As filed with the Securities and Exchange Commission on October 10, 2007.

Registration No. 333-145077

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

 
 
AMENDMENT NO. 2
TO
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

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

Delaware
 (State or Other Jurisdiction of
Incorporation or Organization)	 	7389
 (Primary Standard Industrial
Classification Code Number)	 	16-1542712
 (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 42nd Street, 21st 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

 

CALCULATION OF REGISTRATION FEE

Title of Each Class of	 	 	Proposed Maximum	 	 	Amount of	
Securities to be Registered	 	 	Aggregate Offering Price(1)(2)	 	 	Registration Fee(3)	
Common stock, par value $0.01 per share	 	 	$86,250,000	 	 	$2,648	

 
			
(1)		Includes offering price of shares of common stock that may be purchased by the underwriters to cover over-allotments, if any.	
 		
(2)		Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act.	
 		
(3)		A registration fee of $2,648 was paid at the time of the initial filing of the registration statement based on an estimate of the aggregate offering price.	

 
 
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. 2 to the Registration Statement on Form S-1 (File No. 333-145077) is solely made to file exhibits previously omitted. 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 Statements

 
(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 the 1999 Stock Option Plan	
 	10	.3.1**	 	2000 Stock Plan	
 	10	.3.2**	 	First Amendment to the 2000 Stock Plan	
 	10	.3.3**	 	Second Amendment to the 2000 Stock Plan	
 	10	.3.4**	 	Third Amendment to the 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.	

 

 	 	 	 	 	
Exhibit No.	 	Description	
 		
 	10	.14.3***	 	Amendment Number One to Google Services Agreement Order Form dated November 1, 2004 by and between Google Inc. and Synacor, Inc.	
 	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 Blancho	
 	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. 2 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 10th day of October, 2007.

SYNACOR, INC.

 	By: 	/s/   Ron Frankel	

Ron Frankel
President and Chief Executive Officer
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this amendment no. 2 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)	 	October 10, 2007	
 	 	 	 	 	
/s/   Eric Blachno

Eric Blachno	 	Chief Financial Officer (Principal Financial and Accounting Officer)	 	October 10, 2007	
 	 	 	 	 	
*

Andrew Kau	 	Director	 	October 10, 2007	
 	 	 	 	 	
*

Jordan Levy	 	Director	 	October 10, 2007	
 	 	 	 	 	
*

Jeffrey Mallett	 	Director	 	October 10, 2007	
 	 	 	 	 	
*

Mark Morrissette	 	Director	 	October 10, 2007	
 	 	 	 	 	
*

M. Scott Murphy	 	Director	 	October 10, 2007	
 	 	 	 	 	
*

Joseph Tzeng	 	Director	 	October 10, 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 the 1999 Stock Option Plan	
 	10	.3.1**	 	2000 Stock Plan	
 	10	.3.2**	 	First Amendment to the 2000 Stock Plan	
 	10	.3.3**	 	Second Amendment to the 2000 Stock Plan	
 	10	.3.4**	 	Third Amendment to the 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	
 	10	.18.3**	 	Second Amendment to Sublease dated as of February 27, 2007	
 	10	.19**	 	2007 Management Cash Incentive Plan	

 

 	 	 	 	 	
Exhibit No.	 	Description	
 		
 	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 Blancho	
 	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 10.5
Synacor, Inc.
2007 Equity Incentive Plan
(As Adopted September 14, 2007)

 

TABLE OF CONTENTS
 	 	 	 	 	
 	 	 	Page	 	
ARTICLE 1. INTRODUCTION	 	 	1	 	
 	 	 	 	 	
ARTICLE 2. ADMINISTRATION	 	 	1	 	
2.1 Committee Composition	 	 	1	 	
2.2 Committee Responsibilities	 	 	1	 	
2.3 Non-Officer Grants	 	 	2	 	
 	 	 	 	 	
ARTICLE 3. SHARES AVAILABLE FOR GRANTS	 	 	2	 	
3.1 Basic Limitation	 	 	2	 	
3.2 Annual Increase in Shares	 	 	2	 	
3.3 Shares Returned to Reserve	 	 	2	 	
3.4 Dividend Equivalents	 	 	2	 	
 	 	 	 	 	
ARTICLE 4. ELIGIBILITY	 	 	3	 	
4.1 Incentive Stock Options	 	 	3	 	
4.2 Other Grants	 	 	3	 	
 	 	 	 	 	
ARTICLE 5. OPTIONS	 	 	3	 	
5.1 Stock Option Agreement	 	 	3	 	
5.2 Number of Shares	 	 	3	 	
5.3 Exercise Price	 	 	3	 	
5.4 Exercisability and Term	 	 	3	 	
5.5 Effect of Change in Control	 	 	3	 	
5.6 Modification or Assumption of Options	 	 	4	 	
5.7 Buyout Provisions	 	 	4	 	
 	 	 	 	 	
ARTICLE 6. PAYMENT FOR OPTION SHARES	 	 	4	 	
6.1 General Rule	 	 	4	 	
6.2 Surrender of Stock	 	 	4	 	
6.3 Exercise/Sale	 	 	4	 	
6.4 Promissory Note	 	 	4	 	
6.5 Other Forms of Payment	 	 	4	 	
 	 	 	 	 	
ARTICLE 7. STOCK APPRECIATION RIGHTS	 	 	5	 	
7.1 SAR Agreement	 	 	5	 	
7.2 Number of Shares	 	 	5	 	
7.3 Exercise Price	 	 	5	 	
7.4 Exercisability and Term	 	 	5	 	
7.5 Effect of Change in Control	 	 	5	 	
7.6 Exercise of SARs	 	 	5	 	
7.7 Modification or Assumption of SARs	 	 	6	 	
 	 	 	 	 	
ARTICLE 8. RESTRICTED SHARES	 	 	6	 	
8.1 Restricted Stock Agreement	 	 	6	 	
 i 

 

 	 	 	 	 	
 	 	 	Page	 	
8.2 Payment for Awards	 	 	6	 	
8.3 Vesting Conditions	 	 	6	 	
8.4 Voting and Dividend Rights	 	 	7	 	
 	 	 	 	 	
ARTICLE 9. STOCK UNITS	 	 	7	 	
9.1 Stock Unit Agreement	 	 	7	 	
9.2 Payment for Awards	 	 	7	 	
9.3 Vesting Conditions	 	 	7	 	
9.4 Voting and Dividend Rights	 	 	7	 	
9.5 Form and Time of Settlement of Stock Units	 	 	8	 	
9.6 Death of Recipient	 	 	8	 	
9.7 Creditors’ Rights	 	 	8	 	
 	 	 	 	 	
ARTICLE 10. PROTECTION AGAINST DILUTION	 	 	8	 	
10.1 Adjustments	 	 	8	 	
10.2 Dissolution or Liquidation	 	 	9	 	
10.3 Reorganizations	 	 	9	 	
 	 	 	 	 	
ARTICLE 11. AWARDS UNDER OTHER PLANS	 	 	10	 	
 	 	 	 	 	
ARTICLE 12. PAYMENT OF DIRECTOR’S FEES IN SECURITIES	 	 	10	 	
12.1 Effective Date	 	 	10	 	
12.2 Elections to Receive NSOs, Restricted Shares or Stock Units	 	 	10	 	
12.3 Number and Terms of NSOs, Restricted Shares or Stock Units	 	 	11	 	
 	 	 	 	 	
ARTICLE 13. LIMITATION ON RIGHTS	 	 	11	 	
13.1 Retention Rights	 	 	11	 	
13.2 Stockholders’ Rights	 	 	11	 	
13.3 Regulatory Requirements	 	 	11	 	
 	 	 	 	 	
ARTICLE 14. WITHHOLDING TAXES	 	 	11	 	
14.1 General	 	 	11	 	
14.2 Share Withholding	 	 	11	 	
 	 	 	 	 	
ARTICLE 15. FUTURE OF THE PLAN	 	 	12	 	
15.1 Term of the Plan	 	 	12	 	
15.2 Amendment or Termination	 	 	12	 	
15.3 Stockholder Approval	 	 	12	 	
 	 	 	 	 	
ARTICLE 16. DEFINITIONS	 	 	12	 	
 	 	 	 	 	
ARTICLE 17. EXECUTION	 	 	16	 	
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Synacor, Inc.
2007 Equity Incentive Plan
      ARTICLE 1. INTRODUCTION.
          The Board adopted the Plan effective as of the IPO Date. The purpose of the Plan is to promote the long-term success of the Company and the creation of stockholder value by (a) encouraging Employees, Outside Directors and Consultants to focus on critical long-range objectives, (b) encouraging the attraction and retention of Employees, Outside Directors and Consultants with exceptional qualifications and (c) linking Employees, Outside Directors and Consultants directly to stockholder interests through increased stock ownership. The Plan seeks to achieve this purpose by providing for Awards in the form of Restricted Shares, Stock Units, Options (which may constitute ISOs or NSOs) or stock appreciation rights.
          The Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware (except their choice-of-law provisions).
      ARTICLE 2. ADMINISTRATION.
           2.1 Committee Composition. The Compensation Committee of the Board shall administer the Plan. The Committee shall consist exclusively of two or more members of the Board, who shall be appointed by the Board. In addition, each member of the Committee shall meet the following requirements:
               (a) Any listing standards prescribed by the principal securities market on which the Company’s equity securities are traded;
               (b) Such requirements as the Internal Revenue Service may establish for outside directors acting under plans intended to qualify for exemption under section 162(m)(4)(C) of the Code;
               (c) Such requirements as the Securities and Exchange Commission may establish for administrators acting under plans intended to qualify for exemption under Rule 16b-3 (or its successor) under the Exchange Act; and
               (d) Any other requirements imposed by applicable law, regulations or rules.
           2.2 Committee Responsibilities. The Committee shall (a) select the Employees, Outside Directors and Consultants who are to receive Awards under the Plan, (b) determine the type, number, vesting requirements and other features and conditions of such Awards, (c) interpret the Plan, (d) make all other decisions relating to the operation of the Plan and (e) carry out any other duties delegated to it by the Board under the Plan. The Committee

 

