**Exhibit10.2**

 

**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

**SOFTWARE LICENSE AGREEMENT**

 

**1.****                          INTRODUCTION**

1.1. This agreement (“Agreement”) is entered into as of the date thelast party signs it (“Effective Date”) between Inovaware Corporation(“Vendor”), and VIA NET.WORKS, Inc. (“Customer”), with offices located at H. Walaart Sacrestraat 401-403, 1117 BM Schipol(SCHIPOL OOST), The Netherlands, under which Inovaware Corporation islicensing software on a non-exclusive basis for the Customer’s own use under theterms and conditions stated below.

 

**2.****                          DEFINITIONS**

As used in this Agreement, the following definitionsshall apply:

2.1.                              “ActiveUser” shall mean a customer record with 1 or more active services.

2.2.                              “ApprovedContractor” is a contractor or consultant that has agreed in writing to bebound by the terms of this Agreement.

2.3.                             “AuthorizedUser” is an employee or Approved Contractor of Customer or of any SubsidiaryOrganization.

2.4.                             A“Bug” is defined as a reproducible error or defect in the Program that causes amalfunction or behavior inconsistent with Documentation.

2.5.                             “Documentation”shall mean the user manual(s) and any other materials supplied by Vendor foruse with the Program or with any Update.

2.6.                             “MonthlyLicense Fee” means the monthly fee payable by Customer for the right to use theProgram.

2.7.                             “Program”shall mean the machine-readable object code of the computer software program orprograms described in the Program Description and Price Schedule attached asSchedule A to the Agreement and such additional Updates of such programs thatshall be supplied by Vendor to Customer from time to time together with itsDocumentation.

2.8.                             “Release”shall mean any version of the Program or any materials that are supplied toCustomer by Vendor at or after the delivery of the Program, together withrelated Documentation.

2.9.                             “SoftwareSupport” is defined as any support that requires direct intervention on thepart of the Vendor to resolve problems that arise in and that are directlyrelated to the Program.

2.10.                       A “SoftwareSupport Incident-Hour” is defined as an hour spent by Vendor working on aSoftware Support issue.

2.11.                       A“Subsidiary Organization” is defined as a wholly owned subsidiary of Customerthat has agreed in writing to be bound by the terms of this Agreement.

2.12.                       “Term” isdefined as the duration during which the Customer is authorized to use theProgram in accordance with this Agreement.

2.13.                       “Updates”shall mean all standard updates, upgrades, revisions, and/or fixes provided toCustomer hereunder with respect to the Program.  Updates are generally designated as a “left of dot release” (e.g.5.0, 6.0 are Updates). Updates do not include new modules added to the existingProgram, substantially different versions of the Program or new, separatelymarketed Programs as defined by Vendor in its sole discretion.

 

**3.****                          TERM OFLICENSE**

3.1.                             Vendorhereby grants to Customer, and Customer hereby accepts, a non-exclusive,non-perpetual license to use a single copy of the Program for the Term of thisAgreement, which shall be for an initial Term of thirty-six (36) months fromInitial Acceptance (as defined in Section 6) up to the maximum number of ActiveUsers defined in Schedule A subject to the terms and provisions of thisAgreement unless sooner terminated. After the initial Term has lapsed, Customer and Vendor shall negotiatefor up to six months and in good faith upon new terms during which time theterms and fees outlined in this Agreement shall still apply.  The license to use the Program shallcontinue during this time and terminate thereafter unless a new term ismutually agreed upon in writing prior to the lapse of such six-month periodsubject to the terms and provisions of this Agreement unless sooner terminated.

3.2.                             Vendormay terminate this Agreement without prior written notice at any time theCustomer is in default of this Agreement, such as, but not limited to failureby Customer to make Monthly License Fee when due in accordance with Section16.2 below.

 

**4.****                          SCOPE OFTHE AGREEMENT**

4.1.                             ThisAgreement shall apply to each Program or Update of a Program that Customer iscurrently licensing from Vendor or shall license in the future.

4.2.                             Vendorshall not restrict the number of Authorized Users who may use the Program,though any person or entity that is not an Authorized User may not use theProgram.

4.3.                             TheProgram may be used for Customer’s internal business use and only to processinformation or data of Customer and Subsidiary Organizations.  Customer may not process information or databelonging to other parties and may not rent, lease, sublicense, or loan theProgram.

 

**5.****                          COPIESOF THE PROGRAM**

5.1.                             Vendorshall furnish to Customer one copy of the Program. Customer shall be entitledto make additional copies of the Program and Documentation to the extentnecessary for use of the Program by Authorized Users provided that only onecopy of the database files associated with the Program are in use at any onetime and only one copy of the Program is in use at any one time for purposesother than testing or backup.  Customermay make multiple copies of the Program for backup or testing purposes.Customer shall reproduce and include copyright or trade secret notices on anycopies in the same text and prominence as stated in the copies provided toCustomer and may not alter any proprietary markings on the Program, includingcopyright, trademark, trade secret, and patent legends.

