As filed with the Securities and Exchange Commission on December 11, 2007.

Registration No. 333-145077

 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 
AMENDMENT NO. 6

TO
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 
 
SYNACOR, INC.
(Exact Name of Registrant as Specified in its Charter)

Delaware	 	7389	 	16-1542712	
(State or Other Jurisdiction of
Incorporation or Organization)	 	(Primary Standard Industrial
Classification Code Number)	 	(I.R.S. Employer
Identification Number)	

40 La Riviere Drive, Suite 300
Buffalo, NY 14202
(716) 853-1362
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)

 
 
Ron Frankel
President and Chief Executive Officer
Synacor, Inc.
40 La Riviere Drive, Suite 300
Buffalo, NY 14202
(716) 853-1362
(Name, address, including zip code and telephone number, including area code, of agent for service)

 
Copies to:

Kenneth R. McVay, Esq.
Ward Breeze, Esq.
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
220 West 42 nd Street, 21 st Floor
New York, New York 10036
(212) 730-8133	 	Glenn M. Reiter, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000	

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

 
 
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box.   o
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of earlier effective registration statement for the same offering.   o
 
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o
 
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 
 
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

EXPLANATORY NOTE

 
This Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-145077) is solely made to re-file exhibits initially filed with Amendment No. 2 to the Registration Statement. The exhibits filed herewith contain information that was omitted in the initial filing pursuant to a request for confidential treatment. No changes have been made to Part I of the Registration Statement or Items 13, 14, 15, 16(b) or 17 of Part II of the Registration Statement. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 16(a) of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits.

 

 
		
Item 16.   	Exhibits and Financial Statement Schedules	
 
(a) Exhibits

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	1	.1*	 	Form of Underwriting Agreement	
 	3	.1**	 	Amended and Restated Certificate of Incorporation	
 	3	.2**	 	Form of Amended and Restated Certificate of Incorporation to be effective upon closing	
 	3	.3**	 	Bylaws	
 	3	.4**	 	Form of Amended and Restated Bylaws to be effective upon closing	
 	4	.1	 	Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4	
 	4	.2*	 	Form of certificate for common stock	
 	4	.3**	 	Third Amended and Restated Investors’ Rights Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	4	.4**	 	Third Amended and Restated Stock Restriction, First Refusal and Co-Sale Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	4	.5**	 	Third Amended and Restated Voting Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	5	.1*	 	Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP	
 	10	.1**	 	Form of Indemnification Agreement between the Registrant and each of its directors and executive officers and certain key employees	
 	10	.2.1**	 	1999 Stock Option Plan	
 	10	.2.2**	 	Amendment to 1999 Stock Option Plan	
 	10	.3.1**	 	2000 Stock Plan	
 	10	.3.2**	 	First Amendment to 2000 Stock Plan	
 	10	.3.3**	 	Second Amendment to 2000 Stock Plan	
 	10	.3.4**	 	Third Amendment to 2000 Stock Plan	
 	10	.4.1**	 	2006 Stock Plan	
 	10	.4.2**	 	Amendment No. 1 to 2006 Stock Plan	
 	10	.4.3**	 	Amendment No. 2 to 2006 Stock Plan	
 	10	.5**	 	2007 Equity Incentive Plan	
 	10	.6**	 	Management Bonus Plan	
 	10	.7**	 	Letter Agreement dated July 31, 2007 with Ron Frankel	
 	10	.8**	 	Offer Letter dated April 6, 2007 with Eric Blachno	
 	10	.9**	 	Letter Agreement dated September 29, 2006 with Ross Winston	
 	10	.10.1**	 	Employment and Noncompetition Agreement dated December 22, 2000 between George Chamoun and CKMP, Inc.	
 	10	.10.2**	 	Letter Agreement dated September 29, 2006 with George Chamoun	
 	10	.10.3**	 	Letter Agreement dated September 17, 2007 with George Chamoun	
 	10	.11**	 	Separation Agreement dated October 24, 2006 with Robert Rusak	
 	10	.12**	 	Series B Preferred Stock Purchase Agreement dated October 1, 2004 by and among Synacor, Inc. and the investors listed on the signature pages thereto	
 	10	.13**	 	Series C Preferred Stock Purchase Agreement dated October 19, 2006 by and among Synacor, Inc. and the investors listed on the signature pages thereto	
 	10	.14.1**,†	 	Google Services Agreement dated June 30, 2004 between Google Inc. and Synacor, Inc.	
 	10	.14.2**,†	 	Google Services Agreement Order Form dated June 25, 2004 by and between Google Inc. and Synacor, Inc.	
 	10	.14.3**,†	 	Amendment Number One to Google Services Agreement Order Form dated November 1, 2004 by and between Google Inc. and Synacor, Inc.	

 

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	10	.14.4**,†	 	Amendment Number Two to Google Services Agreement Order Form dated December 16, 2005 by and between Google Inc. and Synacor, Inc.	
 	10	.14.5**	 	Amendment Number Three to Google Services Agreement Order Form dated June 30, 2006 by and between Google Inc. and Synacor, Inc.	
 	10	.14.6**,†	 	Amendment Number Four to Google Services Agreement Order Form dated July 31, 2006	
 	10	.15.1†	 	Master Services Agreement No. MSAX063015TPS dated December 4, 2006 by and between Synacor, Inc. and Embarq Management Company	
 	10	.15.2†	 	Contract Order No. COXX063016TPS to Master Services Agreement MSAX063015TPS dated December 4, 2006 by and between Synacor, Inc. and Embarq Management Company	
 	10	.16.1†	 	Synacor Master Services Agreement dated September 30, 2004 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.2**,†	 	Schedule F — First Renewal to Synacor Master Services Agreement dated July 1, 2005 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.3**,†	 	Amendment to Master Services Agreement dated September 30, 2005 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.4†	 	Amendment to Master Services Agreement dated August 16, 2006 by and among Synacor, Inc., Charter Communications Operating, LLC and Charter Communications Holding Company, LLC	
 	10	.16.5**	 	Content Distribution Addendum to Synacor Master Services Agreement dated September 30, 2004 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.17.1**,†	 	Letter Agreement dated July 27, 2006 by and among Synacor, Inc. and Time Warner Cable Inc.	
 	10	.17.2†	 	Synacor Master Services Agreement dated July 13, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.3**,†	 	Amendment No. 1 to Synacor Master Services Agreement dated December 28, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.4**,†	 	Amendment No. 2 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.5**	 	Content Distribution Addendum to Synacor Master Services Agreement dated July 21, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.6†	 	Content Attachment No. 1 to Content Distribution Addendum dated November 21, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.7†	 	Amendment No. 1 to Attachment Content No. 1 dated June 1, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.8†	 	Content Attachment No. 2 to Content Distribution Addendum to Synacor Master Services Agreement dated June 6, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.9**,†	 	Search Revenue Sharing Addendum to Synacor Master Services Agreement dated November 18, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.10**,†	 	Search Revenue Sharing Addendum No. 2 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.11**,†	 	Search Revenue Sharing Addendum No. 3 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.18.1**	 	Sublease dated March 3, 2006 between Ludlow Technical Products Corporation and Synacor, Inc.	
 	10	.18.2**	 	First Amendment to Sublease dated as of September 25, 2006	
 	10	.18.3**	 	Second Amendment to Sublease dated as of February 27, 2007	

 

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	10	.19**	 	2007 Management Cash Incentive Plan	
 	10	.20**	 	2007 Employee Stock Purchase Plan	
 	10	.21**	 	Amendment to Offer Letter with Eric Blachno	
 	10	.22**	 	Second Amendment to Offer Letter with Eric Blachno	
 	10	.23**	 	Severance Agreement with Ron Frankel	
 	10	.24**	 	Severance Agreement with Eric Blachno	
 	10	.25**	 	Severance Agreement with George Chamoun	
 	10	.26**	 	Severance Agreement with Ross Winston	
 	16	.1**	 	Letter regarding change in certifying accountant	
 	23	.1**	 	Consent of Deloitte & Touche LLP	
 	23	.2**	 	Consent of Freed Maxick & Battaglia, CPAs, PC	
 	23	.3*	 	Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1).	
 	24	.1**	 	Power of Attorney (contained in the signature page to this registration statement)	
 	24	.2**	 	Power of Attorney from Jeffrey Mallett	
 	99	.1**	 	Consent of Empire Valuation Consultants, LLC	
 	99	.2**	 	Consent of Anvil Advisors	

 

			
*		To be filed by amendment.	
 		
**		Previously filed.	

			
†		Confidential treatment requested for portions of the document. The omitted portions have been filed with the Securities and Exchange Commission.	

 
SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this amendment no. 6 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Buffalo, State of New York, on this 11th day of December, 2007.

SYNACOR, INC.

 	By: 	/s/   Ron Frankel	

Ron Frankel
President and Chief Executive Officer

Pursuant to the requirements of the Securities Act, this amendment no. 6 to the registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated:

 	 	 	 	 	 	 	
Signature	 	Title	 	Date	

/s/   Ron Frankel

Ron Frankel	 	President, Chief Executive Officer and Director (Principal Executive Officer)	 	December 11, 2007	
 	 	 	 	 	
/s/   Eric Blachno

Eric Blachno	 	Chief Financial Officer (Principal Financial and Accounting Officer)	 	December 11, 2007	
 	 	 	 	 	
*

Andrew Kau	 	Director	 	December 11, 2007	
 	 	 	 	 	
*

Jordan Levy	 	Director	 	December 11, 2007	
 	 	 	 	 	
*

Jeffrey Mallett	 	Director	 	December 11, 2007	
 	 	 	 	 	
*

Mark Morrissette	 	Director	 	December 11, 2007	
 	 	 	 	 	
*

M. Scott Murphy	 	Director	 	December 11, 2007	
 	 	 	 	 	
*

Joseph Tzeng	 	Director	 	December 11, 2007	

 
			
* By:  	/s/   Ron Frankel
	 	
Ron Frankel, attorney-in-fact

 
INDEX TO EXHIBITS

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	1	.1*	 	Form of Underwriting Agreement	
 	3	.1**	 	Amended and Restated Certificate of Incorporation	
 	3	.2**	 	Form of Amended and Restated Certificate of Incorporation to be effective upon closing	
 	3	.3**	 	Bylaws	
 	3	.4**	 	Form of Amended and Restated Bylaws to be effective upon closing	
 	4	.1	 	Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4	
 	4	.2*	 	Form of certificate for common stock	
 	4	.3**	 	Third Amended and Restated Investors’ Rights Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	4	.4**	 	Third Amended and Restated Stock Restriction, First Refusal and Co-Sale Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	4	.5**	 	Third Amended and Restated Voting Agreement by and among Synacor, Inc., certain stockholders and the investors listed on the signature pages thereto	
 	5	.1*	 	Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP	
 	10	.1**	 	Form of Indemnification Agreement between the Registrant and each of its directors and executive officers and certain key employees	
 	10	.2.1**	 	1999 Stock Option Plan	
 	10	.2.2**	 	Amendment to 1999 Stock Option Plan	
 	10	.3.1**	 	2000 Stock Plan	
 	10	.3.2**	 	First Amendment to 2000 Stock Plan	
 	10	.3.3**	 	Second Amendment to 2000 Stock Plan	
 	10	.3.4**	 	Third Amendment to 2000 Stock Plan	
 	10	.4.1**	 	2006 Stock Plan	
 	10	.4.2**	 	Amendment No. 1 to 2006 Stock Plan	
 	10	.4.3**	 	Amendment No. 2 to 2006 Stock Plan	
 	10	.5**	 	2007 Equity Incentive Plan	
 	10	.6**	 	Management Bonus Plan	
 	10	.7**	 	Letter Agreement dated July 31, 2007 with Ron Frankel	
 	10	.8**	 	Offer Letter dated April 6, 2007 with Eric Blachno	
 	10	.9**	 	Letter Agreement dated September 29, 2006 with Ross Winston	
 	10	.10.1**	 	Employment and Noncompetition Agreement dated December 22, 2000 between George Chamoun and CKMP, Inc.	
 	10	.10.2**	 	Letter Agreement dated September 29, 2006 with George Chamoun	
 	10	.10.3**	 	Letter Agreement dated September 17, 2007 with George Chamoun	
 	10	.11**	 	Separation Agreement dated October 24, 2006 with Robert Rusak	
 	10	.12**	 	Series B Preferred Stock Purchase Agreement dated October 1, 2004 by and among Synacor, Inc. and the investors listed on the signature pages thereto	
 	10	.13**	 	Series C Preferred Stock Purchase Agreement dated October 19, 2006 by and among Synacor, Inc. and the investors listed on the signature pages thereto	
 	10	.14.1**,†	 	Google Services Agreement dated June 30, 2004 between Google Inc. and Synacor, Inc.	
 	10	.14.2**,†	 	Google Services Agreement Order Form dated June 25, 2004 by and between Google Inc. and Synacor, Inc.	
 	10	.14.3**,†	 	Amendment Number One to Google Services Agreement Order Form dated November 1, 2004 by and between Google Inc. and Synacor, Inc.	

 

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	10	.14.4**,†	 	Amendment Number Two to Google Services Agreement Order Form dated December 16, 2005 by and between Google Inc. and Synacor, Inc.	
 	10	.14.5**	 	Amendment Number Three to Google Services Agreement Order Form dated June 30, 2006 by and between Google Inc. and Synacor, Inc.	
 	10	.14.6**,†	 	Amendment Number Four to Google Services Agreement Order Form dated July 31, 2006	
 	10	.15.1†	 	Master Services Agreement No. MSAX063015TPS dated December 4, 2006 by and between Synacor, Inc. and Embarq Management Company	
 	10	.15.2†	 	Contract Order No. COXX063016TPS to Master Services Agreement MSAX063015TPS dated December 4, 2006 by and between Synacor, Inc. and Embarq Management Company	
 	10	.16.1†	 	Synacor Master Services Agreement dated September 30, 2004 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.2**,†	 	Schedule F — First Renewal to Synacor Master Services Agreement dated July 1, 2005 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.3**,†	 	Amendment to Master Services Agreement dated September 30, 2005 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.16.4†	 	Amendment to Master Services Agreement dated August 16, 2006 by and among Synacor, Inc., Charter Communications Operating, LLC and Charter Communications Holding Company, LLC	
 	10	.16.5**	 	Content Distribution Addendum to Synacor Master Services Agreement dated September 30, 2004 by and between Synacor, Inc. and Charter Communications Holding Company, LLC	
 	10	.17.1**,†	 	Letter Agreement dated July 27, 2006 by and among Synacor, Inc. and Time Warner Cable Inc.	
 	10	.17.2†	 	Synacor Master Services Agreement dated July 13, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.3**,†	 	Amendment No. 1 to Synacor Master Services Agreement dated December 28, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.4**,†	 	Amendment No. 2 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.5**	 	Content Distribution Addendum to Synacor Master Services Agreement dated July 21, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.6†	 	Content Attachment No. 1 to Content Distribution Addendum dated November 21, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.7†	 	Amendment No. 1 to Content No. 1 Attachment dated June 1, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.8†	 	Content Attachment No. 2 to Content Distribution Addendum to Synacor Master Services Agreement dated June 6, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.9**,†	 	Search Revenue Sharing Addendum to Synacor Master Services Agreement dated November 18, 2004 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.10**,†	 	Search Revenue Sharing Addendum No. 2 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.17.11**,†	 	Search Revenue Sharing Addendum No. 3 to Synacor Master Services Agreement dated October 26, 2005 by and among Synacor, Inc. and ACC Operations, Inc.	
 	10	.18.1**	 	Sublease dated March 3, 2006 between Ludlow Technical Products Corporation and Synacor, Inc.	
 	10	.18.2**	 	First Amendment to Sublease dated as of September 25, 2006	

 

 	 	 	 	 	
Exhibit	 	 	
No.	 	Description	
 		
 	10	.18.3**	 	Second Amendment to Sublease dated as of February 27, 2007	
 	10	.19**	 	2007 Management Cash Incentive Plan	
 	10	.20**	 	2007 Employee Stock Purchase Plan	
 	10	.21**	 	Amendment to Offer Letter with Eric Blachno	
 	10	.22**	 	Second Amendment to Offer Letter with Eric Blachno	
 	10	.23**	 	Severance Agreement with Ron Frankel	
 	10	.24**	 	Severance Agreement with Eric Blachno	
 	10	.25**	 	Severance Agreement with George Chamoun	
 	10	.26**	 	Severance Agreement with Ross Winston	
 	16	.1**	 	Letter regarding change in certifying accountant	
 	23	.1**	 	Consent of Deloitte & Touche LLP	
 	23	.2**	 	Consent of Freed Maxick & Battaglia, CPAs, PC	
 	23	.3*	 	Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1).	
 	24	.1**	 	Power of Attorney (contained in the signature page to this registration statement)	
 	24	.2**	 	Power of Attorney from Jeffrey Mallett	
 	99	.1**	 	Consent of Empire Valuation Consultants, LLC	
 	99	.2**	 	Consent of Anvil Advisors	

 

			
*		To be filed by amendment.	
 		
**		Previously filed.	

			
†		Confidential treatment requested for portions of the document. The omitted portions have been filed with the Securities and Exchange Commission.	

 

EXHIBIT 10.15.1
CONFIDENTIAL TREATMENT REQUESTED
MSA No.: MSAX063015TPS
MASTER SERVICES AGREEMENT
BETWEEN
EMBARQ MANAGEMENT COMPANY
AND
SYNACOR, INC.

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	1 of 37	

 

MSA No.: MSAX063015TPS
TABLE OF CONTENTS
 	 	 	 	 	
1.0 DEFINITIONS	 	 	6	 	
 	 	 	 	 	
2.0 SERVICES	 	 	8	 	
 	 	 	 	 	
2.1 Scope of Services	 	 	8	 	
 	 	 	 	 	
2.2 No Volume Commitment	 	 	8	 	
 	 	 	 	 	
2.3 Supplier’s Performance	 	 	8	 	
 	 	 	 	 	
2.4 Limitations	 	 	9	 	
 	 	 	 	 	
2.5 Acceptance of Services and Deliverables	 	 	9	 	
 	 	 	 	 	
2.6 Changes to Services	 	 	9	 	
 	 	 	 	 	
2.7 Restrictions	 	 	9	 	
 	 	 	 	 	
3.0 EMBARQ RESPONSIBILITIES	 	 	10	 	
 	 	 	 	 	
3.1 Embarq Support; Supplier Status	 	 	10	 	
 	 	 	 	 	
3.2 Materials and Equipment	 	 	10	 	
 	 	 	 	 	
4.0 COMPENSATION and INVOICING	 	 	10	 	
 	 	 	 	 	
4.1 Compensation	 	 	10	 	
 	 	 	 	 	
4.2 Expenses	 	 	11	 	
 	 	 	 	 	
4.3 Taxes	 	 	11	 	
 	 	 	 	 	
4.4 Invoicing, Itemization and Payment Procedures	 	 	11	 	
 	 	 	 	 	
4.5 Offset Right	 	 	12	 	
 	 	 	 	 	
4.6 No Payment Upon Material Breach	 	 	12	 	
 	 	 	 	 	
4.7 Prompt Invoicing	 	 	12	 	
 	 	 	 	 	
4.8 Electronic Ordering	 	 	12	 	
 	 	 	 	 	
5.0 AFFILIATE TRANSACTIONS	 	 	13	 	
 	 	 	 	 	
5.1 Embarq Affiliates’ Purchase Rights	 	 	13	 	
 	 	 	 	 	
5.2 Contractual Liability	 	 	13	 	
 	 	 	 	 	
5.3 Acquisitions and Divestitures	 	 	13	 	
 	 	 	 	 	
6.0 TERM AND TERMINATION	 	 	13	 	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	2 of 37	

 

MSA No.: MSAX063015TPS

6.1 Term	 	 	13	 	
 	 	 	 	 	
6.2 Termination for Cause	 	 	14	 	
 	 	 	 	 	
6.3 Termination for Acquisition, Merger or Change in Control	 	 	14	 	
 	 	 	 	 	
6.4 Termination for Financial Instability	 	 	15	 	
 	 	 	 	 	
6.5 Transition Services	 	 	15	 	
 	 	 	 	 	
6.6 Effect of Termination	 	 	15	 	
 	 	 	 	 	
6.7 No Liability	 	 	16	 	
 	 	 	 	 	
7.0 Supplier Warranties	 	 	16	 	
 	 	 	 	 	
7.1 General Services and Deliverables Warranty	 	 	16	 	
 	 	 	 	 	
7.2 Virus Warranty	 	 	17	 	
 	 	 	 	 	
7.3 Malicious Technology	 	 	17	 	
 	 	 	 	 	
7.4 Compliance with Laws; Permits	 	 	17	 	
 	 	 	 	 	
7.5 Subcontracts	 	 	18	 	
 	 	 	 	 	
7.6 Certification of Legal Status	 	 	18	 	
 	 	 	 	 	
7.7 Breach of Warranty	 	 	18	 	
 	 	 	 	 	
8.0 Embarq Warranties	 	 	18	 	
 	 	 	 	 	
9.0 PERSONNEL	 	 	18	 	
 	 	 	 	 	
9.1 Required Compliance with Agreement	 	 	18	 	
 	 	 	 	 	
9.2 Removal	 	 	19	 	
 	 	 	 	 	
9.3 Safety	 	 	19	 	
 	 	 	 	 	
9.4 Weapons Prohibition	 	 	19	 	
 	 	 	 	 	
9.5 Background Checks	 	 	19	 	
 	 	 	 	 	
9.6 Security Adherence and Access Rights	 	 	20	 	
 	 	 	 	 	
9.7 Investigations	 	 	20	 	
 	 	 	 	 	
10.0 CONFIDENTIAL INFORMATION	 	 	20	 	
 	 	 	 	 	
10.1 Confidentiality	 	 	20	 	
 	 	 	 	 	
10.2 Information Security	 	 	21	 	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	3 of 37	

 

MSA No.: MSAX063015TPS

10.3 No Publicity	 	 	22	 	
 	 	 	 	 	
10.4 Exception for Legal Process	 	 	22	 	
 	 	 	 	 	
10.5 Injunctive Relief	 	 	22	 	
 	 	 	 	 	
11.0 Ownership	 	 	22	 	
 	 	 	 	 	
11.1 Embarq Property	 	 	22	 	
 	 	 	 	 	
11.2 Developed Property	 	 	23	 	
 	 	 	 	 	
11.3 No Implied License	 	 	23	 	
 	 	 	 	 	
12.0 Mutual Representations and Warranties	 	 	23	 	
 	 	 	 	 	
12.1 Formation; Authorization; Litigation	 	 	23	 	
 	 	 	 	 	
12.2 No Violations; Approvals	 	 	24	 	
 	 	 	 	 	
13.0 WARRANTY DISCLAIMERS	 	 	24	 	
 	 	 	 	 	
14.0 INDEMNITY	 	 	24	 	
 	 	 	 	 	
14.1 Supplier’s General Third Party Indemnity	 	 	24	 	
 	 	 	 	 	
14.2 Embarq’s General Third Party Indemnity	 	 	25	 	
 	 	 	 	 	
14.3 Supplier’s Intellectual Property Indemnity	 	 	25	 	
 	 	 	 	 	
14.4 Embarq Indemnity	 	 	25	 	
 	 	 	 	 	
14.5 Indemnification Procedures	 	 	26	 	
 	 	 	 	 	
15.0 LIMITATION OF DAMAGES	 	 	27	 	
 	 	 	 	 	
16.0 INSURANCE	 	 	27	 	
 	 	 	 	 	
16.1 Required Insurance Coverage	 	 	27	 	
 	 	 	 	 	
16.2 Certificates of Insurance	 	 	27	 	
 	 	 	 	 	
17.0 AUDIT RIGHTS	 	 	28	 	
 	 	 	 	 	
17.1 Records Maintenance	 	 	28	 	
 	 	 	 	 	
17.2 Procedures	 	 	28	 	
 	 	 	 	 	
18.0 DISPUTE RESOLUTION	 	 	28	 	
 	 	 	 	 	
18.1 Option to Negotiate Disputes	 	 	28	 	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	4 of 37	

 

MSA No.: MSAX063015TPS

18.2 Continuing Performance	 	 	29	 	
 	 	 	 	 	
18.3 Jury Waiver; Arbitration	 	 	29	 	
 	 	 	 	 	
18.4 Legal Fees	 	 	29	 	
 	 	 	 	 	
19.0 SUPPLIER DIVERSITY	 	 	30	 	
 	 	 	 	 	
19.1 Embarq’s Supplier Diversity Policy	 	 	30	 	
 	 	 	 	 	
19.2 Registration	 	 	30	 	
 	 	 	 	 	
19.3 Supplier Diversity Schedule	 	 	30	 	
 	 	 	 	 	
20.0 GENERAL	 	 	30	 	
 	 	 	 	 	
20.1 Notices	 	 	30	 	
 	 	 	 	 	
20.2 Business Conduct Code	 	 	31	 	
 	 	 	 	 	
20.3 Assignment	 	 	31	 	
 	 	 	 	 	
20.4 Independent Contractor	 	 	31	 	
 	 	 	 	 	
20.5 Governing Law	 	 	31	 	
 	 	 	 	 	
20.6 Waiver and Severability	 	 	32	 	
 	 	 	 	 	
20.7 Survival	 	 	32	 	
 	 	 	 	 	
20.8 Marks	 	 	32	 	
 	 	 	 	 	
20.9 Remedies	 	 	32	 	
 	 	 	 	 	
20.10 Federal Acquisition Regulations; Executive Order 11246	 	 	32	 	
 	 	 	 	 	
20.11 Construction	 	 	33	 	
 	 	 	 	 	
20.12 Entire Agreement; Modifications; Inconsistencies	 	 	33	 	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	5 of 37	

 

MSA No.: MSAX063015TPS
MASTER SERVICES AGREEMENT
This Master Services Agreement No. MSAX063015TPS (as may be amended from time to time, the “ Agreement ”) dated as of November ___, 2006 (“ Effective Date ”) is between Embarq Management Company, a Delaware corporation (“ Embarq ”), and Synacor, Inc., a Delaware corporation (“ Supplier ”).
BACKGROUND

 	A.	 	Supplier is in the business of providing Services and Deliverables to its customers.	
 		
 	B.	 	Embarq is in the business of providing telecommunications services to its customers including voice, data, video and wireless services.	
 		
 	C.	 	Embarq and Supplier may enter into one or more Orders for Supplier to provide Services and Deliverables to Embarq.	
 		
 	D.	 	Embarq and Supplier desire to specify the standard terms that will apply to the Orders.	
AGREEMENT

1.0	 	DEFINITIONS	
 		
 	 	“ Agreement ” means this Agreement and all schedules, orders and other attachments to this Agreement.	
 		
 	 	“ Certified Diverse Supplier ” is defined in subsection 19.1 (Embarq’s Supplier Diversity Policy).	
 		
 	 	“ Claim ” is defined in subsection 14.5 (Indemnification Procedures).	
 		
 	 	“ Confidential Information ” means (a) this Agreement and the discussions, negotiations and proposals related to this Agreement, (b) any information exchanged in connection with this Agreement concerning the other party’s business, including without limitation tangible, intangible, visual, electronic, written, or oral information, whether received directly or indirectly from the other party or, in the case of Embarq, from Embarq Customers, and (c) Embarq Data. Confidential Information does not include information that is: (i) rightfully known to the receiving party before negotiations leading up to this Agreement; (ii) independently developed by the receiving party without relying on the disclosing party’s Confidential Information; (iii) part of the public domain or is lawfully obtained by the receiving party from a third party not under an obligation of confidentiality; or (iv) free of confidentiality restrictions by agreement of the disclosing party.	
 		
 	 	“Control” means the power to vote 50% or more of the voting interests of an entity or ownership of 50% or more of the beneficial interests in income or capital of an entity.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	6 of 37	

 

MSA No.: MSAX063015TPS

 	 	“ Deliverables ” means documents, technology, data, information and materials deliverable from Supplier to Embarq and specified in an Order.	
 		
 	 	“ Documentation ” means all user manuals, reference guides, brochures, installation manuals, specifications, release notes, error message manuals or other written documentation provided to Embarq by Supplier and pertaining to the installation, use, features or performance of the Deliverables.	
 		
 	 	“ Effective Date ” is defined in the Preamble.	
 		
 	 	“ Indemnified Party ” is defined in subsection 14.5 (Indemnification Procedures).	
 		
 	 	“ Indemnifying Party ” is defined in subsection 14.5 (Indemnification Procedures).	
 		
 	 	“ Order ” means an accepted written or electronic order from Embarq for Services or Deliverables.	
 		
 	 	“ Security Standards ” means commercially reasonable security features in all material hardware and software systems and platforms that Supplier uses to access Embarq’s Confidential Information.	
 		
 	 	“ Services ” means the services Supplier provides to Embarq as specified in an Order.	
 		
 	 	“ Embarq Affiliate ” means (i) any entity, directly or indirectly, Controlling, Controlled by or under common Control with Embarq or (ii) any direct or indirect wholly owned affiliate of Embarq Corporation that is subsequently divested.	
 		
 	 	[*]	
 		
 	 	“ Embarq Customer ” means a user of or subscriber to one or more services or products offered by Embarq or an Embarq Affiliate.	
 		
 	 	“ Embarq Data ” means all information collected or developed by (i) Embarq or an Embarq Affiliate regarding its customers or (ii) by Supplier regarding Embarq customers (but only in their capacity as Embarq customers), including, under each of the clauses (i) and (ii) of this definition, location-based information, phone or other identification numbers issued to Embarq customers, electronic serial numbers, Embarq customers’ personalization	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	7 of 37	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

MSA No.: MSAX063015TPS

 	 	information and automatic number identification information, and information described in the Federal Communications Commission’s definition of “Customer Proprietary Network Information” as set forth in 47 USC Section 222(h)(1) (as amended and interpreted from time to time).	
 		
 	 	“ Embarq Indemnitee ” is defined in subsection 14.1 (Supplier’s General Third Party Indemnity).	
 		
 	 	“ Embarq-Owned Property ” means all tangible and intangible items or information that Supplier receives from Embarq or from a third party on Embarq’s behalf, or that is paid for by Embarq, including Embarq Content (as defined in an applicable Order).	
 		
 	 	“ Supplier Affiliate ” means (i) any entity, directly or indirectly, Controlling, Controlled by or under common Control with Supplier.	
 		
 	 	“ Supplier Indemnitee ” is defined in subsection 14.2 (Embarq’s General Third Party Indemnity).	
 		
 	 	“ Supplier Personnel ” means Supplier’s employees, subcontractors or agents who perform Services, act on Supplier’s behalf or are paid by Supplier in connection with this Agreement.	
 		
 	 	“ Transition Period ” means a period of up to 6 months from the effective date of the termination or expiration of an Order or this Agreement, during which Supplier will provide Services pursuant to this Agreement.	
 		
2.0	 	SERVICES	

 	2.1	 	Scope of Services.	
 		
 	 	 	This Agreement sets forth the applicable terms for any Order Embarq may issue to Supplier for Services or Deliverables. Each Order specifically incorporates the terms of this Agreement. Supplier may provide the Services directly to Embarq, or indirectly using contractors or other third party vendors or service providers, provided that in any event, Supplier shall remain responsible for the delivery of the Services or Deliverables to Embarq in accordance with this Agreement.	

 	2.2	 	No Volume Commitment	
 		
 	 	 	This Agreement does not authorize Supplier to provide or commit Embarq to order any Services or Deliverables. Embarq’s issuance of an Order by an authorized Embarq agent is Embarq’s agreement to pay for Services or Deliverables and Supplier’s agreement to provide the Services or Deliverables, in each case in accordance with this Agreement and the applicable Order.	
 		
 	2.3	 	Supplier’s Performance.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	8 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	Supplier will perform the Services and provide Deliverables in accordance with this Agreement and the applicable Order, including but not limited to all specified time requirements. Embarq may inspect Supplier’s performance; however, Embarq’s inspection (or lack of inspection) will not be an acceptance of Services or Deliverables, a waiver of any right or warranty, or preclude Embarq from rejecting non-conforming Services or Deliverables in accordance with any acceptance terms and criteria set forth in an applicable Order.	
 		
 	2.4	 	Limitations.	
 		
 	 	 	Supplier will not be responsible for, nor liable hereunder in connection with, any failure in the Services or Deliverables due to or resulting from: (a) any Embarq-Owned Property or other content provided by or for Embarq; (b) Embarq’s negligence, acts or omissions; (c) telecommunications or equipment failures outside of Supplier’s facilities; or (d) unauthorized access, breach of firewalls or other hacking by third parties of Supplier’s systems if such hacking or unauthorized access is not a result of Supplier’s negligence or intentional misconduct.	
 		
 	2.5	 	Acceptance of Services and Deliverables.	
 		
 	 	 	The Order will specify the manner in which Embarq will accept Services and Deliverables, if applicable.	
 		
 	2.6	 	Changes to Services.	
 		
 	 	 	Embarq may propose changes to Services and Deliverables to be provided by Supplier under an Order by giving Supplier a change notice. If Supplier believes the schedule or compensation for Services must be modified to accommodate the proposed change, Supplier must provide Embarq with a detailed written estimate of the anticipated effect on the schedule and compensation within 7 business days after receipt of Embarq’s written change notice. If Supplier timely submits a response, the parties will negotiate a mutually acceptable resolution. Supplier will not unreasonably withhold, delay or condition its consent to any change. Following the issuance of a change notice and during the pendency of any negotiation, Supplier will continue to provide Services and Deliverables as specified in the Order, unless otherwise directed by Embarq in writing. If Supplier fails to respond to the change notice within 7 business days, Embarq’s proposed change shall be deemed rejected.	
 		
 	2.7	 	Restrictions.	
 		
 	 	 	Except as specifically permitted in this Agreement, Embarq shall not, directly or indirectly: (a) use any of Supplier’s Confidential Information to create any software that is similar to any of the software provided by Supplier under this Agreement or to provide any service which performs the same functionality as the Service; (b) decompile, disassemble, reverse engineer or use any similar means to attempt to discover the source code of the software or the trade secrets therein, or otherwise circumvent any technological measure that controls	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	9 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	access to the software, Deliverables or Services; (c) encumber, transfer, rent, lease, or time-share the software, Deliverables or Services (except with Embarq Affiliates, subject to Supplier’s prior written consent), or use them in any service bureau arrangement or otherwise for the benefit of any third party; (d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify any software or Deliverables; (e) remove any proprietary notices; or (f) permit any third party to engage in any of the acts proscribed in clauses (a) through (e) above.	

3.0	 	EMBARQ RESPONSIBILITIES	

 	3.1	 	Embarq Support; Supplier Status.	
 		
 	 	 	Embarq acknowledges that the continuing performance of certain Services or Deliverables may depend on its provision of cooperation, assistance, information and access to Supplier, as specified in an applicable Order. If Embarq fails to timely provide any of the foregoing as specified in an applicable Order, then Supplier will not be liable for any corresponding delay in its performance. The parties’ contacts (designated in Section 20.1) are responsible for facilitating communication between Supplier and Embarq regarding all technical and business matters.	
 		
 	3.2	 	Materials and Equipment.	
 		
 	 	 	Embarq may provide (on its own behalf, or on behalf of its sponsors or advertisers) certain Embarq-Owned Property, including materials, domain names, Embarq Content and other information to Supplier as reasonably needed to perform the Services. Embarq represents and warrants that it has the right to provide all Embarq-Owned Property, and that use of such Embarq-Owned Property hereunder will not violate Embarq’s obligations under any other agreement, any laws or regulations. Embarq shall obtain, operate and maintain in good working order all equipment and ancillary services needed to connect to, access or otherwise use the Services via the Internet, including without limitation, modems, servers, hardware, software, network and communication services (“ Equipment ”). Embarq and Supplier shall jointly ensure that all Equipment is compatible with the Services (and, to the extent applicable, any software interface) and complies with all configurations and specifications set forth in Supplier’s published documentation. Embarq shall maintain the integrity and security of its Equipment (physical, electronic and otherwise), account passwords, and Embarq-Owned Materials.	

4.0	 	COMPENSATION AND INVOICING	

 	4.1	 	Compensation.	
 		
 	 	 	Supplier’s rates or prices are in Schedule A or as specified in an Order. For hourly rate billing, Supplier will submit both itemized and summarized time records with each invoice. Time records must be broken down in 15-minute increments by individual, task and billing rate.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	10 of 37	

 

MSA No.: MSAX063015TPS

 	4.2	 	Expenses.	
 		
 	 	 	Embarq will reimburse Supplier for travel, living, and other out-of-pocket expenses if the expenses (i) are authorized in the Order, (ii) are reasonably incurred and documented, (iii) approved in advance by Embarq if in excess of five hundred dollars ($500), and (iv) otherwise conform to Embarq’s travel and reimbursement policy set forth below:	

 	(a.)	 	Supplier must submit an expense report to Embarq within 60 days after an expense is incurred. Supplier must submit, as applicable, the following in its expense report: (i) passenger flight coupon and travel itinerary, (ii) the original receipt for meals and parking and toll fees, in excess of $15 (tear tab receipts are not accepted), and (iii) the original receipt for hotel accommodations, vehicle rental costs, and fuel costs for rental vehicle usage (regardless of the amount).	
 		
 	(b.)	 	Supplier must use Embarq’s online travel reservation system to book air, hotel and rental car reservations. If Supplier cannot gain access to Embarq’s online travel reservation system, or for more complicated trips, Supplier must contact the Embarq Business Travel Center by calling (800) 347-2639 during regular business hours. All air travel must be coach or economy.	
 		
 	(c.)	 	Embarq will reimburse Supplier for use of a personal vehicle for business purposes related to the Services, this Agreement and the Orders at the rate set forth in the IRS regulations in effect at the time the expense is incurred. Embarq will not reimburse Supplier for personal expenses, including, without limitation, phone calls and meals.	

 	4.3	 	Taxes.	
 		
 	 	 	Embarq is responsible for any sales or use taxes and all other taxes duties and fees (other than taxes assessed on Supplier’s income) assessed on its payment for Services and Deliverables. Supplier will itemize sales or use taxes separately on Supplier’s invoices. If Embarq is exempt from taxation for the Services or Deliverables, it will submit an exemption certificate to Supplier.	

 	4.4	 	Invoicing, Itemization and Payment Procedures.	

 	(a.)	 	Unless otherwise provided in the Order, Supplier will invoice Embarq once per month. Each invoice will include: (i) Supplier’s name and remit address, (ii) invoice number, (iii) invoice date, (iv) the name of Supplier’s Embarq contact, (v) the contract number that Embarq assigned to this Agreement, and (vi) the Embarq business unit and cost center or the Embarq Order number. The Order may specify additional invoicing requirements, such as the invoice format and documentation required to support the fees and expenses.	
 		
 	(b.)	 	If Supplier is unable to submit invoices and receive payments electronically on the Effective Date, Supplier must enroll for automated invoicing and payment no later than 30 days after the Effective Date and, in the interim, Supplier must send invoices to the following address:	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	11 of 37	

 

MSA No.: MSAX063015TPS
Embarq Accounts Payable
P.O. Box 7936
Shawnee Mission, Kansas 66207-0936

 	If Supplier fails to enroll for automated invoicing and payment within 30 days after the Effective Date, Embarq may delay payment until Supplier completes enrollment.	
 		
 	(c.)	 	Embarq will pay undisputed amounts within 45 days after receiving Supplier’s invoice. Embarq will pay disputed amounts, if owed, within 30 days after the dispute is resolved, provided that for all disputed amounts, Embarq will notify Supplier in writing within 30 days after Embarq’s receipt of an invoice of any objections, if any, it has thereon (including a description of the basis for such objection) and Embarq will work with Supplier in good faith to reconcile amounts for which written objection has been made.	
 		
 	(d.)	 	Supplier may only invoice Embarq for charges, amounts or fees set forth in this Agreement or an Order.	
 		
 	(e.)	 	Embarq’s failure to pay undisputed amounts within the period set forth in Section 4.4(c) above shall be deemed a material breach and Supplier shall have the right to terminate the Agreement if such breach is not cured within ten (10) business days of Embarq’s receipt of written notice.	

 	4.5	 	Offset Right.	
 		
 	 	 	In the event a party (“ Owing Party ”) fails to timely pay any amount owed to the other party (“ Owed Party ”) under this Agreement or any Order, Owed Party may offset any such amount against any amount owed by Owed Party or any Affiliate of Owed Party under this Agreement or Order to Owing Party.	
 		
 	4.6	 	No Payment Upon Material Breach.	
 		
 	 	 	Embarq is not obligated to make any payment under this Agreement or an Order if Supplier materially breaches this Agreement or an Order until Supplier has cured or Embarq has waived the breach in accordance with this Agreement.	
 		
 	4.7	 	Prompt Invoicing.	
 		
 	 	 	Supplier must not (a) invoice Embarq more than 90 days after Supplier is permitted to issue an invoice under this Agreement (“ Late Invoices ”) or (b) initially raise a claim for payment of a previously issued invoice more than 365 days after the invoice date (“ Late Claims ”). Embarq is not obligated to pay Late Invoices or Late Claims and Supplier waives all rights and remedies related to Late Invoices and Late Claims.	
 		
 	4.8	 	Electronic Ordering.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	12 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	Embarq and Supplier may agree to facilitate electronic ordering, through either the use of an electronic data interchange or an Internet-based e-commerce solution.	

5.0	 	AFFILIATE TRANSACTIONS	

 	5.1	 	Embarq Affiliates’ Purchase Rights.	
 		
 	 	 	Supplier will provide Services and Deliverables under this Agreement and any existing Orders to any Embarq Affiliate, who has agreed to be bound by the terms and conditions of this Agreement, upon request. Supplier will negotiate with Embarq Affiliates in good faith for Orders covering Services and Deliverables not governed by an existing Order, consistent with this Agreement.	
 		
 	5.2	 	Contractual Liability.	
 		
 	 	 	All references to Embarq in this Agreement refer equally to Embarq or the Embarq Affiliate executing a particular Order. Embarq shall be responsible and liable for all Orders submitted by Embarq Affiliates.	
 		
 	5.3	 	Acquisitions and Divestitures	

 	(a.)	 	If Embarq Corporation divests a Embarq Affiliate or other portion of its business (“ Divested Business ”), such Divested Business will be entitled to continue purchasing under this Agreement for the remaining then current Term of this Agreement (exclusive of any Renewal Term) if the Divested Business agrees, in writing, to be bound by the terms and conditions of this Agreement. The Divested Business will be solely responsible and liable for any Services and Deliverables purchased by the Divested Business after the divestiture.	
 		
 	(b.)	 	If Embarq Corporation acquires an entity or creates a new subsidiary after the Effective Date, such entity will immediately be deemed an Embarq Affiliate and will have the same rights and obligations (subject to Section 5.1) as the Embarq Affiliates that are in existence on the Effective Date.	

6.0	 	TERM AND TERMINATION	

 	6.1	 	Term.	
 		
 	 	 	The initial term of this Agreement begins on the Effective Date and will continue for three (3) years from May 1, 2007 (“ Initial Term ”). The term of this Agreement will automatically renew on an annual basis for up to two additional one-year terms (“ Renewal Term ”, collectively with the Initial Term, “Term”), unless Embarq gives notice of its intent not to renew at least 90 days before the expiration of the Term. After the first two Renewal Terms, the Term will automatically renew on an annual basis for successive one-year terms, unless either Party gives notice of its intent not to renew at least 90 days before the expiration of the Term. For any outstanding Order, the terms of this Agreement will	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	13 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	continue in effect until the Order is fulfilled or terminated. This subsection is subject to the early termination rights stated elsewhere in this Agreement.	
 		
 	6.2	 	Termination for Cause.	
 		
 	 	 	If a party materially breaches this Agreement or an Order or both, the other party may give the breaching party a breach notice identifying the action or inaction that is the basis of the breach. The party giving the breach notice may terminate this Agreement or the affected Order if the other party does not cure the breach within 30 days after receiving the breach notice. Unless otherwise provided in the breach notice or unless the breach has been cured, the termination is effective 31 days after the breach notice is received. In addition to any other rights or remedies that Embarq may have, if Embarq terminates under this subsection, Supplier must reimburse Embarq for the increased costs (i.e., the costs in excess of that which Embarq would have paid to Supplier under this Agreement) incurred by Embarq for replacement services and deliverables, but solely to the extent such costs are incurred during the remainder of the then current Term (exclusive of any Renewal Term).	
 		
 	6.3	 	Termination for Acquisition, Merger or Change in Control.	
(a) [*]
(b) If a Change in Control (as defined in Schedule C) of Supplier occurs, [*] Embarq may, at any time within 180 days after receipt of written notice of such Change in Control, terminate this Agreement or an Order or both. [*]

			
EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	14 of 37	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

MSA No.: MSAX063015TPS

 	6.4	 	Termination for Financial Instability.	
 		
 	 	 	If Supplier becomes Insolvent, Embarq may terminate this Agreement without liability with at least 30 days’ notice to Supplier. “ Insolvent ” means: a.) Supplier does not meet its undisputed obligations, including judgments, to third parties as those obligations become due, (b.) Supplier’s stock is removed or delisted from a trading exchange, (c.) Supplier’s long term debt goes on a watch or warning list, or (d.) Supplier’s long term debt rating is downgraded more than 2 levels from its debt rating as of the Effective Date. Supplier may terminate this Agreement effective immediately upon written notice, in the event any assignment is made by Embarq for the benefit of creditors, or if a receiver is appointed to take charge of Embarq’s property.	
 		
 	6.5	 	Transition Services.	
 		
 	 	 	Upon termination or expiration of an Order or this Agreement, Embarq may at its discretion require Supplier to provide a Transition Period for Services. The required Transition Period will not exceed 6 months, unless mutually agreed by both parties. If Embarq initially designates a Transition Period of less than 6 months, it may subsequently extend the Transition Period up to the maximum period of 6 months with 5 days’ notice to Supplier. Embarq may, in its discretion, terminate the Transition Period with notice to Supplier. During the Transition Period, the parties will continue to be bound by and perform in accordance with this Agreement and any Orders. The terms and conditions of Effect of Termination will apply upon termination or expiration of the Transition Period.	
 		
 	6.6	 	Effect of Termination.	
 		
 	 	 	Termination of this Agreement is without prejudice to any other right or remedy of the parties. Termination of this Agreement for any reason does not release either party from	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	15 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission before termination or from any obligation which is expressly stated to survive the termination. All obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive termination.	
 		
 	 	 	Upon termination or expiration of an Order or this Agreement or both, the parties will perform the following obligations:	

 	(a.)	 	Within 15 days after the effective date of termination or expiration, Supplier will return Embarq-Owned Property to locations designated by Embarq;	
 		
 	(b.)	 	Within 30 days after the effective date of termination or expiration, Supplier will invoice Embarq for any final amounts due under the terminated Orders; and	
 		
 	(c.)	 	Both parties will immediately discontinue making any statements or taking any actions that might cause third parties to infer that a business relationship continues to exist between the parties under the Orders or Agreement, and where necessary or advisable, the parties will inform third parties that the parties no longer have a business relationship.	

 	6.7	 	No Liability.	
 		
 	 	 	Each party understands that the rights of termination hereunder are absolute and that it has no right to a continued relationship with the other after termination, except as expressly stated herein. Neither party shall incur any liability whatsoever for any damages, loss, or expense of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement which complies with the terms of this Agreement, whether or not such party is aware of any such damage, loss or expense.	

7.0	 	SUPPLIER WARRANTIES	

 	7.1	 	General Services and Deliverables Warranty.	

 	(a.)	 	Supplier warrants that (i) Services will be provided in a workmanlike manner, (ii) Supplier Personnel will have the requisite experience, skills, knowledge, training and education to perform Services in a professional manner and in accordance with this Agreement and Orders, (iii) all information provided by Supplier to Embarq regarding Supplier Personnel will be truthful and accurate and (iv) that it has all rights necessary to enter into and perform its obligations under this Agreement and to grant the limited rights and licenses hereunder. Notwithstanding anything to the contrary herein, Embarq acknowledges and agrees that Services and Deliverables may be temporarily unavailable for scheduled maintenance or for unscheduled emergency repairs, by Supplier or by third-party providers.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	16 of 37	

 

MSA No.: MSAX063015TPS

 	(b.)	 	Supplier also warrants that, for a period of 1 year after Embarq’s acceptance of Services or Deliverables, (i) Deliverables will be free from defects in design, materials and workmanship that degrade the Services such that they are unable to operate in accordance with any service level agreements associated with this Agreement or with any Order, and (ii) Services and Deliverables will conform to the Order specifications.	

 	7.2	 	Virus Warranty.	
 		
 	 	 	Supplier warrants that the Deliverables as delivered and unmodified will be free from any viruses, worms, disabling programming codes, instructions or other such items known at the time of delivery that may threaten, infect, damage, disable or otherwise interfere with the permitted use of the Deliverables (“ Virus ”). Supplier will test each element of the Deliverables, including any upgrades, before delivery to Embarq to ensure that it is free of any Virus. If Embarq notifies Supplier that it has been informed or has reason to believe that a Virus has infected a Deliverable, Supplier will promptly assist and work continuously with Embarq, at Embarq’s direction and at no charge, until, in Embarq’s determination, the Virus has been eliminated.	
 		
 	7.3	 	Malicious Technology.	
 		
 	 	 	Supplier warrants that the Deliverables as delivered and unmodified form will not: (i) contain any Malicious Technology, (ii) contain any files or features that will disable or destroy any functionality of the Deliverables, (iii) replicate, transmit or activate itself without control of a person operating the computing equipment on which it resides; or (iv) alter, damage or erase any data or computer programs without control of a person operating the computing equipment on which it resides. If the Supplier is in breach of this subsection, no “right to cure” period will apply. Embarq reserves the right to pursue any available civil or criminal action against Supplier for violation of this provision. Supplier will not install, use or execute any software on any Embarq CPUs without Embarq’s written approval. “ Malicious Technology ” means any software, electronic, mechanical or other means, device or function, e.g. (key, node, lock, time-out, “back door,” trapdoor,” “booby trap,” “drop dead device,” “data scrambling device,” “Trojan Horse,”) that would allow Supplier or a third party to: (i) monitor or gain unauthorized access to any Embarq system, (ii) use any electronic self-help mechanism in connection with an Embarq system or (iii) restrict, disable, limit or impair the performance of a Embarq system.	
 		
 	7.4	 	Compliance with Laws; Permits.	
 		
 	 	 	Supplier warrants that it will comply with all laws, orders, codes and regulations in the performance of this Agreement and any Order. To the extent Supplier provides Supplier Personnel to perform Services on Embarq’s premises, Supplier will screen Supplier Personnel in conformance with all local, state and federal regulations, comply with laws, regulations and orders relating to equal employment, workers’ compensation, unemployment compensation, FICA, and immigration and employment verification, and furnish Embarq with its EEO policies and verification of its FICA, workers’ compensation and unemployment compensation if requested. Supplier will obtain and keep current at its	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	17 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	expense all governmental permits, certificates and licenses (including professional licenses, if applicable) necessary for Supplier to perform the Services or provide the Deliverables.	
 		
 	7.5	 	Subcontracts.	
 		
 	 	 	Supplier will remain fully liable for the work performed and for the acts or omissions of any Supplier subcontractor. Supplier will require any subcontractor to comply with the applicable terms of this Agreement and Orders.	
 		
 	7.6	 	Certification of Legal Status.	
 		
 	 	 	Supplier warrants it confirms the legal status of Supplier Personnel to work in the United States. Supplier warrants that Supplier Personnel performing Services pursuant to this Agreement are authorized to work in the United States (“ Compliance with Legal Status ”). At Embarq’s request, Supplier will audit its Compliance with Legal Status and deliver to Embarq a written certification, within 15 business days after Embarq’s request, that Supplier Personnel working in the United States are legally authorized to do so.	
 		
 	7.7	 	Breach of Warranty.	
 		
 	 	 	If Supplier breaches any warranty, Supplier will promptly replace nonconforming Services or Deliverables at Supplier’s sole cost. If Supplier fails to promptly replace nonconforming Services, Embarq may, in addition to exercising any other available remedies, replace nonconforming Services at Supplier’s sole cost.	

8.0	 	EMBARQ WARRANTIES	
 		
 	 	Embarq represents and warrants to Supplier that it has all rights necessary to enter into and perform this Agreement and to grant the limited rights and licenses above including, without limitation, all necessary rights in the Embarq Data and Embarq-Owned Property including but not limited to the Embarq Content and all rights of publicity with respect to any artists, artwork, text material, images, sound or video, if any, associated with the Embarq-Owned Property. Embarq further represents and warrants that to its knowledge the Embarq Data and Embarq-Owned Property are not defamatory, obscene, or otherwise unlawful and do not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity.	
 		
9.0	 	PERSONNEL	

 	9.1	 	Required Compliance with Agreement.	
 		
 	 	 	Supplier will require Supplier Personnel to comply with the applicable terms of this Agreement and Orders.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	18 of 37	

 

MSA No.: MSAX063015TPS

 	9.2	 	Removal.	
 		
 	 	 	Embarq may reject or require Supplier to remove Supplier Personnel from providing Services to Embarq for any lawful reason. Supplier must remove Supplier Personnel promptly upon Embarq’s good faith written request. Embarq is not obligated to pay for Services provided by the removed Supplier Personnel following Embarq’s request for removal. Embarq is not obligated to pay for any costs associated with replacing Supplier Personnel.	
 		
 	9.3	 	Safety.	
 		
 	 	 	Supplier must immediately notify Embarq by telephone (followed by written confirmation within 24 hours) of any Deliverable which fails to comply with applicable safety rules or standards of any government agency or which contains a defect which could present a substantial risk to the health of the public or the environment.	
 		
 	9.4	 	Weapons Prohibition.	
 		
 	 	 	Supplier Personnel must not carry weapons or ammunition onto Embarq’s premises or use or carry weapons while performing on-site Services or attending Embarq-sponsored activities. Supplier must comply with all postings or notices located at Embarq’s premises regarding safety, security or weapons.	
 		
 	9.5	 	Background Checks.	
 		
 	 	 	To the extent Services are performed by Supplier Personnel on Embarq’s premises, at Embarq’s written request, and to the extent permitted by law:	

 	(a.)	 	Supplier will perform reasonable background checks on all Supplier Personnel that perform Services on Embarq’s premises. Background checks will include: (i) criminal history, (ii) education (if degree indicated), (iii) employment history (last 3 positions or last 5 years if with same employer), (iv) references (if any of items (i) through (iii) cannot be completed), and (v) if there is a Reasonable Suspicion (as defined below) of drug use by a Supplier employee who provide services to Embarq, Supplier agrees to perform drug testing at Embarq’s expense. For the purposes of this Agreement, “Reasonable Suspicion” means a reasonable belief based on observed, specific, objective facts where the rational inference to be drawn under the circumstances is that the person is under the influence of drugs. As an example, and not as a limitation, an unexplained workplace accident may be considered to provide reasonable suspicion.	
 		
 	(b.)	 	Supplier Personnel that perform Services on Embarq’s premises will not include anyone with a positive drug test (if such test is required under Section 9.5(a)) or any felony conviction; and	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	19 of 37	

 

MSA No.: MSAX063015TPS

 	(c.)	 	Supplier must immediately remove any Supplier Personnel that perform Services on Embarq’s premises with a felony conviction or positive drug test (if such test is required under Section 9.5(a)) from providing Services.	
 		
 	(d.)	 	At Embarq’s written request, Supplier will audit its compliance with the requirements of this subsection, and will, within 15 business days of Embarq’s request, deliver a written certification to Embarq confirming that Supplier has been and is in compliance with the requirements of this subsection.	

 	9.6	 	Security Adherence and Access Rights.	

 	(a.)	 	Supplier will adhere to all Embarq physical and data security requirements as provided to Supplier in writing.	
 		
 	(b.)	 	Physical security access rights to Embarq premises will be designated by Embarq in accordance with Embarq security guidelines. During performance of Services on Embarq’s premises, Supplier will abide by all procedures and policies applicable to Embarq premises access rights, as provided to Supplier in writing. All Supplier Personnel must receive a security badge from Embarq before performing any portion of Services on Embarq’s premises and will wear the badge at all times while on Embarq’s premises.	
 		
 	(c.)	 	Upon breach of this subsection, Embarq may immediately terminate this Agreement or Order at its sole discretion in accordance with Section 6.3.	

 	9.7	 	Investigations.	
 		
 	 	 	Supplier will refer any security breach that it knows to involve Embarq Data, Embarq Confidential Information or Embarq Property to Embarq’s Corporate Security immediately upon becoming aware of the incident. Supplier must make Supplier Personnel available to Embarq Corporate Security promptly for purposes of investigating and provide information relevant to the investigation as reasonably requested.	

10.0	 	CONFIDENTIAL INFORMATION	

 	10.1	 	Confidentiality.	
 		
 	 	 	Each party acknowledges that while performing its obligations under this Agreement it may have access to the other party’s Confidential Information. With respect to all Confidential Information, the parties agree as follows:	

 	(a.)	 	The receiving party may use the Confidential Information only to perform its obligations under this Agreement. The receiving party must use the same care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information. In no event will the receiving party fail to use reasonable care to avoid unauthorized use, including disclosure, loss, or alteration of the disclosing party’s Confidential Information.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	20 of 37	

 

MSA No.: MSAX063015TPS

 	(b.)	 	Embarq may disclose Supplier’s Confidential Information to Embarq Affiliates, agents, contractors and legal representatives, if they have a need to know and an obligation to protect the Confidential Information that is at least as restrictive as this Agreement. Supplier may disclose Embarq’s Confidential Information to Supplier Personnel if they have a need to know and obligation to protect the Confidential Information that is at least as restrictive as this Agreement.	
 		
 	(c.)	 	Neither party will disclose to the other party any confidential information of a third party without such third party’s consent.	
 		
 	(d.)	 	Upon cessation of work or written request, the receiving party will return or destroy, at its option, all Confidential Information of the disclosing party. Upon request of the disclosing party, the receiving party will furnish an officer’s certificate certifying that the disclosing party’s Confidential Information has been returned or destroyed.	

 	10.2	 	Information Security.	

 	(a.)	 	To protect Embarq’s Confidential Information and Data from unauthorized use, including disclosure, loss or alteration, Supplier will: (i) meet the Security Standards; (ii) inventory and test Security Standards before accepting Embarq’s Confidential Information and Data; and (iii) strictly adhere to industry standard best practices and hardening guidelines;	
 		
 	(b.)	 	Suppliers who need to access, process, use, store, or transmit sensitive information will be subjected to review of their demonstrated capability to protect such information. Upon Embarq’s reasonable request, Supplier will provide information to Embarq to enable Embarq to determine compliance with subsection 10.2(a) above. As part of Embarq’s assessment of Supplier’s internal control structure, Embarq may require Supplier to, without limitation, answer security questionnaires or conduct scans of servers, databases and other network hardware;	
 		
 	(c.)	 	Supplier will promptly inform Embarq of any known or suspected compromises of Embarq’s Confidential Information and Data as a result of Supplier’s failure to comply with the Security Standards.	
 		
 	(d.)	 	On a periodic basis, but in no event more than twice in any 12-month period, Embarq may, upon 10 days’ notice, perform a security assessment to determine Supplier’s compliance with the Security Standards. If Embarq has a reasonable basis to believe that Supplier has breached or is likely to breach the Security Standards, Embarq may, upon 5 days’ notice, perform a security assessment, which assessment will be in addition to any assessment in the ordinary course.	
 		
 	(e.)	 	At Embarq’s reasonable request, Supplier will promptly cooperate with Embarq to develop a plan to protect Embarq’s Confidential Information and Data from failures or attacks on the Security Standards, which plan will include prioritization of	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	21 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	recovery efforts, identification of and implementation plans for alternative data centers or other storage sites and backup capabilities.	
 		
 	(f.)	 	If Supplier fails to meet the obligations in this Section, Embarq will notify Supplier of this failure as provided in this Agreement. Supplier will have 30 days from receiving that notice to correct the cause for the failure. If Supplier fails to remedy any material failure within the 30-day period, Embarq has the right to terminate this Agreement for cause.	
 		
 	(g.)	 	Supplier warrants that the Deliverables will not contain any Unmitigated Vulnerability. “ Unmitigated Vulnerability ” means any technology or configuration that, from a security perspective induces unacceptable operational risks and, is (i) inconsistent with industry-accepted practices, (ii) susceptible to being hacked, broken into or compromised, or (iii) referenced by the Carnegie Mellon CERT ® Coordination Center at www.cert.org.	
 		
 	(h.)	 	Upon Embarq’s reasonable request, Supplier will provide information to Embarq to enable Embarq to determine compliance with this Section.	