may adopt such rules or guidelines as it deems appropriate to implement the Plan. The Committee’s determinations under the Plan shall be final and binding on all persons.
           2.3 Non-Officer Grants. The Board may also appoint a single director or an additional committee of the Board composed of two or more directors of the Company. The single director or the members of the additional committee need not satisfy the requirements of Section 2.1. Such director or committee may (a) administer the Plan with respect to Employees and Consultants who are not Outside Directors and are not considered executive officers of the Company under section 16 of the Exchange Act, (b) grant Awards under the Plan to such Employees and Consultants and (c) determine all features and conditions of such Awards. Within the limitations of this Section 2.3, any reference in the Plan to the Committee shall include a single director or an additional committee to whom the Board has delegated the required authority under this Section 2.3.
      ARTICLE 3. SHARES AVAILABLE FOR GRANTS.
           3.1 Basic Limitation. Common Shares issued pursuant to the Plan may be authorized but unissued shares or treasury shares. The aggregate number of Common Shares issued under the Plan shall not exceed (a) 1,500,000 plus (b) the additional Common Shares described in Sections 3.2 and 3.3. The number of Common Shares that are subject to Awards outstanding at any time under the Plan shall not exceed the number of Common Shares that then remain available for issuance under the Plan. All Common Shares available under the Plan may be issued upon the exercise of ISOs. The limitations of this Section 3.1 and Section 3.2 shall be subject to adjustment pursuant to Article 10.
           3.2 Annual Increase in Shares. As of the first day of each fiscal year of the Company, commencing on January 1, 2009, the aggregate number of Common Shares that may be issued under the Plan shall automatically increase by a number equal to the lowest of (a) 4% of the total number of Common Shares then outstanding, (b) 1,000,000 Common Shares or (c) the number determined by the Board.
           3.3 Shares Returned to Reserve. If Options, SARs or Stock Units are forfeited or terminate for any other reason before being exercised or settled, then the Common Shares subject to such Options, SARs or Stock Units shall again become available for issuance under the Plan. If SARs are exercised, then only the number of Common Shares (if any) actually issued in settlement of such SARs shall reduce the number available under Section 3.1 and the balance shall again become available for issuance under the Plan. If Stock Units are settled, then only the number of Common Shares (if any) actually issued in settlement of such Stock Units shall reduce the number available under Section 3.1 and the balance shall again become available for issuance under the Plan. If Restricted Shares or Common Shares issued upon the exercise of Options are reacquired by the Company pursuant to a forfeiture provision or for any other reason, then such Common Shares shall again become available for issuance under the Plan.
           3.4 Dividend Equivalents. Any dividend equivalents paid or credited under the Plan shall not be applied against the number of Common Shares that may be issued under the Plan, whether or not such dividend equivalents are converted into Stock Units.
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      ARTICLE 4. ELIGIBILITY.
           4.1 Incentive Stock Options. Only Employees who are common-law employees of the Company, a Parent or a Subsidiary shall be eligible for the grant of ISOs. In addition, an Employee who owns more than 10% of the total combined voting power of all classes of outstanding stock of the Company or any of its Parents or Subsidiaries shall not be eligible for the grant of an ISO unless the additional requirements set forth in section 422(c)(5) of the Code are satisfied.
           4.2 Other Grants. Only Employees, Outside Directors and Consultants shall be eligible for the grant of Restricted Shares, Stock Units, NSOs or SARs.
      ARTICLE 5. OPTIONS.
           5.1 Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. Such Option shall be subject to all applicable terms of the Plan and may be subject to any other terms that are not inconsistent with the Plan. The Stock Option Agreement shall specify whether the Option is an ISO or an NSO. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. Options may be granted in consideration of a reduction in the Optionee’s other compensation.
           5.2 Number of Shares. Each Stock Option Agreement shall specify the number of Common Shares subject to the Option and shall provide for the adjustment of such number in accordance with Article 10. Options granted to an Optionee in a single fiscal year of the Company shall not cover more than 500,000 Common Shares, except that Options granted to a new Employee in the fiscal year of the Company in which his or her Service commences may cover up to 1,000,000 Common Shares. The limitations set forth in the preceding sentence shall be subject to adjustment in accordance with Article 10.
           5.3 Exercise Price. Each Stock Option Agreement shall specify the Exercise Price, which shall not be less than 100% of the Fair Market Value of a Common Share on the date of grant. The preceding sentence shall not apply to Options granted pursuant to an assumption of, or substitution for, another option in a manner that would satisfy the requirements of section 424(a) of the Code, whether or not such section is applicable.
           5.4 Exercisability and Term. Each Stock Option Agreement shall specify the date or event when all or any installment of the Option is to become exercisable. The Stock Option Agreement shall also specify the term of the Option; provided that the term of an ISO shall in no event exceed 10 years from the date of grant. A Stock Option Agreement may provide for accelerated exercisability in the event of the Optionee’s death, disability or retirement or other events and may provide for expiration prior to the end of its term in the event of the termination of the Optionee’s Service. Options may be awarded in combination with SARs, and such an Award may provide that the Options will not be exercisable unless the related SARs are forfeited.
           5.5 Effect of Change in Control. The Committee may determine, at the time of granting an Option or thereafter, that such Option shall become exercisable as to all or part of
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the Common Shares subject to such Option in the event that a Change in Control occurs with respect to the Company or in the event that the Optionee is subject to an Involuntary Termination after a Change in Control. However, in the case of an ISO, the acceleration of exercisability shall not occur without the Optionee’s written consent. In addition, acceleration of exercisability may be required under Section 10.3.
           5.6 Modification or Assumption of Options. Within the limitations of the Plan, the Committee may modify, reprice, extend or assume outstanding options or may accept the cancellation of outstanding options (whether granted by the Company or by another issuer) in return for the grant of new options for the same or a different number of shares and at the same or a different exercise price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, alter or impair his or her rights or obligations under such Option.
           5.7 Buyout Provisions. The Committee may at any time (a) offer to buy out for a payment in cash or cash equivalents an Option previously granted or (b) authorize an Optionee to elect to cash out an Option previously granted, in either case at such time and based upon such terms and conditions as the Committee shall establish.
      ARTICLE 6. PAYMENT FOR OPTION SHARES.
           6.1 General Rule. The entire Exercise Price of Common Shares issued upon exercise of Options shall be payable in cash or cash equivalents at the time when such Common Shares are purchased, except that the Committee at its sole discretion may accept payment of the Exercise Price in any other form(s) described in this Article 6. However, if the Optionee is an Outside Director or executive officer of the Company, he or she may pay the Exercise Price in a form other than cash or cash equivalents only to the extent permitted by section 13(k) of the Exchange Act.
           6.2 Surrender of Stock. With the Committee’s consent, all or any part of the Exercise Price may be paid by surrendering, or attesting to the ownership of, Common Shares that are already owned by the Optionee. Such Common Shares shall be valued at their Fair Market Value on the date when the new Common Shares are purchased under the Plan.
           6.3 Exercise/Sale. With the Committee’s consent, all or any part of the Exercise Price and any withholding taxes may be paid by delivering (on a form prescribed by the Company) an irrevocable direction to a securities broker approved by the Company to sell all or part of the Common Shares being purchased under the Plan and to deliver all or part of the sales proceeds to the Company.
           6.4 Promissory Note. With the Committee’s consent, all or any part of the Exercise Price and any withholding taxes may be paid by delivering (on a form prescribed by the Company) a full-recourse promissory note.
           6.5 Other Forms of Payment. With the Committee’s consent, all or any part of the Exercise Price and any withholding taxes may be paid in any other form that is consistent with applicable laws, regulations and rules.
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      ARTICLE 7. STOCK APPRECIATION RIGHTS.
           7.1 SAR Agreement. Each grant of an SAR under the Plan shall be evidenced by an SAR Agreement between the Optionee and the Company. Such SAR shall be subject to all applicable terms of the Plan and may be subject to any other terms that are not inconsistent with the Plan. The provisions of the various SAR Agreements entered into under the Plan need not be identical. SARs may be granted in consideration of a reduction in the Optionee’s other compensation.
           7.2 Number of Shares. Each SAR Agreement shall specify the number of Common Shares to which the SAR pertains and shall provide for the adjustment of such number in accordance with Article 10. SARs granted to an Optionee in a single calendar year shall in no event pertain to more than 500,000 Common Shares, except that SARs granted to a new Employee in the fiscal year of the Company in which his or her Service commences may pertain to a maximum of 1,000,000 Common Shares. The limitations set forth in the preceding sentence shall be subject to adjustment in accordance with Article 10.
           7.3 Exercise Price. Each SAR Agreement shall specify the Exercise Price, which shall in no event be less than 100% of the Fair Market Value of a Common Share on the date of grant. The preceding sentence shall not apply to SARs granted pursuant to an assumption of, or substitution for, another SAR in a manner that would satisfy the requirements of section 424(a) of the Code if such section were applicable.
           7.4 Exercisability and Term. Each SAR Agreement shall specify the date when all or any installment of the SAR is to become exercisable. The SAR Agreement shall also specify the term of the SAR. An SAR Agreement may provide for accelerated exercisability in the event of the Optionee’s death, disability or retirement or other events and may provide for expiration prior to the end of its term in the event of the termination of the Optionee’s Service. SARs may be awarded in combination with Options, and such an Award may provide that the SARs will not be exercisable unless the related Options are forfeited. An SAR may be included in an ISO only at the time of grant but may be included in an NSO at the time of grant or thereafter. An SAR granted under the Plan may provide that it will be exercisable only in the event of a Change in Control.
           7.5 Effect of Change in Control. The Committee may determine, at the time of granting an SAR or thereafter, that such SAR shall become exercisable as to all or part of the Common Shares subject to such SAR in the event that the Company is subject to a Change in Control or in the event that the Optionee is subject to an Involuntary Termination after a Change in Control. In addition, acceleration of exercisability may be required under Section 10.3.
           7.6 Exercise of SARs. Upon exercise of an SAR, the Optionee (or any person having the right to exercise the SAR after his or her death) shall receive from the Company (a) Common Shares, (b) cash or (c) a combination of Common Shares and cash, as the Committee shall determine. The amount of cash and/or the Fair Market Value of Common Shares received upon exercise of SARs shall, in the aggregate, be equal to the amount by which the Fair Market Value (on the date of surrender) of the Common Shares subject to the SARs exceeds the Exercise Price. If, on the date when an SAR expires, the Exercise Price is less than
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the Fair Market Value on such date but any portion of such SAR has not been exercised or surrendered, then such SAR shall automatically be deemed to be exercised as of such date with respect to such portion. An SAR Agreement may also provide for an automatic exercise of the SAR on an earlier date.
           7.7 Modification or Assumption of SARs. Within the limitations of the Plan, the Committee may modify, reprice, extend or assume outstanding SARs or may accept the cancellation of outstanding SARs (whether granted by the Company or by another issuer) in return for the grant of new SARs for the same or a different number of shares and at the same or a different exercise price. The foregoing notwithstanding, no modification of an SAR shall, without the consent of the Optionee, alter or impair his or her rights or obligations under such SAR.
      ARTICLE 8. RESTRICTED SHARES.
           8.1 Restricted Stock Agreement. Each grant of Restricted Shares under the Plan shall be evidenced by a Restricted Stock Agreement between the recipient and the Company. Such Restricted Shares shall be subject to all applicable terms of the Plan and may be subject to any other terms that are not inconsistent with the Plan. The provisions of the various Restricted Stock Agreements entered into under the Plan need not be identical.
           8.2 Payment for Awards. Restricted Shares may be sold or awarded under the Plan for such consideration as the Committee may determine, including (without limitation) cash, cash equivalents, property, full-recourse promissory notes, past services and future services. If the Participant is an Outside Director or executive officer of the Company, he or she may pay for Restricted Shares with a promissory note only to the extent permitted by section 13(k) of the Exchange Act. Within the limitations of the Plan, the Committee may accept the cancellation of outstanding options in return for the grant of Restricted Shares.
           8.3 Vesting Conditions. Each Award of Restricted Shares may or may not be subject to vesting. Vesting shall occur, in full or in installments, upon satisfaction of the conditions specified in the Restricted Stock Agreement. The Committee may include among such conditions the requirement that the performance of the Company or a business unit of the Company for a specified period of one or more fiscal years equal or exceed a target determined in advance by the Committee. The Committee shall determine such performance. Such target shall be based on one or more of the criteria set forth in Appendix A. The Committee shall identify such target not later than the 90 th day of such period. In no event shall more than 250,000 Restricted Shares that are subject to performance-based vesting conditions be granted to any Participant in a single fiscal year of the Company, except that up to 500,000 Restricted Shares subject to performance-based vesting conditions may be granted to a new Employee in the fiscal year of the Company in which his or her Service commences. The limitations set forth in the preceding sentence shall be subject to adjustment in accordance with Article 10. A Restricted Stock Agreement may provide for accelerated vesting in the event of the Participant’s death, disability or retirement or other events. The Committee may determine, at the time of granting Restricted Shares or thereafter, that all or part of such Restricted Shares shall become vested in the event that a Change in Control occurs with respect to the Company or in the event that the Participant is subject to an Involuntary Termination after a Change in Control.
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           8.4 Voting and Dividend Rights. The holders of Restricted Shares awarded under the Plan shall have the same voting, dividend and other rights as the Company’s other stockholders. A Restricted Stock Agreement, however, may require that any cash dividends paid on Restricted Shares (a) be accumulated and paid when such Restricted Shares vest or (b) be invested in additional Restricted Shares. Such additional Restricted Shares shall be subject to the same conditions and restrictions as the Award with respect to which the dividends were paid.
      ARTICLE 9. STOCK UNITS.
           9.1 Stock Unit Agreement. Each grant of Stock Units under the Plan shall be evidenced by a Stock Unit Agreement between the recipient and the Company. Such Stock Units shall be subject to all applicable terms of the Plan and may be subject to any other terms that are not inconsistent with the Plan. The provisions of the various Stock Unit Agreements entered into under the Plan need not be identical. Stock Units may be granted in consideration of a reduction in the recipient’s other compensation.
           9.2 Payment for Awards. To the extent that an Award is granted in the form of Stock Units, no cash consideration shall be required of the Award recipients.
           9.3 Vesting Conditions. Each Award of Stock Units may or may not be subject to vesting. Vesting shall occur, in full or in installments, upon satisfaction of the conditions specified in the Stock Unit Agreement. The Committee may include among such conditions the requirement that the performance of the Company or a business unit of the Company for a specified period of one or more fiscal years equal or exceed a target determined in advance by the Committee. The Committee shall determine such performance. Such target shall be based on one or more of the criteria set forth in Appendix A. The Committee shall identify such target not later than the 90 th day of such period. In no event shall more than 250,000 Stock Units that are subject to performance-based vesting conditions be granted to any Participant in a single fiscal year of the Company, except that up to 500,000 Stock Units subject to performance-based vesting conditions may be granted to a new Employee in the fiscal year of the Company in which his or her Service commences. The limitations set forth in the preceding sentence shall be subject to adjustment in accordance with Article 10. A Stock Unit Agreement may provide for accelerated vesting in the event of the Participant’s death, disability or retirement or other events. The Committee may determine, at the time of granting Stock Units or thereafter, that all or part of such Stock Units shall become vested in the event that the Company is subject to a Change in Control or in the event that the Participant is subject to an Involuntary Termination after a Change in Control. In addition, acceleration of vesting may be required under Section 10.3.
           9.4 Voting and Dividend Rights. The holders of Stock Units shall have no voting rights. Prior to settlement or forfeiture, any Stock Unit awarded under the Plan may, at the Committee’s discretion, carry with it a right to dividend equivalents. Such right entitles the holder to be credited with an amount equal to all cash dividends paid on one Common Share while the Stock Unit is outstanding. Dividend equivalents may be converted into additional Stock Units. Settlement of dividend equivalents may be made in the form of cash, in the form of Common Shares, or in a combination of both. Prior to distribution, any dividend equivalents that
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are not paid shall be subject to the same conditions and restrictions as the Stock Units to which they attach.
           9.5 Form and Time of Settlement of Stock Units. Settlement of vested Stock Units may be made in the form of (a) cash, (b) Common Shares or (c) any combination of both, as determined by the Committee. The actual number of Stock Units eligible for settlement may be larger or smaller than the number included in the original Award, based on predetermined performance factors. Methods of converting Stock Units into cash may include (without limitation) a method based on the average Fair Market Value of Common Shares over a series of trading days. Vested Stock Units may be settled in a lump sum or in installments. The distribution may occur or commence when all vesting conditions applicable to the Stock Units have been satisfied or have lapsed, or it may be deferred to any later date. The amount of a deferred distribution may be increased by an interest factor or by dividend equivalents. Until an Award of Stock Units is settled, the number of such Stock Units shall be subject to adjustment pursuant to Article 10.
           9.6 Death of Recipient. Any Stock Units Award that becomes payable after the recipient’s death shall be distributed to the recipient’s beneficiary or beneficiaries. Each recipient of a Stock Units Award under the Plan shall designate one or more beneficiaries for this purpose by filing the prescribed form with the Company. A beneficiary designation may be changed by filing the prescribed form with the Company at any time before the Award recipient’s death. If no beneficiary was designated or if no designated beneficiary survives the Award recipient, then any Stock Units Award that becomes payable after the recipient’s death shall be distributed to the recipient’s estate.
           9.7 Creditors’ Rights. A holder of Stock Units shall have no rights other than those of a general creditor of the Company. Stock Units represent an unfunded and unsecured obligation of the Company, subject to the terms and conditions of the applicable Stock Unit Agreement.
      ARTICLE 10. PROTECTION AGAINST DILUTION.
           10.1 Adjustments. In the event of a subdivision of the outstanding Common Shares, a declaration of a dividend payable in Common Shares or a combination or consolidation of the outstanding Common Shares (by reclassification or otherwise) into a lesser number of Common Shares, corresponding adjustments shall automatically be made in each of the following:
               (a) The number of Options, SARs, Restricted Shares and Stock Units available for future Awards under Article 3;
               (b) The limitations set forth in Sections 5.2, 7.2, 8.3 and 9.3;
               (c) The number of Common Shares covered by each outstanding Option and SAR;
               (d) The Exercise Price under each outstanding Option and SAR; or
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          (e) The number of Stock Units included in any prior Award that has not yet been settled.
In the event of a declaration of an extraordinary dividend payable in a form other than Common Shares in an amount that has a material effect on the price of Common Shares, a recapitalization, a spin-off or a similar occurrence, the Committee shall make such adjustments as it, in its sole discretion, deems appropriate in one or more of the foregoing. Except as provided in this Article 10, a Participant shall have no rights by reason of any issuance by the Company of stock of any class or securities convertible into stock of any class, any subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class.
           10.2 Dissolution or Liquidation. To the extent not previously exercised or settled, Options, SARs and Stock Units shall terminate immediately prior to the dissolution or liquidation of the Company.
           10.3 Reorganizations. In the event that the Company is a party to a merger or consolidation, all outstanding Awards shall be subject to the agreement of merger or consolidation. Such agreement shall provide for one or more of the following:
          (a) The continuation of such outstanding Awards by the Company (if the Company is the surviving corporation).
          (b) The assumption of such outstanding Awards by the surviving corporation or its parent, provided that the assumption of Options or SARs shall comply with section 424(a) of the Code (whether or not the Options are ISOs).
          (c) The substitution by the surviving corporation or its parent of new awards for such outstanding Awards, provided that the substitution of Options or SARs shall comply with section 424(a) of the Code (whether or not the Options are ISOs).
          (d) Full exercisability of outstanding Options and SARs and full vesting of the Common Shares subject to such Options and SARs, followed by the cancellation of such Options and SARs. The full exercisability of such Options and SARs and full vesting of such Common Shares may be contingent on the closing of such merger or consolidation. The Optionees shall be able to exercise such Options and SARs during a period of not less than five full business days preceding the closing date of such merger or consolidation, unless (i) a shorter period is required to permit a timely closing of such merger or consolidation and (ii) such shorter period still offers the Optionees a reasonable opportunity to exercise such Options and SARs. Any exercise of such Options and SARs during such period may be contingent on the closing of such merger or consolidation.
          (e) The cancellation of outstanding Options and SARs and a payment to the Optionees equal to the excess of (i) the Fair Market Value of the
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Common Shares subject to such Options and SARs (whether or not such Options and SARs are then exercisable or such Common Shares are then vested) as of the closing date of such merger or consolidation over (ii) their Exercise Price. Such payment shall be made in the form of cash, cash equivalents, or securities of the surviving corporation or its parent with a Fair Market Value equal to the required amount. Such payment may be made in installments and may be deferred until the date or dates when such Options and SARs would have become exercisable or such Common Shares would have vested. Such payment may be subject to vesting based on the Optionee’s continuing Service, provided that the vesting schedule shall not be less favorable to the Optionee than the schedule under which such Options and SARs would have become exercisable or such Common Shares would have vested. If the Exercise Price of the Common Shares subject to such Options and SARs exceeds the Fair Market Value of such Common Shares, then such Options and SARs may be cancelled without making a payment to the Optionees. For purposes of this Subsection (e), the Fair Market Value of any security shall be determined without regard to any vesting conditions that may apply to such security.
          (f) The cancellation of outstanding Stock Units and a payment to the Participants equal to the Fair Market Value of the Common Shares subject to such Stock Units (whether or not such Stock Units are then vested) as of the closing date of such merger or consolidation. Such payment shall be made in the form of cash, cash equivalents, or securities of the surviving corporation or its parent with a Fair Market Value equal to the required amount. Such payment may be made in installments and may be deferred until the date or dates when such Stock Units would have vested. Such payment may be subject to vesting based on the Participant’s continuing Service, provided that the vesting schedule shall not be less favorable to the Participant than the schedule under which such Stock Units would have vested. For purposes of this Subsection (f), the Fair Market Value of any security shall be determined without regard to any vesting conditions that may apply to such security.
      ARTICLE 11. AWARDS UNDER OTHER PLANS.
          The Company may grant awards under other plans or programs. Such awards may be settled in the form of Common Shares issued under this Plan. Such Common Shares shall be treated for all purposes under the Plan like Common Shares issued in settlement of Stock Units and shall, when issued, reduce the number of Common Shares available under Article 3.
      ARTICLE 12. PAYMENT OF DIRECTOR’S FEES IN SECURITIES.
           12.1 Effective Date. No provision of this Article 12 shall be effective unless and until the Board has determined to implement such provision.
           12.2 Elections to Receive NSOs, Restricted Shares or Stock Units. An Outside Director may elect to receive his or her annual retainer payments and/or meeting fees from the Company in the form of cash, NSOs, Restricted Shares or Stock Units, or a
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combination thereof, as determined by the Board. Such NSOs, Restricted Shares and Stock Units shall be issued under the Plan. An election under this Article 12 shall be filed with the Company on the prescribed form.
           12.3 Number and Terms of NSOs, Restricted Shares or Stock Units. The number of NSOs, Restricted Shares or Stock Units to be granted to Outside Directors in lieu of annual retainers and meeting fees that would otherwise be paid in cash shall be calculated in a manner determined by the Board. The terms of such NSOs, Restricted Shares or Stock Units shall also be determined by the Board.
      ARTICLE 13. LIMITATION ON RIGHTS.
           13.1 Retention Rights. Neither the Plan nor any Award granted under the Plan shall be deemed to give any individual a right to remain an Employee, Outside Director or Consultant. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate the Service of any Employee, Outside Director or Consultant at any time, with or without cause, subject to applicable laws, the Company’s certificate of incorporation and by-laws and a written employment agreement (if any).
           13.2 Stockholders’ Rights. A Participant shall have no dividend rights, voting rights or other rights as a stockholder with respect to any Common Shares covered by his or her Award prior to the time when a stock certificate for such Common Shares is issued or, if applicable, the time when he or she becomes entitled to receive such Common Shares by filing any required notice of exercise and paying any required Exercise Price. No adjustment shall be made for cash dividends or other rights for which the record date is prior to such time, except as expressly provided in the Plan.
           13.3 Regulatory Requirements. Any other provision of the Plan notwithstanding, the obligation of the Company to issue Common Shares under the Plan shall be subject to all applicable laws, rules and regulations and such approval by any regulatory body as may be required. The Company reserves the right to restrict, in whole or in part, the delivery of Common Shares pursuant to any Award prior to the satisfaction of all legal requirements relating to the issuance of such Common Shares, to their registration, qualification or listing or to an exemption from registration, qualification or listing.
      ARTICLE 14. WITHHOLDING TAXES.
           14.1 General. To the extent required by applicable federal, state, local or foreign law, a Participant or his or her successor shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise in connection with the Plan. The Company shall not be required to issue any Common Shares or make any cash payment under the Plan until such obligations are satisfied.
           14.2 Share Withholding. To the extent that applicable law subjects a Participant to tax withholding obligations, the Committee may permit such Participant to satisfy all or part of such obligations by having the Company withhold all or a portion of any Common Shares that otherwise would be issued to him or her or by surrendering all or a portion of any Common Shares that he or she previously acquired. Such Common Shares shall be valued at
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their Fair Market Value on the date when they are withheld or surrendered. This Section 14.2 shall apply only to the minimum extent required by applicable tax laws.
      ARTICLE 15. FUTURE OF THE PLAN.
           15.1 Term of the Plan. The Plan, as set forth herein, shall become effective on the IPO Date. The Plan shall remain in effect until the earlier of (a) the date when the Plan is terminated under Section 15.2 or (b) the 10 th anniversary of the date when the Board adopted the Plan.
           15.2 Amendment or Termination. The Board may, at any time and for any reason, amend or terminate the Plan. No Awards shall be granted under the Plan after the termination thereof. The termination of the Plan, or any amendment thereof, shall not affect any Award previously granted under the Plan.
           15.3 Stockholder Approval. An amendment of the Plan shall be subject to the approval of the Company’s stockholders only to the extent required by applicable laws, regulations or rules. However, section 162(m) of the Code may require that the Company’s stockholders approve:
          (a) The Plan not later than the first regular meeting of stockholders that occurs in the fourth calendar year following the calendar year in which the IPO Date occurred; and
          (b) The performance criteria set forth in Appendix A not later than the first meeting of stockholders that occurs in the fifth year following the year in which the Company’s stockholders previously approved such criteria.
      ARTICLE 16. DEFINITIONS.
          16.1 “ Affiliate ” means any entity other than a Subsidiary, if the Company and/or one or more Subsidiaries own not less than 50% of such entity.
          16.2 “ Award ” means any award of an Option, an SAR, a Restricted Share or a Stock Unit under the Plan.
          16.3 “ Board ” means the Company’s Board of Directors, as constituted from time to time.
          16.4 “ Cause ” means:
          (a) An unauthorized use or disclosure by the Participant of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company;
          (b) A material breach by the Participant of any agreement between the Participant and the Company;
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          (c) A material failure by the Participant to comply with the Company’s written policies or rules;
          (d) The Participant’s conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of the United States or any State thereof;
          (e) The Participant’s gross negligence or willful misconduct;
          (f) A continuing failure by the Participant to perform assigned duties after receiving written notification of such failure from the Board; or
          (g) A failure by the Participant to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Participant’s cooperation.
          16.5 “ Change in Control ” means:
          (a) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (i) the continuing or surviving entity and (ii) any direct or indirect parent corporation of such continuing or surviving entity;
          (b) The sale, transfer or other disposition of all or substantially all of the Company’s assets;
          (c) A change in the composition of the Board, as a result of which fewer than 50% of the incumbent directors are directors who either:
          (i) Had been directors of the Company on the date 24 months prior to the date of such change in the composition of the Board (the “Original Directors”); or
          (ii) Were appointed to the Board, or nominated for election to the Board, with the affirmative votes of at least a majority of the aggregate of (A) the Original Directors who were in office at the time of their appointment or nomination and (B) the directors whose appointment or nomination was previously approved in a manner consistent with this Paragraph (ii); or
          (d) Any transaction as a result of which any person is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing at least 50% of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this Subsection (d), the term “person” shall have the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall
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exclude (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Parent or Subsidiary and (ii) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the common stock of the Company.
A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
          16.6 “ Code ” means the Internal Revenue Code of 1986, as amended.
          16.7 “ Committee ” means the Compensation Committee of the Board, as further described in Article 2.
          16.8 “ Common Share ” means one share of the common stock of the Company.
          16.9 “ Company ” means Synacor, Inc., a Delaware corporation.
          16.10 “ Consultant ” means a consultant or adviser who provides bona fide services to the Company, a Parent, a Subsidiary or an Affiliate as an independent contractor.
          16.11 “ Employee ” means a common-law employee of the Company, a Parent, a Subsidiary or an Affiliate.
          16.12 “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
          16.13 “ Exercise Price ,” in the case of an Option, means the amount for which one Common Share may be purchased upon exercise of such Option, as specified in the applicable Stock Option Agreement. “Exercise Price,” in the case of an SAR, means an amount, as specified in the applicable SAR Agreement, which is subtracted from the Fair Market Value of one Common Share in determining the amount payable upon exercise of such SAR.
          16.14 “ Fair Market Value ” means the price at which Common Shares were last sold in the principal U.S. market for Common Shares on the applicable date or, if the applicable date was not a trading day, on the last trading day prior to the applicable date. If Common Shares are no longer traded on a public U.S. securities market, the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate. The Committee’s determination shall be conclusive and binding on all persons.
          16.15 “ Involuntary Termination ” means the termination of the Participant’s Service by reason of:
          (a) The involuntary discharge of the Participant by the Company (or the Parent, Subsidiary or Affiliate employing him or her) for reasons other than Cause;
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          (b) The voluntary resignation of the Participant following (i) a material adverse change in his or her title, stature, authority or responsibilities with the Company (or the Parent, Subsidiary or Affiliate employing him or her), (ii) a material reduction in his or her base salary or (iii) receipt of notice that his or her principal workplace will be relocated by more than 30 miles; or
          (c) Any other reason approved by the Committee.
          16.16 “ IPO Date ” means the effective date of the registration statement filed by the Company with the Securities and Exchange Commission for its initial offering of Common Shares to the public.
          16.17 “ ISO ” means an incentive stock option described in section 422(b) of the Code.
          16.18 “ NSO ” means a stock option not described in sections 422 or 423 of the Code.
          16.19 “ Option ” means an ISO or NSO granted under the Plan and entitling the holder to purchase Common Shares.
          16.20 “ Optionee ” means an individual or estate holding an Option or SAR.
          16.21 “ Outside Director ” means a member of the Board who is not an Employee.
          16.22 “ Parent ” means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date.
          16.23 “ Participant ” means an individual or estate holding an Award.
          16.24 “ Plan ” means this Synacor, Inc. 2007 Equity Incentive Plan, as amended from time to time.
          16.25 “ Restricted Share ” means a Common Share awarded under the Plan.
          16.26 “ Restricted Stock Agreement ” means the agreement between the Company and the recipient of a Restricted Share that contains the terms, conditions and restrictions pertaining to such Restricted Share.
          16.27 “ SAR ” means a stock appreciation right granted under the Plan.
          16.28 “ SAR Agreement ” means the agreement between the Company and an Optionee that contains the terms, conditions and restrictions pertaining to his or her SAR.
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          16.29 “ Service ” means service as an Employee, Outside Director or Consultant.
          16.30 “ Stock Option Agreement ” means the agreement between the Company and an Optionee that contains the terms, conditions and restrictions pertaining to his or her Option.
          16.31 “ Stock Unit ” means a bookkeeping entry representing the equivalent of one Common Share, as awarded under the Plan.
          16.32 “ Stock Unit Agreement ” means the agreement between the Company and the recipient of a Stock Unit that contains the terms, conditions and restrictions pertaining to such Stock Unit.
          16.33 “ Subsidiary ” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.
      ARTICLE 17. EXECUTION.
          To record the adoption of the Plan by the Board on September 14, 2007, the Company has caused its duly authorized officer to execute this document in the name of the Company.
 	 	 	 	 	 	 	
 	 	Synacor, Inc.	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Ron Frankel	 	 	
 	 	 	 	 	 	 	
 	 	Title:	 	Chief Executive Officer	 	 	
 	 	 	 	 	 	 	
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Appendix A
Performance Criteria for Restricted Shares and Stock Units
The Committee may establish milestones derived from the following criteria when it makes Awards of Restricted Shares or Stock Units that vest entirely or in part on the basis of performance:

 	•	 	Operating profits (including EBITDA),	
 		
 	•	 	Net profits,	
 		
 	•	 	Earnings per share,	
 		
 	•	 	Profit returns and/or margins,	
 		
 	•	 	Revenue,	
 		
 	•	 	Shareholder return and/or value,	
 		
 	•	 	Stock price,	
 		
 	•	 	Working capital,	
 		
 	•	 	Customer satisfaction, and/or	
 		
 	•	 	Increases or growth in any of the foregoing.	
Performance goals may be measured solely on a corporate, subsidiary, business unit or product line basis, or a combination thereof. Further, performance criteria may reflect absolute entity performance or a relative comparison of entity performance to the performance of a peer group of entities or other external measure of the selected performance criteria.
To the extent consistent with section 162(m) of the Code, the Committee may adjust the results under any performance criterion to exclude any of the following events that occurs during a performance measurement period: (a) asset write-downs, (b) litigation, claims, judgments or settlements, (c) the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (d) accruals for reorganization and restructuring programs and (e) any extraordinary, unusual or non-recurring items.
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EXHIBIT 10.14.1
CONFIDENTIAL TREATMENT REQUESTED
Google Services Agreement
This Google Services Agreement ( “GSA” ) is entered into by and between Google Inc. (“Google”) and Synacor, Inc., a corporation formed under the laws of State of Delaware (“ Customer ”). This GSA shall be effective as of the GSA Effective Date set forth in the signature block below.
1 Services .
1.1 Services . Subject to the terms and conditions of this GSA, Google will provide Customer, and Customer will procure from Google, certain services (the “Services”) for the fees set forth in each Google Order Form executed by Customer and Google (each, an “Order Form” ). Each Order Form will be pursuant to Google’s then current order form, and will incorporate by reference the terms of this GSA as of the Order Form Effective Date set forth therein (the “Order Form Effective Date” ). In the event of any conflict between the provisions of any Order Form and the provisions of this GSA, the provisions of the Order Form shall control. Customer will not be obligated to purchase from Google, and Google will not be obligated to provide Customer, services by entering into this GSA unless and until the parties execute and deliver an Order Form incorporating this GSA. As used herein, “Search Results” means the search results provided by Google through the search Service ordered by Customer in the applicable Order Form; and “Advertising Results” means the advertisements provided by Google through the AdSense Service ordered by Customer in the applicable Order Form.
1.2 Beta Features . Certain Services may include features which are identified by Google as “Beta” or are otherwise unsupported under Google’s then current technical documentation (“Beta Features” ). Such Beta Features are provided “as is” and any use thereof shall be undertaken solely at Customer’s own risk. Google reserves the right, in its sole discretion, to include or cease providing Beta Features as part of any Services at any time.
1.3 Support . Subject to the terms and conditions of the Agreement, Google shall provide technical support services to Customer during the Services Term (as defined below), in accordance with Google’s then current support guidelines in effect (“Technical Support Services” or “TSS”). Prior to making any support request to Google, Customer shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Google. Thereafter, a single technical employee of Customer designated on the Order Form (“Technical Contact”) may submit a written request for TSS via email to the applicable Google alias set forth in the Order Form, or such other email address that Google may provide with advance notice from time to time. Customer shall provide support services to End Users at its own expense.
2 Customer Obligations.
2.1 Prohibited Actions . Customer shall not, and shall not allow any third party (including and third party client to which Customer provides any services) to: (a) edit, modify, truncate, filter or change the order of the information contained in any Search Results and/or Advertising Results without Google’s prior written consent, including, but not limited to commingling Search Results and/or Advertising Results with non-Google provided search results or advertising; (b) frame any Site page which contain any Search Results and/or Advertising Results (“Results Page”) or any Web page which may be accessed by clicking on any portion of an Search Result and/or Advertising Result (in each case, a “Referring Page”); (c) redirect an End User away from the Referring Page, provide a version of the Referring Page different from the page an End User would access by going directly to the Referring Page or intersperse any content between a Search Result and/or Advertising Result and the Referring Page; (d) display any Search Results and/or Advertising Results to any third parties other than End Users; (e) enter into any arrangement or agreement under which any third party pays Customer fees, Customer pays the third party fees, or either shares with the other any revenue payments and/or royalties for any Search Results and/or Advertising Results displayed on the Site; (f) display any Search Results and/or Advertising Results in pop-up, pop-under, exit windows, expanding buttons, or animation; (h) minimize, remove or otherwise inhibit the full and complete display of any Results Page (including any Search Results and/or Advertising Results), and the corresponding Referring Pages accessed by clicking on any portions thereof; (i) directly or indirectly generate queries, or impressions of or clicks on Search Results and/or Advertising Results, through any automated, deceptive, disingenuous or other fraudulent means (including, but not limited to, click spam, robots, macro programs, and Internet agents); or (j) encourage or require End Users or other persons, either with or without their knowledge, to click on Search Results and/or Advertising Results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent (each of the foregoing acts in subsections (i) and (j) a “Fraudulent Act” ).
2.2 Site Content . No Site shall contain any pornographic, hate-related or violent content or contain any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights.
2.3 Deployment & Access . Customer shall be responsible for use of or access to any Services which are not in compliance with the terms of the Agreement or not otherwise approved by Google, and Customer shall monitor and disable any such access or use by unauthorized parties (including, but not limited to, spammers or any third party sites). Furthermore, at all times during the Services Term, Google reserves final approval authority with respect to the means used by Customer to deploy the Services, and in the event Google disapproves of such deployment, Google shall have the right, upon written notice to Customer, to suspend any continued use of the applicable Services until such time Customer implements adequate corrective modifications as reasonably required and determined by Google. Google may send uncompensated test queries to the Sites at any time to verify Customer’s compliance with any requirements contained in the Agreement.
3 [*].