 

**6.****                          ACCEPTANCE**

6.1.                             TheProgram shall be deemed initially accepted ***** calendar days from theEffective Date (“Initial Acceptance”). The date on

 
| Vendor Initials       |   |                                    |   | Customer Initials |   |
|-----------------------|--------|-----------------------------------------|--------|-------------------|--------|
| Confidential Document |   | License-Final-unprotected-Inovaware.doc |

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

which each successive countryuses the Program ***** shall be the incremental acceptance (“IncrementalAcceptance”).  The sooner of *****calendar days from the Effective Date shall be the date of full acceptance(“Acceptance”).  All fees collected,accrued, or due, such as but not limited to Monthly License Fees, training,setup fees, and support fees are nonrefundable upon Initial Acceptance of theProgram.  Customer shall not use Programin a non-testing environment in any country without such country makingIncremental Acceptance.

 

**7.****                          PAYMENTOF PROGRAM LICENSE FEE**

7.1.                             Inconsideration of the Term license granted under this Agreement, Customer shallpay to Vendor the Monthly License Fees outlined in Schedule A.  Monthly License Fees are due monthly and inadvance for any given month.

7.2.                             Customershall be entitled to dispute all License Fee invoices and withhold any LicenseFees due under this Agreement in the case where the Program is in violation ofthe warranty as defined in Section 11 or where the Vendor has breached this Agreementas set forth in Section 16.3.  Customershall notify Vendor of all such disputed amounts prior to their due date ofpayment, at which time the parties shall use all reasonable efforts to resolvethe dispute within thirty (30) calendar days. If the dispute is not resolved within this period the Customer shalldeposit the disputed fees into an escrow account and the parties agree to referthe disputed amount to an appropriate independent and neutral third party (the“Independent Expert”), who shall be agreed by the parties for resolution of thedisputed amount. The parties agree to be bound by the decision and terms of theIndependent Expert.  Each party shallbear its own costs and expenses in seeking the decision of the IndependentExpert.  Where an invoice is partlydisputed, nothing in the above clause shall release Customer from the properpayment of the undisputed parts of that invoice in accordance with theprovisions of Section 7.

 

**8.****                          ACKNOWLEDGMENTOF VENDOR’S OWNERSHIP RIGHTS**

8.1.                             Customeracknowledges that it obtains no ownership rights in the Program under the termsof this Agreement. All rights in the Program including but not limited toConfidential Information, trade secrets, trademarks, service marks, patents,and copyrights are, shall be, and will remain the property of Vendor or anythird party from whom Vendor has licensed software or technology. All copies ofthe Program delivered to Customer or made by Customer remain the property ofVendor.

 

**9.****                          CONFIDENTIALINFORMATION**

9.1.                             Customeracknowledges that all material made available by Vendor to Customer may containproprietary and confidential information of Vendor. Customer agrees to keep theProgram, database structure, pricing, Documentation, the terms and conditionsof this Agreement, and all other Vendor-specific proprietary information andall other information that is or should be reasonably understood to beconfidential or proprietary (the “Confidential Information”), in confidence andto take all reasonable precautions to ensure that no unauthorized persons haveaccess to such information and that no unauthorized copies are made. Breach ofthis provision shall be grounds for immediate termination of this Agreementwithout further obligation to Customer, at Vendor’s option.

9.2.                             Customermay not decompile, disassemble, or reverse engineer the Program.  Notwithstanding the foregoing, Vendor givesit consent for Customer to integrate with or extend the Program through the useof Vendor’s application program interfaces (“API”).

9.3.                             Customershall not challenge, or assist or encourage others to challenge, the validityof Vendor’s rights in the Program, or Vendor’s or its supplier’s ownershipthereof.

9.4.                             Vendoracknowledges that certain information may be made available by Customer toVendor containing proprietary and confidential information of Customer mostnotably its pricing structures of certain products. Vendor agrees to keep suchinformation, the terms and conditions of this Agreement, and allCustomer-specific proprietary information and all other information that is orshould be reasonably understood to be confidential or proprietary (the“Customer Confidential Information”), in confidence and to take all reasonableprecautions to ensure that no unauthorized persons have access to suchinformation and that no unauthorized copies are made.

 

**10.****                   CUSTOMER’SOBLIGATION FOR DATA PROTECTION**

10.1.                       Vendorshall not be liable for any loss of Customer’s data and Customer shallindemnify, defend, and hold harmless Vendor against any claim arising from anyloss of Customer’s data, including any loss or corruption from migrating orconverting data.

