End User License Agreement

PROVANTAGE HEALTH SERVICES, INC.
END USER LICENSE AGREEMENT FOR PROVANTAGE PRODUCTS


This ProVantage Health Services, Inc. End User License Agreement (the "Agreement") is entered into as of this 29th day of January, 2000, by and between ProVantage Health Services, Inc. ("ProVantage"), having its principal place of business at N19 W24130 Riverwood Drive, Waukesha, WI 53188, and ShopKo Stores, Inc., including any subsidiaries and affiliates of ShopKo Stores, Inc. ("End User"), having its principal place of business at 700 Pilgrim Way, Green Bay, WI 54307.


1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
have the definitions provided:


1.1 "Confidential Information" means any information disclosed by one party to the other party marked "confidential" or disclosed under circumstances that would lead a reasonable person to conclude that the information was confidential. Notwithstanding the foregoing, regardless of whether they are marked "confidential" and regardless of the circumstances under which they are disclosed, the following: (1) when disclosed by ProVantage to End User, shall be considered ProVantage's Confidential Information: the Products, User Documentation, inventions, technical specifications, technical know-how, product development plans, program flowcharts, file layouts, educational materials, pricing, marketing plans and customer lists or leads; and (2) when disclosed by End User to ProVantage, shall be considered End User's Confidential Information: DESCRIPTIONS OF SHOPKO'S STRATEGIC PLANS, DESCRIPTIONS OF SHOPKO'S AND OTHER ENTITIES' BUSINESS OPERATIONS, FINANCIAL PERFORMANCE FIGURES, FINANCIAL PROJECTIONS, BUSINESS, CUSTOMERS, COMPUTER SYSTEMS, INVENTORY SYSTEMS, DISTRIBUTION NETWORKS, STRATEGIES, STORE OPERATIONS, BILLING AND RECEIVABLE OPERATIONS, HEALTHCARE INFORMATION INCLUDING CLAIMS, STRATEGIES, SYSTEMS DEVELOPMENT, AND SOFTWARE, TECHNICAL SYSTEMS AND PRODUCT DEVELOPMENT METHODOLOGIES AND STRATEGIES, MARKETING AND OPERATIONAL PROCEDURES AND STRATEGIES, FINANCIAL INFORMATION AND PROJECTIONS, BUSINESS PLANS AND CLIENT LISTS AND OTHER SIMILAR INFORMATION.


1.2 "End User" means any customer that purchases or may purchase one or more Product or Special Product licenses for use in accordance with this End User License Agreement. Typically, the End User will be a corporation or other similar entity.


1.3 "Product(s)" means the designated source, object, script or text form of the software products as listed in Exhibit A on the platforms specified in Exhibit A. ProVantage may add to the Products listed in Exhibit A from time to time.


1.4 "Special Product" means the combination of additional goods or services and any Product as an integrated solution or application as listed in Exhibit B.


1.5 "ProVantage Product License Sales Order Form" shall mean the ProVantage document by which End User orders Product licenses and Technical Support Services. To be effective, the ProVantage Product License Sales Order Form must reference this Agreement and its Effective Date and be signed and dated by both parties.


1.6 "Technical Support Services" shall mean the maintenance and support provided by ProVantage in accordance with ProVantage's then-current technical support policies and procedures for the applicable Product(s).


1.7 "User Documentation" means the ProVantage user manual(s) and other on-line or written materials on the proper installation and use of the Products or Special Products that are normally distributed with the Products.


2. RIGHTS GRANTED AND RESTRICTIONS.


2.1 License Grant. Subject to the Fees payable hereunder, ProVantage hereby grants End-User a non-exclusive, perpetual, non-transferable license to install and use the Product solely for End User's own internal data processing operations, and to use the User Documentation in support of such use of the Product. Use of the Product must be consistent with the type of license grant specified in the ProVantage Product License Sales Order Form. End User shall not use the Product except as specified in this Agreement and the applicable ProVantage Product License Sales Order Form. End User shall assign each Server a unique identification number.