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*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.
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4 Ownership; License Grants .
4.1 Intellectual Property Rights; Brand Features . For purposes of the Agreement: (a) “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide; and (b) “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
4.2 Google Rights . Google shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to the Services (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, documentation, and the protocols for implementing the Services (the “Google Data Protocol” ). Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted herein are deemed withheld. Customer shall not, and shall not allow any third party to: (a) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Services, the Google Data Protocol, or any other Google technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (b) remove, deface, obscure, or alter Google’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Services, the Google Data Protocol, or any other Google technology, software, materials and documentation; (c) “crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from the Services (including, but not limited to, Search Results and/or Advertising Results, or any part, copy or derivative thereof); (d) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Services or access thereto (including, but not limited to Search Results and/or Advertising Results, or any part, copy or derivative thereof); (e) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate the Services in, any software application, Web site or other means other than the Site, and then only to the extent expressly permitted herein; (f) engage in any action or practice that reflects poorly on Google or otherwise disparages or devalues Google’s reputation or goodwill; or (g) create or attempt to create a substitute service or product through use of any of the Services or proprietary information related thereto.
4.3 Customer Rights . Customer, its licensors, or other applicable third party providers own all Intellectual Property Rights in and to any editorial, text, graphic, audiovisual, and other content that is served to End Users of the Sites and that is not provided by Google (“Customer Content” ). Google shall not acquire any right, title or interest in or to such Customer Content, except as provided herein.
4.4 License Grants; Brand Features . Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Google grants to Customer a nonexclusive and nonsublicensable license during the Services Term to display Google Brand Features solely for the purposes expressly set forth under the Agreement. Some, but not all examples of Google Brand Features are located at: http://www.google.com/permissions/trademarks.html (or such other URLs Google may provide from time to time). Notwithstanding anything to the contrary contained in this Agreement, Google reserves the right at all times to revoke any rights that may have been granted to Customer to use the Google Brand Features upon providing Customer with written notice thereof and a reasonable time for Customer to cease any such usage. Customer grants to Google a nonexclusive and non-sublicensable license during the Services Term to include Customer’s name and logo in presentations, marketing materials, customer lists, and Web site listings of customers. Each party will submit all materials of any kind containing the other party’s Brand Features (other than in customer lists) to the other party for approval prior to release to the public. Furthermore, Customer agrees to adhere to Google’s then current Brand Feature use guidelines, and any content contained or referenced therein, which may be found at the following URL: http://www.google.com/permissions/guidelines.html (or such other URL Google may provide from time to time). Except as set forth in the Agreement, neither party acquires any right, title or interest in or to the other party’s Brand Features. All use by Google of Customer Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Google Brand Features (including any goodwill associated therewith) shall inure to the benefit of Google. No party shall challenge or assist others to challenge the Brand Features of the other party (except to protect such party’s rights with respect to its own Brand Features) or the registration thereof by the other party, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party.
5 Payment .
5.1 Fees. The fees and payment terms for the Services shall be set forth in the applicable Order Form.
5.2 Taxes and Other Charges . All payments under the Agreement are exclusive of taxes imposed by any governmental entity. Customer shall pay any applicable taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to the transactions for Services provided by Google under the Agreement, including penalties and interest, but specifically excluding taxes based upon Google’s net income. When Google has the legal obligation to collect any applicable taxes, the appropriate amount shall be invoiced to and paid by Customer “net thirty (30) days” from the date of invoice or other notification. Customer shall promptly provide to Google (i) original or certified copies of all tax payments or other sufficient evidence of tax payments at the time such payments are made by Customer pursuant to the Agreement; or (ii) a valid certificate of Customer’s exemption from obligation to pay such taxes as authorized by the appropriate taxing authority. In addition, Customer will promptly provide Google with such documentation as may be required by the applicable taxation and other authorities in order for Google to process payments hereunder, and Customer understands that Google reserves the right to withhold payment until Customer has provided such documentation.
6 Warranties and Disclaimer . Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents and warrants that: (a) Customer owns and controls, and will own and control throughout the Services Term, one hundred percent (100%) of the Sites; (b) the execution and delivery of this Agreement, and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; (c) Customer has and will maintain throughout the Services Term all rights, authorizations and licenses that are required with respect to the Site to permit Google to perform the Services contemplated under this Agreement, which rights, authorizations and licenses have been obtained and will be maintained in compliance with all applicable laws, rules and regulations and without violating any rights or interests of

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any third party; and (d) Customer shall use information provided by Google (including, but not limited to, Search Results and/or Advertising Results) in a manner that complies with applicable laws. Google does not warrant that the Services will meet all of Customer’s requirements or that performance of the Services will be uninterrupted, virus-free, secure or error-free. Except as expressly provided for herein, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
7 Indemnification . Google will defend, or at its option settle, any third party lawsuit or proceeding brought against Customer based upon a claim that Google’s technology used to provide the Services or any Google Brand Feature infringe(s) any copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section 7 arising from: (a) use of any Beta Features, Google’s related ad links feature or the News Search Service, (b) use of the Services or Google Brand Features either (a) in any manner inconsistent with or in breach of this Agreement, or (ii) in a modified form or in combination with materials not furnished by Google, (c) any content, information or data provided by Customer, End Users or any other third parties, and/or (d) any search results or third party Web sites or content to which such search results may link. Google, in its sole and reasonable discretion, reserves the right to terminate Customer’s continued use of any Services or Google Brand Features which are alleged or believed by Google to infringe. Customer will defend, or at its option settle, any third party lawsuit or proceeding brought against Google based upon or otherwise arising out of: (i) a claim that the Customer Content, any Site and/or Customer Brand Features infringe any copyright, trade secret or trademark of such third party; (ii) Google’s use of any Customer Content, provided that such use complies with the requirements of the Agreement; (iii) Customer’s use of the Services in any manner inconsistent with or in breach of the Agreement; (iv) any claim that the provision of News Search Services on the Sites violates any copyright, trade secret, trademark or other third party right; and/or (v) any claim alleging facts that would constitute a breach of Customer’s representations and warranties made in subsections (b) and (c) of the second sentence of Section 6. Indemnification shall be provided for any claim covered under this Section 7 and shall be limited to (i) payment by the indemnifying party (“Indemnitor”) of all damages and costs finally awarded for such claim, or (ii) settlement costs approved in writing by the Indemnitor. The foregoing obligations shall exist only if the party seeking indemnification (“Indemnitee”): (i) promptly notifies the Indemnitor of such claim, (ii) provides the Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding, and (iii) gives the Indemnitor full control and sole authority over the defense and settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own expense. The Indemnitor shall only reimburse the Indemnitee for expenses incurred by the Indemnitee with the Indemnitor’s prior written approval. THE FOREGOING STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AS SET FORTH ABOVE.
8 Limitation of Liability . EXCEPT FOR (I) BREACHES OF THE EXCLUSIVITY OBLIGATIONS UNDER SECTION 3, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, (III) BREACHES OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICES, AND (IV) BREACHES OF CONFIDENTIALITY UNDER SECTION 9, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL GOOGLE’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THE AGREEMENT EXCEED THE NET AMOUNT (MINUS ALL DEDUCTIONS AND OTHER OFFSETS PROVIDED FOR UNDER THE AGREEMENT) GOOGLE HAS ACTUALLY RECEIVED AND RECOGNIZED AS REVENUE DURING THE PRECEDING SIX (6) MONTHS FOR THE SERVICES TO WHICH THE CLAIM RELATES. IN ADDITION, IN NO EVENT WILL GOOGLE BE LIABLE, DIRECTLY OR INDIRECTLY, UNDER THIS AGREEMENT FOR ANY DAMAGES THAT MAY BE SUFFERED BY ANY THIRD PARTY EXCEPT PURSUANT TO AND TO THE EXTENT PROVIDED BY ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 7. The parties agree that (i) the mutual agreements made in this Section reflect a reasonable allocation or risk, and (ii) that each party would not enter into the Agreement without these limitations on liability.
9 Confidentiality . Disclosure of confidential and/or proprietary information disclosed hereunder, including the existence and content of the Agreement and any information provided pursuant to the Agreement, shall be governed by the confidentiality provisions of the Google Standard Mutual Non-Disclosure Agreement, which has been executed by the parties prior to or concurrently with this GSA, as of the date provided in the Order Form (the “ NDA ”). The confidentiality provisions of the NDA are hereby incorporated by reference into this GSA.
10 Term and Termination .
10.1 Term . The term of an Order Form under which Services may be used by Customer shall commence on the applicable Order Form Effective Date (except as otherwise specified in such Order Form) and shall continue for the period of time set forth on such Order Form for the applicable Services (“Services Term”), unless earlier terminated as provided herein.
10.2 Termination .
10.2.1 General . Either party may suspend performance and/or terminate the Agreement, in whole or in part: (i) if the other party materially breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof; or (ii) if the other party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee, administrator or receiver appointed for its business or assets or any part thereof.
10.2.2 Google Termination Rights . Google may terminate the Agreement immediately upon written notice if: (i) Customer breaches Section 2 (Customer Obligations), Section 4.2 (Google Rights), Section 4.4 (License Grants; Brand Features), or Section 9 (Confidentiality); (ii) Customer is in material breach of the Agreement more than twice notwithstanding any cure of such breaches; or (iii) Google reasonably determines that it is impracticable to continue providing the Services in light of applicable laws.
10.2.3 Suspension and Termination in the Event of an Injunction . Google may suspend performance under the Agreement in whole or in

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part with immediate effect if, as a result of a claim alleging facts that would constitute a breach of Customer’s representations and warranties made in subsections (b) and (c) of the second sentence of Section 6, Google is obliged by final or temporary court order or magisterial decision to temporarily or permanently refrain from continuing to perform its obligations under this Agreement. Google’s rights under this provision shall become effective on the date of the court order or magisterial decision or on the date of the service of the order irrespective of the possibility of appeal. If any suspension under this paragraph continues for more than six (6) months, Google may terminate the Agreement or the applicable Order Form in whole or in part with immediate effect.
10.3 Effect of Termination and Expiration . Upon the expiration or termination of the Agreement for any reason: (i) all rights and licenses granted by Google shall cease immediately; (ii) each party shall promptly return to the other party, or destroy and certify the destruction of, all Confidential Information of the other party; and (iii) Customer’s rights to use any Google Brand Features, as permitted under the Agreement, shall cease immediately.
10.4 Termination of GSA . Either party may terminate this GSA at any time by giving the other at least thirty (30) days’ advance written notice, provided, that this GSA may not be terminated unless and until the all outstanding Orders Forms into which this GSA has been incorporated shall have been duly completed and performed and are, accordingly, expired or terminated and no longer of any force and effect. The termination or expiration of an individual Order Form shall not have the effect of terminating any other individual Order Form or this GSA unless expressly agreed to by the parties in writing. If an Order Form (but not this GSA) terminates or if the Services Term set forth in an Order Form expires, all rights and licenses granted by Google relating to the applicable Services as set forth in such Order Form, if any, shall cease immediately.
10.5 Remedies Cumulative . Termination or expiration of the Agreement, in part or in whole, shall not limit either party from pursuing other remedies available to it, nor shall Customer be relieved of its obligation to pay all fees that have accrued or are otherwise owed under the Agreement.
11 Miscellaneous . Each party shall comply with all applicable laws, rules and regulations, if any, required in performing its obligations under the Agreement. All notices shall be in English and in writing and (a) if sent to Customer to the address identified on the Order Form and (b) if sent to Google to such address as provided at: www.google.com/corporate/address.html or as otherwise provided in writing for such notice purposes; provided, however, that all invoices and payments shall be sent to the attention of Google Finance, all legal notices shall be sent to the attention of the Google Legal Department, and all other correspondence shall be sent to the attention of the account manager specified by Google. Notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile, provided that such notice is also sent simultaneously via first class mail. Customer shall not assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, without the prior written consent of Google, including as a result of a transaction in which another party or parties acquire the direct or indirect power to direct the management and policies of a party or its assets, whether by way of merger, consolidation, change of control, sale of all or substantially all of a party’s securities or assets, contract, management agreement or otherwise; and any attempt to do so shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assignees as if such successors and assigns were an original party to this Agreement. The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. Either party may seek equitable relief, including temporary restraining orders or injunctions, in addition to all other remedies, for breach or threatened breach of Section 3 (Exclusivity), Section 4 (Ownership; License Grant), any Google license grant provisions set forth in an applicable Order Form, or Section 9 (Confidentiality). Before a party initiates legal action against the other arising from the Agreement (except to seek injunctive or equitable relief or to otherwise protect its Intellectual Property Rights), the matter in controversy will first be referred to an officer of each party, who shall make good faith and reasonable efforts to resolve the matter within four (4) weeks of the date of referral. The laws of California, excluding California’s choice of law rules, and applicable federal U.S. laws shall govern the Agreement. Any and all claims arising out of or relating to the subject matter of this Agreement will be resolved in the federal or state courts located in Manhattan, New York State, and each party agrees to submit to the personal and exclusive jurisdiction thereof. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. Google will not be responsible for data, queries or requests directly from End Users or any other third party, for transmission of data between Customer’s (or any End User’s) and Google’s network interface, or for displaying any applicable Results Set(s) to End Users. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself. If any provision is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions shall remain in full force and effect. In the event of any termination or expiration of the Agreement, Sections 4.1, 4.2, 4.3, 6, 7, 8, 9 (including the NDA), 10.3, and 11 shall survive termination. Neither party shall be liable to the other for any damages resulting solely from termination as permitted for under the Agreement. This GSA, the applicable Order Form into which this GSA is incorporated, any exhibits thereto, and any terms located in documents or Google URLs referenced pursuant to the Agreement (which are all incorporated herein by reference), constitute the entire agreement with respect to the subject matter hereof, and any terms contained in any related purchase order(s) or other documents pertaining to the subject matter of the Agreement shall be null and void. The Agreement supersedes any other prior or collateral agreements, whether oral or written, with respect to the subject matter hereof. Any amendments or modifications to the Agreement must (i) be in writing; (ii) refer to the Agreement; and (iii) be executed by an authorized representative of each party. Any changes to the Agreement not approved in writing by the Google Legal Department shall not be binding on Google. The Agreement shall be construed as if both parties jointly wrote it. The Agreement may be executed in counterparts, including facsimile counterparts.

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IN WITNESS WHEREOF, the parties have executed this GSA by persons duly authorized as of the “GSA Effective Date”, which shall be the date written by Google below.
 	 	 	 	 	 	 	 	 	 	 	
Google: GOOGLE INC.	 	 	 	Customer: SYNACOR, INC.	 	 	
 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Joan Braddi	 	 	 	By:	 	/s/ M. Drew Buckley	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Print Name: JOAN BRADDI	 	 	 	 	 	Print Name: M. DREW BUCKLEY	 	 	
 	 	Title: VP SEARCH SERVICES	 	 	 	 	 	Title: VICE PRESIDENT, BUSINESS DEVELOPMENT	 	 	
Date: 6.30.04	 	 	 	Date: 6/25/04	 	 	

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EXHIBIT 10.14.2
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
 	 	 	 	 	 	 	
	 	Google Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043
Tel: (650) 623-4000
Fax:(650) 618-2678	 	
Google Services Agreement
ORDER FORM	 	Google SPD Rep: Steve Frost
Google SPD Director: Jeff Shardell
Google Sales Engineer: Ed Dunn
Google Legal Contact: Matt Sucherman	

 	CUSTOMER (FULL LEGAL NAME): SYNACOR, INC.	 	 	GSA Effective Date: June 25, 2004	 	 	NDA Effective Date: October 31, 2003	 	
 	 	 	 	Corporate Contact Information:	 	 	Billing Contact Information:	 	 	Legal Notices to:	 	
 	Attention:	 	 	Drew Buckley	 	 	Brian Neeson	 	 	Brian Neeson	 	
 	Title:	 	 	Vice President of Business Development	 	 	Controller	 	 	Controller	 	
 	Address, City, State,
Postal Code, Country:	 	 	2120 Colorado Ave., Suite 300, Santa Monica, CA 90404	 	 	50 Fountain Plaza, Suite 1520, Buffalo, NY 14202	 	 	50 Fountain Plaza, Suite 1520, Buffalo, NY 14202	 	
 	Phone:	 	 	310-586-4142	 	 	716-853-1362, X243	 	 	716-853-1362, X243	 	
 	Fax:	 	 	716-332-0081	 	 	716-332-0081	 	 	716-332-0081	 	
 	Email:	 	 	dbuckley@synacor.com	 	 	bneeson@synacor.com	 	 	bneeson@synacor.com	 	
 	Technical Contact:	 	 	Name: Ross Winston	 	 	Email: rwinston@synacor.com	 	 	Tel: 716-853-1362, X224	 	
 	Customer Wire Transfer Info (if applicable):	 	 	D&B DUNS Number:
[*]	 	 	VAT/Tax Number:
[*]	 	
 	Order Form Effective Date: June 25, 2004	 	 	Initial Services Term: June 25, 2004 through June 30, 2005	 	
 	
SEARCH SERVICES

 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Language	 	 	Country	 	
 	 	 	 	Non-Refundable	 	 	Monthly Search	 	 	 	 	 	Safe Search	 	 	Restrict	 	 	Restrict	 	
 	 	 	 	Annual Service and	 	 	Fee Minimum	 	 	 	 	 	(Check if	 	 	(Check if	 	 	(Check if	 	
 	SEARCH SERVICES	 	 	Support Fee	 	 	Payment	 	 	Search Fees	 	 	applicable)	 	 	applicable)	 	 	applicable)	 	
 	þ   WebSearch Services	 	 	 	 	 	 	 	 	 	 	 	þ  SafeSearch	 	 	o  If checked, specify	 	 	o  If checked, specify	 	
 	Est. Query Vol./Day	 	 	[*]	 	 	[*]	 	 	[*]	 	 	 	 	 	languages:	 	 	languages:	 	
 	WebSearch Site: See Section 3	 	 	 	 	 	 	 	 	Search Result
Sets	 	 	þ  High o  Medium o  Off	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	þ   News Search Services
Est. Query Vol./Day

News Search Site: See Section 3
*Provision of this Service is subject to subsequent mutual agreement as per Section 5	 	 	
[*]	 	 	
[*]	 	 	
[*]
Search Result Sets	 	 	N/A	 	 	N/A	 	 	N/A	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	þ   Image Search Services Est. Query Vol./Day

Image Search Site: See Section 3 *Provision of this Service is subject to subsequent mutual agreement as per Section 6	 	 	

[*]	 	 	

[*]	 	 	
[*]
Search Result Sets	 	 	þ  SafeSearch

þ  High o  Medium o  Off o  Images	 	 	N/A	 	 	N/A	 	
 	o   Directory Search Services
Est. Query Vol./Day

Directory Search Site:	 	 	

N/A	 	 	

N/A	 	 	
     /1000
Search
Result Sets	 	 	

N/A	 	 	

N/A	 	 	

N/A	 	
 	
GSA Order Form
 
*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.
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ADSENSE SERVICES

 	
 	 	 	 	Net AdSense for Search	 	 	 	 	
 	 	 	 	Revenue Share Percentage (%)	 	 	 	 	
 	ADSENSE FOR SEARCH	 	 	to Customer	 	 	Specifications	 	
 	 	 	 	 	 	 	 	 	
  	þ  AdSense for Search Site: See Section 3	 	 	[*]

[*]	 	 	Sponsored Links/Results Page Min. # 5
Wide Format # 5; Narrow Format # 0
Above-the-fold: Yes
AdWords Link Location: All Results
Pages AdWords Link Size:	 	

 	Optional AdSense for Search Features:	 	 	þ   AdSafe	 	
 	(check the applicable boxes)	 	 	Level: þ   High o   Medium o   Low o   Off o   Adult Only	 	

 	
 	 	 	 	Net AdSense for Content	 	 	 	 	
 	 	 	 	Revenue Share Percentage (%)	 	 	 	 	
 	ADSENSE FOR CONTENT	 	 	to Customer	 	 	Specifications	 	
 	 	 	 	 	 	 	 	 	
 	þ  AdSense for Content Site: See Section 3	 	 	[*]

[*]	 	 	Ad Unit Size: See Exhibit C
Location: See Exhibit C
Above-the-fold: Location

Related Ad Links: No
Location: N/A
Above-the-fold: N/A	 	

 	Optional AdSense for Search Features:	 	 	þ   AdSafe	 	
 	(check the applicable boxes)	 	 	Level: þ   High o   Medium	 	

 	 	 	 	 	 	
  	To Be Completed By Google Finance	 	
 	 	 	 	 	 	
 	Customer PO #:                     	 	 	Currency:	 	
 	o   Credit Check Complete	 	 	þ  US Dollar
o  Japanese Yen
o  Other:	 	
 	 	 	 	 	 	