 

**11.****                   WARRANTY**

11.1.                       AfterInitial Acceptance or Incremental Acceptance, as the case may be, Vendorwarrants that when installed on a supported platform without any unrequiredapplication programs, the Program will perform substantially in accordance withaccompanying Documentation for a period of ***** from the applicableIncremental Acceptance (“Warranty Period”). Vendor will use commercially reasonable efforts to provide a temporaryfix or work-around within ***** business days for any problem that isidentified as a Fatal Error as outlined in Schedule B that is the result of aBug.  As of the Effective Date, Vendorwarrants that there are no known allegations or claims of any kind that theProgram infringes on the intellectual property rights of any third party.

11.2.                       VENDORDISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.VENDOR DOES NOT WARRANT THAT THE PROGRAM IS FREE FROM BUGS, ERRORS, OR OTHERLIMITATIONS.

11.3.                       VENDOR WILLNOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGESWHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,LOSS OF BUSINESS GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,OR LOSS OF OPPORTUNITIES UNDER ANY CIRCUMSTANCES.

11.4.                       CUSTOMER’SEXCLUSIVE REMEDY AGAINST VENDOR OR ANY OTHER PARTY FOR A MATERIAL BREACH OF THEWARRANTIES UNDER THIS AGREEMENT OR ANY OTHER CLAIM NOT OTHERWISE PROVIDED FORIN THIS AGREEMENT SHALL BE, AT VENDOR’S CHOICE, (A) SUBSTANTIAL CORRECTION OFANY MATERIAL BUG OR MATERIAL DEFECT IN THE PROGRAM AS TO WHICH CUSTOMER HASGIVEN WRITTEN NOTICE OR (B)

 

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

REPLACEMENT OF THEPROGRAM INVOLVED.  IF VENDOR’S RECEIPTOF NOTICE FROM CUSTOMER OCCURS WITHIN THE WARRANTY PERIOD AND (A) OR (B) CANNOTBE ACCOMPLISHED WITHIN 30 CALENDAR DAYS OF VENDOR’S RECEIPT OF NOTICE FROMCUSTOMER, CUSTOMER MAY TERMINATE THIS AGREEMENT WITHOUT PENALTY. CUSTOMER’SRIGHT TO TERMINATE FOR SUCH BREACH SHALL EXPIRE IF NOT EXERCISED WITHIN 30CALENDAR DAYS FROM VENDOR’S RECEIPT OF NOTIFICATION FROM CUSTOMER.

11.5.                       If anyproblem, operational failure or error of the Program has resulted from anyalteration of the Program, use on an unsupported platform, accident, abuse, ormisapplication, then this warranty shall be null and void, at Vendor’s option.

 

**12.****                   OVERALLLIMITATION OF DAMAGES**

12.1.                       IN NO CASESHALL THE AGGREGATE AMOUNT OF DAMAGES PAYABLE TO CUSTOMER FROM ANY AND ALLPARTIES FOR ANY CLAIM ARISING FROM THE PROGRAM OR THIS AGREEMENT (INCLUDING,WITHOUT LIMITATION, ITS WARRANTY PROVISIONS) EXCEED THE MONTHLY LICENSE FEESPAID BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT IN THE PRIOR TWENTY-FOURMONTHS.

 

**13.****                   INDEMNIFICATION**

13.1.                       Vendoragrees to indemnify, defend and hold Customer harmless against any loss,damage, expense, or cost, including reasonable attorneys’ fees, arising out ofany claim, demand, or suit asserting that the Program infringes or violates anycopyright, patent, trade secret, trademark, or proprietary right existing underthe laws of a country that is a signatory to the Berne Convention thereof(“Claim”).

13.2.                       Theindemnification obligation in this section shall be effective only if (a) atthe time of the alleged infringement, Customer was using a currently supportedversion of the Program, (b) Customer gave notice of the Claim within fourteen(14) calendar days from date Customer first becomes aware and permitted Vendorto defend unless due to its failure to notify Vendor it has not been adverselyprejudiced, (c) this Agreement had not been terminated at the time of thealleged infringement, and (e) Customer reasonably cooperate in the defense ofthe claim. Vendor shall have no obligation to Customer to defend or satisfy anyclaims made against Customer that arise from the use, sale, licensing or otherdisposition of the Program by Customer other than as permitted by thisAgreement or from the Customer’s unauthorized modification of the Program.

