Exhibit 10.3
01A4-0199-102
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License Number
WORK MANAGEMENT SOLUTIONS, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
PROPRIETARY SOFTWARE LICENSE AGREEMENT
for Account4(TM) Work Management System
Subject to the provisions contained herein. Work Management Solutions. Inc.
("Work Management Solutions") hereby grants to ▇▇▇▇▇ Inc. ("Customer") a
non-exclusive license to use the proprietary computer software products
("Licensed Program") and materials ("Licensed Materials") specified below.
SOFTWARE
Work Management Solutions will furnish one (1) copy of the Licensed Program to
Customer in machine-readable object code form and provide one (1) copy of the
Licensed Materials to Customer containing detailed specifications for the
operation and use of the Licensed Program.
PRODUCT LICENSE AND SERVICE FEES
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Software License Fee [***]
(See Schedule 1, Section A)
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Professional Services Fee [***]
(See Schedule 1, Section B
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Software Maintenance Fee [***]
-----------
(See Schedule 1. Section C)
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Total Fees Due & Payable [***]
===========
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PROPRIETARY SOFTWARE LICENSE AGREEMENT
*** Certain information on this page has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portions.
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
CUSTOMER INFORMATION
Customer Name: ▇▇▇▇▇ Inc.
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Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Telephone Number:
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Customer's Designated Site
Designated Site: ▇▇▇▇▇, Inc.
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Corporate IT Dept.
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Mystic Center
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Address: ▇▇ ▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Billing Address: Same
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇
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Shipping Address:
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(If different from above)
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Telephone:
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PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
TERMS AND CONDITIONS
1. LICENSE. Work Management Solutions, Inc. hereby grants to Customer a
non-exclusive, non-transferable license (the "License") to use the Licensed
Program and Licensed Materials on the Designated Site, identified on Page 2 of
this Agreement, subject to the terms and conditions contained herein. The term
of this license is perpetual, commencing upon acceptance of this Agreement by
Work Management Solutions.
This Agreement, the Licensed Program and Licensed Materials to which it applies,
may not be assigned, sub licensed, or transferred by the Customer without prior
written consent from Work Management Solutions which will not be unreasonably
withheld nor delayed.
2. USE. Work Management Solutions shall be responsible for the delivery of the
Licensed Program(s) together with the documentation. The Customer shall be
exclusively responsible for the supervision, management and control of its use
of the Licensed Program(s), including without limitation; (i) assuring proper
machine configurations, audit controls and operating methods: (ii) establishing
adequate backup plans, based on alternative procedures and access to qualified
programming personnel; and (iii) implementing sufficient recovery procedures and
checkpoints to satisfy its requirements for security and accuracy of input, as
well as, system restart and recovery in the event of a malfunction.
The Licensed Program and Licensed Materials may be used only in the furtherance
of the internal operations of the Customer or its wholly owned or majority owned
subsidiaries. In no event shall the Licensed Program be used to process
information by or for the benefit of third parties.
The Customer may, from time to time, change the Designated Site and/or the
location thereof to any computer site of the Customer or a subsidiary, provided
that in each case the Customer gives timely written notice thereof to Work
Management Solutions. During the term of this Agreement, and at any given time,
the Customer is authorized to use the Licensed Program on only one (1) of the
Customer's computers or on a cluster of computers; the Customer may license
additional copies of the Licensed Program pursuant to the then current Work
Management Solutions multiple installation pricing policy.
The Customer may not copy or otherwise reproduce the Licensed Program, or any
part thereof (except such copying, strictly limited in number, as is essential
for system backup, testing, maintenance or recovery purposes). The Customer may
reproduce the Licensed Materials solely for its own internal use provided that
all titles, trademarks, trade names, copyright notices, and other proprietary
notices of Work Management Solutions, Inc. are retained.