GSA Order Form
 
*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.
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GSA Order Form Terms and Conditions
1. Incorporation of Google Services Agreement . This Order Form, including the terms and conditions hereunder, shall be governed by and incorporates by reference the Google Services Agreement between Google and Customer with the GSA Effective Date set forth above (the “ GSA ”). If any terms of this Order Form conflict with the terms of the GSA, the terms of this Order Form shall control. Capitalized terms used but not defined herein shall have the meanings stated in the GSA. The GSA and this Order Form together comprise the “ Agreement .”
2. Services Term . The term of this Order Form shall commence on the Order Form Effective Date and shall continue for the period of the Initial Services Term stated above, unless earlier terminated as provided in this Agreement. This Order Form will expire on the last date of the Initial Services 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 Services Term together with any Renewal Term, if any, may also be referred to as the “ Services Term .”
3. Sites .
      3.1. General. Customer builds, hosts and maintains Internet Web sites for its third party customers (“ Customer Clients ”). Customer wishes to incorporate certain Google services into such Web sites as provided herein.
      3.2. Sites. As used in this Agreement, the “ WebSearch Sites ,” “ News Search Sites ,” “ Image Search Sites ,” “ AFS Sites ,” and “ AFC Sites ” are those Web sites located at the URLs identified as such in Exhibit A1 , as the same may be amended from time to time as permitted herein. “Sites” means the WebSearch Sites, News Search Sites, Image Search Sites, AFS Sites and AFC Sites, collectively. The list of Sites may be updated from time to time as provided below. Customer represents and warrants that the Web sites set forth on Exhibit A1 represent all Web sites to which Customer provides any services as of the Order Form Effective Date, except for http://www.mybudweiser.com .
      3.3. Additional Sites . If, during the Services Term, Customer (which for purposes of this Section will be deemed to include any direct or indirect majority owned and controlled affiliates of Customer) launches a Web site (which it will host and control) that is not already a Site, then, [*]. Customer is responsible for each Site’s use of the Services provided hereunder and shall ensure that any and all such Sites comply with the applicable terms and conditions of the Agreement, including without limitation all terms and conditions regarding use and prohibited uses of the Services, terms and conditions relating to the implementation of the Services, and confidentiality requirements.
      3.4. Requirements for Incorporating Services into Customer Sites . In addition to the other requirements of this Agreement, Customer’s right to incorporate the Services into Customer’s Sites is subject to Customers agreement as to the following.
           3.4.1. Hosting and Control . At all times during the Services Term Customer must (a) host and maintain any and all pages that comprise the Sites (subject to Section 3.4.2); (b) maintain complete
GSA Order Form
 
*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.
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technical and editorial control of the Sites (subject to Section 3.4.2); (c) act as the intermediary for all transmissions between Google and the Sites; (d) ensure that each Customer Client complies with the terms and conditions of this Agreement applicable to the Site hosted on such client’s behalf (including without limitation the Sections 2 (Customer Obligations) and Section 4.2 (Google Rights)), as this Agreement may be amended from time to time as permitted herein. In addition, Customer shall not provide any Customer Client (or any other third party) with, and shall block access to, all or any portion of any Service protocol, the Google Administration Console and any of Google’s confidential information.
      3.4.2. Hosting and Control Exceptions . Notwithstanding Sections 3.4.1 (a) and (b), Google acknowledges that certain pages that comprise certain of the Sites may be hosted in data center’s owned or leased by Customer’s Clients, and that in certain instances Customer’s Client may control a portion of some of the Web pages that contain a Google branded Search Box. Customer agrees that Google may require that any Search Box that resolves to Google results be removed from any page hosted or controlled by any of Customer’s Clients by providing Customer with written notice of such election and a reasonable period of time to remove such Search Box. For the avoidance of doubt, Customer will control all Results Pages.
      3.4.3. Search Boxes on Content Partner Sites . In addition to the foregoing, Customer may place a Google branded search box on Web pages hosted by those of Customer’s premium content partners that are approved by Google in writing (any such partners so approved being referred to as “ Customer’s Content Partner(s) ”); provided that (a) any searches entered into such Search Boxes must resolve to a results page (hosted by Customer) of the Site from which the End User linked to such Customer Content Partner Site; (b) Customer must act as the intermediary for all transmissions between Google and such Search Boxes; (c) Customer must ensure that each Customer Content Partner complies with the terms and conditions of this Agreement applicable to the use of such Search Box and the Google Brand Features; and (c) Google may require that any such Search Box be removed from any page hosted or controlled by any of Customer’s Content Partners by providing Customer with seven (7) days’ written notice of such election. Customer’s Content Partners listed on Exhibit A2 have been approved for purposes of hosting Google branded Search Box.
      3.4.4. Customer Agreement with Customer Client . Customer must maintain a written agreement with each Customer Client with respect to the hosting and maintenance of the Sites. Such agreement shall not contain any terms which are inconsistent with this Agreement and shall contain provisions which, at a minimum: (a) disclaim, to the extent permitted by applicable law, Google’s liability for any damages, whether direct, indirect, incidental or consequential, arising from the Site’s access to or use of the Services; (b) disclaim on behalf of Google, to the extent permitted by applicable law, all warranties, express or implied, with respect to the Service, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement; (c) impose confidentiality obligations no less protective of Google’s Confidential Information than this Agreement (provided that this clause shall in no event imply any right of Customer to disclose to any third party (including any Customer Client) any confidential information of Google); and (d) clearly acknowledge that Customer’s Client will obtain no ownership rights in and to Google’s Intellectual Property associated with the Services. Customer expressly acknowledges and agrees that no Customer Client will be considered a third party beneficiary under this Agreement.
      3.4.5. Indemnity . Customer shall indemnify Google for any lawsuit or proceeding (a) relating to or arising from Customer’s failure to include or enforce the contractual terms required to be included in Customer’s agreement with Customer’s Clients as provided in Section 3.4.2 above, and (b) brought by any Customer Client in connection with the Services. In addition, Customer acknowledges and agrees that Google’s obligations to defend Customer against third party claims provided in Section 7 of the GSA will in no event extend to claims or proceedings brought by any Customer Client. Section 7 of the GSA is hereby amended to include the terms of this paragraph.
4. WebSearch Services .
      4.1. Scope of WebSearch Services . If selected on the cover page(s) of this Order Form, during the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with WebSearch search results (“ WebSearch Results ”) through its WebSearch service (the “ WebSearch Service ”) for display on the WebSearch Sites as permitted herein. Customer agrees to implement the WebSearch Service as provided herein on the WebSearch Sites in existence as of the date hereof within thirty (30) days of the Order Form Effective Date, and to maintain such implementation thereafter during the Services Term. Customer agrees to implement the WebSearch Service on any WebSearch Site added thereafter as contemplated by Section 3.3 herein.
      4.2. Implementation of WebSearch Services . Unless otherwise agreed to by the parties in writing, Customer shall implement the WebSearch Services in a manner that: (a) conforms to the WebSearch Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand
GSA Order Form
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treatment guidelines for WebSearch, as updated by Google from time to time, the current version of which is located at http://www.google.com/wssynd/02brand.html ; (c) conforms to the screenshots and specifications set forth in Exhibit B attached hereto; and (d) otherwise complies with the technical and implementation requirements provided by Google from time to time, including those instructions contained in the documentation setting forth the protocol provided by Google for accessing the WebSearch Services, as such protocol may be updated by Google from time to time (the “ WebSearch Protocol ”). Without limiting the foregoing, Customer acknowledges and agrees to the following:
            4.2.1. Search Boxes and Queries . Customer shall implement on each WebSearch Site a search box (each, a “ WebSearch Box ”) for End Users (as defined below) to enter queries to search the Web (each, a “ WebSearch Query ”). Customer shall send any and all WebSearch Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such WebSearch Queries, either individually or in the aggregate. Customer understands and agrees that WebSearch Queries sent to Google for processing hereunder may be initiated only by End Users entering search queries into WebSearch Boxes implemented on a WebSearch Site as provided herein, unless otherwise approved by Google in writing. As used herein, “ End Users ” means individual, human end users who visit the applicable Site, and “ Valid WebSearch Queries ” means Queries sent to Google in compliance with the requirements of this Agreement.
            4.2.2. Operation of WebSearch Services . Customer will ensure that each WebSearch Query will (a) be from a list of approved Internet protocol addresses provided by Customer prior to implementation of the Services (“ Valid IP Addresses ”); (b) contain a unique alphanumeric code provided and used as specified by Google (“ Client ID ”); and (c) include End User IP address and user agent information. The list of Valid IP Addresses may be modified by Customer upon forty-eight (48) hours notice to Google via the online Google Administration Console located at: http://console.google.com , or such other URL as may be updated by Google from time to time. Upon Google’s receipt of a Valid WebSearch Query, Google will transmit up to ten (10) WebSearch results, to the extent available (each such set being referred to as a “ WebSearch Results Set ”), via Google’s network interface in accordance with the WebSearch Protocol. Customer shall then display, in each instance, the entire WebSearch Results Set that corresponds to such WebSearch Query in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such WebSearch Results Set.
            4.2.3. Labeling, Branding and Attribution . Each WebSearch Box and each Results Page containing a WebSearch Results Set shall conspicuously display a graphic module, in the form as provided by Google from time to time, that unambiguously indicates that the WebSearch Results Sets are provided by Google. Customer agrees that it shall not place anything on the Site that in any way implies that information other than the WebSearch Results Sets are provided by Google, unless otherwise expressly provided herein. The Google graphic module shall be, at minimum, 75 x 32 pixels in size and visible to any End User at a minimum resolution of 800 by 600 pixels without scrolling within a Site page as viewed through an Internet browser application considered among the top two (2) most widely used from time to time (“ Above-the-fold ”), unless otherwise directed by Google.
      4.3. License to WebSearch Protocol . Google grants to Customer a limited, nonexclusive and non-sublicensable license during the Services Term to use the WebSearch Protocol solely for the purpose of transmitting WebSearch Queries and other required information and receiving WebSearch Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Google Intellectual Property; and all rights not expressly granted herein are reserved to Google.
5. News Search Services . Customer may add News Search Services to a Site hereunder only upon obtaining the prior written consent of Google, which consent may include one or more screenshots of the approved News Search implementation. In such event, the provisions of this Section 5 will apply, but until such time, the provisions of this Section 5 will have no effect.
      5.1. Scope of News Search Services . If Customer elects and Google consents to add to News Search Services to a Site as provided above, then from such time until the end of the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with search results (“ News Search Results ”) through its News Search service (the “ News Search Service ”) for display on the News Search Sites as permitted herein.
      5.2. Implementation of News Search Services . Unless otherwise agreed to by the parties in writing, Customer shall implement the News Search Services in a manner that: (a) conforms to the News Search Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment guidelines for News Search Services, the current version of which is located at http://www.google.com/wssynd/news guidelines.html , as updated by Google from time to time; (c) conforms
GSA Order Form
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to the screenshots and specifications set forth or referred to in Google’s written consent approving Customer’s use of News Search Services; and (d) otherwise complies with the technical and implementation requirements provided by Google from time to time, including those instructions contained in the documentation setting forth the protocol provided by Google for accessing the News Search Services, as such protocol may be updated by Google from time to time (the “ News Search Protocol ”). Without limiting the foregoing, Customer acknowledges and agrees to the following:
           5.2.1. News Search Boxes and News Queries . Customer shall implement on each News Search Site a search box (each, a “ News Search Box ”) for End Users to enter news queries (each, a “ News Query ”). Customer shall send any and all News Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such News Queries, either individually or in the aggregate. Customer understands and agrees that News Queries sent to Google for processing hereunder may be initiated only by End Users entering search queries into News Search Boxes implemented on a News Site as provided herein, unless otherwise approved by Google in writing. As used herein, “ Valid News Queries ” means News Queries sent to Google in compliance with the requirements of this Agreement.
           5.2.2. Operation of News Search Services . Customer will ensure that each News Query will (a) be from a list of Valid IP Addresses; (b) contain a Client ID; and (c) include End User IP address and user agent information. Upon Google’s receipt of a Valid News Query, Google will transmit up to ten (10) News Search results, to the extent available (each such set being referred to as a “ News Search Results Set ”), via Google’s network interface in accordance with the News Search Protocol. Customer shall then display, in each instance, the entire News Search Results Set that corresponds to such News Query in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such News Search Results Set.
           5.2.3. Labeling, Branding and Attribution . Each News Search Box and each Results Page containing a News Search Results Set shall conspicuously display a graphic module, in the form as provided by Google from time to time, that unambiguously indicates that the News Search Results Sets are provided by Google. Customer agrees that it shall not place anything on the Site that in any way implies that information other than the News Search Results Sets are provided by Google, unless otherwise expressly provided herein. The Google graphic module shall be, at minimum, 75 x 32 pixels in size and located Above-the-fold, unless otherwise directed by Google.
      5.3. License to News Search Protocol . Google grants to Customer a limited, nonexclusive and non-sublicensable license during the Services Term to use the News Search Protocol solely for the purpose of transmitting News Queries and other required information and receiving News Search Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Google Intellectual Property; and all rights not expressly granted herein are reserved to Google.
6. Image Search Services . Customer may add Image Search Services to any Site only upon obtaining the prior written consent of Google, which consent may include one or more screenshots of the approved Image Search implementation. In such event, the provisions of this Section will apply, but until such time, the provisions of this Section will have no effect.
      6.1. Scope of Image Search Services . If Customer elects and Google consents to add to Image Search Services to a Site as provided above, then from such time until the end of the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with search results (“ Image Search Results ”) through its Image Search service (the “ Image Search Service ”) for display on the Image Search Sites as permitted herein.
      6.2. Implementation of Image Search Services . Unless otherwise agreed to by the parties in writing, Customer shall implement the Image Search Services in a manner that: (a) conforms to the Image Search Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment guidelines for Image Search Services, as updated by Google from time to time; (c) conforms to any screenshots and specifications approved by Google in writing in advance (any such screenshots being incorporated herein by reference as of the date of Google’s written approval thereof); and (d) otherwise complies with the technical and implementation requirements provided by Google from time to time, including those instructions contained in the documentation setting forth the protocol provided by Google for accessing the Image Search Services, as such protocol may be updated by Google from time to time (the “ Image Search Protocol ”). Without limiting the foregoing, Customer acknowledges and agrees to the following:
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           6.2.1. Image Search Boxes and Image Queries . Customer shall implement on each Image Search Site a search box (each, a “ Image Search Box ”) for End Users to enter image search queries (each, a “ Image Query ”). Customer shall send any and all Image Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such Image Queries, either individually or in the aggregate. Customer understands and agrees that Image Queries sent to Google for processing hereunder may be initiated only through Image Search Boxes implemented on an Image Site as provided herein, unless otherwise approved by Google in writing. As used herein, “ Valid Image Queries ” means Image Queries sent to Google in compliance with the requirements of this Agreement.
           6.2.2. Operation of Image Search Services . Customer will ensure that each Image Query will (a) be from a list of Valid IP Addresses; (b) contain a Client ID; and (c) include End User IP address and user agent information (if then required). Upon Google’s receipt of a Valid Image Query, Google will transmit up to twenty (20) Image Search results, to the extent available (each such set being referred to as an “ Image Search Results Set ”), via Google’s network interface in accordance with the Image Search Protocol. Customer shall then display, in each instance, the entire Image Search Results Set that corresponds to such Image Query in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such Image Search Results Set.
           6.2.3. Layout and Indemnification Obligations . Customer shall take reasonable steps to minimize any legal risks associated with offering image search on any of its Sites, including but not limited to: (a) ensuring that the page on which the Image Search Results (an “ Image Results Page ”) is displayed is similar to the image results page used by Google on its Web site; (b) complying with such other layout and implementation requirements as Google may reasonably request from time to time; and (c) not displaying any advertising (whether provided by Google or a third party) on any Image Results Page. To the extent Customer or any Site uses Image Search Results in a manner inconsistent with the foregoing, then, in addition to any other rights and remedies available to it, Google may terminate or suspend its performance under this Agreement if Customer fails to conform its use within two (2) calendar days after receiving written notice from Google.
           6.2.4. Labeling, Branding and Attribution . Each Image Search Box and each Image Results Page shall conspicuously display a graphic module, in the form as provided by Google from time to time, that unambiguously indicates that the Image Search Results Sets are provided by Google. Customer agrees that it shall not place anything on the Site that in any way implies that information other than the Image Search Results Sets are provided by Google, unless otherwise expressly provided herein. The Google graphic module shall be, at minimum, 75 x 32 pixels in size and located Above-the-fold, unless otherwise directed by Google.
      6.3. License to Image Search Protocol . Google grants to Customer a limited, nonexclusive and non-sublicensable license during the Services Term to use the Image Search Protocol solely for the purpose of transmitting Image Queries and other required information and receiving Image Search Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Google Intellectual Property; and all rights not expressly granted herein are reserved to Google.
7. AdSense for Search Services .
      7.1. Scope of AdSense for Search Services . If selected on the cover page(s) of this Order Form, during the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with advertisements (“ AFS Ads ”) through its AdSense for Search Service (the “ AFS Service ”) for display on the AFS Sites as permitted herein. Customer agrees to implement the AFS Service as provided herein on the AFS Sites in existence as of the date hereof within thirty (30) days of the Order Form Effective Date, and to maintain such implementation thereafter during the Services Term. Customer agrees to implement the AFS Service on any AFS Site added thereafter as contemplated by Section 3.3 herein.
      7.2. Implementation of AFS Services . Unless otherwise agreed to by the parties in writing, Customer shall implement the AFS Services in a manner that: (a) conforms to the AFS Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment guidelines for AFS Services, as updated by Google from time to time, the current version of which is located at http://www.google.com/wssynd/02brand.html ; (c) conforms to the screenshots and specifications set forth in Exhibit B attached hereto; and (d) otherwise complies with the technical and implementation requirements provided by Google from time to time, including those instructions contained in the documentation setting forth the protocol provided by Google for accessing the AFS Services, as such protocol may be updated by Google from time to time (the “ AFS Protocol ”). Without limiting the foregoing, Customer acknowledges and agrees to the following:
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           7.2.1. Search Boxes and Queries . Customer shall send any and all WebSearch Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such WebSearch Queries, either individually or in the aggregate. Customer understands and agrees that WebSearch Queries sent to Google for processing hereunder may be initiated only through WebSearch Boxes (and not, for example, from News Search or Image Search Boxes) implemented on a Site as provided herein, unless otherwise approved by Google in writing.
           7.2.2. Operation of AFS Services . In addition to the requirements set forth in Section 5, Customer will ensure that each WebSearch Query will request no fewer than the minimum number of AFS Ads per AFS Results Page stated in the Cover Page(s) of this Order Form. Upon Google’s receipt of a Valid WebSearch Query, in addition to Google’s obligation to transmit WebSearch Results, Google will transmit at least such minimum number of AFS Ads requested by Customer, to the extent available (each such set being referred to as an “ AFS Results Set ”), via Google’s network interface in accordance with the AFS Protocol. Customer shall then display, in each instance, the entire AFS Results Set that corresponds to such WebSearch Query in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such AFS Results Set.
           7.2.3. Labeling, Branding and Attribution . Customer shall unambiguously mark each AFS Ad, or each cluster or grouping of AFS Ads, as a “Sponsored Link” or “Sponsored Links,” as the case may be, unless otherwise instructed or agreed by Google. In any event, Google reserves approval authority to ensure that AFS Ads are labeled in a manner so as to sufficiently distinguish them from search results.
      7.3. License to AFS Protocol . Google grants to Customer a limited, nonexclusive and non-sublicensable license during the Services Term to use the AFS Protocol solely for the purpose of transmitting WebSearch Queries and other required information and receiving AFS Result Sets, as applicable, solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Google Intellectual Property; and all rights not expressly granted herein are reserved to Google.
8. AdSense for Content .
      8.1. Scope of AdSense for Content Services . If selected on the cover page(s) of this Order Form, during the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with advertisements (“ AFC Ads ”) and related advertising links (“ Related Ad Links ”) through its AdSense for Content Service (the “ AFC Service ”) for display as permitted herein on the URL(s) identified on the cover page(s) of this Order Form as the AFC Site(s) (the “ AFC Site(s) ”). Customer agrees to implement such AFC Service on the AFC Sites as provided herein within thirty (30) days of the Order Form Effective Date, and thereafter during the Services Term. Customer agrees to implement the AFS Service on any AFS Site added thereafter as contemplated by Section 3.3 herein. AFC Ads shall not appear on search results, registration, “thank you,” error, email, chat, and message board pages; Google may update the list of prohibited pages from time to time during the Services Term upon written notice.
      8.2. Implementation of AFC Services . Unless otherwise agreed to by the parties in writing, Customer shall implement AFC Services in a manner that: (a) conforms to the AFC Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment guidelines for AFC Services, as the same may be updated by Google from time to time, the current version of which is located at http://www.google.com/wssgnd/adsense guidelines.html ; (c) conforms to the screenshots and specifications set forth in Exhibit C attached hereto; and (d) otherwise complies with the technical and implementation requirements provided by Google from time to time, including those instructions contained in the documentation setting forth the applicable protocol provided by Google for accessing the AFC Services, as such protocol may be updated by Google from time to time (the “ AFC Protocol ”). Without limiting the foregoing, Customer acknowledges and agrees to the following:
           8.2.1. AFC Requests . Customer shall request AFC Ads in accordance with the AFC Protocol specified by Google for any and all pageviews required to display AFC Ads as provided herein (each such request being referred to as an “ AFC Request ”).
           8.2.2. Server Side Implementations . For server side implementations ( e.g. , XML implementations), each AFC Request (a) must be from a list of Valid IP Addresses; (b) must contain a Client ID; and (c) must include End User IP address and user agent information. Upon Google’s receipt of an AFC Request as described above, Google will transmit AFC Ad(s), to the extent available (the set of AFC Ads sent in response to an AFC Request being referred to as an “ AFC Results Set ”), via Google’s network interface in accordance with the AFC Protocol. Customer shall then display, in each instance, the entire
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AFC Results Set that corresponds to such AFC Request in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such AFC Results Set. Customer will not send more than one (1) AFC Request per Web page pageview unless otherwise authorized by Google.
      8.2.3. Client Side Implementations . For client side implementations (eg., iFrame or Javascript data feed implementations), each AFC Request must contain an AFC Client ID provided and used as specified by Google. Upon Google’s receipt of an AFC Request as described above, Google will transmit an AFC Results Set, to the extent available, via Google’s network interface in accordance with the AFC Protocol. Customer’s code shall, in each instance, ensure the display of the entire AFC Results Set that corresponds to such AFC Request in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating or otherwise modifying such AFC Results Set. Customer will not send more than one (1) AFC Request per Web page pageview unless otherwise authorized by Google.
      8.2.4. Labeling . AFC Results Set shall be identified with the label “Ads by Google” as reflected in Exhibit C to this Order Form, unless otherwise instructed or agreed by Google.
      8.2.5. Related Ad Links . If Customer implements Related Ad Links provided by Google, Customer understands and agrees to the following additional provisions: (a) if applicable, in no event will End User clicks on Related Ad Links, or the display of a Related Ad Links on a Customer Web page in and of itself, qualify as a click on an Ad, or an “Impression,” as the case may be, for purposes of determining Customer’s click or impression guarantees (if any) or Google’s payment or other obligations under this Agreement; and (b) notwithstanding anything to the contrary, Related Ad Links are automatically generated and consequently are provided to Customer “as is,” with no representation or warranty, express or implied, and, for the avoidance of doubt, any obligation Google may have to indemnify, defend or hold Customer harmless under this Agreement will in no event extend to any claims that in any way arise out any Related Ad Links provided hereunder. Customer further understands and agrees that Google is under no obligation to offer related ad links, and any agreement between the parties to provide related ad links on the Sites will be subject to Google’s right to discontinue such offering.
      8.3. License to AFC Protocol . Google grants to Customer a limited, nonexclusive and non-sublicensable license during the Services Term to use the AFC Protocol solely for the purpose of transmitting AFC Requests and other required information and receiving AFC Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Google Intellectual Property; and all rights not expressly granted herein are reserved to Google.
9. Site Modifications . Google acknowledges that Customer, or Customer’s Clients, may update the design and content of the Sites in a manner consistent with the provisions of this Agreement; provided that Customer agrees that (a) it shall keep Google informed of all material changes planned by Customer to such Sites; and (b) no changes may be made to the look and feel, dimension and/or placement of the WebSearch Results, News Search Results, Image Search Results, AFS Ads or AFC Ads, without obtaining the prior written consent of Google. For the avoidance of doubt, Google may, and the foregoing will in no event limit Google’s ability to, require changes to the look and feel, content or targeting methodology of any such Results or Ads provided herein.
10. Filters.
      10.1. General . Certain Services may contain filtering capability, such as SafeSearch, Country Restrict, Language Restrict, AdSafe and other filters. Notwithstanding anything to the contrary, if Customer elects to enable any such filters, Customer expressly acknowledges and agrees (a) it is Customer’s responsibility to enable such features in accordance with the instructions provided by Google in the applicable Service protocol, and (b) that Google cannot and does not make any representation, warranty or covenant that all results will be limited to results elected by enabling such filter(s). For example, but without limiting the foregoing, if Customer elects SafeSearch, Country Restrict, Language Restrict and/or AdSafe, Google cannot and does not make any representation, warranty or covenant that all results will be limited to the countries or languages selected or that all objectionable results will be prevented.
      10.2. URL Blocking . During the Services Term, Google will use commercially reasonable efforts to exclude from Ads served under this Agreement Ads that contain the URLs set forth on Exhibit D attached hereto and made part hereof. Notwithstanding anything to the contrary, Customer understands that Google cannot and does not commit or guarantee that no Ads will contain any of the URLs listed in Exhibit D .
11. Updates . If Google updates its technical or implementation specifications {including, without limitation, by way of updating the applicable Service protocol) from time to time as contemplated herein, Customer
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shall implement such updates or modifications as soon as reasonably practical, but in any event within fifteen (15) days of the date it receives notice thereof.
12. Notice of System Changes . Customer will provide Google with fourteen (14) days’ advance notice of any change in the code or serving technology used to display Google advertising and/or search results ( e.g. , a change in the advertising serving technology used) that could be reasonably be expected to have the potential to adversely affect the delivery or display of Google search or advertising results as required by this Agreement (it being understood that notice will in no event relieve Customer of its obligations to display search and advertising results as required hereunder).
13. Optimization. The parties agree to consult in good faith from time to time with the objective of optimizing the performance of Ads served under this Agreement.
14. AdWords Link . Customer agrees to promote the Google AdWords Program (including any successor programs thereto) by placing on the Sites a link in the form as provided by Google from time to time that contains the Google logo, text and a link to facilitate registration of advertisers in the Google AdWords Program (“ AdWords Link ”). Customer shall provide to Google the URL for any Site page containing an AdWords Link (“ AdWords Link Page ”) and shall promptly notify Google in writing of any change to any AdWords Link Page. Unless otherwise agreed to by the parties in writing: (a) the specific size and location of the AdWords Link within the AdWords Link Page shall conform to the specifications provided by Google from time to time, and (b) the AdWords Link shall be displayed Above-the-fold.
15. Technical Support . The Technical Contact may use the following Google e-mail aliases to submit requests for TSS:
• websearch-support@google.com (for WebSearch Services requests)
• syndication-support@google.com (for GSLP requests)
• media-suppport@google.com (for AdSense Services requests)
16. Fees and Payment Terms .
      16.1. WebSearch Services . On or before the Order Form Effective Date, Customer shall submit a completed Google credit application form. If applicable, Customer shall pay the non-refundable Annual Service and Support Fee and the first payment of the Monthly WebSearch Fee Minimum as indicated on the Order Form, which shall be due on the Order Form Effective Date and payable upon execution thereof. For all other WebSearch Fees (including Monthly WebSearch Fee Minimums), Google shall bill Customer monthly at the rates stated on Cover Page(s) of this Order Form and all such fees shall be due and payable “net thirty (30) days” from date of invoice. Within thirty (30) days of the end of each month during the Services Term, Google shall provide Customer with WebSearch Services usage reports in the form generally made available at that time.
      16.2. News Search Services . The provisions of this paragraph apply only to the extent that Customer elects to order and Google agrees to provide News Search Services as provided herein. If applicable, Customer shall pay the non-refundable Annual Service and Support Fee and the first payment of the Monthly News Search Fee Minimum as indicated on the Order Form, which shall be due as agreed by the parties. For all other News Search Fees (including Monthly News Search Fee Minimums), Google shall bill Customer monthly at the rates stated on Cover Page (s) of this Order Form and all such fees shall be due and payable “net thirty (30) days” from date of invoice. Within thirty (30) days of the end of each month during the Services Term, Google shall provide Customer with News Search Services usage reports in the form generally made available at that time.
      16.3. Image Search Services . The provisions of this paragraph apply only to the extent that Customer elects to order and Google agrees to provide Image Search Services as provided herein. If applicable, Customer shall pay the non-refundable Annual Service and Support Fee and the first payment of the Monthly Image Search Fee Minimum as indicated on the Order Form, which shall be due as agreed by the parties. For all other Image Search Fees (including Monthly Image Search Fee Minimums), Google shall bill Customer monthly at the rates stated on the Cover Page(s) of this Order Form and all such fees shall be due and payable “net thirty (30) days” from date of invoice. Within thirty (30) days of the end of each month during the Services Term, Google shall provide Customer with Image Search Services usage reports in the form generally made available at that time.
      16.4. AdSense for Search . Subject to the terms and conditions of this Agreement, for each month during the Services Term Customer shall receive the Applicable Percentage (as defined below) of Net AFS Revenues attributable to such month. Google’s obligation to pay Customer’s percentage of Net AFS Revenues shall not commence until Google’s technical personnel provide written approval of Customer’s implementation of the AFS Service on each AFS Site, which shall not be unreasonably withheld or delayed.
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Payments required under this paragraph shall be made by the last day of the calendar month following the calendar month in which the applicable AFS Ads were displayed on the AFS Sites, and shall be accompanied by a revenue report in the form generally made available at that time.
      16.5. AdSense for Content . Subject to the terms and conditions of this Agreement, for each month during the Services Term Customer shall receive the Applicable Percentage of Net AFC Revenues attributable to such month. Google’s obligation to pay Customer’s percentage of Net AFC Revenues shall not commence until Google’s technical personnel provide written approval of Customer’s implementation of the AFC Service on each AFC Site, which shall not be unreasonably withheld or delayed. Payments required under this paragraph shall be made by the last day of the calendar month following the calendar month in which the applicable AFC Ads were displayed on the AFC Sites, and shall be accompanied by a revenue report in the form generally made available at that time.
      16.6. Ad Revenues: Applicable Percentage; Applicable Deduction .
           16.6.1. “Net AFS Revenues” means (a) Ad Revenues derived from clicks on AFS Ads (excluding Non-Qualifying Ads as defined below) displayed on AFS Site pages approved for the AFS Service minus (b) the Applicable AFS Deduction.
           16.6.2. “Net AFC Revenues” means (a) Ad Revenues derived from clicks on AFC Ads (excluding Non-Qualifying Ads as defined below) displayed on AFC Site pages approved for the AFC Service minus (b) the Applicable AFC Deduction.
           16.6.3. “Ad Revenues” means gross ad revenues minus agency fees, referral fees, costs related to third party advertising service providers, and discounts.
           16.6.4. “Applicable Percentage” with respect to any calendar month during the Services Term means [*].
           16.6.5. “Applicable AFS Deduction” in any calendar month during the Initial Services Term means [*]. Notwithstanding anything to the contrary, Google reserves the right to increase the Applicable AFS Deduction [*] after the Initial Services Term by [*] in each case by providing advance written notice to Customer, together with an explanation supporting such increase.
           16.6.6. “Applicable AFC Deduction” in any calendar month during the Initial Services Term means [*].
      16.7. Non-Qualifying Ads . Notwithstanding any of the foregoing under this Section, Google shall not be liable for payment in connection with (a) 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 Google; (b) impressions of Ads or clicks on Ads delivered through an implementation which is not initially approved by Google pursuant to the Agreement or subsequently fails to meet Google’s technical requirements and specifications; and (c) Ads that advertise Google products or services (collectively, “Non-Qualifying Ads”). The number of queries, and impressions of and clicks on Ads, as reported by Google, shall be the number used in calculating payments hereunder.
      16.8. Methods of Payment .
           16.8.1. Payments to Google . All payments due to Google shall be in the currency specified in this Order Form. Any charges for converting foreign currency shall be the responsibility of Customer and shall be invoiced accordingly. If paid in US dollars, payments to Google shall be made preferably via wire transfer with the following instructions:
 	 	 	 	 	