 	10.3	 	No Publicity.	
Except as it relates to Embarq’s marketing of the Deliverables, Services and related matters to its users, neither party will, without the other party’s written consent, issue any news release, announcement, denial or confirmation of this Agreement, its value, or its terms and conditions, or in any other manner advertise or publish this Agreement, its value, or its terms and conditions. Nothing in this Agreement is intended to imply that Embarq will agree to any publicity whatsoever. Each party may, in its sole discretion, withhold consent to any publicity. Notwithstanding the foregoing, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction, due diligence inquiry or legal or regulatory requirement.

 	10.4	 	Exception for Legal Process.	
The receiving party may disclose Confidential Information to the extent required by law; but the receiving party must give the disclosing party prompt written notice of the required disclosure and make a reasonable effort to obtain a protective order.

 	10.5	 	Injunctive Relief.	
Each party agrees that the wrongful disclosure of Confidential Information may cause irreparable injury that is inadequately compensable in monetary damages. Accordingly, either party may seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of this Section in addition to any other remedies in law or equity.

11.0	 	OWNERSHIP	

 	11.1	 	Embarq Property.	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	22 of 37	

 

MSA No.; MSAX063015TPS

 	(a.)	 	Supplier must return all Embarq-Owned Property to Embarq upon the termination or expiration of this Agreement and at any time upon Embarq’s request. Supplier is responsible and must account for all Embarq-Owned Property in Supplier’s possession, if any, and bears the risk of loss while the property is in Supplier’s possession. Embarq-Owned Property may only be used in connection with Supplier’s performance of its obligations under this Agreement. If Supplier acquires, purchases or obtains any items in connection with this Agreement that are deemed Embarq-Owned Property, Embarq may inspect any related agreements and associated records, including, without limitation, invoices by which Supplier acquires such Embarq-Owned Property.	
 		
 	(b.)	 	When a Supplier Personnel assignment ends for any reason, voluntary or involuntary, Supplier will ensure all Embarq-Owned Property in Supplier Personnel possession is returned to Embarq within 48 hours of the assignment termination, unless such Embarq-Owned Property is promptly assigned to another Supplier Personnel. If Embarq-Owned Property, including without limitation security badge and keys, is not returned within 48 hours, Supplier will reimburse Embarq for the Embarq-Owned Property at its current market value.	

 	11.2	 	Developed Property.	
If Embarq requests that Supplier undertake product modifications or development of new service functionalities, Supplier and Embarq will negotiate in good faith an applicable statement of work concerning the terms and conditions (including costs, timeframes, Deliverables and ownership) on which Supplier will develop and make available to Embarq and Embarq’s End Users, the product modifications or service functionalities. If the Parties do not agree on these terms and conditions, nothing in the preceding sentence obligates the Supplier to undertake the product modifications or the development of new service functionalities.

 	11.3	 	No Implied License.	
Supplier acknowledges that it has no implied license to use the Embarq-Owned Property other than for Embarq’s benefit as contemplated under this Agreement.

12.0	 	MUTUAL REPRESENTATIONS AND WARRANTIES	

 	12.1	 	Formation; Authorization; Litigation.	
Each party represents and warrants that:

 	(a.)	 	it is validly existing and in good standing, and is qualified to do business, in each jurisdiction where it will conduct business under this Agreement, unless the failure to do so will not have a material adverse effect on its ability to perform under this Agreement;	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	23 of 37	

 

MSA No.: MSAX063015TPS

 	(b.)	 	the signing, delivery and performance of this Agreement by the party has been properly authorized; and	
 		
 	(c.)	 	as of the Effective Date, no claims, actions or proceedings are pending or, to the knowledge of the party, threatened against or affecting the party that may, if adversely determined, reasonably be expected to have a material adverse effect on the party’s ability to perform its obligations under this Agreement.	

 	12.2	 	No Violations; Approvals.	
Each party represents and warrants to the other party that the execution, delivery or performance of this Agreement:

 	(a.)	 	will not violate any existing law, regulation, order, determination or award of any governmental authority or arbitrator, applicable to the party;	
 		
 	(b.)	 	will not violate or cause a breach of the terms of the party’s governing documents or of any material agreement that binds the party; and	
 		
 	(c.)	 	will not require approval or filing with any governmental authority.	

13.0	 	WARRANTY DISCLAIMERS	

 	13.1	 	EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY, SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUPPLIER DOES NOT WARRANT THAT THE SERVICES WILL MEET THE REQUIREMENTS OF EMBARQ OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, SUPPLIER DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. SUPPLIER DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE CONTENTS OF ANY CONTENT OR THE RESULTS TO BE OBTAINED FROM THEIR USE.	

14.0	 	INDEMNITY	

 	14.1	 	Supplier’s General Third Party Indemnity.	
Except for claims covered by Supplier’s Intellectual Property Indemnity, Supplier will indemnify and defend Embarq, the Embarq Affiliates, and their respective directors, officers, agents, employees and customers (each, a “ Embarq Indemnitee ”) from and against all third party claims, damages, losses, liabilities, costs, expenses and reasonable legal fees arising out of a claim by a third party against a Embarq Indemnitee resulting from any act or omission of Supplier under this Agreement.

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	24 of 37	

 

MSA No.: MSAX063015TPS

 	14.2	 	Embarq’s General Third Party Indemnity.	
Embarq will indemnify and defend Supplier, its affiliates, and their respective directors, officers, affiliates, suppliers agents and employees (each, a “ Supplier Indemnitee ”) from and against all third party claims, damages losses, liabilities, costs, expenses and reasonable legal fees arising out of a claim by a third party against a Supplier Indemnitee resulting from any act or omission of Embarq under this Agreement.

 	14.3	 	Supplier’s Intellectual Property Indemnity.	
Supplier will indemnify and defend the Embarq Indemnitees from and against all third party claims, damages, losses, liabilities, costs, expenses and reasonable legal fees arising out of any third party claim that the Services or Deliverables and any resulting use or sale of any Services or Deliverables constitutes an infringement of any third party patent, trademark, or copyright, or the misappropriation of any trade secret. In addition, if Embarq’s right to sell or use the Services or Deliverables is enjoined, Supplier will, at Supplier’s expense, in the following order as is commercially reasonable:

 	(a.)	 	procure for Embarq and its customers the right to use the Services and Deliverables;	
 		
 	(b.)	 	replace the Services and Deliverables with equivalent non-infringing Services and Deliverables;	
 		
 	(c.)	 	modify the Services and Deliverables so they become non-infringing; or	
 		
 	(d.)	 	remove the Services and Deliverables and refund the price paid by Embarq for the Services and Deliverables, including incidental charges, such as transportation, installation and removal.	
Supplier shall have no liability or obligation to Embarq hereunder with respect to any claim based upon (i) any use of the Deliverables not materially in accordance with this Agreement to the extent that compliance with this Agreement would have prevented the claim, (ii) use of any Deliverables in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Deliverables not created or approved by Supplier, (iv) that portion of any Deliverables which implements requirements specified in writing by Embarq, or (v) Embarq’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Deliverables after being provided modifications that would have avoided the alleged infringement.
This Section 14.3 sets forth Supplier’s sole obligation and Embarq’s sole remedy against Supplier for any intellectual property infringement action.

 	14.4	 	Embarq Indemnity	
Embarq will defend Supplier against any third party claim that (a) the specifications provided by Embarq to Supplier or any Embarq-Owned Property or Embarq Data violate such third party’s patent, trademark, or copyright, or misappropriate of any trade secret; (b) is excluded from

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	25 of 37	

 

MSA No.: MSAX063015TPS
Supplier’s indemnity under Section 14.3; or (c) arises out of any claims or representations regarding the Services or Deliverables that exceed the warranties and claims approved in writing by Supplier. Except as otherwise provided herein, Embarq expressly disclaims all other representations, liabilities and warranties (express or implied) related to any materials provided by Embarq to Supplier. If, at any time during the process of software development, either party learns that compliance with Embarq-provided specifications may result in a claim of infringement by a third party, the party with that knowledge will promptly inform the other party. If the parties determine that compliance with the specifications poses a substantial risk of a third party infringement claim, Supplier will discontinue developing the software according to those specifications and the parties will mutually agree on new non-infringing specifications. This Section sets forth Embarq’s sole obligation and Supplier’s sole remedy against Embarq for any intellectual property infringement action.

 	14.5	 	Indemnification Procedures.	

 	(a.)	 	Promptly upon becoming aware of any matter which is subject to the provisions of 14.1 (Supplier’s General Third Party Indemnity), 14.2 (Embarq’s General Third Party Indemnity), 14.3 (Supplier’s Intellectual Property Indemnity), or 14.4 (Embarq Indemnity) (a “ Claim ”), the party seeking indemnification (the “ Indemnified Party ”) must give notice of the Claim to the other party (the “ Indemnifying Party ”), accompanied by a copy of any written documentation regarding the Claim received by the Indemnified Party.	
 		
 	(b.)	 	The Indemnifying Party will, at its option, settle or defend, at its own expense and with its own counsel, the Claim. The Indemnified Party will have the right, at its option, to participate in the settlement or defense of the Claim, with its own counsel and at its own expense; but the Indemnifying Party will have the right to control the settlement or defense. The Indemnifying Party will not enter into any settlement that imposes any liability or obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld or delayed. The parties will cooperate in the settlement or defense and give each other full access to all relevant information.	
 		
 	(c.)	 	If the Indemnifying Party fails to (i) notify the Indemnified Party of the Indemnifying Party’s intent to take any action within 30 days after receipt of a notice of a Claim or (ii) proceed in good faith with the prompt resolution of the Claim, the Indemnified Party, with prior written notice to the Indemnifying Party and without waiving any rights to indemnification, including reimbursement of reasonable legal fees and legal costs, may defend or settle the Claim without the prior written consent of the Indemnifying Party. The Indemnifying Party will reimburse the Indemnified Party on demand for all Damages incurred by the Indemnified Party in defending or settling the Claim.	
 		
 	(d.)	 	Neither party is obligated to indemnify and defend the other with respect to a Claim (or portions of a Claim) if the Indemnified Party fails to promptly notify the Indemnifying Party of the Claim and fails to provide reasonable cooperation and	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	26 of 37	

 

MSA No.: MSAX063015TPS

 	 	 	information to defend or settle the Claim; and if, and only to the extent that, the failure materially prejudices the Indemnifying Party’s ability to satisfactorily defend or settle the Claim.	

15.0	 	LIMITATION OF DAMAGES	
 		
 	 	Neither party will be liable to the other for consequential, indirect, reliance, exemplary, special, incidental or punitive damages for any cause of action, whether in contract, tort or otherwise, except:	

 	(a.)	 	Damages for which a party has an obligation of indemnity under this Agreement;	
 		
 	(b.)	 	any grossly negligent, willful or fraudulent act or omission; or	
 		
 	(c.)	 	any breach of provisions related to confidential information or the Embarq Marks.	

 	 	Consequential damages include, but are not limited to, lost profits, lost revenues and lost business opportunities, whether the other party was or should have been aware of the possibility of these damages.	
 		
 	 	The Parties agree that for any damages claim, except those covered by the Parties’ indemnification obligations under Section 14 and its subsections above, each party’s total liability will be limited to $25 million dollars .	

16.0	 	INSURANCE	

 	16.1	 	Required Insurance Coverage.	
Supplier will obtain and maintain during the Term the following minimum insurance coverage:

 	(a)	 	Commercial general liability, including bodily injury, property damage, personal and advertising injury liability, and contractual liability covering operations, independent contractor and products/completed operations hazards, with limits of not less than [*] combined single limit per occurrence and [*] annual aggregate, naming Embarq as an additional insured;	
 		
 	(b)	 	Workers’ compensation as provided for under any workers’ compensation or similar law in the jurisdiction where work is performed with an employer’s liability limit of not less than [*] for bodily injury by accident and [*] for bodily injury by disease;	
 		
 	(c)	 	Umbrella/excess liability with limits of not less than [*] combined single limit per occurrence and annual aggregate in excess of the commercial general liability, business auto liability and employer’s liability, naming Embarq as an additional insured.	

 	16.2	 	Certificates of Insurance.	

EMBARQ and SYNACOR Master Services Agreement
EMRARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	27 of 37	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

MSA No.: MSAX063015TPS
Supplier will obtain and maintain the required coverage with financially reputable insurers licensed to do business in all jurisdictions where work is performed under this Agreement. Upon Embarq’s request, Supplier will provide Embarq a certificate of insurance evidencing that all the required coverages are in force and have been endorsed to provide that no policy will be canceled without first giving Embarq 30 days’ prior written notice. All policies will be primary to any insurance or self insurance Embarq may maintain for acts or omissions of Supplier or anyone for whom Supplier is responsible. Upon request, Supplier will include copies of relevant endorsements or policy provisions with the required certificate of insurance.

17.0	 	AUDIT RIGHTS	

 	17.1	 	Records Maintenance.	
Each party will maintain complete auditable records of all financial and non-financial transactions relating to this Agreement for a period of at least 3 years after the termination or expiration of this Agreement. Each party (the “ Audited Party ”), will provide access to the other party (the “ Auditing Party ”), its internal and external auditors, inspectors and regulators, not more than once per calendar year during regular business hours, to sites where either Audited Party or any of its subcontractors are providing Services, to personnel, and to data, books, accounts and records relating to this Agreement for any reasonable business purpose, including audits, examinations and inspections relating to (a.) the accuracy of charges and invoices, (b.) Audited Party’s compliance with applicable laws or regulations, (c.) Audited Party’s compliance with the terms of this Agreement, (d.) Audited Party’s compliance with safety and security procedures with respect to its facilities, if any, and Embarq Data, and (e.) the conduct of Audited Party’s operations and procedures. Such audit shall not unreasonably disrupt business operations of the Audited Party.

 	17.2	 	Procedures.	
Each party will provide Audited Party with at least 30 days’ notice of an audit. Audited Party will make the information reasonably required to conduct the audit available on a timely basis and assist Auditing Party and its internal or external auditors as reasonably necessary. Audited Party will not be responsible for Auditing Party’s expenses incurred for an audit unless the audit discloses an over-billing (with respect to Supplier) or an under-payment (with respect to Embarq) in excess of 5% during the period covered by the audit, in which case Audited Party will pay for the entire cost of the audit, except in the circumstances of an Supplier audit of Embarq and any underpayment is the result of Supplier’s invoicing error, in which case the Supplier will pay for the audit. To the extent such examination discloses an over-billing or underpayment, Audited Party will reimburse the Auditing Party for such discrepancy. Such amount shall be reconciled with the next invoice.

18.0	 	DISPUTE RESOLUTION	

 	18.1	 	Option to Negotiate Disputes.	
The parties may, but are not obligated to, resolve any issue, dispute, or controversy arising out of or relating to this Agreement using the procedures in this Section. Any party may give the other party

EMBARQ and SYNACOR Master Services Agreement
EMRARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	28 of 37	

 

MSA No.: MSAX063015TPS
notice of any dispute not resolved in the normal course of business. Within 10 days after delivery of the notice, representatives of both parties may meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the dispute by the respective representatives of both parties within the time frames and escalation process set forth below:
 	 	 	 	 	 	 	 	 	
 	 	Embarq (Name/Title)	 	 	Supplier (Name/Title)	 	
Within 10 days	 	 	 	 	 	 	 	 	
Within 20 days	 	 	 	 	 	 	 	 	
Within 30 days	 	 	 	 	 	 	 	 	
If either party intends to have an attorney attend a meeting, it will notify the other party at least 2 business days before to the meeting to enable the other party to also be accompanied by an attorney. All negotiations pursuant to this Section are confidential and will be treated as compromise and settlement negotiations for purposes of evidentiary rules.

 	18.2	 	Continuing Performance.	
Supplier will continue performance during the pendency of any dispute, unless either party terminates this Agreement for cause.

 	18.3	 	Jury Waiver; Arbitration.	
EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG THE PARTIES UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.
If the jury waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute arising out of this Agreement or any claim arising under any federal, state or local statutes, laws, or regulations. The arbitration will be conducted by and in accordance with the arbitration rules promulgated under the Judicial Arbitration and Medication Services (“ JAMS ”). To the extent that the provisions of this Agreement and the prevailing rules of JAMS conflict, the provisions of this Agreement will govern. The arbitration decision will be final and binding on the parties, and the decision may be enforced by either party in any court of competent jurisdiction.
The agreement of each party to waive its right to a jury trial will be binding on its successors, assignees and Divested Affiliates.

 	18.4	 	Legal Fees.	

EMBARQ and SYNACOR Master Services Agreement
EMRARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	29 of 37	

 

MSA No.: MSAX063015TPS
The prevailing party in any arbitration or lawsuit will be entitled to reasonable legal fees and costs, including reasonable expert fees and costs.

19.0	 	SUPPLIER DIVERSITY	

 	19.1	 	Embarq’s Supplier Diversity Policy.	
Embarq’s supplier diversity policy requires that Certified Diverse Suppliers will have the maximum practicable opportunity to participate in providing Deliverables and Services to the fullest extent consistent with efficient performance of this Agreement. “ Certified Diverse Supplier ” means a supplier that has been certified by a qualified independent third party agency as a “service-disabled veteran-owned small business concern,” a “HUBZone small business concern,” a “small disadvantaged business concern,” a “women-owned small business concern” or a small business concern that is controlled by one or more “socially and economically disadvantaged individuals,” as those terms are used in 48 C.F.R. 2.101 or 13 C.F.R. 124.1003.

 	19.2	 	Registration.	
Before the Effective Date, Supplier must register at the following Embarq website: www.Embarq.com\supplierregistration. A list of agencies that Embarq deems to be qualified independent third party agencies for certification purposes can be found at this website.

 	19.3	 	Supplier Diversity Schedule.	
If Supplier expects to receive [*] or more from Embarq under this Agreement, Supplier agrees to make commercially reasonable efforts to comply with the terms and conditions of Schedule B. Embarq may issue a notice of material breach to Supplier if Supplier intentionally and knowingly fails to make a commercially reasonable good faith effort to meet its diversity requirement set forth in this Section 19.3 or Schedule B.

20.0	 	GENERAL	

 	20.1	 	Notices.	
Notices provided under this Agreement must be in writing and delivered by (i) certified mail, return receipt requested, (ii) hand delivered, (iii) facsimile with receipt of a “Transmission OK” acknowledgment, (iv) e-mail, or (v) delivery by a reputable overnight carrier service (in the case of delivery by facsimile or e-mail the notice must be followed by a copy of the notice being delivered by a means provided in (i), (ii) or (v)). The notice will be deemed given on the day the notice is received. In the case of notice by facsimile or e-mail, the notice is deemed received at the local time of the receiving machine, and if not received, then the date the follow-up copy is received. Notices must be delivered to the following addresses or at such other addresses as may be later designated by notice:

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	30 of 37	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

MSA No.: MSAX063015TPS
 	 	 	
Embarq:	 	Supplier:	
Embarq ________________________________	 	Synacor, Inc.	
 ______________________________________	 	Attn: Frank Codella	
Fax: ___________________________________	 	40 La Riviere Drive, Suite 300	
 	 	Buffalo, NY 14202	
 	 	Fax: 716-332-0081	
 	 	 	
With a copy to:	 	With a copy to:	
Embarq Law Department	 	Synacor, Inc.	
Director, Procurement Law Group	 	Attn: Chief Financial Officer	
5454 W. 110 th St.	 	40 La Riviere Drive, Suite 300	
Overland Park, KS 66251	 	Buffalo, NY 14202	
 	 	Fax: 716-332-0081	

 	20.2	 	Business Conduct Code.	
Supplier agrees to conduct business with Embarq in an ethical manner that is consistent with The Embarq Principles of Business Conduct for Consultants, Contractors, and Suppliers, which Supplier acknowledges has been provided to Supplier as a reference.

 	20.3	 	Assignment.	
Neither party may assign its rights or delegate its obligations under this Agreement in whole or in part without the other party’s prior written consent, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns the subject matter of this Agreement (whether by sale of equity or assets, merger, consolidation or otherwise). This Agreement is binding on and enforceable by each party’s permitted successors and assignees. Any assignment in violation of this Section is null and void.

 	20.4	 	Independent Contractor.	
Supplier and Supplier Personnel are independent contractors for all purposes and at all times. Supplier has the responsibility for, and control over, the methods and details of performing Services. Supplier will be responsible for the compensation, discipline and termination of Supplier Personnel. Supplier is responsible for the payment of all Supplier Personnel Compensation. Neither Supplier nor Supplier Personnel have any authority to act on behalf of, or to bind Embarq to any obligation. “ Supplier Personnel Compensation ” means wages, salaries, fringe benefits and other compensation, including contributions to any employee benefit, medical or savings plan and all payroll taxes and unemployment compensation benefits, including withholding obligations.

 	20.5	 	Governing Law.	
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES. EVEN IF DELAWARE ADOPTS THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT (UCITA), UCITA WILL NOT GOVERN OR BE USED TO INTERPRET AGREEMENT PROVISIONS. FURTHER, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	31 of 37	

 

MSA No.: MSAX063015TPS
INTERNATIONAL SALE OF GOODS (UNCISCG) DOES NOT APPLY TO THIS AGREEMENT.

 	20.6	 	Waiver and Severability.	
The waiver of a breach of any term or condition of this Agreement will not constitute the waiver of any other breach of the same or any other term. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.

 	20.7	 	Survival.	
The following sections will survive expiration or termination of this Agreement for any reason: Compensation, Invoicing, Contractual Liability, Effect of Termination, Warranty Disclaimer, Service and Deliverable Warranties (only for the period stated therein), Confidential Information, Ownership, Indemnity, Limitation of Damages, Audit Rights, Dispute Resolution, Governing Law, and Marks.

 	20.8	 	Marks.	
Except as otherwise provided in an Order, nothing in this Agreement grants either party the right to use any trademarks, trade names or logos proprietary to the other party. If either party is granted a right to use such marks, such party will do so only in strict compliance with such Order.

 	20.9	 	Remedies.	
All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.

 	20.10	 	Federal Acquisition Regulations; Executive Order 11246.	

 	(a.)	 	If Embarq or the Federal government determines that an Order supports specific requirements included in a contract or subcontract between Embarq and the federal government, Supplier will be subject to certain federal acquisition regulations, such as requirements related to equal opportunity and affirmative action for Vietnam era veterans, and Executive Order 11246. Supplier will comply with the applicable laws as soon as it receives notice from Embarq or otherwise learns of its obligations under the applicable laws. Supplier will be subject only to those laws that must be included in all subcontracts as a matter of law.	
 		
 	(b.)	 	In accordance with the Department of Justice (DOJ) Information Technology (IT) security policies set forth in DOJ Order 2640.2D dated July 12, 2001, Supplier will ensure that no foreign nationals perform any Services under this Agreement or a related Order that involve direct or indirect access to, or development, operation,	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	32 of 37	

 

MSA No.: MSAX063015TPS
management or maintenance of DOJ IT systems. DOJ IT systems include, without limitation, information technology systems, hardware, software and media that store, process or transmit classified and unclassified information as well as operating systems of Federal agencies that interface with the DOJ IT systems. A foreign national is anyone who is not a U.S. citizen and includes lawful permanent resident aliens. Embarq will notify Supplier in writing of Supplier’s obligations and the Order to which the law applies.

 	20.11	 	Construction.	
This Agreement will not be construed against either party due to authorship. Except for the indemnification rights and obligations in this Agreement, nothing in this Agreement gives anyone, other than the parties and any permitted assignees, any rights or remedies under this Agreement.

 	20.12	 	Entire Agreement; Modifications; Inconsistencies.	
This Agreement and any attachments constitute the entire agreement of the parties as to the subject matter of this Agreement and the Orders, and supersede all prior or contemporaneous agreements, proposals, discussions or correspondence, whether written or oral. This Agreement and any attachment or Order may not be amended or modified except in writing signed by an authorized representative of each party. Any terms on Supplier’s web site, product schedule or other ordering document, or contained in any “shrinkwrap” or “clickwrap” agreement, will not have force or effect if the provision conflicts with the terms of this Agreement, the attachments or Orders. If an inconsistency exists between the terms of this Agreement, and the terms of any attachment or Order, the terms of the attachment or Order will control, except preprinted terms and conditions appearing in any purchase order will have no force and effect. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.
(Remainder of page is blank. Signature on following page.)

EMBARQ and SYNACOR Master Services Agreement
 EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	33 of 37	

 

MSA No.: MSAX063015TPS
 	 	 	 	 	 	 	 	 	
SIGNED:	 	 	 	 	 	 	 	 	
 	
EMBARQ MANAGEMENT COMPANY	 	 	 	SYNACOR, INC.	
 		
/s/ David Platt	 	 	 	/s/ Frank J. Codella 	
(signature)	 	 	 	(signature)	
Print name:	 	David Platt	 	 	 	Print name:	 	Frank J. Codella	
Title:	 	VP — Procurement	 	 	 	Title:	 	Vice President of Sales	
Date:	 	12/4/06	 	 	 	Date:	 	11/27/06	

EMBARQ and SYNACOR Master Services Agreement
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	34 of 37	

 

MSA No. _______________
SCHEDULE A
During the Initial Term, services performed by Supplier for Embarq that are not specified in an Order shall be billed at a rate not to exceed [*] (“Billable Rate”). Supplier may increase the Billable Rate for any Renewal Term by no more than [*] upon mutual agreement of the Parties.

EMBARQ and SYNACOR Master Services Agreement	 	35 of 37	
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	 	
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

MSA No.: MSAX063015TPS
SCHEDULE B
SUPPLIER DIVERSITY
Supplier will use commercially reasonable good faith efforts to meet a Utilization Requirement of 3%, either annually, or if this Agreement is for a specific term, over the term of this Agreement. The “Utilization Requirement” will consist of socially and economically disadvantaged small business concerns, women small business concerns, and service-disabled veteran-owned small business concerns. Embarq reserves the right to review this requirement and monitor the supplier’s progress annually. Embarq may assist Supplier in tracking and preparing reports with respect to the Utilization Requirement.
For the sake of clarity, commercially reasonable good faith efforts does not include any requirement that Supplier hire any consultant or employee to supervise and/or manage the foregoing efforts, produce any reporting without specific request from Embarq, or require more than a commercially reasonable amount of time for report preparation when specifically requested by Embarq no more than twice per calendar year during the term.

EMBARQ and SYNACOR Master Services Agreement	 	36 of 37	
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	 	

 

MSA No.: MSAX063015TPS
Schedule C
Change in Control Defined
For purposes of this Agreement, a “Change in Control” of an entity means the occurrence of any of the following events:

 	(i)	 	the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of securities entitled to vote generally in the election of directors (“Voting Stock”)), in one or a series of related transactions, of all or substantially all of the properties or assets of such Party and its subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) other than such Party or a wholly-owned affiliate of such Party;	
 		
 	(ii)	 	the consummation of any transaction or series of related transactions (including any merger or consolidation) resulting in any person becoming the beneficial owner (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of more than 50% of such Party’s Voting Stock (measured by voting power rather than number of shares); or	
 		
 	(iii)	 	a merger, consolidation or reorganization with respect to which all or substantially all of the individuals and entities who were the beneficial owners of such Party’s Voting Stock immediately prior to such merger, consolidation or reorganization do not, following such merger, consolidation or reorganization, beneficially own, directly or indirectly, more than 50% of the Voting Stock resulting from such merger, consolidation or reorganization.	

EMBARQ and SYNACOR Master Services Agreement	 	37 of 37	
EMBARQ AND SYNACOR CONFIDENTIAL INFORMATION — RESTRICTED	 	 	

 

EXHIBIT 10.15.2
CONFIDENTIAL TREATMENT REQUESTED
CONTRACT ORDER
TO
MASTER SERVICES AGREEMENT
BETWEEN
EMBARQ MANAGEMENT COMPANY
AND
SYNACOR
This CONTRACT ORDER No. COXX063016TPS to Master Services Agreement No. MSAX063015TPS (the “Agreement”) is between Embarq Management Company (“Embarq”) and Synacor, Inc., a Delaware corporation (“Synacor”). Unless otherwise provided, all terms of this Contract Order are in accordance with the terms of the Agreement.
The parties agree as follows:

1.	 	DEFINITIONS	
For the purposes of this Contract Order the following definitions apply. Where a definition contained in this Contract Order conflicts with a definition contained in the Agreement, the definition contained in this Contract Order shall govern and control and shall apply solely to this Contract Order. Any term defined in the Agreement and used in this Contract Order will have the same definition as assigned to it in the Agreement.

 	1.1.	 	“ C.O. Term ”. The term of this Contract Order shall be the Term, as defined in the Agreement.	
 		
 	1.2.	 	“ Back-end Interfaces .” All Synacor provided Application Program Interfaces (API).	
 		
 	1.3.	 	“ Embarq Data Services .” Embarq offered services consisting of consumer or business data products, and any products and/or services derived therefrom or based thereon, including wireline or wireless services and any data services Embarq offers in the future.	
 		
 	1.4.	 	“ Embarq Logo .” The Embarq logos and brands used to market the Embarq Portal(s).	
 		
 	1.5.	 	“ Embarq Portal(s) ”. Embarq branded portal services delivered to Embarq customers including but not limited to: email, security, personal start page, and other associated products and services. This includes both business and consumer portals and other portals as requested by Embarq.	
 		
 	1.6.	 	“Portelus” . The suite of administration tools provided by Synacor for Embarq to manage the Embarq Portal(s).	
 		
 	1.7.	 	“Premium Content Bundles”. A grouping of subscription and fee-based content and/or application services requiring a username and password to access from the	
 1 

 

Embarq Portal(s) which may be sold “a la carte” or embedded into an Embarq Data Subscription Account.

 	1.8.	 	“ Synacor Services” . The set of software products, services, and applications and related content, exclusive of network level connectivity, which are included together or bundled and offered by Synacor to its customers from time-to-time during the C.O. Term. The Synacor Services will be provided to Embarq customers together with Embarq Network Services, defined later, to permit those customers to access and experience the public Internet.	
 		
 	1.9.	 	“Synacor Tools”. Synacor provided content publishing and administrative applications, Interfaces and Application Program Interfaces (API).	
 		
 	1.10.	 	“Users” . All Embarq Data Subscribers and all others who are authorized by Embarq to have an Embarq email account.	
 		
 	1.11.	 	“Value Added Services. ” Services which are sold or delivered primarily over the Internet, via any channel. For the purposes of this Agreement, “Value Added Services” include, but are not limited to, content, video on demand, online storage, and enhanced security.	
 		
 	1.12.	 	“Embarq Data Subscriber ”. Any residential or business customer with a monthly subscription to Embarq digital subscriber line (DSL) services.	
 		
 	1.13.	 	“Commercial Launch Date. ” Means the first date on which the Services are generally made available to Users.	
 		
 	1.14.	 	“ Embarq Wireless Customers. ” Means any residential or business customer with a subscription to Embarq wireless services.	
 		
 	1.15.	 	“ Territory .” Means the geographic area in the continental United States where an Embarq Affiliate provides wireline local exchange telephone service.	

2.	 	SYNACOR OBLIGATIONS	

 	2.1.	 	Systems Development and Implementation.	

 	2.1.1.	 	Portal deliverables consist of the following product elements;	

 	2.1.1.1.	 	Embarq Portal(s) with elements of Synacor’s standard portal template branded with Embarq presentation layer (look and feel, color, logos, trademarks, etc. ).	
 		
 	2.1.1.2.	 	Initial content to be integrated into the Embarq Portal(s) as provided in Exhibit 1, attached.	
 		
 	2.1.1.3.	 	Synacor agrees, during the Term, to integrate Embarq’s online services into the Embarq Portal(s) [*]. Examples of applicable Embarq Services are the following:	

 	2.1.1.3.1.	 	Account Management or Bill Pay	
 		
 	2.1.1.3.2.	 	Embarq eCommerce site ( www.Embarq.com )	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 2 

 

 	2.1.1.3.3.	 	Embarq Business Resource Center site (www.Embarq.com/brc )	
 		
 	2.1.1.3.4.	 	Portal Products	
 		
  	•	 	Embarq Personal Media Link (remote media streaming product)	
 		
 	•	 	Embarq Video Clicks (video-on-demand product)	
 		
 	•	 	Embarq Media Safe (remote storage product)	
 		
 	•	 	Embarq VOIP web interface	
 		
 	•	 	Embarq voice mail web interface	
 		
 	•	 	Motive Self-Registration (link to self-registration)	
 		
 	•	 	Biz Pak	

 	2.1.1.4.	 	Content publishing and Administration Components;	
 		
 	2.1.1.5.	 	Personalization functionality of Embarq Portal(s) for establishment of User preferences by Embarq Customers;	
 		
 	2.1.1.6.	 	Application Programming Interfaces (“ APIs ”) for unified registration, login and update associated with mutually agreed portal components. Embarq will work in good faith to conform to Synacor’s current API structure (including registration, new account activations, updates, product changes, and service cancellations). Synacor will work in good faith to perform [*], any reasonable and limited enhancements or modifications to the standard Synacor API structure as necessary in order to assist Embarq to fit its operations support system;	

 	2.1.1.7.	 	[*]	

 	2.1.1.8.	 	Multiple unique portal accounts will be supported per each Embarq Data Subscriber, provided that the number of permitted unique portal accounts per Embarq Data Subscriber shall not exceed the number of email accounts offered per Embarq Data Subscriber; and	
 		
 	2.1.1.9.	 	Embarq Portal(s) content shall be available to visitors without requiring the visitor to register or log-in prior to accessing this content, with the exception of Premium Products, Internet Security Services, E-mail and any content that is required by the content provider to be placed behind login.	

 	2.1.2.	 	Portal Deliverables. The Embarq Portal(s) deliverable shall be Synacor’s standard portal product with the elements specified in subsection (a) above, together, with User Authentication (the “Portal Deliverable”), customized with Embarq’s color scheme, logo, design elements and “look and feel” elements as determined by the joint Embarq/Synacor development team (the “Appearance Requirements”), which shall be delivered according to a mutually-agreed upon	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 3 

 

timeframe based on the level of functionality desired by Embarq. The Embarq Portal(s) will provide the functionality described in the Synacor Specifications. If Embarq desires additional appearance or functionality for the Embarq Portal(s) from Synacor, the parties will, upon Embarq’s request, negotiate in good faith with respect to additional deliverables and the cost to Embarq for such additional deliverables.

 	2.2.	 	Portal Administration.	

 	2.2.1	 	Portelus will allow Embarq to manage via a web interface;	

 	2.2.1.1.	 	User access and subscriptions; and	
 		
 	2.2.1.2.	 	Content areas on the portal pages.	

 	2.2.2.	 	Portal templates display the premium services and Embarq-specified content in unique information ‘panels’. Each panel accepts a content feed, such as weather, daily financial market information, interactive surveys, and other basic content types. These panels can be configured to provide default information on the portal home page, and configured to individual User preferences or subscription settings.	
 		
 	2.2.3.	 	Custom provisioning tools allow administrators to create new User accounts, and add premium content subscriptions to individual accounts. Customer Service Representatives (“CSR”) can be assigned simple administrative privileges to see if an account is active and to create a new account, update existing accounts, and delete accounts or premium services.	
 		
 	2.2.4.	 	Hierarchical permissions make sure that only the Embarq account owner has “parent” administration control over the entire Portelus implementation. Embarq privileges include:	

 	2.2.4.1.	 	Login to administration	
 		
 	2.2.4.2.	 	View statistics	
 		
 	2.2.4.3.	 	Add Users	
 		
 	2.2.4.4.	 	View/Administer Users	
 		
 	2.2.4.5.	 	View User passwords	
 		
 	2.2.4.6.	 	Manage HTML content areas	

 	2.3.	 	Unified Registration and Login	

 	2.3.1.	 	Portelus unified registration and unified login enables Embarq to seamlessly integrate its User profile management Web applications.	
 		
 	2.3.2.	 	Unified Registration . Portelus unified registration allows Embarq to use their existing tools for provisioning User accounts, while at the same time establishing an account in the Portelus database. Such software calls Portelus APIs when customer service representatives sign up new subscriber accounts for Internet services.	
 		
 	2.3.3.	 	Execution . The unified registration process begins when a User is created using Embarq’s User provisioning tool. That process contacts Synacor’s API, which responds with a success or failure message. On success, the User will exist in the Portelus database. In the event of a failure, the CSR should resolve the issue in Embarq’s provisioning tool; if not, Synacor support should be contacted for manual field entry or data resolution.	
 4 

 

 	2.3.4.	 	The Portelus Registration API uses [*]. This provides programmatic and security flexibility to the function.	

 	2.4.	 	Unified Login . Unified login allows authenticated Users to gain access to the Embarq Portal(s) and e-mail accounts and other integrated applications with one login. Synacor will work with Embarq to implement single sign-on with most Web products. An initial list of integrated applications is set forth on Exhibit 2, which may be amended from time to time.	
 		
 	2.5.	 	Portal Implementation for Embarq. Implementation of the Embarq Portal(s) consists of:	

 	2.5.1.	 	Synacor creates the portal site template	
 		
 	2.5.2.	 	Synacor hosts system back-office infrastructure, premium service, User preference-session management information in its data center	

 	2.6.	 	Product Roadmaps. Synacor shall share its product roadmap with respect to the Synacor Services that Synacor may provide as part of the Embarq Portal(s) over the Embarq Network with Embarq on a bi-annual basis to obtain feedback and comments. Synacor agrees to provide a reasonable notice (a minimum of 60 days) of product and/or service change and/or launches that will impact the Embarq Portal(s). Similarly, Embarq agrees to share its product roadmap on a bi-annual basis, and provide reasonable notice (a minimum of 60 days) of product and/or service change and/or launches that will impact the Embarq Portal(s). Any development necessary for the continuation of services belong to Synacor.	

 	2.7.	 	Business Portal. Synacor shall create a Business Portal to be offered by Embarq to all its Business Embarq Data Subscribers. Users of the Business Portal will have the same content available to them as will be available to Consumer Portal Users. Synacor will create a default Business Portal configuration, i.e., the content elements and configuration the User is presented prior to personalizing the portal, that contains [*] News, Local News, Financial content, Search, Weather, Maps and Directories as well as access to email and cross marketing messages, all determined, created and controlled by Embarq. Synacor and Embarq agree to work cooperatively and collaborate to acquire content that will provide value to and will be of interest to Businesses. All other available content will require the User to employ the standard personalization. Embarq reserves the right to leverage another portal provider, should it deem necessary to accommodate the needs of the business customers.	

 	2.8.	 	Premium Products. Synacor shall collaborate with Embarq to design premium content bundles that address consumer and business interests and meet Embarq’s marketing and budgetary objectives (“Premium Products”). Synacor agrees that Premium Products can be marketed as a la carte consumer offerings and/or as product bundles that can be configured and selectively embedded in various tiered offerings. Examples of Premium Bundles available to Embarq for distribution to Users are attached hereto as Exhibit 3. Synacor’s offering of Premium Products will be subject to the terms and conditions set forth in Exhibit 4.	
 		
 	2.9.	 	Third Party Content Providers. Embarq reserves the right to work directly with any third party application or content provider for the purposes of procuring and delivering programming, products, and services that meet Embarq customer needs for use with both wireline and wireless services. Synacor agrees to work directly with any such	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 5 

 

Embarq approved third party content provider and to integrate all content that is not a Premium Product [*]. Synacor will [*] Embarq to integrate Embarq sourced content for which integration is based on content feeds delivered into the Embarq Portal(s) via Synacor’s Content Management System (“CMS”). Other Embarq sourced content including, but not limited to, services requiring custom programming by Synacor and/or services utilizing unified registration and login will be [*] as applicable and specified in Section 5.10 below.

 	2.10.	 	Wireless Capabilities and Services. During the Term, Synacor agrees to use commercially reasonable efforts to develop and offer to Embarq, no later than June 30, 2007, functionality that will allow Embarq Customers who also have wireless service to access mutually agreed to portions of the Embarq Portal(s) from their wireless handsets. Such capabilities shall include;	
 		
 	 	 	[*]	

 	2.11.	 	Internet Security Services.	

 	2.11.1.	 	Synacor will integrate F-Secure’s web-scanning engine into the Embarq Portal(s) upon Embarq’s request. The provision of this service will be subject to F-Secure’s Service Level Definition, Special Terms for Online Scanner, and End User License Agreement attached hereto as Exhibits 5, 6, and 7 respectively.	
 		
 	2.11.2.	 	Security Suite Services Components. Each License and PC Key will provide access to the latest release of Synacor’s Consumer Internet Security Suite (provided by F-Secure). This suite currently consists of the following components: Virus & Spyware protection, Firewall, Spam and Phishing	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 6 

 

protection, automated software and virus signature upgrades, standard side grade (detects and/or removes competing security products at install of F-Secure’s security products) support for removing competitive programs on install, and Parental Control (for Consumer customers) and Access Control (for Business customers). The components of the security suite may change from time to time, but regardless of those changes, F-Secure will make its most current and advanced consumer security offering available to Embarq throughout the Term of this Agreement. Multiple PC installations will be supported with each License. The total number of PC installations per License may not exceed [*] installations per Embarq Data Subscriber account.

 	2.11.3.	 	Commercial Free Music Radio. If Embarq so chooses, Synacor will incorporate a 40 genre commercial free music radio service into the Embarq Portal(s). The monthly fee Synacor will charge Embarq for this service will be [*]. This pricing model is predicated on Embarq marketing a private MusicNet Subscription Music service or services.	

 	2.12.	 	 	

 	2.12.1.	 	Promotional Support. Synacor will provide Embarq with on going promotional support to assure maximum adoption of Email, the Embarq Portal(s) and premium services by Embarq Customers. Such support will take the form of materials and guidance in the construction of promotions supporting these products.	
 		
 	2.12.2.	 	Launch Support. Synacor will provide materials and guidance in support of:	

 	2.12.2.1.	 	[*]	
 		
 	2.12.2.2.	 	[*]	
 		
 	2.12.2.3.	 	[*]	
 		
 	2.12.2.4.	 	Synacor will assist in development of IVR and “on hold” scripts which would include a mention of the Embarq Portal(s), email and premium services for Embarq call centers	
 		
 	2.12.2.5.	 	Embarq may employ Synacor materials and guidance to support its launch of the Embarq Portal(s).	
 		
 	2.12.2.6.	 	Synacor will provide start page programming and functionality to support promotional activities such as customer daily/weekly prize entries.	

 	2.12.3.	 	On-going:	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 7 

 

 	2.12.3.1.	 	Promotional Campaigns — Synacor, at its option, will from time to time design and implement periodic marketing promotions supporting the Embarq Portal(s) and/or Premium Content Bundles each calendar year. [*]	
 		
 	2.12.3.2.	 	[*]	
 		
 	2.12.3.3.	 	[*]	
 		
 	2.12.3.4.	 	Synacor will assist Embarq in the development of IVR and “on hold” scripts to support the Embarq
Portal(s), email and Premium Content Bundles for Embarq call centers.	

 	2.13.	 	Embarq Email Service — Features and Functionality. Synacor will build, deploy, maintain, and support an Embarq branded email service. The services will incorporate the following features and functionality:	

 	2.13.1.	 	Easy-to-use, intuitive Web mail User interface consistent with and comparable to existing competitive interfaces.	
 		
 	2.13.2.	 	Support for full RFC-compliant POP protocol	
 		
 	2.13.3.	 	Wireless device support (including access to email and contacts, calendar, and related content via mobile device with standard mobile web browser over WAP or HTTP protocol). Synacor will make wireless Email service features available to Embarq Data Subscribers by no later then June 30, 2007. Access to the Embarq Portal(s) through wireless devices and all other Embarq Email Service Features and Functionality listed herein will be available to Embarq Data subscribers on the Commercial Launch Date.	
 		
 	2.13.4.	 	Commitment to maintain, throughout Term, competitive User features such as HTML messages, large attachments (10 megabytes), contacts/address book, contacts and calendar sharing both publicly and restricted, inline spell checking and other features driven by AJAX or similar technologies providing dynamic right-click menus, roll-over informational pop-outs, and competitive AJAX-related technologies.	
 		
 	2.13.5.	 	Large mailboxes (1 gigabyte standard storage, with a practical upper storage limit mutually agreed upon by the Parties)	
 		
 	2.13.6.	 	Robust filtering rules capable of features such as forwarding, filtering based on headers, subject to, from, body, attachments, and other variables. Auto-sorting into designated folders or tags. Ability to auto-delete messages based on filter criteria.	
 		
 	2.13.7.	 	Anti-virus, anti-spam, anti-phish, and anti-scam filtering consistent with and comparable to industry standards; ability for User to set and manage filtering levels within interface; ability to auto-file or tag identified messages to junk or similar folder; ability to auto-delete such detected messages.	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 8 

 

 	2.13.8.	 	Search Technologies. Ability to search within messages, contacts, and calendars based upon headers, subject, to, from, body, and other variables.	
 		
 	2.13.9.	 	Organization. Ability to view threaded conversations. Ability to organize by folder and by tags. Ability to drag and drop items among elements. Ability to resize panes. Ability to preview messages in preview pane via AJAX or similar technologies. Ability to dynamically detect and act upon dates, email addresses, and URL’s within messages. Ability to store Drafts and track Sent messages.	
 		
 	2.13.10.	 	Security. Ability to access content via secure channel such as SSL (Secure Socket Layer). Ability to block HTML-based images by default but permitting User to choose to load such content.	
 		
 	2.13.11.	 	Topology. Ability for Embarq and User to create and manage parent and child account hierarchies with associated control mechanisms through API and web-based administrative interface. Ability of parent to manage and control child accounts such as adding, deleting, and modifying.	
 		
 	2.13.12.	 	Administrative API and web-based interfaces which will permit Embarq to provide Tier 1 and 2 support to consumers.	
 		
 	2.13.13.	 	Synacor shall provide Tier 3 support.	

 	2.14.	 	Exclusivity . During the C.O. Term, Synacor and Supplier Affiliates may not offer, market or sell directly to consumers and businesses within the Territory any of the following wireless or wireline services, regardless of the technology used to deliver the service: (1) voice services, including any applications that provide voice service over a high speed internet access connection; (2) high speed internet access services; and (3) video television services (“Prohibited Services”). However, for the sake of clarity, the following services are not Prohibited Services: (1) video, audio or text instant messaging; (2) video, audio or text chat services; (3) video, audio, text or photo sharing services; (4) video, audio or text social networking services; (5) video, audio or text blogging services; and/or (6) Internet video services. Synacor’s violation of this provision will be deemed a material breach of this Agreement, and Embarq may terminate this Agreement immediately upon learning of the violation with no additional liability to Embarq. Notwithstanding the foregoing, nothing herein prevents Synacor from providing services to customers to enable such customers to sell any non-Synacor-branded product whatsoever to any of their consumers or customers, even if such products sold using the Synacor services are Prohibited Services.	
 		
 	2.15.	 	Technical Support. Synacor will operate the Services at the levels and performance and to provide Embarq with technical support services in accordance with the Service Level Agreement (“SLA”) in Exhibit 8 attached hereto.	

3.	 	EMBARQ OBLIGATIONS	

 	3.1.	 	Delivery of Embarq Portal(s). Embarq shall, [*], deliver the Embarq Portal(s) over the Embarq network to the modem or other customer premises equipment (the “CPE”) of Users. Embarq shall, [*], provision and install any required CPE at each User’s location.	
 		
 	3.2.	 	Marketing of the Embarq Portal(s). Embarq is responsible for selling, advertising, promoting, and marketing the Embarq Portal(s).	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 9 

 

 	3.3.	 	Embarq Network. Except as otherwise provided in this Contract Order, Embarq shall, [*], provide, install, manage, and maintain the networks and system infrastructure (including, without limitation, the Embarq system, Embarq network and CPE) necessary for the delivery of the Embarq Data Services to the Users. Embarq shall, [*], also provide connectivity, including Internet transit, for the Embarq Portal(s) over the Embarq network and facilities.	
 		
 	3.4.	 	Distribution Channels. Embarq will determine in its sole discretion the distribution channels through which the Embarq
Portal(s) will be made available.	
 		
 	3.5.	 	Forecasts. Embarq will provide Synacor with an annual forecast by month for Users. Updates will be provided throughout the year in the event the forecast materially changes. Any failure by Embarq to meet a forecast provided to Synacor under this Section will not be deemed a breach of this Agreement and will not result in any Embarq liability.	

4.	 	JOINT OBLIGATIONS	

 	4.1.	 	Account Management. Synacor and Embarq shall, each at its own expense, supply resources to support account management and reconciliation activities between the two parties’ databases. These activities will be performed on a timely basis, and any disputes will be resolved through the escalation processes. Each Party shall have a designated account/product management team and will make available all technical and operational information personnel and resources to develop, deploy and operate the Embarq Portal(s).	
 		
 	4.2.	 	The Parties intend to support the relationship contemplated hereby with regular meetings where information relevant to the delivery of the Embarq Portal(s) will be shared.	

5.	 	PRICING	

 	5.1.	 	Portal Pricing/Fees. Beginning on the Commercial Launch Date of the Embarq Portal(s) pursuant to and continuing throughout the Term, Embarq of shall pay Synacor [*]. Within 5 days after the end of each calendar month, Embarq will provide to Synacor [*] for the purposes of validation of the portal fee payment to Synacor.	
 		
 	5.2.	 	[*]	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 10 

 

[*]

 	5.3.	 	Portal Development & Integration Fee (Non Re-occurring Expense). Embarq shall pay to Synacor a Development Fee of [*] for the development of both the Consumer and Business Embarq Portal(s). Half the Development Fee will be payable within ten (10) business days after execution of an Agreement and the balance will be due within ten (10) business days after commercial launch of the Embarq Portal(s), Premium Products and Internet Security Services. The Commercial Launch Date will be the date upon which the said services are available to Users in accordance with the Service Level Agreement, on a commercial basis (i.e. not a beta, limited availability, or other test offering). [*]	
 		
 	5.4.	 	Search and Advertising Revenue Share.	

 	5.4.1.	 	Search Revenue Share. Revenue sharing between Synacor and Embarq for searches executed through the Embarq Portal(s) will be as provided in the Search Revenue Sharing Addendum, attached hereto as Exhibit 9. Embarq hereby agrees that the Search Services described in the Search Revenue Sharing Addendum shall be incorporated as features into the Embarq Portal(s).	
 		
 	5.4.2.	 	[*] Embarq may, but is not required to, permit advertising on the Embarq Portal(s), and may control the type and amount of permitted advertising. Only Synacor and Embarq may provide advertising within the Embarq Portal(s) to the extent that Embarq authorizes any such advertising. Embarq shall receive [*] of Net Advertising Revenue. “Net Advertising Revenue” includes all e-commerce revenue, and revenue from all video advertising, banner advertising, and other forms of advertising that appear on or within the Embarq Portal(s), including but not limited to: email, security, personal start page, and other associated products and services less any cost associated with placement, insertion and administration of such advertising. For clarity, Net Advertising Revenue does not include revenue covered by the Search Revenue Sharing Addendum. This arrangement will not preclude Embarq from placing advertisement for their own products and service or those of their subsidiaries and affiliates [*]. Synacor will provide advertising services to Embarq, which may include, without limitation, e-commerce, video, banner advertising and other forms of advertising. Embarq may approve or disapprove any marketing, advertising or messaging to Active Users within the Embarq	
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 11 

 

Portal(s) or used in targeting Active Users outside the Embarq Portal(s). Specifically prohibited is the marketing, advertisement or messaging of competitive telecommunication, information or entertainment services, including but not limited to voice, video, data or wireless services. Synacor agrees not to sell or provide any Embarq Portal(s) customer lists to any third party. The general guidelines regarding appropriate advertising is attached hereto as Exhibit 10, which may be amended from time to time by Embarq. Embarq shall have the right to request that Synacor remove any advertising that conflicts with an existing advertising relationship of Embarq, is not consistent with the guidelines set forth in Exhibit 9, or if an Embarq Customer files a formal complaint with a regulatory or law enforcement agency regarding such advertisement . Synacor shall disable advertising services provided by such advertisement from the Embarq Portal(s) within ten (10) days after receiving written notice from Embarq.

 	5.5.	 	Integration of [*] Products. Synacor will integrate [*] that are made available to Synacor and Embarq such as [*] into the Embarq Portal(s). In no case will any [*] be added to the portal or will Synacor use products from [*] without prior written approval from Embarq, which approval will not be unreasonably withheld.	
 		
 	5.6.	 	Email Monthly Fees. The monthly fees charged Embarq by Synacor to provide Email Service, as described above, will consist of the following:	

 	5.6.1.	 	Embarq shall pay Synacor [*] through out the Term of this Agreement. Embarq will provide to Synacor the actual [*] for the purposes of validation of the monthly email fee payment to Synacor. Embarq may offer up to [*] email accounts per Embarq Data Subscriber [*]. Additional email accounts will be provided by Synacor at a rate of [*].	
 		
 	5.6.2.	 	Embarq shall pay Synacor [*] to cover the cost of telecommunications bandwidth to support the Email, Portal, Internet Security, and Premium Product Services.	
 		
 	5.6.3.	 	The monthly flat rate fee of [*] stated in item (a) of this Section is based on the assumption that the average storage per mailbox [*]. If average storage per mailbox exceeds [*], Synacor shall charge Embarq [*].	
 		
 	5.6.4.	 	Synacor will assist Embarq in establishing and will implement and maintain email policies which maximize mailbox size efficiency.	

 	5.7.	 	Email Service Development Fee (Non-Recurring Expense): Embarq shall pay Synacor a one-time Development Fee of [*] for the development of Consumer and Business email products utilizing up to [*] available domain name(s) specified by Embarq. Should Embarq desire Synacor to create a vanity email product for its business customers, the Parties will negotiate a separate written addendum to this Contract Order. Embarq agrees to pay [*] within ten (10) business days after execution of an Agreement and the balance will be due within ten (10) business days after commercial launch of the Embarq Portal(s), Premium Products and Internet Security Services. The Commercial Launch Date will be the date upon which the said services are available to Users in accordance with the Service Level Agreement, on a	
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 12 

 

commercial basis (i.e. not a beta, limited availability or other test offering). [*]

 	5.8.	 	Wireless Portal Pricing. [*]. Any applicable wireless portal fees will be mutually agreed upon prior to the general availability of the wireless portal feature and will not exceed [*].	
 		
 	5.9.	 	Premium Bundle Pricing . In the event Embarq elects to make any Premium Content Bundle, as currently specified in, or subsequently added to, Exhibit 3 below, available to Embarq Data Subscribers, each month, Synacor shall bill Embarq for an amount determined by multiplying the number of Subscription Accounts (as defined below) in a given month by the monthly fee associated with the applicable Premium Content Bundle subscribed to by such Subscription Account. For purposes herein, a “Subscription Account” is defined as an Embarq Data Subscriber [*]. The number of Subscription Accounts shall be counted by Synacor as of the last day of each month unless otherwise agreed to by the Parties in writing. Synacor will provide the count of Subscription Accounts within five days after the end of each calendar month.	
 		
 	5.10.	 	Carriage Fees. Embarq may, from time to time, choose to utilize Synacor Services for the distribution of Value Added Services sourced by Embarq itself or under contract with third parties which are offered either separately or as part of Embarq Data Services (“Embarq Sourced Services”). If such Embarq Sourced Services are offered separately then Embarq shall pay Synacor Carriage Fees each month defined to be [*]. If such Embarq Sourced Services are offered as part of Embarq Data Services then Embarq shall pay Synacor Carriage Fees each month defined to be [*]. An example of how Carriage Fees are computed is attached hereto as Exhibit 11. [*]. For purposes herein, a “Subscription Account” is defined as an Embarq Data Subscriber who is [*]	
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 13 

 

[*]. The number of Subscription Accounts shall be counted by Synacor as of the last day of each month unless otherwise agreed to by the Parties in writing.

 	5.11.	 	Security Suite Price Schedule. The prices listed below represents a [*] fee schedule with [*] on the number of Embarq Portal(s) subscribers that can activate the Internet Security Suite of Services and is calculated based on a Embarq Portal(s) subscriber count of [*]. If the total Embarq Portal(s) Subscriber count is either above or below the Embarq Portal(s) Subscriber Range, the monthly fee schedule detailed below will be adjusted [*] the Embarq Data Subscriber count is either less than or greater than the boundaries of the Subscriber Range defined in the previous sentence.	

 	[*]	 	 	

6.	 	BILLING	

 	6.1.	 	Synacor provides billing recognition and billing components. This is achieved by the following:	

 	6.1.1.	 	Integrated Billing, [*]	
 		
 	6.1.2.	 	Credit Card	
 		
 	6.1.3.	 	Manual Billing via Customer Service Representatives	

 	6.2.	 	Synacor logs every premium service subscription/cancellation transaction that passes through the Portelus system. Synacor will deliver that data to Embarq, via the following modalities at Embarq’s discretion:	

 	6.2.1.	 	[*]	
 		
 	6.2.2.	 	[*]	
 		
 	6.2.3.	 	An e-mail notification to a CSR (email once a day with a new subscriptions list)	
 		
 	6.2.4.	 	Pulled from Synacor’s API when needed	
 		
 	6.2.5.	 	Sent to Embarq in another standard or proprietary format for input into their billing program	

 	6.3.	 	Premium Products and Internet Security Services will also be integrated into the Embarq Portal(s) and unified with Embarq email login as well as integrating the billing of Premium Products Bundles with Embarq billing and a credit card billing service.	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 14 

 

 	6.3.1.	 	Synacor and its partner F-Secure will provide training support for security, both at initial launch and ongoing.	

 	6.3.1.1.	 	Synacor and its partner F-Secure will customize training as requested by Embarq	
 		
 	6.3.1.2.	 	Synacor and its partner F-Secure will provide refresher training as requested and at all major releases or functionality updates	

7.	 	OPERATIONS	

 	7.1.	 	Customer Care Obligations. Customer care responsibilities are as provided in Exhibit 12, attached.	
 		
 	7.2.	 	Planning . Both Parties will advise each other in writing of any network, software and services version releases and updates as far in advance as is commercially reasonable, and shall share with the other Party any other relevant information as to modifications to features of the Embarq Portal(s) controlled by that Party, in accordance with the meeting schedules described in Section 4.2. Both Parties will meet quarterly for reviews. For new products and services Synacor will map out timelines by month.	
 		
 	7.3.	 	Training . Training and development: (which apply to Email, Portal, Premium Products and Internet Security Services):	

 	7.3.1.	 	Training Content and Technical Support materials will be developed and delivered by Synacor	

 	7.3.1.1.	 	Drafts forwarded to Embarq’s training department on or before November 1, 2006	
 		
 	7.3.1.2.	 	Technical Support materials will be delivered to Embarq on or before December 1, 2006	
 		
 	7.3.1.3.	 	Initial training materials and support for Synacor security services will be delivered to Embarq on or before December 1, 2006	

 	7.3.1.3.1.	 	All security training will be customized as directed by Embarq	
 		
 	7.3.1.3.2.	 	Synacor will provide refresher training upon request and immediately upon major software releases or functionality updates	

 	7.3.2.	 	Customization and localized content developed jointly by Embarq and Synacor on or before November 1, 2006	

 	7.3.2.1.	 	Edits and final copy provided by Embarq 2 weeks prior to first training date	
 		
 	7.3.2.2.	 	Materials will be provided by Synacor	

 	7.3.3.	 	Delivery provided by Synacor at Embarq’s location	

 	7.3.3.1.	 	Embarq should have facilities and equipment available; Synacor will provide access to all applicable portal and support systems test environments	
 		
 	7.3.3.2.	 	Embarq will provide training evaluation and participant satisfaction statistics for feedback and quality assurance purposes.	
 		
 	7.3.3.3.	 	A Synacor Training Consultant will be available for classroom or webinar delivery.	
 15 

 

 	7.3.3.4.	 	The Training Consultant can provide single or multiple Train-the-Trainer sessions or Agent sessions.	
 		
 	7.3.3.5.	 	[*]	

 	7.4.	 	Network and Connectivity . [*] for the exchange of all relevant traffic generated by the delivery of the Embarq Portal(s). Embarq will be responsible for all network issues, including but not limited [*], provisioning, network integrity, central office issues, backhaul, customer services, and all support of network issues occurring on the Embarq Network. The Parties agree that bandwidth usage associated with services not currently in the Embarq Portal(s) may have significant costs to Synacor and in such cases the Parties will address those costs in good faith negotiations at the time of inclusion of such services.	
 		
 	7.5.	 	Service Changes . In the event either Party makes changes to its service which affects the ability of the other Party to provide service to the Embarq Portal(s) Customers as envisioned herein, the Party making the change agrees to evaluate any new processes to ensure that they will function appropriately with the other Party’s systems, and will include the other Party in the testing of the new functionality to verify that the new processes are working properly. Synacor will notify EMBARQ in writing of any changes to be made to the Embarq Portal(s), Security Software, Premium Bundles, or any other change impacting Embarq customers 60 days prior to making such changes. Embarq will be given a minimum of 2-weeks to test the changes prior to implementation, with the right to delay implementation if issues are encountered in Embarq testing.	
 		