3. CONFIDENTIALITY. The ideas and the expressions hereof contained in the
Licensed Program and Licensed Materials are confidential, proprietary
information and trade secrets that the Customer will receive in confidence. The
Customer shall not in any manner or form disclose, provide or otherwise make
available, in whole or in part, any Licensed Program and/or Licensed Materials
to any third parties except for Customer's employees and consultants who are
bound by appropriate non-disclosures. The obligations expressed within this
Section 3 shall survive termination of this Agreement.
The Parties acknowledge and agree that all Parties' information that is marked
"Confidential", except as specified below, that comes to be known by reason of
work under this Agreement, is confidential to each Party and will not be
disclosed to unauthorized third parties. The Parties will use the same standard
of care, and will bind their employees, agents or representatives to such
standard, to prevent disclosure of such confidential information as each uses to
protect its own confidential information and trade secrets. Information received
by either Party under this Agreement will not be considered confidential if the
information: (a) is not marked "Confidential"; (b) is known to the other Party
or is in the other Party's possession at the time of executing this Agreement;
(c) is in the public domain at the time of disclosure; (d) is independently
developed by the other Party; or (e) is disclosed to the other Party by a third
party with written approval of the first Party.
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
The obligations expressed within this Section 3 shall survive termination of
this Agreement.
4. WARRANTIES. Work Management Solutions warrants that (i) it may lawfully grant
the License, (ii) neither the Licensed Program or Licensed Materials, or the use
thereof within the scope of the License, infringes a patent or copyright or is
claimed to be a trade secret of any person who has not consented to the granting
of the License, (iii) at the time of installation, and for so long thereafter as
Customer pays Maintenance Fees hereunder, the Licensed Program, will conform to
applicable printed documentation (i.e., all Licensed Materials, including User
Guides and Reference Manuals) delivered by Work Management Solutions to the
Customer; (iv) neither the Licensed Program nor the Licensed Materials contain
any virus, time bomb mechanism or other software or code that can disable or
adversely affect any and all of the Licensed Program or the Licensed Materials
or destroy any data or other software; and (v) both the Licensed Program and the
Licensed Materials are Year 2000 Compliant. THE FOREGOING WARRANTY IS IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE. No employee or agent of Work Management Solutions is authorized to give
a greater or different warranty.
5. INDEMNIFICATION. Work Management Solutions, at its own expense, will defend
and indemnify against any action brought against the Customer based on a claim
that any Licensed Program infringed a United States patent, copyright or
trademark provided that (i) Work Management Solutions shall be notified promptly
in writing by the Customer of any notice of such claim; (ii) Work Management
Solutions shall have the sole control of the defense of any action on such claim
and all negotiations for its settlement or compromise; and (iii) the Customer
shall permit Work Management Solutions, at Work Management Solutions' option and
expense, either to procure for the Customer the right to continue using the
Licensed Program or modify the Licensed Program so that it becomes
non-infringing.
6. LIABILITY. Except as provided for in Section 5 above, Work Management
Solutions' liability for damages to the Customer for any cause whatsoever, and
regardless of the form of action, shall be limited to the License Fees paid by
the Customer hereunder with respect to the affected Licensed Program. In no
event will Work Management Solutions be liable for any lost profits, goodwill,
or other consequential, special or indirect damages suffered by the Customer in
connection with or arising from the performance of the Licensed Program, even if
Work Management Solutions has been advised of the possibility of such damages.
or for any claim against the Customer by any other party.
7. MAINTENANCE PLAN. Upon due and punctual payment of the applicable Maintenance
Fees, the Customer shall receive:
New Releases: From time to time Work Management Solutions may issue modified or
enhanced versions of the Licensed Program, herein referred to as a "New
Release", and will provide the Customer with one (1) complete copy of such New
Release and one (1) copy of the documentation updates. Following shipment of the
New Release materials, the previous release shall remain "current". for purposes
hereof, for a period of six (6) months: thereafter only the New Release will be
current. New Releases will only be issued to Customers who have a current
Maintenance Plan in effect. Work Management Solutions shall have no obligation
hereunder to furnish the Customer with separately priced components to a
Licensed Program or Licensed Materials except as explicitly described in this
License Agreement, unless Customer has entered into an additional License
Agreement for such separately priced components. Work Management Solutions shall
continue to provide maintenance to the Licensed Program so long as it continues
to make the Licensed Program commercially available.
