EXHIBIT
10.5


 


[Certain portions of
this exhibit have been omitted pursuant to Rule 24b-2 and are subject to a
confidential treatment request.  Copies
of this exhibit containing the omitted information have been filed separately with
the Securities and Exchange Commission.  
The omitted portions of this document occur on the last page hereof and
are marked with a **. ]


 


INTERNET ACCESS
AGREEMENT


 


The party
signing below (“Customer”) acknowledges that this Internet Access Agreement
(“Agreement”) is between Customer and Verio Inc. (d/b/a NTT/VERIO)
(“NTT/VERIO”) and that it governs the Internet access services set forth on the
Service Order Form executed by Customer (the “Services”), a copy of which is
attached hereto as Exhibit A and which is incorporated herein by this reference
(the “Service Order Form”).  Customer
can not resell the Services without the express written consent of an officer
of NTT/VERIO.


 


1.     Customer
shall pay the fees for the Services that are set forth on the Service Order
Form.  Payment is due 30 days after date
of invoice.   Accounts unpaid 30 days
after date of invoice are in default and are subject to an interest charge on
the outstanding balance of the lesser of 1.5% per month or the maximum rate
permitted by law.  NTT/VERIO reserves the
right to suspend or terminate Service to any account in default, but any such
suspension does not relieve Customer of the obligation to pay the monthly fees
for the Services.  Stated fees are
exclusive of any taxes which may be levied or assessed upon the Equipment (as
defined below) or Services provided hereunder, all of which shall be paid by
Customer. In the event Customer considers ordering additional Internet access
services pursuant to separate Service Order Form(s), NTT/VERIO agrees to work
with Customer through NTT/VERIO’s Billing Department, if Customer so requests
at the time Customer inquires about such additional services, to determine what
Customer’s tax liability will be for such additional services. Customer
acknowledges that it shall be responsible for such taxes, and for any
additional taxes assessed by governmental authorities after NTT/VERIO has
calculated Customer’s expected tax liabilities.


 


2.     This
Agreement shall be for the term specified on the Service Order Form (the
“Initial Term”).  At the conclusion of
the Initial Term, this Agreement shall continue in effect on a month-to-month
basis at the same prices in effect during the Initial Term until either party
gives at least 30 days advance written notice to the other (prior to the end of
the then current term) of termination of this Agreement.  The Initial Term and billing for the
Services shall begin as of the date on which a NTT/VERIO hub and a functioning
telephone circuit are prepared to route IP packets to Customer’s site.  Notwithstanding the foregoing, Customer may
terminate this Agreement during the Initial Term by giving NTT/VERIO at least
60 days advance written notice, except that Customer remains obligated to pay
all fees due and owing for the balance of the Initial Term, including, without
limitation, fees with respect to any Equipment purchased at Customer’s request
or pursuant to Customer’s order.


 


3.     NTT/VERIO
is acting only as a reseller with respect to the hardware and software offered
under this Agreement (“Equipment”), which was manufactured by a third
party.  Customer’s sole remedies for any
malfunction or defect in the Equipment are set forth in Section 10 below.  If NTT/VERIO provides Equipment to Customer
free of charge, within 10 business days following termination of this Agreement
for any reason, Customer must either (i) at Customer’s expense, return the
Equipment to NTT/VERIO in its original condition, normal wear and tear
excepted, or (ii) purchase the Equipment at the rate of 75% of its original
retail value.  Customer will be invoiced
(at the above-referenced 75% rate) for any Equipment not purchased or returned
within such time period. In the event Customer relocates its Internet access
services to another NTT/VERIO Point of Presence (“POP”), NTT/VERIO will pass
through to Customer third party-provided (i.e. Bell local loops) circuit move
expenses at cost.


 


4.     NTT/VERIO
exercises no control over, and specifically rejects any responsibility for, the
content, accuracy or quality of information passing or obtained through
NTT/VERIO’s host computers, network hubs and points of presence (the “NTT/VERIO
Network”).  Use of any information
obtained via the NTT/VERIO Network is strictly at Customer’s own risk.