 	7.6.	 	Break/Fix . In the event that Synacor makes any changes pursuant to its Portelus Service, which affects the Embarq Portal(s) Customers services, Synacor agrees to include Embarq in the evaluation of any new processes to ensure that it will function appropriately, in accordance with the Change Management Process set forth in Exhibit 13. Synacor will include the other Party in the testing of the new functionality to verify that the new processes are working properly.	
 		
 	7.7.	 	Privacy/Conditions of Use . Each Party will retain its own separate privacy policies, which policies will be consistent with each other, and which will independently govern that Party’s provision of service to the Embarq Portal(s) Customer. Terms and Conditions of Use for the access service will be mutually agreed upon. All other User policies relating to the use of the Internet and the Embarq Portal(s) (e.g. acceptable use, web site usage, free web space, and community guidelines), will be mutually agreed upon and materially the same as the policies used by Synacor in connection with the Synacor Services.	
 		
 	7.8.	 	Security . The Parties agree that network and services security issues are of the utmost importance to each Party, and the Parties agree to provide corporate security contacts for coordination of security issues. The Parties agree to cooperate reasonably with each other on security issues, including but not limited to:	

 	7.8.1.	 	“Phisher” sites and emails;	
 		
 	7.8.2.	 	Spam (incoming and outgoing);	
 		
 	7.8.3.	 	Denial of service attacks;	
 		
 	7.8.4.	 	Criminal use of the Embarq Portal(s), including, but not limited to, identification of the offending User;	
 		
 	7.8.5.	 	Credit card or other payment fraud; and	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 16 

 

 	7.8.6.	 	Any other issue identified by either Party in good faith as a critical security issue.	

 	7.9.	 	Internet Security Services Support. Should Embarq so choose, Synacor and F-Secure will train Embarq’s Tier 1 technical support personnel and provide continuously updated online support and product information tools. F-Secure will provide Embarq Tier 2 and Tier 3 in accordance to the Service Level Definition attached hereto. Synacor and F-Secure will work with Embarq to integrate the Internet Security Services support tools with Portal and email support tools prior to launch of Embarq Portal(s). The integrated support tools provided will be accessed via single-sign-on by authorized Embarq data technicians. Synacor agrees to ensure that Embarq has access to all available F-Secure support tools, including but not limited to knowledge bases, FAQs, diagnostic tools, and web-based scanning engines.	
 		
 	7.10.	 	Personnel . Synacor will designate a manager as the primary point of contact for Embarq with regards to the matters contained in this Agreement. Embarq will designate a similar primary contact person within Embarq who will be the primary point of contact for Synacor with regards to the matters contained in this Agreement.	
 		
 	7.11.	 	Reports.	

 	7.11.1.	 	Synacor will provide reports in accordance with Exhibit 7 attached.	
 		
 	7.11.2.	 	Reports will be available online through Portelus.	

 	7.12.	 	Customer Account Maintenance and Data Exchange.	

 	7.12.1.	 	Embarq and Synacor will work together to design, develop and implement API processes to support account activation (registration), account maintenance/updates, product changes, and cancellations of service.	
 		
 	7.12.2.	 	Embarq and Synacor will work together to design, develop and implement API processes to support the data technician support tools described in sections 7.19 and 7.20 of this Order.	
 		
 	7.12.3.	 	[*]	
 		
 	7.12.4.	 	[*]	
 		
 	7.12.5.	 	All maintenance/update, and cancellation records shall include the unique Embarq identifier to allow Synacor to properly locate and identify the customer account in the Synacor system and perform the change request.	
 		
 	7.12.6.	 	Both parties shall provide a minimum of 60 calendar days advance notice for any changes to the maintenance and registration API processes. If development is required by either party, the parties will work together to determine a reasonable delivery date.	
 		
 	7.12.7.	 	Both parties will provide the ability to conduct regression testing for any of the established processes.	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 17 

 

 	7.12.8.	 	Any Embarq customer information provided to Synacor will be deemed Embarq Confidential Information and handled by Synacor in accordance with Section 10 of the Master Services Agreement.	

 	7.13.	 	Authentication Security. Synacor will authenticate Users logging into the Portal per the username and password established at the time of registration of the account. Synacor will maintain username/password database, and provide functionality through a customer, self-service Portal Account Management tool available to authenticated subscribers. This self-service tool will provide, but is not limited to, the capability for the customer to change passwords, change username/email address, add mailboxes, and delete mailboxes.	
 		
 	7.14.	 	Network Architecture. Embarq will be responsible for all aspects of the Embarq System and Network infrastructure facilities from the Service Subscribers’ CPE through connectivity to the Internet. Embarq shall provision the Embarq Portal(s) for Service Subscribers and shall control all DHCP servers and routers necessary for that function. Additionally, Embarq will provide and manage a block of IP addresses sufficient to meet the demands to provision the personal computers of Service Subscribers. Synacor will be responsible for all aspects of the Synacor Services infrastructure facilities, hosting, caching and software used by Synacor to provide the Synacor portion of the Embarq Portal(s).	
 		
 	7.15.	 	Systems Interfaces. Both parties will develop and implement systems and interfaces as necessary to provide functionality necessary to the other party to perform its duties and responsibilities in accordance with the SLA.	
 		
 	7.16.	 	Systems Roadmaps. Both parties agree to provide an overall systems roadmap with respect to the Embarq Portal(s) that the parties may provide over the Embarq Network with the other Party on a bi-annual basis to obtain feedback and comments. Both Parties agree to keep these systems roadmaps in the strictest confidence, and shall not disclose such information shared. In addition, both Parties agree to provide reasonable notice of systems and/or service changes and/or launches with detailed requirements. These launches will require that both teams agree to timelines, approach and project details and agree to supply the other Parties with resources to support these efforts. Any development necessary for the continuation of services belong to Synacor.	
 		
 	7.17.	 	Infrastructure . Each Party will bear its own costs of agreed upon infrastructure enhancements to enable the two companies to exchange order, billing, and account maintenance information, and reports, including but not limited to (1) an automated maintenance file transfer process, and (2) an automated billing reconciliation process.	
 		
 	7.18.	 	Intentionally Omitted	
 		
 	7.19.	 	Synacor will provide APIs and/or on-line, integrated support tools to be utilized by Embarq Data Technicians for Tier 1 and Tier 2 Support for Email, Security, and the Portal. Such tools will provide the following functionality and will be available to EMBARQ at time of launch:	

 	7.19.1.	 	Password Look-Up Functionality — will enable the data technician to look-up password to assist customers who have forgotten passwords.	
 		
 	7.19.2.	 	Password Reset — will enable the data technician to ‘reset’ or change a customer’s password in real-time.	
 18 

 

 	7.19.3.	 	Add a Mailbox to a Primary Customer Account — will enable the data technician to add a secondary mailbox to a Primary Customer Account — up to the maximum mailboxes allowed per a single subscriber account.	
 		
 	7.19.4.	 	Delete a Mailbox from a Primary Customer Account — will enable the data technicians to delete or remove a secondary mailbox from a Primary Customer account.	
 		
 	7.19.5.	 	Change the Primary Mailbox — will enable the data technician to change the Primary Mailbox on the account. This includes making the Primary mailbox a secondary mailbox and making a secondary mailbox a primary mailbox on the account.	
 		
 	7.19.6.	 	Move a Mailbox — will enable the data technician to move a mailbox from Primary Account to another.	
 		
 	7.19.7.	 	Update or change customer information — enable the data technician to change customer information captured in the Synacor system. Information to include, but is not limited to, customer name, customer telephone number, Account Type (Residential or Business), Account Service (if offering premium levels of service), and any other EMBARQ customer information captured within the Synacor system.	
 		
 	7.19.8.	 	Reactivate Accounts — will enable the data technician to reactivate accounts that are ‘active’ in the EMBARQ system but have been deactivated in the Synacor system — will reactivate Email service, Portal access, and security software services.	
 		
 	7.19.9.	 	Deactivate Accounts — will enable the data technician to deactivate accounts that are ‘active’ in the Synacor system, but have cancelled service in the EMBARQ system — will deactivate email service, Portal Access, and security software services.	
 		
 	7.19.10.	 	Email Issue Resolution — Synacor will provide tools necessary to troubleshoot and resolve common email issues.	
 		
 	7.19.11.	 	Security Software Issue Resolution — Synacor will provide tools necessary to troubleshoot and resolve common Security Software issues.	
 		
 	7.19.12.	 	Portal Issue Resolution — Synacor will provide tools necessary to troubleshoot and resolve common issues encountered by customers with the Portal.	
 		
 	7.19.13.	 	The data technician support tools outlined above will utilize account look-up functionality based on telephone, email address, or account number or username.	
 		
 	7.19.14.	 	In all cases where Embarq Data Technicians or Customer Service Reps are updating customer account information via the support tools provided by Synacor, Embarq will assume the responsibility of verifying the customer’s identity per Embarq standard practices.	
 		
 	7.19.15.	 	Synacor will provide an Agent Management Tool, to be administered by Embarq designated management. Such tool will allow Embarq management to grant and remove access to the Support Tools provided by Synacor for Tier 1 and Tier 2 Support as outlined above. Such tool will be provided to Embarq at time of launch.	
 19 

 

 	7.19.16.	 	Synacor will work with Embarq to integrate via API interface the above outlined support tools into the Embarq data technician desktops. In addition, these support tools can be accessed via Synacor provided URL by authorized parties.	

 	7.20.	 	Tier 3 Support	

 	7.20.1.	 	Synacor will provide a ticket escalation system/process to be utilized by Embarq data technicians when issues are encountered related to the Portal, email, and security software that cannot be resolved through Tier 1 or Tier 2. Synacor will provide 24/7 support and will adhere to the SLA.	
 		
 	7.20.2.	 	Account Creation/Registration: Synacor will work with Embarq and/or Embarq appointed 3rd party vendor to design, modify and incorporate installation processes for new High-speed Internet customers related to new account activation, email account creation, and security software download and set-up.	

 	7.21.	 	Customer Service . Embarq will provide “first-line” customer service via interactive voice response (“IVR”) or customer service representative to Users, including all inquiries with respect to installation disks, account maintenance, network level service, service provisioning and billing or any other functionality or services provided by or on behalf of Embarq. In addition, Embarq will provide Tier 1 and Tier 2 support, including all inquiries with respect to email, Portal, and security to the extent that tools are provided in the matrix outlined above. Synacor will provide Tier 3 support via a ticket escalation system or phone escalation as outlined in Exhibit 11 of this document.	

8.	 	OWNERSHIP AND LICENSES	

 	8.1.	 	Interface Brand and Content .	

 	8.1.1.	 	As between Synacor and Embarq, Synacor will have full and exclusive right, title and ownership interest in and to Synacor Properties (as defined in Exhibit 4), Synacor Content, Synacor Tools, the Back End Interface and the Intellectual Property Rights therein, and Embarq will have full and exclusive right, title and ownership interest in and to Embarq Content, Embarq Brand Features, and the Intellectual Property Rights therein.	
 		
 	8.1.2.	 	Embarq will control all aspects of the Embarq Portal(s) and will brand the Embarq Portal(s) only using Embarq trademarks, although Embarq may include a notice that the Embarq Portal(s) is powered by Synacor.	
 		
 	8.1.3.	 	Embarq will have complete editorial control, with respect to the placement and content, advertising, and any language within the Embarq Portal(s).	
 		
 	8.1.4.	 	[*].	

 	8.2.	 	Grant of License by Embarq . Embarq hereby grants to Synacor during the term of this Contract Order a non-exclusive, non-transferable, non-sublicenseable, royalty-free, worldwide license under all of Embarq’s Marks (as defined below) to use, reproduce,	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 20 

 

publicly display, publicly perform, distribute and transmit the Embarq Brand Features on the Embarq Portal(s) in the manner described in this Contract Order, and for any other use for which Synacor receives prior written approval from Embarq, subject in each case to compliance with any and all Embarq Brand Guidelines.

 	8.3.	 	Grant of License by Synacor . Synacor hereby grants to Embarq during the term of this Contract Order a nonexclusive, non-transferable, non-sublicenseable, royalty-free, worldwide license under all of Synacor’s Marks to use, reproduce, publicly display, publicly perform, distribute and transmit Synacor Brand Features and Synacor Content on the Embarq Portal(s) in the manner described in this Contract Order, and in connection with the distribution, marketing and promotion of the Embarq Portal(s), subject in each case to compliance with any and all Synacor Brand Guidelines.	
 		
 	8.4.	 	Trademark Restrictions . The mark owner may terminate the foregoing license if, in its reasonable discretion, the licensee’s use of the marks tarnishes, blurs or dilutes the quality associated with the marks or the associated goodwill and such problem is not cured within 20 days of notice of breach; alternatively, instead of terminating the license in total, the owner may specify that certain pages of the licensee’s website may not contain the marks. Title to and ownership of the owner’s marks shall remain with the owner. The licensee shall use the marks exactly in the form provided and in conformance with any Brand Guidelines. The licensee shall not take any action inconsistent with the owner’s ownership of the marks, and any benefits accruing from use of such marks shall automatically vest in and accrue to the benefit of the owner. The licensee shall not form any combination marks with the other party’s marks.	
 		
 	8.5.	 	Content Standards . Each party agrees to display mutually agreeable trademark and copyright notices or legends of the other party when using such other party’s Brand Features. Each party shall in advance submit to the other party the proposed placement of such notices or legends (including, without limitation, the place and manner of incorporation into electronic media or transmissions), and such other party shall have the right to approve the same.	

 	8.5.1.	 	Embarq shall not provide any Embarq Content, and Synacor shall not provide any Synacor Content that is created and developed solely by Synacor, that: (a) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, harmful to minors or child pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (f) is materially false, misleading or inaccurate. For the sake of clarity, for the purposes of this Section 8.51, Synacor Content shall not include any Content provided by Synacor Providers.	
 21 

 

 	8.5.2.	 	Synacor shall not provide any Synacor Owned Content that violates any law.	

 	8.6.	 	Reserved Rights . Without limitation of the foregoing, each party reserves all rights other than those expressly granted in this Contract Order, and no licenses are granted except as expressly set forth herein and each party shall retain all right, title and interest in and to its logos and product and service names and trademarks (the “Marks”), technology and other intellectual property (including without limitation, in the case of Synacor, the tools, templates, frameworks or other software owned or licensed by Supplier and used in connection with the Service (the “Software”) and Services). Neither party shall take any action inconsistent with such ownership. This is a contract for services only. All Software, hardware and other technology used to provide the Services will be installed, accessed and maintained only by or for Supplier and no license therein is granted to Embarq. Embarq shall not use Supplier’s Marks, Software or Services in any manner except as specifically provided herein.	
 		
 	8.7.	 	Link License . Embarq grants to Synacor a non-transferable, non-exclusive, royalty-free license to use the Embarq Marks on the Synacor websites and to hyperlink the Synacor websites to the Embarq websites selected by Embarq (the “Embarq Links”), provided that Embarq approves in advance all uses of the Embarq Marks on the Synacor website as further described in this paragraph 8.7.	

9.	 	POST-TERMINATION OBLIGATIONS.	

 	9.1.	 	Upon notice of termination of this Contract Order by Embarq for any reason or upon Embarq’s provision of a notice of nonrenewal to Synacor, at Embarq’s request Synacor agrees to assist in the transition of EMBARQ customer email, Portal Homepage, Security, and Premium Services away from Synacor hosted services to Embarq or to a third party designated by Embarq. In addition, the parties agree that during a Transition Period, the parties will continue to be bound by and perform in accordance with this Contract Order, and Synacor will continue to assist Embarq as provided above and Embarq will continue to pay for the Services. Synacor’s assistance in this transition during the Transition Period will be provided [*]. Such support includes, but is not limited to:	

 	9.1.1	 	Whitelist of the designated Embarq partner IP ranges to allow access to Synacor servers and Webmail interfaces.	
 		
 	9.1.2	 	Provide ongoing lists or access to Embarq customer usernames and passwords, including primary and secondary designation and username and passwords per account.	
 		
 	9.1.3	 	Disable the Synacor hosted Portal for EMBARQ customers effective with the beginning of the migration period.	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 22 

 

 	9.1.4	 	Redirect EMBARQ customers attempting to log-in to any Synacor — hosted application (Portal, Webmail, etc.), to a URL to be provided by Embarq. Redirection to continue throughout the length of the migration period.	
 		
 	9.1.5	 	Provide access to all email messages, address books, and mail folders for migration to the new Portal Partner, (i.e., IMAP interface or other agreed upon method of access)	
 		
 	9.1.6	 	Allow email forwarding for migrated customers for 6 months after the account has been migrated.	
 		
 	9.1.7	 	Continue operational support and business as usual for all ‘non-migrated’ customers and supporting processes throughout the migration period. Including, but not limited to, Technical Support Tools, API processes to support account updates and cancellations, reconciliation activities, reporting tools, and other day-to-day operations.	

 	9.2.	 	Within 30 days after the end of the Transition Period, Synacor will return to locations designated by Embarq any Embarq-Owned Property.	
 		
 	9.3.	 	Within 90 days after the end of the Transition Period, Synacor will invoice Embarq for any final amounts due under this Contract Order. Embarq will pay undisputed portions of all amounts reflected in the invoice within 45 days of Embarq’s receipt of the invoice.	
 		
 	9.4.	 	After the Transition Period, the parties will discontinue making any statements or taking any action that might cause third parties to infer that any business relationship continues to exist between the parties under this Contract Order, and where necessary or advisable, inform third parties that that Parties no longer have a business relationship under this Contract Order.	
 		
 	9.5.	 	For a period of three (3) years after the expiration or other termination of this Contract Order, Synacor agrees that it will not directly target any Users, or use any Embarq Data to target any Users, to switch from their Embarq high-speed internet service to a broadband data service offering sold by Synacor or by a Synacor marketing partner. The foregoing shall not apply to any of Synacor or Synacor’s marketing partner’s general advertisements, or a User that switches of his or her own volition.	
 23 

 

 	 	 	 	 	 	 	
SIGNED:	 	 	 	 	 	 	
 	 	 	 	 	 	 	
EMBARQ MANAGEMENT COMPANY	 	 	 	SYNACOR, INC.	 	 	
 	 	 	 	 	 	 	
/s/ David Platt	 	 	 	/s/ Frank J. Codella	 	 	
 	 	 	 	 	 	 	
(signature)	 	 	 	(signature)	 	 	
Print name: David Platt	 	 	 	Print name: Frank J. Codella	 	 	
Title: VP — Procurement	 	 	 	Title: Vice President of Sales	 	 	
Date: 12/4/06	 	 	 	Date: 11/27/06	 	 	
 24 

 

Exhibit 1
Initial Content to be Integrated into the Embarq Portal(s)
 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	Rev.	
Category	 	Description	 	Provider	 	Refresh Rate	 	Share	
 	 	 	 	 	 	 	 	 		
 	 	Directories	 	 	 	 	 	 		
 	 	Yellow & White Pages	 	Online search functionality	 	[*]	 	Real time		
 	 	 	 	 	 	 	 	 		
 	 	Maps	 	Maps & Directions	 	[*]	 	Real time		
 	 	 	 	 	 	 	 	 		
 	 	Restaurant Search	 	Search tool	 	[*]	 	Real time		
 	 	 	 	 	 	 	 	 		
(ii)	 	Search Services	 	Web search	 	[*]	 	Real time 	 	See “Advertising Addendum”		
 	 	 	 	 	 	 	 	 		
(iii)	 	Horoscopes	 	Online horoscopes	 	[*]	 	Daily		
 	 	 	 	 	 	 	 	 		
(v)	 	[*] News service:
o  National News
o  World News
o  Sports News
o  Entertainment News
o  Health News
o  Business and Finance News
o  Science & Technology	 	Text, pictures, videos, and audio, (“[*] News Service”) — English & Spanish language. When a User clicks on a news story or video the User will remain within the portal. [*] video content will generally be delivered at an encoding rate of at least 300kbs.

Sports sub categories:	 	[*]	 	between every 20 minutes and 1.5 hours		

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 25 

 

 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	Rev.	
Category	 	Description	 	Provider	 	Refresh Rate	 	Share	
 	 	 	 	Baseball, Basketball, Hockey, Golf, Auto Racing, Football, Soccer, Boxing and Tennis	 	 	 	 		
 	 	 	 	 	 	 	 	 		
 	 	 	 	Business & Finance sub categories: Market snapshot, Market movers (top gainers/losers) Most active portfolio tracking & personal finance stories from [*]	 	 	 	 		
 	 	 	 	 	 	 	 	 		
 	 	 	 	Business & Finance sub categories: Market snapshot, Market movers (top gainers/losers) Most active portfolio tracking & personal finance stories from [*]	 	 	 	 		
 	 	 	 	 	 	 	 	 		
 	 	 	 	Entertainment sub categories:	 	 	 	 		
 	 	 	 	Box office snapshots, Top movies, entertainment news and gossip from [*] updated daily	 	 	 	 		
 	 	 	 	 	 	 	 	 		
 	 	Photo	 	[*]	 	[*]	 	N/A		
 	 	 	 	 	 	 	 	 		
(vii)	 	Local	 	Local news, events, lottery results, restaurants & entertainment and shopping based on Zip code — Local news from News papers across North America,	 	[*]	 	Real — time — News/Gas Prices Daily — Events/ Lottery	 	[*]		

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 26 

 

 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	Rev.	
Category	 	Description	 	Provider	 	Refresh Rate	 	Share	
 	 	 	 	 	 	[*]	 	 		
 	 	 	 	 	 	 	 	 		
(viii)	 	Music news.	 	News & Top ten ranking	 	[*]	 	weekly		
 	 	 	 	 	 	[*]	 	hourly		
 		
(ix)	 	Searchable TV listings	 	by Zip Code	 	[*]	 	Daily		
 	 	 	 	 	 	 	 	 		
(x)	 	Local Movie Listings.	 	by Zip Code	 	[*]	 	Daily		
 	 	 	 	 	 	 	 	Daily		
 	 	Video trailers	 	 	 	[*]	 	weekly		
 	 	 	 	 	 	 	 	 		
(xi)	 	Financial Markets &
Stock Quotes	 	Major indexes (Dow, Nas * S&P) and individual equities and Funds	 	[*]	 	20 minutes		
 	 	 	 	 	 	 	 	 		
(xiii)	 	Games Channel	 	Aggregation of games related content	 	[*]	 	weekly		
 	 	 	 	 	 	 	 	 		
(xiv)	 	Spanish content	 	News in Spanish (selectable by User)	 	[*]	 	20 minutes		
 	 	 	 	 	 	 	 	 		
(xv)	 	Downloadable Toolbar (branded to Embarq)	 	Toolbar which attaches to web browsers and provides quick access to search and other customizable features	 	Synacor	 	customized &
changeable by User		
 	 	 	 	 	 	 	 	 		
(xvi)	 	Household Management	 	Account management, restricting access, spending limits & bill presentment features	 	Synacor	 	N/A		
 	 	 	 	 	 	 	 	 		
(xvii)	 	Quick links	 	Application which allows Users to setup links & store username & passwords for easy access	 	Synacor	 	N/A		

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 27 

 

Exhibit 2
Vendors Integrated
The vendors listed below represents the snapshot of the Parties content relationships. This
list will change as vendors are both added and deleted from time to time.
Synacor Content Relationships
[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 28 

 

[*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 29 

 

Exhibit 3
Premium Bundles
Premium Products: Synacor shall collaborate with Embarq to design premium content bundles that address consumer interests and meet Embarq’s marketing and budgetary objectives. To this end, Premium Products can be marketed as a la carte consumer offerings and/or product bundles can be configured and selectively embedded in various DSL tiered offerings to enhance their perceived value and consumer appeal.

 	a.	 	Premium Bundles . The following Premium Bundles are examples of the products available to Embarq for distribution to Users. Synacor will work with Embarq, prior the Commercial Launch and throughout the Term of this Agreement, to design Premium Content Bundles that meet Embarq business objectives:	
 		
 	(i)	 	Family Bundle . The Family Bundle shall include all of the following:	

 	•	 	Encyclopedia Britannica — Unlimited access to the updated 32-volume Encyclopedia Britannica, plus: Britannica’s Student & Concise encyclopedias, thousands of exclusive video and audio clips	
 		
 	•	 	Shockwave Gameblast — 100 popular premium online and downloadable games	
 		
 	•	 	American Greetings — Print and Send Greeting cards and access to member’s only online greeting cards	
 		
 	•	 	Clever Island — Focuses on the educational skills that are most important to a child’s development, including language, numbers, spatial reasoning, logic, and critical thinking. Activities are designed by leading experts in education and child development to be engaging, powerful, and fun	
 		
 	•	 	Fox Sports — Video clips and highlights from all the professional leagues, NASCAR and college athletics as well as the “Best Damn Sports Show Period.”	
 		
 	•	 	Weather.com — Local, regional and national video weather reports and special feature categories. (Subject to approval by Weather.com.)	
 		
 	•	 	Major League Baseball — Access to GameDay Audio (listen to every game played that day), Condensed Video Games, Post Game Highlights, MLB Custom Cuts and MLB Radio.

Cost to Embarq per DSL Subscriber: [*]	

 	(ii)	 	Educations Bundle The Education Bundle shall include the following:	

 	•	 	Encyclopedia Britannica — Unlimited access to the updated 32-volume Encyclopedia Britannica, plus: Britannica’s Student & Concise encyclopedias, thousands of exclusive video and audio clips	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 30 

 

 	•	 	Clever Island — Focuses on the educations skills that are most important to a child’s development, including language, numbers, spatial reasoning, logic and critical thinking. Activities are designed by leading experts in education and child development to be engaging, powerful and fun	
 		
 	•	 	I Know That — allows children from ages 2 to 12 to discover the magic and power of lifelong learning skills. All activities are highly interactive, and use state of the art web multimedia including heavy animation, sound, and digitized children’s voices.	
 		
 	•	 	Nutshell Math Essential —	

 	•	 	Hundreds of math topics explained in Multimedia Listen & ViewTM format.	
 		
 	•	 	Hear the teacher’s voice. See the teacher’s handwriting.	
 		
 	•	 	Quizzes with detailed answers to help students prepare for tests and track their improvements.	
 		
 	•	 	Available for Middle School Math / Pre-Algebra, Algebra 1, Algebra 2, and Geometry	

 	•	 	Boston Test prep — online SAT prep Course makes the preparation process easy and quick.	

 	•	 	Practice with over 2500 SAT style questions	
 		
 	•	 	Evaluate strengths and weakness immediately	
 		
 	•	 	Study with more than 30 audio/video lessons

Cost to Embarq per DSL Subscriber: [*]	

 	(iii)	 	Games Bundle The Games Bundle shall include the following:	

 	•	 	IGN Insider	
 		
 	•	 	Lego PC Games	
 		
 	•	 	Atari Classics Games	
 		
 	•	 	Sega Classic Games	
 		
 	•	 	Yummy Games — popular parlor games, PC Games and on-line games.	
 		
 	•	 	Portable Gaming Magazine (Empyrean)

Cost to Embarq per DSL Subscriber: [*]	

 	(iv)	 	Subscription Music Services:	

 	i.	 	Embarq Music2Go	

 	•	 	MusicNet — Unlimited song download service which includes unlimited song downloads to WMP 10 supported portable devices and personal computers from over 2,000,000 tracks; as well as commercial free radio and video. Subscribers can also purchase tracks.	

 	 	 	Cost to Embarq: [*]	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 31 

 

 	ii.	 	Embarq Music (non portable) :	

 	•	 	MusicNet — Unlimited song download service which includes unlimited song downloads to WMP 10 supported personal computers from over 2,000,000 tracks; as well as commercial free radio and video. Subscribers can also purchase tracks	
 		
 	•	 	Sync Magazine — From Zinio (Synacor may include additional Magazines)	

 	 	 	Cost to Embarq: [*]	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 32 

 

Exhibit 4
PREMIUM SERVICES & CONTENT DISTRIBUTION ADDENDUM
TO
SYNACOR MASTER SERVICE AGREEMENT AND CONTRACT ORDER
     If any provision of this Addendum conflicts with a provision of the Master Services Agreement or the Contract Order, the provision of the Master Services Agreement or Contract Order, as applicable, shall control. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Master Services Agreement or the Contract Order.
1. Premium Content. The content to be distributed hereunder may be obtained by Synacor (the “Synacor Content”) and/or by Embarq (the “Embarq Content”). The Synacor Content and the Embarq Content are hereinafter referred to collectively as the “Content”. Distribution rights to the Synacor Content will be obtained by Synacor from third party content providers (each individually a “Synacor Provider” and collectively, the “Synacor Providers”) for the non-exclusive distribution by third parties including, but not limited to, Embarq. The Embarq Content will be owned by Embarq or licensed by Embarq from third party Content providers (each individually an “Embarq Provider” and collectively, the “Embarq Providers”). The Embarq Providers and the Synacor Providers are hereinafter referred to collectively as the “Providers”.
2. Users, Registration Pages. It is intended that the Content will be accessed by Users through the System described in Section 3 below. Synacor may require the use of user interfaces or other identification verification methods in order for the Users to access the Content. As may be determined by the parties and subject to revision during the Term as the parties may determine, System web pages and/or Content will be hosted and served by Synacor or Embarq, subject to the approval of Synacor.
3. Content Hosting and Delivery System. Synacor will maintain a User registration and login system that is integrated with its content provisioning solution (the “System”) which will be used to control User access to the Content and to manage the updating and delivery of the Content to the User. Depending upon the System implementation for Embarq, as such may be revised during the Term by consent of the parties, hosting and serving of Content may be provided by Embarq, Embarq Providers, Synacor and/or by Synacor Providers. To the extent that Synacor Provider’s or Embarq Provider’s systems are used to host or serve Content, the service levels and availability of such systems for Users will be no lower than the service levels and the availability of such systems to other content distributors or consumers. With Embarq’s prior written consent, Synacor can: (i) offer new Content which it has obtained for distribution; (ii) create and modify bundles of Content to be made available to Users; (iii) edit or modify the editorial content and design of the web pages with which the consumer interacts in order to access the Content; and (iv) remove any or all of the Content from availability to Embarq’s Users. Synacor shall take all commercially reasonable steps necessary to implement any such Embarq decisions as soon as is reasonably practicable; provided, however, that where Embarq requests that any specified piece of Content be removed from the System, Synacor shall remove such title or titles from the System as expeditiously as possible, and in all events within seventy-two (72) hours after receipt of notice from Embarq.
4. Subscriber Billing. User billing will be the sole responsibility of Embarq, except any transactions that Embarq directs Synacor to offer via credit card billing.
5. Terms of Use. In order to complete his or her registration as a subscriber, each User will be required to electronically accept the Terms of Use (“TOU”) as mutually agreed by Synacor and Embarq. Prior to acceptance of the TOU, Synacor shall present each User with the opportunity to review and agree to the TOU. Synacor shall not amend, modify or otherwise change the TOU without the consent of Embarq, which will not be unreasonably withheld or delayed, provided, however, that the terms of the TOU may be amended, modified or otherwise changed by Synacor as necessary to comply with the requirements of any Synacor Provider or applicable law.
6. Licenses.
 33 

 

(a) Subject to the provisions of the Master Services Agreement, the Contract Order, this Addendum and all other amendments, addendums, schedules and/or exhibits to the Master Services Agreement (hereinafter referred to collectively as the “Agreement”), Synacor grants to Embarq during the Term, a limited, non-exclusive, non-transferable, right and license to: (i) transmit and distribute individual copies of the Synacor Content, solely for purposes of distributing the Synacor Content to Users located in the United States who are subscribers to Embarq’s internet services; and (ii) use and utilize such Synacor and Synacor Provider trademarks, logos and other works which are protected by intellectual property rights laws (the “Synacor Properties”) in connection with the distribution of Content to Users pursuant to this Agreement. Embarq expressly agrees that it shall not, and shall not permit any third party to, duplicate, copy, modify, amend, add to, delete from or otherwise make any change whatsoever in the Synacor Content or otherwise violate any intellectual property rights in the Synacor Content including but not limited to copyrights of third parties therein.
(b) Subject to the provisions of the Agreement, Embarq grants to Synacor during the Term, a limited, non-exclusive, non-transferable, royalty-free right and license to: (i) transmit and distribute individual copies of the Embarq Content, solely for purposes of distributing the Embarq Content to Users located in the United States who are subscribers to Embarq’s internet services; and (ii) use and utilize such Embarq and Embarq Provider trademarks, logos and other works which are protected by intellectual property rights laws (the “Embarq Properties”) in connection with the distribution of Content to Users pursuant to this Agreement. Synacor expressly agrees that it shall not, and shall not permit any third party to, duplicate, copy, modify, amend, add to, delete from or otherwise make any change whatsoever in the Embarq Content or otherwise violate any intellectual property rights in the Embarq Content including but not limited to copyrights of third parties therein.
(c) As to individual pieces of Content, the rights and licenses to use such Content as granted herein shall expire upon the expiration or earlier termination of the agreement pursuant to which distribution rights and license to such Content were obtained. Either party (the “Terminating Party”) shall have the right to terminate this Agreement immediately as to any particular Content upon notice to the other party: (i) if the Terminating Party reasonably believes the distribution of such Content exposes it to potential legal liability; or (ii) in the event a Synacor Provider or Embarq Provider ceases to operate a site, produce or distribute such Content.
7. Proprietary Rights.
(a) Subject to the rights and licenses granted in the Agreement, Synacor (and its licensors including but not limited to the Synacor Providers) retains all rights, title and interest in and to all copyrights, trademarks, trade names, logos, patents and other intellectual and proprietary rights in and to the Synacor Content. No title to or ownership of any Synacor Content and/or any part thereof is hereby transferred to Embarq or any third party. As between Embarq and Synacor, Embarq agrees that Synacor is the sole owner of the System and all technology, software and other intellectual property used by Synacor in connection with the performance of this Agreement and that Embarq shall make no claims thereto. Embarq shall comply with all reasonable requests of Synacor to protect the proprietary rights of Synacor and its licensors.
(b) Subject to the rights and licenses granted in the Agreement, Embarq (and its licensors including but not limited to the Embarq Providers) retains all rights, title and interest in and to all copyrights, trademarks, trade names, logos, patents and other intellectual and proprietary rights in and to the Embarq Content. No title to or ownership of any Embarq Content and/or any part thereof is hereby transferred to Synacor or any third party. Synacor shall comply with all reasonable requests of Embarq to protect the proprietary rights of Embarq and its licensors.
(c) All licenses, rights, title, interest and intellectual property rights of any kind in and to the Content are entirely owned by and reserved to the applicable Provider and may be used by the Provider in such manner as the Provider may choose. Without limiting the foregoing, each party hereby assigns to the applicable Provider all right, title and interest in the Content provided by the Provider, together with the goodwill attaching thereto, that may inure to such party in connection with this Agreement or from such party’s use of the Content hereunder. Each party agrees to execute and deliver to the other party, as requested, any documents required to register it as a registered user of any Content provided by the other Party and to follow any instructions of the other party providing the Content as to the use of any Content. Each party agrees that it will not and will not assist any third party to register or attempt to register any trademark, trade name or other intellectual property right related to any Content or any derivation or adaptation thereof or any work, symbol, design or mark which is so similar thereto as to suggest a relationship with any Provider or affiliate of a Provider. Each party agrees that it will not, nor will it assist any third party to, challenge the validity or ownership of any patent, copyright, trademark, or other
 34 

 

intellectual property registration of any Content. If a party breaches any provision of this section, such party agrees that it will, at its expense, immediately terminate the unauthorized activity and promptly execute and deliver to the party that provided the Content, as requested, such assignments and other documents as required to transfer to the Provider all rights to the registrations, patents or applications involved.
8. Content Provider Requirements.
(a) Embarq agrees to utilize the User interfaces or other identification verification methods of the System, as described in Section 3 of this Addendum, without modification, including but not limited to framing or co-branding, unless Embarq has obtained the prior written consent of Synacor to do otherwise.
(b) Embarq acknowledges and agrees that the look, feel, size and placement of any Synacor Content on the User access web pages (and any change or modification thereof), as described in Section 2 of this Addendum, is subject to Synacor’s approval, which may include terms, conditions and restrictions on the use of such Synacor Content or which may be withdrawn at any time.
(c) Consumer access to the Content will be included as part of a premium Embarq Internet service package which may be offered as part of a premium tier of Internet service or at an additional charge payable by the User. Embarq will not, at any time, permit access to the Synacor Content by any person via the general Internet or other access method other than through Synacor’s System.
(d) Neither Synacor nor a Synacor Provider shall have any liability in the event a Synacor Provider exercises its rights to terminate the rights and licenses to use Synacor Content as provided in Section 6(c) of this Addendum.
(e) Embarq agrees that Synacor has the right to withdraw all Content upon termination of the Agreement without liability after any applicable Transition Period and, after such Transition Period, to provide for the seamless migration of any Users or subscribers to Synacor Content to the Synacor Provider.
(f) Without the consent of the other Party, neither Party will: (i) send any interstitials, pop-up windows, or other messages or files to the User during the time in which any the other Party’s Content is displayed, or (ii) sell any advertising in, on, or related to the other Party’s Content, including but not limited to banners, buttons, links, streaming audio or streaming video advertisements. Neither Party may use the name, logo or any of the proprietary marks of the other Party’s content Providers in any sales, advertising or marketing materials without the written consent of the Party providing the content.
(g) To the extent a Provider has been given third party beneficiary rights in an Agreement with Synacor, such Provider is deemed a third party beneficiary to the Agreement solely for purposes of enforcement of the provisions of this Agreement relating to such Provider’s Content and that any such Provider may, in its sole discretion, take any and all action, including but not limited to commencing any legal action, to enforce its rights pursuant to this Agreement. Each such Provider may audit the books and records of the parties solely relating to such Provider’s Content, upon reasonable notice and at such Provider’s expense, not more frequently than quarterly during the term of the Agreement and for a period of two years thereafter and to take extracts from and/or make copies of such records.
9. Synacor Fees. The fees payable by Embarq to Synacor in connection with the provisions of this Addendum are set forth in Exhibit 5 to the Contract Order.
 35 

 

Exhibit 5
Service Level Definition (SLD)
TABLE OF CONTENTS

1. Purpose	 	 	38	 	
 	 	 	 	 	
2. Scope of the Services	 	 	38	 	
 	 	 	 	 	
2.1 End User Software Maintenance	 	 	38	 	
 	 	 	 	 	
2.2 Service Hosting Maintenance	 	 	38	 	
 	 	 	 	 	
2.3 Service Monitoring	 	 	38	 	
 	 	 	 	 	
2.4 Guaranteed Service Availability	 	 	38	 	
 	 	 	 	 	
2.5 Service Support	 	 	38	 	
 	 	 	 	 	
2.6 Service After Hours Support	 	 	39	 	
 	 	 	 	 	
2.7 Service Training	 	 	39	 	
 	 	 	 	 	
2.8 Service Documentation	 	 	39	 	
 	 	 	 	 	
2.9 Service Change Management Reporting	 	 	39	 	
 	 	 	 	 	
2.10 Optional Services	 	 	39	 	
 	 	 	 	 	
3. Changes to SLD	 	 	39	 	
 	 	 	 	 	
4. Processes and Procedures Related to This SLD	 	 	40	 	
 	 	 	 	 	
Call Management Process	 	 	40	 	
 	 	 	 	 	
5. Metrics	 	 	40	 	
 	 	 	 	 	
Metrics Reporting	 	 	40	 	
 	 	 	 	 	
6. Support and Service Availability	 	 	40	 	
 	 	 	 	 	
6.1 Service Request	 	 	40	 	
 	 	 	 	 	
6.2 Problem Escalation	 	 	40	 	
 	 	 	 	 	
6.3 First Level Support	 	 	40	 	
 	 	 	 	 	
6.4 Levels of Support	 	 	41	 	
 	 	 	 	 	
6.5 Support Responsibilities	 	 	41	 	
 	 	 	 	 	
 36 

 

 	 	 	 	 	
 	 	 	 	 	
6.6 Support Availability	 	 	41	 	
 	 	 	 	 	
6.7 Support Response Time	 	 	41	 	
 	 	 	 	 	
6.8 Support Request Severity Definitions	 	 	43	 	
 	 	 	 	 	
6.9 Service Availability	 	 	44	 	
 	 	 	 	 	
6.10 Service Unavailability	 	 	45	 	
 	 	 	 	 	
6.11 Service Unavailability compensation	 	 	45	 	
 37 

 

1. Purpose
The purpose of this Service Level Definition (SLD) is to describe an arrangement between the Company and F-Secure on delivering technical services, at specific levels of support at an agreed-upon cost.
2. Scope of the Services
The following services are provided by F-Secure to the Company in accordance with Security as a Service™ delivery. All services and related material are provided in English language unless specifically otherwise stated or agreed.
2.1 End User Software Maintenance
Maintenance of End User Software of the Service consists of generic and necessary maintenance minor Upgrades, Updates, troubleshooting, research, development and expenses related to the process. Company is at all times entitled to request that the most updated End User Software is made available to End User.
2.2 Service Hosting Maintenance
Maintenance of the Service hosting environment: This consists of infrastructure establishment, administration, system upgrades, updates, configuration and hosting of services. Preventative maintenance shall be performed as necessary within the limits of Service Availability definitions, described in Section 6.9 of this SLD.
2.3 Service Monitoring
This consists of monitoring the Service according to the rules defined in this SLD document. F-Secure will inform the Company on all unexpected changes to service levels. In case F-Secure notices anything critical, it will inform the Company about possible effects to the Service. F-Secure reports on all other recognized issues through regular reporting.
2.4 Guaranteed Service Availability
This consists of providing the availability of the Service according to the rules defined in this SLD document. If F-Secure is unable to maintain the Service Availability at guaranteed level, F-Secure shall compensate the Service Unavailability to the Company according to the Service Unavailability Compensation table in Section 6.11.
2.5 Service Support
Service support for the Company with target response times, following any support request submitted via F-Secure approved official communication channel, is handled within the limits of
 38 

 

Support Availability and Support Response Time definitions defined in Sections 6.6 — 6.8 of this SLD document.
2.6 Service After Hours Support
All requests for support for non-business hours shall be deemed to be After-Hours Support. F-Secure will provide After-Hours Support included in the Service to the Company, for the severity A- and B- Level incidents as defined in Sections 6.6 — 6.8 of this SLD document.
2.7 Service Training
Training shall be provided in connection of each change of prime Service version number. Training will be conducted in a maximum of two (2) training sessions / Service prime version number. Key operators and selected personnel shall be trained. Retraining (classified as additional training) shall be provided as needed. Training shall include End User Software functionality and usage, special features, and support request generation. F-Secure training department requires a minimum of 3 weeks notice from the Company prior to any training dates. All reasonable requests for training will be provided at no additional cost to Embarq.
2.8 Service Documentation
Generic documentation of the Service will be provided for the Company. This Documentation includes Frequently Asked Questions (FAQ), user instructions, customer service guide and other instructions related to End User Software.
2.9 Service Change Management Reporting
New or changed processes, practices, or policies that affect the Company and that have an impact on the Service shall be presented to the Company to understand, learn, and follow.
2.10 Optional Services
Except as otherwise provide in this Contract Order, additional services not set out herein shall be subject to a separate fee and Parties’ separate mutual agreement.
3. Changes to SLD
This SLD will evolve over time, with additional knowledge of the Service requirements, as well as the introduction of new services into the support portfolio provided by F-Secure Corporation.
At Company’s option there will be an opportunity on a quarterly Quality Meeting basis to review and suggest changes to this SLD subject to mutual agreement and understanding.
In the event F-Secure Corporation changes the SLD, F-Secure Corporation will notify Embarq sixty days prior to implementation of such changes.
 39 

 

4. Processes and Procedures Related to This SLD
Call Management Process
F-Secure’s problem-ticket system will be used by all support team levels (where approval and technical access has been granted and is available) to record and track all problem reports, inquiries, or other types of requests received by support. This provides F-Secure with the ability to provide metrics with regard to this SLD.
5. Metrics
Metrics Reporting
Regular reporting will be provided by F-Secure to the Company on available metrics as related to Service performance. These reports are produced by F-Secure’s Service monitoring and problem-ticket systems on Service Availability and Service Support Response times, which will in detail measure F-Secure’s management performance against SLD targets and Service management process.
F-Secure shall present reporting monthly on standard Quality Meetings between F-Secure and the Company, unless otherwise mutually agreed. Tools for monitoring the status of the Service and viewing the reports are made available to the Company via F-Secure Service Provider PartnerWEB.
F-Secure/Synacor will also provide monthly reporting on application downloads, activations and utilization.
6. Support and Service Availability
6.1 Service Request
For the purposes of this SLD, a Service Request is defined as a request for support to existing End User Software or a request for support that involves information of the Service.
6.2 Problem Escalation
For the purposes of this SLD, a Problem Escalation is defined as a request to fix a problem in existing End User Software or report a problem in the functionality of the Service.
6.3 First Level Support
The Company shall be responsible for providing Level-1 support for the Service to End Users. This consists of i) handling and responding to questions regarding technical support, ii) order processing, iii) use of the End User Software and iv) accepting and responding to problem calls from End Users relating to the Service.
End Users are not allowed to contact F-Secure’s support resources directly to report a problem.
 40 

 

6.4 Levels of Support
F-Secure will provide Level-2 and Level-3 support for the Service to the Company: This consists of accepting and responding to Service Requests and Problem Escalations from authorized representatives of the Company with regard to problems reported by End Users or Company personnel that cannot be resolved by the Company and resolving reported problems as set forth in this SLD. All problem escalation and requests must be logged through the designated F-Secure help desks and in accordance to mutually agreed processes.
This is support provided by the appropriate F-Secure help desk Level-2 support when it receives the request from the Company. This represents generalist professional support. If this level of support cannot resolve the request, it is passed to F-Secure’s Level-3 support, which represents advanced support specialists.
6.5 Support Responsibilities
F-Secure will provide the necessary and mutually agreed requested documentation, information, and knowledge capital to the Company prior to the start of support of End User Software.
F-Secure will use its own appropriate help desk to provide Level-2 support, including creating problem tickets and work orders and assigning responsibility to the appropriate Level-3 F-Secure resources.
F-Secure will use its own appropriate internal group to provide Level-3 server, network, and infrastructure support services.
Once a support request has been submitted, F-Secure will make itself available to work with the Company support resource assigned to the support request and will attempt to resolve the problem on first instance of the support request.
The Company will log all information from F-Secure required to establish contact, document the nature of the problem and provide all information required to open a support request, including End User Software diagnostics.
6.6 Support Availability
F-Secure will receive and process support requests submitted via separately designated official communication channels on the time zone of F-Secure’s office (as set out on Section 1 of F-Secure’s Delivery Agreement with Synacor) as set forth in the table below:
 	 	 	
Help Desks	 	Hours	
Standard Coverage	 	8:00 a.m. to 6:00 p.m. PT during normal business days	
After-Hours Coverage	 	All other times	
6.7 Support Response Time
The calculation of response time begins when the support request is logged in F-Secure problem-ticketing system and ends when the technical support personnel submit the first human response to the Company.
F-Secure will respond to submitted support requests as set forth in the table below:
 41 

 

 	 	 	 	 	
Severity	 	Target Response Time	 	Roles and Responsibilities	
A- Level	 	Target time for the first response is within one (1) hour	 	•    Incident must be reported via telephone by the Company representative who is authorized to make Problem Escalations	
 	 		 	 	
 	 	 	 	•    F-Secure is working on the incident full time 24h/7d	
 	 	 	 	 	
 	 	 	 	•    The Company’s required personnel is present and reachable 24h/7d	
 	 	 	 	 	
 	 	 	 	•    In the first response the reporting intervals of problem solving, with the schedules for incident handling, will be agreed upon together with the Company.	
 	 	 	 	 	
B- Level	 	Target time for the first response is within twelve (12) hours	 	•    Incident must be reported via telephone by the Company representative who is authorized to make Problem Escalations	
 	 		 	 	
 	 	 	 	•    F-Secure is working fulltime on the incident during local business hours	
 	 	 	 	 	
 	 	 	 	•    The Company’s required personnel is reachable during local business hours (8:00 a.m.-6:00 p.m.)	
 	 	 	 	 	
 	 	 	 	•    In the first response the reporting intervals of problem solving, with the schedules for incident handling, will be agreed upon together with the Company.	
 	 	 	 	 	
M- Level	 	Target time for the first response is within two (2) consecutive business days	 	•    Incident must be reported using F-Secure approved official communication channel as agreed with the Company.	
 42 

 

6.8 Support Request Severity Definitions
F-Secure and the Company can jointly use their reasonable discretion to classify together a reported problem into a different severity category during or after Service Request or Problem Escalation, if needed.
A- Level :
Critical problem of immediate urgency that has direct and significant impact on minimum of [*] % of the Company’s End Users using the Service.

 	•	 	Event that significantly disrupts or threatens to disrupt the Service.	
 		
 	•	 	Event that significantly affects the availability of the Service.	
 		
 	•	 	Consistent or repeating degradation of performance that impairs the Service.	
 		
 	•	 	No workaround or resolution for the problem is available at the time.	
B- Level:
Urgent problem that has an impact on several of the Company’s End Users using the Service.

 	•	 	Event that disables certain functions of the Service.	
 		
 	•	 	Event that affects significant amount of End Users using the Service.	
 		
 	•	 	No workaround or resolution for the problem is available at the time.	
Monitor- Level (M- Level):
General problems that are incidents or events and do not have a significant impact on the Service or End Users using the Service.

•	 	End User Software or Service malfunction or error occurring on End User environment.	
 		
•	 	Enhancement request for End User Software or Service.	
 		
•	 	Requests for general information of the Service.	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 43 

 

6.9 Service Availability
F-Secure guaranteed availability of the Service hosting environment is [*] % in one (1) Service Period as determined by the following formula:
Uptime = (Total Time 1 -Down Time 2 )/Total Time x 100%

 	•	 	The Service Period is one (1) calendar month.	
 		
 	•	 	Total Time is the total count of the minutes of the Service Period.	
 		
 	•	 	Down Time is the total count of minutes of the period when the Service is unavailable.	
 		
 	•	 	Following Service break events are not to be calculated as Down Time or Service Unavailability: Standard Service Window used or partly used, Inevitable Service Breaks, everyday scheduled system backups, maintenance breaks that are shorter than 5 minutes and occur maximum seven (7) times per week, breaks that are due to problems in the Internet and/or breaks due to force majeure events, cf. annex 6 Clause 20.	
 		
 	•	 	Standard Service Window is the first Tuesday of the month starting from 23.00 and ending 06.00 (CET +1). Standard Service Windows are used only when necessary and on each service window End Users are not necessarily affected nor full time period of the service window used. F-Secure will inform the Company five (5) business days before in F-Secure Service Provider PartnerWEB about the Standard Service Window.	
 		
 	•	 	Occasionally F-Secure has to perform service breaks in other than Standard Service Window periods. This is required to rectify a fault or deploy critical patches from 3 rd party hardware or software manufacturers in order to maintain current service levels of the Service. These breaks are called as Inevitable Service Breaks and they can also occur outside Standard Service Windows and last all together maximum of two (2) hours during the Service Period.	

1	 	Total Time = Available total time in minutes. Service period of the total elapsed time, within a full calendar month, consisting of 24 hours per day, 60 minutes per hour.	
 		
2	 	Down Time = Down time in minutes. Down Time shall commence upon the Service unavailability automatically detected by F-Secure Service monitoring systems or by a Problem Escalation of the Company to F-Secure’s support of a fault condition which prevents full or partly utilization of the Service and shall end when the Service is again available to the Company’s and the fault ticket has been logged as complete and reported to the Company by the servicing technician.	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 44 

 

6.10 Service Unavailability
If the Availability of the Service does not meet the targets set in this SLD during the Service Period, F-Secure will compensate the unavailability to the Company, in form of a rebate on the monthly Service price in the following periodical Service invoice as set below:

 	•	 	The measurement period for the compensation is one (1) calendar month. Measurements apply from the first full month following the implementation date.	
 		
 	•	 	Service compensation requests must be issued as Service quality reclamation notice in writing within two (2) months following the affected measurement period.	
 		
 	•	 	F-Secure measurements, tests, logs and reports shall be the basis for calculating the actual Service availability as further defined in this SLD. Company shall however have the right to make its own measurements of the Service availability. The test arrangements will be gone through in standard Quality Meetings, if necessary. If any differences are found, a workgroup will be set up and the reasons for the differences will be verified.	
 		
 	•	 	If the Company requests additional tests, and the tests show that the Service availability meets the targets, F-Secure has the right to charge the costs of the tests from the Company.	
 		
 	•	 	F-Secure will not give any guarantees concerning the availability of the Service for the End User due to the uncertainties of the intermediate network and/or the nonconformities of the End User environment.	
 		
 	•	 	F-Secure will not compensate any Service degradation if it has not been able to meet the targets set on this SLD due to activities of the Company or not being directly responsible of the degradation.	
6.11 Service Unavailability compensation
The following compensations are used in case of the Unavailability of the Service hosting environment or part of the Service:
[*]
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 45 

 

Exhibit 6
Annex to F-Secure Service Delivery Agreement; Special Terms for F-Secure Online Scanner.

1.	 	PARTIES AND EFFECTIVE DATE	
 		
 	 	This annex of the Agreement constitutes a valid part of the Agreement between the Parties specified in the first page of the Delivery Agreement. The terms and conditions set out herein shall apply only to the product application designated in section 2 hereunder.	
 		
2.	 	OBJECT OF THE ANNEX	
 		
 	 	The following product application shall be the object of this annex (hereinafter referred as “Tool”)	

 	•	 	F-Secure Online Scanner	

3.	 	GRANT OF RIGHTS	
 		
 	 	Subject to the terms of the Agreement and this annex, F-Secure hereby grants to the Company under all applicable intellectual property rights a non-exclusive, non-transferable, time-limited, royalty-free license to Tool to;	

 	i)	 	customize/modify the Tool strictly in accordance with, and only to the extent set out in, official ‘F-Secure Online Scanner Customization Guide’ provided to the Company	
 		
 	ii)	 	copy and make available the Tool to end users via Internet (either from Company’s server or via web link from F-Secure server), and	
 		
 	iii)	 	grant sublicenses to end users in its own name and account. Any use of the Tool by an end user shall be made subject to prior acceptance of the manufacturer’s end user license terms embedded to the Tool.	

 	F-Secure reserves all rights not expressly granted to the Company or the end user of the Tool.	

4.	 	LIMITATION OF LICENSE	
 		
 	 	Except for separately agreed CD-Rom distribution, if any, the Tool may only be made accessible to end user via such functionality in Company Internet page and Company shall not deliver the Tool code in a form directly accessible to end users. Company is allowed to use the Tool only for promotional and marketing purposes and is specifically forbidden to do the following (and as further defined in F-Secure Online Scanner Customization Guide):	

 	•	 	offer the Tool as an additional or billable service,	
 		
 	•	 	require registration of an end user prior to use of Tool,	
 		
 	•	 	bundle Tool with other software or services,	
 		
 	•	 	not to distribute the installation package of Tool.	

5.	 	SUPPORT AND MAINTENANCE	
 		
 	 	Company shall be responsible for providing end user support to end users using the Tool and obtaining necessary skills and resources thereto (‘first level support’). F-Secure shall provide second level support to the Company according to its general practices similar to then current “F-Secure Standard Support” in relation to any technical problems relating to the Tool. F-Secure may, but is under no obligation to, update, correct defects and/or further develop the Tool according to its sole discretion. F-Secure shall make available to the Company any Updates and Upgrades to the Tool.	

6.	 	DISCLAIMER OF WARRANTY	
 46 

 

 	 	In addition to the terms disclaiming warranty, set out in set out in F-Secure Security As A Service general terms, section 14; F-Secure does not warrant that the Tool or any portion thereof is error-free. The Tool is not designed to offer continuous protection. This disclaimer of warranty constitutes an essential part of the license granted hereunder.	
 		
7.	 	TERMINATION	
 		
 	 	This annex is co-terminus with the Agreement. In addition to the termination provisions of the Agreement, either Party may elect to terminate this annex upon thirty (30) days written notice to the other Party. Upon termination of this annex, any license granted in accordance to this annex shall immediately terminate and the Company agrees to destroy all copies of the Tool and cease using any off the rights granted to it under this annex.	
 		
8.	 	LIMITATION OF LIABILITY	
 		
 	 	In addition to the terms on liability set out in set out in F-Secure Security As A Service general terms, section 15; under no circumstances and under no legal theory, contract, or otherwise, shall F-Secure or its supplier or resellers be liable to the Company or any other person for any direct, indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses even if F-Secure and/or its suppliers have been informed of the possibility of such damages, or for any claim by any other party.	
 		