Service: Upon receipt of telephone or written notice(s) from the Customer
specifying failures or errors found in a Licensed Program, and upon receipt of
such additional information as Work Management Solutions may request, Work
Management Solutions will act in an expeditious manner to correct defects in the
current release of such Licensed Program, as long as it has not been
substantially altered by Customer. Work Management Solutions will provide Hot
Line Support services during normal business hours. Monday through Friday (8:30
AM - 5:30 PM, Eastern Time). Work Management Solutions is not obligated to
perform investigation and/or correction of defects found by Work Management
Solutions to be (i) in other than a current release which has not been
substantially altered by the Customer.
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
or (ii) caused by negligence or modification of the Licensed Program or use
thereof in combination with software not provided by Work Management Solutions.
The Maintenance Plan shall be automatically renewed on an annual basis and the
Customer shall pay therefore according to the then current Maintenance Fee,
unless the Customer elects to cancel the annual renewal of the Maintenance Plan,
effective upon any anniversary date of the commencement of the Maintenance Plan,
by providing written notice to Work Management Solutions no less than thirty
(30) days prior to such anniversary date. Work Management Solutions shall
deliver to Customer an invoice no less than sixty (60) days prior to such
anniversary date. Such invoice shall be due and payable within 60 days. Customer
may elect at the execution of this Agreement, or upon any anniversary date
hereof, to purchase a Multi-Year Maintenance Plan by paying in advance to Work
Management Solutions maintenance fees for two or more years and receiving a
maintenance prepayment discount.
Maintenance Fees payable under this Section shall be established by Work
Management Solutions in its sole discretion. Notwithstanding the above, for the
first three years after contract execution, the annual Maintenance Fees shall
not be increased. For years thereafter, any Maintenance Fee increases shall be
limited to the percent change in the U.S. Department of Labor Consumer Price
Index for the calendar year prior to the renewal date of the Maintenance Plan.
8. PAYMENT. All Product License and Services Fees outlined on Page 1 of this
Agreement are due and payable as described in Schedule 1, Section D ("Payment
Terms"). All other fees and charges hereunder are due and payable in full upon
receipt of Work Management Solutions invoice by Customer. There shall be added
to all charges hereunder (i) all reasonable shipping, handling, travel and other
reasonable out-of-packet expenses incurred by Work Management Solutions in
connection with this Agreement or its performance; and (ii) amounts equal to any
taxes paid or payable by Work Management Solutions, however designated, levied,
or based on this Agreement, or on any Licensed Program or Licensed Materials,
its charges or its use, including without limitation, any value-added, royalty,
federal, state or local sales, use, and property taxes, and any taxes or amounts
in lieu thereof, exclusive, however, of taxes based on the net income of Work
Management Solutions. Customer will be charged interest at the rate of one and
one-half percent (1-1/2%) per month on all sums hereunder which remain unpaid
thirty (30) days after due, with such interest to commence on the due date.
9. GENERAL. The Customer acknowledges that he has read this Agreement,
understands it and agrees to be bound by all terms and conditions hereof. All
subsequent modifications, amendments, and waivers to this Agreement must be by
written instrument, executed by authorized representatives of the parties
hereto. In the event that any provision under this Agreement shall be deemed
illegal or otherwise unenforceable by any applicable statute or rule of law,
such provision shall be omitted and the entire Agreement shall not fail on
account thereof and the remainder of the Agreement shall continue in full force
and effect. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any other breach of any other provision hereof. Work
Management Solutions shall not be liable for delay or failure to perform its
obligations herein set forth if such delay or failure is due to any cause or
condition beyond its reasonable control. This Agreement shall be binding upon
and inure to the benefit of any successor of the Customer, who, whether by
merger, purchase, or otherwise, acquires all or substantially all of the assets
or business of the Customer.