2.2 License Restrictions. The rights granted in Section 2.1 of this Agreement are expressly limited to and restricted by the following:
a. Use of the Product is restricted to designated source, object, script or
text form for End User's own internal purposes.
b. Except as explicitly authorized by this Agreement, End User may not
transfer copy, or duplicate the Product except for temporary transfer in
the event of computer malfunction and duplication as part of End User's
routine back-up procedures. End-User shall have no right to


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PROVANTAGE CONFIDENTIAL AND PROPRIETARY
UNAUTHORIZED USE, DISCLOSURE OR DUPLICATION IS STRICTLY PROHIBITED. 2


manufacture, modify or copy User Documentation unless explicitly set forth
herein.
c. End User may not assign the license to use the Product without the
prior, written consent of ProVantage, which shall not be unreasonably
withheld.
d. End User may not use the Product outside of the scope of this Agreement.
e. End User may not, either directly or through a third party, cause or
permit the reverse engineering, disassembly or decompilation of the
Product.
f. End User may not pass title to the Product.
g. For Product licensed outside the United States, End User must comply
fully with all relevant export laws and regulations of the United States to
ensure that the Product is not exported, directly or indirectly, in
violation of United States law.
h. End User must use a commercially reasonable degree of care to protect
the Confidential Information of ProVantage and prohibit the End User
employees from, directly or indirectly: (1) using any Confidential
Information of ProVantage to create any computer software program or user
documentation that is substantially similar to the Product, or (2) using or
disclosing Confidential Information of ProVantage, except as authorized by
this Agreement.
i. End User must notify ProVantage promptly of any unauthorized use or
disclosure of ProVantage Confidential Information, and provide reasonable
assistance to ProVantage in the investigation and prosecution of any such
unauthorized use or disclosure.
j. End-User shall not, either directly or through a third party, use the
Products, the associated source code, or a derivative thereof, or any
Confidential Information of ProVantage, to create, modify or enhance any
computer software programs or user documentation unless explicitly set
forth herein.
k. End-User shall take all reasonable precautions against unauthorized
disclosure or copying of Product and further exercise commercially
reasonable efforts to ensure the security of the Product.
l. End-User shall not use the Product in a timeshare or service bureau
environment unless explicitly set forth herein.


3. RESERVATION OF RIGHTS AND REMEDIES. ProVantage reserves all rights not expressly granted in this Agreement. Use of the terms "sell," "purchase" and "price" shall not connote transfer of title or ownership.


4. PAYMENT AND PRICING.


4.1 Initial Fees. Upon execution of this Agreement, End-User shall become obligated to pay to ProVantage the license fee(s) for the Product pursuant to the schedule set forth in Exhibit A.


4.2 Change in Support Fees. ProVantage may change the annual fees for Technical Support Services by providing written notice of such change to End User at least sixty (60) days prior to the expiration of the then current annual renewal term; provided that in no event shall the annual fee be increased by more than five percent (5%). End User shall have thirty (30) days after receipt of such notice to terminate the Technical Support Services.


4.3 Payment Terms.
a. All payments by End-User under this Agreement shall be made to
ProVantage in United States dollars and drawn on a United States bank. No
payment is refundable, except as provided herein.
b. Except as expressly provided herein or agreed to in writing by
ProVantage and End-User, payment is due upon receipt by End-User of the
ProVantage invoice, which invoice shall be sent concurrently with Product
shipment. Payment is late if received by ProVantage more than thirty (30)
days after the date of the ProVantage invoice. If payment is late, End-User
shall pay a late fee on the unpaid balance of one and one-half percent
(1.5%) per month or the maximum percentage permitted by law, whichever is
less. End-User agrees to reimburse ProVantage for any and all reasonable
costs incurred by ProVantage in the collection of any fees due under this
Agreement and/or repossession of Product, including reasonable attorneys'
fees.
c. ProVantage's license fees do not include any national, state or local
sales, use, value-added or other taxes, customs duties or similar tariffs
and fees that ProVantage may be required to pay upon delivery of the
Products or upon collection of the license fees or otherwise. Should any
tax, levy or other fees be assessed, End-User agrees to pay such tax or
levy and indemnify ProVantage for any claim for such tax or levy demanded.
End-User shall provide ProVantage with copies of all End-User certificates.


5. ORDER FULFILLMENT AND DELIVERY.


5.1 Placement of Orders. End-User shall submit ProVantage Sales Order Forms to the attention of SALES DEPARTMENT at the address OF PROVANTAGE HEALTH SERVICES, INC., 1499 SIXTH STREET, GREEN BAY, WI, 54304. Each order shall specify the Product, name and address of the End User for whose use Product is being ordered.