9.	 	OTHER TERMS	
 		
 	 	Except to the extend otherwise stipulated in this annex, the terms and conditions set out under clauses 1, 4-7, 9, 12.1, 14-25 set out in F-Secure Security As A Service general terms annexed to the Agreement also govern this annex and license granted herein as if’ ‘the references to Service’/’End User Software’ would pertain to ‘Tool’, as applicable. Terms or clauses of the Agreement other than the above do not pertain to this annex.	
F-Secure Security as a Service Delivery Agreement 05/2005© F-Secure 2005
 47 

 

Exhibit 7
F-SECURE® LICENSE TERMS
IMPORTANT — BEFORE INSTALLING OR USING THE SOFTWARE, CAREFULLY READ THE FOLLOWING LEGAL TERMS (“TERMS”) FOR THE LICENSE OF F-SECURE SOFTWARE. BY SELECTING THE ACCEPTING OPTION BELOW, OR BY INSTALLING, COPYING OR USING THE ACCOMPANYING SOFTWARE YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO ALL OF THE TERMS, SELECT THE REJECTING OPTION AND DO NOT INSTALL, USE OR COPY THE SOFTWARE.
These Terms cover any and all F-Secure programs licensed by you, including related documentation and any update and upgrade of the programs delivered to you under the purchased license or any related service agreement as defined in the documentation and any copy of these items (together the “Software”).
COMMERCIAL LICENSE
Subject to the payment of the applicable license fees and subject to the following terms and conditions, you have been granted a non-exclusive, non-transferable right to use the specified Software. F-Secure reserves any and all rights not expressly granted to you.
You may:
A) Install and use the Software only on as many units (typically handheld devices, personal computers, servers or other hardware) as stated in the F-Secure License Certificate, applicable invoice, product packaging or agreement where these Terms have been appended. In case the Software or its services are shared through a network or the Software is used to protect traffic from viruses or other malicious code at web and e-mail servers, firewalls or gateways, you must have a license for either scanning capacity or for the total number of users whom the Software provides services to. In such cases you may install the Software on as many units as needed.
B) Create copies of the Software for installation and backup purposes only.
C) Extend the number of licenses by purchasing additional licenses.
You may not:
A) Install and use the Software against these Terms, the F-Secure License Certificate or other related documentation.
B) Distribute copies of the Software to a third party, electronically transfer the Software to a computer belonging to a third party, or permit a third party to copy the Software.
C) Modify, adapt, translate, rent, lease, resell, distribute or create derivative works based upon the Software and/or related files (including but not limited to virus definition databases, security news and descriptions) or any part thereof.
 48 

 

D) Decompile, reverse engineer, disassemble, or otherwise reduce the Software and/or related files (including but not limited to virus definition databases, security news and descriptions) to any human- perceivable form as the Software contains or may contain trade secrets of F-Secure.
E) Use the documentation for any purpose other than to support your use of the Software. Please contact F-Secure directly if you are interested in any other rights to the Software other than those granted in these Terms.
F) Disclose the license authorization code provided for the program installation (included but not limited to key code, subscription number and registration key) to any third party.
G) Use the Software or any portion thereof to implement any product or service to operate on or in connection with the Software for any other purpose than granted herein.
H) Use the Software to publish, distribute and/or obtain software or content (i) not specifically related to F-Secure products and/or services and (ii) not security-related (or any updates to any such software or content).
EVALUATION LICENSE
An Evaluation License is applicable when you download or install an evaluation version of the Software or you are granted a time limited, non-exclusive and non-transferable license by F-Secure or its resellers for evaluation purposes. The Software is licensed to you for the sole purpose of evaluating the Software and only for a specified evaluation period, which will begin on the date that the Software is first downloaded by or delivered to you. After the specified time period, you must either purchase the Software license from F-Secure or its reseller, or destroy and stop using the Software. If you purchase the Software before the expiration of the evaluation time and register the Software, you have a valid license and you do not need to destroy the Software. F-Secure shall have no obligation to provide support or maintenance services for Evaluation Licenses. For the avoidance of doubt, the Evaluation License is also subject to restrictions set out above as items A-H. F-Secure reserves any and all rights not expressly granted to you.
NON-COMMERCIAL LICENSE
A Non-Commercial License is applicable when you download or install a free version of a detection and/or removal tool made available to you by F-Secure or its reseller. Such Software is licensed to you only for a limited period as a non-exclusive, non-transferable license and is intended only as a supplementary tool (not for ongoing content security purposes). F-Secure reserves the right to discontinue the ability to use this type of Software at any time and is under no obligation to provide support or maintenance services for Non-Commercial Licenses. For the avoidance of doubt, the Non-Commercial License is also subject to restrictions set out above as items A-H. F-Secure reserves any and all rights not expressly granted to you.
TITLE
 49 

 

Title, ownership rights, and intellectual property rights in the Software shall remain those of F-Secure, and/or its suppliers. The Software is protected by copyright laws and international copyright and other intellectual property treaties.
LIMITED WARRANTY AND DISCLAIMERS
Limited Warranty on Media. F-Secure warrants the physical media produced by F-Secure on which the Software is recorded to be free from defect in material and workmanship under normal use for 30 days from the date of delivery. F-Secure does not give any warranties on media in case the Software is delivered bundled in a third party device. Any implied warranties on the media, including implied warranties of merchantability and fitness for a particular purpose, are limited in duration to 30 days from the date of delivery. F-Secure will, at its option, replace the media or refund the purchase price of the media. F-Secure shall have no responsibility to replace or refund the purchase price of media, which is damaged by accident, abuse, or misapplication.
 50 

 

Disclaimer of Warranty on Software. THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. F-SECURE, ITS LICENSEES AND DISTRIBUTORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
F-Secure, its licensees and distributors do not guarantee the Software or related documentation in terms of their correctness, accuracy, reliability, or otherwise. You assume the entire risk as to the results and performance of the Software and related documentation.
Complete Statement of Warranty. The limited warranties provided in the preceding paragraphs are the only warranties of any kind that are made by F-Secure on the Software. No oral or written information or advice given by F-Secure, its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of the foregoing limited warranty, and you may not rely on any such information or advice. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you, and you may have other rights, which may vary from state to state.
Limitation of Liability. IN NO EVENT SHALL F-SECURE, ITS LICENSEES, ITS DISTRIBUTORS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF F-SECURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation or exclusion may not apply to you. F-SECURE, ITS LICENSEES, DISTRIBUTORS AND SUPPLIERS SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE. OUR MAXIMUM LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. Nothing contained in these License Terms shall prejudice the statutory rights of any party dealing as a consumer. F-Secure is acting on behalf of its employees, licensees, distributors and licensors or subsidiaries for the purpose of disclaiming, excluding, and/or restricting obligations, warranties, and liability as provided in this clause, but in no other respects and for no other purpose.
EXPORT RESTRICTIONS (EXCLUSIVELY FOR CRYPTOGRAPHIC SOFTWARE)
1. If the Software is shipped or otherwise distributed to you from the United States of America: You acknowledge that the Software and the maintenance and support services including without limitation technical services and technical data (e.g., manuals, blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications and instructions written or recorded) and any other such technical services and
 51 

 

technical data (“the Services”) are of U.S. origin for purposes of U.S. export control laws, regulations, administrative acts or Executive Orders, and any amendments thereof, including without limitation the Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated thereunder (the “U.S. Export Control Laws”). You agree to comply with all applicable U.S. Export Control Laws and any applicable international laws and regulations that apply to the Software and to the Services, including without limitation the Act as well as end-user, end-use and destination restrictions issued by the U.S. and other governments.
2. If the Software is shipped or otherwise distributed to you from a country other than the United States of America: You agree to comply with the local regulations regarding exporting and/or using cryptographic software.
In all cases, F-Secure will not be liable for the illegal export and/or use of its cryptographic software by you.
U.S. GOVERNMENT RIGHTS
If the Software is licensed for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”) pursuant to solicitations issued on or after December 1, 1995, the Software is provided with the commercial rights and restrictions described elsewhere herein. If the Software is licensed for or on behalf of the U.S. Government pursuant to solicitations issued prior to December 1, 1995, the Software is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
HIGH RISK ACTIVITIES
The Software is not fault-tolerant unless expressly stated in product documentation and is not designed, manufactured or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). F-Secure and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
GRANT TO USE
You agree and acknowledge that the Software may send information related to the use of the Software by you and the findings of such use to F-Secure via Internet in obfuscated/encrypted form. You grant F-Secure the right to use and display statistical security information, other security related content or material in a non-personally identifiable form and license/device information submitted by the Software, or by you through the Software, to F-Secure for customer registry, security research and solution development purposes.
GENERAL
 52 

 

The license will terminate immediately without notice if you are in breach of any of its terms and conditions. You shall not be entitled to a refund from F-Secure or any of its resellers as a result of termination. The terms and conditions concerning confidentiality and restrictions on use shall continue in force even after any termination.
F-Secure may revise these Terms at any time and the revised terms shall automatically apply to the corresponding versions of the Software distributed with the revised terms. If any part of these Terms is found void and unenforceable, it will not affect the validity of rest of the Terms, which shall remain valid and enforceable according to its terms. In case of controversy or inconsistency between translations of these Terms to other languages, the English version issued by F-Secure shall prevail.
These Terms shall be governed under the Laws of Finland without regard to conflict of laws rules and principles and without regard to the United Nations Convention of Contracts for the International Sales of Goods. The courts of Finland shall have the exclusive jurisdiction and venue to adjudicate any dispute arising out of these Terms. Notwithstanding the foregoing, in the case of purchases made within or on behalf of licensees residing within or operating under the laws of the United States the governing law of these Terms shall be the laws of the State of California without regard to conflict of laws rules and principles and without regard to the United Nations Convention of Contracts for the International Sales of Goods. The exclusive jurisdiction and venue to adjudicate any dispute arising out of these License Terms shall be of the federal and state courts of California.
If you have any questions concerning these Terms, or you would like to contact F-Secure for any other reason, please write: F-Secure Corporation, PL24, FI-00181 Helsinki, Finland, fax: +358 9 2520 5001, e-mail: helsinki@f-secure.com or call: +358 9 2520 0700
August 2006, F-Secure Corporation
 53 

 

Exhibit 8
SERVICE LEVEL AGREEMENT
I. General
Synacor shall provide the agreed to service levels seven (7) days a week, twenty-four (24) hours a day, consisting of monitoring, notification, repair of service outages and maintenance, as set forth in this SLA.
It is expected that the evaluation of Synacor’s performance against this SLA will be evaluated on a monthly basis beginning ninety (90) days from the date of activation of this SLA.
This agreement excludes events resulting from failures of Content Providers’ hosting and/or delivery systems, acts of God, war, acts by civil or military authorities, energy shortages, or other causes beyond Synacor’s control, whether or not similar to the foregoing.
Embarq should direct all requests for support to Synacor’s Technical Support Group. To reach Synacor’s Technical Support by phone dial 1-866-5358286 or by e-mail at tss@synacor.com
II. Monitoring
In an effort to detect potential problems before they impact the availability and performance of the system or services, Synacor monitors the status of the systems using both automated and manual tools employed in its 24 by 7 network operations center (NOC). noc@synacor.com 1-800-716-8347
This monitoring includes but is not limited to:
System availability, Service availability, System load and performance, Network availability and performance, System Usage
III. System Availability
A. “System Availability” means that the Synacor Services and any software application running on the servers that support Embarq are fully functional with [*] average uptime, as measured continuously on a calendar month basis. For these purposes, fully functional means that the environment and links are continuously operable, available and responsive to Embarq User without delay or malfunction. System Availability excludes: (i) downtime attributable to Scheduled Maintenance (as defined herein); (ii) the inability of Users to access Content as a result of such Users’ Internet/network connection; (iii) impediments affecting the path (route) traveled in accessing Synacor’s systems except for those facilities owned, operated or maintained by Synacor or by a third party on behalf of Synacor; and (iv) the inability of Synacor Providers and Embarq Sourced Content Providers to update or deliver Content, provided that the inability is not due, in whole or in part, to Synacor.
B. Embarq shall have the right to separately measure System Availability in order to ascertain and report System Availability deficiencies provided that such measuring does not adversely affect System availability. In the event of discrepancies between Synacor’s testing results and those of Embarq, the Parties shall establish a workgroup of individuals from both Parties to ascertain the source of and reason for the discrepancy, to identify the correct measurements, resolve in good faith any issues pertaining to the testing methods, and if applicable, to determine whether a remedy is due to Embarq.
C. System Availability Credits — The System Availability credits set forth below will be applied to Embarq’s account for each instance of Synacor’s failure to meet the required System Availability of [*] during any calendar month during the Term of this Agreement. To the extent possible, the credits will be applied during the calendar month in which such failure occurs and shall be detailed as a separate line item on the invoice:

 	a.	 	[*]	
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 54 

 
\

 	 	 	[*]	

 	b.	 	[*]	
 		
 	c.	 	[*]	
IV. Data Integrity and Retention
A. Data Integrity — Synacor employs sophisticated RAID techniques to ensure the integrity of the data on its servers; the data is written to two disks simultaneously to prevent data loss in the event of hardware failure. Synacor performs routine server backups for disaster recovery purposes only. Server backup scope and scheduling is at Synacor’s sole discretion. Synacor shall not perform backup or restore of the data upon your request unless such backup is provided as a service under your purchase agreement. In addition, Synacor will maintain the highest level of data security and confidentiality as is commercially reasonable in this industry.
B. Data Retention — [*]
V. Security
Synacor’s Security Department maintains the security, stability and integrity of Synacor’s systems and networks as well as to ensure proper conduct by the Users.
System Intrusion — In the event of a system intrusion by a “cracker” or “hacker”, the affected party(ies) will be notified and a solution will be implemented. Notification will occur upon identification of intrusion and the investigation of such identifications by Synacor’
Network Security — Synacor maintains network firewalls and intrusion detection devices to prevent unauthorized access to the network infrastructure and systems. Network attacks such as Denial-of-Service attacks are logged and notification will occur when such attacks are verified.
VI. Scheduled Maintenance Windows
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 55 

 

Synacor has reserved a two (2) hour window from 3:00am — 5:00am EST every Monday morning for weekly maintenance, should the need for such maintenance arise. In the event that this window will be needed in a given week, Synacor will notify the Embarq no less than two business days prior to the window. If it is determined during the window that the scheduled maintenance will run over the two (2) hour window, the Embarq will be notified immediately and receive regular updates until the period is complete. During these scheduled maintenance periods, the system and services may be unavailable to Embarq and Embarq’s Users. Scheduled Maintenance Windows are not counted against System Availability percentages.
VII. Emergency Maintenance Notification
In the event that emergency maintenance is required, during which time the system and services will be unavailable to Embarq and Embarq’s Users. Synacor will notify Embarq during this window via email to a designated distribution list of Embarq employees. Emergency maintenance windows are counted against System Availability percentages.
VIII. Incident Management
Synacor’s Embarq Support Group will be responsible for the control and management of incident calls and their assignment of priority and escalation to resources within Synacor in their sole and absolute discretion.
When analyzing a case, it is important that the client understand that the Embarq Support Group will expect the partner or the Users to aid in the analysis by providing any information and performing any actions or tasks requested by the analyst. The client who is not willing to assist the analyst must understand that the case may take longer to solve and will not be included in the measurement of this service level agreement.
The following priority allocations will apply:

Priority 1 —.
These cases are defined as a Synacor system condition where [*]% or more of the User population is affected in their ability to access services as a result of outage across a service location, and/or the Synacor system that supports new data subscriber activations is unresponsive.
Time Frame — Response to the client and efforts to resolve the problem will occur within fifteen (15) to thirty (30) minutes of identification or receipt of notification
Follow-up — Provide updates to the client at appropriate intervals until problem is resolved.

Priority 2 — These cases are defined as a Synacor system condition where less than [*]% of the User population is affected in their ability to access services.
Time Frame — Response to the client and efforts to resolve the problem will occur within four (4) hours of identification or receipt of notification
Follow-up — Provide updates to the client every four (4) hours until problem is resolved.

Priority 3 — These cases are problems other than those meeting the specifications of Priority 1 or Priority 2.
Time Frame — Response to the client within twenty-four (24) hours of identification or receipt of notification
Follow-up — Provide updates to the client at appropriate intervals until problem is resolved.
Upon the identification of a system event, Synacor will make every commercially reasonable effort to correct the system or service event if the most expeditious manner possible.
IX. Customer Care Escalations

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 56 

 

Escalation and Tracking Process. Synacor will provide and track trouble-call escalations from Embarq’s Technical Support Group. Synacor Customer Service will utilize two (2) escalation methods from Embarq:
(a) E-mail: Embarq will e-mail Synacor its request for support: tss@synacor.com A Synacor customer agent will respond to the question with the answer or will issue a Tracking number to each matter that is escalated (as set forth above). The Synacor customer agent will then notify the Embarq escalation group with the appropriate timeline for any escalation to be resolved.
(b) Phone: Embarq can reach Synacor’s Embarq Care group 24 hours per day, 7 days per week by calling 1-866-535-8286. In the event that a support issue requires Priority 1 treatment, or is otherwise better addressed by a telephone call rather than e-mail, Embarq may bypass Escalation Level 1 (as defined below) support and apply Escalation Level 3 support and initiate a call directly to a Synacor support specialist. Such calls will be placed solely from the Embarq escalation group person(s) who is/are responsible for initiating Level 3 support requests. Following each such call, a Embarq escalation Level 3 support person will send an e-mail confirming all the technical details regarding the issue. Synacor will then follow the same process of tracking such issues via the e-mail Tracking system. Synacor will provide prior written notice to Embarq of any change in the telephone contact number.
The escalation process begins with the troubleshooting, diagnosis, and resolution processes. As Embarq’s service team receives alerts they will be prioritized by Synacor based on the gravity and urgency of the underlying problem and assigned to a Synacor support technician in accordance with the Synacor Escalation Response Times and the Issue Severity tables set forth below.
Each time Synacor escalates an issue to the next level, Synacor shall send an email confirming escalation. The email shall go to Embarq’s designated contact for the applicable Level.
Escalation Levels
Level 1 — Email
     Technical Support Agent: Synacor Technical Support Agents available 24 hours per day, 7 days per week.
Level 2 — Voice
     Support Specialist: If Level 1 issue is not resolved within 4 hours from the time the issue is reported to Level 1, then Synacor will automatically escalate to Level 2.
Level 3
     Support Management: If Level 2 issue is not resolved within 2 hours from the time the issue is escalated to Level 2, then Synacor will automatically escalate to Level 3.
Level 4
     Account Manager: If Level 3 issue not resolved within 1 hour from the time the issue is escalated to Level 3, then Synacor will automatically escalate to Level 4.
Level 5
     Product Management: If Level 4 issue not resolved within thirty minutes from the time the issue is escalated to Level 4, then Synacor will automatically escalate to Level 5.
Level 6
     Vice President: If Level 5 issue not resolved within thirty minutes from the time the issue is escalated to Level 5, then Synacor will automatically escalate to Level 6.
 57 

 

Synacor will maintain a table with contact information for the Level 1 — Level 6 contacts and will be responsible for keeping it current. The contacts and response times will be distributed to Embarq and/or provided in Embarq’s administration information section located at admin.Synacor.com.
X Reporting
Synacor will provide to Embarq, through a web-based interface, any and all User reporting that Synacor tracks following a schedule mutually agreed upon by the Parties. Furthermore, Synacor will use its best efforts to provide, through the same web-based interface, access to the following reporting tools, to the extent any of the following data points are not normally tracked by Synacor. All data points below will be differentiated between Business and Consumer Users:
SUBSCRIBER DATA

 	1.	 	Number of Registered Users	
 		
 	2.	 	Number of Active Users by Usage Level (Daily, Monthly, Quarterly)	
 		
 	3.	 	User Cancellations	
MONTHLY USAGE DATA

 	1.	 	Unique Users accessing Premium Services	
 		
 	2.	 	Unique Users accessing Portal	
 		
 	3.	 	Hits/redirects to each Content Provider	
EMAIL USAGE DATA

 	1.	 	Number of Users (Primary and Secondary)	
 		
 	2.	 	Storage Capacity Used	
 		
 	3.	 	POP vs. Webmail	
 		
 	4.	 	Anti-spam Statistics	
 		
 	5.	 	Total Unread & Deleted Messages	
WEB SEARCH DATA

 	1.	 	Total searches	
 		
 	2.	 	Top 100 URLs searched (report will be provided upon request)	
ONLINE SECURITY DATA

 	1.	 	Activations	
 		
 	2.	 	Downloads	
 		
 	3.	 	Utilization	
Such reporting tools can be enhanced as mutually agreed at Synacor’s standard professional services rate.
 58 

 

Exhibit 9
SEARCH REVENUE SHARING ADDENDUM
TO
SYNACOR MASTER SERVICES AGREEMENT
1. Definition of Search Services and Selection of Search Services Provider. Synacor shall provide services that enable consumers to receive descriptions and links associated with search results from search boxes (“Search Services”) placed within the Embarq Portal(s) and other Embarq websites (the “Sites”) through its agreement with a Search Services provider (“Search Services Provider”). [*].
      a. Operation of Search Services. Each time a User enters a search request in a search box (a “Search Query”) Synacor shall return to such User a set of up to ten (10) search results (each such set being referred to as a “Search Results Set”) and additional paid links (“Sponsored Links” or “AFS Ads”) as agreed to by the Parties.
      b. Hosting and Control. At all times during the C.O. Term Synacor shall (a) host and maintain any and all pages that comprise the Sites; (b) maintain complete technical and editorial control of the Sites; and (c) act as the intermediary for all transmissions between Search Services Provider and the Sites.
      c. Context Sensitive Advertising. The Parties may agree to provide context sensitive advertising (“Adsense for Content Ads” or “AFC Ads”) within the Embarq Portal(s) or other Embarq controlled websites.
2. Disclaimers. Embarq understands and agrees that Search Services Provider shall not be liable for any damages, whether direct, indirect, incidental or consequential, arising from the Site’s access to or use of the Search Services;
3. No Warranties. Embarq understands and agrees that Search Services Provider makes no warranties, express or implied, with respect to the Search Services, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement;
4. Embarq Not Third Party Beneficiary. Embarq expressly acknowledges and agrees that Embarq is not a third party beneficiary under any agreement between Synacor and Search Services Provider.
5. Fees and Payment Terms.
      a. AdSense for Search. Subject to the terms and conditions of this Addendum, for each month during the Services Term Embarq shall receive the Applicable Percentage (as defined below) of Net AFS Revenues attributable to such month.
      b. AdSense for Content. Subject to the terms and conditions of this Addendum, for each month during the Services Term Embarq shall receive the Applicable Percentage of Net AFC Revenues attributable to such month.
      c. Ad Revenues; Applicable Percentage; Applicable Deduction.
     i. “Net AFS Revenues” means (i) Ad Revenues derived from clicks on AFS Ads (excluding Non-Qualifying Ads as defined below) minus (ii) the Applicable AFS Deduction.
     ii. “Net AFC Revenues” means (i) Ad Revenues derived from clicks on AFC Ads (excluding Non-Qualifying Ads as defined below) minus (ii) the Applicable AFC Deduction.
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 59 

 

     iii. “Ad Revenues” means gross ad revenues minus agency fees, referral fees, costs related to third party advertising service providers, and discounts.
     iv. “Applicable Percentage” with respect to any calendar month during the Services Term shall be [*].
Example:
[*]
     v. “Applicable AFS Deduction” in any calendar month during the Initial Term means [*].
     vi. “Applicable AFC Deduction” in any calendar month during the Initial Term means [*].
     vii. Notwithstanding any of the foregoing under this Section, Synacor shall not be liable for payment in connection with (i) any amounts which result from invalid queries, or invalid impressions of (or clicks on) ads, generated by any person, bot, automated program or similar device, including, without limitation, through any fraudulent act, as reasonably determined by Synacor; and (ii) ads that advertise Search Services Provider products or services (collectively, “Non-Qualifying Ads”). The number of queries, and impressions of and clicks on ads, as reported by Search Services Provider, shall be the number used in calculating payments hereunder.
      e. Payment Terms. All payments due a Party shall be made by such other Party within forty-Five (45) days after the end of each applicable quarter in which the applicable AFC Ads, AFS Ads, or Search Results Sets were displayed. All payments shall be made in full in United States Dollars.

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 60 

 

Exhibit 10
Embarq Advertising and Content Guidelines
The following types of Content will not be offered without written consent of Embarq:
Mature and Adult Entertainment . This type of content can generate considerable controversy, even if legal, non-pornographic, and widely available in print format, including such things as frank relationship and sex advice, and suggestive or prurient images and stories.
Violent Games and Video . The effect of violence on children is much debated, and controversy can be created if minors are allowed to access violent content without parental approval.
Gambling and Sweepstakes . Gambling is illegal in many states, and closely regulated in all states. Similarly, sweepstakes are subject to complex rules and are frequently scrutinized closely by consumer protection and law enforcement officials.
Services Targeted to the Disadvantaged . When it first became widely available, 900 pay-per-call service was used to sell a variety of goods and services that allegedly were not provided or were misrepresented. (For example, for a $40 charge on his telephone bill, a caller received an application for a debit card instead of the promised credit card.)
Services Without Value to Customers . Examples include psychic advice and other personal services that many consumers and law enforcement agencies believe are harmful or misleading.
Illegal, Unethical, Brand-Diminishing Content . Embarq reserves the right to remove or disapprove any Content which it deems in its sole discretion as unethical or conflicting with “The Embarq Principles of Business Conduct” or which tends to attract governmental scrutiny, increased legal liability or damage to Embarq’s brand.
Competitive Services and Contractual Obligations. Embarq reserves to right to remove or disapprove any Content which it deems competitive to Embarq Services or which conflict with any existing contractual obligation Embarq may have. If Embarq invokes this content limitation, it will provide an explanation to Synacor detailing, subject to confidentiality agreements, the reason for removal or disapproval.
 61 

 

Exhibit 11
Illustration of Carriage Fees
 	 	 	 	 	
[*]	 	[*]	 	[*]	

*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 62 

 

Exhibit 12
Roles and Responsibilities
 	 	 	
Synacor	 	Embarq	
Integration and Testing	 	Integration and Testing	
 	 	 	
•   Mutually develop integrated systems and APIs to support new account registrations, account information updates, Premium Service Offerings, account/service cancellations, and Data Technician Support Tools.	 	•   Mutually develop integrated systems and APIs to support new account registrations, account information updates, Premium Service offerings, account/service cancellations, and Data Technician support tools.	
•   Development necessary to integrate EMBARQ E-Commerce website functionality into Portal for both residential and business customer applications.	 	•   Development necessary to integrate EMBARQ E-Commerce website functionality into Portal for both residential and business customer applications.	
•   Beta testing and system integration certification	 	•   Beta testing and system integration certification	
•   Provide Embarq with escalation contacts and protocols.	 	•   Provide Synacor with escalation contacts and protocols.	
 	 	 	
Synacor agrees to participate in the migration of User accounts, User data and mailbox data from Earthlink to Synacor. The details of the obligation have yet to be determined; however, the following efforts will be considered to be within the scope of this agreement if they are deemed necessary:	 	 	
•   Development of API’s to allow Earthlink or Embarq to access details within Synacor’s database, such as the migration status of any account	 	 	
•   Development of processes for communication with Embarq’s systems to provide functionality such as user deactivation and	 	 	
 63 

 

 	 	 	
Synacor	 	Embarq	
   communication of migration status	 	 	
•   Development of processes for communication with Earthlink’s systems to provide functionality such as email import, addressbook import, forward filter creation, account deactivation, account status messages, and related data transactions	 	 	
•   Creation of a set of pages that act as a mailbox migration wizard for customers to utilize for self-migration	 	 	
•   Ingestion of user/password data from batch files or another mechanism, for use in setting up accounts	 	 	
•   Import of mailbox data from physical devices such as removable drives or tapes	 	 	
•   Technical consulting with Embarq and Earthlink as needed to facilitate the definition and execution of the migration process	 	 	
 	 	 	
•    Account Provisioning, Software, and Billing	 	CPE, Installation, and Billing	
 	 	 	
•   New Account Creation (including username / password, email account, and Portal log-in capability) Email software
•   Security software
•   Provide Credit Card billing for mutually agreed upon Synacor Premium Services offered through the Portal.	 	•   Provide CPE
•   Provide provisioning software, incorporating Synacor and Embarq account installation functionality
•   Provide billing for CPE
•   Provide billing for HSI Service
•   Provide billing for mutually agreed upon Synacor Premium Services offered through the Portal	
 64 

 

 	 	 	
Synacor	 	Embarq	
ISP Services :	 	ISP Services	
 	 	 	
Synacor will provide services consistent with the services it provides its other broadband service subscribers, as they may change from time to time, which currently includes:	 	•   Connection/authentication to the Internet
•    DHCP / IP leasing	
 	 	 	
•   Email boxes, POP and Web based	 	 	
•   Anti-spam software	 	 	
•   Anti-popup software	 	 	
•   Anti-spyware software	 	 	
•   Anti-virus software	 	 	
•   Anti-“phishing” software	 	 	
•   Toolbar	 	 	
•   Parental Controls	 	 	
•   Personal firewall
	 	 	
•    Customer Support
 	 	Customer Support	
•   On-line functionality via the Portal for EMBARQ customer account ‘self-help’ such as: add/delete/change email accounts, password reset functionality, Portal tutorial, account profile updates, and other general self-help information as mutually agreed upon during Portal Design.
•   Training and documentation for EMBARQ Sales and Care Representatives.
•   Training and documentation for EMBARQ Tier 0, 1, and 2 Data Technicians providing support to EMBARQ customers related to the Portal, Email, Premium Products and Internet Security Software services.
•   On-Line Support Tools for EMBARQ Data Technicians to utilize in Tier 1 and Tier 2	 	•   Training and internal documentation for EMBARQ customer care representatives related to HSI sales, including Portal, Security, Email, and Premium/Value Added Services.
•   Training and internal documentation related to Tiers 0,1, and 2 Technical Support.
•   Customer inquiries related to EMBARQ billing.
•   Customer service upgrades/downgrades
•   Tier 0, 1, and 2 Support as defined in the following Customer Technical Support Matrix.	
 65 

 

 	 	 	
Synacor	 	Embarq	
     support services (see section 7.19 of this contract order).
•    Tier 3 Support as defined in the following Customer Technical Support Matrix.	 	 	
Customer Technical Support Matrix
 	 	 	 	 	
 	 	EMBARQ	 	 	
Customer Care Level	 	Responsibilities	 	Synacor Responsibilities	
 	 	 	 	 	
Tier 0	 	Tier 0	 	Tier 0	
•    Tier 0 consists of “ecare” in the form of Frequently Asked Questions (FAQs) that are accessed via Service Subscriber’s www access
•    Service Subscriber must have basic connectivity to access Tier 0 services
•    FAQs will include contact information for Service Subscribers (phone numbers, etc.)	 	•    Prepare FAQs that address Service Subscriber questions regarding the following:
-    EMBARQ Billing Practices
-    General EMBARQ service questions
-    General Connectivity questions
-    General Internet questions
-    General Browser questions
-    HSI Value Added Services — EMBARQ
-    HSI Speed Options
•    Provide and update, pertinent Web addresses, CHAT links, and phone numbers for Service Subscribers to use for additional questions.	 	•    Prepare FAQs that
address Service Subscriber questions regarding the following:
-    Portal
Customization/Tutorial
-    Internet Security
-    Email
-    Search Function
-    Premium Services
•    Provide Self-Help
Functionality on the Portal such as:
-    Username Updates
-    Password Resets
-    Add/Delete Emailboxes
-    General Account Profile Updates
-    Portal Tutorial
-    Portal Customization	
 66 

 

 	 	 	 	 	
 	 	EMBARQ	 	 	
Customer Care Level	 	Responsibilities	 	Synacor Responsibilities	
 	 	 	 	 	
Tiers 1 and 2	 	Tiers 1 and 2	 	Tiers 1 and 2	
•    Tier 1 and 2 Support consists of one-to-one interaction between a Service Subscriber and a Customer Service Representative via email, CHAT or telephone.
•    Tier 2 is an escalated layer of care that consists of one-to-one contact between Customer Service Representatives and Service Subscribers. Tier 2 Customer Care Representatives address issues escalated from Tier 1 Customer Care Representatives.	 	EMBARQ to provide all Tier 1 and 2 customer support as follows:
•    Provide email address, chat function or telephone number for Service Subscriber to contact Customer Service Representative to resolve questions relating to the following:
-   Account/billing inquiries
-   Order status/inquiries,
-   CPE provisioning inquiries
-   Order cancellations
-   Service upgrades or downgrades
-   Service cancellations
-   Internet Connectivity
-   Sync
-   Modem/equipment issues
-   HSI Installation
-   Account Registration
-   Proxy or firewall software, or network configuration issues
-   Email configuration/issues
-   Security download issues
-   Portal Issues
-   Username/Password look-up or reset	 	Synacor does not provide Tier 1 or Tier 2 support to EMBARQ customers.	
 67 

 

 	 	 	 	 	
 	 	EMBARQ	 	 	
Customer Care Level	 	Responsibilities	 	Synacor Responsibilities	
 	 	 	 	 	
Tier 3	 	Tier 3	 	Tier 3	
Tier 3 issues involve any issue that could not be resolved at the Tier 2 layer, such as:
•    Network Issue/Outage
•    Registration Connectivity between Synacor and EMBARQ
•    Internet Security Software
•    Email
•    Portal Access/Functionality	 	•    Embarq is responsible for network operations and connectivity on the Embarq Network.	 	•    Resolve problems that are escalated from Embarq Tier 2 in the form of trouble tickets or telephone escalations.	
 68 

 

Exhibit 13
Change Management Requirements

1.	 	Each Party will use commercially reasonable efforts to notify the other Party by telephone and email of any change associated with any of such Party’s software or equipment that affects the interfaces between the Parties’ systems, including a suggested implementation plan. Notification will be communicated to the Parties’ respective Contract Representatives. The Parties mutually shall agree upon any implementation plan.	

 	•	 	The Party whose software or equipment change is affecting the interfacing of the Parties’ system will make software upgrades or equipment upgrades that address the issue, if necessary.	
 		
 	•	 	Such Party will provide documentation as needed that insures the successful implementation of the software upgrade or equipment upgrade. A back out plan to remove such upgrade will also be documented should it be needed.	
 		
 	•	 	Each Party will comply with the time frames mutually agreed upon in the implementation plan.	

2.	 	In the event Synacor implements a change affecting Embarq, Synacor agrees to have a Synacor representative attend a reasonable number of change management calls designated by Embarq at mutually agreeable times.	
Reporting Problems

1.	 	CSR encounters problem.	
 		
2.	 	CSR enters problem into Issues Log, or if a CTSC representative, places a call to the appropriate Operations Project Manager with responsibility to address the type of problem encountered.	
 		
3.	 	Issues Log and any calls received from the CTSC are reviewed by Embarq within 24 hours of entry/receipt by the appropriate Operations Project Manager to determine if the problem is functional or technical in nature.	

 	3.1	 	Functional issues are resolved by the appropriate Operations Project Manager.	
 		
 	3.2	 	Technical issues are reported to the Rapid Problem Management (RPM) Team or the ESC/Helpdesk by the Operations Project Manager, who is responsible to supply the necessary information for reporting the problem. The reporting numbers are:

RPM Team at 1-800-578-2209	
 69 

 

 	 	 	This number is the number which goes directly to the RPM Team. This number should only be used for critical issues affecting multiple Users.

ESC/Helpdesk at 1-877-726-4357

This number is used for single issues and goes through an IVR unit menu structure.	

4.	 	The RPM Team or the ESC/Helpdesk will open a ticket and either resolves the problem on-line or dispatch the ticket to the appropriate fix agent.	
Legend
CSR- Customer Service Representative in Call Centers or Customer Technical Support Center (CTSC)
ESC- Enterprise Solutions Center
FMC- Force Management Center
SME- System Matter Expert
TSA- Technical System Analyst
 70 

 

Service Assurance & Monitoring Rapid Problem Management Team
High Severity Incident and Problem Management Policies and Guidelines

1.	 	Purpose and Scope: This Exhibit defines the principles, guidelines and processes used by the Embarq Rapid Problem Management Team in providing end-to-end high severity incident and problem management for the owners of Embarq’s systems, applications, and services. (Throughout this exhibit, the term “product/service” refers to systems, products, applications, and services supported by Rapid Problem Management).	
 		
2.	 	Rapid Problem Management: The Rapid Problem Management Team (RPM) in partnership with other support organizations at Embarq is responsible for minimizing critical service disruptions through rapid response, focused management, and clear, concise communications to Embarq, its fix agents and management. The RPM team is the single point of contact for major service outages and is staffed 7X24X365. The RPM team manages all severity 1 and 2 outages starting with detection and ending with Embarq verification upon restoral.	
 		
3.	 	Reporting Sev1/Sev2 outages to the RPM team: The RPM team receives reports from an ESC analyst or via the RPM team’s Key Customer line.	

 	3.1.	 	A “Key Customer” is one that has been given permission to report high severity incidents directly into the RPM team via the Key Customer line. This process enables a system matter expert representing a large Embarq community to identify and report major service disruptions directly to the RPM team increasing the accuracy of the incident report and significantly reducing the reporting time and the RPM team’s call volume.	
 		
 	3.2.	 	In all cases, to resolve an issue quickly the RPM team needs a detailed description of the major service outage from the reporter, a valid 24X7 Embarq contact and an understanding of the impact to the business. Incidents are evaluated for severity assignment based upon the availability of a work-around, legal/regulatory/fmancial impact and impact to critical applications or sites and business operations. (See severity determination below.)	
 		
 	3.3.	 	When an ESC analyst identifies a severity 1/severity 2 incident, data is gathered and a Service Center ticket is created. The ticket is documented and first level trouble-shooting is performed. The identifier is then warm-transferred to the RPM team. The RPM team will ask any additional required questions and then will advise the identifier of how the incident will be pursued.	
 		
 	3.4.	 	For incident resolution the RPM team uses a process also called Rapid Problem Management or RPM.	

 	3.4.1.	 	Some of the components of RPM are:	

 	3.4.1.1.	 	Rapid Problem Management documents all product/service components and potential fix agencies.	
 71 

 

 	3.4.1.2.	 	A Rapid Problem Management Team includes all primary fix agents on-call, key members of management and other stake-holders.	
 		
 	3.4.1.3.	 	All secondary fix agencies are documented and paged on an as needed basis.	
 		
 	3.4.1.4.	 	Conference bridges may be established and all necessary participants are paged to join.	
 		
 	3.4.1.5.	 	The user of the product/service is invited to join the bridge to assist with incident resolution and to relay information between the fix agents and their peers/co-workers.	
 		
 	3.4.1.6.	 	The RPM team will send regular pages to pre-established contact lists to keep management and other stake-holders apprised of status.	

4.	 	Rapid Problem Management Paging. Update pages are only sent between the hours of 07:00 – 19:00 Central time weekdays.	

 	4.1.	 	Throughout the duration of a severity 1 outage the RPM will track and update the associated record using Service Center. The RPM team will also provide paging updates to management and users at regular intervals as described below:	

 	4.1.1.	 	Initial page — the initial page will be sent within 30 minutes of the initial report to RPM and will provide a ticket number, date, a brief description of the problem, impact, status and what time the next update will be provided.	
 		
 	4.1.2.	 	Update page — the update page is sent every two hours until bypass is achieved, and will provide a ticket number, date, a brief description of the problem, impact, an updated status and what time the next update will be provided.	
 		
 	4.1.3.	 	Restoral page — the restoral page will be sent as soon as Embarq verification is complete, and will provide a ticket number, date, brief description of the problem, impact, status will be what action was taken for bypass and a restoral time.	

5.	 	Problem Tracking: Every ticket opened by RPM is continually updated by the RPM team until bypass is reached. Once bypass is achieved the ticket is assigned. From that point on the “owner” of root cause should continue to update the record until it is closed. This record includes key diagnostic information, actual work done, notification given, escalation requests, ticket transfers and ICA/RCA. The Service Center ticketing system root cause module supports the ICA/RCA activities.	
 		
6.	 	Ticketing System Requirements: Currently there is one ticketing system used by the incident and problem management groups, which is known as Service Center. Incidents and problems for all products or services supported by ESC and RPM are tracked through Service Center. Every production fix agency must have an assignee group name in Service Center.	
 		
7.	 	Severity Level Definitions: All incidents managed by Rapid Problem Management will have a severity level assigned indicating the impact to business operations. The valid severity levels are defined below.	
 72 

 

 	7.1.	 	Severity 1 incidents are those which cause a critical impact to the business function and render the product/service unavailable/unusable. These incidents justify immediate management attention and dedicated resources to resolve as quickly as possible.	
 		
 	7.2.	 	Severity 2 incidents are those that severely impair the use of a business critical product/service. Business impact justifies priority attention and dedicated resources to solve the problem in a timely manner.	
 		
 	7.3.	 	Severity 3 incidents are those which result in minimal impact to the business function and customer. These incidents require timely resolution to minimize future impacts. Resources should be allocated to work the incidents in accordance with normal managerial planning and prioritization processes. All severity 3 problems should be reported to the ESC.	
               Definition of Terms:

 	7.4.	 	Fix Agency: A fix agency is the product/service owner, the group responsible for actually resolving the incident. Fix agents that support applications/services that are managed by the RPM team have a 5 minute SLA to respond to the RPM team’s page.	
 		
 	7.5.	 	Problem Area Coordinator (PAC): A Problem Area Coordinator represents the fix agency in the coordination and administration of incident records. The PAC ensures that personnel within their organization follow procedures for working incident records, and serves as a primary contact for the incident management process. The RPM team will not assign records to fix agencies without their prior knowledge and consent. However, once the record is accepted it will be the responsibility of the PAC to resolve, document ICA/RCA, close or arrange a transfer to another agency if required.	
 		
 	7.6.	 	Knowledge Base: The Rapid Problem Management Team’s knowledge base is a repository for information about technology products and services used by Embarq business units. It contains specific information about all the products and services we support. It identifies the owners and fix groups who support these products and services. Information collected during the planning phase is added to the knowledge. As support plans change for a specific product or service, updated information must be provided to the RPM team.	
 		
 	7.7.	 	Incident Bypass: Bypass occurs when the outage documented in the incident record is over or when a temporary or alternate resolution, acceptable to the customer, becomes available and service has been restored.	
 		
 	7.8.	 	Incident Closed: The incident is closed when service has been restored, root cause analysis (RCA) and irreversible corrective action (ICA) completed, and the ticket has been updated.	
 		
 	7.9.	 	SME: Person who is an ‘Expert’ in the subject area of concern.	
[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 73 

EXHIBIT 10.16.1
CONFIDENTIAL TREATMENT REQUESTED
SYNACOR
MASTER SERVICES AGREEMENT
1. PARTIES and EFFECTIVE DATE
      1.1 Parties (each a “Party” and collectively, the “Parties”).
 	 	 	 	 	 	 	
Synacor, Inc. (“Synacor”)	 	Charter Communications Holding Company, LLC	
 	 	 	 	(“Client”)	 	 	
Attention:	 	Frank Codella	 	 	 	 	
(the “Synacor Representative”)	 	Attention:	 	Jeff Jay	
 	 	 	 	(the “Client Representative”)	
Address:	 	50 Fountain Plaza, Suite 1520	 	Address:	 	12405 Powerscourt Drive	
 	 	Buffalo, New York 14202	 	 	 	St. Louis, Mo 63131-3674	
Telephone:	 	716-853-1362 ext. 216	 	Telephone:	 	314-965-0555	
Fax:	 	716-332-0081	 	Fax:	 	314-965-9104	
      1.2 Effective Date. September 30 th ., 2004
2. SYNACOR SERVICES AND RESPONSIBILITIES
      2.1 Services. Subject to the terms and conditions of this Master Services Agreement, as amended pursuant to the provisions of Section 12 hereof (the “Master Agreement”), Synacor shall provide the services described in this Agreement (collectively, the “Services”) in accordance with the terms and conditions set forth herein and those set forth in Schedules A, B, C, D, E, & F each of which is attached hereto and incorporated herein by this reference and any other schedules, attachments, exhibits, addenda, amendments or riders as may subsequently be agreed to and signed by the Parties and attached to this Agreement from time to time (collectively, the “Agreement”). Synacor may provide the Services directly to Client, or indirectly using contractors or other third party vendors or service providers, provided that in any event, Synacor shall remain primarily responsible for the delivery of the Services to Client in accordance with this Agreement. Each party shall provide the other with reasonable cooperation, assistance, information and access as may be lawful and necessary to initiate Client’s and its registered users’ use of the Services (such as, for example, developing any content, user interfaces or appearance specific to the Services contracted for by Client). The Services will be available to customers of Client who have entered into a subscription agreement with Client to procure Client’s high speed Internet access service (collectively, “Users”). The parties agree that Synacor shall provide to Client the Internet portal through which Client’s Users will access premium content and/or services, except as otherwise set forth herein. Such premium content and/or services may be provided to Client by Synacor or other providers of such content and/or services. Synacor Content (as such term is defined in Schedule A) shall be provided pursuant to the provisions of this Agreement. Client Content (as such term is defined in Schedule A) shall be integrated into the Synacor portal by Synacor’s professional services organization subject to the applicable provisions of Schedule A hereto. Notwithstanding the foregoing, (i) in connection with cable systems or assets which are acquired by Client during the term hereof (each, an “Acquired Systems”), Client may, in its sole discretion, continue or obtain access to premium content and/or services for subscribers of the Acquired Systems through an alternate Internet portal (whether provided/sourced by Client or a third party) without any payment obligation or other liability to Synacor hereunder and/or (ii) in connection with current, existing cable systems or assets (“Existing Systems”), Client may, in its sole discretion, obtain access to premium content and/or services for subscribers of such Existing Systems through an alternate Internet portal (whether provided/sourced by Client or a third party) provided that Client’s payment obligations to Synacor based on Users in such Existing Systems shall continue in accordance with and subject to the terms of this Agreement, as if Synacor’s portal were being utilized for such Users.
      2.2 Additional Services. Upon mutual agreement of the parties, Client may engage Synacor to provide development services or other professional services in addition to the Services. Such additional services shall be provided pursuant to and ownership of any intellectual property rights attendant to or otherwise developed, created, or arising from the procurement and provision of such additional services shall be subject to, the terms of a separately executed Professional Services Addendum. From time to time, Synacor may offer additional services to Client that are beyond the scope of this Agreement. All such additional services shall be provided upon terms and conditions as the Parties may mutually establish in writing.
      2.3 Technical Support. Synacor shall provide the Services and technical support services in accordance with the requirements set forth in this Agreement, including, without limitation, Schedule B.

MASTER SERVICES AGREEMENT	 	1	

 

      2.4 Limitations. Synacor will not be responsible for, nor liable hereunder in connection with, any failure in the Services due to or resulting from: (a) any Client Materials (as defined in Section 3.3 herein) or other content provided by or for Client by parties other than Synacor; (b) Client’s negligence or willful acts or omissions; (c) third-party telecommunications or equipment failures outside of Synacor’s facilities, except for those facilities owned, operated or maintained by Synacor or by a third party on behalf of Synacor that are necessary for Synacor to connect to the Internet; and (d) scheduled maintenance as set forth in Schedule B. Further, except for breaches of Synacor’s representation and warranty set forth in Section 8.1(g) hereof, and Synacor’s performance requirements defined in Schedule B and in Schedule D, Synacor will not be responsible for, or liable hereunder, in connection with, any failure in the Services due to or resulting from unauthorized access, breach of firewalls or other hacking by third parties of the System any and all of which is not caused or enabled by Synacor’s acts or omission
      2.5 Data. As between Synacor and Client, Client shall own all User names, login IDs, passwords and other User registration or other information provided by Client and/or Users in connection with the Services, including without limitation any identification numbers or other information provided and/or used by Synacor to identify and/or distinguish between Users (“Account Information”). Unless otherwise agreed to by Client in advance and in writing, Synacor shall not disclose to third parties or use any Account Information except as reasonably necessary to perform its obligations under this Agreement or to comply with any legal or regulatory requirement; provided that, to the extent not otherwise prohibited by law, Synacor shall provide Client with prompt notice of any such legal or regulatory requirement in order that Client may comply with the provisions of 47 U.S.C.A. § 551 and/or seek a protective order with respect to such Account Information. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject at all times to Section 5.2 herein, Synacor may disclose aggregate information (not personally identifiable) of Users and Service usage and performance derived from Account Information to Synacor Providers, Synacor customers and Synacor investors; provided that, no such information shall identify Client or any User or contain any Client-specific or User-specific information, Synacor shall provide Client with all Account information in a format chosen by Client within forty-eight (48) hours of receipt of written notice from Client requesting the same. This clause and the Parties’ responsibilities hereunder shall survive the expiration or earlier termination of the Agreement.
3. CLIENT RESPONSIBILITIES
      3.1 Client Support; Synacor Status. Client acknowledges that the continuing performance of certain Services may depend on Client’s reasonable cooperation with, assistance, information and access to Synacor. Synacor will not be liable for any delay in its performance to the extent caused by Client’s failure to timely provide any of the foregoing. The Parties’ Contacts (designated in Section 1.1) are responsible for facilitating communication between Synacor and Client regarding all technical and business matters.
      3.2 Regulations. Client will use the Services only in compliance with all applicable federal, state and local laws, rules and regulations (including, without limitation, laws related to “spamming,” privacy, obscenity and defamation) (collectively, the “Regulations”). Client acknowledges and agrees that each User’s access to the Services shall be subject to such User’s acceptance of an “end user agreement” or “terms of use” regarding the Service and continuing compliance with the Regulations. Synacor has no obligation to monitor the Client Materials (defined below) or other content provided by or for Client, except for Synacor Content (as defined in the Addendum). Synacor may do so, however, and may remove any content or disable any use of the Services that Synacor, in good faith and with a reasonable basis, determines to be in violation of any Regulation, provided that Synacor provides Client with at least twenty-four (24) hours prior notice of such violating content in order that Client have the opportunity to eliminate any such offending content.
      3.3 Materials and Equipment. Client will provide (on its own behalf, or on behalf of its sponsors or advertisers) certain materials, domain names, Client Content (as defined in the Addendum) and other information (collectively, “Client Materials”) to Synacor as is reasonably necessary for Synacor to perform the Services. Client represents and warrants that it has the right to provide all Client Materials, and that use of such Client Materials hereunder will not violate Client’s obligations under any other agreement, the Regulations and any privacy policies covering any Client Materials. Except for any hardware, software and other technology used by Synacor to provide the Services, Client shall be responsible for obtaining, operating and maintaining in good working order all equipment and ancillary services under Client’s control needed in order for Users to connect to, access or otherwise use the Services via the Internet, including modems, authentication/provisioning servers, network hardware/software and such network and communication services necessary to connect Users to the Internet (“Equipment”). Client shall ensure that all Equipment is compatible with the Services (and, to the extent applicable, any software interface) and that the Equipment complies with all configurations and specifications set forth in the Synacor Specifications. Client

MASTER SERVICES AGREEMENT	 	2	

 

shall be responsible for the maintenance and integrity and security of its Equipment (physical, electronic and otherwise), Account Information, passwords, Client Materials and other data.
4. CLIENT LICENSE; SYNACOR PROPRIETARY RIGHTS.
      4.1 License Grant. Client hereby grants to Synacor during the Term a nonexclusive, worldwide and royalty-free right and license to use, reproduce, modify, distribute, perform and display the Client Materials and the Client’s Marks (as defined herein) solely in connection with the provision by Synacor of the Services hereunder and in accordance with any use guidelines therefor as Client may provide from time to time.
      4.2 No Implied Licenses. Except for the limited rights and licenses expressed hereunder and subject to the provisions set forth in Section 2.2 hereof, each Party shall retain all right, title and interest in and to its logos and product and service names, which shall at all times remain trademarks of such party (the “Marks”), technology and other intellectual property (including, without limitation, in the case of Synacor, the Services and the software used by Synacor to provide the Services (the “Software”). Neither Party shall take any action inconsistent with such ownership. Each Party acknowledges that, as between the Parties, Client’s Marks and Synacor’s Marks are the exclusive property of the respective party and/or one or more entities affiliated with such party, and neither party has, nor will acquire, any proprietary rights thereto by reason of this Agreement or otherwise. This is a contract for services only. All software, hardware and other technology used to provide the Services will be installed, accessed and maintained only by or for Synacor and no license therein is granted to Client. Client shall not use Synacor’s Marks, Software or Services in any manner except as specifically provided herein. Synacor shall not use Client’s Marks in any manner, except as specifically provided herein. No title to or ownership of any Client Content, Client Marks or Client Materials and/or any part thereof is hereby transferred to Synacor or any third party, nor shall any rights therein accrue to Synacor or any third party as the result of the performance under this Agreement by either Party.
      4.3 Restrictions. Except as specifically permitted in this Agreement, Client shall not, directly or indirectly: (a) use any of Synacor’s Proprietary Information (as such term is defined in Section 5.1) to create any software that is similar to the Software or to provide any service which is similar to the Service; (b) decompile, disassemble, reverse engineer or use any similar means to attempt to discover the source code of the Software or the trade secrets therein, or otherwise circumvent any technological measure that controls access to the Software or Services; (c) encumber, transfer, rent, lease, or time-share the Software or Services, or use the Software or Services in any service bureau arrangement or otherwise for the benefit of any third party, except for Users; (d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify the Software; (e) remove any proprietary notices; or (f) permit any third party to engage in any of the acts proscribed in clauses (a) through (e) of this Section.
5. CONFIDENTIALITY.
      5.1 Proprietary Information. Each Party agrees that neither it nor its representatives shall disclose to any third party during the term of this Agreement and for a period of not less than two (2) years after the termination of this Agreement, the Proprietary Information (as defined herein) of the other and each of the Parties desire to protect the confidentiality of its own Proprietary Information. For purposes of this Agreement, “Proprietary Information” means any information disclosed by either Party in the following forms: (a) information originally disclosed in written, graphic, machine-readable or any other tangible medium, to the extent marked with a “confidential,” “proprietary” or similar legend, or (b) information disclosed orally or visually, to the extent identified as Proprietary Information at the time of such original disclosure. For purposes hereof, any and all Account Information shall be deemed Proprietary Information of Client whether or not marked as such, or identified as such, prior to disclosure. Proprietary Information shall not include any information that the receiving Party can demonstrate by its written records (i) is or becomes generally available to the public without breach of this Agreement, (ii) was in its possession or known by it prior to receipt from the disclosing Party at a time when the receiving Party was under no obligation to the disclosing Party to keep such information confidential, (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Proprietary Information of the disclosing Party. The Party claiming that any of the foregoing exceptions applies shall have the burden of proving such applicability. Any issue that the receiving Party may have as to the confidentiality expectations of the disclosing Party regarding particular information shall be submitted to the disclosing Party for determination.
      5.2 Non-Disclosure. Each Party shall refrain from copying Proprietary Information, in whole or in part, except as required in furtherance of the uses permitted by this Agreement and subject to the accurate reproduction of all proprietary legends and notices located in the originals, and shall limit dissemination of Proprietary Information to employees and agents of such Party, or of such Party’s affiliates, who have a need to know the Proprietary Information

MASTER SERVICES AGREEMENT	 	3	

 

in furtherance of the uses permitted by this Agreement. Except for the specific rights granted by this Agreement, neither Party shall use or disclose any Proprietary Information of the other Party without its written consent. The receiving Party shall treat the Proprietary Information of the other Party with the same degree of confidentiality with which it treats its own Proprietary Information, and, in any event, the receiving Party shall use a commercially reasonable degree of care to protect the Proprietary Information of the other Party. Each Party shall bear the responsibility for any breach of confidentiality by its employees, agents, auditors or contractors. The terms and conditions of this Agreement shall be kept confidential, except for (a) disclosure as may be required by law, regulation, court or government agency of competent jurisdiction (redacted to the greatest extent possible); or (b) disclosure to each Party’s respective officers, directors, employees and attorneys, in their capacity as such; provided that, such parties shall be subject to this Section 5.2. Notwithstanding the foregoing, each Party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other Party.
      5.3 Required Disclosure. Nothing herein shall prevent a receiving Party from disclosing all or part of the other’s Proprietary Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided, that prior to any such disclosure, (a) the receiving Party uses reasonable efforts to promptly notify the disclosing Party in writing of such requirement to disclose, to the extent not otherwise prohibited by law; (b) the receiving Party uses reasonable efforts to cooperate fully with the disclosing Party in protecting against any such disclosure or obtaining a protective order; (c) the receiving Party discloses only that portion of Proprietary Information which it is advised in writing by counsel it is required to disclose; and (d) the receiving Party uses reasonable efforts to obtain safeguards that confidential treatment reasonably acceptable to the disclosing Party will be accorded to such Proprietary Information. Any such required disclosure shall not, in and of itself, change the status of the disclosed information as Proprietary Information under the terms of this Section 5.
      5.4 Return of Proprietary Information; Ownership. All Proprietary Information shall remain the exclusive property of the disclosing Party and a valuable trade secret of such Party and the original and all copies thereof, on whatever physical, electronic or other media such Proprietary Information may be stored, shall be returned upon the earlier to occur of: (a) the expiration or earlier termination of this Agreement, or (b) within ten (10) business days of the disclosing Party’s request, provided that return in the latter case shall not relieve the disclosing Party of its obligations otherwise to perform under this Agreement. Nothing in this Agreement shall be construed as granting any license or other rights under any patents or copyrights of either Party, or any rights in or to Proprietary Information of either Party, except for the limited rights to use and disclose such Proprietary Information expressly granted to the other Party in this Agreement.
      5.5 Relief. The Parties each acknowledge that money damages may not be an adequate remedy if Section 5 is breached and, therefore, the disclosing Party shall, in addition to any other legal or equitable remedies, be entitled to seek an injunction or similar equitable relief against such breach or threatened breach.
6. SYNACOR FEES, PAYMENT TERMS AND TAXES.
      6.1 Fees. Synacor’s fees for the Services are set forth in the Pricing Schedule attached hereto as Schedule A and made a part hereof.
      6.2 Payment Terms. Except to the extent specifically provided otherwise in this Agreement or any amendment, addendum, attachment, exhibit, rider or schedule attached hereto as the same may be amended from time to time pursuant to their terms, payments required under this Agreement shall be made as follows:

 	6.2.1	 	For those circumstances in which Client must reimburse Synacor for costs incurred, Charter shall make the required payments to Synacor within forty-five (45) of its receipt of an invoice detailing such costs;	
 		
 	6.2.2	 	For those circumstances in which Client must make payments based on the number of Users subscribing to services and/or products available via the Client Sourced Portal hereunder, Client shall calculate the number of Users for which payment to Synacor is required under this Agreement, submit a report detailing such User numbers by respective service, product, and/or other payment classification, and make the corresponding required payment to Synacor within forty-five (45) days following the expiration of the calendar month for which payment is being made; or	
 		
 	6.2.3	 	For those circumstances in which Synacor must make payments to Client hereunder, Synacor shall submit a report detailing the underlying basis ( e.g., revenue, etc. ) for such payment and shall make such payment to client within forty-five (45) days after the calendar month for which such payment is required hereunder.	

MASTER SERVICES AGREEMENT	 	4	

 

Subject to the terms set forth in this Section, all payments shall be made in full in United States Dollars, at the respective parties’ usual corporate office business address or to an account designated by the respective party. Other than amounts disputed in good faith by a party, any amount not paid when due shall bear a late payment charge, until paid, at the rate of one percent (1%) per month or, if less, the maximum amount permitted by law. Either party, in its sole discretion, may terminate this Agreement if the party from whom payment is required, fails to pay the required amounts within thirty (30) days after the such party receives written notice from the party to whom payment must be made, that it has failed to pay any or all of the amounts required hereunder and such amounts are not in dispute. Each party must notify the other of any disputed amounts within twenty (20) days of receipt of the applicable of an invoice or payment and provide a full explanation for any disputed amounts.
      6.3 Taxes. Client shall bear, be responsible for, and shall pay any and all sales, use, personal property or other taxes imposed on the delivery, licensing or use of the Client Branded Portal or the provision of the Services. Synacor shall pay all other taxes arising under this Agreement, including without limitation, taxes based upon Synacor’s net income or ad valorem, personal, or real property taxes imposed on Synacor’s property. All payments to Synacor are exclusive of federal, state, local and foreign taxes (other than taxes assessed on Synacor’s income), duties, tariffs, levies and similar assessments on the use of the Services hereunder, and Client agrees to bear and be responsible for the payment of all such charges.
7. TERM AND TERMINATION.
      7.1 Term. This Agreement shall commence as of the date hereof and, unless earlier terminated pursuant to the terms hereof, shall continue thereafter in full force and effect for a period of [*] from the Effective Date (the “Initial Term”) and, except as provided in the immediately following sentence, will automatically renew thereafter for up to [*] (each a “Renewal Term”) (the Initial Term and all Renewal Terms being referred to as the “Term”). Either Party may prevent the automatic renewal of this Agreement by providing written notice to the other Party of such non-renewal not less than ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Term.
      7.2 Termination for Cause. In addition to any of its other remedies, either Party may terminate this Agreement: (a) in the event that the other Party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party; or (b) effective immediately upon written notice, in the event any assignment is made by the other Party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of such other Party’s property, or if a voluntary or involuntary petition under federal bankruptcy laws or similar state statutes is filed against the other Party, or if it dissolves or fails to operate in the ordinary course. In the event Client terminates this Agreement pursuant to the terms of this Section 7.2, [*].
      7.3 Effects of Termination. Upon any expiration or earlier termination of this Agreement, all rights and obligations of the Parties shall cease, except that: (a) all obligations that accrued prior to the effective date of termination (including, without limitation, all payment obligations) shall survive termination; (b) each Party shall destroy (upon the written request of the other Party) or return to the other Party all of the other’s Proprietary Information in its possession or under its control pursuant to Section 5.4; and (c) Synacor shall, after providing Client with an electronic copy of such information and data in a mutually agreeable format, delete archived Account Information, other User identification information used or maintained by Synacor, and other transaction data (including but not limited to all personally identifiable information of such Users). The provisions of Sections 4.2 and 4.3 (Proprietary Rights), 5 (Confidentiality), 6 (Synacor Fees, Payment Terms and Taxes), 8 (Representations and Warranties; Indemnities), 9 (Limitations of Liability and Disclaimers), 12 (General Provisions) and this Section 7 shall survive any termination of this Agreement.
     [*]

 	[*]	 	 	
 		
 	[*]	 	 	
 		
 	[*]	 	 	

MASTER SERVICES AGREEMENT	 	5	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

[*]
[*]
8. REPRESENTATIONS AND WARRANTIES; INDEMNITIES.
      8.1 Synacor Representations and Warranties. Synacor represents and warrants to Client that (a) Synacor is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Synacor does not conflict with any agreement, instrument or contract, to which Synacor is bound; (c) Synacor shall perform its obligations and provide the Services to Client in a professional and workmanlike manner and in compliance with any and all applicable laws; (d) Synacor owns all right, title and interest in and to the Synacor Content and the System, each element thereof, and all intellectual property rights embodied therein or licensed to Client pursuant to this Agreement; or, in the case of any third party content, software, technology or information included therein, Synacor possesses, or has otherwise obtained all rights and valid licenses necessary to grant to Client all rights and licenses set forth in this Agreement; (e) Synacor has all necessary rights in the Services and all rights of publicity with respect to any artists, artwork, text material, images, sound or video, if any, provided by Synacor in connection with the Services; (f) the Synacor Content, the System and the Services, in whole or in part, do not and shall not infringe or interfere with any right of publicity, patent, trademark, copyright, trade name or other intellectual property rights or misappropriate any trade secret of any third party; and (g) Synacor shall use commercially reasonable efforts to protect its network in accordance with applicable industry standards to insure that Synacor’s network and the Services are secure from unauthorized access and are free from any viruses, worms, or other code that will damage, interrupt or interfere with any software, content, data or hardware. Synacor further represents and warrants that, to its knowledge, the Synacor Content and the Services are not defamatory, obscene, or otherwise unlawful in any jurisdiction. Synacor further represents and warrants to Client that during the Term, the Services shall be provided in accordance with applicable United States federal law and the laws of such other jurisdictions as may be applicable thereto by qualified personnel. Synacor shall use commercially reasonable efforts, consistent with applicable industry standards and practices, to provide the Services in a manner designed to minimize errors and interruptions. Nonetheless, Services may be temporarily unavailable for scheduled maintenance or repairs by Synacor or by third-party providers, or because of other causes beyond Synacor’s reasonable control.
      8.2 Client Representations and Warranties. Client represents and warrants to Synacor that (a) Client is duly organized and validly existing under the laws of its state of formation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Client does not conflict with any agreement, instrument or contract, to which Client is bound; (c) Client owns all right, title and interest in and to the Client Materials, including, but not limited to, the Client Content, each element thereof, and all intellectual property rights embodied therein or licensed to Synacor pursuant to this Agreement; or, in the case of any third party content, software, technology or information included therein, Client possesses, or has otherwise obtained all rights and valid license necessary to grant to Synacor all rights and licenses set forth in this Agreement; and (d) to Client’s knowledge, the Client Materials are not defamatory, obscene, or otherwise unlawful and do not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity. Client shall be fully responsible for, and shall reimburse Synacor for any and all liabilities arising out of any warranty concerning the Services made by Client to any User, prospect or other third party, except as expressly authorized in advance in writing by Synacor.
      8.3 Synacor Indemnifications. Synacor shall indemnify, defend and hold harmless Client from and against any and all liabilities, claims, judgments, costs, damages, suits, actions, proceedings, and expenses, including without limitation, reasonable attorneys’ fees-(collectively “Claims”) suffered or incurred by Client, arising out of or resulting from: (i) Synacor’s breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; (ii) the failure of any of the representations or warranties made by Synacor herein to be true:

MASTER SERVICES AGREEMENT	 	6	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

(iii) any third party claims relating to the matters covered by the foregoing breaches or failures; (iv) any injuries to persons or damage to property caused by the negligent, willful or intentional acts or omissions of Synacor, its agents or employees; and (v) any third party claims relating to the Services.
      8.4 Client Indemnifications. Client shall indemnify, defend and hold harmless Synacor from and against any and all Claims suffered or incurred by Synacor, arising out of or resulting in any manner from: (i) Client’s breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; (ii) the failure of any of the representations or warranties made by Client herein to be true; (iii) any third party claims relating to the matters covered by the foregoing breaches or failures; and/or (iv) any third party claims relating to Client Materials.
      8.5 Claims. In case any Claim is brought by a third party for which indemnification is or may be made pursuant to this Agreement, the indemnified Party shall provide prompt written notice thereof to the other Party; provided, however, that the failure of the indemnified Party to comply with the foregoing notification provision shall not relieve the indemnifying Party of its indemnification obligations hereunder, except to the extent the indemnifying Party is actually and materially prejudiced thereby. Where obligated to indemnify such Claim, the indemnifying Party shall, upon the demand and at the option of the indemnified Party, assume the defense thereof (at the expense of the indemnifying Party) within thirty (30) days or at least ten (10) days prior to the time a response is due in such case, whichever occurs first. The Parties shall cooperate reasonably with each other in the defense of any Claim, including making available (under seal if desired and if allowed) all records reasonably necessary to the defense of such Claim, and the indemnified Party shall have the right to join and participate actively in the indemnifying Party’s defense of the Claim. Each Party shall be entitled to prior notice of any settlement of any Claim to be entered into by the other Party, and any such settlement shall be subject to the reasonable approval to the extent such Party’s rights would be directly and materially impaired.
     Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any portion of the Software and/or Services provided by Synacor: (i) upon Client’s request and at Synacor’s expense, Synacor will use its best efforts to procure the right or license, on commercially reasonable license terms, for Client to continue to use and otherwise exploit in accordance with the terms hereof such portion of the Software and/or Services at no additional cost or expense to Client other than the fees set forth herein; or (ii) at Synacor’s sole discretion, but upon as much prior written notice to Client as is reasonably practicable, Synacor may modify or alter (to the extent that Synacor has rights to so modify or alter), or delete any such portion of the Software and/or Services, as the case may be, so as to make such portion non-infringing while maintaining substantially comparable functionalities and capabilities of such parts of the Software and/or Services that are material to Client’s then-current or demonstrably anticipated use hereunder. If options (i) and (ii) are not achievable as to any such portion: (1) Client may terminate the rights and licenses granted hereunder, in its sole discretion, as to such infringing portion, or this Agreement without liability if loss of such portion materially and adversely affects the Services or functionality Client expects hereunder; or (2) to the extent Synacor used commercially reasonable efforts to obtain a license or modify the Software and/or Services as set forth in subsections (i) or (ii), and Synacor is reasonably exposed to liability from Client’s continued use of such portion of the technology and/or services, Synacor may, in its discretion, terminate the rights and licenses granted hereunder with respect to such portion. If, pursuant to the immediately foregoing sentence, Client or Synacor terminate the rights and licenses granted hereunder as to any portion of any software and/or Services provided by Synacor and Client does not elect to terminate this Agreement, if applicable, the Parties shall thereafter negotiate in good faith for a period of not less than thirty (30) days with respect to reduced fees under this Agreement.
9. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING EXCEPT WITH RESPECT TO SYNACOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS, AFFILIATES, CLIENTS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SYNACOR’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE GREATER OF (i) $5,000,000.00 OR (ii) THE AMOUNT SYNACOR HAS RECEIVED FROM CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT DURING THE TERM HEREOF.