 


5.     All
use of the NTT/VERIO Network, the Services and any related services must at all
times comply with the then-current version of the NTT/VERIO Acceptable Use
Policy (the “AUP”), which is expressly made a part of this Agreement and is
available at www.verio.com.  NTT/VERIO
reserves the right to amend the AUP from time to time.  Any amendments to the AUP shall be effective
upon posting at the URL.  NTT/VERIO
reserves the right to suspend the Services or terminate this Agreement in the
event of notice of a possible violation of the AUP.  Customer agrees to indemnify and hold harmless NTT/VERIO and its
affiliates from any losses, damages, costs or expenses (collectively “Claims”)
arising out of or relating to Customer’s use of the NTT/VERIO Network or the
Services in any way, including any Claim which, if true, would constitute a
violation of the AUP. Customer acknowledges and agrees that NTT/VERIO will
provision the Services hereunder subject to its Privacy Policy, as amended from
time to time, a copy of which is available at www.verio.com.


 


6.     NTT/VERIO
reserves the right to monitor customer’s bandwidth usage and to utilize
technology to limit Customer’s bandwidth usage to ordered amounts.


 


7.     EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 10 BELOW, NTT/VERIO PROVIDES THE
SERVICES AND EQUIPMENT “AS IS”; MAKES NO EXPRESS WARRANTIES OF ANY KIND
WITH RESPECT TO THE SERVICES OR EQUIPMENT; AND DISCLAIMS ALL OTHER
WARRANTIES WITH RESPECT TO THE SERVICES AND EQUIPMENT, INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR
FITNESS FOR A PARTICULAR PURPOSE. 
NTT/VERIO shall not be liable for any failure or delay in performance
due to circumstances beyond its reasonable control, which shall include,
without limitation, acts of God, earthquakes, labor disputes, changes in law,
regulation or government policy, riots, war, fire, epidemics, acts or omissions
of vendors or suppliers, equipment failures, transportation difficulties, or


 

















 


any other such occurrences. 
Customer may terminate this Agreement if any such event of Force Majeure
continues for a continuous period of 10 days.


 


8.     NEITHER
PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE
SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES FOR
LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES OR SERVICE
INTERRUPTIONS.  Notwithstanding anything
to the contrary stated in this Agreement, Customer’s sole remedies for any claims
relating to the Services or the NTT/VERIO Network are set forth in
Section 10 below.  In no event will
NTT/VERIO’s and it affiliates’ collective liability for any Claims or causes of
action, whether in contract or tort, exceed the amount paid by Customer for the
Services during the 12-month period prior to the date the Claim occurred or the
cause of action arose.


 


9.     Any
Internet Protocol numbers (“IP Numbers”) assigned to Customer by NTT/VERIO in
connection with the Services shall be used only in connection with the
Services.  In the event Customer
discontinues use of the Services for any reason, or this Agreement terminates
for any reason, Customer’s right to use the IP Numbers shall terminate.  NTT/VERIO reserves the right to change the
IP Numbers upon notice to Customer.


 


10.   The
Service Level Agreement (“SLA”) for the Services, which is made a part of this
Agreement, is set forth at http://sla-info.verio.net.  The SLA sets forth Customer’s sole remedies for any claim
relating to the Services or the NTT/VERIO Network, including any failure to
meet any guarantee set forth in the SLA. In the event that Customer experiences
six (6) or more unrelated Network Outages (as defined in the SLA), which are
more than twenty four hours apart, in any 2-month period (“Chronic Outage”) and
Customer’s use of the Services is materially adversely affected by such Chronic
Outage, Customer may terminate this Agreement without termination liability or
fees upon thirty (30) days’ written notice and explanation to NTT/VERIO
detailing how such Chronic Outage has materially adversely affected its use of
the Services.


 


11.   This
Agreement may be terminated immediately upon written notice by either party if
the other party becomes insolvent or involved in a liquidation or termination
of its business, files a bankruptcy petition, has an involuntary bankruptcy
petition filed against it (if not dismissed within 30 days of filing), becomes
adjudicated bankrupt, or becomes involved in an assignment for the benefit of
its creditors.  In the event this
Agreement is terminated pursuant to this paragraph, Customer shall be
responsible only for payment of all charges incurred through the effective date
of termination.


 


12.   Neither
party may use the other party’s name, trademarks, tradenames or other
proprietary identifying symbols without the prior written approval of the other
party.


 


13.   Either
party may assign this Agreement either to an affiliate or as part of a
corporate reorganization, consolidation, merger or sale of all or substantially
all of its assets; provided, however, that, in order for such
assignment to be effective (i) the assigning party shall give written notice to
the non-assigning party of any such assignment and (ii) NTT/VERIO must confirm
that Customer’s assignee meets NTT/VERIO’s standard credit requirements for
customers of the applicable Services. 
Except as set forth in the preceding sentence, neither party may assign
this Agreement, in whole or in part, without the prior written consent of the
other party, which consent will not be unreasonably withheld or delayed.  No failure on the part of either party to
exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof nor shall any single or partial exercise of any
right or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.