13.3.                       If Vendorsupplies a non-infringing Update of the Program, Customer shall promptlyinstall it on its computer system, and terminate use of prior Releases of theProgram. If, in its judgment, Vendor deems that, due to a Claim or for anyother reason, it is not in Vendor’s practical interest to continue distributinga Program, Vendor may require Customer to terminate use of a Program upon sixty(60) calendar days written notice, unless a court orders a shorter period andCustomer shall have no further obligation to pay Monthly License Fees. Inaddition, Vendor may, at any time, grant Customer a full refund of the MonthlyLicense Fees paid over the previous twenty-four (24) months in which caseVendor shall have no further indemnification obligations under this Agreementas to such Program.  THE FOREGOING ISCUSTOMER’S EXCLUSIVE REMEDY IN SUCH CASE.

 

**14.****                   SOFTWARE SUPPORT**

14.1.                       During thefirst year beginning from the Effective Date, Customer shall be entitled to thenumber and type of Software Support Incident-Hours described in Schedule Aaccording to the terms defined in Schedule B. Bugs are not charged againstCustomers Software Support Incident-Hours. After all Software Support Incident-Hours have expired or been used, theCustomer may continue to receive support by purchasing additional support atthe then current support rates. Unless otherwise stated, all Software Supportwill be performed during Vendor’s normal business hours and are valid for oneyear from date of purchase.  Allfractions of an hour used for Software Support shall be rounded up to the nexthighest twenty-minute increment.

14.2.                       SoftwareSupport does not include (a) support for any third-party products, such as, butnot limited to, assistance with hardware, database software, collectionsoftware and operating systems, (b) service such as database repairs,configuration of the Program, third party hardware or software configurationassistance, custom reports, training, etc., and (c) modifications andcustomizations to the Program, such as the customization of existing reports,creation of new reports, customizations of configuration files, and the additionof any feature or functionality not currently supported in the Program.  Vendor will provide release notes andupdated documentation for all APIs.

14.3.                       Vendor’scurrent policy is to support the most recently released version of the Programand the next prior version, and to cease maintenance of earlier versionsprovided, however, that Vendor shall not support any new release for less than***** from date Program is first released. However, Vendor reserves the right to change this policy at its discretionupon ***** prior written notice, but shall not change this policy unfavorablyto Customer more than one (1) time during the Term.

14.4.                       Customeragrees that in order to receive Software Support for a Program, (a) Customermust have valid Software Support Incident-Hours or be willing to pay thereoffrom time to time at Vendor’s discretion, (b) Customer must use a currentlysupported version of the Program installed with the required computer hardwareand software within six (6) months of its release by Vendor, and (c) Customermust not have any payments owed to Vendor in arrear in accordance with thisAgreement. Customer acknowledges and agrees that it may be necessary to updateits computer hardware and/or software to achieve compatibility with the currentlysupported version Customer acknowledges and agrees that if it has allowed itssubscription to Software Support to lapse, and if its version of the Program isnot currently supported, it may have to obtain a current version to obtainSoftware Support, as is discussed below.

14.5.                       If Customeris not using a currently supported version of the Program as defined inSections 14.3 and 14.4 with the required computer hardware and software, Vendormay suspend provision of Software Support until Customer cures this conditionwithout refunding any Software Support Fees.

14.6.                       Customermay terminate Software Support by written notice to Vendor prior to expirationof Software Support. However, Vendor shall not be required to refund anySoftware Support fee unless Vendor failed to provide Software Support whereCustomer was unable to use the Program due to a Fatal Error (as defined inSchedule B) for longer than 10 calendar days.

14.7.                       Anyinstallation required for an Update to a currently supported version of a Programunder any paragraph of this Agreement, when performed by Vendor, will becharged to Customer at Vendor’s rate of $***** per hour as of the EffectiveDate, where such rate will not increase by more

 

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

than the greater of 5%per year or the United States domestic inflation rate per year, plusreimbursement for any reasonable out-of-pocket costs or expenses incurred byVendor. Such installation charges shall be in addition to other fees or chargesthat may be due.  Customer agrees to paysuch fees.

14.8.                       Vendor willundertake commercially reasonable efforts to provide Software Support underthis Agreement, but does not guarantee that any or all of the Customer’sproblems will be solved or that any item or response will be error free. Vendorreserves the right to terminate support or service to any individual who abusesany support program including, but not limited to sharing special phone numbersand customer identification numbers with others.

14.9.                       Subject toany of Customer’s security requirements, the Customer shall provide Vendor withaccess to all needed equipment to include but not limited to computer hardwareand software as reasonably necessary to perform Software Support.  Customer’s failure to provide such accessshall relieve Vendor from any obligation to perform Software Support for thecomponents impacted by the restriction until condition is cured.

14.10.                 Vendor shall notbe responsible for or have an obligation to provide Software Support toCustomer for problems that arise from operational failure or errors in theProgram that result from any alteration of the Program not made by Vendor toinclude any change made directly to the database, use on an unsupportedplatform, accident, abuse, or misapplication. Vendor is not responsible forerrors or malfunctions caused by any hardware or any third party operatingsystem or third party program not developed, provided, and installed by Vendor.