MASTER SERVICES AGREEMENT	 	 	7	

 

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY, SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYNACOR DOES NOT WARRANT THAT THE SERVICES WILL MEET THE REQUIREMENTS OF CLIENT (EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS AGREEMENT) OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, SYNACOR DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SYNACOR MAKES NO WARRANTY WITH RESPECT TO ANY SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SYNACOR DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE CONTENTS OF ANY CONTENT OR THE RESULTS TO BE OBTAINED FROM THEIR USE. SYNACOR SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 ABOVE, CLIENT MAKES NO WARRANTY WITH RESPECT TO ANY CLIENT MATERIALS AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
10. PUBLIC RELATIONS. Except as it relates to Client’s marketing of portal and related matters to Users and as otherwise permitted by the last sentence of Section 5.2 herein, neither Party will issue any press release, nor otherwise disclose any information concerning this Agreement without the prior written consent of the other. The Parties agree that a joint press release regarding the establishment of their relationship is appropriate and that each will dedicate appropriate resources to such effort.
11. RECORDS AND AUDIT.
      11.1 Throughout the Term and for a period of one (1) year after the expiration or earlier termination of this Agreement, each of the Parties shall maintain books and records regarding the Services, and other matters relating to this Agreement, including, without limitation, server logs, and customer usage logs, in accordance with generally accepted accounting principles. Each Party shall have the right to audit such books and records of the other party solely and directly relating to this Agreement and all amendments, addendums, attachments, schedules, riders and/or exhibits attached hereto exhibits, upon reasonable notice and at its expense, not more frequently than once per consecutive twelve (12)-month period during the Term and for a period of one (1) year thereafter and to take extracts from and/or make copies of such records. Each party shall maintain at its principal place of business during the Term and for a period of one (1) year thereafter all books, records, accounts, and technical materials regarding its activities in connection herewith sufficient to determine and confirm all amounts payable to the other Party and all compliance with all other material obligations pursuant to this Agreement. Upon a Party’s written request (to be provided at least ten (10) business days prior to the date of the audit), the other Party will permit one (1) or more representatives of an auditor or agent of the requesting Party’s choice to examine and audit, during normal business hours, such books, records, accounts, documentation and materials, and take extracts therefrom or make copies thereof for the purpose of verifying the correctness of payments made pursuant hereto and/or compliance with the other material obligations hereunder; provided that, the auditing Party shall first obtain a written agreement from any such auditor or agent that such auditor or agent shall be bound by the confidentiality obligations set forth in Section 5 herein and the auditing Party shall in all events be responsible to the audited Party for any action or inaction of such auditor or agent that would violate Section 5 of this Agreement. Unless otherwise agreed by the Parties in writing, such examination shall be in material accordance with generally accepted accounting principles. The audited Party shall pay any unpaid, non-disputed delinquent amounts within thirty (30) days of the other Party’s request. To the extent such examination discloses an underpayment of the greater of 5% of the aggregate amount paid or payable to the other party during the period which is the subject of the audit or $15,000, the audited Party shall fully reimburse the other Party, promptly upon demand, for the reasonable fees and disbursements due the auditor for such audit; provided that, such prompt payment shall not be in lieu of any other remedies or rights available to such other Party hereunder. In all other events,

MASTER SERVICES AGREEMENT	 	8	

 

all fees and expenses of the auditing Party’s auditor or agent under this Section shall be paid by the auditing Party. If an audit reveals an overpayment, the auditing Party shall promptly notify the other and shall pay the amount of any such overpayment to the other Party within thirty (30) days thereafter.
      11.2 If any report of an audit under the provisions of subsection (a) of this Section discloses to the auditing Party any underpayments or overpayments, a copy of such audit report shall be promptly delivered to the audited Party. Unless the amount of any underpayment or overpayment shown on such report is disputed by the audited Party, in writing (a “Notice of Dispute”), within twenty (20) days after receipt of the audit report, the audit report shall be deemed accepted and all amounts due thereunder shall be paid according to the applicable provisions of subsection (a) of this Section. In the event that Client and Synacor have not resolved all disputed items to their mutual satisfaction within thirty (30) days after a Notice of Dispute has been received by the auditing Party, they shall promptly submit such audit report and all supporting work papers to an independent accounting firm ( i.e., an accounting firm that does not, and has not, provided any services to either Party or to any of the Parties’ subsidiaries or affiliated entities) of national stature in the United States selected by mutual agreement of Client and Synacor for binding review of any disputed items. All costs and expenses of such review shall be apportioned between the Parties on the basis of each Party bearing the expense of that portion of the review that shall be related to disputed items that are resolved against such Party. If Client and Synacor are unable to agree upon the selection of an independent accounting firm of national stature in the United States to perform the binding review of any disputed items, the determination and selection of the independent accounting firm of national stature shall be settled by arbitration in New York, New York in accordance with the rules and regulations of the American Arbitration Association.

MASTER SERVICES AGREEMENT	 	9	

 

12. GENERAL PROVISIONS. This Agreement is not transferable by either Party without the other’s prior written consent (which shall not be unreasonably conditioned, delayed or withheld), except that either Party may (without consent) assign its rights and obligations hereunder to any entity that is controlled by, controls, or is under common control with the assigning Party or to any successor entity to all or substantially all of its business (by sale or other transfer of equity or assets, merger, consolidation, reorganization or otherwise). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties. This Agreement (including any schedules, exhibits, riders, addendums, amendments and attachments) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties concerning the subject matter of this Agreement. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both parties. In the event of any conflict or inconsistency between the terms and conditions in the Master Agreement and any schedule or other exhibit attached hereto not expressly and specifically stated otherwise, the terms and conditions of the Master Agreement will prevail. Except as expressly provided herein, any different or additional terms on any related purchase order, confirmation or similar form, even if signed by the Parties after the date hereof, shall have no force or effect on this Agreement. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. All notices under this Agreement will be in writing and will only be deemed to have been duly given the day after being sent, if sent for next day delivery by nationally recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party (whether plaintiff or defendant) will be entitled to recover its reasonable costs and attorney’s fees. Headings are for convenience of reference only and shall in no way affect interpretation of the Agreement. This Agreement may be executed in one or more counterparts, each of which (once executed) shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Neither Party shall have any rights against the other Party hereto for the non-operation of facilities or the non-furnishing of services or fulfillment of obligations if such non-operation, non-furnishing or non-fulfillment is due to an act of God or other cause beyond such Party’s reasonable control. All remedies, whether at law, in equity or pursuant to this Agreement shall be cumulative. The Parties agree that Synacor and its employees and agents will be serving Client as independent contractors for all purposes and not as employees or partners of, or joint venturers with, Client. Nothing in this Agreement shall be deemed to constitute a fiduciary relationship between Synacor and Client, nor shall anything in this Agreement be deemed to create an agency relationship between Synacor and Client. Neither Synacor nor Client shall be or become liable or bound by any representation, act or omission whatsoever of the other. The provisions of this Agreement are for the exclusive benefit of the Parties hereto and their permitted assigns, and neither Party intends to benefit any other person or entity, including, without limitation, a “third party beneficiary,” as that term may be defined by applicable statutory or case law, and except as expressly provided in Section 8(g) of the Addendum, no person or entity who is not a party (including, without limitation, an obligor, borrower, or guarantor) will have any rights or claim against a Party by virtue of this Agreement.
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	Charter Communications Holding Company, LLC	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Jeff Jay	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Name:	 	RONALD FRANKEL	 	 	 	 	 	Name:	 	Jeff Jay	 	 	
 	 	Title:	 	CEO	 	 	 	 	 	Title:	 	V P Product Development	 	 	
Date:	 	9-30-04	 	 	 	Date:	 	9/29/04	 	 		

MASTER SERVICES AGREEMENT	 	10	

 

SCHEDULE A
TO
SYNACOR MASTER SERVICE AGREEMENT
PRODUCT & PRICING SCHEDULE
     This Schedule A forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30 th ., 2004, by and between Synacor, Inc. and Charter Communications Holding Company, LLC (“Client”), including any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule A and not defined herein shall have the meanings ascribed to such terms in the Agreement.
The product deliverables and fees payable by Client to Synacor pursuant to the Agreement are set forth below.
1. Portal Features and Functionality (including Portelus Technology).
     [  *  ]

PRODUCT & PRICING — SCHEDULE A	 	1	

 		
 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

     [  *  ]
2. Portal Content:

(a)	 	Free Content: The below-listed initial Content (the “ Initial Information Services”) will be integrated into the Client Branded Portal at no cost to Client:	

 	(i)	 	An integrated Yellow, White Pages, Maps, and Restaurant Search (from a provider such as Switchboard);	
 		
 	(ii)	 	An integrated [*] Search subject to the terms set forth in Schedule F, attached hereto and incorporated herein by reference;	
 		
 	(iii)	 	Horoscopes;	
 		
 	(iv)	 	Auto Channel — currently provided by [ * ];	
 		
 	(v)	 	Career Channel — currently provided by [ * ]; and	
 		
 	(vi)	 	Travel Channel — currently provided by [ * ].	

(b)	 	Additional Synacor Content: The following additional Synacor Content (the “Additional Synacor Content”) may be integrated into the Client Branded Portal, at the option of Client, for the costs listed below:	

PRODUCT & PRICING — SCHEDULE A	 	2	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	(i)	 	[*] News service (stories, pictures, videos, etc.) as set forth below (“[*] News Service”) is included in the Client Branded Portal so that when a User clicks on a news story or video the User will remain within the Client Branded Portal. The [*] News Service includes:	

 	•	 	National News	
 		
 	•	 	World News	
 		
 	•	 	Sports News	
 		
 	•	 	Entertainment News	
 		
 	•	 	Health News	
 		
 	•	 	Business and Finance News	
[*]
[*]
[*]

 	(ii)	 	Local Movie Listings by Zip Code
Approximate [*]	
(c) Continuous Efforts to Refresh Initial Portal Screen: Synacor shall ensure that the initial/opening screen of the Client Branded Portal is refreshed/updated on a continuous basis each day but in no event less than twice each day between the hours of 6 a.m. and 12 a.m. (EST). Such refresh responsibility shall include but not be limited to changing the primary new story image/picture in the Dynamic Content Components, altering the various lead story headlines from time to time, and generally ensuring that staff is available to implement visible, significant changes to or updating of the initial/opening (and other available) screens throughout each day, seven (7) days per week.
3. Synacor Premium Product Fees. For purposes of creating a fee structure, relevant Synacor Premium Product may be bundled into products as described below (the “Synacor Premium Products”) at the request of Client, and subject to Client’s prior written approval. In the event Client elects to procure for placement on the Client Branded Portal any such Synacor Premium Product, each month, Synacor shall bill Client for an amount determined by multiplying the number of Subscription Accounts (as defined below) in a given month (calculated as set forth above with respect to Users) by the monthly fee relating to the pertinent Synacor Premium Product(s) subscribed to by Subscription Account. For purposes herein, a “Subscription Account” is defined as an account that allows a User access to the given Synacor Premium Product from the Client Branded Portal or other location as subsequently agreed to by the Parties. Synacor Premium Product Fees for the Synacor Premium Products as set forth herein shall remain in effect for the Initial Term of the Agreement provided, however, that Synacor shall be entitled to revise any fees set forth in this Agreement directly proportionate to changes in the fees payable by Synacor to Synacor Providers for the respective premium content. Likewise and except for the Synacor Premium Product defined in Section (3)(a)(i) below, Synacor shall reduce its fees charged to Client as set forth below for Synacor Premium Products in direct proportion to any reduction in fees charged Synacor by Synacor Providers in the calendar month following such Synacor Provider reduction. [  *  ] Synacor shall use its best efforts to provide Client not less than sixty (60) days prior notice of any applicable increase in fees. In addition to other rights Client may have under this Agreement (including but not limited to Client’s right to eliminate or replace Synacor Content with Client Content at any time), Client may elect to require Synacor to use reasonable commercial efforts to provide reasonably equivalent Synacor Content at fees equal to or lower than those attributable to then-current Synacor Content, or to modify the Synacor Content mix, as necessary to result in a mutually agreeable wholesale price change.

(a)	 	Synacor Premium Products. The following Synacor Premium Products may be made available to Client for distribution to Users for the monthly fees described below:	

PRODUCT & PRICING — SCHEDULE A	 	3	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	(i)	 	Premium Family Bundle: Cost to Client: [*] for each Subscription*.The Premium Family Bundle shall include all of the following:	

 	•	 	Encyclopedia Britannica — Unlimited access to the updated 32-volume Encyclopedia Britannica, plus: Britannica’s Student & Concise encyclopedias, thousands of exclusive video & audio clips	
 		
 	•	 	Shockwave Gameblast — 100 popular premium online and downloadable games	
 		
 	•	 	American Greetings — Print and Send Greeting Cards and access to member’s only online greeting cards	
 		
 	•	 	Clever Island — Focuses on the educational skills that are most important to a child’s development, including language, numbers, spatial reasoning, logic, and critical thinking. Activities are designed by leading experts in education and child development to be engaging, powerful, and fun.	
 		
 	•	 	CNN QuickCast & NewsPass — up to 30 video news updates per day. Along with 12, 2 minute breaking news stories per day*. (Subject to approval by CNN)	
 		
 	•	 	Weather.com — local, regional and national video weather reports and special feature categories*. (Subject to approval by Weather.com)	
 		
 	•	 	Major League Baseball — Access to GameDay Audio (Listen to every game played that day), Condensed Video Games, Post Game Highlights, MLB Custom Cuts, MLB Radio	
 	 	 	
*Note:	 	[*]	

 	(ii)	 	Music Bundle: Cost to Client: [*] The Music Bundle shall include all of the following:	

 	•	 	MusicNet unlimited song download service which includes unlimited song downloads to a personal computer from over 700,000 tracks & commercial free radio	
 		
 	•	 	Sync Magazine From Zinio (Synacor may add additional Magazines)	
 	 	 	
Note:	 	Commencing with the execution of this Agreement and continuing for a period of six (6) months from the commercial launch of the Music Bundle, and provided such product offerings are competitive in feature, functionality, pricing, and music selection, the parties agree that except to the extent of Internet music subscription services Client may carry or offer pursuant to its contractual relationships with video programming providers, Synacor shall be Client’s exclusive provider of Internet music subscription services and music download stores sold online via the Client Branded Portal, other Client controlled websites, or by Client’s Customer Service/Sales Representatives.. This provision will not preclude client from enhancing the music services with additional music related content and merchandise such as, but not limited to, music video access and merchandise offerings.	

(b)	 	[*]	

PRODUCT & PRICING — SCHEDULE A	 	4	

 	 	
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

(c)	 	Additional Synacor Premium Products: Additional Synacor Premium Products may be added to this list from time to time by mutual agreement of the Parties through appropriate exhibits to be attached hereto.	
 		
(d)	 	Synacor shall exercise commercially reasonable efforts to enhance and/or improve the features and characteristics of the Client Branded Portal, but in any event shall release a significantly updated/improved Client Branded Portal once every twelve (12) months during the term of the Agreement. In addition, any new feature(s) offered by Synacor to third party clients shall be simultaneously extended to Client.	
4. Bandwidth and Hardware Fees. [*]
5. Client Sourced Services

a)	 	Integration Fees. Client shall pay to Synacor an Integration Fee in connection with any new third party premium content or services (each a “Client Sourced Service”), that is not Synacor-sourced and which Client requests Synacor to integrate into the Client Branded Portal or Synacor Premium Product(s) and that requires utilization of Unified Login. In the event that such integration requires less than [*] of software development time, such Integration Fee will be [*]. Subsequent to such integration, Client shall have the right to have Synacor manage such Client Sourced Service, so long as Client continues to make such Client Sourced Service available to Users by way of the Client Branded Portal or relevant Synacor Premium Product(s), at no further integration cost to Client, pursuant to the terms of the Agreement as if it were a Synacor Sourced Service. If such integration is reasonably anticipated by Synacor to require [*] of software development time, Synacor will prepare a detailed statement of work for such integration, including the fee payable, which shall be commercially reasonable and competitive standard industry rates for such software development or integration, to Synacor, which shall be subject to Client’s written approval prior to the commencement of work. One-half of such integration fees shall be payable upon commencement of development with the remaining one-half being due upon completion of development and acceptance testing.	
 		
b)	 	[*]	

PRODUCT & PRICING — SCHEDULE A	 	5	

 	 	
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

[*]

c)	 	Definition. All Client Sourced Services shall be considered Client Content for purposes of this Agreement.	
6. Revenue Sharing: Synacor and Client agree to share, [*] ancillary revenues received from content providers whose services and or features have been added to or made available via the Client Braded Portal pursuant to the mutual agreement of the parties. One such example (to the limited extent would be revenues received by Synacor for inclusion of the “White Pages” and/or “Yellow Pages” search content on the Client Branded Portal.
7. Professional Services. The following services are considered professional services:

a)	 	Integration beyond Synacor’s APIs;	
 		
b)	 	Portal customization beyond the look, feel, element placement and similar options embedded in the Synacor’s portal template as of the date of the Agreement;	
 		
c)	 	Onsite Training; and	
 		
d)	 	Other programming or customizations not specified in the Portal Product Plan. Synacor shall provide the Client a Statement of Work (SOW) and cost estimate for all Professional Services engagements. Any such SOW and cost estimate must be agreed to in writing prior to the initiation of an applicable Professional Services engagement.	
8. Travel Expenses. Client agrees to pay for all reasonable travel expenses approved by Client in advance and actually incurred by Synacor during the course of and in order to perform support or technical training services.

PRODUCT & PRICING — SCHEDULE A	 	6	

 	 	
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

9. Acceptance Process. Client may test and approve the Client Branded Portal prior to launching it to Users. Commencing upon the delivery to Client of the Client Branded Portal as set forth in the Synacor Specifications and continuing up to fifteen (15) calendar days thereafter (the “Test Period”), Client shall have the right and will use its best efforts to engage in testing, including but not limited to that designed to determine whether Client Branded Portal substantially meets both the Appearance Requirements and the Functionality Requirements. For purposes of clarification, the nature, extent, and/or type of such testing is not limited under this paragraph except to the extent that such testing shall be performed in accordance with the timeframes stated herein unless such testing when conducted and pursued to completion requires more time than that allotted herein, in which case such Test Period shall be extended to the limited extent necessary to complete the underlying testing. Within five (5) business days after the expiration of the Test Period, Client will provide Synacor with (a) written acceptance of the Client Branded Portal, or (b) written rejection, including a reasonably detailed explanation therefor (a “First Rejection Notice”), if the Client determines in good faith that the Client Branded Portal does not substantially meet the Appearance Requirements and/or the Functionality Requirements. In the event the Client does not deliver a First Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed accepted by Client. In the event that Client provides a First Rejection Notice, then Synacor will use its best efforts to correct the identified failures as soon as commercially reasonable and, in no event, later than fifteen (15) business days after receipt of such First Rejection Notice Synacor shall resubmit the Client Branded Portal to Client for further testing for a period of not more than fifteen (15) business days (the “Second Test Period”) by Client with respect to the specific failed criteria. Within five (5) business days after the expiration of the Second Test Period, Client will provide Synacor with either (i) written acceptance of the Client Branded Portal, or (ii) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection Notice have not been corrected, including a reasonably detailed explanation therefor (a “Second Rejection Notice”). In the event the Client does not deliver a Second Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed accepted by Client. In the event that Client provides a Second Rejection Notice, Client shall resubmit the Client Branded Portal to Synacor and Synacor will use its best efforts to correct the identified failures as soon as commercially reasonable and, in no event, later than fifteen (15) business days after receipt of such Second Rejection Notice, Synacor shall resubmit the Client Branded Portal to Client for final testing. Client shall conduct final testing for a period of not more than fifteen (15) business days (the “Final Test Period”) with respect to the specified failed criteria. Within five (5) business days after the expiration of the Final Test Period, Client will provide Synacor with (A) written acceptance of the Client Branded Portal, or (B) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection Notice or Second Rejection Notice have still not been corrected (a “Final Rejection Notice”). In the event the Client does not deliver a Final Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed accepted by Client. If Client provides a Final Rejection Notice and Client has not otherwise agree to pursue further development and/or testing of the Client Branded Portal, the Final Termination Notice shall constitute a notice of termination of the Agreement without further liability of either Party to the other, [*]

PRODUCT & PRICING — SCHEDULE A	 	7	

 	 	
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

SCHEDULE B
TO
SYNACOR MASTER SERVICE AGREEMENT
SERVICE LEVEL AGREEMENT
          This Schedule B forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30th, 2004, by and between Synacor, Inc. and Charter Communications Holding Company, LLC (“Client”), including any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule B and not defined herein shall have the meanings ascribed to such terms in the Agreement.
I. General
Synacor shall provide the Services in accordance with the service levels set forth in this Schedule B -Service Level Agreement (“SLA”), seven (7) days a week, twenty-four (24) hours a day, three hundred sixty-five (365) days a year, consisting generally of monitoring, notification, repair of service outages and maintenance.
Synacor and Client, at Client’s option, shall evaluate Synacor’s performance under this SLA on a monthly basis, beginning thirty (30) days from the date of commercial launch of the Services.
Client should direct all requests for support to Synacor’s Client Care Group, which shall be available and shall provide support twenty-four (24) hours per day, seven (7) days per week. To reach Synacor’s Client Care by phone dial 1-877-240-2435 or by e-mail at charter@synacor.com.
II . Monitoring
In an effort to detect potential problems before they impact the availability and performance of the System or the Services, Synacor shall monitor the status of its systems using both automated and manual tools employed in its 24 by 7 system monitoring and administration. Such monitoring shall be performed to assess and include, but not be limited to;

 	(i)	 	Service availability;	
 		
 	(ii)	 	Database connectivity and performance;	
 		
 	(iii)	 	System load;	
 		
 	(iv)	 	Network availability and performance; and	
 		
 	(v)	 	System usage.	
Synacor will work and cooperate with Client by, among other things, accommodating reasonable service monitoring requests from the Client’s Network Operating Center (the “NOC”), including web service/maintenance/adjustments and application monitoring.
III . Reporting
Synacor will maintain and provide Client access to the following standard reporting tools, which will generate and deliver reports detailing accurate information through a web-based interface pertaining to the respective tool’s data category:
               SUBSCRIBER DATA

 	1.	 	Number of Users	
 		
 	2.	 	User Cancellations	
               MONTHLY USAGE DATA

 	1.	 	Unique Users accessing Synacor Sourced Services	
 		
 	2.	 	Unique Users accessing Client Branded Portal	
 		
 	3.	 	Hits/redirects to each Synacor Provider	
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	1	

 

Synacor will provide Client reports detailing (i) the number, cause, and resolution status of Synacor system outages and (ii) the performance of Synacor with respect to its system availability obligations, each of which shall be sent to Client in an electronic format within seven (7) days of Client’s request therefor (such request not occurring more than once per month) and otherwise no more than fifteen (15) days after the expiration of each calendar quarter. Client may require reasonable changes to the formatting or structure/layout of the report from time to time (such changes to be implemented at Client’s cost).
IV. System Availability
“System Availability” is defined as the operable state, service functionality, and availability to Client and its Users of Synacor’s entire service platform, including, but not limited to, the Client Branded Portal, the method in which billing data is derived and transmitted to Client, and any software application running on the servers that supports the Client. Synacor shall maintain Service Availability of 99.95% as measured during the course of a calendar month, excluding downtime attributable to scheduled maintenance. System Availability does not take into account the performance or inability of Users to access Synacor’s systems as a result of such Users’ Internet/network connection, nor does it take into effect Synacor Providers’ ability to update or deliver content. Due to the architectural design of the Internet, occasions may arise that prohibit access to Synacor’s systems based on (i) a User’s Internet Service Provider’s (“ISP”) fault/failure or (ii) impediments affecting the path (route) traveled in accessing Synacor’s systems; System Availability does not take such instances into consideration, except when the failure is attributable to the network hardware or software under Synacor’s direct control.
Client shall have the right to make its own measurements of the Service Availability in order to ascertain and report Service Availability deficiencies. In the event of discrepancies between Synacor’s testing results and those of Client, the Parties shall establish a workgroup of individuals from both Parties to ascertain the source of/reason for the discrepancy or difference, to identify the correct measurements, and to resolve in good faith any issues pertaining to the testing methods. If the parties are unable to resolve the discrepancy, the Client’s measurements will prevail.
Service Assurance — In the event of any outage or Services impairment, Synacor must provide Client with a written assessment/“reason for outage” within twenty-four (24) business hours of the occurrence of such event. In the event of any outage or service impairment, Synacor must provide Client a “post mortem” assessment of the reasons/causes of such outage or impairment and the steps taken to eliminate the impairment and prevent its reoccurrence by noon (12 p.m. CST) on the fifth (5 th ) business day following the occurrence of such event. Both such assessments shall include, but not be limited to, outage time/impairment duration, sequence of events, root cause, escalation path, issues identified, remedies to issues, and action plan. The “post mortem” outage/impairment assessment shall be subject to Client’s acceptance or rejection (and grounds therefor) within five (5) business days of receipt. Synacor must submit final “post mortem” assessment in the event Client rejects the initial assessment within ten (10) days of such rejection.
      System Availability SLA Credits :
The SLA credits set forth below will be applied automatically by Synacor and shall be required for each instance of Synacor’s failure to meet the required System Availability. In the event that Synacor fails to meet the provisions of this SLA cumulatively during a one (1) month period during the Term, then the following credits will apply against the aggregate Fees during the month in which such failure occurs:

 	a.	 	Portal Unavailability: Defined as any instance in which the Client Branded Portal is unavailable to Client’s Users or where Client or User makes an HTTP request and Synacor’s System does not respond. For the avoidance of doubt, the failure of Unified Login or third party Content due to the fault of the third party Content providers is not included in this SLA.	
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	2	

 

 	i.	 	Cumulative Mean Time to Repair:	

 	[*]	 	 	

 	b.	 	[*]	
Performance
The Performance (“Performance”) of the Client Branded Portal is defined as the System response time for each Portal page as agreed upon by the Parties prior to the launch of the pertinent Portal page (each, a “Response Time”), measured via HTTP requests, or similar requests via other protocol used on the Client Branded Portal by Client or Users, performed by Client servers directly from any Client IP backbone location. Performance of Response Times will be tested against a steady-state Portal page of similar type and size to the pertinent Portal page, which steady-state Portal page will reside on the same Host (as defined in the Synacor Specifications) as does the Client Branded Portal. Synacor’s responsibility for Performance includes, but is not limited to, maintenance of web server response, Authentication performance, routers, switches, Internet transit or Peering connections (Network hardware, cross-connects, or circuits that are Synacor’s responsibility), or any other device in Synacor’s direct control, at no less than [*]% peak utilization. If Synacor is unable to perform in accordance with any pertinent Response Time, then Synacor will be responsible for the following remedy:
Synacor will correct the identified performance failures as soon as is possible using and pursuing to completion commercially reasonable efforts, and, in no event, later than fifteen (15) calendar days after receipt of written notice from Client describing in reasonable detail the performance failure of the Client Branded Portal, Synacor shall resubmit the Performance changes, in detail, to Client for testing. Client shall conduct testing to verify that the Synacor corrective measures are successful during a testing period (“Test Period”) of no more than five (5) business days in length with respect to the specified failed criteria. Within five (5) business days after the expiration of the Test Period, Client will provide Synacor with a written response accepting the Performance or rejecting the Performance. Synacor shall have an additional fifteen (15) calendar days from the date Client submits such response to correct the identified Performance failures. Client shall conduct final Performance correction testing for a period of not more than five (5) business days (the “Final Test Period”) after the expiration of such fifteen (15) day period with respect to the specified failed criteria. Within five (5) business days after the expiration of the Final Test Period, Client will provide Synacor with (A) written response accepting the Performance, or (B) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection Notice have still not been corrected (a “Final Rejection Notice”). In the event the Client does not deliver a Final Rejection Notice as provided herein, the Performance shall be conclusively deemed accepted by the Client. If Client provides a Final Rejection Notice and the President of Synacor and the responsible Officer of Client do not otherwise agree to pursue further Performance testing/remedies of the System, the Final Termination Notice shall constitute a notice of termination of the Agreement without further liability of either Party.
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	3	

 	 	
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

V. Data Integrity
Synacor’s Services platform shall meet or exceed a minimum of [*]% data integrity, including without limitation User data required for login, as measured over each calendar month of the term of the Agreement. In addition, Synacor will maintain the highest level of data security and confidentiality as is commercially reasonable in the industry.
System Intrusion or Denial of Service “DOS” Attack In the event of (i) a System intrusion by a “cracker,” “hacker”, or any other third party, or (ii) DOS attacks, such intrusion or attacks shall be deemed a Priority One event and the notification protocol applicable to a Priority One event will be followed. Synacor must notify Client of such problem and implement a solution therefor. Notification by Synacor will occur immediately upon identification of intrusion. If extensive damage occurs, including, but not limited to, damage to Client data, user data, Systems, due to the failure of Synacor to follow the Security Policy set forth as Schedule D to the Agreement, then this SLA will apply.
VI. Scheduled Maintenance Windows
Synacor has reserved a two (2)-hour window from 3:00 a.m., EST, to 5:00 a.m., EST, every Sunday evening through Monday morning for weekly maintenance, should the need for such maintenance arise (“Scheduled Maintenance”). In the event that additional maintenance will be needed outside of this Scheduled Maintenance window, Synacor will provide Client no less than three (3) business days prior written notice of the time during which Synacor intends to perform such additional maintenance via Client’s change control organization/process (“Change Management”). Such maintenance that occurs outside of the Scheduled Maintenance window and grace period described above, for which three (3) days advance written notice has been given that involves any Service outage or impairment, shall count against Service Availability at one half (1/2) the credit rate set forth herein.
If it is determined during the Scheduled Maintenance window that the Scheduled Maintenance will run over the two (2) hour window, Client will be notified immediately and receive updates every sixty (60) minutes or less until the maintenance is complete. During these Scheduled Maintenance periods, the System and Services may be unavailable to Client and Users. If the Scheduled Maintenance period exceeds the two (2) hour window and an additional one (1) hour grace period, for a total of three (3) hours in any given week, or a cumulative of eight (8) hours in any given month in total duration, then the System Availability SLA will apply. Scheduled Maintenance windows that do not exceed set limits (i.e., three (3) hours in any given week, or a cumulative of eight (8) hours in any given calendar month) are not counted against System Availability percentages.
VII. Emergency Maintenance Notification
In the event that emergency maintenance (defined as any maintenance that exists that is not within the Scheduled Maintenance window described above, or as to which three (3) business days’ prior notification is not given) is required, during which time the System and Services will be unavailable to Client and Users, Synacor will notify the Client’s NOC as promptly as practicable and, if possible, prior to the repair window, so as not to prolong or negatively effect the Services, the system, or otherwise Service Availability. Progress updates shall be provided to the Client’s NOC every sixty (60) minutes or less until the maintenance is complete. Emergency maintenance windows are counted against System Availability percentages.
The contact number to be used for verbal communications with the Client’s NOC is 1-866-248-7662 (1-866-CHTRNOC)
VIII. Incident Management
Technical Support. Synacor will provide Client Tier 2 e-mail and the appropriate of telephone, e-mail, and/or other support to Client’s designated escalation specialists. These specialists will be trained by
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	4	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

Synacor to offer support to Client’s First-Level Support staff. Synacor shall make its support center standard hours available twenty-four (24) hours per day, three hundred, sixty-five (365) days per year throughout the Term.
          (a) Escalation and Tracking Process. Synacor will provide and track trouble-call escalations from Client’s Technical Support Group. Synacor Customer Service will utilize two (2) escalation methods from Client:

 	(i)	 	E-mail: Client will e-mail Synacor its request for support: charter@synacor.com	

 	a.	 	A Synacor customer agent will respond to the question with the answer or a responsive reply or will issue a tracking number to each matter that is escalated (as set forth below).	
 		
 	b.	 	The Synacor customer agent will then notify the Client escalation group with the appropriate timeline for any escalation to be resolved.	

 	(ii)	 	Phone: In the event that a support issue requires Priority 1 treatment ( e.g. , Priority 1, Portal Unavailability, or Synacor/Client Unavailability), or is otherwise better addressed by a telephone call rather than e-mail, Client may by-pass Escalation Level 1 (as defined below) support and apply Escalation Level 2 support and initiate a call directly to a Synacor support specialist. Such calls will be placed solely from the Client escalation group person(s) who is (/are) responsible for initiating Level 2 support requests. Following each such call, a Client escalation Level 2 support person will send an e-mail confirming all the technical details regarding the issue. Synacor will follow the same process of tracking such issues via the e-mail tracking system.	
          (b) The escalation process starts with the troubleshooting, diagnosis, and resolution processes. As Client’s service team receives alerts they will be prioritized by Synacor based on the gravity/urgency of the underlying problem and assigned to a Synacor support technician. The Synacor support technician will diagnose and fix the problem as soon as possible. Should the problem be too severe for simple solution by Client, the problem incident shall be escalated to the Synacor development team as soon as is possible.

 	(i)	 	Escalation Process Example	

 	a.	 	Registered User has a question about Product	
 		
 	b.	 	User calls the Client Technical Support number or e-mails Client	
 		
 	c.	 	User reports an issue believed to stem from use of Portal	
 		
 	d.	 	Client Support agent is unable to provide a resolution and contacts Synacor Customer Service via e-mail or telephone	
 		
 	e.	 	Client Support agent will send e-mail to Synacor with all the details of the issue following a telephone call	
 		
 	f.	 	Client Support agent collects the User’s e-mail address and telephone number, notes the nature of the inquiry and submits the relevant information to Synacor Customer Service (using the Escalation Process).	
 		
 	g.	 	Synacor receives the information from Client, and proceeds with the investigation applying the escalation process	
 		
 	h.	 	Synacor supplies Client with a solution to the problem and resolves the issue as appropriate	

 	(ii)	 	Synacor Escalation Response Times	
 	 	 	
Escalation Levels	 	Escalation Response Time	
Level 1 — Email Technical Support Agent	 	Synacor Technical Support Agents available 24 hours per day, 7 days per week.	
Level 2 — Voice Support Specialist	 	If Level 1 issue is not answered within 4 hours from Level 1, Synacor automatic escalation to Level 2.	
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	5	

 

 	 	 	
Level 3
Support Management	 	If Level 2 issue is not answered within 4 hours from Level 2, Synacor automatic escalation to Level 3.	
Level 4
Account Manager	 	If Level 3 issue not answered within 1 hour from Level 3, automatic Synacor escalation to Level 4.	
Level 5
Product Management	 	If Level 4 issue not answered within 30 minutes from Level 4, Synacor automatic escalation to Level 5.	
Level 6
VP Engineering	 	If Level 5 issue not answered within 30 minutes from Level 5, Synacor automatic escalation to Level 6.	
Level 7
CEO	 	If Level 6 issue not answered within 30 minutes from Level 6, Synacor automatic escalation to Level 7.	
Synacor will maintain a table with contact information for the Level 1 — Level 7 contacts and will be responsible for keeping it current. The contacts and response times will be distributed to Client and/or provided in Client’s administration information section located at admin.Synacor.com.

 	a.	 	Priority 1 or Portal Unavailability Issues:	

 	•	 	Synacor support personnel will escalate these issues to no less than Level 6 immediately upon contact by Client support personnel.	

 	b.	 	Service Level	

 	•	 	Customer service — general product information related to Product	
 		
 	•	 	Hours of operations: 24 x 7, 365 days per year	
 		
 	•	 	Service language: English	
 		
 	•	 	Issue reporting methods: electronic mail in English	
 		
 	•	 	Technical support — assistance with technical issues related to Product	
          (c) Incident Management
Synacor and the Client will exercise reasonable discretion and good faith to classify reported problems based upon the specified categories below. In case of disagreement about how to classify a specific problem, such problem shall be deemed to be classified at the more severe priority level recommended by one of the Parties.
The following priority allocations will apply:

Priority 1 — These cases involve a Synacor system condition where, with respect to authentication, [*] or more of Users utilizing Unified Login are affected or likely to be affected in their ability to access services as a result of an outage or, with respect to access to the Client Branded Portal, [*] or more Users are affected or likely to be affected in their ability to access the Client Branded Portal, regardless of the status of Unified Login.
Time Frame — Response to Client within fifteen (15) minutes of identification or receipt of notification.
Follow-up — Provide updates to Client every sixty (60) minutes until the problem is resolved.

Priority 2 — These cases involve a Synacor system condition where less than [*] of Users are affected or likely to be affected in their ability to access services as a result of partial functionality.

SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	6	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

Time Frame — Response to Client within sixty (60) minutes of identification or receipt of notification.
Follow-up — Provide updates to Client every sixty (60) minutes until problem is resolved.

Priority 3 — These cases involve problems other than those meeting the specifications of Priority 1 or Priority 2.
Time Frame — Response to Client within twenty-four (24) hours of identification or receipt of notification.
Follow-up — Provide updates to Client as soon as practical, but no less than weekly. These problems shall be resolved within sixty (60) days, unless otherwise agreed by parties, including the possibility of an agreement not take any further action to resolve.
          Customer Info Required for Synacor Support:

 	(i)	 	User ID	
 		
 	(ii)	 	Domain Name	
 		
 	(iii)	 	Password (if possible)	
 		
 	(iv)	 	E-mail Address	
          Escalation Information:

 	(i)	 	Premium Service Vendor	
 		
 	(ii)	 	Date/Time Incident Occurred	
 		
 	(iii)	 	PC /Macintosh information	
 		
 	(iv)	 	Operating System	
 		
 	(v)	 	Browser type / version	
 		
 	(vi)	 	Internet Connection Dial / Broadband	
 		
 	(vii)	 	Detailed Description of Escalation	
FAQ Documentation. Synacor will build a FAQ (list of frequently asked questions) prior to the Client Branded Portal launch and shall update such FAQ as frequently as necessary for accurate, up-to-date coverage of issues during the term of the Agreement, which pertain to the Client Branded Portal that Client can review and modify at Client’s choosing. The FAQ page will contain both Client Branded Portal and Content questions that consumers have asked in the past.
IX. Product Revision Management
Synacor shall notify Client in writing at least five (5) business days in advance of any minor product enhancements that do not substantially affect the Client Branded Portal.
Should a change be required in the hosting environment (whether hardware, software or network) Synacor is responsible for opening and shall submit a change request at least forty-eight (48) hours in advance of initiating such change and must receive approval from the Client’s NOC twenty-four (24) hours in advance of initiating any such change.
For major modifications to the Client Branded Portal, Client and Synacor personnel must first agree (subject to the respective reasonable discretion of both) on the appropriate launch date therefor, which date will be no less than ten (10) and no more than thirty (30) days after Client’s acceptance of such major modification.
X. Disaster Recovery
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	7	

 

The following disaster recovery plan is specific to Client and must be implemented/undertaken by Synacor as described herein.
Overview:
Synacor must back up all data, software, and configurations every twenty-four (24) hours to an offsite location at least one hundred (100) miles from Synacor’s primary data center/the location at which the Disaster (defined below) is expected to occur, is occurring or has occurred such that should a Disaster occur, such data, software, and configurations can be installed on hardware at a new data center. The new data center will initially be a third-party managed hosting provider.
Possible Disaster Recovery Scenarios
Synacor’s Disaster Recovery Plan shall take into account the partial or full destruction of Synacor’s data center. For purposes of the Agreement, a “Disaster” shall be any event in which there is full or partial destruction of Synacor’s data center, underlying building or other significant facilities affecting Syncacor’s data center ( e.g., events caused by or resulting from any variety of destructive events including, but not limited to, fire, earthquake, the unavailability of the Synacor’s building, data center, or otherwise location in which data is otherwise located or dependent or for any other reason).
The building housing Synacor’s data center is also the primary location where many of the Tier 1 providers bring their networks into Buffalo, New York. If an adverse event giving rise to the likelihood of a Disaster that might or does impact/affect such building in whole or in part, Synacor shall activate the disaster recovery plan.
Recovery Time Performance Obligations

 	(1)	 	Within four (4) hours of the occurrence of a Disaster:	

 	A.	 	Synacor shall bring online/activate a minimal cluster of webservers and application servers will be at the disaster recovery location	
 		
 	B.	 	Synacor shall also bring in/activate (i) a non-configurable portal site with some content and (ii) the Charter Branded Portal and Charter-branded pages will be brought online at the disaster recovery location. Synacor shall take all action/steps necessary to direct websites to the new location. Charter shall be given that access necessary to perform and have the option of modifying DNS to achieve such re-direction, provided that Synacor shall perform such re-direction in the event Charter does not elect to do so within this timeframe.	
 		
 	C.	 	Both Synacor and Client shall set their respective Nameservice TTL sufficiently low to minimize propagation time.	

 	(2)	 	Within ninety-six (96) hours of the occurrence of a Disaster:	

 	A.	 	Synacor shall construct a cluster of servers in order to mimic the original configuration	
 		
 	B.	 	Synacor shall copy all data to and secure such at the disaster recovery location	
 		
 	C.	 	Synacor shall install all software such that it is operational/“up and running” at the disaster recovery location	
 		
 	D.	 	Synacor shall ensure that the Services are operating in accordance with the parameters required under this Agreement, if possible.	
           Roles and Responsibilities
1. Synacor will be responsible for ensuring and shall protect the integrity of the daily data backups, as well as ensuring that the disaster contingency site is available, capable of handling data and system relocation and re-configuration, and otherwise kept up-to-date. Such measures will include:

 	•	 	Placing production-ready database copies on a server at the disaster recovery site, at least once a day	
 		
 	•	 	Synchronizing code to the disaster recovery site at the same time it is launched on live servers	
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	8	

 

 	•	 	Updating the Charter static page at the disaster recovery site with up-to-date content no less than once an hour	
2. Synacor will test the offsite cluster no less than once every fourteen (14) days in order to verify that it is ready to accept connections.
3. Synacor will test the Disaster Recovery Plan no less than once annually to insure capability to respond within the above timeframes in the event of a Disaster at the Synacor data center. The Disaster Recovery test can be conducted at a location determined by Synacor and could be within one hundred (100) miles from Synacor’s primary Data Center. The intention of the test will be to verify Synacor’s ability to implement the Disaster Recovery process, but the Disaster Recovery test will likely utilize up to three servers and therefore will not be set up to appropriately measure load or response times.
4. Synacor will be responsible for setting up all servers and networks and restoring services at the Disaster recovery location. Synacor will provide all necessary manpower to return services as defined herein.
5. Synacor will be responsible for the DNS modifications under Synacor’s control; however, Charter also has access and authority to make its own DNS modifications in the event it elects to do so, provided that doing so would reduce downtime, with no harmful effect to the Disaster recovery process.
XI. Software Updates
Synacor agrees to keep critical software updated to a version supported by the vendor, including operating system software and application software such as PHP and MySQL.
XI. Application and Design Review
Synacor and Client will meet at least once annually to review the application and design overview for the Charter Branded Portal, The initial meeting will take place within the first one hundred twenty (120) days of commercial launch of the Charter Branded Portal.
 	 	 	 	 	
SERVICE LEVEL AGREEMENT — SCHEDULE B	 	 	 	9	

 

SCHEDULE C
TO
SYNACOR MASTER SERVICE AGREEMENT
SYNACOR SPECIFICATIONS
     This Schedule C forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30 th ., 2004, by and between Synacor, Inc. and Charter Communications Holding Company, LLC, including any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule C and not defined herein shall have the meanings ascribed to such terms in the Agreement. This Schedule C outlines Synacor’s technology specifications, including the customization elements relating to the graphical presentation, components, and other design elements of Portelus, Synacor’s Portal, and the Client Branded Portal. In addition to the options presented here, custom development is possible.
INTERFACE
The standard Portelus implementation integrates basic and premium content into one user experience. The user Interface will be branded to Client, below is an example.
Figure 1: Example of a Charter Branded Portal

 	 	 	
Synacor Specifications — Schedule C	 	1	

 

Synacor will participate in the development of all user interface implementations for the initial launch. The interior layout of the portal pages and each hosted premium service page shall be maintained by Synacor, and subject to Client’s reasonable discretion, Synacor may change such pages in order to add more features to the product.
Localization
At Client’s option, Synacor will work with the Client technology team to provide localized components. Such local component will be in such a location on the Charter Branded Portal page and have that capability necessary to show configurable content based on a user data field such as region identifier, which Client can provide to Synacor when the user is created.
Colorset
Much of the look and feel of the Charter Branded Portal is affected by the colorset, which controls the colors and basic shapes used in the following areas of the portal:

 	•	 	The Welcome Bar (background and font)	
 		
 	•	 	The Channel Bar (button colors, highlights, background, and font)	
 		
 	•	 	The Search bar (background and images)	
 		
 	•	 	The Dynamic Content Component (background and controls)	
 		
 	•	 	The Customization dropdown and Wizard (background and graphics)	
 		
 	•	 	Component headers (background, shading, and corner shapes)	
The colorset shall not modify the design of secondary pages (such as the Sports page or premium services) beyond the obvious changes in the header and framing. As part of its obligations under the Agreement, Synacor will implement the colorset of Client’s choosing for the areas described above.
Synacor will provide Client with the right to implement design change, including colorset modifications, header and footer changes and design consultation, at no charge once each year. Additional design changes (those desired or requested less than twelve [12] months after the last design change) will be available to Client as an additional professional service at a rate to be agreed upon by the parties.
Header and Footer
The header and footer pair shall control the display of the page above and below the internal content area. Client shall have the right to customize such header and footer pair, and Synacor shall make such header and footer pair accessible for real-time editing and content scheduling by Client through Synacor’s web-based content publishing tools, which will enable Client chosen personnel to create or publish content on to the Charter Branded Portal, including the header and footer sections. (See below Content Publishing.) For example, Client can schedule a banner ad in the header to coincide with holidays or promotions.
Such customization capability shall include simple tasks such as adding a logo, as well as more complicated functions such as adding links, scripting, and design elements. The header typically contains a logo and other branding, while the footer usually has a copyright statement and links to site-related content (such as a privacy policy). There shall not be any maximum or minimum height for the header or footer areas; however, Synacor recommends that much of the content be displayed above the fold, such that the header area remains under 100 pixels high.
Synacor will work with Client to develop channel navigation to Client’s corporate links within the header that resembles the dropdown menu located at the Charter.com web site. Synacor will also include links to Charter.com/security according to Client’s specifications.
The header (see Figure 2) shall be bounded by thin lines, which are part of the portal template’s colorset. In the Figure 1 example, these lines are blue. The width of the header must be exactly 764 pixels, which is the size of the bounding table cell. By default, the HTML is shown on top of a white background. To use a different color background, it is necessary to create a table with width=764, cellpadding=0 and cellspacing=0.

Synacor Specifications — Schedule C	 	2	

 

Figure 2: The Header
The footer, like the header, shall be bounded by thin lines. It is designed to hold and shall remain capable of holding text content, although other HTML is possible. Figure 3 shows a standard footer.

Figure 3: The Footer
The Welcome Bar
The Welcome Bar (Figure 4) shall have the capability of containing a “Welcome First Name” message, or a link, on the left-hand side of the screen. The right-hand side of the Welcome Bar shall be capable of being be configured to hold a number of links to pages hosted by Synacor (such as Support or FAQ) or to pages hosted by Client. At this time, additional custom content on the right-hand side of the Welcome Bar is not possible, but rather it currently only capable of supporting a list of links. The background color and text color (dark blue and white in the Figure 4 example) for the Welcome Bar shall be adjustable/defined by the colorset.
Synacor will provide an editable HTML area on the right side of the Welcome Bar for Client to enter customized links.

Figure 4: The Welcome Bar
The Channel Bar
Figure 5 shows a sample Channel Bar. The Channel Bar will primarily be used to navigate between portal pages hosted by Synacor. The colors used in the Channel Bar vary by colorset choice.
The Channel Bar is customizable by Client to some extent. Channels can be removed or added, with the following caveats:

 	•	 	The Channel Bar is persistent throughout the site and is the central method of navigation. So, if there is removal of “News” from the channel bar and addition of a portal component with navigation to our news page, users of such customized portal will not have an obvious navigation back to the News page from any other page.	
 		
 	•	 	The width of the Channel Bar is fixed, so only a finite number of channels can be added. The total depends on the total size of the channel images. The limit is around 10 channels. The actual limiting factor is the size of the tabs, so this is dependent on the aggregate length of all the buttons. So, Synacor could probably fit more than 10 channels on the Channel Bar if the titles were 3 or 4 letters and less than 10 if the average title was 15 characters. Not all links are a channel: Synacor has the capability to add a component to the Charter Branded Portal called “Links” or “Tools” for the addition of services such as Yellow Pages, Maps, etc. Additionally, client-specific links can be added to the Welcome Bar or the Header. Synacor also has the capability of deleting any of the channels that become less important and just make them a link. For example, Synacor could delete Careers from the Channel Bar and make it simply a link from the portal.	

Figure 5: The Channel Bar
The Dynamic Content Component
The Dynamic Content Component (“DCC”) element of the Charter Branded Portal will be capable of displaying a series of content panes that rotate at regular intervals. The user is given controls to pause the rotation and skip

Synacor Specifications — Schedule C	 	3	

 

forward or backward. The controls include: pause, play, next slide, previous slide controls. Depending on the purpose of the deployment, the DCC shall be capable of cycling between News content chosen by Synacor’s content editor, between functional premium service panes, or between static HTML advertisements. The DCC can also function with only one static pane. The design of the DCC, including background color, shall be adjustable/defined by the colorset.

Figure 6. Three different examples of DCC panes.
HTML Components
The portal’s start page shall consist of a set of “components” decided by Charter personnel from all of the components Synacor has at that given time and any content components that Charter develops. In addition to these components, Client shall be able to place its own HTML on the start page. This HTML is pulled from Synacor’s database and will be easy to edit, schedule, and publish using Synacor’s on-line Provisioning Platform.
The HTML Components may either look and act exactly like regular components (bearing up/down/close buttons and appearing in the customization dropdowns) or they may be static HTML that are always shown on the page and cannot be removed by the user. Client will be given the ability to use these components for off-site linking, advertisements, important news, or other HTML content.
With respect to designing HTML Components, each column of the Charter Branded Portal will have a different width, and the allowed width of Client HTML will vary depending on the column as well as whether the HTML will be surrounded by the normal component borders and header. Please consult the following table for width guidelines:
 	 	 	 	 	 	 	
 	 	Left Column	 	Middle Column	 	Right Column	
Bounded Content	 	178 pixels	 	300 pixels	 	231 pixels	
Non-bounded	 	190 pixels	 	312 pixels	 	243 pixels	

Synacor Specifications — Schedule C	 	4	

 

LAYOUT
Each column of the Charter Branded Portal will contain a number of Synacor’s standard components. Synacor typically recommends component placement based on its experience with usage patterns for the specific purpose of the portal. Synacor will work with Client to design an appropriate component layout.
The components in the default view, as well as those available in the dropdowns, shall be easy to customize for each portal. In addition at Client’s request, Synacor can set up default values for component parameters. For example, the weather component can always default to a specific zip code, the GameBlast component can feature a specific game, and the news components can show entertainment news instead of sports news.
Each component, including standard Synacor components as well as the HTML Components described above shall at a minimum provide Client with the following customizable default options:

 	•	 	Default values — Example of defaults include such settings as; the zip codes for weather, default bookmarks, and premium service settings such as default Shockwave games.	
 		
 	•	 	User customization:	

 	•	 	Any Component that Client specifies can be removed by the user	
 		
 	•	 	Any Component that Client specifies can be set as non removable and therefore cannot be removed by the user	

 	•	 	Ability to restrict/limit availability/visibility of a component to:	

 	•	 	Logged-in users — enables Client to display content only to users that are logged into the Charter Branded Portal.	
 		
 	•	 	Logged-out users — enables Client to display content only to users that are logged into the Charter Branded Portal	
 		
 	•	 	Other specific identified classification or groups of Users ( e.g., Users in a specific geographic location, etc. )	
 		
 	•	 	All Users	
USER PERSONALIZATION
Synacor’s technology shall be capable of storing database registration and preferences based on the User’s individual username. Users will have the flexibility/capability to personalize their home page by adding or deleting content components to the left, middle or right hand columns. Users will be given the ability to select a dropdown from the Charter Branded Portal, use “move” arrows on the component or select a customization link to a layout wizard environment.
Users will be given the ability to personalize their portal experience in the following ways:

 	•	 	Use of the customization page enabling the User to see and select from all available components on one screen, as they might elect to create their own personalized portal. This customization page will also be set up to enable the User to edit the layout of the portal.	
 		
 	•	 	Ability to access easy-to-use dropdown menus for each column, which list all available components From which the User shall have the ability to add components to his personalized portal with just one click.	
 		
 	•	 	The ability to relocate/move up/down components on the homepage, as well as deleted with a simple click on the ‘x’.	
 		
 	•	 	The ability to personalize their weather and local movie listings by typing in their Zip Codes	
 		
 	•	 	The ability to edit the Photo News component to display only the three (3) categories of news the User most wants to read about ( e.g., health, entertainment, and more)	
CONTENT PUBLISHING
Client will have the flexibility/ability to publish content to the Charter Branded Portal within the specific content components that Client defines by communication to it Synacor account manager prior to or after the commercial launch of the Charter Branded Portal. The content publishing tools shall be available to Client through a web-based administrative layer and shall enable Client personnel to select from three (3) methods of publishing; (i) inserting an

Synacor Specifications — Schedule C	 	5	

 

image or text, (ii) inserting a link(s) or (iii) inserting raw html. Such web-based administrative layer shall be a password-protected web application that allows a Client to create and publish content. Client shall have the ability to publish content in real-time or to schedule such content publication in advance. For example, a “Halloween” header can be entered in September and scheduled to appear in October.
Synacor’s Content Publishing Tools shall enable:

 	•	 	Client to create, edit, delete & preview client-created content components throughout the Charter Branded Portal (see image below)	
 		
 	•	 	Client’s administrators to add Images to a Library and then use the images within a content component	
 		
 	•	 	Client to utilize three (3) distinct methods of publishing: (i) inserting an image or text, (ii) inserting a link(s) or (iii) inserting raw html (see image below)	
 		
 	•	 	Client to enable components to be displayed for assigned date range or be assigned as the default component.	

Figure 7: Selecting a Content Component

Synacor Specifications — Schedule C	 	6	

 

Figure 8: Edit, Delete or Preview a Content Component

Figure 9: Set # of Days Component should Display & Content Format: HTML or a preset Template
DATA CENTER & ARCHITECTURE
Synacor’s Data Center
Synacor’s primary Data Center shall be located within the Main Place Tower, Buffalo, NY

Synacor Specifications — Schedule C	 	7	

 

Architecture Overview
[*]
UNIFIED REGISTRATION & LOGIN
[*]

Synacor Specifications — Schedule C	 	 	8	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

[*]
CHARTER CONTEST
Synacor will work with Client to develop messaging within the current framework of the portal to promote a contest. Synacor will capture username data from such promotion and transfer it to Charter, or its designee, not more frequently than once a day.