 


14.   The
validity, interpretation, enforceability and performance of this agreement
shall be governed by and construed in accordance with the laws of the State of
Colorado.  This Agreement may not be
amended except upon the written consent of Customer and an officer of
NTT/VERIO.


 


15.   This
Agreement supersedes all previous and contemporaneous written and oral
representations, understandings or agreements related to the subject matter
herein and shall prevail notwithstanding any variance with terms and conditions
of any order submitted.  Acceptance of
this Agreement by NTT/VERIO may be subject, in NTT/VERIO’s absolute discretion,
to satisfactory completion of a credit check. 
Activation of Service shall indicate NTT/VERIO’s acceptance of this
Agreement.  CUSTOMER REPRESENTS AND
WARRANTS THAT CUSTOMER (I) IS NOT LOCATED IN A COUNTRY SUBJECT TO U.S.
EMBARGOES, OR LISTED ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED
NATIONALS, OR LISTED ON THE U.S. COMMERCE DEPARTMENT’S DENIED PERSONS LIST OR
ENTITIES LIST AND (II) IF AN INDIVIDUAL, IS AT LEAST 18 YEARS OF AGE.


 


AGREED AND ACCEPTED
BY CUSTOMER:


 


	
  Signature: 

  	
  /s/ Philip
  N. Kaplan

  	
   

  	
  Company
  Name: VitalStream Holdings, Inc.

  
	
   

  
	
  Printed
  Name: Philip N. Kaplan

  	
  Address:  One Jenner, Suite 100, Irvine, CA  92618

  
	
   

  	
   

  
	
  Title: Chief
  Operating Officer

  	
   

  
	
   

  	
   

  
	
  Date:
  08/30/02

  	
  Telephone
  (949) 743-2000     Fax: (949) 453-8686

  



 


2

















 


	
   NTT/VERIO Rep

   Jeff Pieters

  	
   Email

   jpieters@verio.net

  	
   Lead
  Pass

  

   YES o       NO  
  o

  	
   Lead
  Pass NTT/VERIO Rep

  
	
   Lead
  Source

  
	
   Promo
  Source

  



 


	
   Date
  Submitted

  	
   8/1/02

  	
   Existing
  Arbor Number

  	
   

  
	
  New  o

  	
  Relocation  o

  	
  Change of Service  o

  	
  Renewal o

  	
  Upgrade  ý

  	
  Add-On o

  
	
   Partner
  Info

  	
   None o

  	
   VRP o

  	
   VSP o

  	
   EReseller
  o

  	
   MSP o

  
	
   Partner
  Name

  	
   

  	
   

  
												



 


	
  Company  

  	
   Vital
  Stream

  	
  Verio Rep  

  	
   Jeff
  Pieters

  	
  Reseller  

  	
   

  
	
  Contact  

  	
  Dave Williams  

  	
  Billing  
  Contact  

  	
  Dave Williams  

  	
  Tech  
  Contact  

  	
  Dave Williams  

  
	
  Phone  

  	
  949-678-0291  

  	
  Phone  

  	
  949-678-0291  

  	
  Phone  

  	
  949-678-0291  

  
	
    Fax  

  	
   

  	
  Fax  

  	
   

  	
  Fax  

  	
   

  
	
  Mobile/

  Pager  

  	
   

  	
  Mobile/  

  Pager  

  	
   

  	
  Mobile/  

  Pager  

  	
   

  
	
  Email  

  	
  dwilliams@vitalstream.com  

  	
  Email  

  	
  dwilliams@vitalstream.com  

  	
  Email  

  	
  dwilliams@vitalstream.com  

  
	
  Install Address  

  	
  
  One Jenner, Suite 100

    Irvine, CA 92618

  	
  Billing Address  

   

  	
    One Jenner, Suite 100

    Irvine, CA 92618

  
	
  City  

  	
    Irvine

  
	
  Demarc location  

  	
   

  	
  State  

  	
    CA

  
	
  Onsite Phone Number  

  	
   

  	
  COUNTY  

  	
   

  
	
    PO
  o

  	
    #

  	
    Check
  o

  	
    #

  	
    Visa o

  	
    MC o

  	
    Amex o

  	
    #

  	
    Exp

  
	