 

**15.****                   SOFTWAREMAINTENANCE FEE**

15.1.                       During theTerm, Vendor shall provide Customer with software maintenance (“SoftwareMaintenance”) to the Program at no additional cost, which shall includetime-unrestricted access to support content provided via Vendor’s web pages,Updates, and all standard corrections and Bug-fixes that become generallyavailable for the version of the Program licensed.

15.2.                       SoftwareSupport must be purchased separately and is not considered part of SoftwareMaintenance.

 

**16.****                   TERMINATION**

16.1.                       It isagreed that either party may terminate this Agreement immediately upon ninety(90) calendar days written notice to the other party in the event that suchother party has missed any payment required hereunder and (a) becomes insolventor makes an assignment for the benefit of creditors; (b) files or has filedagainst it any petition under Title 11 of the United States Code or under anyapplicable bankruptcy, insolvency, reorganization or similar debtor relief lawwhich is not discharged within ninety (90) calendar days of said filing, or (c)requests or suffers the appointment of a trustee or receiver, or the entry ofan attachment or execution as to a substantial part of its business or assetsand same is not released or bonded off within ninety (90) calendar days.

16.2.                       Vendor mayterminate this Agreement in the event Customer (a) fails to make when due anyMonthly License Fee payment or other payment due Vendor which remains unpaidafter ten (10) business days from Vendor’s written notice to Customer of suchnon-payment or; (b) Customer commits a material breach of any of itsobligations which remains uncured after thirty (30) calendar days from Vendor’swritten notice to Customer of such breach.

16.3.                       Notwithstandingany other rights that Customer may have to terminate this Agreement, Customermay terminate this Agreement in the event Vendor commits a material breach ofany of its obligations, which remains uncured after thirty (30) calendar daysfrom Customer’s written notice to Vendor of such breach.

 

**17.****                   RIGHTS UPONTERMINATION**

17.1.                       Upontermination of this Agreement, Customer’s license to use the Program shallterminate, and both parties shall immediately turn over to the other party allcopies of all Confidential Information. Furthermore, Vendor shall return or destroy where appropriate allCustomer Confidential Information and Customer shall immediately turn over toVendor the Program and Documentation, and any other Confidential Informationrelating to the Program and Documentation and shall remove and erase completelyany copies of the Program installed or recorded on any hard disk or otherstorage medium. Customer shall promptly certify to Vendor in writing that ithas complied with this requirement.

17.2.                       Unlessotherwise specified herein or otherwise agreed in writing, termination of thisAgreement other than by material breach of Vendor, does not relieve Customer ofits obligation to pay all fees accrued up to date of termination to include,but not limited to all (a) fees stated in Schedule “A,” (b) Monthly LicenseFees up to the full duration of the Term, and (c) installation and consultationFees provided pursuant to this Agreement. Except where otherwise stated,Customer agrees that all fees collected, accrued and due shall be retained ordue Vendor without any pro rata refund to Customer.

17.3.                       Thetermination of this Agreement shall not extinguish any rights or obligations ofthe parties relating to protection of Confidential Information or the CustomerConfidential Information.

 

**18.****                   AUDIT**

18.1.                       During theterm of this Agreement and one year thereafter, upon five (5) business daysadvance notice and in compliance with Customer’s security rules and policiesand applicable laws and/or regulations, Vendor or Vendor representative mayenter the premises of Customer during normal business hours and performreasonable audit and inspection procedures to confirm that Customer is incompliance with the terms and conditions of the Agreement.  Customer shall reasonably cooperate in anysuch inquiry.  Any underpayment shall bepaid at the Vendor’s then current rate and within five (5) business days.  If any underpayment is over $500, Customeragrees to pay the costs and expenses of audit.

 

**19.****                   ASSIGNMENT**

19.1.                       Customermay not assign this Agreement without Vendor’s prior written consent; providedhowever that Customer may assign this Agreement or under rights grantedhereunder pursuant to a purchase of all or substantially all of Customer’sshares upon written notice to Vendor. Any purported assignment, except asprovided for in this paragraph, shall be null and void and a material breach ofthis Agreement.

 

**20.****                   RIGHTS TOSOURCE PROGRAM**

20.1.                       *****

 

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

 

202. *****

20.3 *****

20.4 *****

**21.****                   GENERALPROVISIONS**

21.1.                       ThisAgreement shall be construed pursuant to substantive law of the State ofDelaware, and the laws of the United States.