Synacor Specifications — Schedule C	 	9	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

SCHEDULE D
TO
SYNACOR MASTER SERVICE AGREEMENT
Synacor System Security Policy (“Security”)
     This Schedule D forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30 th , 2004, by and between Synacor, Inc. and Charter Communications Holding Company, LLC (“Client”), including any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule D and not defined herein shall have the meanings ascribed to such terms in the Agreement.
Access Control
Synacor’s network topology is and shall remain devised to keep machines hosting sensitive data ( e.g., Client specific data) inaccessible from the Internet. In order to facilitate such security feature, Synacor’s underlying machines are and will remain connected only to a Private Network (defined as a network which has no public route to the Internet and cannot be accessed by any unauthorized third party), with no additional public routes thereto and incorporating a set of filtering rules, including but not limited to TCP/ IP, UDP, and ICMP (“Internet Traffic”), which shall discard any traffic from foreign networks or Internet Traffic going to an inappropriate Port.
Hosts (as defined herein) providing public services are and shall remain insulated from the Internet by being hosted on a Private Network, with access provided only through a Layer 4 switch (“Load Balancer”), which only forwards connections to designated Ports (Defined: A port number represents an endpoint or “channel” for network communications. Port numbers allow different applications on the same computer to utilize network resources without interfering with each other).
Access to Servers with Client Content, account Information, or other sensitive Client or User information (“Hosts”) residing on the Private Network is and shall remain limited solely to system administration tasks such as maintenance, monitoring and software/operating system upgrades. Synacor employees not directly involved with the maintenance of the Hosts shall not be given access to Client-related servers, and their access is and shall be limited to a separate Private Network designated for their use.
Those cases where less stringent access restrictions are necessary, such as the Hosts used by Synacor vendors to upload Content to use, are also kept and shall remain separate from the more sensitive Private Networks, where no outbound route from the Public Network to the Private Network is or will be available, in order to isolate unauthorized and/or third party access.
Split horizon DNS is and shall be used in order to protect the Hosts, as well as their layout, from all but authorized Synacor personnel.
Ownership of operating system objects, such as files, directories, and processes are and shall continue to be handled with the principle of least possible privilege —( e.g. read and write privileges are only granted where a demonstrable need exists). “Jails” are and shall be used to further isolate running processes from the rest of the file system whenever feasible. (Defined: A Jail is when a process is launched with diminished permissions [ i.e., access to a limited set of files and directories, in order to reduce the damage in the event of malicious execution of the process])
No file sharing protocols, such as NFS (Defined: NFS or Network File System, is a protocol which shall allow machines to mount a disk partition on a remote machine as if it were on a local hard drive) or SMB (Defined: SMB or Server Message Block, is a protocol for sharing files, printers, serial ports, and communications abstractions such as named pipes and mail slots between computers) are or will be used to access secured hosts from the Public Network; and secure transfers will only take place over encrypted mediums using SSH/SCP (as defined herein).

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	1	

 

Software Integrity
The installed base of software on each Host is and shall be kept as small as possible by Synacor. Software packages that have been deemed unnecessary or redundant, have been eliminated so as to minimize the potential number of access points on any given server. Only necessary software packages will be used by Synacor on a going-forward basis.
When an advisory for installed software is released from sources including CERT, ecurityFocus/BugTraq, and/or Synacor vendors, Synacor will immediately perform an evaluation of the relative risk. Highest priority ( e.g ., Priority 1) shall be given where a known exploit is published that affects services accessible to public networks. Depending on the nature of the advisory, a given service may be further restricted or shut down as Synacor prepares an update.
The time frames between an advisory, triage, testing and patching will differ, as is appropriate, based on the severity of the advisory. A critical patch will be applied by Synacor as soon as it has been staged and tested, and will receive the highest level of attention from Synacor staff; Client will be notified either while the patch is being evaluated, or as soon afterward as possible, when relevant to client’s or the User’s service. Non-critical patches will be applied by Synacor as part of the Maintenance Window; however, Synacor may not reveal all details (other than affected services) to the Client or User until after the patch has been applied to prevent potential security breaches.
With few exceptions, such as a fundamental design issue that necessitates changes that cannot be easily ported to installed versions, Synacor shall apply any updates related to security to the existing version of the software, even if the fix is released by an upstream source in new release. Such process shall be followed in order to avoid ancillary changes that may result in undesired behavior or even new security risks.
Regardless of source, Synacor shall test any updates independently for suitability before general deployment, in order to test both the correctness of the fix itself as well as its general functionality. Synacor shall expedite such review process in the case of a serious risk. Such review process shall involve the following steps: apply patch, build package, install on a test host, review by Synacor’s QA and System Administration personnel with an attempt to run any known exploit if one exists, install on a pilot machine, review again, and general deployment.
      Data Backups, backup handling:
Synacor shall perform all data backups once per night and only over a secured Private Network to a protected Host residing in a locked rack. Synacor shall keep all backups at an off-site facility as may be specified herein. The on-call Synacor Systems Administrator is and shall be alerted in the event of a backup failure in order to facilitate immediate resolution. Synacor shall store all tapes that have been used to contain sensitive data in a locked cabinet in the Synacor operations center, accessible only by Synacor personnel as described in the Physical Security section below, or in a locked office at Synacor’s corporate headquarters, accessible only to Synacor’s Systems staff and Controller. Ability to restore backups and source code shall be tested during initial deployment of the Client Branded Portal, and once every six (6) months thereafter.
      Failover Testing
In order to ensure that the redundancy of Synacor’s architecture is working, Synacor will perform failover testing on the components of the Client Branded Portal during initial deployment of the Client Branded Portal, and once every six (6) months thereafter, including but not limited to the following: web servers, database servers, and redundant network equipment. Additionally, Synacor shall test load balancers for failover once every three (3) months.
      Monitoring and Auditing
Synacor shall perform monitoring of hosts both through the use of a central server and agents running on the individual machines. Among other things, log files and running processes are and shall be periodically

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	2	

 

checked by Synacor against a checklist specifically given to that class of Host. Any deviation is immediately brought to the attention of the on-call Synacor personnel.
Such polling shall occur every five (5) minutes for each Host. Push updates from the clients shall also be polled on a five (5) minute interval with slight delay randomization. Processes shall be run on two (2) separate machines in order to ensure connectivity to the monitoring server and facilitate bringing such to the immediate attention of a Synacor administrator in case of failure. In addition, a test message shall be sent through the monitoring notification infrastructure every thirty (30) minutes in order to ensure that the monitoring infrastructure is operating to the designed specifications.
In addition to local logging, each Host shall be capable of and shall report a subset of system events to a central Host, which will be monitored by the Synacor staff for any suspicious activity. Logs shall archived for a period of one (1) year.
Physical Security
Synacor shall provide building security for each of its Service or data storage related buildings twenty-four (24) hours a day, seven (7) days a week, and such security shall include but not be limited to uniformed guard service, interior and exterior closed-circuit television surveillance or equivalent security measures.
Synacor’s collocation facility shall also include several forms of security and access control including but not limited to individual pass card access to the administration facility, with an additional secured door protecting the server room or an equivalent security method utilized to prevent physical access by unauthorized persons. Inside such facility, Synacor shall provide for an additional closed-circuit television system or equivalent system to provide the additional capability for off-site monitoring by authorized personnel.
Staffing of each Synacor-operated facility shall be maintained twenty-four (24) hours a day, seven (7) days a week, in order to ensure constant monitoring and points of contact for any non-secured personnel. Visitors will be required to be signed in by personnel and shall be provided with escort until such time as they vacate the respective building.
The only personnel to whom physical access to Synacor’s servers will be permitted by Synacor, shall be authorized Synacor employees, authorized paid contractors and authorized vendors, or other entities escorted by authorized Synacor staff members.
      Authentication and Authorization
Accounts on any Host are and will be created on a strictly discretionary basis, with access on most Hosts being restricted solely to Synacor administration staff. Superuser (root) access will be even more stringently restricted, with no one outside the current Synacor administration staff having access to the passwords.
When each account is created it will be assigned a one-time (Non-Dictionary) password, which will be transmitted to the intended user either through face-to-face communication or through a phone call in which the recipient’s identity is verifiable, in order to facilitate the user setting their own. All passwords, including those which are strictly temporary, shall be verified by Synacor with the ‘cracklib’ (Defined: a “cracklib” is a password library which can be used to prevent users from creating passwords which can easily be guessed by and intruder) module sufficiently strong enough to prevent security breach.
Once accounts are created, Synacor shall perform authentication solely via encrypted channels: either TLS (“Transport Layer Security”) or SSH (“Secure Shell”).

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	3	

 

Incident Management
Synacor has adopted and shall maintain the following Incident Response Plan. “Incidents” are defined as any malicious attacks designed to gain access to Synacor systems, including, but not limited to hacking attempts, other intrusions, and/or identifiable denial-of-service attacks that target equipment controlled by Synacor.
Security Incident Response Team (“SIRT”)
Synacor shall maintain a Security Incident Response Team (“SIRT”). The primary SIRT team shall have the following roles, functions, and responsibilities:
The SIRT Team Leader, currently the Systems Manager, shall be responsible for overseeing the team and conducting policy review at least once each year and an additionally after each Incident.
An Incident-specific SIRT Incident Lead will be selected from time to time if merited on the nature of the Incident, and will either be a Synacor System Administrator, Network Administrator, or the IT Manager. In any event, the Incident Lead shall be responsible for coordinating and reporting on the response.
The SIRT Communications Lead shall be responsible for managing communications between the response team, internal interested parties such as account managers and Synacor executives, and external clients as appropriate. The current SIRT Communications Leader is Synacor’s Senior Account Manager assigned to the Client.
Incident Response Plan
Notification
When an Incident is identified, either as the result of internal monitoring or other notification, the on-call Synacor Systems Administrator will immediately notify the Team Leader, who will assign an Incident Lead and notify the Communications Lead. The on-call Systems Administrator will follow an escalation procedure to notify technology managers if the Team Leader is unavailable. The time from initial identification to the start of the assessment stage shall not exceed thirty (30) minutes.
The following types of events or Incidents will trigger notification to the on-call Systems Administrator:

 	•	 	detected intrusions on servers	
 		
 	•	 	detected intrusions on network equipment	
 		
 	•	 	privilege exceptions	
 		
 	•	 	unexpected changes to system configurations	
The following events or Incidents will be relayed from external sources to the on-call Systems Administrator and will be treated as serious Incidents for immediate risk assessment:

 	•	 	provider network equipment intrusions	
 		
 	•	 	intrusions on third-party equipment adjacent to Synacor’s network	
The following types of events or Incidents will be logged and will be analyzed by a member of the Systems team on a regular basis, with any suspicious activity being escalated to the SIRT Team Lead for investigation.

 	•	 	logins and login errors	
 		
 	•	 	privileged executions	
 		
 	•	 	suspicious web log entries	
 		
 	•	 	SQL errors	
 		
 	•	 	Unexpected process halts	
 		
 	•	 	process restarts	

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	4	

 

Initial Assessment
The Incident Lead will determine the nature and extent of the Incident, and will communicate this to the rest of the team. The Incident Lead will also begin to record all activities in a manual log and isolate evidence pertaining to the incident.
Incident Communication
Depending on the severity, scope, and possible origin/originators of the Incident, not all details will be immediately disclosed to the Clients. The Communications Lead will initially notify Clients in accordance with the Service Level Agreements in place, concerning any service disruptions. When the Incident has been contained and all evidence secured, the Communications Lead will promptly provide detailed written reports about the incident and any remaining service restoration issues.
Damage Identification, Containment and Recovery
The Incident Lead will determine the following:

 	•	 	duration of attack	
 		
 	•	 	the effects of isolating/turning off compromised systems	
 		
 	•	 	the extent of compromised systems	
 		
 	•	 	the duration of the attack	
The Incident Lead will also attempt to determine:

 	•	 	the origin of the attack	
 		
 	•	 	the intent of the attack	
In general, attacks against redundant systems, including web servers, load balancers; database servers, or any other redundant network, hardware device, or software in Synacor’s direct control will be addressed by removal of the affected system from the production environment, if necessary under the circumstances.
In some cases, it may be necessary to disable service completely. This will be necessary in cases where the intrusion is either widespread across an entire set of redundant servers and is malicious in nature, or when the intrusion did significant damage to justify restoration from backups. In this case, the length of the outage will depend on the extent of the damage.
Once the Incident has been contained and service has been restored, the Incident Lead will perform the following tasks:

 	•	 	audit of affected systems and all other systems for malicious software, and document.	
 		
 	•	 	audit of system logs on affected systems	
 		
 	•	 	conduct comparison of filesystem on affected systems against the base	
 		
 	•	 	server installation to identify attack details	
 		
 	•	 	audit of in-memory processes on all systems	
The Incident Lead is responsible for archiving all evidence, including logs and possibly entire filesystems, for future civil or criminal investigation. This will involve burning disk contents or logfiles on to CD-R (eg. Writable CD ROM), saving the actual hard disks, or other archival methods depending on the Incident specifics. The evidence will be kept in a locked cabinet for a period of time to be determined based on the nature of the Incident and the media; CD-R disks, for example, will be kept for several years after the investigation has ended.
In the event that preserving data would compromise the recovery effort, the Team Lead will make the decision concerning the balance of evidence preservation vs. recovery time.
Post-Incident Monitoring
The Incident Lead, Team Leader and other parties will determine if additional processes are necessary to monitor for this type of attack in the future; if so, these processes will be specified and developed. In addition, manual audits may be required for a period of time after the incident as necessary to verify the integrity of the systems.
Civil/Criminal Investigation

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	5	

 

Synacor and Client together will make the determination about whether to involve law enforcement or pursue a civil suit based on a number of factors including:

 	•	 	the nature of the attack	
 		
 	•	 	the extent and quality of the forensic evidence	
 		
 	•	 	the identity and location of the perpetrator, if known	
 		
 	•	 	the likelihood of another such attack	
 		
 	•	 	the resource cost of the investigation	
 		
 	•	 	impact on user privacy	
 		
 	•	 	impact on company/client reputation	
 		
 	•	 	advice of counsel	

SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D	 	6	

 

Schedule E
TO THE MASTER SERVICES AGREEMENT
BETWEEN SYNACOR, INC. AND
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
ESCROW AGREEMENT

     This Schedule E forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30 th , 2004, by and between Synacor, Inc. and Charter Communications Holding Company, LLC (“Client”), including any schedules, attachments, or exhibits attached thereto (collectively, the “Master Agreement.”) Any capitalized terms used in this Schedule E and not defined herein shall have the meanings ascribed to such terms in the Agreement.

Deposit Account Number 0308129-00001
This agreement (“Agreement”) is effective August ___, 2004 among DSI Technology Escrow Services, Inc. (“DSI”), Synacor, Inc (“Depositor”) and Charter Communications Holding Company, LLC (“Preferred Beneficiary”), who collectively may be referred to in this Agreement as the parties (“Parties”), or individually as a party (“Party”).
A. Depositor and Preferred Beneficiary have entered into an agreement, regarding the delivery of services (the “Service”) utilizing proprietary technology of Depositor (referred to in this Agreement as the “License Agreement”).
B. Depositor desires to avoid disclosure of its proprietary technology except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to Preferred Beneficiary in the conduct of its business and, therefore, Preferred Beneficiary needs access to the proprietary technology under certain limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI to provide for the retention, administration and controlled access of the proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License Agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 — DEPOSITS
1.1 Obligation to Make Deposit . After execution of the Master Agreement and this Agreement by the parties and before January 31, 2005, Depositor shall deliver to DSI the proprietary technology and other materials (“Deposit Materials”) required to be deposited by the License Agreement or, if the License Agreement does not identify the materials to be deposited with DSI, then such materials will be identified on Exhibit A to this agreement. If Exhibit A is applicable, it is to be prepared and signed by Depositor and Preferred Beneficiary. DSI shall have no obligation to either party with respect to the preparation, accuracy, execution, signing, delivery or validity of Exhibit A.
1.2 Identification of Tangible Media . Prior to the delivery of the Deposit Materials to DSI, Depositor shall conspicuously label for identification each document, magnetic tape, disk, or other media

ESCROW AGREEMENT — SCHEDULE E	 	1	

 

upon which the Deposit Materials are written or stored. Additionally, Depositor shall complete Exhibit B to this Agreement by listing each such media by the item label description, the type of media and the quantity. Exhibit B shall be signed by Depositor and delivered to DSI with the Deposit Materials. Unless and until Depositor makes the initial deposit with DSI, DSI shall have no obligation with respect to this Agreement, except the obligation to notify the parties regarding the status of the account as required in Section 2.2 below.
1.3 Acceptance of Deposit . When DSI receives the Deposit Materials and Exhibit B, DSI will conduct a visual deposit inspection. At completion of the deposit inspection, if DSI determines that the labeling of the media matches the item descriptions and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy thereof to Depositor and Preferred Beneficiary. If DSI determines that the labeling does not match the item descriptions or quantity on Exhibit B, DSI will (a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and Preferred Beneficiary. DSI’s acceptance of the deposit occurs upon the signing of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary is Preferred Beneficiary’s notice that the Deposit Materials have been received and accepted by DSI. OTHER THAN DSI’S INSPECTION OF THE DEPOSIT MATERIALS, AS DESCRIBED ABOVE, DSI SHALL HAVE NO OBLIGATION REGARDING THE ACCURACY, COMPLETENESS, FUNCTIONALITY, PERFORMANCE OR NON-PERFORMANCE OF THE DEPOSIT MATERIALS.
1.4 Depositor’s Representations . During the term of this Agreement, Depositor represents as follows:

 	a.	 	Depositor lawfully possesses all of the Deposit Materials deposited with DSI;	
 		
 	b.	 	With respect to all of the Deposit Materials and any materials provided solely for verification, pursuant to Section 1.5 of the Agreement (“Test Materials”) Depositor has the right and authority to grant to DSI and Preferred Beneficiary the rights as provided in this Agreement, provided further that DSI’s or its independent contractor’s use of any Deposit Materials or Test Materials, pursuant to Section 1.5 of this Agreement, is lawful and does not violate the rights of any third parties;	
 		
 	c.	 	As of the effective date of this Agreement, the Deposit Materials are not the subject of any liens or encumbrances, however, any liens or encumbrances made after the execution of this Agreement will not prohibit, limit, or alter the rights and obligations of DSI under this Agreement;	
 		
 	d.	 	The Deposit Materials consist of the proprietary technology and other materials identified either in the License Agreement, Exhibit A, or Exhibit B, as the case may be; and	
 		
 	e.	 	The Deposit Materials are readable and useable in their current form or, if any portion of the Deposit Materials is encrypted, the decryption tools and decryption keys have also been deposited.	
1.5 Available Verification Services . Upon receipt of a written request from Preferred Beneficiary, DSI and Preferred Beneficiary may enter into a separate proposal agreement (“Statement of Work”) pursuant to which DSI will agree, upon certain terms and conditions, to inspect the Deposit Materials consistent with one or several of the levels of verification described in the attached Technical Verification Options as selected by Preferred Beneficiary. Depositor consents to DSI’s performance of

ESCROW AGREEMENT — SCHEDULE E	 	2	

 

any level(s) of verification described in the attached Technical Verification Options. Depositor shall reasonably cooperate with DSI by providing its facilities, computer software systems, and technical and support personnel for verification whenever reasonably necessary. If a verification is elected after the Deposit Materials have been delivered to DSI, then only DSI, or at DSI’s election, an independent contractor or company selected by DSI may perform the verification.
1.6 Deposit Updates . Unless otherwise provided by the License Agreement but no earlier than January 31, 2005, Depositor shall update the Deposit Materials within thirty (30) days of the launch of each release of a new version of the product, which is subject to the License Agreement. Such updates will be added to the existing deposit. All deposit updates shall be listed on a new Exhibit B and Depositor shall sign the new Exhibit B. Each Exhibit B will be held and maintained separately within the escrow account. An independent record will be created which will document the activity for each Exhibit B. Any deposit updates shall be held in accordance with Sections 1.2 through 1.4 above. All references in this Agreement to the Deposit Materials shall include the initial Deposit Materials and any updates.
1.7 Removal of Deposit Materials . The Deposit Materials may be removed and/or exchanged only on written instructions signed by Depositor and Preferred Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 — CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality . DSI shall have the obligation to reasonably protect the confidentiality of the Deposit Materials. Except as provided in this Agreement or any subsequent agreement between the Parties, including without limitation Section 1.5, DSI shall not disclose, transfer, make available or use the Deposit Materials. DSI’s independent contractors are subject to appropriate confidentiality restrictions with DSI. DSI shall not disclose the terms of this Agreement to any third party. If DSI receives a subpoena or any other order from a court or other judicial tribunal pertaining to the disclosure or release of the Deposit Materials, DSI will immediately notify the parties to this Agreement unless prohibited by law. It shall be the responsibility of Depositor and/or Preferred Beneficiary to challenge any such order; provided, however, that DSI does not waive its rights to present its position with respect to any such order. DSI will not be required to disobey any order from a court or other judicial tribunal, including, but not limited to, notices delivered pursuant to Section 7.6 below.
2.2 Status Reports . DSI shall provide to Depositor and Preferred Beneficiary a report profiling the account history semiannually.
ARTICLE 3 — RIGHT TO MAKE COPIES
3.1 Right to Make Copies . DSI shall have the right to make copies of the Deposit Materials as reasonably necessary to perform this Agreement. DSI shall copy all copyright, nondisclosure, and other proprietary notices and titles contained on the Deposit Materials onto any copies made by DSI. With all Deposit Materials submitted to DSI, Depositor shall provide any and all instructions as may be necessary to duplicate the Deposit Materials, including, but not limited to, the hardware and/or software needed. Any copying expenses incurred by DSI as a result of a request to copy will be borne by the party requesting the copies. Alternatively, DSI may notify Depositor requiring its reasonable cooperation in promptly copying the Deposit Materials in order for DSI to perform this Agreement.

ESCROW AGREEMENT — SCHEDULE E	 	3	

 

ARTICLE 4 — RELEASE OF DEPOSIT
4.1 Release Conditions . As used in this Agreement, “Release Condition” shall mean the following:

 	a.	 	Depositor intentionally discontinues providing the Service to Preferred Beneficiary for a period of two (2) days, and within five (5) days thereafter a successor to Depositor does not make available to Preferred Beneficiary a service which is substantially similar to the Service (as defined in the License Agreement) on terms which are substantially similar to the terms of the License Agreement and provided such discontinuation is not attributable to the actions of Preferred Beneficiary or acts beyond the control of Depositor or Preferred Beneficiary; or	
 		
 	b.	 	A change of control of Depositor where its successor does not fulfill any of its material obligations pursuant to the License Agreement; or	
 		
 	c.	 	Joint written instructions from Depositor and Preferred Beneficiary.	
4.2 Filing For Release . If Preferred Beneficiary believes in good faith that a Release Condition has occurred, Preferred Beneficiary may provide to DSI written notice of the occurrence of the Release Condition and a request for the release of the Deposit Materials. Such notice shall be signed by the Preferred Beneficiary and on company letterhead. Unless DSI acknowledges or discovers independently, or through the Parties, its need for additional documentation or information in order to comply with this Section, DSI shall promptly provide a copy of the notice to Depositor by commercial express mail. Such need for additional documentation or information may extend the time period for DSI’s performance under this Section.
4.3 Contrary Instructions . From the date DSI mails the notice requesting release of the Deposit Materials, Depositor shall have five (5) business days to deliver to DSI contrary instructions (“Contrary Instructions”). Contrary Instructions shall mean the written representation by Depositor that a Release Condition has not occurred or has been cured. Contrary Instructions shall be signed by Depositor and on company letterhead. Upon receipt of Contrary Instructions, DSI shall promptly send a copy to Preferred Beneficiary by commercial express mail. Additionally, DSI shall notify both Depositor and Preferred Beneficiary that there is a dispute to be resolved pursuant to Section 7.4 of this Agreement. Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit Materials without release pending (a) joint instructions from Depositor and Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.4; or (c) an order from a court of competent jurisdiction.
4.4 Release of Deposit . If DSI does not receive Contrary Instructions from the Depositor, DSI is authorized to release the Deposit Materials to the Preferred Beneficiary or, if more than one beneficiary is registered to the deposit, to release a copy of the Deposit Materials to the Preferred Beneficiary. However, DSI is entitled to receive any fees due DSI before making the release. Any copying expenses will be chargeable to Preferred Beneficiary, for which Depositor shall reimburse preferred Beneficiary within thirty (30) days of receipt of a statement thereof. This Agreement will terminate upon the release of the Deposit Materials held by DSI.
4.5 Right to Use Following Release . Unless otherwise provided in the License Agreement, upon release of the Deposit Materials in accordance with this Article 4, Preferred Beneficiary shall have the right to use the Deposit Materials for the sole purpose of continuing the benefits afforded to Preferred

ESCROW AGREEMENT — SCHEDULE E	 	4	

 

Beneficiary by the License Agreement. Preferred Beneficiary shall be obligated to maintain the confidentiality of the released Deposit Materials.
ARTICLE 5 — TERM AND TERMINATION
5.1 Term of Agreement . The initial term of this Agreement is for a period of one (1) year. Thereafter, this Agreement shall automatically renew from year to year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing that the Agreement is terminated; (b) DSI instructs Depositor and Preferred Beneficiary in writing after its renewal date that the Agreement is terminated for nonpayment in accordance with Section 5.2; or (c) DSI reserves the right to terminate this Agreement, for any reason, other than for nonpayment, by providing Depositor and Preferred Beneficiary sixty (60) days written notice of its intent to terminate this Agreement. If the Deposit Materials are subject to another escrow agreement with DSI, DSI reserves the right, after the initial one year term, to adjust the anniversary date of this Agreement to match the then prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment . In the event of the nonpayment of fees owed to DSI, DSI shall provide written notice of delinquency to all parties to this Agreement. Any party to this Agreement shall have the right to make the payment to DSI to cure the default. If the past due payment is not received in full by DSI within one (1) month of the date of such notice, then DSI shall have the right to terminate this Agreement at any time thereafter by sending written notice of termination to all parties. DSI shall have no obligation to take any action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination . Subject to the foregoing termination provisions, and upon termination of this Agreement, DSI shall destroy, return, or otherwise deliver the Deposit Materials in accordance with Depositor’s instructions. If there are no instructions, DSI may, at its sole discretion, destroy the Deposit Materials or return them to Depositor. DSI shall have no obligation to destroy or return the Deposit Materials if the Deposit Materials are subject to another escrow agreement with DSI or have been released to the Preferred Beneficiary in accordance with Section 4.4.
5.4 Survival of Terms Following Termination . Upon termination of this Agreement, the following provisions of this Agreement shall survive:

 	a.	 	The obligations of confidentiality with respect to the Deposit Materials;	
 		
 	b.	 	The obligation to pay DSI any fees and expenses due;	
 		
 	c.	 	The provisions of Article 7; and	
 		
 	d.	 	Any provisions in this Agreement which specifically state they survive the termination of this Agreement.	
ARTICLE 6 — DSI’S FEES
6.1 Fee Schedule . DSI is entitled to be paid its standard fees and expenses applicable to the services provided. DSI shall notify the party responsible for payment of DSI’s fees at least sixty (60) days prior to any increase in fees. For any service not listed on DSI’s standard fee schedule, DSI will provide a quote prior to rendering the service, if requested.

ESCROW AGREEMENT — SCHEDULE E	 	5	

 

6.2 Payment Terms . DST shall not be required to perform any service, including release of any Deposit Materials under Article 4, unless the payment for such service and any outstanding balances owed to DSI are paid in full. Initial fees are due upon receipt of a signed contract or receipt of the Deposit Materials whichever is earliest. Payments on all renewal and services invoices are due net thirty (30) days from date of invoice. If invoiced fees are not paid, DSI may terminate this Agreement in accordance with Section 5.2.
ARTICLE 7 — LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions . DSI may act in reliance upon any instruction, instrument, or signature reasonably believed by DSI to be genuine. DSI may assume that any officer of a party to this Agreement who gives any written notice, request, or instruction has the authority to do so. DSI will not be required to inquire into the truth or evaluate the merit of any statement or representation contained in any notice or document. DSI shall not be responsible for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification . Depositor and Preferred Beneficiary each agree to indemnify, defend and hold harmless DSI from any and all claims, actions, damages, arbitration fees and expenses, costs, attorney’s fees and other liabilities (“Liabilities”) incurred by DSI relating in any way to this escrow arrangement, except where it is adjudged that DSI acted with gross negligence or willful misconduct.
7.3 Limitation of Liability . In no event will DSI be liable for any incidental, indirect, special, exemplary, punitive or consequential damages, including, but not limited to, damages (including loss of data, revenue, and/or profits) costs or expenses (including legal fees and expenses), whether foreseeable or unforeseeable, that may arise out of or in connection with this Agreement; and in no event shall the collective liability of DSI exceed ten times the fees paid under this Agreement. The foregoing limitation of liability does not apply with respect to any acts of gross negligence, personal injury claims, property damage claims (excluding the Deposit), or intellectual property infringement.
7.4 Dispute Resolution . Any dispute, difference or question relating to or arising among any of the parties concerning the construction, meaning, effect or implementation of this Agreement or any party hereof will be submitted to, and settled by arbitration by a single arbitrator chosen by the San Diego Regional Office of the American Arbitration Association in accordance with the Commercial Rules of the American Arbitration Association. The arbitrator shall apply California law. Unless otherwise agreed by Depositor and Preferred Beneficiary, arbitration will take place in San Diego, California, U.S.A. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by First Class mail or by commercial express mail, to the attorney for the party or, if unrepresented, to the party at the last known business address. If, however, Depositor and/or Preferred Beneficiary refuses to submit to arbitration, the matter shall not be submitted to arbitration and DSI may submit the matter to any court of competent jurisdiction for an interpleader or similar action. Unless adjudged otherwise on grounds including but not limited to the failure of DSI to comply with its obligations hereunder, any costs of arbitration incurred by DSI, including reasonable attorney’s fees and costs, shall be divided equally and paid by Depositor and Preferred Beneficiary.
7.5 Controlling Law . This Agreement is to be governed and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.

ESCROW AGREEMENT — SCHEDULE E	 	6	

 

7.6 Notice of Requested Order . If any party intends to obtain an order from the arbitrator or any court of competent jurisdiction which may direct DSI to take, or refrain from taking any action, that party shall:

 	a.	 	Give DSI at least five (5) business days prior notice of the hearing;	
 		
 	b.	 	Include in any such order that, as a precondition to DSI’s obligation, DSI be paid in full for any past due fees and be paid for the reasonable value of the services to be rendered pursuant to such order; and	
 		
 	c.	 	Ensure that DSI not be required to deliver the original (as opposed to a copy) of the Deposit Materials if DSI may need to retain the original in its possession to fulfill any of its other duties.	
ARTICLE 8 — GENERAL PROVISIONS
8.1 Entire A g reement . This Agreement, which includes Exhibits described herein, embodies the entire understanding among the parties with respect to its subject matter and supersedes all previous communications, representations or understandings, either oral or written. DSI is not a party to the License Agreement between Depositor and Preferred Beneficiary and has no knowledge of any of the terms or provisions of any such License Agreement. DSI’s only obligations to Depositor or Preferred Beneficiary are as set forth in this Agreement. No amendment or modification of this Agreement shall be valid or binding unless signed by all the parties hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not be signed by Preferred Beneficiary, Exhibit C need not be signed, and the Statement of Work need only be executed by DSI and Preferred Beneficiary.
8.2 Notices and Correspondence . All notices regarding Articles 4 and 5 and any Deposit Materials shall be sent by commercial express or certified mail, return receipt requested. All other correspondence, including invoices, payments, and other documents and communications, shall be sent First Class U.S. Mail and given to the parties at the addresses specified in the attached Exhibit C. It shall be the responsibility of the parties to notify each other as provided in this Section in the event of a change of physical and e-mail addresses. The parties shall have the right to rely on the last known address of the other parties. Any correctly addressed notice or last known address of the other parties that is relied on herein that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified as provided herein shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities by mail, through messenger or commercial express delivery services.
8.3 Severability . In the event any provision of this Agreement is found to be invalid or unenforceable, the parties agree that unless it materially affects the entire intent and purpose of this Agreement, such invalidity or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
8.4 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. However, DSI shall have no obligation in performing this Agreement to recognize any successor or assign of Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and conclusive written evidence of the change of parties.

ESCROW AGREEMENT — SCHEDULE E	 	7	

 

8.5 Waiver . Any term of this Agreement may be waived by the party entitled to the benefits thereof, provided that any such waiver must be in writing and signed by the party against whom the enforcement of the waiver is sought. No waiver of any condition, or breach of any provision of this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy.
8.6 Regulations . Depositor and Preferred Beneficiary are responsible for and warrant compliance with all applicable laws, rules and regulations, including but not limited to Depositor’s responsibility to comply with customs laws, import, export, and re-export laws and government regulations of any country from or to which the Deposit Materials may be delivered in accordance with the provisions of this Agreement.
8.7 Attorney’s Fees . In any litigation or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks declaration of any rights or obligations under this Agreement (whether in contract, tort, or both), the prevailing party (whether prosecuting such action or defending against such action) shall be awarded reasonable attorneys’ fees, together with any costs and expenses, to resolve the dispute and to enforce final judgment.
8.8 No Third Party Rights . This Agreement is made solely for the benefit of the Parties to this Agreement and their respective permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement unless otherwise agreed to by all the parties hereto.
8.9 Authority to Sign . Each of the Parties herein represents and warrants that the execution, delivery, and performance of this Agreement has been duly authorized and signed by a person who meets statutory or other binding approval to sign on behalf of its business organization as named in this Agreement. DSI will be able to perform its obligations under this agreement once DSI has received a fully executed agreement.
8.10 Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
 	 	 	 	 	 	 	 	 	 	 	
Synacor, Inc.
(Depositor)	 	 	 	Charter Communications Holding Company, LLC
(Preferred Beneficiary)	 	 	
 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel
 	 	 	 	By:	 	/s/ Jeff Jay
 	 	 	
 	 	Name: RONALD FRANKEL	 	 	 	 	 	Name: Jeff Jay	 	 	
 	 	Title:   CEO	 	 	 	 	 	Title:   VP Product Development	 	 	
Date:	 	9-30-04	 	 	 	Date:	 	9/29/04	 	 	
 	 	 	 	 	
 	DSI Technology Escrow Services, Inc.
 	 	
 	By:  	 	 	
 	 	Name:  	 	 	
 	 	Title:  	 	 	
 	 	Date:  	 	 	

 	 	 	
ESCROW AGREEMENT — SCHEDULE E	 	8	

 

SCHEDULE F
TO
SYNACOR MASTER SERVICES AGREEMENT
SEARCH REVENUE SHARING ADDENDUM
     This Schedule F forms a part of and is governed by the Synacor Master Services Agreement dated September 30th, 2004 by and between Synacor, Inc. and Charter Communications Holding Co., LLC (“Client”), including any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement.”), and establishes the terms and conditions under which the Parties will work together to facilitate the delivery of search related services to Client’s Users. Except to the extent expressly modified herein, all of the terms and conditions of the Agreement shall apply to this Addendum. If any provision of this Addendum conflicts with a provision of the Agreement, the provisions of this Addendum shall control. Any capitalized terms used in this Schedule F and not defined herein shall have the meanings ascribed to such terms in the Agreement.
1. Definition of Search Services and Selection of Search Services Provider. A component of Synacor’s Service to Client shall include features that enable Users to receive descriptions and links associated with search results from search boxes (“Search Services”) placed within the Client Branded Portal and other Client websites (the “Sites”) through Synacor’s agreement with a Search Services provider (“Search Services Provider”). [*]
      a. Operation of Search Services. Each time a User enters a search request in a search box (a “Search Query”), Synacor shall return to such User a set of up to ten (10) search results (each such set being referred to as a “Search Results Set”) and additional paid links (“Sponsored Links” or “AFS Ads”) as agreed to by the Parties.
      b. Hosting and Control. At all times during the Services Term (defined below) Synacor shall (a) host and maintain any and all pages that comprise the Sites; (b) maintain complete technical and editorial control of the Sites; and (c) act as the intermediary for all transmissions between Search Services Provider and the Sites.
      c. Context Sensitive Advertising. The Parties may agree to provide context sensitive advertising (“Adsense for Content Ads” or “AFC Ads”) within the Client Branded Portal or other Client controlled websites.
2. Disclaimers. Client understands and agrees that Search Services Provider shall not be liable for any damages, whether direct, indirect, incidental or consequential, arising from the Site’s access to or use of the Search Services;
3. No Warranties. Client understands and agrees that Search Services Provider makes no warranties, express or implied, with respect to the Search Services, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement;
4. Client Not Third Party Beneficiary. Client expressly acknowledges and agrees that Client is not a third party beneficiary under any agreement between Synacor and Search Services Provider.
5. [*]

			
Search Revenue Sharing Addendum — Schedule F	 	 1	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

6. Fees and Payment Terms.
      a. Search Services. For all Search Fees, Synacor shall bill Client monthly at the rate of [*]
      b. AdSense for Search. Subject to the terms and conditions of this Agreement, for each month during the Services Term Client shall receive the Applicable Percentage (as defined below) of Net AFS Revenues attributable to such month.
      c. AdSense for Content. Subject to the terms and conditions of the Agreement, for each month during the Services Term Client shall receive the Applicable Percentage of Net AFC Revenues attributable to such month,
      d. Ad Revenues; Applicable Percentage; Applicable Deduction.
     i. “Net AFS Revenues” means (i) Ad Revenues derived from clicks on AFS Ads (excluding Non-Qualifying Ads as defined below) minus (ii) the Applicable AFS Deduction.
     ii. “Net AFC Revenues” means (i) Ad Revenues derived from clicks on AFC Ads (excluding Non-Qualifying Ads as defined below) minus (ii) the Applicable AFC Deduction.
     iii. “Ad Revenues” means gross ad revenues minus agency fees, referral fees, costs related to third party advertising service providers, and discounts.
     iv. “Applicable Percentage” with respect to any calendar month during the Services Term shall be the following:
[*]
     v. “Applicable AFS Deduction” in any calendar month during the Initial Term means [*] Notwithstanding anything to the contrary, Synacor reserves the right to increase the Applicable AFS Deduction [*] by providing: (i) advance written notice to Client, and (ii) documentary evidence of such increased cost,
     vi. “Applicable AFC Deduction” in any calendar month during the Initial Term means [*]

			
Search Revenue Sharing Addendum — Schedule F	 	2	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

     vii. Notwithstanding any of the foregoing under this Section, Synacor shall not be liable for payment in connection with (i) any amounts which result from invalid queries, or invalid impressions of (or clicks on) ads, generated by any person, bot, automated program or similar device, including, without limitation, through any fraudulent act, as reasonably determined by Synacor; and (ii) ads that advertise Search Services Provider products or services (collectively, “Non-Qualifying Ads”). The number of queries, and impressions of and clicks on ads, as reported by Search Services Provider, shall be the number used in calculating payments hereunder.
      e. Payment Terms. All payments due a Party shall be made by such other Party within thirty (30) days after the end of each applicable quarter in which the applicable AFC Ads, AFS Ads, or Search Results Sets were displayed. All payments shall be made in full in United States Dollars.
7. Term. This Addendum will expire on June 30, 2005 (the “Initial Term”) and may be renewed by the Parties only upon a definitive written agreement signed by the Parties (the term of any such renewal being referred to as the “Renewal Term”). For purposes of the Agreement, the Initial Term together with any Renewal Term, if any, may also be referred to as the “Services Term.”
The foregoing is hereby agreed and accepted by:

SYNACOR, INC.

By:	 	/s/ Ronald Frankel

			
Name:	 	Ronald Frankel

			
Title:	 	CEO

			
Date:	 	9/30/04
 	
CLIENT:
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC

By:	 	/s/ Jeff Jay

			
Name:	 	Jeff Jay

			
Title:	 	VP Product Development

			
Date:	 	9/29/04

			
Search Revenue Sharing Addendum — Schedule F	 	 3	

 

EXHIBIT 10.16.4
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT
TO
MASTER SERVICES AGREEMENT
This Amendment including Attachment A hereto (collectively, the “ Amendment ”) dated as of the 16th day of August, 2006 (the “ Amendment Effective Date ”) is by and among SYNACOR, INC. (“ Synacor ”), Charter Communications Operating, LLC (“ Client ”) and Charter Communications Holding Company, LLC under which the parties hereto mutually agree to modify and amend as follows the Synacor Master Services Agreement, and exhibits thereto, effective as of September 30, 2004 and as amended (collectively, the “ Agreement ”). All terms defined herein shall be applicable solely to this Amendment. Any defined terms used herein, which are defined in the Agreement, shall have the meanings ascribed to them in the Agreement solely when interpreting the Agreement. Inconsistent terms shall have the meaning ascribed herein.
Whereas, Synacor desires to make certain additional services available to Client;
Whereas, Client desires to receive such additional services; and
Whereas, Synacor and Client would like to modify certain payment and revenue share terms.
Therefore, the Parties hereby agree to enter into this Amendment and agree to the following:

1.	 	Defined Terms. In the Agreement, including all Schedules and other attachments, Charter Communications Holding Company, LLC shall be replaced as the “Client” and “party” by its indirect, wholly owned subsidiary, Charter Communications Operating, LLC.	
 		
2.	 	(a) Schedule A . The parties agree that as of the Amendment Effective Date, Schedule A to the Agreement, as amended, entitled “Product & Pricing Schedule,” is hereby deleted and replaced in its entirety with the Schedule A attached hereto as Attachment 1 to this Amendment. [*]	
 		
 	 	(b) Schedule F. The parties agree that effective as of the Amendment Effective Date, Schedule F to the Agreement entitled Search Revenue Sharing Addendum is deleted in its entirety.	
 		
3.	 	Data Privacy Amendment. The Parties agree that the Data Privacy Amendment attached as Attachment 2 hereto shall be inserted as new Schedule G to the Agreement and will become effective immediately upon the signing hereof and shall continue throughout the Term of this Amendment.	
 		
4.	 	Extension of Term. Article 7.1 of the Agreement is hereby replaced in its entirety with the following:	
“7.1 Term: This Agreement shall continue in full force and effect through the end of [*] (the “ Initial Term ”) and, except as provided in the immediately following sentence, will renew at [*] (each a “ Renewal Term ” and collectively the Term and any Renewal Term(s) being referred to as the “ Term ”). Notwithstanding anything to the contrary in this Amendment or any Schedule, following the Initial Term, the requirement of a [*] from Synacor to Client set forth in [*] of the Amended and Restated Schedule A to the Synacor Master Service Agreement Product and Pricing Schedule shall terminate at the end of the [*]. All other revenue shares and fees shall remain the same as during the Initial Term unless otherwise specified below.”

5.	 	Change of Control. Article 7.2 shall be supplemented with the following change of control language: “Should either party be subject to a “Change of Control” (as hereafter defined), then such party shall provide the other with written notice within thirty days of executing the agreement which leads to such change of control. The other party may within sixty days of being notified of such Change of Control provide a notice that it desires to terminate the Agreement. If such notice of termination is not provided	

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	 	then this termination for change of control shall be deemed to have been waived. Change of Control means the execution of any transaction pursuant to which a party sells, assigns or transfers directly or indirectly to any third party all or substantially all of its business (whether by sale of assets or equity, merger, consolidation or otherwise) to a Competitor. Competitor means, with respect to Client, any entity providing high-speed data services (such as cable modem services, DSL, or the like) or video to home services by any means other than cable based technologies or their affiliates. ; and, with respect to Synacor any internet portal, search or advertising provider, Comcast or any other entity reasonably determined to be a direct competitor of Synacor. As to both parties, a competitor shall also be construed to include “affiliates” of a competitor as such term is defined under the Securities Act of 1933.	

6.	 	Additional Revisions. The following provisions identified as “Old Language” shall be deleted and replaced in their entirety with the “New Language” as set forth in the table below:	
 	 	 	 	 	
SECTION REFERENCE	 	OLD LANGUAGE	 	NEW LANGUAGE	
Agreement Section 2.5, Data (new text is denoted by underlining)	 	“As between Synacor and Client, Client shall own all User names, login IDs, passwords, and other User registration or other information provided by client and/or Users in connection with the Services, including without limitation any identification numbers or other information provided and/or used by Synacor to identify and/or distinguish between Users (“Account Information”). Unless otherwise agreed to by Client in advance and in writing, its obligations under this Agreement or to comply with any legal or regulatory requirement; provided that, to the extent not otherwise prohibited by law, Synacor shall provide Client with prompt notice of any such legal or regulatory requirement in order that Client may comply with the provisions of 47 U.S.C.A § 551 and/or seek a protective order with respect to such Account Information. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject at all times to Section 5.2 herein, Synacor may disclose aggregate information (not personally identifiable), of Users and Service usage and performance derived from Account Information to Synacor Providers, Synacor customers and Synacor investors; provided that, no such information shall identify Client or any User or contain any Client-specific or User- specific information. Synacor shall	 	“As between Synacor and Client, Client shall own all User names, login IDs, passwords, click-stream data and other User registration or other information provided by client and/or provided by or collected from Users in connection with the Services, including without limitation any identification numbers or other information provided and/or used by Synacor to identify and/or distinguish between Users (“Account Information”). Unless otherwise agreed to by Client in advance and in writing, its obligations under this Agreement or to comply with any legal or regulatory requirement; provided that, to the extent not otherwise prohibited by law, Synacor shall provide Client with prompt notice of any such legal or regulatory requirement in order that Client may comply with the provisions of 47 U.S.C.A § 551 and/or seek a protective order with respect to such Account Information. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject at all times to Section 5.2 herein, Synacor may disclose aggregate information (not personally identifiable), including click-stream data of Users and Service usage and performance derived from Account Information to Synacor Providers, Synacor customers and Synacor investors; provided that, no such information shall identify Client or any User or	
 2 

 

 	 	 	 	 	
SECTION REFERENCE	 	OLD LANGUAGE	 	NEW LANGUAGE	
 	 	provide Client with all Account Information in a format chosen by Client within forty-eight (48) hours of receipt of written notice from Client requesting the same. This clause and the Parties’ responsibilities hereunder shall survive the expiration or earlier termination of the Agreement.”	 	contain any Client-specific or User-specific information unless otherwise required by applicable law . Synacor shall provide Client with all Account Information in a format chosen by Client within forty-eight (48) hours of receipt of written notice from Client requesting the same. This clause and the parties’ responsibilities hereunder shall survive the expiration or earlier termination of the Agreement.”	
 	 	 	 	 	
Agreement Section 9, last sentence in Limitations of Liability	 	“IN NO EVENT WILL SYNACOR’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OF THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE GREATER OF (I) $5,000,000.00 OR (II) THE AMOUNT SYNACOR HAS RECEIVED FROM CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT DURING THE TERM HEREOF.”	 	“IN NO EVENT WILL EITHER PARTIES LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OF THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE LESSER OF (I) $16 MILLION OR (II) THE ACTUAL DAMAGES INCURRED DIRECTLY BY THE INJURED PARTY.”	
 	 	 	 	 	
Schedule C Synacor Specifications Colorset, final paragraph	 	“Synacor will provide Client with the right to implement design change, including colorset modifications, header and footer changes and design consultation, at no charge once each year. Additional design changes (those desired or requested less than twelve [12] months after the last design change) will be available to Client as an additional professional service rate to be agreed upon by the parties.”	 	“Synacor will provide Client with the right to implement design change, including colorset modifications, and header and footer changes, [*]. Additional design changes (those desired or requested [*] after the last design change) will be available to Client as an additional professional service rate to be agreed upon by the parties. [*]”	

3.	 	Scope of Amendment: This Amendment including Attachment 1 supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Amendment and all past dealing or industry custom. This Amendment shall be integrated in and form part of the Agreement and the Schedules thereto upon execution. All terms and conditions of the Agreement shall remain unchanged except as modified in this Amendment; and the terms of the Agreement, as modified by this Amendment, are hereby ratified and confirmed. Where any terms of the Agreement and its Schedules conflict with those of this Amendment including Attachment 1, however, the terms of this Amendment including Attachment 1 shall control. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.	
3

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	CHARTER COMMUNICATIONS HOLDING COMPANY, LLC	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Greg Rigdon	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Name:	 	RONALD FRANKEL	 	 	 	 	 	Name:	 	GREG RIGDON	 	 	
 	 	Title:	 	PRESIDENT & CEO	 	 	 	 	 	Title:	 	SVP	 	 	
 	 	8-16-06 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	CHARTER COMMUNICATIONS
OPERATING, LLC	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	By:	 	/s/ Greg Rigdon	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	Name:	 	GREG RIGDON	 	 	
 	 	 	 	 	 	 	 	 	 	Title:	 	SVP	 	 	
 4 

 

Attachment 1 to the Amendment
AMENDED AND RESTATED
SCHEDULE A
TO
SYNACOR MASTER SERVICE AGREEMENT
PRODUCT & PRICING SCHEDULE
          Effective August 16th, 2006, this Amended and Restated Schedule A supersedes and replaces Schedule A, as amended, and forms a part of, and is governed by, the Synacor Master Services Agreement dated September 30, 2004, as amended, by and between Synacor, Inc. (“ Synacor ”), Charter Communications Operating, LLC and Charter Communications Holding Company, LLC. including any schedules, attachments, or exhibits attached thereto (collectively, the “ Agreement ”). Any capitalized terms used in this Schedule A and not defined herein shall have the meanings ascribed to such terms in the Agreement. As set forth in the Amendment to Master Services Agreement executed simultaneously herewith, Charter Communications Operating, LLC is hereafter referred to as the “ Client ” or “Charter”.
          The product deliverables and fees payable by Client to Synacor pursuant to the Agreement are set forth below.

1.	 	Portal Features and Functionality (including Portelus Technology).	

 	(a)	 	Portal deliverables consist of the following product elements including, without limitation,:	

 	(i)	 	A Client-branded Portal (the “ Client Branded Portal ”) with elements of Synacor’s standard portal template branded with Client presentation layer (look and feel, logos, trademarks, etc.) substantially in accordance with the mock-up at Exhibit 2 formatted as provided in Section 1(b) below.	

 	 	 	[*]	

 	(ii)	 	[*]	
 		
 	(iii)	 	Personalization elements of Client Branded Portal for establishment of User preferences on display;	
 		
 	(iv)	 	Application Portal Interfaces (“ APIs ”) for unified registration, login and update associated with mutually agreed portal components (as further described in the Synacor Specifications). Client will work in good faith to conform to Synacor’s current API structure, Synacor will work in good faith to perform, at no additional cost to Client, any reasonable and limited enhancements or modifications to the standard Synacor API structure as necessary in order to assist the Client to fit its operations support system;	

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	(v)	 	Hosting of portal framework and content within Synacor’s Data Center or Client’s Internet protocol (“ IP ”) network, according to the terms of Schedule B of the Agreement (Service Level Agreement) provided that such Schedule B shall be deemed to be amended in so far as any credits shall be calculated [*]; and	
 		
 	(vi)	 	Synacor will provide the development work necessary to enable usage reporting from WebSideStory or another similar usage reporting vendor of Client’s choosing, such reporting contract to be at Client’s cost. At Client’s option, Client may choose to receive the same standard report set that other Synacor customers receive which includes page views for Charter.net and Charter.net sup pages. Such standard report set will be provided by Synacor [*].	

 	(b)	 	The Client Branded Portal deliverable shall be Synacor’s standard portal product with the elements specified in subsection (a) above, together, with User Authentication (as defined in the Synacor Specifications) (the “ Portal Deliverable ”), customized with Client’s color scheme, logo, design elements and other “look and feel” elements as determined by Client (the “ Appearance Requirements ”), which shall be delivered according to a mutually-agreed upon timeframe schedule based on the level of functionality desired by the Client. Synacor will deliver the design of a Charter unique UI and, subject to Client’s prior approval (such approval not to be unreasonably withheld), Synacor will implement such UI. The Client Branded Portal will provide the functionality described in the Synacor Specifications as modified by the Charter Product Requirements attached hereto as Exhibit 1. If Client desires additional appearance or functionality for the Client Branded Portal from Synacor, the parties will, upon Client’s request, negotiate in good faith with respect to additional deliverables and the cost to Client for such additional deliverables, provided, however, that Client shall receive no less than [*].	
 		
 	(c)	 	The following fees associated with delivery of the Client Branded Portal and Search are listed below:	

 	(i)	 	Definitions.	

 	a)	 	“ Search Services Provider ” means [*]	
 		
 	b)	 	“ Search Revenue ” means [*]	
 		
 	c)	 	“ Portal Advertising Revenue ” means [*]	
2

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	 	 	[*]	

 	d)	 	“ Charter Toolbar ” means the private-label, functional, “Charter” toolbar developed by Synacor which Client and Synacor will work together to promote and distribute.	
 		
 	e)	 	“ Email Advertising Revenue ” means all revenue received by either party as a result of Internet advertising or promotions (excluding Search Revenue and Portal Advertising Revenue) contained in any consumer email client such as Microsoft Outlook and the webmail interface located at mail.charter.net or any successor URLs.	
 		
 	f)	 	[*]	

 	(ii)	 	RESERVED	
 		
 	(iii)	 	[*]	
 		
 	(iv)	 	Portal Revenue .	

 	a)	 	[*]	
 		
 	b)	 	[*]	
3

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	i.	 	[*]; and	
 		
 	ii.	 	[*]	

 	c)	 	Any Portal Advertising Revenue collected by Client during the Term shall be paid to Synacor within thirty (30) days after the end of the calendar quarter in which such revenue is received by Client. [*] Such reconciliation or true up shall be in accordance with the distributions described herein.	
 		
 	d)	 	[*]	

 	(v)	 	[*]	
 		
 	(vi)	 	[*]	
4

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

[*]

 	 	 	The parties agree that the foregoing shall be evaluated and measured on a calendar quarterly basis and that any such required adjustments in accordance with the above formula shall be made within thirty (30) days thereafter.	
 		
 	(vii)	 	Audit .  The Parties shall maintain accurate books and records of all expenses, revenues, and fees and subscriber accounts in connection with its performance hereunder. For the sole purpose of ensuring compliance with this Agreement, each Party shall have the right once per year and upon thirty (30) days’ advance written notice to conduct an inspection of the other’s books and records solely to the extent necessary and relevant to audit performance hereunder. Each party shall bear the expense of any audit conducted pursuant to this provision unless such audit shows an underpayment more than ten percent (10%) of the actual amounts paid or payable, in which case the other Party shall bear the cost and reasonable expenses of the audit. The Party with the deficiency shall immediately pay all such deficiency plus interest of eighteen percent (18%) per annum on the entire amount from the date such deficiency was originally due and payable.	

2.	 	Portal Content.	

 	(a)	 	Content.  The below-listed initial Content (the “ Initial Information Services ”) will be integrated into the Client Branded Portal at no additional cost to Client:	

 	(i)	 	[*] News service (stories, pictures, video, etc.) as set forth below (“[*] News Services”) is included in the Client Branded Portal so that when a User clicks on a news story or video, the User will remain within the Client Branded Portal. The [*] News Service includes:	

 	•	 	National News	
 		
 	•	 	World News	
 		
 	•	 	Sports News	
 		
 	•	 	Entertainment News	
 		
 	•	 	Health News	
 		
 	•	 	Business and Finance News;	

 	(ii)	 	Horoscopes;	
 		
 	(iii)	 	Telephone Directory Service;	
 		
 	(iv)	 	Auto Channel (currently provided by [*] );	
 		
 	(v)	 	Career Channel (currently provided by [*] );	
 		
 	(vi)	 	Travel Channel (currently provided by [*] );	
 		
 	(vii)	 	Shopping Channel (currently launching with [*] );	
 		
 	(viii)	 	Video Guide currently in development (currently includes [*] );	
 		
 	(ix)	 	Games Channel, including free advertising supported games and content;	
 		
 	(x)	 	Photo Channel (currently provided by [*] );	
 		
 	(xi)	 	Local Channel (currently provided by [*] );	
 		
 	(xii)	 	Weather Channel (currently provided by [*] );	
 		
 	(xiii)	 	TV listings/TV spotlight as defined in the Product Roadmap. TV Listings shall be provided by [*] or other provider at Client’s option and at Client’s cost;	
 		
 	(xiv)	 	Movies Channel;	
5

 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	(xv)	 	Finance Channel (not currently provided);	
 		
 	(xvi)	 	Music Channel (or as a subset of Premium Music package); and	
 		
 	(xvii)	 	Maps and Directions	

 	b.	 	Synacor will make good-faith attempts to maintain a portal that is consistent in functionality of the highest standards in the internet industry and the most recent version provided by Synacor to any of its clients. Synacor agrees to take reasonable steps to ensure that any click through content provided by Synacor does not reasonably bring Client or its image into disrepute. Synacor agrees to make commercially reasonable efforts to ensure that no competitive advertising or content of any kind is provided on the portal, including advertising of any competitive services such as telephone, Internet Service Provider, portal, video, pay per view or satellite television; provided that any advertisements or promotions that Client finds reasonably objectionable shall be removed within 72 hours of Synacor’s receipt of written notice (including Email) from Client.	
 		
 	c.	 	Client may request Synacor to integrate any additional content provided that Synacor does not incur any additional licensing fees. In the event Synacor requests Client to carry additional content which is subject to licensing fees, Synacor agrees to provide Client with the lowest applicable licensing fees of all Synacor’s clients.	

3.	 	Premium Products and Associated Fees.	
 		
 	 	Definitions	

 	•	 	“ Client Sourced Services ” means the content provided by Client or Client Content Providers engaged by Client which has been integrated into the Synacor platform technology and is offered either separately or as part of a Premium Product but exclusive of VOD.	
 		
 	•	 	“ Content Provider ” means a third party vendor or provider that provides either Client Sourced Services or Synacor Sourced Services.	
 		
 	•	 	“ Synacor Sourced Services ” means the content provided by Content Providers through Synacor and offered to Users, whether individually or bundled as part of a Premium Product.	

 	 	For purposes of creating a fee structure, relevant Synacor Sourced Services, and/or, at the option of Client, Client Sourced Services, may be bundled into premium products (“Premium Products”) at the request of Client, and subject to Synacor’s prior written approval, and made available to the Users of Client. Such monthly fees may include both Synacor Sourced Services Fees and Carriage Fees, as defined below, as applicable. For purposes herein, a “Subscription Account” is defined as an account that allows a User to access a given Premium Product. In addition to other rights Client may have under this Agreement (including but not limited to Client’s right to eliminate or replace Synacor Sourced Services with Client Sourced Services at any time), Client may elect to require Synacor to use reasonable commercial efforts to provide reasonably equivalent Synacor Sourced Services to then-current Synacor Sourced Services, or to modify the Synacor Sourced Services mix, as necessary to result in a mutually agreeable Premium Product.	

 	(a)	 	Premium Products . The following Premium Products are currently available to Client for distribution to Users for the Premium Product Fees described below:	

 	(i)	 	Family Bundle . The Family Bundles shall include all of the following:	

 	•	 	Encyclopedia Britannica — Unlimited access to the updated 32-volume Encyclopedia Britannica, plus: Britannica’s Student & Concise encyclopedias, thousands of exclusive video and audio clips	
 		
 	•	 	Shockwave Gameblast — 100 popular premium online and downloadable games	
 		
 	•	 	American Greetings — Print and Send Greeting cards and access to member’s only online greeting cards	
 		
 	•	 	Clever Island — Focuses on the educations skills that are most important to a child’s development, including language, numbers, spatial reasoning, logic and critical	
 6 

 

 	 	 	thinking. Activities are designed by leading experts in education and child development to be engaging, powerful and fun.	
 		
 	•	 	Weather.com — Local, regional and national video weather reports and special feature categories. (Subject to approval by Weather.com.)	
 		
 	•	 	Major League Baseball — Access to GameDay Audio (listen to every game played that day), Condensed Video Games, Post Game Highlights, MLB Custom Cuts and MLB Radio.	

 	(ii)	 	Music Products	

 	i.	 	Charter Music2Go	

 	•	 	MusicNet — Unlimited song download service which includes unlimited song downloads to WMP 10 supported portable devices and personal computers from over 2,000,000 tracks; as well as commercial free radio and video. Subscribers can also purchase tracks.	
 		
 	•	 	Synacor may include online Magazines and/or other products as mutually agreed	

 	ii.	 	Charter Music (non portable) :	

 	•	 	MusicNet — Unlimited song download service which includes unlimited song downloads to WMP 10 supported personal computers from over 2,000,000 tracks; as well as commercial free radio and video. Subscribers can also purchase tracks	

 	(iii)	 	The parties may also include additional Premium Products or modify existing Premium Products, as the parties may agree from time to time. Fees for such Additional Premium Products shall be subject to the same fee calculations and revenue shares as defined below in Section (3)(b) entitled Premium Product Fees.	

 	(b)	 	Premium Product Fees .	

 	(i)	 	Monthly Subscription Fees .	

 	a)	 	Monthly Subscription Fees — Definitions .	

 	•	 	“ Retail Price ” means the monthly subscription fee of a Premium Product that a customer of Client is charged for any given Premium Product. Such Retail Price to be agreed to in writing by the parties.	
 		
 	•	 	“ Cost of Goods ” means the fees paid by Synacor and/or Client to value added service and/or content providers for the services and/or content included in any given Premium Product.	
 		
 	•	 	“ Subscription Gross Margin ” means the Retail Price less the Cost of Goods of any given Premium Product.	

 	b)	 	Monthly Subscription Revenues — Revenue Share.	

 	•	 	If Client collects subscription revenues from Users then Client shall pay Synacor [*]	
 	 	
 	7	

 		
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	•	 	If Synacor collects subscription revenues from Users then Synacor shall pay Client [*]	

 	(ii)	 	Transaction Revenues .	

 	a)	 	Transaction Revenues — Definitions .	

 	•	 	“ Transactions ” shall mean rentals or purchases made by Users of music, movies, games and other streams and/or downloads from a Premium Service or other Internet sites as the parties agree.	
 		