Both parties agree that neither party shall solicit or hire the other party's
employees involved directly in the relationship established by this Agreement as
an employee or as a consultant in the same geographical region. This provision
shall remain in effect until one (1) year has passed since the date the last
services were provided by Work Management Solutions to Customer. Both parties
recognize that their employees are valuable resources whose loss may be damaging
to their respective businesses, and therefore, violation of this restriction
shall result in the violating party making an immediate restitution payment of
$250,000 to the other, payable within 30 days of the start date of the hired
employee or consultant.
All notices and other communications hereunder shall be by written instrument
and shall be deemed given upon certified mailing with return receipt, addressed
to the party to be notified at the address set forth on Page 2 of this
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
Agreement, or, if to Work Management Solutions, addressed to Chief Financial
Officer, Work Management Solutions, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
This Agreement is governed and construed by the laws of the Commonwealth of
Massachusetts.
This Agreement, including all Addenda, attached hereto, represents the complete
and exclusive statement of the agreements between the parties and supersedes all
prior agreements and representations between them. In the event of conflict
between general Terms and Conditions, Schedule 1 and the Addenda, the following
order of precedence shall apply: Schedule 1, Addenda. Terms and Conditions. This
Agreement is binding upon the parties upon execution by Customer and acceptance
by Work Management Solutions.
Accepted By:
▇▇▇▇▇ INC. WORK MANAGEMENT SOLUTIONS, INC.
----------------------------- ------------------------------------
By: By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ------------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇ ▇. ▇▇▇▇▇, President
----------------------------- ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Name and Title)
Vice President, Finance
2/19/99 2/22/99
----------------------------- ------------------------------------
(Date) (Date)
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
SCHEDULE 1
▇▇▇▇▇ Inc.
Account4 Work Management System
Product Pricing, Configuration and Service Schedule
A. Licensed Program(s): License Fee
-------------------- -----------
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Account4 Work Management Software System
Application: Professional Services [***]
Database: Oracle
Licensed number of Users: Unlimited
-----------------------------------------------------------------------------
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Total License Fees (after all applicable discounts): [***]
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Note that the Customer is fully responsible for providing the relational
database management software and other third party software and systems
required for the operation of the Account4 Work Management System.
B. Professional Services:
No Professional Services are purchased by Customer at this time.
C. Software Maintenance Fee:
Customer hereby purchases, as part of this Agreement, a Software
Maintenance Plan, commencing upon delivery of the Licensed Program to
Customer and extending for a term of one (1) year. Customer will pay a
software maintenance fee equal to [***] for this Software Maintenance
Plan.
D. Payment Terms:
Fifty Percent (50%) of all Software License and Software Maintenance fees
[***] are due and payable upon contract execution; balance [***] due and
payable thirty (30) days after delivery of the Licensed Program and
Licensed Materials to Customer.
E. License Fee Basis:
Customer acknowledges that the License Fees described herein are based on
the number of users of the Licensed Program. The total number of licensed
users is equal to the number of Active Resource ID's plus the number of
unique User ID's who do not have a Resource ID. Each person who logs into
the Licensed Program must have a unique User ID. The sharing of User ID's
is not permitted under this Agreement. Customer may be asked by Work
Management Solutions to affirm, in writing, the number of users on the
anniversary date of this License or the Maintenance Plan. The license fee
described herein is based on an unlimited number of users.
PROPRIETARY SOFTWARE LICENSE AGREEMENT
*** Certain information on this page has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portions.
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
F. Account4 Editor Use & Restrictions:
Customer shall be limited to the use of the Account4 Editor to the
modification and enhancement of the Licensed Program and Applications as
defined in this schedule. Customer shall not be permitted to develop other
Account4 applications without first obtaining a license for the Account4
Editor and paying all appropriate license and maintenance fees. The
Account4 Editor shall be licensed by amendment to this Agreement if not
included in the original license parameter on Schedule 1, Section A above.
Accepted By:
▇▇▇▇▇ INC. WORK MANAGEMENT SOLUTIONS, INC.