  Company Type

  	
    L.L.C.     
  Corporation    
  Partnership     
  Proprietorship      Other
  (Please State)

  
																	



 


Technical Information


	
  Who is ordering your telco circuit? (select one)  

  	
    
  NTT/VERIO  o           Telco Agent  o         Self  o

  
	
    Telco
  Quote Date:

  	
    E-Rate
  Funding     Proposed   o          Approved   o

    GSA Funding        
  Proposed   o          Approved   o

  
	
    Agent
  Name

  	
   

  	
    Agent
  Contact and Phone #

  	
   

  
	
    How
  many IP addresses do you need? (select one) 

  	
    o
  2   ý
  6   o
  14    o
  30    o
  62    o
  126    o
  254    o
  Other 

  
	
    Term
  Commitment: Beginning on Date NTT/VERIO Begins Billing Customer 

  	
    12
  mos.  o

  	
    24 mos. o

  	
    36
  mos. ý

  	
    Other
  o

  	
   

  
										



 


For Internal Use Only


	
   

  	
   

  	
   

  
	
    Sales Director Verification:

  	
  /s/ JC

  	
  /s/ 
  John Chapman

  	
   

  
	
   

  	
   

  	
   

  
				



 


3

















 


NTT/VERIO
Services


 


	
  Product ID

  	
  Product
  Description

  	
  Product
  Name

  	
  Plan Code

  	
  Setup Code

  	
  QTY

  	
  Monthly

  Charge

  	
  Total

  Setup

  Charge

  	
  Usage

  Charge

  Mbps

  
	
  Oc12
  frac

  	
  OC12
  Access

  	
  Flat
  rate OC12, 622 megs

  	
  OC12 Unlimited

  	
   

  	
  622 megs

  	
  **

  	
   

  	
  **00

  
	
   

  	
  Local Loop

  	
   

  	
   

  	
   

  	
   

  	
  **

  	
  NA

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotals

  	
  **

  	
   

  	
   

  



 












[**Pricing
Information in the foregoing table is omitted pursuant to Rule 24b-2,
filed separately with the Securities and Exchange Commission and is subject to
a confidential treatment request. ]


 


PNK        I,
the customer, acknowledge that data backup and restore services are an
important component of any internet-related service and that the benefits of
backing up my data have been explained by the NTT/VERIO sales
representative.  Notwithstanding the
foregoing, I the customer elect not to purchase the Data Backup and Restore
Services offered by NTT/VERIO at this time.


 


PNK        I,
the customer, acknowledge that security services are an important component of
any internet-related service and that the benefits of securing my
Internet-connected service have been explained by the NTT/VERIO sales
representative.  Notwithstanding the
foregoing, I the customer elect not to purchase the IntelliSecurity Services offered
by NTT/VERIO at this time.


 


Notes and Special Instructions


	
  New Contract pricing shall be retroactive to August 1, 2002.  Billing cycle shall be adjusted so that
  customer is billed based on calendar months. 
  Upon entering this contract, it is the intent of the parties to
  negotiate a new contract in the next 90 days which:  (i) allows connections to the Verio network at multiple
  locations (which may change from time-to-time) with the bill aggregated
  across all locations, (ii) is scalable subject to the minimum dollar
  commitment above, (iii) is billed at the committed rate above the minimum
  commitment based on actual usage.   

  



 


Equipment and Software


	
  Router Purchased Through
  NTT/VERIO (Select One):

  	
  Yes  o    
  No  o

  
	
  Item #

  	
  Description

  	
  Mfr. Part #

  	
  Price

  	
  Qty

  	
  Extend
  Price

  	
   

  
	
  1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Hardware
  Subtotal  

  	
  $
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  To Begin Service
  (hardware fees, set-up fees)  

  	
   

  
									



 




Please review
and sign the attached Terms and Conditions. 
This Service Order is not effective until the Terms and Conditions have
been signed by customer and accepted by NTT/VERIO as provided in the Terms and
Conditions.  In the event of a conflict
between the Service Order and the Terms and Conditions, the Terms and Conditions
shall govern.





 


	
  Customer Signature:

  	
  /s/ Philip N. Kaplan

  	
   

  	
  Printed
  Name:  Philip N. Kaplan

  
	
   

  	
   

  
	
  Title:  Chief Operating Officer

  	
  Date:
  08/30/02

  



 


4