 	•	 	“ Costs ” shall mean the actual and direct costs assessed with respect to obtaining content from its content and/or music provider, additional actual and direct per transaction charges imposed by its content and/or music provider on, or passed through to, (e.g., studio fees, etc.), label and publishing fees, Verisign or other third party transaction costs, and credit card processing fees, refunds to Users and charge-backs.	
 		
 	•	 	“ Transaction Gross Margin ” shall mean all revenues from purchases of Transactions less the Costs.	

 	b)	 	Transaction Revenues — Revenue Share .	

 	•	 	If Synacor collects fees from Users for their Transactions then Synacor shall pay to Client [*]	
 		
 	•	 	If Client collects fees from Users for their Transactions then Client shall pay Synacor [*]	

 	(iii)	 	[*].	
 8 

 		
 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	[*]	 	 	

4.	 	Client Responsibilities. The services described herein are contingent upon the following:	

 	[*]	 	 	
 9 

 		
 	 	
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	[*]	 	 	

5.	 	Synacor Responsibilities .	
[*]	 	 	
 	 	
 	10	

 		
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

 	[*]	 	 	

6.	 	Synacor Rights. Synacor will have the ability to:	

 	[*]	 	 	

6.	 	Bandwidth and Hardware Fees. Client agrees to be responsible for handling, arranging and/or ensuring any required bandwidth to ensure connectivity and functionality to accommodate hosting services hosted directly on Client’s network, all at Client’s cost and subject to Client’s discretion with regard to degree of capacity required.	
 		
7.	 	Content Delivery Network: The Parties will determine an appropriate content distribution strategy for the distribution of large quantities of video material to Client’s subscribers, at Client’s expense.	
 11 

 	 	
 		
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

8.	 	[*]	
 	 	
 	12	

 		
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

EXHIBIT 1
to the Amended and Restated Schedule A
CHARTER PRODUCT ROADMAP
[*]
 	 	
 	13	

 		
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

EXHIBIT 2. Mock-up
14 

 

 

Attachment 2 to the Amendment
SCHEDULE G
TO
SYNACOR MASTER SERVICE AGREEMENT
DATA PRIVACY
      Charter Communications Operating, LLC (“Charter”) and Synacor, Inc. (“2 nd Party”) hereby agree to include this Schedule G as part of the Amendment to the Synacor Master Service Agreement dated September 30, 2004 and as amended (the “Agreement”) in accordance with the terms of this amendment (the “Amendment”) effective on this the __________day of __________, 2006 (the “Effective Date”). To the extent any terms set forth in this Amendment conflict with those of the Agreement, the terms of this Amendment shall control. Any capitalized terms not specifically defined herein, shall have that meaning set forth for them in the Agreement.
1. CONFIDENTIALITY.
N.1 In connection with this Agreement, either party may furnish to the other certain non-public information that is marked or otherwise specifically identified as proprietary or confidential or which by its contents and the underlying circumstances, a reasonable person would consider proprietary or confidential (“Confidential Information”). In addition, both parties acknowledge that it and its personnel may have access to data, records and documents pertaining to such Confidential Information. This Confidential Information may include, among other things, the personally identifiable information of Charter customers (also referred to as “Charter Customer Information”), private easements, licenses, utility agreements, permits, other right-of-way granting documents, specifications, designs, business plans, schematics, drawings, software, data, prototypes, or other business, marketing and/or technical information. For purposes of this Section, the party that discloses Confidential Information is referred to as the “Disclosing Party”, and the party that receives Information is referred to as the “Receiving Party”.
N.2 When Confidential Information is furnished in tangible form or when Confidential Information is provided orally, the Disclosing Party shall, at the time of disclosure or promptly thereafter, identify the Confidential Information as being proprietary or confidential. Notwithstanding, such identification is not necessary with respect to any Charter Customer Information, which shall at all times be considered to be “Confidential Information”.
N.3 With respect to Confidential Information disclosed under this Agreement, the Receiving Party and its employees shall:
N.3.1 secure and hold the Confidential Information in confidence, exercising a degree of care not less than the care used by the Receiving Party to protect its own proprietary or confidential information that it does not wish to disclose (but in no event shall such care be less than that which is commercially reasonable), and specifically, the Receiving Party shall maintain and secure any Confidential Information in electronic data format using security measures that meet or exceed the IS01799 information security controls standard;
N.3.2 restrict disclosure of the Confidential Information solely to those of its employees to whom further disclosure is necessary for Receiving Party to perform its obligations under this Agreement, and not disclose the Confidential Information to any other person or entity without the prior written consent of the Disclosing Party which shall not be unreasonably withheld;
 2 

 

N.3.3 advise and secure the agreement of those employees of their obligation to keep Confidential Information confidential in accordance herewith;
N.3.4 use the Confidential Information only in connection with the performance of this Agreement, except as the Disclosing Party may otherwise agree in writing; and
N.3.5 segregate all such Confidential Information from the confidential materials and information of Service Provider or others to prevent commingling.
N.4 Confidential Information shall be deemed the property of the Disclosing Party during the term of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated herein. Upon written request of the Disclosing Party, the Receiving Party shall return all Confidential Information received in tangible form, except that each party’s legal counsel may retain one copy for its files solely to provide a record of such Confidential Information for archival purposes.
N.5 Receiving Party shall notify the Disclosing Party immediately upon discovery of any actual or reasonably suspected compromise, unauthorized use or disclosure of Confidential Information, or any other breach of this Section, and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent any further compromise, unauthorized use or disclosure.
N.6 Except to the extent of Client Customer Information for which the confidentiality obligations shall remain intact unless otherwise required by court order, the Receiving Party shall have no obligation to preserve the proprietary nature of Confidential Information that:
N.6.1 was previously known to the Receiving Party free of any obligation to keep it confidential; or
N.6.2 is or becomes publicly available by means other than unauthorized or illegal disclosure; or
N.6.3 is developed by or on behalf of the Receiving Party independently of any Confidential Information furnished under this Agreement; or
N.6.4 is received from a third party whose disclosure does not violate any confidentiality obligation.
N.7 The terms of this Agreement, and all information that may be disclosed (whether identified as such or not) to Receiving Party pertaining to the identities, locations, and requirements of the Disclosing Party’s customers, is Confidential Information of Disclosing Party.
N.8 Under no circumstances shall either party disclose the other party’s customer Confidential Information to any third party (even if under contract to that party) or to any personnel of the party responsible for publicity or for end user sales or marketing.
N.9 If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by an order or a lawful process of a court or governmental body, the Receiving Party shall promptly notify the Disclosing Party, and shall cooperate with the Disclosing Party in seeking reasonable protective arrangements before the Confidential Information is produced.
N.9 Each party agrees that a breach of any of the terms of this “Confidentiality” Section by the Receiving Party or its representatives will result in irreparable harm for which there is no adequate remedy at law, and in the event of any such breach the Disclosing Party may seek a preliminary or
 3 

 

permanent injunction and/or specific performance which shall be granted upon a finding of a breach (or substantial likelihood of a breach in the case of a preliminary injunction). Such remedies shall not be deemed to be the exclusive remedies for a breach of the terms of this “Confidentiality” Section, but shall be in addition to all other remedies available at law or in equity.
N.10 Each party will keep this Agreement and its terms confidential and will make no press release or public disclosure, either written or oral, regarding the transactions contemplated by this Agreement without the prior consent of the other party hereto, which consent will not be unreasonably withheld; provided that the foregoing will not prohibit any disclosure that is required by law or the rules of any stock exchange or other entity where a party’s securities are traded.
N.11 ADDITIONAL REQUIREMENTS WITH RESPECT TO CHARTER CUSTOMER INFORMATION. Any collection, maintenance, disclosure or use of the personally identifiable information of Charter customers shall be undertaken by 2 nd Party (i) to the extent applicable, in accordance with the subscriber information collecting business practices of Charter and in a manner that does not violate or cause Charter to be in violation of Charter’s written customer privacy policy (which practices and policies are described more fully at www.charter.com ) and, in all cases, (ii) in compliance with any applicable laws (domestic or foreign) governing the collection, maintenance, transmission, dissemination, use and destruction thereof, including specifically the subscriber privacy provisions of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. § 551), and any and all other applicable laws or regulations, including, but not limited to, the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., Cal. Penal Code § 637.5, any state and/or federal security breach notification laws; and (iii) in compliance with the Payment Card Industry Association Security Standards, to the extent the recipient has access to any Charter customer’s payment card information.
2 nd Party shall retain all customer information only for so long as is reasonably necessary to complete the purposes for which the Charter Customer Information has been disclosed to 2 nd Party, unless otherwise specified by a mutual written agreement of the Parties. Thereafter, 2 nd Party shall, at Charter’s election, permanently destroy or return such customer information to Charter with a certification signed by an officer of 2 nd Party that all such customer information has been destroyed or returned.
N.12 Upon reasonable request from Charter, 2 nd Party shall provide access to, and the right to inspect, all records relating to (i) the collection, processing, or transfers of data relating to Charter Customer Information and (ii) the information security measures used by 2 nd Party to secure Confidential Information, including without limitation, Charter’s Customer Information. Unless otherwise agreed, any such inspection shall be at Charter’s expense and shall occur only at the business offices of 2 nd Party during normal business hours and shall be conducted by a mutually acceptable third-party inspector and shall be subject to the confidentiality obligations set forth in this Exhibit G. 2 nd Party further agrees to cooperate, at Charter’s expense, in any regulatory investigation or in any internal investigation by Charter (and in responding to any inquiry by any Charter customer) relating to Charter Customer Information. In the event of any such investigation or inquiry, upon notice to 2 nd Party, Charter may suspend any further transfers of customer information for so long as may be necessary to obtain assurances that any additional transfers will not provide the basis for further regulatory action or possible liabilities. Any such suspension will not relieve either party for any liability arising from this Agreement or any other commercial agreements with Charter.
N.13 Without limiting or otherwise abrogating 2 nd Party’s other indemnity obligations stated elsewhere in the Agreement, 2 nd Party at its own expense shall indemnify and hold Charter harmless from and against any and all third party damage, loss, expense, claims, lawsuits, judgments and/or other liability (including without limitation attorneys’ fees and court costs) arising
 4 

 

from the failure of 2 nd Party, its agents, employees or contractors to comply with any of the terms set forth in this “Confidentiality” Section; provided Charter provides 2 nd Party with prompt written notice of such claim, reasonable cooperation and joint control over the defense and settlement of such claim; provided that Charter shall not unreasonably withhold its consent to any settlement proposed by 2 nd Party. Charter shall have the right but not the obligation to participate in defending against any such claim subject to the foregoing.
N.14 The provisions set forth in this Section, shall survive the expiration or earlier termination of this Agreement.
2. BUSINESS CONTINUITY PLAN. Notwithstanding anything to the contrary set forth in the Agreement, 2 nd Party agrees that it shall have and maintain a business continuity plan under which 2 nd Party shall proceed in the event of a disaster or other major event affecting its business operations in order to continue its operations after such event, including without limitation, compliance with its obligations under the Agreement.
 5 

EXHIBIT 10.17.2
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
SYNACOR
MASTER SERVICES AGREEMENT
1. PARTIES and EFFECTIVE DATE
1.1 Parties (each a “Party” and collectively, the “Parties).
 	 	 	 	 	 	 	 	 	 	 	
Synacor, Inc.	 	(“Synacor”)	 	ACC Operations, Inc. (“Client”)	
Attention:	 	George Chamoun	 	Attention:	 	Jeff Turner	 	 	 	 	
 	 	(the “Synacor Representative”)	 	 	 	(the “Adelphia Representative”)	 	 	 	 	
Address:	 	50 Fountain Plaza, Suite 1520	 	Address:	 	DTC Parkway	 	 	 	 	
 	 	Buffalo, New York 14202	 	 	 	Englewood, Colorado 80111	 	 	 	 	
Telephone:	 	716-853-1362 ext. 216	 	Telephone:	 	303-268-6362	 	 	 	 	
Fax:	 	716-332-0081	 	Fax:	 	303-268-6382	 	 	 	 	
1.2 Effective Date. July 13, 2004
2. SYNACOR SERVICES AND RESPONSIBILITIES
2.1 Services. Subject to the terms and conditions of this Master Services Agreement (this “Agreement”), Synacor will provide the services contracted for hereunder, as more particularly described in this Agreement, including the Content Distribution Addendum (the “Addendum”), Schedule A, Schedule B, Schedule C, and any other schedules, attachments, exhibits, addenda, amendments or riders that may be attached to this Agreement from time to time (collectively, the “Services”). Synacor may provide the Services directly to Client, or indirectly using contractors or other third party vendors or service providers; provided that, Synacor shall first obtain a written agreement from any such contractor or third party that such contractor or third party shall be bound by confidentiality obligations at least as protective of the Proprietary Information (as defined in Section 5.1 herein) of the Parties as the provisions of Section 5 of this Agreement and Synacor shall in all events be responsible to Client for any action or inaction of such contractors or third parties. Each party shall provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Client’s and its registered users’ use of the Services (such as, for example, developing any content, user interfaces or appearance specific to the Services contracted for by Client). The Services will be available to customers of Client subscribing to Client’s high speed internet (“HSI”) access service through a unique, HSI account number issued by Client (collectively, “Users”).
2.2 Additional Services. Upon mutual agreement of the Parties, Client may engage Synacor to provide development services or other professional services in addition to the Services. Such additional services shall be provided pursuant to a separately executed Professional Services Addendum. From time to time, Synacor may offer additional services to Client that are beyond the scope of this Agreement. All such additional services shall be provided upon terms and conditions as the Parties may mutually establish in writing which, provided that such additional services result in software, computer programs or other work product which is developed exclusively for Client (collectively, “Work Product”), shall include provisions relating to the ownership of such Work Product, including, without limitation, the intellectual property rights in such Work Product by Client as “works made for hire” for all purposes of copyright law.
2.3 Technical Support. Synacor will provide the Services and technical support services in accordance with the requirements set forth in this Agreement, including, without limitation, Schedule B — Service Level Agreement, attached hereto and made a part hereof.
2.4 Limitations. Synacor will not be responsible for, nor liable hereunder in connection with, any failure in the Services due to or resulting from: (a) any Client Materials (as defined in Section 3.3 herein) or other content provided by or for Client by parties other than Synacor; (b) Client’s negligence or Client’s acts or omissions; (c) telecommunications or equipment failures outside of Synacor’s facilities, except for those facilities owned, operated or maintained by Synacor, or by a third party on behalf of Synacor, necessary for Synacor to connect to the Internet; and (d) scheduled maintenance as set forth in Schedule B. Further, except for breaches of Synacor’s representation and warranty set forth in Section 8.1(g) hereof, Synacor will not be responsible for, or liable hereunder, in connection with, any failure in the Services due to or resulting from unauthorized access, breach of firewalls or other hacking by third parties of the System.

 

2.5 User Information. As between Synacor and Client, Client shall own all User names, login IDs, passwords and other User registration information provided by Client and Users in connection with the Services (“Account Information”). Unless otherwise agreed to by Client in advance and in writing, Synacor shall not disclose to third parties or use any Account Information except as reasonably necessary to perform its obligations under this Agreement or to comply with any legal or regulatory requirement; provided that, to the extent not otherwise prohibited by law, Synacor shall provide Client with prompt notice of any such legal or regulatory requirement in order that Client may comply with the provisions of Client’s privacy policy and/or any applicable federal, state and local privacy laws, rules and regulations and/or seek a protective order with respect to such Account Information. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject at all times to Section 5.2 herein, Synacor may disclose aggregate information (not personally identifiable) of Users and Service usage and performance derived from Account Information to Synacor Providers (as defined in the Addendum), Synacor customers and Synacor investors; provided that, no such information shall identify Client or any User or contain any Client-specific or User-specific information.
3. CLIENT RESPONSIBILITIES
3.1 Client Support; Synacor Status. Client acknowledges that the continuing performance of certain Services may depend on Client’s cooperation, assistance, information and access to Synacor. If Client fails to timely provide any of the foregoing, then Synacor will not be liable for any delay in its performance. The Parties’ Representatives (designated in Section 1.1) are responsible for facilitating communication between Synacor and Client regarding all technical and business matters.
3.2 Regulations. Client will use the Services only in compliance with all applicable federal, state and local laws, rules and regulations (including, without limitation, laws related to “spamming,” privacy, obscenity and defamation) (collectively, the “Regulations”). Client acknowledges and agrees that each User’s access to the Services is subject to such User’s acceptance of an “end user agreement” or “terms of use” regarding the Service and continuing compliance with the Regulations. Synacor has no obligation to monitor the Client Materials or other content provided by or for Client, except for Synacor Sourced Services (as defined in the Addendum). Synacor may do so, however, and may remove any content or disable or terminate any use of the Services that Synacor, in good faith, believes may be (or which is alleged to be) in violation of any Regulation.
3.3 Materials and Equipment. Client will provide (on its own behalf, or on behalf of its sponsors or advertisers) certain materials, domain names, Client Sourced Services (as defined in the Addendum) and other information (collectively, “Client Materials”) to Synacor as reasonably needed by Synacor to perform the Services. Client represents and warrants that it has the right to provide all Client Materials, and that use of such Client Materials hereunder will not violate Client’s obligations under any other agreement, the Regulations and any privacy policies covering any Client Materials. Except for any hardware, software and other technology used by Synacor to provide the Services, Client shall be responsible for obtaining, operating and maintaining in good working order all equipment and ancillary services under Client’s control needed in order for Users to connect to, access or otherwise use the Services via the Internet, including modems, authentication/provisioning servers, network hardware/software and such network and communication services necessary to connect Users to the Internet (“Equipment”). Client shall ensure that all Equipment is compatible with the Services (and, to the extent applicable, any software interface) and that the Equipment complies with all configurations and specifications set forth in the Synacor Specifications, attached hereto as Schedule C, which Schedule C the Parties hereby acknowledge is subject to finalization, upon mutual agreement, within the thirty (30)-day period immediately following the Effective Date. Client shall be responsible for the maintenance and integrity and security of its Equipment (physical, electronic and otherwise), Account Information, passwords, Client Materials and other data provided by Client to Synacor.
4. CLIENT LICENSE; SYNACOR PROPRIETARY RIGHTS.
4.1 License Grant. Client hereby grants to Synacor during the Term a nonexclusive, worldwide and royalty-free right and license to use, reproduce, modify, distribute, perform and display the Client’s Marks (as defined herein) solely in connection with the Services hereunder.
4.2 No Implied Licenses. Except for the limited rights and licenses expressed hereunder, each Party shall retain all right, title and interest in and to its logos and product and service names, which shall at all times remain trademarks
 2 

 

of such party (the “Marks”), technology and other intellectual property (including, without limitation, in the case of Synacor, the Services and the software used by Synacor to provide the Services (the “Software”)). Neither Party shall take any action inconsistent with such ownership. Each Party acknowledges that, as between the Parties, Client’s Marks and Synacor’s Marks are the exclusive property of the respective Party and/or one or more entities affiliated with such Party and neither Party has, nor will acquire, any proprietary rights thereto by reason of this Agreement or otherwise. This is a contract for services only. All software, hardware and other technology used to provide the Services will be installed, accessed and maintained only by or for Synacor and no license therein is granted to Client. Client shall not use Synacor’s Marks, Software or Services in any manner except as specifically provided herein. Synacor shall not use Client’s Marks in any manner, except as specifically provided herein. No title to or ownership of any Client Sourced Service, Client Marks or Client Materials and/or any part thereof is hereby transferred to Synacor or any third party, nor shall any rights therein accrue to Synacor or any third party as the result of the performance of this Agreement by either Party.
4.3 Restrictions. Except as specifically permitted in this Agreement, Client shall not, directly or indirectly: (a) use any of Synacor’s Proprietary Information (as such term is defined in Section 5.1) to create any software that is similar to the Software; (b) decompile, disassemble, reverse engineer or use any similar means to attempt to discover the source code of the Software or the trade secrets therein, or otherwise circumvent any technological measure that controls access to the Software or Services; (c) encumber, transfer (except as expressly permitted pursuant to Section 12 herein), rent, lease, or time-share the Software or Services, or use the Software or Services in any service bureau arrangement or otherwise for the benefit of any third party, except for Users; (d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify the Software; (e) remove any proprietary notices; or (f) permit any third party to engage in any of the acts proscribed in clauses (a) through (e).
5. CONFIDENTIALITY.
5.1 Proprietary Information. Each Party understands that the other Party or its representatives has disclosed or may disclose during the course of this Agreement Proprietary Information (as defined below) and each of the Parties desire to protect the confidentiality of its own Proprietary Information. For purposes of this Agreement, “Proprietary Information” means any information disclosed by either Party in the following forms: (a) information originally disclosed in written, graphic, machine-readable or any other tangible medium, to the extent marked with a “confidential,” proprietary” or similar legend, or (b) information disclosed orally, to the extent identified as Proprietary Information at the time of such original disclosure. For purposes hereof, any and all Account Information shall be deemed Proprietary Information of Client whether or not marked as such, or identified as such, prior to disclosure. Proprietary Information shall not include any information that the receiving Party can demonstrate by its written records (i) is or becomes generally available to the public without breach of this Agreement; (ii) was in its possession or known by it prior to receipt from the disclosing Party at a time when the receiving Party was under no obligation to the disclosing Party to keep such information confidential; (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Proprietary Information of the disclosing Party. The Party claiming that any of the foregoing exceptions applies shall have the burden of proving such applicability. Any issue that the receiving Party may have as to the confidentiality expectations of the disclosing Party regarding particular information shall be submitted to the disclosing Party for determination.
5.2 Non-Disclosure. Each Party shall refrain from copying the other Party’s Proprietary Information, in whole or in part, except as required in furtherance of the uses permitted by this Agreement and subject to the accurate reproduction of all proprietary legends and notices located in the originals, and shall limit dissemination of the other Party’s Proprietary Information to employees and agents of the receiving Party, or of the receiving Party’s affiliates, who have a need to know such Proprietary Information in furtherance of the uses permitted by this Agreement. Except for the specific rights granted by this Agreement, neither Party shall use or disclose any Proprietary Information of the other Party without its written consent. The receiving Party shall treat the Proprietary Information of the other Party with the same degree of confidentiality with which it treats its own Proprietary Information, and, in any event, the receiving Party shall use a commercially reasonable degree of care to protect the Proprietary Information of the other Party. Each Party shall bear the responsibility for any breach of confidentiality by its employees, agents, auditors and contractors. The terms and conditions of this Agreement shall be kept confidential, except for (a) disclosure as may be required by law, regulation, court or government agency of competent jurisdiction (redacted to the greatest extent possible); or (b) disclosure to each Party’s respective officers, directors, employees and attorneys, in their capacity as such; provided that, such parties shall be subject to this
 3 

 

Section 5.2. Notwithstanding the foregoing, each Party may disclose the general nature, but not any specific terms, of this Agreement without the prior consent of the other Party.
5.3 Required Disclosure. Nothing herein shall prevent a receiving Party from disclosing all or part of the other’s Proprietary Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that, prior to any such disclosure, the receiving Party uses reasonable efforts to (a) promptly notify the disclosing Party in writing of such requirement to disclose, to the extent not otherwise prohibited by law; (b) cooperate fully with the disclosing Party in protecting against any such disclosure or obtaining a protective order; (c) only disclose that portion of Proprietary Information which it is advised in writing by counsel it is required to disclose; and (d) obtain safeguards that confidential treatment reasonably acceptable to the disclosing Party will be accorded to such Proprietary Information. Any such required disclosure shall not, in and of itself, change the status of the disclosed information as Proprietary Information under the terms of this Section 5.
5.4 Return of Proprietary Information; Ownership. All Proprietary Information shall remain the exclusive property of the disclosing Party and a valuable trade secret of such Party and the original and all copies thereof, on whatever physical, electronic or other media such Proprietary Information may be stored, shall be returned upon the earlier to occur of: (a) the expiration or earlier termination of this Agreement, or (b) within ten (10) business days of the disclosing Party’s request. Nothing in this Agreement shall be construed as granting any license or other rights under any patents or copyrights of either Party, or any rights in or to Proprietary Information of either Party, except for the limited rights to use and disclose such Proprietary Information expressly granted to the other Party in this Agreement.
5.5 Relief. The Parties each acknowledge that the rights being protected by this Section 5 are of a special, unique, unusual and extraordinary character, which gives them a particular value, and that money damages will not be an adequate remedy if Section 5 is breached and, therefore, the disclosing Party shall, in addition to any other legal or equitable remedies, be entitled to seek an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond.
6. SYNACOR FEES, PAYMENT TERMS AND TAXES.
6.1 Fees . Synacor’s fees for the Services are set forth in the Pricing Schedule attached hereto as Schedule A and made a part hereof.
6.2 Payment Terms. Except as otherwise provided in this Agreement or any amendment, addendum, attachment, exhibit, rider or schedule attached hereto as the same may be amended from time to time pursuant to their terms, all payments shall be due [*] after receipt of an applicable invoice. All payments shall be made in full in United States Dollars, at Synacor’s usual business address or to an account designated by Synacor. Other than amounts disputed in good faith by Client, any amount not paid when due shall bear a late payment charge, until paid, at the rate of [*] or, if less, the maximum amount permitted by law. Synacor, in its sole discretion, may terminate this Agreement or cease providing services if Client fails to pay any invoice [*] after the Client receives written notice from Synacor that it has failed to pay an invoice and such invoice, or any part thereof, is not in dispute. Client must notify Synacor of any disputed invoice amounts [*] of receipt of such invoice and provide a full explanation for any disputed amounts.
6.3 Taxes . Client shall be responsible for and shall pay any and all sales, use, personal property or other taxes imposed on the delivery, licensing or use of the Client Branded Portal (as defined in Schedule A) or the provision of the Services. Synacor shall pay all other taxes arising under this Agreement, including without limitation, taxes based upon Synacor’s net income or ad valorem, personal, or real property taxes imposed on Synacor’s property.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall commence as of the date hereof and, unless earlier terminated pursuant to the terms hereof, shall continue thereafter in full force and effect for a period of two (2) years from the Effective Date (the “Initial Term”) and, except as provided in the immediately following sentence, will automatically renew thereafter for up to five (5) additional terms of one (1) year each (each a “Renewal Term”) (the Initial Term and all
 
*CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 4 

 

Renewal Terms being referred to as the “Term”). Either Party may prevent the automatic renewal of this Agreement by providing written notice to the other Party of such non-renewal not less than sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.
7.2 Termination for Cause. In addition to any of its other remedies, either Party may terminate this Agreement: (a) in the event that the other Party materially breaches any provision of the Agreement and the breaching Party fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party; or (b) effective immediately upon written notice, in the event any assignment is made by the other Party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of such other Party’s property, or if a voluntary or involuntary petition under federal bankruptcy laws or similar state statutes is filed against the other Party, or if it dissolves or fails to operate in the ordinary course. Synacor acknowledges that Client is a debtor and debtor in possession pursuant to Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”), in the case entitled In Re Adelphia Communications Corporation, et al., Case No. 02-41729 (REG) (the “Bankruptcy Case”), pending in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”). Notwithstanding anything in this Agreement to the contrary, the Bankruptcy Case shall not be cause for termination under this Section 7.2 or any other provision of this Agreement.
7.3 Effects of Termination. Upon any expiration or earlier termination of this Agreement, all rights and obligations of the Parties shall cease, except that: (a) all obligations that accrued prior to the effective date of termination (including, without limitation, all payment obligations) shall survive termination; (b) each Party shall destroy (upon the written request of the other Party) or return to the other Party all of the other’s Proprietary Information in its possession or under its control pursuant to Section 5.4; and (c) Synacor shall, after providing Client with an electronic copy of such information and data in a mutually agreeable format, delete archived Account Information and other transaction data. The provisions of Sections 4.2 and 4.3 (Proprietary Rights), 5 (Confidentiality), 6 (Synacor Fees, Payment Terms and Taxes), 8 (Representations and Warranties; Indemnities), 9 (Limitations of Liability and Disclaimers), 12 (General Provisions) and this Section 7 shall survive any termination of this Agreement.
[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 5 

 

8. REPRESENTATIONS AND WARRANTIES; INDEMNITIES.
8.1 Synacor Representations and Warranties. Synacor represents, covenants and warrants to Client that (a) Synacor is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Synacor does not conflict with any agreement, instrument or contract, to which Synacor is bound; (c) Synacor shall perform the Services [*]; (d) Synacor owns all right, title and interest in and to the Software, the Synacor Sourced Services and the System, each element thereof, and all intellectual property rights embodied therein or licensed to Client pursuant to this Agreement; or, in the case of any third party content, software, technology or information included therein, Synacor possesses, or has otherwise obtained all rights and valid licenses necessary to grant to Client all rights and licenses set forth in this Agreement; (e) Synacor has all necessary rights in the Software and the Services and all rights of publicity with respect to any artists, artwork, text material, images, sound or video, if any, associated with the Services; (f) the Software, the Synacor Sourced Services, the System, the Services and the Client Branded Portal, in whole or in part, do not and shall not infringe or interfere with any right of publicity, patent, trademark, copyright, trade name or other intellectual property rights or misappropriate any trade secret of any third party; (g) Synacor shall [*] protect its network in accordance with [*] to insure that Synacor’s network and the Services are secure from unauthorized access and are free from any viruses, worms, or other code that will damage, interrupt or interfere with any software, content, data or hardware; and (h) the Services and the Software (excluding any tools, applets or other software included in or comprising any Synacor Sourced Services and any tools developed by Synacor which have expressly been discussed with Client and which Client has agreed shall be made available to Users) shall not cause any disruption, interruption or failure to any of Users’ end user equipment or Users’ ability to access the Internet. Synacor further represents and warrants that, to its knowledge, the Synacor Sourced Services and the Services are not defamatory, obscene, or otherwise unlawful in any jurisdiction, Synacor further represents and warrants to Client that during the Term, the Services shall be provided in accordance with applicable United States federal law and the laws of such other jurisdictions as may be applicable thereto by qualified personnel. Synacor shall use commercially reasonable efforts, consistent with applicable industry standards and practices, to provide the Services in a manner designed to minimize errors and interruptions. Nonetheless, Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency repairs, by Synacor or by third-party providers, or because of other causes beyond Synacor’s reasonable control, subject at all times to the provisions of Paragraph 8 of Schedule A and to Schedule B.
8.2 Client Representations and Warranties. Client represents, covenants and warrants to Synacor that (a) Client is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Client does not conflict with any agreement, instrument or contract, to which Client is bound; (c) Client owns all right, title and interest in and to the Client Materials, including, but not limited to, the Client Sourced Services, each element thereof, and all intellectual property rights embodied therein or licensed to Synacor pursuant to this Agreement; or, in the case of any third party content, software, technology or information included therein, Client possesses, or has otherwise obtained all rights and valid license necessary to grant to Synacor all rights and licenses set forth in this Agreement; and (d) to Client’s knowledge the Client Materials are not defamatory, obscene, or otherwise unlawful and do not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity. Client shall be fully responsible for, and shall reimburse Synacor for any and all liabilities arising out of, any warranty concerning the Services made by Client to any User, prospect or other third party, except as expressly authorized in advance in writing by Synacor.
8.3 Synacor Indemnifications. Synacor shall indemnify, defend and hold harmless Client, its permitted assigns and each of Client’s and its permitted assigns respective present and former officers, shareholders, directors, employees, partners and agents from and against any and all liabilities, claims, judgments, costs, damages, suits, actions, proceedings, and expenses, including without limitation, reasonable attorneys’ fees, and/or other losses (collectively “Claims”) suffered or incurred by Client, arising out of or resulting in any manner from: (i) Synacor’s breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; (ii) the failure of any of the representations or warranties made by Synacor herein to be true; (iii) any third party claims relating to the matters covered by the foregoing breaches or failures; (iv) any injuries to persons or damage to property caused by the negligent, willful or intentional acts or omissions of Synacor, its agents or employees; and (v) any third party claims relating to the Services.

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 6 

 

8.4 Client Indemnifications. Client shall indemnify, defend and hold harmless Synacor and its present and former officers, shareholders, directors, employees, partners and agents from any and all Claims suffered or incurred by Synacor, arising out of or resulting in any manner from: (i) Client’s breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; (ii) the failure of any of the representations or warranties made by Client herein to be true; (iii) any third party claims relating to the matters covered by the foregoing breaches or failures; and/or (iv) any third party claims relating to Client Materials.
8.5 Claims. In case any Claim is brought by a third party for which indemnification is or may be made pursuant to this Agreement, the indemnified Party shall provide prompt written notice thereof to the other Party; provided, however, that the failure of the indemnified Party to comply with the foregoing notification provision shall not relieve the indemnifying Party of its indemnification obligations hereunder, except to the extent the indemnifying Party is actually and materially prejudiced thereby. Where obligated to indemnify such Claim, the indemnifying Party shall, upon the demand and at the option of the indemnified Party, assume the defense thereof (at the expense of the indemnifying Party) within [*] to the time a response is due in such case, claim or proceeding, whichever occurs first. The Parties shall cooperate reasonably with each other in the defense of any Claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defense of such Claim, and the indemnified Party shall have the right to join and participate actively in the indemnifying Party’s defense of the Claim. Each Party shall be entitled to prior notice of any settlement of any Claim to be entered into by the other Party and to reasonable approval of a settlement to the extent such Party’s rights would be directly and materially impaired. Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any portion of the Software and/or Services provided by Synacor: (i) upon Client’s request and at Synacor’s expense, Synacor will use its best efforts to procure the right or license, on commercially reasonable license terms, for Client to continue to use and otherwise exploit in accordance with the terms hereof such portion of the Software and/or Services at no additional cost or expense to Client other than the fees set forth herein; or (ii) at Synacor’s sole discretion, but upon as much prior written notice to Client as is reasonably practicable, Synacor may modify or alter (to the extent that Synacor has rights to so modify or alter), or delete any such portion of the Software and/or Services, as the case may be, so as to make such portion non- infringing while maintaining substantially comparable functionalities and capabilities of such parts of the Software and/or Services that are material to Client’s then-current or demonstrably anticipated use hereunder. If options (i) and (ii) are not achievable as to any such infringing portion of the Software and/or Services: (1) Client may terminate the rights and licenses granted hereunder, in its sole discretion, as to such infringing portion; provided that, if the termination of such infringing portion materially impairs the core functionality and/or capabilities of the Software, then such infringement shall be deemed a material breach under this Agreement, and Client may thereafter pursue all of its rights and remedies available under this Agreement and at law or in equity in addition to terminating as to such infringing portion pursuant to this clause (1), or (2) to the extent Synacor used commercially reasonable efforts to obtain a license or modify the Software and/or Services as set forth in subsections (i) or (ii), and Synacor is reasonably exposed to liability from Client’s continued use of such portion of the of the Software and/or Services, Synacor may, in its discretion, terminate the rights and licenses granted hereunder with respect to such portion; [*].
8.6 Insurance . Synacor shall obtain, before the commencement of the Services herein described, and, during the term of this Agreement, maintain in full force and effect, the insurance coverage described in this Section with an insurance carrier or carriers approved by Client, which approval shall not be unreasonably withheld. Synacor shall include Client as an additional insured party in Synacor’s liability insurance policies obtained hereunder. The minimum acceptable limits and types of coverage shall be not less than [*] combined single limit per occurrence for each of the following categories: (a) commercial general liability, covering the risks of bodily injury, property damage and personal injury (including death); and (b) automobile liability (owned and unowned) covering the risks of public liability and property damage. Additionally, Synacor shall, throughout the Term and for a period of not less that twelve (12) months following the expiration or earlier termination of this Agreement, maintain in full

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 7 

 

force and effect professional liability (technology errors and omissions) insurance in an amount not less than [*]. Synacor shall obtain, before the commencement of the Services herein, and, during the term of this Agreement, maintain, in full force and effect, worker’s compensation coverage in amounts commensurate with the statutory requirements of the states in which the Services are to be performed. Client will not be responsible for payment of worker’s compensation premiums or for any other claim or benefit for Synacor, or any employees, agents, contractors or subcontractors of Synacor, which might arise under the worker’s compensation laws during the performance of Services under this Agreement. Synacor shall require any and all of its contractors and subcontractors to take out and maintain similar policies of insurance as described in this Section 8.6 or be properly certified under applicable state law as self-insured. A certificate of such insurance policy carried shall be furnished to Client upon request. Synacor shall, prior to the commencement of work under this Agreement, provide to Client a certificate of insurance evidencing such coverage as mentioned above, which shall also provide that Client will be notified in writing at least thirty (30) days prior to renewal, cancellation of, or any change in, coverage during the term of this Agreement.
9. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS, AFFILIATES, CLIENTS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. HOWEVER, WITH RESPECT TO LOST REVENUES OR LOST PROFITS, THE FOREGOING DISCLAIMER SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING OR OBTAINING LOST REVENUES OR LOST PROFITS TO THE EXTENT THAT SUCH ARE EXPRESSLY PROVIDED FOR BY STATUTE OR OTHERWISE ALLOWED BY LAW AS THE MEASURE OF DIRECT DAMAGES (INCLUDING TREBLE DAMAGES RESULTING FROM WILLFUL INFRINGEMENT) WITH RESPECT SOLELY TO (A) ANY BREACH BY EITHER PARTY OF ITS OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 5 ( CONFIDENTIALITY ), OR (B) LIABILITIES ARISING IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (BUT WITH RESPECT TO THIRD PARTY DAMAGES ONLY). EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.3 HEREIN AND ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 HEREIN TO WHICH NO LIMITATION SHALL APPLY, IN NO EVENT WILL SYNACOR’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE GREATER OF: (1) THE AMOUNT SYNACOR HAS RECEIVED FROM CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT DURING THE TERM HEREOF, OR, (2) FIVE MILLION DOLLARS ($5,000,000.00).
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY, SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYNACOR DOES NOT WARRANT THAT THE SERVICES WILL MEET THE REQUIREMENTS OF CLIENT OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, SYNACOR DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, SYNACOR MAKES NO WARRANTY WITH RESPECT TO ANY SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SYNACOR DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE CONTENTS OF ANY CONTENT OR THE RESULTS TO BE OBTAINED FROM THEIR USE. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.3 HEREIN, SYNACOR SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 ABOVE, CLIENT MAKES NO WARRANTY WITH RESPECT TO ANY CLIENT SOURCED SERVICE AND EXPRESSLY DISCLAIMS ANY WARRANTY,

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 8 

 

EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.4 HEREIN, CLIENT SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
10. PUBLIC RELATIONS. Except as it relates to Client’s marketing of portal and related matters to Users and as otherwise permitted by the last sentence of Section 5.2 herein, neither Party will issue any press release, nor otherwise disclose any information concerning this Agreement without the prior written consent of the other. The Parties agree that a joint press release regarding the establishment of their relationship is appropriate and that each will dedicate appropriate resources to such effort.
11. RECORDS AND AUDIT.
(a) Throughout the Term and for a period of one (1) year after the expiration or earlier termination of this Agreement, each of the Parties shall maintain books and records regarding the Services, and other matters relating to this Agreement, including, without limitation, server logs, and customer usage logs, in accordance with generally accepted accounting principles. Each Party shall have the right to audit such books and records of the other party solely and directly relating to this Agreement and all amendments, addendums, attachments, schedules, riders and/or exhibits attached hereto exhibits, upon reasonable notice and at its expense, not more frequently than once per consecutive twelve (12)-month period during the Term and for a period of one (1) year thereafter and to take extracts from and/or make copies of such records. Each party shall maintain at its principal place of business during the Term and for a period of one (1) year thereafter all books, records, accounts, and technical materials regarding its activities in connection herewith sufficient to determine and confirm all amounts payable to the other Party and all compliance with all other material obligations hereunder. Upon a Party’s written request (to be provided at least ten (10) business days prior to the date of the audit), the other Party will permit one (1) or more representatives of an auditor or agent of the requesting Party’s choice to examine and audit, during normal business hours, such books, records, accounts, documentation and materials solely and directly relating to this Agreement and/or the provision of the Services hereunder, and take extracts therefrom or make copies thereof for the purpose of verifying the correctness of payments made pursuant hereto and/or compliance with the other material obligations hereunder; provided that, the auditing Party shall first obtain a written agreement from any such auditor or agent that such auditor or agent shall be bound by the confidentiality obligations set forth in Section 5 herein and the auditing Party shall in all events be responsible to the audited Party for any action or inaction of such auditor or agent that would violate Section 5 of this Agreement. Unless otherwise agreed by the Parties in writing, such examination shall be in accordance with generally accepted accounting principles. The audited Party shall pay any unpaid, non-disputed delinquent amounts within thirty (30) days of the other Party’s request. To the extent such examination discloses an underpayment of the greater of (i) 5% of the aggregate amount paid or payable to the other Party during the period which is the subject of the audit, or (ii) $15,000, the audited Party shall fully reimburse the other Party, promptly upon demand, for the reasonable fees and disbursements due the auditor for such audit; provided that, such prompt payment shall not be in lieu of any other remedies or rights available to such other Party hereunder. In all other events, all fees and expenses of the auditing Party’s auditor or agent under this Section shall be paid by the auditing Party. If an audit reveals an overpayment, the auditing Party shall promptly notify the other and shall pay the amount of any such overpayment to the other Party within thirty (30) days thereafter.
(b) If any report of an audit under the provisions of subsection (a) of this Section discloses to the auditing Party any underpayments or overpayments, a copy of such audit report shall be promptly delivered to the audited Party. Unless the amount of any underpayment or overpayment shown on such report is disputed by the audited Party in writing (a “Notice of Dispute”) within twenty (20) days after receipt of the audit report, the audit report shall be deemed accepted and all amounts due thereunder shall be paid according to the applicable provisions of subsection (a) of this Section. In the event that Client and Synacor have not resolved all disputed items to their mutual satisfaction within thirty (30) days after a Notice of Dispute has been received by the auditing Party, the Parties shall promptly submit such audit report and all supporting work papers to an independent accounting firm (i.e., an accounting firm that does not, and has not, provided any services to either Party or to any of the Parties’ subsidiaries or affiliated entities) of national stature in the United States selected by mutual agreement of Client and Synacor for binding review of any disputed items. All costs and expenses of such review shall be apportioned between the
 9 

 

Parties on the basis of each Party bearing the expense of that portion of the review which shall be related to disputed items that are resolved against such Party. If Client and Synacor are unable to agree upon the selection of an independent accounting firm of national stature in the United States to perform the binding review of any disputed items, the determination and selection of the independent accounting firm of national stature shall be settled by arbitration in Buffalo, New York in accordance with the rules and regulations of the American Arbitration Association.
12. GENERAL PROVISIONS. This Agreement is not transferable by either Party without the other’s prior written consent (which shall not be unreasonably conditioned, delayed or withheld), except that either Party may (without consent) assign its rights and obligations hereunder to any entity that is controlled by, controls, or is under common control with the assigning Party or to any successor entity to all or substantially all of its business (by sale or other transfer of equity or assets, merger, consolidation, reorganization or otherwise). Without limiting the foregoing, Client shall also have the right to assign this Agreement, without consent of Synacor, pursuant to (a) the terms of a plan of reorganization in connection with the Bankruptcy Case; or (b) a sale of assets of Client, which includes this Agreement, pursuant to either Section 363 of the Bankruptcy Code or approval of such sale by the Bankruptcy Court (collectively, the “Bankruptcy Assignment Rights”). Except in connection with the exercise of the Bankruptcy Assignment Rights, Client may not, without the prior written consent of Synacor, assign this Agreement to any third party with whom Synacor has, as of the date of the proposed assignment, a valid, written agreement with respect to the provision of services that are, in all material respects, identical to the Services being provided in the aggregate hereunder. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties. This Agreement (including any schedules, exhibits, riders, addendums, amendments and attachments) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties concerning the subject matter of this Agreement. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both parties. In the event of any conflict or inconsistency between the terms and conditions in this Agreement and any schedule, exhibit, rider, attachment or addenda attached hereto, the terms and conditions of the Agreement will prevail. Except as expressly provided herein, any different or additional terms on any related purchase order, confirmation or similar form, even if signed by the Parties after the date hereof, shall have no force or effect on this Agreement. The Parties agree that Synacor and its employees and agents will be serving Client as independent contractors for all purposes and not as employees or partners of, or joint venturers with, Client, No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect. Neither Synacor nor Client shall be or become liable or bound by any representation, act or omission whatsoever of the other. This Agreement is intended for the sole and exclusive benefit of the Parties hereto and their permitted assigns. Except as expressly provided in Section 8(g) of the Addendum, neither Party intends to benefit any other person or entity, including, without limitation, a “third party beneficiary,” as that term may be defined by applicable statutory or case law, and no other person or entity who is not a party (including, without limitation, an obligor, borrower, or guarantor) shall have any right to rely upon this Agreement for any purpose whatsoever. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. Headings are for convenience of reference only and shall in no way affect interpretation of the Agreement. This Agreement may be executed in one or more counterparts, each of which (once executed) shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Neither Party shall have any rights against the other Party hereto for the non-operation of facilities or the non-furnishing of services or fulfillment of obligations if such non-operation, non-furnishing or non-fulfillment is due to an act of God or other cause beyond such Party’s reasonable control. All remedies, whether at law, in equity or pursuant to this Agreement shall be cumulative.
[SIGNATURE BLOCKS FOLLOW ON NEXT PAGE]
 10 

 

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	ACC OPERATIONS, INC. (CLIENT)	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun
 	 	 	 	By:	 	/s/ Marwan Fawaz
 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: Marwan Fawaz	 	 	 	 	 	 	
 	 	Title: SVP	 	 	 	 	 	Title: CTO/SVP	 	 	 	 	 	 	
Date:	 	7/21/2004	 	 	 	Date:	 	July 13 th , 2004	 	 	 	 	 	 	
 11 

 

SCHEDULE A
TO
SYNACOR MASTER SERVICES AGREEMENT
PRODUCT & PRICING SCHEDULE
     This Schedule A forms a part of, and is governed by, the Synacor Master Services Agreement dated July 21 2004, by and between Synacor, Inc. and ACC Operations, Inc., including any schedules, attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule A and not defined herein shall have the meanings ascribed to such terms in the Agreement.
The product deliverables and fees payable by Client to Synacor pursuant to the Agreement are set forth below.
1. Portal Features and Functionality (including Portelus Technology).
     (a) Portal deliverables consist of the following product elements:

 	(i)	 	development of a Client Branded Portal with elements of Synacor’s standard portal template branded with Client presentation layer (look and feel, logos, trademarks, etc. ) formatted as provided in Section 1(b) below and as further defined in the Synacor Specifications);	
 		
 	(ii)	 	Content Publishing and Administration Components, as defined in the Synacor Specifications;	
 		
 	(iii)	 	personalization elements of Client Branded Portal for establishment of User preferences on display;	
 		
 	(iv)	 	Application Portal Interfaces (“API’s”) for unified registration, login and update associated with mutually agreed portal components, as further described in the Synacor Specifications. Client will work in good faith to conform to Synacor’s current API structure. Synacor will work in good faith to perform, at no additional cost to Client, any reasonable and limited enhancements or modifications to the standard Synacor API structure as necessary in order to assist the Client to fit its operational support system;	
 		
 	(v)	 	hosting of portal framework and content within Synacor’s data center or Client’s internet protocol (“IP”) network, according to Paragraph 8 of Schedule A and Schedule B. Initial service will begin with hosting in Synacor’s data center, with the ability, upon Client’s request, [*]. To the extent that Synacor, in its reasonable discretion, determines that any Client Sourced Service requires an inordinate amount of capacity to “nest” and host within Synacor’s data center, Synacor may request that Client host such content within Client’s data center;	
 		
 	(vi)	 	internetwork peering connection (“Peering”) between Synacor and Client for the purpose of transmitting data from Synacor’s network to Client’s network, pursuant to the terms and conditions of a Peering Agreement to be mutually agreed upon by the Parties as promptly as practicable following execution of the Agreement. Client shall be responsible for providing and maintaining the equipment necessary to maintain the Peering connection to Client’s IP network, including, without limitation, router ports, cross-connects, and fiber and/or circuit	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-1 

 

 	 	 	connections. Synacor shall be responsible for providing and maintaining the equipment necessary to maintain the Peering connection to Synacor’s data center, including, without limitation, routers, cross-connects and necessary hardware; and	
 		
 	(vii)	 	assistance from Synacor in obtaining Peering connections to Synacor Provider Content which Client accesses utilizing the Service.	
     (b) The Portal deliverable shall be Synacor’s standard portal product, together with User Authentication (as defined in the Synacor Specifications) (the “Portal Deliverable”), customized with Client’s color scheme, logo, design elements and other ‘look and feel” elements as determined by Client (the “Appearance Requirements,” as more fully described in the Synacor Specifications), which shall be delivered within ninety (90) days after the Effective Date, unless the Parties otherwise mutually agree. The Client Branded Portal will provide the functionality described in the Synacor Specifications. If Client desires additional appearance or functionality for the Client Branded Portal, the Parties will, upon Client’s request, negotiate in good faith for at least thirty (30) days with respect to additional deliverables and the cost to Client for such additional deliverables. Client will use good faith efforts to launch the Client Branded Portal to Users within sixty (60) days after acceptance of the Client Branded Portal as provided in Paragraph 7 of this Schedule A.
     (c) The fees associated with delivery of Client Branded Portal and Portelus Technology are listed below:
          (i) [*]
          (ii)[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-2 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-3 

 

[*]
2. Portal Content:
     (a) The below-listed initial Content (the “Initial Information Services”) will be integrated into the Client Branded Portal [*]:
          (i) Switchboard: Including Yellow, White Pages, Maps, Restaurant Search;
          (ii) [*] Search;
          (iii) Horoscopes;
          (iv) Auto Channel — currently provided by [*];
          (v) Career Channel — currently provided by [*]; and
          (vi) Travel Channel — currently provided by [*].
     (b) The following Portal content may be integrated into the Client Branded Portal, for the costs listed below, which will be pass-through costs from third party content providers to Client, with no mark-up by Synacor:
          (i) [*] News service (stories, pictures, videos, etc. ) as set forth below (“[*] News Service”) is included in the portal so that when a User clicks on a news story or video the User will remain within the portal. The [*] News Service includes:

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-4 

 

 	•	 	National News	
 		
 	•	 	World News	
 		
 	•	 	Sports News	
 		
 	•	 	Entertainment News	
 		
 	•	 	Health News	
 		
 	•	 	Business and Finance News	
 		
 	 	 	[*]	
          (ii) Local movie listings by Zip Code
     [*]
3. Synacor Sourced Services Fees. For purposes of creating a fee structure, relevant Synacor Sourced Services may be bundled into products as described below (the “Synacor Products”) at the request of Client, and subject to Client’s prior written approval. In the event Client elects any such Synacor Product, each month, Synacor shall bill Client for an amount determined [*]. For purposes hereof, a “Subscription Account” is defined as an account that allows a User access to a given Synacor Product utilizing Unified Login.
     Synacor Products may be made available from time to time to Client for distribution to Users as described in separate Content Attachments (as defined in Paragraph 9 of the Addendum) and for the monthly fees described in such Content Attachments.

 	 	 	[*]	
     The first annual billing cycle shall end on the first anniversary of the Effective Date.
4. High Capacity Bandwidth and Hardware Fees. Synacor would prefer for the Client to host products such as video streaming, which are considered high capacity Internet bandwidth (“High Capacity”) services. Client agrees to reasonably pay, on a monthly basis, the fees or other charges incurred by Synacor (at Synacor’s cost), for the additional internet connectivity bandwidth and/or hardware required to host High Capacity services hosted directly on Synacor’s network, at Client’s choosing.
5. Content Integration Fees. Client will pay to Synacor an integration fee in connection with any new third party premium content or services (each a “Client Sourced Service”), that is not a Synacor Sourced Service and which Client requests Synacor to integrate into the Client Branded Portal and that requires utilization of Unified Login. Provided that such integration requires [*] of software development time, such fee will be [*]. Subsequent to such integration, such Client Sourced Service shall, so long as Client continues to make such Client Sourced Service available to Users by way of the Client Branded Portal, be managed by Synacor, [*], pursuant to the terms of the Agreement as if it were a Synacor Sourced Service, including, without limitation, Unified Login Registration and Revision Management (each as defined in the Synacor Specifications). If such integration is reasonably anticipated by Synacor to require [*] of software development time, Synacor will prepare a detailed statement of work for such integration, including the fee payable to Synacor, which shall be approved by Client prior to the commencement of work. [*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-5 

 

[*]
6. Professional Services. The following services are considered professional services:
     (i) Integration beyond Synacor’s APIs;
     (ii) Portal customization beyond the look, feel, element placement and similar options embedded in the Synacor Portal template (as defined in the Synacor Specifications) as of the date of the Agreement;
     (iii) Onsite Training and Travel; and
     (iv) Other programming or customizations not specified in the Synacor Specifications.
     Such Professional Services shall be billed at the rate of [*].
7. Acceptance Process. Client may test and approve the Client Branded Portal prior to launching it to Users. Commencing upon the delivery to Client of the Client Branded Portal as set forth in the Synacor Specifications and continuing up to [*] days thereafter (the “Test Period”), Client shall have the right and will use its best efforts to test that the Client Branded Portal substantially meets both the Appearance Requirements and the Synacor Specifications. Within five (5) business days after the expiration of the Test Period, Client will provide Synacor with (a) written acceptance of the Client Branded Portal, or (b) written rejection, including a reasonably detailed explanation therefor (a “First Rejection Notice”), if the Client determines in good faith that the Client Branded Portal does not substantially meet the Appearance Requirements and/or the Synacor Specifications. In the event the Client does not deliver a First Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed to have been accepted by the Client. In the event that Client provides a First Rejection Notice, then Synacor will use its best efforts to correct the identified failures as soon as commercially reasonable and, in no event, later than [*] days after receipt of such First Rejection Notice Synacor shall resubmit the Client Branded Portal to Client for further testing for a period of not more than [*] days (the “Second Test Period”) by Client with respect to the specific failed criteria. Within [*] days after the expiration of the Second Test Period, Client will provide Synacor with either (i) written acceptance of the Client Branded Portal, or (ii) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection Notice have not been corrected, including a reasonably detailed explanation therefor (a “Second Rejection Notice”). In the event the Client does not deliver a Second Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed to have been accepted by the Client. In the event that Client provides a Second Rejection Notice, Client shall resubmit the Client Branded Portal to Synacor and Synacor will use its best efforts to correct the identified failures as soon as commercially reasonable and, in no event, later than [*] days after receipt of such Second Rejection Notice, Synacor shall resubmit the Client Branded Portal to Client for final testing. Client shall conduct final testing for a period of not more than [*] days (the “Final Test Period”) with respect to the specified failed criteria. Within [*] days after the expiration of the Final Test Period, Client will provide Synacor with (A) written acceptance of the Client Branded Portal, or (B) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection Notice or Second Rejection Notice have still not been corrected (a “Final Rejection Notice”). In the event the Client does not deliver a Final Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed to have been accepted by the Client. If Client provides a Final Rejection Notice and Client has not otherwise agreed to pursue further development and/or testing of the Client Branded Portal, the Final Termination Notice shall constitute a notice of termination of the Agreement without further liability of either Party to the other, provided, however, that Synacor shall return [*] to Client within [*] after receipt of the Final Rejection Notice.
8. Technical Support. Synacor will provide Client Tier 2 e-mail and telephone support to Client’s escalation specialists. These specialists will be trained by Synacor to offer support to Client’s First-Level Support staff. Synacor shall make its support center standard hours available 24 hours per day, 365 days per year throughout the Term.
     (a) Escalation and Tracking Process. Synacor will provide an effective process to track escalations from Client Technical Support. Synacor Customer Service will process two (2) types of escalation methods from Client:

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 A-6 

 

 	(i)	 	E-mail: Client personel will e-mail Synacor Support: adelphia@synacor.com	

 	a.	 	Synacor’s e-mail system will send Client support questions to Synacor’s Tier 2 customer support agent(s).	
 		
 	b.	 	A Synacor customer agent will respond with the answer to the question or a Ticket Tracking number assigned to an escalation (as set forth below).	
 		
 	c.	 	The Synacor customer agent will then notify the Client escalation group with the appropriate timeline for the escalation to be resolved.	

 	(ii)	 	Phone: In the event that a support issue so requires (e.g., Priority 1, Portal Unavailability, or Synacor/Client Unavailability), or is otherwise better addressed by a telephone call rather than e-mail, Client may by-pass Escalation Level 1 (as defined below) support and apply Escalation Level 2 support and initiate a call directly to a Synacor support specialist. Such calls will be placed solely from a Client escalation group person who is responsible for initiating Level 2 support requests. Following each such call, a Client escalation Level 2 support person will send an e-mail confirming all the technical details regarding the issue. Synacor will follow the same process of tracking such issues via the e-mail Ticket Tracking system.	
 		
 	(iii)	 	The Ticket Tracking number allows a Client support agent to easily follow the progress of the case resolution process and maintain the integrity of the e-mail exchange thread.	
 		
 	(iv)	 	Each incoming e-mail from Client will be queued in a Client-specific queue (partnersupport) until a Synacor support agent assigns it to himself/herself and marks it as “work in progress” until the case is resolved.	
     (b) The escalation process starts with the troubleshooting, diagnosis, and resolution as Client’s service team receives alerts, they are prioritized and assigned to a Synacor support technician. The Synacor support technician then attempts to diagnose and fix the problem quickly and efficiently. Should the problem be too severe for simple solution by Client, the problem incident is escalated to the Synacor development team as soon as practical.

 	(i)	 	Escalation Process Example	

 	a.	 	Registered End User has a question about Product	
 		
 	b.	 	User calls the Client Technical Support number or e-mails Client	
 		
 	c.	 	User reports an issue believed to stem from use of Portal	
 		
 	d.	 	Client Support agent is unable to provide a resolution and contacts Synacor Customer Service via e-mail or telephone	
 		
 	e.	 	Client Support agent will send e-mail to Synacor with all the details of the issue following a telephone call	
 		
 	f.	 	Client Support agent collects the User’s e-mail address and telephone number, notes the nature of the inquiry and submits the relevant information to Synacor Customer Service (using the Escalation Process).	
 		
 	g.	 	Synacor receives the information from Client, and proceeds with the investigation applying the escalation process	
 		
 	h.	 	Synacor supplies Client with a solution to the problem and resolves the issue as appropriate	

 	(ii)	 	Synacor Escalation Response Times	
 	 	 	 	 	
Escalation Levels	 	Escalation Response Time	 	Contact Information	
Level 1 — Email
Technical Support Agent	 	Synacor Technical Support Agents available 24 hours	 	E-mail: adelphia@synacor.com .	
 A-7 

 

 	 	 	 	 	
Escalation Levels	 	Escalation Response Time	 	Contact Information	
 	 	per day, 7 days per week.	 	 	
 	 	 	 	 	
Level 2 — Voice
Support Specialist	 	If Level 1 issue is not answered within 4 hours from Level 1, Synacor automatic escalation to Level 2.	 	[*]	
 	 	 	 	 	
Level 3
Support Management	 	If Level 2 issue is not answered within 4 hours from Level 2, Synacor automatic escalation to Level 3.	 	[*]	
 	 	 	 	 	
Level 4
Account Manager	 	If Level 3 issue not answered within 1 hour from Level 3, automatic Synacor escalation to Level 4.	 	[*]	
 	 	 	 	 	
Level 5
Product Management	 	If Level 4 issue not answered within 30 minutes from Level 4, Synacor automatic escalation to Level 5.	 	[*]	
 	 	 	 	 	
Level 6
VP Engineering	 	If Level 5 issue not answered within 30 minutes from Level 5, Synacor automatic escalation to Level 6.	 	[*]	

 	a.	 	Priority 1 or Portal Unavailability Issues:	

 	•	 	All support issues regarding Priority 1 or Portal Unavailability will be immediately escalated to Level 6 upon contact by Client support personnel.	

 	b.	 	Service Level	

 	•	 	Customer service — general product information related to Product	
 		
 	•	 	Hours of operations: 24 x 7, 365 days per year	
 		
 	•	 	Service language: English	
 		
 	•	 	Issue reporting methods: electronic mail in English	
 		
 	•	 	Technical support — assistance with technical issues related to Product	
 		
 	•	 	Service language: English	
     (c)  Incident Management
Synacor’s Client Support Group will be responsible for the control and management of incident calls and their assignment of priority and escalation to resources within Synacor in their sole and absolute discretion.
The following priority allocations will apply:

Priority 1 — These cases are defined as a Synacor system condition where, with respect to authentication, [*] or more of Users utilizing Unified Login are affected in their ability to access services as a result of an outage or, with respect to access to the Client Branded Portal, [*] or more Users are affected in their ability to access the Client Branded Portal, regardless of the status of Unified Login.
Time Frame — Response to Client within fifteen (15) minutes of identification or receipt of notification.
Follow-up — Provide updates to Client every sixty (60) minutes until the problem is resolved. Client will also receive in writing a complete post-mortem of the outage within two (2) business days, to include, but not be limited to, the number of Users using the Client Branded Portal during the outage, reason for the outage, duration, and resolution.
 A-8 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

Priority 2 — These cases are defined as a Synacor system condition where less than [*] of Users are affected in their ability to access services as a result of partial functionality.
Time Frame — Response to Client within sixty (60) minutes of identification or receipt of notification.
Follow-up — Provide updates to Client every sixty (60) minutes until problem is resolved. Client will also receive in writing a complete post-mortem of the outage within two (2) business days, to include, but not be limited to, the number of Users using the Client Branded Portal during the outage, reason for the outage, duration, and resolution.