21.2.                       Allreasonable and ordinary costs relating to the shipment of the Program and theDocumentation shall be borne by Vendor. Upon delivery of the Program and theDocumentation, Customer shall assume all risk of loss and damage to the Programand the Documentation, and shall at its sole cost and expense replace any lostor damaged portion thereof.

21.3.                       Customershall pay, in addition to the other amounts payable under this Agreement, alllocal, state and federal excise, sales, use, personal property, gross receipts,import and export tax, and similar taxes (excluding taxes imposed on ormeasured by Vendor’s net income) levied or imposed by reason of thetransactions under this Agreement. Customer shall, upon demand, pay to Vendoran amount equal to any such tax(es) actually paid or required to be collectedor paid by Vendor.

21.4.                       Customerconsents to the public use of its name, logo, and address as a customer ofVendor provided that any disclosure pertaining to the services and/or softwareused by Customer, excluding the Program, shall be subject to Customer’s priorwritten consent. Vendor shall not release to the general public any CustomerConfidential Information or press release without the written consent ofCustomer.

21.5.                       Vendorconsents to the public use of its name, logo, and address as a supplier ofCustomer and the use of Program by Customer. All other references to the Vendorshall be subject to Vendor’s prior written consent. Customer shall not releaseto the general public any Confidential Information or press release without thewritten consent of Vendor.

21.6.                       This Agreementmay not be modified or amended except in writing, which is signed by authorizedrepresentatives from each party.

21.7.                       The failureof either party to exercise any right or the waiver by either party of anybreach shall not prevent a subsequent exercise of such right or be deemed awaiver of any subsequent breach of the same or any other term of the Agreement.

21.8.                       Any noticerequired or permitted to be sent hereunder shall be in writing in English andshall be sent in a manner requiring a signed receipt, such as courier delivery,or if mailed, registered or certified mail, return receipt requested. Notice iseffective upon receipt.

21.9.                       Neitherparty shall be deemed in default of this Agreement to the extent thatperformance of its obligations or attempts to cure any breach are delayed orprevented by reason not within its reasonable control, such as an act of God,fire, storm, natural disaster, accident, act of government, labor dispute,shortages of materials or supplies or any other cause beyond the control ofsuch party (“Force Majeure”) provided that such party gives the other partywritten notice thereof promptly and, in any event, within fifteen (15) calendardays of discovery thereof and uses its best efforts to cure the delay. In theevent of such Force Majeure, the time for performance or cure shall be extendedfor a period equal to the duration of the Force Majeure but not in excess oftwo (2) months.

21.10.                 This Agreementconstitutes the sole and entire agreement of the parties with respect to thesubject matter hereof and supersedes any prior oral or written promises oragreements. There are no promises, covenants, or undertakings other than thoseexpressly set forth in this Agreement or in the Consultancy Services Agreementsigned herewith.

21.11.                 The partiesrecognize that money damages may not be an adequate remedy for any breach orthreatened breach of any obligation hereunder (i) if by Customer involvingintellectual property, Confidential Information or use of the Program beyondthe scope of the license granted by this Agreement or (ii) if by Vendorinvolving the Customer Confidential Information. The parties therefore agreethat in addition to any other remedies available hereunder, by law orotherwise, the non-breaching party including any third party from whom Vendorhas licensed software or technology shall be entitled to an injunction againstany such continued breach by the breaching party.

21.12.                 During the Term,the Program may be software locked through the use of a software key file“Software Key” to not function after a set date, above a set version number,outside an IP Range, or above a set number of customer records. The Customeragrees to comply with the software lock. Customer acknowledges that the Program shall have a 120-daydate-restricted software lock and that the issuance of any new Software Keyshall be based on proper payments of the Monthly License Fee due throughout theTerm, and up to 120 days after the expiration of the Term so long as Customerand Vendor are actively negotiating a new term.  Vendor shall extend the valid dates of any Software Key duringany period in which License Fee is being disputed in accordance with Section7.2.

21.13.                 A late paymentcharge of 1.5% per month compounded monthly or the maximum rate permitted bylaw, whichever is less, shall apply to any payment due from Customer that is inarrears. In addition, the Vendor may at its option suspend Software Support,refuse to provide any additional products to the Customer and refuse to performor complete any consulting services for the Customer if there are any paymentsdue more than ten (10) business days in arrears.

 

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| **Inovaware Logo**                                      |   |
|---------------------------------------------------------|--------|
| **2800 Woodlawn Drive, Suite 170,  Honolulu, HI 96822** |   |
| **Voice: 808-539-3786**                                 |   |
| **Fax: 808-539-3683**                                   |   |

 

In any legal action orarbitration proceeding brought on account of a breach, the prevailing partyshall recover from the other party all costs of litigation or arbitration,including reasonable attorneys fees.

