its assignee and shall remain liable for all

obligations hereunder.



11. GENERAL



11.1. Force Majeure. Neither FirePond nor Licensee shall be deemed to be in

default of any provision of this Agreement for any failure in performance

resulting from acts or events beyond the reasonable control of FirePond or



11.2. No Waiver. If either party should waive any breach of any provision of

this Agreement, it shall not thereby be deemed to have waived any preceding

or succeeding breach of the same or any other provision hereof.



11.3. Severability. If any provision of this Agreement is held to be

unenforceable, this Agreement shall be construed without such provision.



11.4. Agreement Binding/Entire Agreement. This Agreement shall be binding

upon and inure to the benefit of the parties hereto and their respective

successors and permitted assigns. This Agreement and each Attachment hereto

constitute the complete and exclusive statement of the agreement between

FirePond and Licensee, and all previous representations, discussions, and

writings are merged in, and superseded by, this Agreement. This Agreement may

be modified only by a writing signed by both parties. This Agreement and each

Attachment hereto shall prevail over any additional, conflicting, or

inconsistent terms and conditions which may appear on any purchase order or

other document furnished by Licensee to FirePond.



11.5. Rights to Injunctive Relief. Both parties acknowledge that remedies at

law may be inadequate to provide FirePond or Licensee with full compensation

in the event of Licensee's material breach of Sections 2 (Grant of License),
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