Priority 3 — These cases are problems other than those meeting the specifications of Priority 1 or Priority 2.
Time Frame — Response to Client within twenty-four (24) hours of identification or receipt of notification.
Follow-up — Provide updates to Client as soon as practical.

 	(d)	 	Customer Info Required for Synacor Support:	

 	(i)	 	User ID	
 		
 	(ii)	 	Domain Name	
 		
 	(iii)	 	Password (if possible)	
 		
 	(iv)	 	E-mail Address	

 	(e)	 	Escalation Information:	

 	(i)	 	Premium Service Vendor	
 		
 	(ii)	 	Date/Time Incident Occurred	
 		
 	(iii)	 	PC /Macintosh information	
 		
 	(iv)	 	Operating System	
 		
 	(v)	 	Browser type / version	
 		
 	(vi)	 	Internet Connection Dial / Broadband	
 		
 	(vii)	 	Detailed Description of Escalation	

 	(f)	 	FAQ Documentation. Synacor will build a FAQ (frequently asked questions) prior to the Portal launch and updated as frequently as necessary during the term by Synacor, for the portal that Client can review and modify at Client’s choosing. The FAQ page will contain both Client Branded Portal and Content questions that consumers have asked in the past.	
9. Training. Synacor will build a training manual for the Client Branded Portal and Content that Client can modify. Synacor will be responsible for training Client’s customer support trainers on the Client Branded Portal and Content that are sourced through Synacor. Synacor will train for up to six (6) days without charging additional professional services. If travel is required, Client will be responsible for reasonable travel expenses as mutually agreed upon by Synacor and Client prior to Synacor incurring such expenses.
 A-9 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

SCHEDULE B
TO
SYNACOR MASTER SERVICES AGREEMENT
SERVICE LEVEL AGREEMENT
     This Schedule B forms a part of, and is governed by, the Synacor Master Services Agreement dated July 21 2004, by and between Synacor, Inc. and ACC Operations, Inc., including any schedules, attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule B and not defined herein shall have the meanings ascribed to such terms in the Agreement.
I. General
Synacor shall provide the agreed upon service levels seven (7) days a week, twenty-four (24) hours a day, three hundred sixty-five (365) days a year, consisting of monitoring, notification, repair of service outages and maintenance, as set forth in this Service Level Agreement (this “SLA”).
It is expected that the evaluation of Synacor’s performance against this SLA will be evaluated on a quarterly basis, beginning ninety (90) days from the date of the Agreement.
Client has the right to review any service level agreement of any Synacor Provider (each, a “Synacor Provider SLA”) whose Content is proposed to be made available to Users. If Client chooses to include such Synacor Provider’s Content, then Client shall have the right to enforce the service level requirements set forth in the pertinent Synacor Provider SLA against Synacor as apply to such Synacor Provider vis a vis Synacor under such Synacor Provider SLA and Synacor shall extend fee credits and any other adjustments to Client in amounts or percentages identical to the amounts or percentages to which Synacor may be entitled under such Synacor Provider SLA. Synacor and Client shall work in good faith to appropriately modify this SLA if Client chooses to migrate the Services directly to Client’s IP network as set forth in Paragraph l (a)(v) of Schedule A to the Agreement.
II. Monitoring
In an effort to detect potential problems before they impact the availability and performance of the System or the Services, Synacor monitors the status of its systems using both automated and manual tools employed in its 24 by 7 system monitoring and administration. Synacor will work with Client to create any reasonable scripts necessary for accessing performance data, agreed upon by Synacor and Client, necessary for Client’s network operations center to perform health checks on the Services and to use in the event that customer troubleshooting is needed. Synacor shall also share any performance data it has available including, but not limited to, what is defined herein with Client upon Client’s written request within five (5) business days of such request.
Such monitoring includes, but is not limited to:
System availability, Service availability, database connectivity and performance, System load, network availability and performance, System usage.
III. Reporting
Synacor will provide access to the following standard reporting tools, which will deliver reports through a web-based interface:
SUBSCRIBER DATA

 	1.	 	Number of Users	
 		
 	2.	 	User Cancellations	
MONTHLY USAGE DATA

 	3.	 	Unique Users accessing Synacor Sourced Services	
 		
 	4.	 	Unique Users accessing Client Sourced Services	
 		
 	5.	 	Unique Users accessing Client Branded Portal	
 		
 	6.	 	Hits/redirects to Client Branded Portal content, Synacor Sourced Services and Client Sourced Services	
 B-1 

 

     Such reporting tools can be enhanced as mutually agreed upon by the Parties at Synacor’s standard professional services rates.
IV. System Availability
“System Availability” is defined as the operable state of Synacor’s entire service platform in that service functionality, including, but not limited to, the Client Branded Portal, Synacor/Client Authentication, the method in which billing data is derived and transmitted to Client, routers, switches, servers, operating systems, and any software application running on the servers that supports the Client, is available to Client and its Users [*]% of the time during any given calendar month ( i.e., the System will be available at all times throughout the pertinent month, except for up to forty-three (43) minutes cumulative downtime time during such month), excluding scheduled maintenance. System Availability does not take into account: (i) the performance or inability of Users to access Synacor’s systems as a result of such Users’ Internet/network connection; (ii) Synacor Providers’ ability to update or deliver content, excluding the unified login functionality between Synacor and the third party providers, although any Synacor Provider SLA will apply to such Synacor Provider’s Content as set forth above; or (iii) occasions where, due to the architectural design of the Internet, access to Synacor’s systems is prohibited based on a User’s Internet Service Provider’s (“ISP”) fault or failure or by the path (route) traveled in accessing Synacor’s systems, except those facilities in which Synacor is in direct control. The Parties hereby acknowledge and agree that the instances described in clauses (i), (ii) and (iii) of this Paragraph IV shall not be included in the calculation of System Availability against which the SLA applies.
V. System Availability; Performance
System Intrusion or Denial of Service “DOS” Attack In the event of a System intrusion by a “cracker,” “hacker”, any other third party, or DOS attacks, such intrusion shall be deemed a Priority One (as defined in Schedule C) event and the notification protocol applicable to a Priority One event will be followed. Client will be notified by Synacor and a solution will be implemented by Synacor as set forth in Schedule C. Notification by Synacor will occur upon identification of intrusion. If extensive damage is incurred, including to, but not limited to, Client data, user data, Systems, due to the failure of Synacor to follow its published Security Policy (as defined in the Synacor Specifications) then this SLA will apply.
System Availability; Data Integrity; SLA Credits :
The SLA credits set forth below will be based off of any failure of System Availability, or Data Integrity (as defined in the System Specifications). In the event that Synacor fails to meet the provisions of this SLA cumulatively during any calendar month during the Term, then the following credits will apply against the aggregate Portal Fees, combined with the aggregate Content Access Fees due for the pertinent month (collectively, the “Aggregate Fees”) in which such failure occurs:

 	a.	 	Portal Unavailability : Defined as a condition which exists where the Client Branded Portal is unavailable to Client or any User or where Client or any User makes an HTTP request, or similar request via other protocol used on the Client Branded Portal by Client or Users, and Synacor’s Systems do not respond, including, but not limited to Client Branded Portal content, Synacor/ Client authentication, or Unified Login, any third party content provided through the Client Branded Portal, or a security violation due to the failure of Synacor to follow the Security Policy. For the avoidance of doubt, the failure of Unified Login or third party Content due to the fault of the third party Content providers is not included in this SLA.	

 	i.	 	Cumulative Mean Time to Repair (per calendar month):	

 	1.	 	[*]	
 		
 	2.	 	[*]	

 	b.	 	Synacor API Unavailability	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 B-2 

 

 	i.	 	Synacor/ Client Authentication Unavailability: Defined as a condition which exists where the authentication between Synacor and Client is unavailable through the fault of Synacor where Users are unable to authenticate through the Client Branded Portal and services that require authentication are unavailable. Examples: Client E-care Support, Unified Login, Client Webmail, Content. For the avoidance of doubt, the failure of Unified Login or third party Content due to the fault of third party Content providers is not included in this SLA.	
 		
 	ii.	 	Synacor/ Third Party Content Provider Unavailability: Defined as a condition which Unified Login between Synacor and any third party Content provider due to a failure of Synacor’s System. For the avoidance of doubt, a condition where the third party Content provider alters their API’s or the interface, or where such third party’s web site is unavailable, would not be included in this SLA.	

 	1.	 	Cumulative Mean Time to Repair (per calendar month):	
 		
 	2.	 	[*]	
 		
 	3.	 	[*]	

 	c.	 	[*]	
Performance
The Performance (“Performance”) of the Client Branded Portal is defined as the System response time for each Portal page (as defined in the Synacor Specifications), as agreed upon by the Parties prior to the launch of the pertinent Portal page (each, a “Response Time”), measured via HTTP requests, or similar requests via other protocol used on the Client Branded Portal by Client or Users, performed by Client servers directly from any Client IP backbone location. Performance of Response Times will be tested against a steady-state Portal page of similar type and size to the pertinent Portal page, which steady-state Portal page will reside on the same Host (as defined in the Synacor Specifications) as the Client Branded Portal. Synacor’s responsibility for Performance includes, but is not limited to, web server response, Authentication performance, routers, switches, Internet transit or Peering connections (Network hardware, cross-connects, or circuits that are Synacor’s responsibility) that are at 90% peak utilization or below, or any other device in Synacor’s direct control. If Synacor is unable to perform in accordance with any pertinent Response Time, then Synacor will be responsible for the following remedy:

 	1.	 	Synacor will use its best efforts to correct the identified performance failures as soon as commercially reasonable and, in no event, later than [*] after receipt of written notice from Client describing in reasonable detail the performance failure of the Client Branded Portal, Synacor shall resubmit the Performance changes, in detail, to Client for testing. Client shall conduct a testing period (“Test Period”) of no more than [*] with respect to the specified failed criteria. Within [*] after the expiration of the Test Period, Client will provide Synacor with a written response accepting the Performance or rejecting the Performance. Synacor shall have an additional [*] to correct the identified performance failures. Client shall conduct final testing for a period of not more than [*] (the “Final Test Period”) with respect to the specified failed criteria. Within [*] after the expiration of the Final Test Period, Client will provide Synacor with (A) written response accepting the Performance, or (B) written rejection if Client determines in good faith that the failed criteria identified in the First Rejection	

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 B-3 

 

 	 	 	Notice have still not been corrected (a “Final Rejection Notice”). In the event the Client does not deliver a Final Rejection Notice as provided herein, the Performance shall be conclusively deemed acceptable by the Client. If Client provides a Final Rejection Notice and the President of Synacor and the Chief Technology Officer of Client do not otherwise agree to pursue further Performance testing/ remedies of the System, the Final Termination Notice shall constitute a notice of termination of the Agreement without further liability of either Party.	
VI. Scheduled Maintenance Windows
Synacor has reserved a two (2)-hour window from 3:00 a.m., EST, to 5:00 a.m., EST, every Sunday evening -Monday morning for weekly maintenance, should the need for such maintenance arise. In the event that this window will be needed in a given week, Synacor will provide Client no less than three (3) business days prior to the window via Clients change control organization (“Change Management”). The form of notification must conform to Client’s current Change Management process. If it is determined during the window that the scheduled maintenance will run over the two (2)-hour window, Client will be notified immediately and receive updates every sixty (60) minutes or less until the maintenance is complete. During these scheduled maintenance periods, the System and Services may be unavailable to Client and Users. If the maintenance period exceeds three (3) hours in any given week, or a cumulative of twelve (12) hours in any given month in total duration, then the System Availability SLA will apply. Scheduled Maintenance Windows that do not exceed set limits ( i.e., three (3) hours in any given week, or a cumulative of twelve (12) hours in any given calendar month) are not counted against System Availability percentages.
VII. Emergency Maintenance Notification
In the event that emergency maintenance (defined as any maintenance that exists that is not within the standard maintenance window described above, or as to which three (3) business days’ prior notification is not given) is required, during which time the System and Services will be unavailable to Client and Users, Synacor will notify the Client as promptly as practicable and, if possible, during the repair window, and so as not to prolong or negatively effect system service or its availability. Emergency maintenance windows are counted against System Availability percentages.
VIII. Incident Management
Synacor’s Client Support Group will be responsible for the control and management of incident calls and their assignment of priority and escalation to resources within Synacor in their sole and absolute discretion.
When analyzing a case, it is important that Client understands that the Synacor Support Group will expect Client to aid in the analysis by providing any information and performing any actions or tasks requested by the pertinent Synacor Support Group analyst and that is reasonably necessary to assist the Synacor Support Group in analyzing such case. If Client is not willing to assist such analyst, Client understands that the case may take longer to solve and will not be included in the measurement of this SLA.
IX. Product Revision Management
Client will be notified in writing ten (10) business days in advance with respect to minor product enhancements, which do not substantially affect the Client Branded Portal. For example, adding personalization to a news component or modifying a Gameblast component so Client can include additional games within the Client Branded Portal.
For major modifications to the Client Branded Portal, Client and Synacor personnel must first agree on the appropriate launch date after negotiating in good faith for a period of not less than ten (10) days; provided that, such launch shall not exceed [*] days after the date after which Client requests such modification unless the Parties are unable to agree upon the launch date after negotiating for such ten (10)-day period. For example, creating a Flash or DHTML version of the Portal that allowed for dragging and dropping of components.

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 B-4 

 

X. Limitations on Content Publishing
Client personnel shall not, unless agreed to in advance by Synacor, upload video files onto Synacor’s servers.
 B-5 

 

SCHEDULE C
TO
SYNACOR MASTER SERVICES AGREEMENT
SYNACOR SPECIFICATIONS
This Schedule C forms a part of, and is governed by, the Synacor Master Services Agreement dated July 21 2004, by and between Synacor, Inc. and ACC Operations, Inc., including any schedules, attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the “Agreement.”) Any capitalized terms used in this Schedule C and not defined herein shall have the meanings ascribed to such terms in the Agreement. This Schedule C outlines Synacor’s technology specifications, including the customization elements relating to the graphical presentation, components, and other design elements of Portelus, Synacor’s Portal, and the Client Branded Portal. In addition to the options presented here, custom development is possible.
INTERFACE
The standard Portelus implementation integrates basic and premium content into one user experience. The user Interface will be branded to Adelphia, below is an example.
Figure 1: Example of an Adelphia Branded Portal

 C-1 

 

Synacor will participate in the development of all user interface implementations for the initial launch. The interior layout of the portal pages and each hosted premium service page is maintained by Synacor, and may change as we add more features into the product.
Colorset
Much of the look and feel of the portal is defined by the colorset. The colorset controls the colors and basic shapes used in the following areas of the portal:

 	•	 	The Welcome Bar (background and font)	

 	•	 	The Channel Bar (button colors, highlights, background, and font)	

 	•	 	The Search bar (background and images)	

 	•	 	The Dynamic Content Component (background and controls)	

 	•	 	The Customization dropdown and Wizard (background and graphics)	

 	•	 	Component headers (background, shading, and corner shapes)	
The colorset does not modify the design of secondary pages (such as the Sports page or premium services) beyond the obvious changes in the header and framing.
As part of the agreement, Synacor will implement the colorset of Adelphia’s choosing for the areas described above.
Header and Footer
The header and footer pair controls the display of the page above and below the internal content area. Each partner can customize this, and Synacor can optionally make parts of it accessible for real-time editing and content scheduling through our web-based content publishing tools. The content publishing tools that enable Adelphia chosen personnel to create a publish content on to the portal, including the header and footer sections. (See below Content Publishing,) For example, a banner ad in the header can be scheduled to coincide with holidays or promotions.
Customization can be as simple as adding a logo, or can involve adding links, scripting, and design elements. The header typically contains a logo and other branding, while the footer usually has a copyright statement and links to site-related content (such as a privacy policy).
There is currently no maximum or minimum height for the header or footer areas; however, it is beneficial to ensure that much of the content is displayed above the fold, so the header area is recommended to be under 100 pixels high.
The header (see Figure 2) is bounded by thin lines, which are part of the portal template’s colorset. In the Figure 1 example, these lines are blue. The width of the header must be exactly 764 pixels, which is the size of the bounding table cell. By default, the HTML is shown on top of a white background. To use a different color background, it is necessary to create a table with width=764, cellpadding=0 and cellspacing=0.

Figure 2: The Header
The footer, like the header, is bounded by thin lines. It is designed to hold text content, although other HTML is possible. Figure 3 shows a standard footer.

Figure 3: The Footer
 C-2 

 

The Welcome Bar
The Welcome Bar (Figure 4) may contain a “Welcome First Name” message, or a link, on the left, The right side can be configured to hold a number of links to pages hosted by Synacor (such as Support or FAQ) or to pages hosted by the client. At this time, additional custom content is not possible in this area; it currently only supports a list of links. The background color and text color (dark blue and white in the Figure 4 example) are defined by the colorset.

Figure 4: The Welcome Bar
The Channel Bar
Figure 5 shows a sample Channel Bar. The Channel Bar is primarily used to navigate between portal pages hosted by Synacor. The colors used in the Channel Bar vary by colorset. For “premium-only” implementations, the Channel Bar is not necessary and can be removed if a “Home” link is added to the Welcome Bar.
The Channel Bar is customizable to some extent. Channels can be removed or added, with the following caveats:

 	•	 	The Channel Bar is persistent throughout the site and is the central method of navigation. So, if you remove “News” from the channel bar and add a portal component with navigation to our news page, users will not have an obvious navigation back to the News page from any other page.	

 	•	 	The width of the channel bar is fixed, so only a finite number of channels can be added. The total depends on the total size of the channel images. The limit is around 10 channels. The actual limiting factor is the size of the tabs, so this is dependent on the aggregate length of all the buttons. So, we could probably fit more than 10 channels if the titles were 3 or 4 letters and less than 10 if the average title was 15 characters. Our reasoning is that not all links are a channel: we could add a component to the portal called “Links” or “Tools” for services such as Yellow Pages, Maps, etc. Additionally, client-specific links can be added to the Welcome Bar or the Header. We recommend you limit the channels to the most important categories. We can also delete any of the channels that become less important and just make them a link. For example, we could delete Careers from the Channel bar and make it simply a link from the portal.	

Figure 5: The Channel Bar
The Dynamic Content Component
This element is used to display a series of content panes that rotate at regular intervals. The user is given controls to pause the rotation and skip forward or backward. The controls include: pause, play, next slide, previous slide controls. Depending on the purpose of the deployment, the DCC may cycle between News content chosen by our content editor, between functional premium service panes, or between static HTML advertisements. It can also function with only one static pane. The design of the DCC, including background color, is defined by the colorset.
 C-3 

 

Figure 6. Three different examples of DCC panes.
HTML Components
The portal’s start page is normally made up of a set of “components” decided by Adelphia personnel from all of the components Synacor has at that given time and any content components that Adelphia develops. In addition to these components, it is possible for the client to place their own HTML on the start page. This HTML is pulled from our database and is easy to edit, schedule, and publish using our on-line Provisioning Platform.
The HTML Components may either look and act exactly like regular components (bearing up/down/close buttons and appearing in the customization dropdowns) or they may be static HTML that are always shown on the page and cannot be removed by the user. Clients can use these components for off-site linking, advertisements, important news, or other HTML content.
When designing HTML Components, keep in mind that each column of the portal has a different width, and the allowed width of your HTML will vary depending on the column as well as whether the HTML will be surrounded by the normal component borders and header. Please consult the following table for width guidelines:
 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Left Column	 	Middle Column	 	Right Column	
Bounded Content	 	178 pixels	 	300 pixels	 	231 pixels	

Non-bounded	 	190 pixels	 	312 pixels	 	243 pixels	
	 	 	 	 	 	 	 	 	 	 	 	 	
 C-4 

 

LAYOUT
Each column of the portal will contain a number of Synacor’s standard components. Synacor typically recommends component placement based on our experience with usage patterns for the specific purpose of the portal. We will work with you to design an appropriate component layout.
The components in the default view, as well as those available in the dropdowns, are easily customizable for each portal. In addition, we can set up default values for component parameters. For example, the weather component can always default to a specific zip code, the GameBlast component can feature a specific game, and the news components can show entertainment news instead of sports news.
Each component, including standard Synacor components as well as the HTML Components described above has the following options:

 	•	 	Default values — Example of defaults include such settings as; the zip codes for weather, default bookmarks, and premium service settings such as default Shockwave games.	

 	•	 	User customization:	

 	•	 	Any Component that Adelphia specifies can be removed by the user	

 	•	 	Any Component that Adelphia specifies can be set as non removable and therefore cannot be removed by the user	

 	•	 	Only show component to:	

 	•	 	Logged-in users — enables Adelphia you to display content only to users that are logged into the Adelphia Portal.	

 	•	 	Logged-out users — enables Adelphia to display content only to users that are logged into the Adelphia Portal	

 	•	 	All users	
SUBSCRIBER PERSONALIZATION
Synacor’s technology stores database registration and preferences based on the subscriber’s individual username. Subscribers will have the flexibility to personalize their home page by adding or deleting content components to the left, middle or right hand columns. Subscribers can select a dropdown from the portal, use “move” arrows on the component or select a customization link to a layout wizard environment.
Subscribers can personalize their portal experience in the following ways:

 	•	 	Customization page enables the user to see all available components on one screen, and select whichever they choose to create their own personalized portal. This page also allows the user to edit the layout.	

 	•	 	Easy-to-use dropdown menus for each column, which list all available components. Components can be added with just one click.	

 	•	 	Components can be moved up or down on the homepage, as well as deleted with a simple click on the ‘x’.	

 	•	 	Personalize their weather and local movie listings by typing in their Zip Codes	

 	•	 	Photo News component can be edited to display only the three categories of news the user most wants to read about (health, entertainment, and more)	
CONTENT PUBLISHING
Adelphia will have the flexibility of publishing content to the portal within the specific content components that Adelphia defines to your account manager prior or post launch of the Adelphia Portal. The content publishing tools are available through a web based administrative layer and enable Adelphia personnel to select from three methods of publishing; (i) inserting an image or text, (ii) inserting a link(s) or (iii) inserting raw html. This is a password protected web application that allows a client to create and publish content. Content can be published in real-time or scheduled. For example, a “Halloween” header can be entered in September and scheduled to appear in October.
Synacor’s Content Publishing Tools enable Adelphia to:
 C-5 

 

 	•	 	Create, Edit, Delete & Preview Adelphia created content components throughout the Portal (see image below)	

 	•	 	Administrators can add Images to a Library and then use the images within a content component	

 	•	 	The three methods of publishing include; (i) inserting an image or text, (ii) inserting a link(s) or (iii) inserting raw html (see image below)	

 	•	 	Enable components to be displayed for assigned date range or be assigned as the default component.	

Figure 7: Selecting a Content Component

Figure 8: Edit, Delete or Preview a Content Component
 C-6 

 

Figure 9: Set # of Days Component should Display
& Content Format: HTML or a preset Template
DATA CENTER & ARCHITECTURE
      .1. Synacor’s Data Center
Synacor’s Data Center is located within the Main Place Tower, Buffalo, NY. Our internet connectivity is provided through DS3’s provided by UUNET and Qwest Communications. Redundancy is supplied through Border Gateway Protocol (BGP) failover. Our Data Center’s location has access to several of the major network carriers and additional bandwidth can be provisioned in a short period of time.
Architecture Overview
[*]

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-7 

 

[*]
Synacor System Security (“Security”)
Security Policy
Access Control
Synacor’s network topology is devised to keep machines hosting sensitive data (IE. Client specific data) inaccessible from the Internet. In order to facilitate this goal, the machines are connected only to a Private Network (defined as a network which has no public route to the Internet and cannot be accessed by any unauthorized Third Party), with no additional public routes defined, and a set of filtering rules, including but not limited to TCP/ IP, UDP, and ICMP (“Internet Traffic”), which discards any traffic from foreign networks or Internet Traffic going to an inappropriate Port.
Hosts (as defined herein) providing public services are insulated from the Internet by being hosted on a Private Network, with access provided only through a Layer 4 switch (“Load Balancer”), which only forwards connections to designated Ports (Defined: A port number represents an endpoint or “channel” for network communications. Port numbers allow different applications on the same computer to utilize network resources without interfering with each other)
Access to Servers with Client content or sensitive Client information (“Hosts”) residing on the Private Network is limited solely to system administration tasks such as maintenance, monitoring and software/operating system upgrades; company employees not directly involved with the maintenance of the Hosts are limited to a separate Private Network designated for their use.
Those cases where less stringent access restrictions are necessary, such as the Hosts used by our vendors to upload Content to use, are also kept separate from the more sensitive Private Networks, where no outbound route from the Public Network to the Private Network is available, so as to isolate Third Party access.
Split horizon DNS is used in order to protect the Hosts, as well as their layout, from all but authorized Synacor personnel.
Ownership of operating system objects, such as files, directories, and processes are handled with the principle of least possible privilege — e.g. read and write privileges are only granted where a demonstrable need exists. “Jails” are used to further isolate running processes from the rest of the file system whenever feasible. (Defined: A Jail is when a process is launched with diminished permissions, i.e. access to a limited set of files and directories, in order to reduce the damage in the event of malicious execution of the process.)
No file sharing protocols, such as NFS (Defined: As Network File System, allow machines to mount a disk partition on a remote machine as if it were on a local hard drive) or SMB (Defined: Server Message Block, is a protocol for sharing files, printers, serial ports, and communications abstractions such as named pipes
 C-8 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

and mail slots between computers), are utilized when accessing secured hosts from the Public Network; secure transfers will only be over encrypted mediums using SSH/SCP (as defined herein).
Software Integrity
The installed base of software on each Host is kept as small as possible. Software packages which have been deemed unnecessary or redundant have been eliminated so as to minimize the potential number of access points on any given Server.
When an advisory for installed software is released from sources including CERT, SecurityFocus/BugTraq, and/or Synacor vendors, Synacor will immediately perform an evaluation of the relative risk. Highest priority (eg. Priority 1) is given where a known exploit is published that affects services accessible to public networks. Depending on the nature of the advisory a given service may be further restricted or shut down as we prepare an update.
The time frames between an advisory, triage, testing and patching differ based on the severity of the advisory. A critical patch will be applied as soon as it has been staged and tested, and will receive the highest level of attention from Synacor staff; Adelphia will be notified either while the patch is being evaluated, or as soon afterward as possible, when relevant to the customer’s service. Non-critical patches will be applied as part of the Maintenance Window; however, Synacor may not reveal all details (other than affected services) to the customer until after the patch has been applied to prevent potential security breaches.
With few exceptions, such as a fundamental design issue that necessitates changes that cannot be easily ported to installed versions, any updates related to security are applied to the existing version of the software, even if the fix is released by an upstream source in new release. This is to avoid ancillary changes which may result in undesired behavior or even new security risks.
Regardless of source, any updates are tested independently for suitability before general deployment, both to test the correctness of the fix itself as well as general functionality. This review process is, of course, expedited in the case of a serious risk. The review process is: apply patch, build package, install on a test host, review by QA and System Administration personnel with an attempt to run any known exploit if one exists, install on a pilot machine, review again, and general deployment.
Data Backups, backup handling:
All data backups are performed once per night, only over a secured Private Network to a protected Host residing in a locked rack. Backups are kept off-site as defined herein. The on-call Synacor Systems Administrator is alerted in the event of a backup failure for immediate resolution. Alltapes that have been used to contain sensitive data are stored in a locked cabinet in the Synacor operations center, accessible only by Synacor personnel as described in the Physical Security section below, or in a locked office at Synacor’s corporate headquarters, accessible only to Synacor’s Systems staff and Controller.
Failover Testing
In order to ensure that the redundancy of Synacor’s architecture is working, Synacor will perform failover testing on the following components during initial deployment, and once every six (6) months, including but not limited to, web servers, database servers, and redundant network equipment. Additionally, load balancers will be failover tested once every three (3) months.
Monitoring and Auditing
Monitoring of hosts is performed both through the use of a central server and agents running on the individual machines. Among other things, log files and running processes are periodically checked against a checklist specifically given to that class of Host. Any deviation is immediately brought to the attention of the on-call Synacor personnel.
The polling occurs every 5 minutes for each Host. Push updates from the clients are also on a 5 minute interval with slight delay randomization. There are processes running on two separate machines which
 C-9 

 

ensure connectivity to the monitoring server and contact a Synacor administrator in case of failure. In addition, a test message is sent through the Monitoring notification infrastructure every 30 minutes in order to ensure that Monitoring infrastructure is operating to the designed specifications.
In addition to local logging, each host reports a subset of system events to a central Host, which is monitored by the Synacor staff for any suspicious activity. Logs are archived for a period of one (1) year.
Physical Security
Twenty-Four (24) hour by Seven (7) days a week building security, including but not limited to uniformed guard service, interior and exterior closed-circuit television surveillance, provided by the Main Place Liberty Group.
The collocation facility, provided by Switch and Data, includes several forms of security and access control including but not limited to individual pass card access to the administration facility, with an additional secured door protecting the server room. Inside the facility is an additional closed-circuit television system, with the additional capability for off-site monitoring by authorized personnel.
Staffing of the facility is maintained Twenty-Four (24) hour by Seven (7) days a week, providing constant monitoring and a point of contact for any non-secured personnel. Visitors are required to be signed in and are provided with escort until such time as they vacate the secured area.
The only personnel allowed physical access to Synacor’s servers are authorized Synacor employees, paid contractors, and vendors or other entities escorted by authorized Synacor staff members.
Authentication and Authorization
Accounts on any Host are created on a strictly discretionary basis, with access on most Hosts being restricted solely to Synacor administration staff. Superuser (root) access is even more stringently restricted, with no one outside the current Synacor administration staff having access to the passwords.
When each account is created it is created it is assigned a one time (Non-Dictionary) password, which is transmitted to the intended user face-to-face or through a phone call in which the recipient’s identity is verifiable , in order to facilitate the user setting their own. All passwords, including those which are strictly temporary, are verified with the ‘cracklib’ (Defined: A password library which can be used to prevent users from creating passwords which can easily be guessed by and intruder) module to be sufficiently strong.
Once accounts are created, authentication is done solely via encrypted channels: either TLS (“Transport Layer Security”) or SSH (“Secure Shell”).
Incident Management
Synacor has adopted the following Incident Response Plan. Incidents are defined as malicious attacks to gain access to Synacor systems, including hacking attempts and other intrusions. Identifiable denial-of-service attacks are also included, when they target equipment controlled by Synacor.
Security Incident Response Team (“SIRT”)
The primary SIRT team will be comprised of the following roles:
The SIRT Team Leader, currently the Systems Manager, is responsible for overseeing the team and conducting policy review once a year and after each incident.
 C-10 

 

The SIRT Incident Lead will be selected based on the nature of the incident, and will either be a Synacor System Administrator, Network Administrator, or the IT Manager. The Incident Lead is responsible for coordinating and reporting on the response.
The SIRT Communications Lead is responsible for managing communications between the response team, internal interested parties such as account managers and Synacor executives, and external clients as appropriate. This role is currently assigned to the Senior Account Manager.
Incident Response Plan
Notification
When an incident is identified, either as the result of internal monitoring or other notification, the on-call Synacor Systems Administrator will immediately notify the Team Leader, who will assign an Incident Lead and notify the Communications Lead. The on-call Systems Administrator will follow an escalation procedure to notify technology managers if the Team Leader is unavailable. The time from initial identification to the start of the assessment stage is not to exceed thirty (30) minutes.
The following types of events will trigger notification to the on-call Systems Administrator:

 	•	 	detected intrusions on servers	
 		
 	•	 	detected intrusions on network equipment	
 		
 	•	 	privilege exceptions	
 		
 	•	 	unexpected changes to system configurations	
The following incidents will be relayed from external sources to the on-call Systems Administrator and will be treated as serious incidents for immediate risk assessment:

 	•	 	provider network equipment intrusions	
 		
 	•	 	intrusions on third-party equipment adjacent to Synacor’s network	
The following types of events will be logged and will be analyzed by a member of the Systems team on a regular basis, with any suspicious activity being escalated to the SIRT Team Lead for investigation.

 	•	 	logins and login errors	
 		
 	•	 	privileged executions	
 		
 	•	 	suspicious web log entries	
 		
 	•	 	SQL errors	
 		
 	•	 	Unexpected process halts	
 		
 	•	 	process restarts	
Initial Assessment
The Incident Lead will determine the nature and extent of the incident, and will communicate this to the rest of the team. The Incident Lead will also begin to record all activities in a manual log and isolate evidence pertaining to the incident.
Incident Communication
Depending on the severity, scope, and possible originators of the incident, not all details will be immediately disclosed to the Clients. The Communications Lead will initially notify Clients in accordance with the Service Level Agreements in place, concerning any service disruptions. When the incident has been contained and all evidence secured, the Communications Lead will provide detailed written reports about the incident and any remaining service restoration issues.
Damage Identification, Containment and Recovery
The Incident Lead will determine the following:

 	•	 	duration of attack	
 		
 	•	 	the effects of isolating/turning off compromised systems	
 		
 	•	 	the extent of compromised systems	
 		
 	•	 	the duration of the attack	
The Incident Lead will also attempt to determine:

 	•	 	the origin of the attack	
 C-11 

 

 	•	 	the intent of the attack	
In general, attacks against redundant systems, including web servers, load balancers, database servers, or any other redundant network, hardware device, or software in Synacor’s direct control will be addressed by removal of the affected system from the production environment, if deemed appropriate.
In some cases, it may be necessary to disable service completely. This will be necessary in cases where the intrusion is either widespread across an entire set of redundant servers and is malicious in nature, or when the intrusion did significant damage to justify restoration from backups. In this case, the length of the outage will depend on the extent of the damage.
Once the incident has been contained and service has been restored, the Incident Lead will perform the following tasks:

 	•	 	audit of affected systems and all other systems for malicious software, and document.	
 		
 	•	 	audit of system logs on affected systems	
 		
 	•	 	conduct comparison of filesystem on affected systems against the base	
 		
 	•	 	server installation to identify attack details	
 		
 	•	 	audit of in-memory processes on all systems	
The Incident Lead is responsible for archiving all evidence, including logs and possibly entire filesystems, for future civil or criminal investigation. This will involve burning disk contents or logfiles on to CD-R (eg. Writable CD ROM), saving the actual hard disks, or other archival methods depending on the incident specifics. The evidence will be kept in a locked cabinet for a period of time to be determined based on the nature of the incident and the media; CD-R disks, for example, will be kept for several years after the investigation has ended.
In the event that preserving data would compromise the recovery effort, the Team Lead will make the decision concerning the balance of evidence preservation vs. recovery time.
Post-Incident Monitoring
The Incident Lead, Team Leader and other parties will determine if additional processes are necessary to monitor for this type of attack in the future; if so, these processes will be specified and developed. In addition, manual audits may be required for a period of time after the incident to verify the integrity of the systems.
Civil/Criminal Investigation
Synacor will make the determination about whether to involve law enforcement or pursue a civil suit based on a number of factors including:

 	•	 	the nature of the attack	
 		
 	•	 	the extent and quality of the forensic evidence	
 		
 	•	 	the identity and location of the perpetrator, if known	
 		
 	•	 	the likelihood of another such attack	
 		
 	•	 	the resource cost of the investigation	
 		
 	•	 	impact on user privacy	
 		
 	•	 	impact on company/client reputation	
 		
 	•	 	advice of counsel	
Disaster Recovery Plan
The following disaster recovery plan is specific to the Adelphia implementation.
Overview:
All data, software, and configurations will be backed up every twenty-four (24) hours to an offsite location such that should a disaster occur, they can be copied to and installed at a new data center. The data center
 C-12 

 

could be an Adelphia data center with appropriate hardware available or at a third party location such as Rackspace.
Possible Disaster Recovery Scenarios
Synacor’s Disaster Recovery Plan takes into account the partial or full destruction of Synacor’s data center. This may be caused by fire, earthquake, or the building or data center becoming unavailable for any other reason.
The building housing Synacor’s data center is also the primary location where many of the Tier 1 providers bring their networks into Buffalo. If something happens to the building in whole or in part, it may become necessary to activate the disaster recovery plan.
Recovery Time Objectives
Within 12 hours:
One webserver will be brought online at the disaster recovery location. A static website explaining what is wrong with the service will be brought up at the disaster recovery location.
Nameservice will need be changed to point websites to the new location.
This time period can be shortened drastically by having a machine on standby at Adelphia, and by ensuring that the TTL of the nameservice is sufficiently low.
Within 48 hours
A cluster of webservers and application servers will be brought online at the disaster recovery location.
A non-configurable portal site with some content and an Adelphia-branded pages will be brought online at the disaster recovery location.
Within 96 hours
A cluster of servers will be built to mimic the original configuration.
All data will be copied to disaster recovery location.
All software will be installed and running at disaster recovery location.
At this time we expect we can have all services operating as close to normal as possible.
Recovery Point Objectives
Synacor will back up all data, software, and configurations once per twenty four (24) hour (“Daily”) period to an offsite location. In the event of a disaster, Synacor will be able to restore services to the state at that time, which will be a regular time in the early morning.
Roles and Responsibilities
Synacor and Adelphia will mutually agree on the choice of a disaster recovery site upon execution of contract. If an option other than a third-party managed hosting provider such as Rackspace is chosen, Synacor and Adelphia will need to determine how to ensure that the hardware required is available for quick installation.
Synacor will be responsible for ensuring the integrity of the Daily data backups.
Synacor will be responsible for setting up all servers and networks and restoring services at the disaster recovery location. Synacor will provide all necessary manpower to return services as defined herein. If the disaster recovery site is located in an Adelphia data center, Synacor may solicit Adelphia resources to accelerate the recovery process.
Adelphia will be responsible for DNS modifications.
 C-13 

 

SYNACOR/ CLIENT AUTHENTICATION
The connectivity between Synacor’s Data Centers, Databases, Internet Connections, and API’s, or any other hardware or software device owned and operated by Synacor, are available to the Client’s operational support system such that all necessary customer data (as defined herein) is available via realtime API and Authentication to the Client’s Data Center for the User’s to login to the password protected portion of the Portal and utilize the Unified Login functionality.
UNIFIED REGISTRATION & LOGIN
[*]

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-14 

 

[*]
 C-15 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-16 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-17 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-18 

 

[*]
DEVELOPMENT AND TESTING
Synacor staff will be available to assist with the API; please contact your Account Manager or Ross Winston (rwinston@synacor.com) for help.
For testing, please feel free to use our QA server and domain at:
http://qa.synacor.com/api/login_unified.php?userid=schmoe&pass=foo&domain=qa.chek.com
(Simply plug in different usernames that you have already created through the registration API to test login)

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-19 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-20 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-21 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C -22 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-23 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-24 

 

[*]

 	 	
*	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-25 

 

[*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 C-26 

 

[*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 C-27 

 

[*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 C-28 

 

[*]
DEVELOPMENT AND TESTING
Synacor staff will be available to assist with the API; please contact your Account Manager or Ross Winston ( rwinston@synacor.com ) for help.
For testing, please feel free to use our QA server and domain at:
http://qa.synacor.com/api/user_register.php?newusername=schmoe&newpassword=foo&domain=qa.chek.com&ne wfirstname=Joe&newlastname=Schmoe
(Please plug in different usernames to test)

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	
 C-29 

 

[*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 C-30 

EXHIBIT 10.17.6
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
CONTENT ATTACHMENT NO. 1
TO CONTENT DISTRIBUTION ADDENDUM
TO SYNACOR MASTER SERVICES AGREEMENT
“ADELPHIA MUSIC” BY MUSICNET
     This Attachment No. 1 forms a part of the Content Distribution Addendum to the Synacor Master Services Agreement dated July 13, 2004, by and between Synacor, Inc. (“Synacor”) and ACC Operations, Inc. (“Client”), including any schedules, attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the “Agreement”) and is governed by, and subject to, the Agreement. Any capitalized terms used in this Attachment No. 1 and not defined herein shall have the meanings ascribed to such terms in the Agreement.
      WHEREAS, the Agreement contemplates Synacor and Client completing separate attachments to the Content Distribution Addendum detailing specific content offerings and additional fees associated with such offerings in the event that Client desires to include premium content on Client’s web-site, HSI customer home page, currently known as “www.Adelphia.net” (“Client’s Web-site”); and
      WHEREAS, the Parties desire by way of this Content Attachment No. 1 to set forth the specific content offering and pricing with respect to certain content currently known as “MusicNet”
      NOW, THEREFORE, in consideration of, and pursuant to, the Agreement, the Parties agree as follows:
      1. Service Description and General Overview
     MusicNet provides a full music-on-demand subscription service that Client may offer to its high speed Internet customers as an Adelphia-branded music service initially to be known as “Adelphia Music” (the “Service”), with access to a constantly growing library of music (currently over 1,000,000 tracks) from the four (4) major record labels and hundreds of independent labels. MusicNet has the right to provide its service to Client and Synacor customers in the United States. The library of music covers multiple genres, the majority of the Billboard Top 200 and exclusives and pre-street date content, all of which is available in CD-quality audio (encoded at 128kbps).
      2. Term; Termination
     Unless terminated earlier as provided herein, the “Term” of this Content Attachment No. 1 shall consist of, collectively, the Initial Term (as defined below) and the Renewal Term (as defined below). The “Initial Term” under which the Service shall be made available to Client pursuant to the terms of this Content Attachment No. 1 and the Agreement shall be for a period of twelve (12) months commencing upon the date upon which Client first makes the Service available to subscribers via Client’s web-site. After the expiration of the Initial Term, this Content Attachment No. 1 shall automatically renew for one (1) successive term of twelve (12) months (the “Renewal Term”), unless this Content Attachment No. 1 is terminated earlier in accordance with the terms hereof, or either Party provides the other Party written notice of its desire not to renew this Content Attachment No. 1 a minimum of thirty (30) days prior to the end of the Initial Term. Notwithstanding anything in this Content Attachment No. 1 to the contrary, either Party may, upon giving thirty (30) days’ written notice identifying specifically the basis for such notice, terminate this Content Attachment No. 1 for a breach of any material term or condition of this Content Attachment No. 1 by the other Party, unless the Party receiving such notice cures such breach within such thirty (30)-day period.

 

      3. Accessing Content
     Subscribers may access the Service through the Synacor-provided Client portal. To access the Service, subscribers must first log-in to the Client portal with their ID and password, at which point they can access the Service without any further log-in required. Subscribers can search for, browse and access music through an Internet Explorer browser that supports flash and Active X.
     Subscribers can also find and listen to music through editorially-created playlists and/or radio stations, chart listings and featured content areas that are presented within the Service UI. In addition, subscribers may search for music by album, artist, track and composer. Advanced search capabilities allow subscribers to search by other criteria, such as date, decade or genre. Subscribers can also browse the catalog by genre category.
      4. Playback of Content and Playback Functionality
     At a minimum, MusicNet will enable tracks to be streamed for immediate listening, or to be downloaded to a subscriber’s hard drive for play-back later while off-line in accordance with the terms of use as defined and agreed to by the Parties. Subscribers may listen to downloaded tracks through Windows Media Player 9.0 or higher (installed separately). Subscribers can also use their Windows Media Player to create, manage and listen to their own individual playlists. These playlists will continue to be accessible as long as the subscriber maintains a valid subscription to the Service via Client’s Website. Subscribers do not need to be connected to the network to playback previously downloaded tracks as long as their subscription to the Service via Client’s Web-site is valid and their Digital Rights Management (“DRM”) (as defined below) license has been updated.
     At a minimum, MusicNet will support playback functionality within the service user interface that allows users to play, pause and stop streamed tracks. Subscribers can also use the user interface to adjust volume, skip to the next track or skip back to the previous track within a playlist for streamed music that they are listening to. Playback of downloaded tracks is through Windows Media Player, which also provides subscribers with the ability to adjust volume, pause, skip tracks, or repeat playback.
      5. Parental Controls
     At a minimum, MusicNet will maintain a list of and identify those songs and albums that have been identified by the record industry (using the industry standard Parental Advisory sticker) as containing music with explicit lyrics. Subscribers will have access to password protected parental controls provided by MusicNet to restrict such explicit content from being displayed, downloaded or played back within the Service.
      6. Digital Rights Management and Restrictions
     Windows Media Digital Rights Management (“DRM”) is used by MusicNet to ensure that songs that are downloaded as part of a subscription are not used in a manner that violates the rights of the copyright owner. While a subscriber has a valid subscription to the Service via Client’s web-site, the DRM licenses are granted and individual song licenses can be renewed on-line for additional thirty (30)-day periods. Once a subscription has been terminated or canceled, the licenses are automatically deactivated and downloaded songs can no longer be played.
     If the track license for a song downloaded by a subscriber has expired, the subscriber must reconnect to the Internet to revalidate the track license. The track license will be renewed as long as the subscriber still has a valid subscription to the Service via Client’s Web-site. Subscriber’s can access the
 -2- 

 

Service from up to three (3) separate personal computers (“PCs”). However, they can only access the Service from a single PC at any given time. If a subscriber has accessed the Service from the maximum of three (3) PCs, and would like to access the Service on another PC, they can do so by contacting Client Customer Support and having their PC count reset. Customer Service Representatives can reset the PC count by using the Service Administration Tools.
     Subscription downloads of songs or albums are restricted to the computer to which they were originally downloaded. This means that they cannot be “burned” to a CD or transferred to a portable device. (A planned new version of the MusicNet service will enable transfer of downloaded songs to devices that are equipped with the appropriate Microsoft DRM technology.) If a PC is removed from the access list via the PC count reset process, any subscription download songs stored on that PC will no longer be playable.
      7. Customer Support
     Subscribers will be able to find answers to most questions through the online FAQ list which is integrated into the service user interface. Tier 1 subscriber support will be provided by Client, Tier 2 and Tier 3 technical support will be provided by Synacor, in conjunction with MusicNet, as necessary. This means that initial subscriber queries will be fielded by Client support personnel. If the Client support team is unable to answer the question, it will be forwarded to Synacor. Synacor will address the question, in consultation with MusicNet if necessary. Synacor will provide a response back to the Client Customer Support contact for communication to the pertinent subscriber.
      8. Technical Specifications and System Requirements
     All tracks are presented in Windows Media Format, encoded at 128 kbps (CD Quality Audio).
     Minimum System Requirements:

 	•	 	Windows 98/2000/XP/ME	
 		
 	•	 	Internet Explorer 6.0 or higher	
 		
 	•	 	Windows Media Player 9.0 or higher (must be installed prior to Adelphia Music installation)	
 		
 	•	 	64 MB RAM	
 		
 	•	 	Pentium class processor	
 		
 	•	 	50 MB of hard disk space	
 		
 	•	 	Optimized for 800 x 600 resolution with 256 colors or better screen resolution	
 		
 	•	 	Adelphia High-Speed Internet connection	
 		
 	•	 	Sound card	
 		
 	•	 	Speakers or headphones	
      9. Data and Reporting Requirements
     [*]
      10. Branding Requirements
     The Service shall initially be branded by Client as “Adelphia Music.”
 -3- 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

      11. Premium Content Bundle
     Synacor will have the right to bundle other third party content or services along with the Service.
      12. Pricing and Payment
     The fee payable by Client to Synacor under this Content Attachment No. 1 in consideration of the right to provide the Service to Client’s subscribers will [*], and payment terms shall be as set forth in Section 3, of Schedule A of the Agreement. Pursuant to Section 3, of Schedule A of the Agreement, additional discounts may also apply, depending on the cumulative level of annual billings achieved. In the event that additional optional features or enhanced functionality (collectively, “Enhanced Features”) are developed for the MusicNet service which have the potential for generating additional revenue and Client desires to make such Enhanced Features available to its subscribers, Synacor and Client shall negotiate in good faith with respect to apportioning any such revenue between Synacor and Client.
     Without limiting Client’s rights under Section 2 hereof to terminate this Content Attachment No. 1 in the event of an uncured breach, if at any time during the Term the Service is interrupted or unavailable for a period of more than [*] (a “Service Interruption”), Synacor shall reimburse Client for credits Client provides to Service subscribers who have called Client complaining of such Service Interruption (each, a “Refund Subscriber”), up to [*].
      13. [*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 -4- 

 

[*]
      14. Counterparts
     This Content Attachment No. 1 may be executed in counterparts, all of which (once executed) taken together shall constitute a single agreement, and facsimile signatures shall be effective as if original.
      IN WITNESS WHEREOF, the Parties have executed this Content Attachment No. 1 as of the date set forth below.
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	ACC OPERATIONS, INC. (CLIENT)	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Karl Ossentjuk	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: RONALD FRANKEL	 	 	 	 	 	Name: KARL OSSENTJUK	 	 	 	 	 	 	
 	 	Title:   PRESIDENT & CEO	 	 	 	 	 	Title:   VP Internet Services Product Mgmt	 	 	 	 	 	 	
Date:	 	11-21-04	 	 	 	Date:	 	11-18-04	 	 	 	 	 	 	
 -5- 

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

EXHIBIT 10.17.7
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
AMENDMENT NO. 1 TO
SYNACOR MUSICNET CONTENT NO. 1 ATTACHMENT
     This Amendment No. 1 to Synacor MusicNet Content Attachment No. 1 (this “Amendment No. 1”), dated as of the 1 st day of June, 2005, is by and between SYNACOR, INC. (“Synacor”) and ACC OPERATIONS, INC. (“Client”) and amends the Content Attachment No. 1, dated November 21, 2004, to Content Distribution Addendum to Synacor Master Services Agreement, by and between Synacor and Client (“Content Attachment No. 1”). Capitalized terms used but not defined in this Amendment No. 1 shall have the meanings ascribed to them in Content Attachment No. 1 or the Master Services Agreement dated July 13, 2004 by and between Synacor and Client (the “Agreement”), as applicable.
WITNESSETH:
      WHEREAS, Section 6 of Content Attachment No. 1 provides that the licenses to Client’s Users for DRM protected music are time based; and
      WHEREAS, the Parties desire to provide for the download and permanent licensing to Users of individual music tracks and/or albums.
      NOW, THEREFORE, in consideration of the premises and of the mutual agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Digital Rights Management (“DRM”). DRM is used by MusicNet to ensure that songs that are downloaded are not used in a manner that violates the rights of the copyright owner. At the time of execution of Content Attachment No. 1, the MusicNet DRM technology supported only subscription-based music licenses (the “Subscription Model”), as provided in Content Attachment No. 1. The MusicNet DRM now supports the purchase by Users of permanent licenses to individual music tracks or albums which may be downloaded by Users (the “Download Model”) for a fee and Synacor hereby agrees to make such Download Model available to Client and its Users in connection with the Adelphia Music service.
2. Revenue Share. The Parties agree that all revenues derived from Users of Adelphia Music via the Download Model and the costs specifically attributable to Client for providing the Download Model to Users of Adelphia Music (limited to actual and direct costs to Synacor assessed with respect to obtaining content from MusicNet, additional actual and direct per transaction charges imposed by MusicNet on, or passed through to, Synacor (e.g., studio, label and publishing fees), Verisign or other third party transaction costs, and credit card processing fees (collectively, “Costs”)) shall be aggregated and that Synacor shall share the Net Revenues (as defined herein) [*] with Adelphia. Net revenues shall be calculated as total gross revenues generated from Users of Adelphia Music through the Download Model from all purchases of music tracks or albums, less (a) Client’s portion of the Costs, (b) refunds that Synacor or Client’s agents refund to a User, and (c) charge-backs (i.e., charges that credit card merchants pay to a customer after the customer successfully disputes an item on his or her credit card statement) (hereinafter “Net Revenues”).
3. Monthly Report. Beginning no later then September 1, 2005, Synacor will provide a monthly report that details the total gross revenues and Net Revenues derived from Users of Adelphia Music through the Download Model during the pertinent month, including a delineation of tracks and albums purchased during such month, as well as the Costs and Client’s portion of such Costs, refunds and charge-backs. Synacor shall provide financial information sufficient to support the split of Net Revenues and any attendant payments to Adelphia on a monthly basis. Notwithstanding anything in this Paragraph 3 to the contrary, Synacor shall track all of the foregoing information at the same level of detail specified herein for transactions by Users of

 	 	 	
*	 	CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.	

 

Adelphia Music occurring during the months of June, July and August 2005, which information shall be included in the first monthly report to be provided by September 1, 2005, and Client shall receive its share of the revenue for such months accordingly. Client shall have the right to inspect and audit Synacor’s books and records relating to the foregoing pursuant to Section 11 of the Agreement.
4. Pricing. Client and Synacor agree that the initial charge to Users of Adelphia Music for downloads of individual tracks under the Download Model will be [*] for albums. Any revisions to pricing will be mutually determined.
5. Effectiveness. Except as specifically amended hereby, the Agreement and Content Attachment No. 1 shall continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. If any provision of this Amendment No. 1 conflicts with any provision of the Agreement or Content Attachment No. 1, the provisions of this Amendment No. 1 shall control.
      IN WITNESS WHEREOF, the parties have executed this Amendment No. 1, effective as of the date first above written.
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	ACC OPERATIONS, INC.	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	 	 	By:	 	/s/ Nancy McGee	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: NANCY MCGEE	 	 	 	 	 	 	
 	 	Title:   SVP	 	 	 	 	 	Title:   SVP MARKETING	 	 	 	 	 	 	
Date:	 	6/9/2005	 	 	 	 	 	 	 	 	 	 	 	 	
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 2 

EXHIBIT 10.17.8
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
CONTENT ATTACHMENT NO. 2 TO
CONTENT DISTRIBUTION ADDENDUM TO
SYNACOR MASTER SERVICES AGREEMENT
NETPAK
     This Attachment No. 2 dated as of June 6, 2005 (this “Attachment No. 2”) to the Content Distribution Addendum to the Synacor Master Services Agreement dated July 13, 2004 (the “Agreement”) is entered into between Synacor, Inc. (“Synacor”) and ACC Operations, Inc. (“Client”), and forms a part of, and is subject to, the Agreement. Capitalized terms used but not defined in this Attachment No. 2 shall have the meanings ascribed to them in the Agreement.
WITNESSETH:
      WHEREAS, Synacor and Client entered into the Agreement to establish the terms and conditions under which Synacor provides to Client certain web hosting services, including, without limitation, making certain content available on the Client Branded Portal; and
      WHEREAS, the Agreement contemplates Synacor and Client completing separate attachments to the Content Distribution Addendum detailing specific content offerings and additional fees associated with such offerings in the event that Client desires to include premium content on Client’s HSI customer home page, currently located at http://www.adelphia.net (“Client’s Web-site”); and
      WHEREAS, the Parties desire by way of this Content Attachment No. 2 to set forth the specific content offering and pricing with respect to certain content to be known as “Adelphia NetPak.”
      NOW, THEREFORE, in consideration of the premises and of the mutual agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
      1. Service Description and General Overview
     NetPak is a bundle of family-oriented on-line services, comprised of the content set forth below. Client may brand the NetPak service as “Adelphia NetPak.” Client shall have the right, but not the obligation, to offer Adelphia NetPak throughout the Attachment No. 2 Term (as defined herein) to its high speed Internet customers on a subscription basis. Throughout the Attachment No. 2 Term, Synacor shall make Adelphia NetPak available to Client for distribution to Client’s subscribers for the monthly fees described below.
     Unless modified at Client’s request as set forth below, Adelphia NetPak shall, throughout the Attachment No. 2 Term, include the following services:

 	•	 	Encyclopaedia Britannica — unlimited access to the updated 32-volume Encyclopaedia Britannica, plus Britannica’s Student & Concise encyclopedias, and thousands of exclusive video and audio clips.	

 

 	•	 	Shockwave Gameblast — 100 popular premium on-line and downloadable games.	
 		
 	•	 	American Greetings.com — “Print and Send Greeting Cards,” and access to member’s only on-line greeting cards.	
 		
 	•	 	Clever Island.com — focuses on the educational skills that are most important to a child’s development, including language, numbers, spatial reasoning, logic, and critical thinking. Activities are designed by leading experts in education and child development to be engaging, powerful, and fun.	
 		
 	•	 	CNN QuickCast & NewsPass — up to 30 video news updates per day. Along with 12, 2 minute breaking news stories per day*. (*Subject to approval by CNN).	
 		
 	•	 	Weather.com — local, regional and national video weather reports and special feature categories*. (*Subject to approval by Weather.com)	
 		
 	•	 	MLB.com — access to game-day audio (listen to every game played that day); condensed video games; post-game highlights; MLB custom cuts, and MLB radio.	
     From time-to-time, Client shall have the right to request alternative services that Synacor may be able to provide to replace one or more of the above-listed services in the event that, in Client’s discretion, a service(s) has a low performance rating in terms of Adelphia NetPak Subscriber usage of such service(s), or in order to make the overall bundle more robust and appealing to subscribers.
     2.  Pricing and Payment
     The fee payable by Client to Synacor under this Content Attachment No. 2 in consideration of the right to provide Adelphia NetPak to Client’s subscribers will [*] (each, a “NetPak Subscriber”), and payment terms shall be as set forth in Section 3, of Schedule A of the Agreement. For purposes of the payment of the monthly fee, the number of NetPak Subscribers shall be [*].
     Client may offer Adelphia NetPak to “first-time” NetPak Subscribers [*]. Notwithstanding anything in this Attachment No. 2 or the Agreement to the contrary, Client shall not be obligated to [*]. Pursuant to Section 3, of Schedule A of the Agreement, [*]. In the event that additional optional features or enhanced functionality (collectively, “Enhanced Features”) are developed for NetPak which have the potential for generating additional revenue and Client desires to make such Enhanced Features available to its subscribers, Synacor and Client shall negotiate in good faith with respect to apportioning any such revenue between Synacor and Client.
     Without limiting Client’s rights under Paragraph 5 hereof to terminate this Content Attachment No. 2 in the event of an uncured breach, if at any time during the Attachment No.
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 2 

 

2 Term the Service is interrupted or unavailable on an unscheduled basis for a period of more than [*] (a “Service Interruption”) because of an outage or other network failure at Synacor’s, or one of its suppliers’, facilities, Synacor shall reimburse Client for credits Client provides to Service subscribers who have called Client complaining of such Service Interruption (each, a “Refund Subscriber”), up to [*].
     3.  Accessing Content
     Subscribers may access Adelphia NetPak through the Synacor-provided Client portal. To access Adelphia NetPak, subscribers must first log-in to the Client portal with their ID and password, at which point they can access Adelphia NetPak without any further log-in required.
     4.  Customer Support
     Tier 1 subscriber support will be provided by Client, Tier 2 and Tier 3 technical support will be provided by Synacor, as necessary. This means that initial subscriber queries will be fielded by Client support personnel. If the Client support team is unable to answer the question, it will be forwarded to Synacor. Synacor will address the question, in consultation with the relevant content supplier, if necessary. Synacor will provide a response back to the Client Customer Support contact for communication to the pertinent subscriber.
     5.  Term; Termination
     Unless terminated earlier as provided herein, the “Attachment No. 2 Term” shall commence as of the date hereof and continue until the expiration or earlier termination of the Agreement. Notwithstanding anything in this Content Attachment No. 2 to the contrary, either Party may, upon giving thirty (30) days’ written notice identifying specifically the basis for such notice, terminate this Content Attachment No. 2 for a breach of any material term or condition of this Content Attachment No. 2 by the other Party, unless the Party receiving such notice cures such breach within such thirty (30)-day period.
     6.  [*]
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 3 

 

[*]
     7.  Counterparts
     This Content Attachment No. 2 may be executed in counterparts, all of which (once executed) taken together shall constitute a single agreement, and facsimile signatures shall be effective as if original.
     8.  Effectiveness
     Except as specifically amended hereby, the Agreement shall continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. After the date hereof, any reference to the Agreement and each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, shall mean and be in reference to the Agreement, including this Attachment No. 2. If any provision of this Attachment No. 2 conflicts with any provision of the Agreement, the provisions of this Attachment No. 2 shall control.
 4 
 
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

      IN WITNESS WHEREOF, the parties have executed this Attachment No. 2 to be effective as of the day first above written.
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	ACC OPERATIONS, INC.	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	 	 	By:	 	/s/ Nancy A McGee	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: NANCY A MCGEE	 	 	 	 	 	 	
 	 	Title:   Senior Vice President	 	 	 	 	 	Title:   SVP Marketing & Sales	 	 	 	 	 	 	
DATE:	 	6/2/2005	 	 	 	 	 	 	 	 	 	 	 	 	
 5