21.14.                 Customer agrees to prominently display a logoimage and hyperlink provided by Vendor, subject to Customer’s branding policy,referencing Vendor’s name, product name, and URL in all “start page” and“sign-in” screens for any service or product for which Vendor’s product isreferenced to any third party unless otherwise approved in writing by Vendor.If Customer is unable to reference Vendor’s logo, a text-equivalence shall beused. Nothing herein shall restrict Vendor’s legal or equitable rightsto protect its trademarks against infringement, dilution, or misuse.

21.15.                 This Agreementmay be executed in any number of counterparts, each of which when executed anddelivered shall be deemed to be an original and all of which taken togethershall constitute one and the same instrument. The provisions of this Agreement are declared to be severable. Shouldany provision of this Agreement be held to be void, invalid, inoperative, orunenforceable under applicable law, the remaining provisions of this Agreementshall not be affected and shall continue in full effect as though suchprovisions were deleted and the parties agree to negotiate in good faith asubstitute valid provision that most nearly approximates the parties’ intent.Headings in this Agreement are included for reference only and shall notconstitute a part of this Agreement for any other purpose.

21.16.                 No action,regardless of form, arising out of the transactions under this Agreement may bebrought by either party more than two (2) years after the cause of actionaccrues.

21.17.                 Unless otherwiseagreed upon by Vendor and Customer, any cause or action arising out of orrelated to this Agreement may only be brought in the defending party’s courtsof applicable jurisdiction in the United States and in no other courts, and theparties hereby submit to the jurisdiction and venue of such courts.

21.18.                 All monetaryamounts in this Agreement are quoted and to be paid in United States dollars.

21.19.                 All disputedcharges that are later determined to be valid shall have all applicable latefee described in Paragraph 21.13 applied to them as of the date of original duedate.

 

**22.****                   SALES AGREEMENTEXPIRATION**

22.1.                       THISAGREEMENT MUST BE SIGNED BY BOTH CUSTOMER AND VENDOR NO LATER THAN FIVE (5)CALENDAR DAYS FROM THE DATE THE FIRST PARTY SIGNS THIS AGREEMENT OR THE PRICEAND TERMS OFFERED MAY EXPIRE AT VENDORS DISCRETION.

 

So agreed between the parties signing below.

 

**InovawareCorporation**

 
| SIGNATURE:  | /s/ Wai Lee |   | DATE:  | 14-5-2003 |   |
|-------------|-------------|--------|--------|-----------|--------|
| PRINT NAME: | Wai Lee     |   | TITLE: | PS Mgr    |   |

 

**VIANET.WORKS, Inc.**

 
| SIGNATURE:  | /s/ Ray Walsh |   | DATE:  | 13-05-08                         |   |
|-------------|---------------|--------|--------|----------------------------------|--------|
| PRINT NAME: | Ray Walsh     |   | TITLE: | SVP Technology & Engineering |   |

 
|                    |   |                                           |
|-------------------------|--------|------------------------------------------------|
| Vendor's Intials /s/ WL |   | Customer Initials /s/  RW                      |
| Confidential Document   |   | Inovaware Term License  Agreement-ViaNetworks- |
| 3                       |   | v3-121                                         |

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

Schedule A: Program Description and Price Schedule

 

*****Certain information onthis page has been omitted and filed separately with the Securities andExchange Commission. Confidential treatment has been requested with respect tothe omitted portions.*****

 
| *Customer  Domain:*       | *www.vianetworks.com* |
|---------------------------|-----------------------|
| *Inovaware  Sales Agent:* | *Michel  Floreani*    |

 

**1.     Contact Information**

1.1.                  Purchaser Contact
|            |                                       |   |   |   |   |
|-----------------|--------------------------------------------|--------|--------|--------|--------|
| Company Name:   |  VIA NET.WORKS                        |   |   |   |
| Street Address: |  H. Walaardt Sacréstraat 401-403 |   |   |   |
| City:           |  1117BM Schipol (SHIPHOL OOST)        |   |   |   |   |   |
| Country:        |  The Netherlands                      |   |   |   |   |
| Email:          |  rwalsh@vianetworks.com               |   |   |   |   |

 

1.2.** **IP address on which Program will be run:**                                  **(Requiredfor software to run)

 

**2.****              Fees (US Dollars)**

 
| Monthly License Fee for  PRISM 7.2 for Unlimited Active Users               |   |   |
|-----------------------------------------------------------------------------|--------|--------|
| Monthly License Fee RESOLVE  Help Desk and Workflow Unlimited  Active Users |   |   |
| Software Maintenance                                                        |   |   |
| Tax (If HI, TX, or CA Incorporated Company)                                 |   | N/A    |
| Monthly Software Escrow Fee                                                 |   |   |
|                                                                        |   |   |
| **Total Monthly Fees**                                                      |   | **$**  | ********* |

 

# **3.**                          PaymentTerms

3.1.                              Feesoutlined in Schedule A shall be due monthly and in advance for any given monthfor a period of 36 months.  Firstpayment shall be due on the ***** calendar days from the Effective Date (“InitialAcceptance”).