5.2 ProVantage Acceptance. All orders for Product by End-User shall be considered accepted unless ProVantage notifies End-User in writing of the reason(s) for non-acceptance of such order within ten (10) business days of receipt of the order. The provisions of End-User's purchase order or other ordering document shall not apply to any order, notwithstanding ProVantage's acknowledgment or acceptance of such order.


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PROVANTAGE CONFIDENTIAL AND PROPRIETARY
UNAUTHORIZED USE, DISCLOSURE OR DUPLICATION IS STRICTLY PROHIBITED. 3 5.3 Shipment. All Products will be shipped by ProVantage in the manner requested by End-User to the End-User's identified facility. End-User shall be responsible for and pay all packing, freight, and insurance charges for any shipments made under this Agreement, which charges ProVantage may require End-User to pay in advance.


5.4 Cancellation. ProVantage reserves the right to cancel any order placed by End-User and accepted by ProVantage as set forth above, or to refuse or delay shipment thereof, if End-User fails to make any payment or other obligations as provided in this Agreement.


6. REPRESENTATIONS AND OBLIGATIONS.


6.1 End-User's Obligations.
a. Compliance with Law. End-User shall comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its undertakings with respect
to the Products and Special Products. End-User acknowledges that all
ProVantage Products and other technical data may be subject to export
controls imposed by the U.S. Export Administration Act of 1979, as amended
(the "Act"), and the applicable regulations. End-User shall not export or
re-export (directly or indirectly) any Products or Special Products without
complying with the Act and the regulations thereunder.
b. Costs and Expenses. Except as expressly provided herein or agreed to in
writing by ProVantage and End-User, End-User shall pay all costs and
expenses incurred in the performance of End-User's obligations under this
Agreement.
c. Product Alteration. End User shall not adopt, alter, create derivative
works based on, modify or translate the Product in whole or in part.


6.2 End-User Covenants. End-User shall: (i) refrain from deceptive, misleading or unethical practices related to the Product; (ii) make no false or misleading representations with regard to the Product; (iii) refrain from publishing or employing, or cooperating in the publication or employment of, any misleading or deceptive advertising material with regard to the Product; and (iv) End User shall not disclose or publish any results of any benchmark tests run of the Product. End-User shall not knowingly take any action in conflict with the terms of this Agreement or its obligations hereunder.


6.3 ProVantage Representations. ProVantage represents and warrants that its hardware, software and firmware utilized in providing services hereunder shall accurately process date data (including without limitation calculating, comparing and sequencing), within, from, into and between centuries (including, but not limited to, the twentieth and twenty-first centuries), including leap year calculation. The hardware, software and firmware will be reviewed to ensure compliance with the foregoing and shall include, without limitation, date data century recognition, calculations that accommodate same century and multi-century formula and date values and date data interface values to reflect the century. In the event that the hardware, software and firmware are unable to process date data within, from, into and between centuries, ProVantage shall repair or replace noncompliant components of its systems at no cost to End-User within a commercially reasonable time period after written notice from End-User to ProVantage. If ProVantage determines, in it sole discretion, that it is unable to repair its systems, End-User shall be entitled to a pro-rata reduction in the Fees based on a 3-year useful life as set forth in Exhibit A, or End-User may terminate this Agreement within ten (10) days of receipt of notice of ProVantage's inability to repair its systems.


7. INTENTIONALLY LEFT BLANK.


8. MAINTENANCE.


8.1 ProVantage's Technical Support Services. ProVantage shall offer renewable, year-long Technical Support Service agreements for the Product while the Product is under license to the End User. The initial technical support period shall begin upon shipment of the Products to End-User and be provided at no charge for the first year. Such Technical Support Services shall be provided in accordance with ProVantage's then-current Technical Support Policies and Procedures. ProVantage's Technical Support Policies and Procedures shall be reflective and consistent with those offered to other customers of ProVantage. End-User shall abide by only those Technical Support Policies and Procedures of which they have been informed. Thereafter, End-User may elect to contract for additional, yearly Technical Support Services.


8.2 Support Services in the Event of Termination. In the case of termination of this Agreement, so long as End-User has pa ...