[*]	 	 	 	 	
If paid in US dollars and not wired to Google, payment shall be made by check for receipt by Google at the address specified on the Order Form on or before the payment due date. If payment is made in any other currency, payment shall be made by wire pursuant to the wire instructions specified below on this Order
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Form (or if no applicable wire instructions are specified, payment shall be made using the US wire transfer instructions above). Delinquent payments due to Google shall bear interest at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including legal fees) incurred by Google in collecting unpaid or delinquent amounts. In addition, Google may suspend performance and/or terminate this Order Form upon fourteen (14) days written notice if Customer fails to make any required payment when due unless such payment is made within such fourteen (14) day notice period. If Google reasonably deems itself insecure with respect to Customer’s ability to meet its financial obligations under the Agreement, Google may, at its sole option, modify the payment terms or require other reasonable assurances or forms of security prior to providing or continuing to provide any Services.
      16.8.2. Payments to Customer . Payments to Customer (if by wire transfer) shall be made pursuant to the wire transfer instructions specified on this Order Form. In addition, Customer acknowledges that Google may, at its option, offset its payment obligations to Customer it may incur under the Agreement against any product or service fees (including late fees) owed and not yet paid by Customer under the Agreement or any other agreement between Customer and Google, in addition to whatever other rights and remedies Google may have.
      17.  Authority to Bind . Each of Customer’s and Google’s signatory to this Order Form represents and warrants that he or she has the power and authority to accept and bind Customer and Google, as the case may be, to the terms of this Order Form.
This Order Form may be executed in counterparts, including facsimile counterparts, each of which shall be deemed and original, and all of which, when taken together, shall constitute one and the same instrument. An original copy, if requested, shall be sent to the following Customer contact reference identified above (check one): þ Corporate o Billing o Legal
 	 	 	 	 	 	 	
Google: GOOGLE INC.	 	Customer: SYNACOR, INC	
 	 	 	 	 	 	 	
By:	 	/s/ Joan Braddi	 	By:	 	/s/ M. Drew Buckley	

Print Name: Joan Braddi	 	Print Name: M. Drew Buckley	
 	 	 	 	 	 	 	
Title: VP, Search Services	 	Title: Vice President, Business Development	
 	 	 	 	 	 	 	
Date: 6/30/04	 	Date: 6/25/04	
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Exhibit A1
WebSearch Sites, AFS Sites. AFC Sites
[*]
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*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.
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Exhibit A2
Customer Premium Content Sites Approved for Search Box
[*]
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*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.
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Exhibit B
WebSearch and AFS Implementation Mockup

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Exhibit C
AFC Implementation

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Exhibit C Continued

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Exhibit D
URL Blocklist
To come, based on the mutual agreement of the parties.
Google Confidential
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EXHIBIT 10.14.3
CONFIDENTIAL TREATMENT REQUESTED
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AMENDMENT NUMBER ONE TO GOOGLE
SERVICES AGREEMENT ORDER FORM
          This Amendment Number One to the Google Services Agreement Order Form (this “ Amendment ”) is entered into as of November 1 , 2004 by and between Synacor, inc., a Delaware corporation (“ Customer ”), and Google Inc., a Delaware corporation (“ Google ”).
          WHEREAS, Customer and Google entered into that certain Google Services Agreement Order Form effective June 25, 2004 (the “ Order Form ”) together with an Google Services Agreement of even date therewith (the “ GSA ”), pursuant to which Google provides Customer with certain Services (as defined therein); and
          WHEREAS, Customer and Google now desire to amend the Order Form through this Amendment with respect to certain terms, but in all other respects the Order Form and GSA shall continue in full force and effect.
          NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows.
1. Definitions . Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Order Form.
2. Amendments . From and after November 1, 2004, the Order Form will be modified as follows:
     2.1. Extension of the Initial Services Term . The “Initial Services Term” on the Cover Page of the Order Form is hereby modified to be June 25, 2004 through June 30, 2006.
     2.2. [*]. For the period commencing on after November 1, 2004, the Net AdSense for Search Revenue Share Percentage (%) to Customer and Net AdSense for Content Revenue Share Percentage (%) to Customer on the Cover Page of the Order Form is hereby modified to be “[*], subject to adjustment as provided in Section 16.” In addition, for the period commencing on and after November 1, 2004, Section 16.6.4 of the Order Form is hereby deleted in its entirety and replaced with the following:
     “16.6.4 “ Applicable Percentage ” with respect to any calendar month during the Services Term means [*]”
     2.3. Addition of WebSearch Site , AFS Site and AFC Site . Each of the following URLs is hereby added as a WebSearch Site, AFS Site and AFC Site under the Order Form:
[*]

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*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.

 

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[*]
3. Choice of Law . The laws of the State of California, excluding California’s choice of law rules, and applicable federal U.S. laws shall govern this Amendment.
4. Miscellaneous . This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. No agreement hereafter made shall be effected to change, modify, or discharge this Amendment, in whole or in part, unless such agreement is in writing and signed by or on behalf of the other party against whom the enforcement of the change, modification, or discharge is sought. This Amendment shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. Each person whose signature appears below represents and warrants that he or she has the authority to bind the entity on whose behalf he or she has executed this Amendment.
5. Effect on Order Form . Except as expressly modified as set forth herein, the Order Form and GSA shall remain in full force and effect.
     IN WITNESS WHEREOF, the parties have executed this Amendment by persons duly authorized as of the date first written above.

SYNACOR, INC.	 	GOOGLE INC.		
 		
By:	 	/s/ Ronald Frankel	 	 	 	By: 	/s/ Joan Braddi	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: 	RONALD FRANKEL 	 	 	 	 	Name: 	JOAN BRADDI 	 		
 	 	Title: 	PRESIDENT & CEO 	 	 	 	 	Title: 	VP, SEARCH SERVICES 	 		
 	 	Date:	11-12-04 	 	 	 	 	Date:	11.16.04 	 		
 	 	Fax:	(716) 332-0081 	 	 	 	 	Fax:	650-618-1808 	 		

 	 	 	 	 	
Amendment to Order Form	 	Page 2 of 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.

 

EXHIBIT 10.14.4
CONFIDENTIAL TREATMENT REQUESTED
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AMENDMENT NUMBER TWO TO GOOGLE SERVICES AGREEMENT ORDER FORM
This Amendment Number Two to the Order Form (as defined below) (“Amendment Two”) is entered into by and between Google Inc. (“Google”), a Delaware corporation and Synacor, Inc., a Delaware corporation (“Customer”) effective as of December 16, 2005 (the “Amendment Two Effective Date”)
RECITALS

 	1.	 	Customer and Google entered into that certain Google Services Agreement dated June 25, 2004 (“ GSA ”) and Google Services Agreement Order Form dated June 22, 2004, as amended (“Order Form” and together with the GSA, the “ Agreement ”).	
 		
 	2.	 	Under this Amendment Two, Customer wishes to implement client applications.	
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and pursuant to the terms and conditions of the Agreement, the parties hereby agree as follows:
TERMS

 	1.	 	The Order Form shall be amended to include the following definition for Client Application:	
“Client Application” means the Synacor, Inc. Toolbar. A “WebSearch Client Application” and “AFS Client Application” means the Synacor, Inc. Toolbar that has been approved by Google to access the WebSearch Services and AFS Services, respectively, as approved by Google in writing from time to time during the Services Term.

 	2.	 	Customer’s Client Application set forth on Exhibit A , attached hereto is hereby approved by Google for purposes of (a) sending WebSearch Queries and AFS Results Sets to resolve to approved Results Pages on the WebSearch Sites and AdSense for Search Sites, respectively; provided that, at all times during the Services Term, Customer, and Customer’s Client Application(s), will comply with Google’s Client Application Guidelines, the current form of which is attached hereto as Schedule I , as such Guidelines may be updated by Google from time to time. Customer represents and warrants that (a) it has read and understands the Client Application Guidelines; and (b) it does, and at all times during the Services Term it will, own, operate and control one hundred percent (100%) of the approved Client Application(s) set forth in the Cover Page(s) of this Order Form. The list of Approved Client Applications may be updated from time to time subject to Google’s prior written consent.	
 		
 	3.	 	Section 4.1 of the Order Form is hereby amended and restated in its entirety as follows:	
“Section 4.1 Scope of WebSearch Services . If selected on the cover page(s) of this Order Form, during the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with WebSearch search results (“WebSearch Results”) through its WebSearch service (the “WebSearch Service”) for display on the WebSearch Sites as permitted herein. Customer agrees to implement the WebSearch Service as provided herein on the WebSearch Sites and WebSearch Client Application in existence as of the date hereof within thirty (30) days of the Order Form Effective Date, and to maintain such implementation thereafter during the Services Term. Customer agrees to implement the WebSearch Service on any WebSearch Site and WebSearch Client Application added thereafter as contemplated by Section 3.3 herein.”
 	 	 	
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 	4.	 	Section 4.2.1 of the Order Form is hereby amended and restated in its entirety as follows:	
“4.2.1. Search Boxes and Queries . Customer shall implement on each WebSearch Site and in each WebSearch Client Application a search box (each, a “WebSearch Box”) for End Users (as defined below) to enter queries to search the Web (each, a “WebSearch Query”). Customer shall send any and all WebSearch Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such WebSearch Queries, either individually or in the aggregate. Customer understands and agrees that WebSearch Queries sent to Google for processing hereunder may be initiated only by End Users entering search queries into WebSearch Boxes implemented on a WebSearch Site and WebSearch Client Application as provided herein, unless otherwise approved by Google in writing. As used herein, “End Users” of a particular Site or Client Application means individual, human end users who visit or use the applicable Site or Client Application, and “Valid WebSearch Queries” means Queries sent to Google in compliance with the requirements of this Agreement.”

 	5.	 	Section 7.1 of the Order Form is hereby amended and restated in its entirety as follows:	
7.1. Scope of AdSense for Search Services . If selected on the cover page(s) of this Order Form, during the Services Term and subject to the terms and conditions of this Agreement, Google will provide Customer with advertisements (“AFS Ads”) through its AdSense for Search Service (the “AFS Service”) for display on the AFS Sites and AFS Client Application as permitted herein. Customer agrees to implement the AFS Service as provided herein on the AFS Sites and AFS Client Application in existence as of the date hereof within thirty (30) days of the Order Form Effective Date, and to maintain such implementation thereafter during the Services Term. Customer agrees to implement the AFS Service on any AFS Site and AFS Client Application added thereafter as contemplated by Section 3.3 herein.

 	6.	 	Section 7.2.1 of the Order Form is hereby amended and restated in its entirety as follows:	
7.2.1. Search Boxes and Queries. Customer shall send any and all WebSearch Queries received by Customer from End Users to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or otherwise modifying such WebSearch Queries, either individually or in the aggregate. Customer understands and agrees that WebSearch Queries sent to Google for processing hereunder may be initiated only through WebSearch Boxes (and not, for example, from News Search or Image Search Boxes) implemented on a Site and Client Application as provided herein, unless otherwise approved by Google in writing.

 	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.

 

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 	8.	 	Unless otherwise defined herein, capitalized terms used herein shall have the same meanings as set forth in the Agreement.	
 		
 	9.	 	Except as modified by the provisions of this Amendment Two, all of the terms and conditions of the Agreement shall remain in full force and effect.	
 		
 	10.	 	This Amendment Two may be executed in one or more counterparts, including facsimile counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.	
     IN WITNESS WHEREOF, the parties have caused this Amendment Two to be executed as of the Amendment Two Effective Date.
 	 	 	 	 	
 	GOOGLE INC.
 	 	
 	By:  	/s/ Jeff Shardell  	 	
 	 	Name:  	Jeff Shardell 	 	
 	 	Title:  	Director, Web Search & Syndication 	 	

 	SYNACOR, INC.
 	 	
 	By:  	/s/ M. DREW BUCKLEY  	 	
 	 	Name:  	M. DREW BUCKLEY 	 	
 	 	Title:  	V.P. BUSINESS DEVELOPMENT 	 	

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Exhibit A
Client Application — Synacor Toolbar
[*]
 	 	 	
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*	 	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.	

 

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SCHEDULE I
Policy Guidelines for Access of Google Services Through Client Applications
Effective Date: July 26, 2004
Google has observed a significant increase in the number of reports of software that is engaging in deceptive, malicious and other annoying practices that significantly diminish user perception and enjoyment of the internet. These practices include but are not limited to installing software on computers without obtaining informed end user consent (the so-called “drive-by download”), inundating end users with advertisements without adequate attribution or labeling, exposing users to pornographic material without obtaining informed end user consent, obtaining or transmitting personal information about an end user without obtaining informed end user consent, and interfering with an end user’s ability to easily uninstall applications the end user does not wish to be on his or her computer.
Google does not wish to be associated with these types of practices. Accordingly, Google has developed the Guidelines set forth below to prevent its trademark, other intellectual property, and services from being used in connection with these practices. Google believes that these Guidelines are necessary to protect Google from any allegation that it has contributed to practices that might be viewed as unlawful or actionable; to preserve the reputation of Google as a provider of trusted software and services in a manner that is beneficial and fair to users and other constituents; and to stem the rising incidence of practices that harm users and diminish the perceived value and reliability of the internet, which are essential to Google’s business.
With this objective in mind, Google has established the following Guidelines to apply to customer Applications that are used to access our search and/or advertising syndication services. Except to the extent Google has otherwise specifically agreed in writing, Google does not grant permission to, and you will not, access Google services using one or more of your Applications unless you ensure that those Applications comply with these Guidelines. Examples of accessing Google services in this context include Applications that send end user queries or other information to Google to generate search or ad results, or Applications that alter browser or other application settings to permit error traffic to be sent to Google to generate search or ad results.
For the avoidance of doubt, by these Guidelines Google does not intend to, and does not, impose any restrictions on what you may do with any Application that is not used to access, or is not bundled with any Application that is used to access, Google services; you remain free to sell any Application you wish (whether or not it complies with these Guidelines) so long as it is not used to access Google services.
In these Guidelines: (a) “you” and “your” refer to the legal entity(ies) that has entered into the contract with Google into which these Guidelines are incorporated, as well as any person or entity acting on your behalf; and (b) “Application” means any application, plug-in, helper, component or other executable code that runs on a user’s computer, examples of which include those that provide browser helper objects, instant messaging, chat, email, data, file viewing, media playing, file sharing, games, internet navigation, search and other services.