 

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**Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated by {*****}. A complete version of this exhibit hasbeen filed separately with the Securities and Exchange Commission.**

 

SCHEDULE B:  SOFTWARE SUPPORTSCHEDULE

 

**1.****                        ServiceLevel Agreement**

1.1.                              EachSoftware Support request (incident) that requires Software Support iscategorized into one of four categories: Fatal, Critical, Substantial, orOther.  Vendor determinesclassification.  The classifications aredefined as follows:

 

***Software SupportIncident Classification***
| Fatal Errors        |
|---------------------|
| 1.                  | Results in complete failure  of the Program. |
| Critical Errors     |
| 1.                  | Results in  non-availability or material improper function of any of the following  Program functions: |
|                | a) essential data  collection and storage during customer sign-up, |
|                | b) payment processing  and collection modules |
|                | c) provisioning modules |
|                | d) charging  functionality and accuracy |
|                | e) customer self-care  modules, |
| 2.                  | Renders unusable any  critical function of the “batch processing” system that comprises part of the  standard schedule. The batch processing system consists of any function that  is part of the standard batch processes menu including usage import  functionality, late processing functionality, charge posting functionality,  payment collection functionality, credit card collection functionality, and  bill generation functionality, or; |
| 3.                  | A query from Customer  where there is justifiable reason to believe further investigation will  uncover a Fatal Error. |
| Substantial  Errors |
| 1.                  | An error that does not  stop normal business operations but substantially restricts it, such as  problems accessing the configuration software interface or; |
| 2.                  | A query from Customer  where there is justifiable reason to believe further investigation will  uncover a Critical Error. |
| Other Errors        |
|                | 1. | Any other error or  query that does not directly impact fatal critical, or substantial  processing. |

 

**2.****                        ResponseTimes**

 
| **Software Support Type** |   | **Error Classification** |   | **Max Response Time** |
|---------------------------|--------|--------------------------|--------|-----------------------|
| Standard                  |   | Fatal Errors             |   | *****                 |  Business Hours |
| Standard                  |   | Critical Errors          |   | *****                 |  Business Hours |
| Standard                  |   | Substantial Errors       |   | *****                 |  Business Hours |
| Standard                  |   | Other                    |   | *****                 |  Business Hours |
| Premium                   |   | All Classifications      |   | *****                 |  Hours |

# ** **

**3.****                        SoftwareSupport**

3.1.                              Unlessa Premium Software Support policy is purchased, all Software Support, includingStandard Software Support, shall be performed exclusively during the NormalService Hours. “Normal Service Hours” shall mean the hours of on-call servicecoverage, which are currently Monday through Friday from 6:30 a.m. to 3:00 p.m.Hawaiian Standard Time excluding Hawaii State and Federal holidays and otherdays off as designated by Vendor. Vendor reserves the right to change NormalService Hours without notice.

 

**4.****                        PremiumSoftware Support**

4.1.                              SoftwareSupport that takes place outside of “Normal Service Hours” or requests for supportmade through Premium Software Support channels are classified as “PremiumSoftware Support.”  Customer must havean active Software Maintenance policy and Premium Software Support Policy atthe time of the request to receive Premium Software Support.  Premium Software Support is availabletwenty-four (24) hours a day, seven (7) days a week.  Customer agrees that any request for Software Support that fallsoutside of Normal Service Hours or that is made through Premium SoftwareSupport contact channels is considered a Premium Software Support request.  The minimum amount of time Premium SoftwareSupport is billed for is two (2) hours. All hours beyond the first two are billed in thirty-minute increments.

 

**5.****                        OtherTerms**

5.1.                              AllSupport notifications must be routed through Vendor’s predefined supportchannels. Vendor shall make available telephone number(s) and/or other contactinformation to Customer in order to allow Customer to accomplish the requirednotification and request information.

5.2.                              “Responsetime” is the time from Customer request to the time Vendor contacts backCustomer. Vendor does not guarantee the issue will be resolved within theResponse Time.  Vendor shall usereasonable effort to achieve the response time listed under the “Max ResponseTime” column in the Response Times table. For each hour beyond the Max Response Time for which Vendor does notrespond to a Software Support incident, Customer shall be credited with anequal number of hours applicable toward the then current Software Supportincident up to a maximum of 5 hours.

5.3.                              Vendorreserves the right to change its Software Support Schedule at its solediscretion.

 

 

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