----------------------------- ------------------------------------
By: By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ------------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇ ▇. ▇▇▇▇▇, President
----------------------------- ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Name and Title)
Vice President, Finance
2/19/99 2/22/99
----------------------------- ------------------------------------
(Date) (Date)
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
ADDENDUM 1
ACCOUNT4 SOURCE CODE
ESCROW AGREEMENT
Work Management Solutions warrants that the current Account4 System source code
is on deposit with Data Securities International, Inc., (Escrow Agent) located
at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇,
Account # ▇▇▇▇▇▇▇-00001, and that Customer shall be enrolled as a SAFE
Beneficiary under Work Management Solutions' Deposit Agreement with Data
Securities International.
Upon due and punctual payment by Customer of the applicable Maintenance fees,
Work Management Solutions shall (a) continue its Deposit Agreement with Data
Securities International without interruption and in substantially the same form
as it currently exists, and (b) shall continue Customer as a SAFE Beneficiary
under this Deposit Agreement without interruption.
In the event that Work Management Solutions (i) breaches this Addendum 1; (ii)
discontinues its business of maintaining the Licensed Programs; or (iii) ceases
to do business, Customer shall be entitled to obtain release from escrow of a
copy of the source code escrowed under this provision, subject to the following
conditions:
1. Such source code shall be deemed to be Confidential Information of
Work Management Solutions and shall be subject to the terms and
provisions of the Agreement which govern Confidential Information.
2. Customer shall have a nonexclusive right to use such source code
version for the limited purpose of maintaining the object code
version of the applicable Licensed Programs so that the Licensed
Programs can be used by Customer at the sites authorized by this
Agreement.
PROPRIETARY SOFTWARE LICENSE AGREEMENT
01A4-0199-102
--------------
License Number
WORK MANAGEMENT SOLUTIONS, INC.
ADDENDUM 2
ACCEPTANCE PERIOD
This License may be canceled at any time during the first forty-five (45) days
following installation of the complete Licensed Program (such installation to
occur within thirty (30) days of delivery of the Licensed Program), if the
Licensed Program does not perform as described in the technical documentation
provided as part of the Licensed Materials (i.e. User Guides and Reference
Manuals), or as described in the various marketing materials which may have been
provided to Customer. For the purposes of this Addendum, "installation of the
complete Licensed Program" shall have occurred upon Customer's execution of the
Installation Verification form (to be provided to Customer upon Licensed Program
delivery), and shall not include the installation of any customizations to be
delivered to Customer.
In the event that the Licensed Program shall fail to meet the above cited
conditions and Customer desires to terminate this License, Customer shall
provide Work Management Solutions with written notice of its intent to cancel
("Cancellation Notice"), including explanation of each area of unsatisfactory
performance by the Licensed Program. Work Management Solutions shall have
forty-five (45) days after receipt of said notice in which to cure such
unsatisfactory performance. Failure by Work Management Solutions to effect said
cure within forty-five (45) days after receipt of a Cancellation Notice shall
result in immediate cancellation of this License.
If Customer cancels this License under the provisions of this Addendum, Customer
agrees to pay Work Management Solutions for any training and consulting services
provided prior to cancellation, by Work Management Solutions, at a rate of one
thousand six hundred dollars ($1,600.00) per person per day, plus reasonable and
customary out-of-pocket expenses. These fees shall be the sole financial
responsibility of Customer in the event of cancellation. In the event of
cancellation, Work Management Solutions shall promptly refund all license and
maintenance fees paid by Customer, pursuant to Terms and Conditions Section 8 of
this Agreement, minus fees payable to Work Management Solutions for training and
consulting services rendered, as described in this Addendum.
Acceptance ("Acceptance") shall occur automatically at the close of business on
the forty-fifth day after installation of the Licensed Program or on the
seventy-fifth day after delivery of the Licensed Program, whichever comes first,
in the absence of receipt by Work Management Solutions of any Cancellation
Notice.
PROPRIETARY SOFTWARE LICENSE AGREEMENT