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Google welcomes input about these Guidelines from you and from other interested parties, and is always willing to consider revisions as appropriate to encourage innovation while protecting against deceptive, unfair and harmful practices. Accordingly, Google may update these Guidelines, including the Exhibits, from time to time as provided in Section 10 below.
1. General.
      1.1. Approval and Ongoing Compliance . You may access Google services from Applications only to the extent permitted in the signed written agreement into which these Guidelines have been incorporated. In such instance, you must ensure that your Application both (1) has been approved by Google for the purpose of accessing Google services in writing in advance, and (2) complies at all times with the requirements outlined herein. To obtain Google’s approval for any Applications not expressly approved in your agreement, you must submit a written request.
      1.2. Implementation . The incorporation of Google services into your Application must conform to the implementation requirements set forth in your agreement with Google. For example, in the case of Applications that access Google’s WebSearch and/or AdSense for Search Services, end user queries initiated from your Application must resolve to a Google-approved Web page on a permitted Web site as provided in your agreement with Google (refer to your agreement for a complete description of the scope of approved Web pages and sites). In any event, unless your agreement with Google expressly authorizes otherwise, Google results may only appear on the Web pages expressly approved by Google for such display, and, except for the display of those pages in the main content area of a Web browser, Google results may not appear anywhere in your Applications ( e.g. , Google results may not appear in the “chrome” of your Application unless your agreement expressly contemplates otherwise).
      1.3. No Google Branding or Attribution . Your Application, and any related collateral material (including any Web pages promoting your Application or from which your Application is made available), must not contain any Google branding, trademarks or attribution unless (and then only to the extent) Google expressly consents otherwise in writing. In addition, queries entered into Applications may not resolve to a results page that contains any Google branding, trademarks or attribution unless (and then only to the extent) Google expressly consents otherwise in writing.
2. Prohibited Content . You may not access Google services from an Application that: (a) contains any viruses, worms, trojan horses, or the like; and (b) is distributed primarily for the purpose of (i) distributing pornographic, obscene, excessively profane, gambling-related, deceptive, fraudulent or illegal content, or (ii) distributing content related to “hacking” or “cracking.”
3. Prohibited Behavior . You may not access Google services from an Application that engages in deceptive, unfair, harassing or otherwise annoying practices. For example, the Application may not:

 	(a)	 	use, or permit an unaffiliated person to use, an end user’s computer system for any purpose not understood and affirmatively consented to by the end user (including, without limitation, for purposes of consuming bandwidth or computer resources, sending email messages, launching denial of service attacks, accruing toll charges through a dialer or obtaining personal information from an end user’s computer such as login, password, account or other information personal to the end user);	
 		
 	(b)	 	intentionally create or exploit any security vulnerabilities in end user computers;	

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 	(c)	 	trigger pop-ups, pop-unders, exit windows, or similar obstructive or intrusive functionality, that materially interfere with an end user’s Web navigation or browsing or the use of his or her computer;	
 		
 	(d)	 	repeatedly ask an end user to take, or try to deceive an end user into taking, an action that the end user has previously declined to take (such as repeatedly asking an end user to change his or her home page or some other setting or configuration);	
 		
 	(e)	 	redirect browser traffic away from valid DNS entries (except that your Application may direct unresolved URLs to an alternative URL designated by you, provided that the page to which the end user resolves adequately informs the end user that you and your Application are the source of that page);	
 		
 	(f)	 	interfere with the browser default search functionality (except that your Application may permit an end user to change his or her default search engine with proper disclosure, consent and attribution as provided below); or	
 		
 	(g)	 	engage in activity that violates any applicable law or regulation.	
4. Disclosure and Consent .
      4.1. Disclosure and Consent before Installation . You may not access Google services from Any Application unless you and your distribution and bundling partners design the installation of your Application in a manner that ensures that it is installed by end users in a knowing and willful manner — e.g. , no “drive-by” downloads or installs. By “distribution partner” we mean any third party who distributes your Application and by “bundling partner” we mean any third party who installs your Application in combination with or alongside one or more other Applications. At a minimum, compliance with this provision requires that, prior to installing your Application, you and any third party distributing or bundling your Application:
     (a)  first , fully, accurately, clearly and conspicuously disclose to end users:

 	(i)	 	that they are installing an application,	
 		
 	(ii)	 	the name of the Application, identifying you as the entity responsible for it, and	
 		
 	(iii)	 	the principal and significant features and functionality of the Application; and	
     (b)  then , obtain the end user’s affirmative consent to install the Application.
Notwithstanding the foregoing, the disclosure and consent requirements of this Section 4.1 will not apply to those of your Applications that are installed on computers prior to sale.
      4.2. Disclosure and Consent for Collection and Transmission of Personally Identifiable Information . You may not access Google services from any Application that (1) collects or transmits to any entity other than the end user personally identifiable information, or (2) collects or transmits information related to a user’s computer or Internet usage or activity in a manner that could collect or transmit such user’s personally identifiable information (such as through keystroke logging), unless prior to the first occurrence of any such collection or transmission you:
     (a)  first , fully, accurately, clearly and conspicuously disclose:

 	(i)	 	the type of information collected (described with specificity in the case of personally identifiable information),	
 		
 	(ii)	 	the method of collection ( e.g. , by registration, etc.), and	

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 	(iii)	 	the location of ( i.e. , a link to) the privacy policy that governs the collection, use and disclosure of the information; and	
     (b)  then , obtain the end user’s affirmative consent to such collection and/or transmission.
      4.3. Disclosure and Consent for Setting Changes . You may not access Google services from any Application that makes a change to any operating system or Application data setting which will impact the user experience of other Applications ( e.g. , changing the browser default home page or changing the default application for a file type, such as the default email, browser or media player application), unless prior to making such change you:

 	(a)	 	first , fully, accurately, clearly and conspicuously disclose the change in a manner that will explain the practical effect of such change; and	
 		
 	(b)	 	then , obtain the end user’s affirmative consent to make such change.	
Notwithstanding the foregoing, (i) no disclosure and consent need be made for changes to operating system or Application data settings that have only a minor impact on user experience, such as adding a small number of bookmarks to the browser menu or adding an item to a start menu, and (ii) the disclosure and consent requirements of this Section 4.3 will not apply to those setting changes that may be made prior to sale to the end user.
      4.4. Method of Disclosure and Consent . In order to satisfy the requirements above, the disclosure of the items specified above (a) must be provided in both (1) the End User License Agreement (EULA) or privacy policy (to the extent required by law or otherwise by industry custom) and (2) separately from the EULA and/or privacy policy ( e.g. , in installation screens or message boxes, as the case may be), and (b) must be designed so that it will be read by, adequately inform and evidence the consent of a typical Internet user. See Exhibit A for sample disclosure and consent implementations that would satisfy certain of the requirements above.
      4.5. EULA and Privacy Policy . You may not access Google services from any Application unless it conforms, and is distributed pursuant to a EULA that conforms, with all applicable laws and regulations. In addition, you and your Application must comply with the agreements and representations you make with your end users in your EULA and privacy policy. Your privacy policy must be accessible from your Application in an easily found location. If your Application collects or transmits any other information related to the user’s use of his or her computer, but not required to be disclosed and consented to pursuant to Section 4.2, then the collection and use of such other information must be disclosed in your privacy policy.
5. Transparency . Neither you nor any of your third party distribution or bundling partners may mislead end users or create end user confusion with regard to the source or owner of an Application or any portion of its purpose, functionality or features. For example, all elements of your Application that are visible to the end user must clearly identify their source through its branding and attribution, and that identification, whatever form it takes, must correspond to the identification of your application in the menu that permits end users to remove programs. You must clearly label advertisements provided by your Application (if any) as such and clearly identify your Application as the source of those advertisements. In addition, if your Application modifies the operation or display of other applications or Web sites (other than Web sites that you own), then in each instance you must clearly and conspicuously attribute the source of that modification to your Application (as distinct from the application or Web site modified) in a manner that will inform a typical Internet user; provided that this requirement will not apply to

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modifications for which you obtain disclosure and consent pursuant to Section 4.3. See Exhibit A for examples of modifications that are clearly and conspicuously disclosed to end users.
6. Deactivation . You may not access Google services from any Application that impairs an end user’s ability to change any preferences or settings set by the Application in accordance with the way that such preferences or settings ordinarily may be changed by the applicable Application. Once disabled by an end user, your Application may not be re-enabled without an affirmative action by the end user to explicitly re-enable your application. Accordingly, no use, update, installation or re-enablement of a separate Application, and no code downloaded as a result of browsing a Web site, may operate to re-enable your Application. Your Application must permit end users to uninstall it (in the customary place the applicable operating system has designated for adding or removing programs, e.g. , Add/Remove Programs control panel in Windows) in a straightforward manner, without undue effort or skill. In addition, your Application, when running, must provide (in an easily found location) clear and concise instructions on how it may be uninstalled. Once uninstalled, your Application must not leave behind any functionality or design elements, and all setting changes made by the application, but not explicitly agreed to by the end user, should be reversed to the extent practicable.
7. Bundling of Applications .
      7.1. Bundling . Your Application may be distributed through bundling arrangements (referring to the distribution of your Application in a “bundle” that installs your Application with one or more other Applications). However, in such case, you may not access Google services from any such Application unless each of the following requirements is satisfied:

 	(a)	 	the end user is made aware of all of the Applications included in the bundle prior to any installation;	
 		
 	(b)	 	all such Applications included in the bundle or download comply with the provisions of Section 2 through 6 of these Application Guidelines;	
 		
 	(c)	 	if Applications in a bundle in which you are participating are supported in part by revenue generated by advertising displayed in another independent Application included in that bundle and the continued use of the Application is conditioned on such other independent Application remaining installed and active on the end user’s computer, the end user must be made aware of that relationship; and	
 		
 	(d)	 	either (1) the bundle must provide for a master uninstaller that will enable the end user to uninstall every Application in the bundle without undue effort or skill, or (2) if no master uninstaller is provided, the de-installation of any Application may not be dependent or conditioned upon the de-installation of any other Application included in the bundle.	
7.2. PC OEM .
      7.2.1. [*]

 
*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.

 

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      7.2.2. [*]
      7.3. [*]
      7.4. General . When entering into any bundling arrangements, it is your responsibility to ensure that your direct and indirect distribution or bundling partners (and any applications included in any bundle with your Application to the extent required herein) comply with the applicable requirements of these Guidelines.
8. Information and Assistance . Subject to any confidentiality obligations owed to third parties, you must provide Google with such information as Google may reasonably request about the distribution of those of your Applications that are used to access Google services. For example, we may ask you to share with us: (a) the means by and/or the locations from which your Applications are distributed; or (b) the identity of any applications included in any of your bundling relationships (and the entities responsible for such applications). In addition, you must provide such assistance as Google may reasonably request to investigate and stop potential violations of these Guidelines that may be connected to your Application, including by way of using such number of identifiers and other tracking parameters as Google may reasonably request. This would include providing Google with “golden masters” of any bundle or other distribution that includes your Application, or working with Google to stop any entities that may be financially benefiting from your Application from engaging in any of these proscribed practices. You understand, however, that Google has no obligation to provide support to end users of your Application. For the avoidance of doubt, these information and assistance rights do not extend to any of your Applications that are not used to access Google services.
9. Legal . You must maintain ownership and control of your Application at all times to the extent required to practically and legally enforce the requirements of these guidelines. If you are seeking to permit a third party Application to incorporate or access our services, then you must also obtain Google’s written approval of that third party Application (in addition to the approval required for your Application). If Google approves the third party Application, you are responsible for ensuring that such third party Application also complies with these Guidelines. You agree to be responsible and liable for your Application’s access of Google’s results. Special indemnity and other suspension and/or termination provisions may apply. These are addressed in your agreement with Google.
10. Updates.

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      10.1. General . As mentioned above, Google may update these Guidelines, including the Exhibits, from time to time; provided, however, that no updates will be effective until Google provides you with thirty (30) days’ written notice thereof. Once you receive that notice, you will be required to bring your Application into compliance within thirty (30) days.
      10.2. Extended Compliance Period . If, solely as a result of an updated requirement, one or more of your Applications no longer complies with these Guidelines, as updated, and you are incapable of bringing such Application into compliance prior to the scheduled effective date of such update (the “Update Effective Date”), you agree to provide Google with written notice thereof as soon as reasonably practicable, but in any event no later than the Update Effective Date, identifying the Application and the reasons why it may not be brought into compliance prior to the Update Effective Date, and providing such other detail as Google may reasonably request with respect thereto (consistent in any event with your confidentiality obligations). Thereafter, the parties will consult, and you agree to will work, diligently and in good faith to develop and execute a plan to bring such Application into compliance with these Guidelines, as updated, as soon as reasonably practicable, but in any event within ninety (90) days of the Update Notice Date (the “Maximum Compliance Period”). You agree that you will provide Google with such information as Google reasonably requests during this period to keep Google apprised of your progress in bringing your Application into compliance. Notwithstanding the foregoing (but subject to the next sentence), in no event may a new requirement provided for in the update to these Guidelines require you to take any action which would violate the terms of any agreement between you and any unaffiliated third party that is in effect on the date that Google delivers notice of the proposed update. In any event, if you are unable to bring any Application into compliance during the Maximum Compliance Period, Google may elect, by providing at least thirty (30) days prior written notice, to cease providing services to either the specific non-conforming Application or to those versions of the Application which are, or are distributed, in violation of the Guidelines, as updated; it being understood that, at such time, you will be entitled to procure services from an alternative source for those Applications (or versions thereof) to which Google elects to cease providing services as provided herein.

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EXHIBIT A
Prohibited Behavior and Content
The application may not impact the display of other applications unless you provide clear disclosure in each instance

 	 	 	 	 	
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Disclosure and Consent
Clear and conspicuous disclosure is required prior to download or install: what it is, what it does, and how it will be displayed to the end user

Disclosure and Consent
Describe type, method, and use of personal information, if applicable. Point user to privacy policy

Identify the changes that will occur if the application is installed

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Branding & Attribution
The visible elements of the application should be easily identifiable to the end user

 	 	 	 	 	
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Implementation, Transparency and Deactivation
The Application must permit end users to uninstall it in the customary place the applicable operating system has designated for adding or removing programs ( e.g. , Add/Remove Programs control panel in Windows) in a straightforward manner

 	 	 	 	 	
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Implementation, Transparency and Deactivation
The Application must contain (in an easily found location) clear and concise instructions on how it may be uninstalled

 	 	 	 	 	
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Bundling of Applications
When bundling, the end user must be made aware of all the applications included prior to installation.

 	 	 	 	 	
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Bundling of Applications
When bundling, the end user must be made aware of advertising revenue relationships to other applications, if the continued use of the primary application is conditioned on the other applications being installed and active on the end user’s computer

 	 	 	 	 	
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Exhibit B
[*]

 	 	 	
*	 	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.	
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Exhibit 10.14.5
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AMENDMENT NUMBER THREE TO GOOGLE SERVICES AGREEMENT ORDER FORM
This Amendment Number Three to the Order Form (as defined below) (“ Amendment Three ”) is entered into by and between Google Inc. (“ Google ”), a Delaware corporation and Synacor, Inc., a Delaware corporation (“ Customer ”) effective as of June 30, 2006 (the “ Amendment Three Effective Date ”).
RECITALS

 	1.	 	Customer and Google entered into that certain Google Services Agreement dated June 25, 2004 (“ GSA ”) and Google Services Agreement Order Form dated June 22, 2004, as amended on November 1, 2004 and December 16, 2005 (“ Order Form ” and together with the GSA, the “ Agreement ”).	
 		
 	2.	 	Under this Amendment Three, Customer wishes to amend the Initial Services Term and other terms and conditions as set forth herein.	
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and pursuant to the terms and conditions of the Agreement, the parties hereby agree as follows:
TERMS

 	1.	 	Definitions . Unless otherwise defined herein, capitalized terms used herein shall have the same meanings as set forth in the Agreement.	
 		
 	2.	 	Cancellation of News Search Services . Customer and Google hereby agree that Google will no longer provide News Search Services to Customer. All terms and conditions relating to News Search Services as set forth in the Agreement, including but not limited to Sections 3.2, 5, 9, 16.2 of the Order Form, are hereby null and void.	
 		
 	3.	 	Cancellation of Image Search Services . Customer and Google hereby agree that Google will no longer provide Image Search Services to Customer. All terms and conditions relating to Image Search Services as set forth in the Agreement, including but not limited to Sections 3.2, 6, 9, 16.3 of the Order Form, are hereby null and void.	
 		
 	4.	 	Extension of Services Term . Customer and Google hereby agree to extend the Services Term through July 31, 2006. The definition of “Initial Services Term” set forth on the Cover Page of the Order Form is hereby amended and restated as follows:	
“June 25, 2004 through July 31, 2006”

 	5.	 	Miscellaneous . Except as modified by the provisions of this Amendment Three, all of the terms and conditions of the Agreement shall remain in full force and effect. This Amendment Three may be executed in one or more counterparts, including facsimile counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.	

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EXECUTION COPY
     IN WITNESS WHEREOF, the parties have caused this Amendment Three to be executed as of the Amendment Three Effective Date.
 	 	 	 	 	
 	 	GOOGLE INC.	
 	 	 	 	 	
 	 	By:	 	/s/ Jeff Shardell	

 	 	Name:	 	Jeff Shardell	

 	 	Title:	 	Director, Web Search & Syndication	

 	 	 	 	 	
 	 	SYNACOR, INC.	
 	 	 	 	 	
 	 	By:	 	/s/ George Chamoun	

 	 	Name:	 	George Chamoun	

 	 	Title:	 	Senior Vice President	

 	 	 	 	 	
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EXHIBIT 10.14.6
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
AMENDMENT NUMBER FOUR TO GOOGLE SERVICES AGREEMENT ORDER FORM
This Amendment Number Four to the Order Form (as defined below) ( “Amendment Four” ) is entered into by and between Google Inc. ( “Google” ), a Delaware corporation and Synacor, Inc., a Delaware corporation ( “Customer” ) effective as of July 31, 2006 (the “Amendment Four Effective Date” ).
RECITALS

 	1.	 	Customer and Google entered into that certain Google Services Agreement dated June 25, 2004 (“GSA”) and Google Services Agreement Order Form dated June 22, 2004, as amended on November 1, 2004, December 16, 2005 and June 30, 2006 (“Order Form” and together with the GSA, the “Agreement”).	
 		
 	2.	 	Under this Amendment Four, Customer wishes to amend the Initial Services Term and other terms and conditions as set forth herein.	
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and pursuant to the terms and conditions of the Agreement, the parties hereby agree as follows:
TERMS

 	1.	 	Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the same meanings as set forth in the Agreement.	
 		
 	2.	 	Extension of Services Term. Customer and Google hereby agree to extend the Services Term through June 30, 2008. The definition of “Initial Services Term” set forth on the Cover Page of the Order Form is hereby amended and restated as follows:	

 	 	 	“June 25, 2004 through July 31, 2008”	

 	3.	 	WebSearch Fees. Effective as of July 1, 2006, the Search Fees set forth on the Cover Page of the Order Form for WebSearch Services is hereby amended and restated as follows:	

 	 	 	“[*]”	

 	4.	 	Definitions in Section 16.6. Effective as July 1, 2006, Section 16.6 (Ad Revenues; Applicable Percentage; Applicable Deduction) of the Order Form is hereby amended and restated in its entirety as follows:	

 	 	 	“16.6.1. “Net AFC Revenues” for any period means AFC Revenues for such period MINUS the AFC Deduction for such period.	
 		
 	 	 	16.6.2. “AFC Revenues” for any period during the Services Term means ad revenues that are recognized by Google in such period and attributed to AFC Ads displayed on the AFC Site In such period in accordance with the requirements of this Agreement.	
 		
 	 	 	16.6.3. “AFC Deduction” for any period during the Services Term means [*] of AFC Revenues for such period.	
 		
 	 	 	16.6.4. “Applicable Percentage” means [*].	
 		
 	 	 	16.6.5. “Net AFS Revenues ” for any period means AFS Revenues for such period MINUS the AFS Deduction for such period.	

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*	 	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.	

 

EXECUTION COPY

 	16.6.6.	 	“AFS Revenues” for any period during the Services Term means ad revenues that are recognized by Google in such period and attributed to AFS Ads displayed on the AFS Site in such period in accordance with the requirements of this Agreement.	
 		
 	16.6.7.	 	“AFS Deduction” for any period during the Services Term means [*] of AFS Revenues for such period.	

 	5.	 	Net AdSense for Search Revenue Share Percentage for Customer. Effective as July 1, 2006, the Net AdSense for Search Revenue Share Percentage for Customer set forth on the Cover Page of the Order Form is hereby amended and restated as follows:	

 	 	 	“See Section 16.6.4”	

 	6.	 	Net AdSense for Content Revenue Share Percentage for Customer. Effective as July 1, 2006, the Net AdSense for Content Revenue Share Percentage for Customer set forth on the Cover Page of the Order Form is hereby amended and restated as follows:	

 	 	 	“See Section 16.6.4”	

 	7.	 	[*]	

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*	 	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.	

 

EXECUTION COPY

 	 	 	[*]	

 	8.	 	[*]	

 	1.	 	[*]	

 	2.	 	Reporting. Customer and Google hereby agree to add the following language in the Order Form as Section 21:	

 	 	3 of 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.	

 

EXECUTION COPY

 	 	 	“21. Reporting. For each Customer Client on whose Web site Customer has implemented the Services, Google shall provide detailed reporting to Customer in the same or substantially similar format as Google currently (as of the Amendment 4 Effective Date) provides to Customer for Customer Clients, such as Charter and Adelphia.	
 		
 	 	 	Furthermore, Customer is aware of its confidentiality obligations as set forth in the NDA and shall not share any Confidential Information with Customer Clients without Google’s prior written consent. Such consent may be in the form of an e-mail. For the avoidance of doubt, Confidential Information includes, but is not limited to, any and all reports provided to Customer by Google.	

 	3.	 	Other Google Products and Services. Customer and Google hereby agree to add the following language in the Order Form as Section 22:	

 	 	 	[*]	

 	4.	 	Exhibits . Customer and Google hereby agree that Exhibit B of the Order Form is deleted in its entirety and replaced with Exhibit B attached hereto. Customer and Google hereby agree to add Exhibit I, attached hereto, to the Order Form as “Exhibit I.”	

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*	 	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.	

 

EXECUTION COPY

 	5.	 	Miscellaneous. Except as modified by the provisions of this Amendment Four, all of the terms and conditions of the Agreement shall remain in full force and effect. In case of any conflict or inconsistency between the provisions of this Amendment and the Agreement, this Amendment shall control. This Amendment Four may be executed in one or more counterparts, including facsimile counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.	
     IN WITNESS WHEREOF, the parties have caused this Amendment Four to be executed as of the Amendment Four Effective Date.
 	 	 	 	 	
 	GOOGLE INC.
 	 	
 	By:  	/s/ Jeff Shardell  	 	
 	 	Name:  	Jeff Shardell 	 	
 	 	Title:  	Director, Web Search & Synd. 	 	
 	Date:	Aug. 3, 2006 	 	
 	
 	SYNACOR, INC.
 	 	
 	By:  	/s/ Ronald Frankel  	 	
 	 	Name:  	RONALD FRANKEL 	 	
 	 	Title:  	PRESIDENT & CEO 	 	
 	Date: 	7-31-06 	 	

 	 	 	 	 	
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EXECUTION COPY
EXHIBIT B
WebSearch and AFS Implementation Mockups
(To be provided.
Upon prior mutual written consent by both Google and Customer,
which may be in the form of an e-mail,
mock-ups will be Incorporated into Amendment Four and the Agreement)

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EXECUTION COPY
EXHIBIT 1
SYNACOR TARGET
 	 	 	
[*]	 	 	

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

EMBARQ and SYNACOR Master Services Agreement
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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	 	

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MSA No.: MSAX063015TPS

6.1 Term	 	 	13	 	
 	 	 	 	 	
6.2 Termination for Cause	 	 	14	 	
 	 	 	 	 	
6.3 [*]	 	 	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	 	

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*	 	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

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	 	

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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	 	

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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.	
 		
 	 	[*]	

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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	

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*	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.	

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 	 	 	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	

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 	 	 	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.	

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 	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:	

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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.	

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 	 	 	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	

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 	 	 	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	 	[*]	

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 	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	

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 	 	 	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.	

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 	(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	

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 	 	 	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.	

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 	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	

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 	(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.	

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 	(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	

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 	 	 	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.	

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 	(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;	

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 	(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.

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 	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

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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	

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 	 	 	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 [*] .	

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.	

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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

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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.	

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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:

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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

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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,	

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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.)

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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	

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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.

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*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.

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MSA No.: MSAX063015TPS
[*]

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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.

 

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	
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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.	
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 	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.	
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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.	
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 	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.	
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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.	
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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.	
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 	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.	
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 	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.	 	[*]	
 		
 	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.
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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	 	
 	 	 	 	 	
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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	 	
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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
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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.
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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.
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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:
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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.	
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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.	
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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.
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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.
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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	
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 	 	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
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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
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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
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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
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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
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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.
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\

 	 	 	[*]	

 	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.
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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.	
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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 [*]. 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.
 
*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.
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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.
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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.
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     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.	
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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.
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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.	
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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	 	 	
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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	
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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.	
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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	
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 	 	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.	
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 	 	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.	
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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 [*]	

*	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.	
 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 [*]

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

*	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.	
 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.	
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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) [*] OR (ii) THE AMOUNT SYNACOR HAS RECEIVED FROM CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT DURING THE TERM HEREOF.

MASTER SERVICES AGREEMENT	 	 	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.	

 

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
[*]

Synacor Specifications — Schedule C	 	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.	

 

			
 	 	 	
[ * ]	 		

Synacor Specifications — Schedule C	 	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.	

 

			
 	 	 	
[ * ]	 		

Synacor Specifications — Schedule C	 	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 Specifications — Schedule C	 	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 Specifications — Schedule C	 	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.	

 

[*]

 	 	 	
Synacor Specifications — Schedule C	 	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.	

 

[*]

 	 	 	
Synacor Specifications — Schedule C	 	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.	

 

			
	[*]		
   		
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.	

 

			
	[*]		

 	 	 	
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
[*]
[*]

[*] — SCHEDULE E	 	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.	

 

[*]

[*] — SCHEDULE E	 	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.	

 

[*]

[*] — SCHEDULE E	 	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.	

 

[*]

[*] — SCHEDULE E	 	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.	

 

			
[*]	 	 	
 	 	 	
[*] — SCHEDULE E	 	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.	

 

[*]

[*] — SCHEDULE E	 	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.	

 

			
[*]	 	 	
 	 	 	
[*] — SCHEDULE E	 	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 E	 	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.	

 

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 10.16.2
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE F — FIRST RENEWAL
TO
SYNACOR MASTER SERVICES AGREEMENT

SEARCH REVENUE SHARING ADDENDUM
     This Schedule F — First Renewal shall become effective July 1, 2005, shall supersede the prior Schedule F the term of which terminated on June 30, 2005 and shall become 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 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:
[*]

			
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.	

 

               v. “Applicable AFS Deduction” in any calendar month during the Services 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 Services Term means [*]

Search Revenue Sharing Addendum — Schedule F	 	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.	

 

               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 become effective on July 1, 2005 and shall run concurrently with the Agreement. The term of this Addendum may also be referred to as the “Services Term . ”
8. No Third Party Beneficiaries. The parties agree that the terms of this Agreement and the parties’ respective performance of obligations hereunder are not intended to benefit any person or entity not a party to this Agreement, that the consideration provided by each party under this Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Agreement shall have any rights hereunder nor the right to require the performance hereunder by either of the respective parties hereto.
9. Supplement To Agreement. The terms and conditions of the Agreement will remain in full force and effect, except as modified by this Amendment. This Amendment will serve only to supplement the Agreement. This Search Revenue Sharing Addendum First Renewal shall supercede the Search Revenue Sharing Addendum dated as of
The foregoing is hereby agreed and accepted by:
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	 	 	CLIENT:	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	CHARTER COMMUNICATIONS HOLDING
COMPANY, LLC	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	 	 	By:	 	/s/ Jeff Jay	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: Jeff Jay	 	 	 	 	 	 	
	 	Title:   SVP Product Development	 	 	 	 	 	Title:   VP Product Development	 	 	 	 	 	 	
Date:	 	10/24/05	 	 	 	Date:	 	 	 	 	 	 	 	 	

Search Revenue Sharing Addendum — Schedule F	 	4	

 

EXHIBIT 10.16.3
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT
TO
MASTER SERVICES AGREEMENT
The parties hereto agree to the terms of this amendment (the “Amendment”) to Schedule A to the Synacor Master Service Agreement, dated as of the 16 th  day of September, 2005 by and between SYNACOR, INC. (“Synacor”) and Charter Communications Holding Company, LLC (the “Agreement”). (“Client”), collectively the “Parties” to which this Addendum is attached and made a part, relating to, the use by Client of certain premium content (the “Premium Content”) provided to Synacor by one or more third parties (individually a “Provider” and collectively the “Providers”). All terms defined herein shall be applicable solely to this Addendum. Any defined terms used herein, which are defined in the Agreement, shall have the meanings ascribed to them in the Agreement.
WITNESETH:
      WHEREAS, Section 3(a)(ii) Synacor Premium Product Fees, Music Bundle provides that the current Cost to Client is [ * ]; and
      WHEREAS, the Charter Music service originally included unlimited subscription song downloads to a personal computer
      WHEREAS, the Parties both agree to provide the capability that enables unlimited downloads to a personal computer, but also the ability to transfer the subscription downloads to supported portable device(s).
      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. Music Product Additions. Charter Music provides unlimited streaming and music downloads to Subscribers. DRM, Digital Rights Management, is used by a music provider 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 Schedule A, the music provider DRM technology supported the PC subscription-based music licenses (the “PC Subscription Model”) and the music provider DRM supported the purchase by Users of permanent licenses to individual music tracks or albums which may be downloaded by Users (the “Purchase Model”) for a fee. The music provider DRM now also has the capability necessary to support the transfer of subscription downloads to Windows Media 10 supported portable devices (the “Portable Subscription Model”) and Synacor hereby agrees to make such Portable Subscription Model available to Client and its Users in connection with the Charter Music service.
      2. Subscription Pricing: Synacor shall maintain the PC Subscription Model pricing, currently [ * ]. In addition, a new product will be available that supports the Portable Subscription Model. From launch of the Portable Subscription Model through [ * ], the per month subscriber fees for the Portable Subscription Model will be [ * ] so long as Client offers its Users the Portable Subscription Model for [ * ] per month. Should Client choose to raise such price then Synacor may elect to raise its monthly price to Charter of the Portable Subscription Model by an amount no greater proportionately than that by which Client elects to raise its per month subscription fees for the Portable Subscription Model. Prior to January 31, 2006, Synacor will propose a new

 	 	 	
*	 	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.	

 

addendum for Charter’s consideration and prior approval covering pricing for both Portable and Non-Portable Subscription Models applicable after March 31, 2006.
      3. Music Download Purchase Model — Revenue Share. The Parties agree that all revenues and Client’s portion of the costs of the Download Model (including, but not limited to, actual and direct costs to Synacor assessed with respect to obtaining content from its music provider, additional actual and direct per transaction charges imposed by its music provider on, or passed through to, Synacor (e.g., studio fees), 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) equally with Charter in accordance with the applicable provisions of the Agreement. Net revenues shall be calculated as total gross revenues generated from Users of Charter Music through the Purchase 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 merchant pay to a customer after the customer successfully disputes an item on his or her credit card statement.) (hereinafter “Net Revenues”).
      4. Purchase Model Consumer Pricing. Client and Synacor agree that the initial charge to Users of Charter Music for downloads of individual tracks under the Purchase Model will be [ * ] for albums in accordance with requirements of content owners.
      5. Commercial Free Radio. Synacor shall provide a private label commercial free radio service for Charter High Speed Internet Subscribers. [ * ]
The parties have agreed to the terms and conditions listed above.
 	 	 	 	 	 	 	 	 	
SYNACOR, INC	 	CLIENT: CHARTER
COMMUNICATIONS HOLDING COMPANY, LLC	 	 	
 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	By:	 	/s/ James Henderson, Jr.	 	 	
 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	Name: James Henderson, Jr.	 	 	
 	 	Title:	 	 	 	Title: Vice President Business Development	 	 	
 	 	 	 	 	 	 	 	 	
Date:	 	Date: September 30, 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.	

 

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	
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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) [*] 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) [*] 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.	
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* 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	 	 	
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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 [*]	
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* 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)	 	[*]	
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* 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)	 	[*]	
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* 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;	
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* 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	
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 	 	 	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 [*]	
 	 	
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* 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)	 	[*].	
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* 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:	

 	[*]	 	 	
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* 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.	
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* 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
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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 10.16.5
CONTENT DISTRIBUTION ADDENDUM
TO
SYNACOR MASTER SERVICE AGREEMENT
     This Content Distribution Addendum (this “Addendum”) dated September 30 th ., 2004 supplements 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, exhibits, or addenda attached thereto (collectively, the “Agreement.”) by establishing the terms and conditions by which the Parties will work together to facilitate the electronic distribution of digital content 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 provision of the Agreement shall control. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Agreement.
1. Content. The content to be distributed hereunder may be obtained by Synacor (the “Synacor Content”) and/or by Client (the “Client Content”). The Synacor Content and the Client 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 Client. The Client Content will be owned by Client or licensed by Client from third party Content providers (each individually a “Client Provider” and collectively, the “Client Providers”). The Client 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 having an Internet access account through Client 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 at no additional cost to Client or the Users. 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, subject to Synacor’s approval (not to be unreasonably withheld), by Client
3. Content Delivery System, Change. Synacor will maintain a user registration and login system that is integrated with its content provisioning solution (the “System”) as set forth in Schedule C — Synacor Specifications, which will be used to control User access to the Content and to manage the updating and delivery of the Content to Users. Depending upon the System implementation for Client, as such may be revised during the Term by consent of the Parties, hosting and serving of Content may be provided by Client, Client Providers, Synacor and/or by Synacor Providers. To the extent that Synacor Provider’s systems are used to host or serve Content, (A) with respect to circumstances in which the Synacor Content is cached, the service levels and availability of such systems for Users will be no lower than the service levels and availability of the most advantageous and beneficial to Client of the following: (i) the SLA required of Synacor under Schedule B of the Agreement or (ii) the service levels and availability of such systems to other content distributors or consumers; and (B) with respect to circumstances in which the Synacor Content is not cached, the service levels and availability of such systems for Users will be no lower than the service levels and availability of such systems to other content distributors or consumers. Through the System, Synacor shall be able to: (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 Client’s Users. Client shall notify Synacor of its decisions regarding the offering of Content through the System, in writing, and Synacor shall take all commercially reasonable steps necessary to implement any such Client decisions as soon as is reasonably practicable; provided, however, that where Client 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 written request from Client.
4. Subscriber Billing. Subscriber billing will be the sole responsibility of Client, although Synacor shall provide to Client any and all transactional billing details and usage data necessary for Client to bill Users with respect to the transactions contemplated under the Agreement.
5. Terms of Use. In order to complete his or her registration as a subscriber, each prospective subscriber to Client’s Internet access services must agree to abide by Client’s then-current Acceptable Use Policy (“AUP”), which is located at: http://charter.com/site/rules.aspx#resAUP.
6. Licenses.

CONTENT DISTRIBUTION ADDENDUM	 	1	

 

(a) Subject to the provisions of the Agreement, Synacor grants to Client 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; 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”) solely in connection with the distribution of Content to Users pursuant to this Addendum and the Agreement. Client 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 in violation of any rights of a Synacor Provider or otherwise violate any intellectual property rights in the Synacor Content including, but not limited to, copyrights of third parties therein. For the avoidance of doubt, Client shall not be liable for any duplication, copying, modification, amendment, addition to or deletion from, or any other change in any Synacor Sourced Service by a User in violation of any rights of a Synacor Provider, unless Client has affirmatively authorized such User to act in such manner.
(b) Subject to the provisions of the Agreement, Client 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 Client Content, solely for purposes of distributing the Client Content to Client’s Users located in the United States; and (ii) use and utilize such Client trademarks, logos and other works which are protected by intellectual property rights laws (the “Client Properties”) solely in connection with the distribution of Content to Users pursuant to this Addendum and the Agreement and solely for purposes of providing the Services. 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 Client Content or otherwise violate any intellectual property rights in the Client Content including but not limited to copyrights of third parlies 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, notice of which termination or expiration must be provided by either party to the other (i) at least thirty (30) days in advance to the respective party extent has knowledge of such imminent termination or expiration or (ii) as soon as is possible after the respective party becomes aware of any imminent or effective termination of the agreement pursuant to which distribution rights and license to such Content were obtained, but in no event less that twenty-four (24) after becoming aware of such termination or imminent termination. Either Party (the “Terminating Party”) shall have the right to terminate this Addendum immediately as to any particular Content upon written 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 Client Provider, as the case may be, ceases to operate a site or produce or distribute such Content; or (iii) the notifying party fails to inform the Terminating Party of such underlying Content agreement termination in accordance with the preceding sentence. Notwithstanding anything in this Paragraph 6(c) to the contrary, Client may cease at any time to offer any or all Content at any time.
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 Client or any third party. Synacor also retains all rights, title and interest in and to Synacor’s trademarks, trade names and logos. As between Client and Synacor, Client agrees that Synacor is the sole owner of the System, except the Client branding and design elements of the Client Branded Portal, and all technology, software and other intellectual property (i) developed by (at Synacor’s or a third party’s cost) or brought independently to its contractual relationship with Client and used by Synacor in connection with the performance of this Addendum and the Agreement and that Client shall make no claims thereto. Client 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, Client (and its licensors, including, but not limited to, the Client 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 Client Content. No title to or ownership of any Client Content and/or any part thereof is hereby transferred to Synacor or any third party. Client also retains all rights, title and interest in and to Client’s trademarks, trade names, logos, and/or any intellectual property developed by or brought independently to its contractual relationship with Synacor. Synacor shall comply with all reasonable requests of Client to protect the proprietary rights of Client and its licensors.

CONTENT DISTRIBUTION ADDENDUM	 	2	

 

(c) All licenses, rights, title, interest and intellectual property rights of any kind in and to the Content created independently by the Provider 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 Addendum or the Agreement from such Party’s use of such Content. Each Party agrees to execute and deliver to a Provider or the other Party, as requested, any documents reasonably required to register it as a registered user of any Content and to follow any reasonable instructions of a Provider or the other Party 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 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 other party or a Provider, 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) Client 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 Client has obtained the prior written consent of Synacor to do otherwise (such consent not to be unreasonably withheld).
(b) Client 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 3 of this Addendum, is subject to Synacor’s approval (not to be unreasonably withheld) which, subject to the foregoing, may include reasonable terms, conditions and restrictions on the use of such Synacor Content or which may be withdrawn at any time upon a reasonable basis therefor.
(c) Consumer access to Premium Content will be included as part of a premium Client Internet service package which may be offered as part of Client’s Internet service or at an additional charge payable by the User. Client 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 during the term of the Agreement.
(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, except in the event a Synacor Provider exercises its rights to terminate the rights and licenses to use Synacor Content based upon the default, gross negligence or willful misconduct of Synacor.
(e) Client agrees that Synacor has the right to withdraw all Content upon lawful termination of the Agreement without liability subject to the provisions of the Agreement.
(f) Without first obtaining 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 Synacor Content is displayed, or (ii) sell any advertising in, on, or related to any Synacor Content, including but not limited to banners, buttons, links, streaming audio or streaming video advertisements. In addition, Synacor shall not sell or place any advertising, including but not limited to banners, buttons, links, streaming audio or streaming video advertisements, whatsoever unless approved by client in writing in advance. Nothing in this Paragraph 8(f) shall limit Client’s ability to place advertising on the Client Branded Portal, including, without limitation, Client’s home page. In connection with Synacor Content distributed pursuant to this Addendum, without the prior submission to Synacor of any relevant materials which Synacor may request (including but not limited to web pages) and unless Client has obtained Synacor’s written approval, Client will not use the name, logo or any of the proprietary marks of any Synacor Provider in any sales, advertising or marketing materials.
(g) Client and Synacor expressly acknowledge that each Provider is a third party beneficiary to this Addendum solely for purposes of enforcement of the provisions of this Addendum relating to the protection, security, and prevention of any unlawful use of the Provider’s Content and that any Provider may, in its sole discretion, take any and all action, including, but not limited to, commencing any legal action, to enforce such limited right pursuant to this

CONTENT DISTRIBUTION ADDENDUM	 	3	

 

Addendum. Each Provider shall have the right to audit the books and records of the Parties solely and directly relating to its right under this Section, upon reasonable notice and at its’ expense, not more frequently than quarterly during the term of the Agreement and for a period of two (2) years thereafter and to take extracts from and/or make copies of such records.
9. Synacor Fees. The Content Access Fees payable by Client to Synacor in connection with the provisions of this Addendum are set forth in Schedule A to the Agreement. The details of each specific Content offering shall be set forth in separate attachments to this Addendum (each a “Content Attachment”).

SYNACOR, INC.	 	 	 	CLIENT: Charter Communications Holding
                 Company, LLC	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel
 
Name:  RONALD FRANKEL	 	   	 	By:	 	/s/ Jeff Jay
 
Name:  Jeff Jay	 	   	 	 	 	 	
 	 	Title:    CEO	 	 	 	 	 	Title:   VP Product Development	 	 	 	 	 	 	
Date:	 	09-30-04	 	 	 	Date:	 	9/29/04	 	 	 	 	 	 	

CONTENT DISTRIBUTION ADDENDUM	 	4	

 

EXHIBIT 10.17.1
CONFIDENTIAL TREATMENT REQUESTED
290 Harbor Drive
Stamford, CT 06902

	 	July 27, 2006	 	 	
Mr. Robert Rusak
CFO
Synacor, Inc.
40 LaRiviere Drive
Suite 300
Buffalo, NY 14202
      Re: Adelphia Transition
Dear Mr. Rusak:
          Reference is made to that certain Synacor Master Services Agreement of equal date herewith (the “ TWC/Synacor Agreement ”), by and between Time Warner Cable Inc. (“ TWC ”) and Synacor, Inc. (“ Synacor ”). Reference also is made to that certain Synacor Master Services Agreement dated July 13, 2004 and as amended or supplemented via that certain Amendment No. 1 to Synacor Master Services Agreement, dated December 28, 2004 (“ Amendment No. 1 ”); Amendment No. 2 to Synacor Master Services Agreement, dated October 26, 2005; Content Distribution Addendum to Synacor Master Services Agreement, dated July 21, 2004; Content Attachment No. 1 to Content Distribution Addendum to Synacor Master Services Agreement, executed November 21, 2004; Amendment No. 1 to Synacor Content MusicNet Content No. 1 Attachment, dated June 1, 2005; Content Attachment No. 2 to Content Distribution Addendum to Synacor Master Services Agreement (NetPak), dated June 6, 2005; and the Search Revenue Sharing Addendum No. 2 to Synacor Master Services Agreement, dated October 26, 2005 and the Search Revenue Sharing Addendum No. 3, dated October 26, 2005 (together, the “ Search Revenue Addenda ”), which collectively are attached as Attachment 1 hereto (collectively, the “ Adelphia/Synacor Agreement ”), by and between ACC Operations, Inc. and Synacor.
          TWC expects to consummate that certain proposed acquisition (the “ Adelphia Acquisition ”) of certain assets of Adelphia Communications Corporation (“ Adelphia ”). In connection with the Adelphia Acquisition, TWC expects that certain subscribers of Adelphia will become subscribers of TWC. Synacor agrees that, from and after the consummation of the Adelphia Acquisition, as directed by TWC and subject to the terms and conditions of the Adelphia/Synacor Agreement (including without limitation, payment of the applicable fees), Synacor shall continue to provide to any and all subscribers of Adelphia who become subscribers of TWC in connection with the Adelphia Acquisition, the same Services (as defined in the Adelphia/Synacor Agreement) that such subscribers had been receiving pursuant to the

 

Synacor, Inc.
July 27, 2006
Page 2
Adelphia/Synacor Agreement immediately prior to the consummation of the Adelphia Acquisition. Notwithstanding the foregoing, TWC shall have the right to request that Synacor remove from the content package being provided to any such subscribers any content or category of content (e.g., all content from one or more particular content providers, including without limitation any of the AP News service, games, music on demand service, Adelphia NetPak content, or other content contemplated under the amendments and content attachments noted above), and Synacor shall promptly comply with such request. Unless and until otherwise directed by TWC, Synacor shall provide the Services to such subscribers through the adelphia.net portal. Synacor’s obligation to provide the Services pursuant to this letter agreement shall continue until the earlier of (a) such time as TWC requests that Synacor cease providing such Services or (b) December 31, 2007. Synacor and TWC hereby agree that (a) notwithstanding any expiration of the Search Revenue Addenda, Synacor shall continue to provide such Search Services (as defined in the Search Revenue Addenda), subject to the terms and conditions set forth therein, through the term of this letter agreement, provided, that, upon TWC’s request, such Search Services shall be [*] and (b) notwithstanding any expiration of Amendment No. 1, as between the parties hereto, the terms of Amendment No. 1 shall continue to apply through the term of this letter agreement. Synacor’s continued provision of such Services from and after the consummation of the Adelphia Acquisition, and TWC’s obligations in respect of such Services (including without limitation, the obligation to pay for such Services) (where TWC shall be deemed to be the Client, as such term is defined in the Adelphia/Synacor Agreement), shall be governed by the same terms and conditions as set forth in the Adelphia/Synacor Agreement; provided , however , that Synacor’s obligation to provide such Services hereunder and TWC’s obligation to pay for such Services shall apply to all Users (as defined in the Adelphia/Synacor Agreement) within the service areas acquired by TWC pursuant to the Adelphia Acquisition; and provided , further , that in the event of a direct and irreconcilable conflict between the terms and conditions of the Adelphia/Synacor Agreement and the TWC/Synacor Agreement, the terms and conditions of the TWC/Synacor Agreement shall govern.
          This letter agreement and all matters relating hereto shall be governed by the laws of the State of New York as if performed wholly within the state and without giving effect to the principles of conflict of law. This letter agreement may be executed in separate counterparts, each of which, whether delivered by facsimile or otherwise, is deemed to be an original, and all of which taken together constitute one and the same instrument.
          If the above reflects your understanding of the parties’ agreement, please acknowledge your acceptance of the foregoing by executing the countersignature below.

 	 	 	
*	 	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.
July 27, 2006
Page 3
 	 	 	 	 	
 	 	Sincerely,	 	 	
 	 	 	 	 	
 	 	/s/ Peter Stern	 	 	
 	 	 	 	 	
 	 	Peter Stern, Executive Vice President
Time Warner Cable Inc.	 	 	
 	 	 	 	 		
AGREED AND ACCEPTED:

Synacor, Inc.
 	 		
 	By:  	/s/ Robert Rusak, CFO  	 	 	 	
 	 	Robert Rusak, CFO  	 	 	

 

Appendix A
Adelphia/Synacor Agreement

 

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
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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
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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 [*] from the Effective Date (the “Initial Term”) and, except as provided in the immediately following sentence, will automatically renew thereafter for up to [*] each (each a “Renewal Term”) (the Initial Term and all
 
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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 [*] 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.
[*]

 	 	
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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.

 	 	
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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

 	 	
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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) [*].
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,

 	 	
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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]
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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.	
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 	(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 .	
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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.	
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 	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.	
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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
[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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
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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.
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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	
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 	•	 	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
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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.
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[*]
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[*]
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[*]

 	 	
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[*]

 	 	
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[*]

 	 	
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[*]

 	 	
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[*]

 	 	
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[*]
 
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EXHIBIT 10.17.3
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
AMENDMENT NO. 1 TO
SYNACOR MASTER SERVICES AGREEMENT
THIS AMENDMENT NO. 1 TO SYNACOR MASTER SERVICES AGREEMENT (this “Amendment No. 1”) dated as of the 28 th day of December, 2004, by and between SYNACOR, INC. (“Synacor”) and ACC OPERATIONS, INC. (“Client”) amends the Master Services Agreement dated July 13, 2004 by and between Synacor and Client (the “Agreement”). Capitalized terms used but not defined in this Amendment No. 1 shall have the meanings ascribed to them in the Agreement.
WITNESETH:
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, Section 2(b) of Schedule A of the Agreement provides that the AP Headline News service may be integrated into the Client Branded Portal for the costs listed in the Agreement, which will be pass-through costs from Press Association, Inc. (“PA”) to Client, with no mark-up by Synacor; and
WHEREAS, Synacor has entered into Amendment 2 to the Current News License Agreement by and between PA and Synacor dated as of October 5, 2004, which provides Synacor with a non-exclusive, non-transferable, limited license to distribute the AP Headline News service to Client for a term of one (1) year from January 1, 2005 through December 31, 2005 (the “Amended License Agreement”); and
WHEREAS, the Amended License Agreement also provides for new monthly fees of [*]; and
WHEREAS, Synacor and Client desire to amend the Agreement to include the term and new fee structure from the Amended License Agreement.
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. Notwithstanding any terms of the Agreement to the contrary, including Section 2(b) of Schedule A, Client agrees to keep the AP Headline News service as part of the Portal Content of its Client Branded Portal at least until December 31, 2005, unless the Amended License Agreement is terminated for any reason or the AP Headline News service is no longer available.
     2. Section 2(b) of Schedule A of the Agreement shall be deleted in its entirety and replaced with the following language:
          “[*] News service (stories, pictures, videos, etc.), as set forth below (“[*] News Service”), shall be 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. [*] News Service shall include:

 	 	 	
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 	•	 	National News	
 		
 	•	 	World News	
 		
 	•	 	Sports News	
 		
 	•	 	Entertainment News	
 		
 	•	 	Health News	
 		
 	•	 	Business and Finance News	
     [*]
     [*]
     For purposes of the payment of the [*]
     3. 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, as amended hereby. If any provision of this Amendment No. 1 conflicts with any provision of the Agreement, the provisions of this Amendment No. 1 shall control.
      IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the day first above written.
 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	ACC OPERATIONS, INC.	
 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	 	 	By:	 	/s/ Karl Ossentjuk	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: Karl Ossentjuk	 	 	
 	 	Title:   SVP	 	 	 	 	 	Title:   VP — Internet SVCS Product Mgmt	 	 	
 	 	3/4/05	 	 	 	 	 	 	 	 	
 
* 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 10.17.4
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
AMENDMENT NO. 2
TO
SYNACOR MASTER SERVICES AGREEMENT
THIS AMENDMENT NO. 2 TO SYNACOR MASTER SERVICES AGREEMENT (this “Amendment No. 2”) is dated as of the 26th day of October, 2005 (the “Amendment No. 2 Effective Date”) and is by and between Synacor, Inc. (“Synacor”) and ACC Operations, Inc. (“Client” and together with Synacor, the “Parties”) under which the parties hereto mutually agree to modify and amend as follows the Synacor Master Services Agreement dated July 13, 2004 between the Parties, and exhibits thereto, as previously amended (collectively, the “Agreement”). Any capitalized terms used and not otherwise defined herein, which are defined in the Agreement, shall have the meanings ascribed to them in the Agreement.
Whereas, Synacor desires to make certain additional Content available to Client; and
Whereas, Client desires to receive such additional Content.
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 are hereby acknowledged, the Parties hereby agree to enter into this Amendment No. 2 and to amend the Agreement as follows:

1.0	 	Portal Content: Section 2(b) of Schedule A to the Agreement shall be amended by adding the following language immediately following clause (ii) of such Section 2(b):	

 	“(iii)	 	Game related content sourced through [*], including:	

 	[*]	 	 	
 		
 	[*]	 	 	
 		
 	[*]	 	 	
 		
 	[*]	 	 	
     [*] throughout the Amendment No. 2 Term (as defined herein).

2.0	 	Term: This Amendment No. 2 shall commence on the Amendment No. 2 Effective Date and, unless terminated earlier as provided herein, continue in effect until the first, twelve (12)-month anniversary thereof (the “ Amendment No. 2 Initial Term”). Unless terminated earlier as permitted herein or in the Agreement, this Amendment No. 2 will be extended automatically for one (1) additional year at the end of the Amendment No. 2 Initial Term. Either Party may elect not to renew this Amendment No. 2 by giving written notice to the other Party at least thirty (30) days prior to the end of the then current term. Notwithstanding anything in this Amendment No. 2 or the Agreement to the contrary, Client shall have the right to terminate this Amendment No. 2 in the event that Client sells or otherwise transfers all or substantially all of its assets or stock (the “Transaction”) to one or more third parties (each, a “Buyer” and together, the “Buyers”) and no Buyer assumes this Amendment No. 2. Client may provide written notice of such termination (the “Termination Notice”) at any time during the period commencing as of sixty (60) days prior to the closing date for the Transaction and continuing until sixty (60) days following such closing date. Such termination shall be effective thirty (30) days after the date of the Termination Notice.	
 		
3.0	 	Scope of Amendment: This Amendment No. 2 supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the Parties relating to the subject matter of this Amendment No. 2 and all past dealing or industry custom. This Amendment No. 2 shall be integrated in and form part of the Agreement upon execution. All terms and conditions of	

 	 	 	
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 	 	the Agreement shall remain unchanged, except as modified in this Amendment; and the terms of the Agreement, as modified by this Amendment No. 2, are hereby ratified and confirmed. Where the terms of the Agreement conflict with those of this Amendment No. 2, however, the terms of this Amendment No. 2 shall control. This Amendment No. 2 may be executed in one or more counterparts, each of which (once executed) shall be deemed an original, but all of which together shall constitute one and the same agreement.	
 	 	 	 	 	 	 	 	 	 	 	
SYNACOR, INC.	 	CLIENT: ACC OPERATIONS, INC.	
 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ George Chamoun	 	 	 	By:	 	/s/ Carl Leuschner	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: George Chamoun	 	 	 	 	 	Name: Carl Leuschner	 	 	
 	 	Title:   SVP	 	 	 	 	 	Title:   VP — HSI	 	 	
Date:	 	10/25/05	 	 	 	Date:	 	10/25/05	 	 	

 

Exhibit 10.17.5
CONTENT DISTRIBUTION ADDENDUM
TO
SYNACOR MASTER SERVICES AGREEMENT
     This Content Distribution Addendum (this “Addendum”) dated July 21, 2004 supplements the 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.”) by establishing the terms and conditions by which the Parties will work together to facilitate the electronic distribution of digital content 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 provision of the Agreement shall control. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Agreement.
1. Content. The content to be distributed hereunder may be obtained and provided by Synacor (the “Synacor Sourced Services”) and/or by Client (the “Client Sourced Services”). The Synacor Sourced Services and the Client Sourced Services are hereinafter referred to collectively as the “Content”. Distribution rights to the Synacor Sourced Services 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, Client. The Client Sourced Services will be owned by Client or licensed by Client from third party Content providers (each individually a “Client Provider” and collectively, the “Client Providers”). The Client 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 having an Internet access account through Client 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 more fully described in the Synacor Specifications. 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, pursuant to Paragraph 1(a)(v) of Schedule A, by Client.
3. Content Change. Synacor will maintain a user registration and login system that is integrated with its content provisioning solution (the “System”) as set forth in the Synacor Specifications which will be used to control User access to the Content and to manage the updating and delivery of the Content to Users. Depending upon the System implementation for Client, as such may be revised during the Term by consent of the Parties, hosting and serving of Content may be provided by Client, Client Providers, Synacor and/or by Synacor Providers. Client shall notify Synacor of its decisions regarding the offering of Content through the System, in writing, and Synacor shall take all commercially reasonable steps necessary to implement any such Client decisions as soon as is reasonably practicable; provided, however, that where Client 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 written request from Client.
4. Subscriber Billing. Subscriber billing will be the sole responsibility of Client, although Synacor shall provide to Client any and all transactional billing details and usage data necessary for Client to bill Users with respect to the transactions contemplated under the Agreement, and/or under separate Content Attachments.
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, as mutually agreed upon by the Parties (the “TOU”). 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 prior written consent of Client, 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, in which event, Synacor shall provide to Client as much prior notice as is reasonably possible and, if Client objects to such change in writing to Synacor, and such change is nonetheless made by Synacor after such written objection, Client may immediately terminate the Agreement without penalty with respect to the Content provided by such Synacor Provide under such TOU.
Addendum-1

 

6. Licenses.
(a) Subject to the provisions of the Agreement, Synacor grants to Client during the Term, a limited, non-exclusive, non-transferable (except as permitted under Section 12 of the Agreement), right and license to: (i) transmit and distribute individual copies of the Synacor Sourced Services, solely for purposes of distributing the Synacor Sourced Services to Users located in the United States and Puerto Rico; 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”) solely in connection with the distribution of Content to Users pursuant to this Agreement. Client expressly agrees that it shall not, and shall not authorize any third party to, duplicate, copy, modify, amend, add to, delete from or otherwise make any change whatsoever in the Synacor Sourced Services in violation of any rights of a Synacor Provider or otherwise violate any intellectual property rights in the Synacor Sourced Services including, but not limited to, copyrights of third parties therein. For the avoidance of doubt, Client shall not be liable for any duplication, copying, modification, amendment, addition to or deletion from, or any other change in any Synacor Sourced Service by a User in violation of any rights of a Synacor Provider, unless Client has affirmatively authorized such User to act in such manner.
(b) Subject to the provisions of the Agreement, Client 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 Client Content, solely for purposes of distributing the Client Content to Users located in the United States and Puerto Rico; and (ii) use and utilize such Client trademarks, logos and other works which are protected by intellectual property rights laws (the “Client Properties”) solely in connection with the distribution of Content to Users pursuant to this Agreement and solely for purposes of providing the Services. 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 Client Content or otherwise violate any intellectual property rights in the Client 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. Synacor agrees to provide to Client, in writing, as much prior notice as possible regarding the expiration or earlier termination of any agreement affecting any Synacor Sourced Service. Either Party (the “Terminating Party”) shall have the right to terminate this Agreement immediately as to any particular Content upon written 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 Client Provider, as the case may be, ceases to operate a site or produce or distribute such Content. Notwithstanding anything in this Paragraph 6(c) to the contrary, Client may cease at any time to offer any or all Content at any time.
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 right, title and interest in and to all copyrights, trademarks, trade names, logos, patents and other intellectual and proprietary rights in and to the Synacor Sourced Services. No title to or ownership of any Synacor Sourced Services and/or any part thereof is hereby transferred to Client or any third party. Synacor also retains all rights, title and interest in and to Synacor’s Marks. As between Client and Synacor, Client agrees that Synacor is the sole owner of the System, except the Client branding and design elements of the Client Branded Portal, and all technology, software and other intellectual properly used by Synacor in connection with the performance of this Agreement and that Client shall make no claims thereto. Client 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, Client (and its licensors, including, but not limited to, the Client Providers) retains all right, title and interest in and to all copyrights, trademarks, trade names, logos, patents and other intellectual and proprietary rights in and to the Client Content. No title to or ownership of any Client Content and/or any part thereof is hereby transferred to Synacor or any third party. Client also retains all rights, title and interest in and to Client’s Marks. Synacor shall comply with all reasonable requests of Client to protect the proprietary rights of Client 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,
Addendum-2

 

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 from such Party’s use of such Content. Each Party agrees to execute and deliver to a Provider or the other Party, as requested, any documents reasonably required to register it as a registered user of any Content and to follow any reasonable instructions of a Provider or the other Party 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 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 other party or a Provider, as requested, such assignments and other documents as reasonably required to transfer to the Provider all rights to the registrations, patents or applications involved.
8. Content Provider Requirements.
(a) Client agrees to utilize the User interfaces or other identification verification methods of the System, as described in the Synacor Specifications, without modification, including, but not limited to, framing or co-branding, unless Client has obtained the prior written consent of Synacor to do otherwise.
(b) Client acknowledges and agrees that the look, feel, size and placement of any Synacor Sourced Services on the User access web pages (and any change or modification thereof), as described in the Synacor Specifications, is subject to Synacor’s approval, which approval shall not be unreasonably conditioned, delayed or withheld, but which, subject to the foregoing, may include terms, conditions and restrictions on the use of such Synacor Sourced Services or which may be withdrawn at any time.
(c) Consumer access to the Content will be included as part of a premium Client Internet service package which may be offered as part of Client’s Internet service or at an additional charge payable by the User. Client will not, at any time during the Term, authorize access to the Synacor Sourced Services by any person via the general Internet or other access method other than through the 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 Sourced Services as provided in Section 6(c) of this Addendum.
(e) Client agrees that Synacor has the right to withdraw all Content upon termination of the Agreement without liability.
(f) Without first obtaining 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 Synacor Sourced Services is displayed, or (ii) sell any advertising in, on, or related to any Synacor Sourced Services, including but not limited to banners, buttons, links, streaming audio or streaming video advertisements. Nothing in this Paragraph 8(f) shall limit Client’s ability to place advertising on the Client Branded Portal, including, without limitation, Client’s home page, so long as such advertising is not placed directly in any Synacor Sourced Services screen. In connection with Synacor Sourced Services distributed pursuant to this Agreement, without the prior submission to Synacor of any relevant materials which Synacor may request (including but not limited to web pages) and unless Client has obtained Synacor’s written approval, which approval shall not be unreasonably conditioned, delayed or withheld, Client will not use the name, logo or any of the proprietary marks of any Synacor Provider in any sales, advertising or marketing materials and, once given, any such approval shall continue to be effective provided that Client does not make any material changes to such sales, advertising or marketing materials,
(g) Client and Synacor expressly acknowledge that each Provider is 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 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 Provider shall have the right to audit the books and records of the Parties solely and directly relating to such Provider’s Content, upon reasonable notice and at its’ expense, not more frequently than quarterly during the term of the Agreement and for a period of one (1) years thereafter and to take extracts from and/or make copies of such records.
Addendum-3

 

9. Synacor Fees. The Content Access Fees payable by Client to Synacor in connection with the provisions of this Addendum are set forth in Schedule A to the Agreement. The details of each specific Content offering and any additional fees in connection with such Content shall be set forth in separate attachments to this Addendum (each a “Content Attachment”).
 	 	 	 	 	 	 	 	 		
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		
Addendum-4

 

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 [*]
     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 [*]
      NOW, THEREFORE, in consideration of, and pursuant to, the Agreement, the Parties agree as follows:
      1. Service Description and General Overview
     [*] 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. [*] 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.

 	 	 	
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      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, [*] 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, [*] 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, [*] 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 [*] 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 [*] 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
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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 [*] 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 [*], 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 [*] 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.”
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      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 [*] 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. [*]
 
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[*]
      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	 	 	 	 	 	 	
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EXHIBIT 10.17.7
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
AMENDMENT NO. 1 TO
SYNACOR [*] CONTENT NO. 1 ATTACHMENT
     This Amendment No. 1 to Synacor [*] 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 [*] 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 [*] DRM technology supported only subscription-based music licenses (the “Subscription Model”), as provided in Content Attachment No. 1. The [*] 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 [*], additional actual and direct per transaction charges imposed by [*] 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

 	 	 	
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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.
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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.
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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 [*] 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 [*]-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.
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[*]
     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	 	 	 	 	 	 	 	 	 	 	 	 	
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EXHIBIT 10.17.9
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
SEARCH REVENUE SHARING ADDENDUM
TO
SYNACOR MASTER SERVICES AGREEMENT
This Search Revenue Sharing Addendum (this “Addendum”) dated this 18 th day of November, 2004 supplements the 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”) by establishing the terms and conditions by which the Parties will work together to facilitate the delivery of Internet 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. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Agreement. Notwithstanding anything in the Agreement or this Addendum to the contrary, for purposes of determining Synacor’s obligations and liabilities in connection with the Search Services (as defined herein) provided pursuant to this Addendum, such Search Services shall be deemed a “Synacor Sourced Service.”
1. Definition of Search Services and Selection of Search Services Provider. Synacor shall provide services that enable Users to receive descriptions and links associated with Internet search results (the “Results Sites”) generated from search boxes (“Search Services”) placed within the customer home page currently known as “Adelphia.net” (the “Home Page”) 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 on the Home Page (a “Search Query”), Synacor shall return to such User a set of up to ten (10) Results Sites per page displayed on the Home Page (each such page of a set of Results Sites appearing on the Home Page shall be referred to herein as a “Search Results Set”), and additional paid or sponsored links (“AFS Ads”). The format and placement of such AFS Ads on the Home Page shall be agreed to by the Parties.
      b. Hosting and Control. At all times during the Services Term (as defined below), Synacor shall: (i) host and maintain any and all pages that comprise the Results Sites; (ii) maintain complete technical and editorial control of the Results Sites; and (iii) act as the intermediary for all transmissions between Search Services Provider and the Results Sites (i.e., any editing of, or additions to, the Results Sites that Adelphia desires to implement must be provided to, and agreed upon by, Synacor).
      c. Context Sensitive Advertising. The Parties may agree to provide context sensitive advertising (“Adsense for Content Ads” or “AFC Ads”) from Search Services Provider within the Home Page.
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 content displayed on, or accessed via, any Results Site and/or any User’s access to, or use of, the Search Services provided pursuant to this Addendum.
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 of 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.

 	 	 	
*	 	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. Fees and Payment Terms.
      a. Search Services. As a fee for the foregoing services, 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 this 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 revenues received by Search Services Provider from sponsored links for the inclusion of such sponsored links on select websites, including, without limitation, the Home Page, whether calculated as a flat fee, on the basis of the number of “click-throughs,” or otherwise, 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 [*].
          v. “Applicable AFS Deduction” in any calendar month during the Initial Term (as defined herein) means [*] of Net AFS Revenues in such month derived from any and all Results Sites. Notwithstanding anything herein to the contrary, Synacor reserves the right to increase the Applicable AFS Deduction [*] from Search Services Provider in connection with AFS Revenues 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 [*] of Net AFC Revenues in such month derived from any and all Results Sites.
          vii. Notwithstanding any of the foregoing under this Section to the contrary, 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 undisputed payments due Adelphia by Synacor hereunder shall accrue on a monthly basis and be made by Synacor within [*] days after the end of each month in which the pertinent AFC Ads, AFS Ads, or Search Results Sets were displayed. All undisputed payments due Synacor by Adelphia hereunder shall be made by Adephia within [*] days after
 
* 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- 

 

the end of the month for which the pertinent payment is due. All payments shall be made in full in United States Dollars.
6. Term. This Addendum will become effective on November 15, 2004 and expire on June 30, 2006 (the “Initial Term”), or earlier, upon sixty (60) days’ written notice from either Party to the other Party, with or without cause, and may be renewed by the Parties only upon a definitive written agreement signed by both of 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.	 	 	 	ACC OPERATIONS, INC. (CLIENT):	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Karl Ossentjuk	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Name: RONALD FRANKEL
Title:   PRESIDENT & CEO	 	 	 	 	 	Name: KARL OSSENTJUK
Title:   VP Internet Services Product Mgmt	 	 	 	 	 	 	
Date:	 	11-21-04	 	 	 	Date:	 	11-18-04	 	 	 	 	 	 	
 -3- 

EXHIBIT 10.17.10
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
SEARCH REVENUE SHARING ADDENDUM NO. 2
TO
SYNACOR MASTER SERVICES AGREEMENT
     This Search Revenue Sharing Addendum (this “Addendum”) dated this 26th day of October, 2005 hereby supersedes and, effective as of the date hereof, replaces the Search Revenue Sharing Addendum dated as of November 2004 and supplements and amends the 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”) by establishing the terms and conditions by which the Parties will work together to facilitate the delivery of Internet 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. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Agreement. Notwithstanding anything in the Agreement or this Addendum to the contrary, for purposes of determining Synacor’s obligations and liabilities in connection with the Search Services (as defined herein) provided pursuant to this Addendum, such Search Services shall be deemed a “Synacor Sourced Service.”
1. Definition of Search Services and Selection of Search Services Provider. Synacor shall, through its agreement with one or more search services providers (each, a “Search Services Provider”), provide services that enable Users to receive descriptions and links associated with Internet search results (the “Results Sites”) generated from search boxes (“Search Services”) placed within pages appearing on customer’s Client Branded Portal currently known as “Adelphia.net” (collectively, the “Pages”). [*].
      a. Operation of Search Services. Each time a User enters a search request in a search box on a Page (a “Search Query”), Synacor shall return to such User a set of up to ten (10) Results Sites per page displayed (each such page of a set of Results Sites shall be referred to herein as a “Search Results Set”), which Search Results Set(s) may be accompanied by additional paid or sponsored links appearing on the same Page as the pertinent Search Results Set, which sponsored links are referred to occasionally as “AdSense for Search Ads” (hereinafter “AFS Ads”). The format and placement of such AFS Ads on the Pages shall be agreed to by the Parties.
      b. Hosting and Control. At all times during the Services Term (as defined below), Synacor shall: (i) host and maintain any and all Pages that comprise the Results Sites; (ii) maintain complete technical and editorial control of the Results Sites; and (iii) act as the intermediary for all transmissions between Search Services Provider and the Results Sites (i.e., any editing of, or additions to, the Results Sites that Adelphia desires to implement must be provided to, and agreed upon by, Synacor).
      c. Context Sensitive Advertising. In addition to the AFS Ads, the Parties may agree to provide, through Search Services Provider, context sensitive advertising links on Pages accessed by a User via various sub-navigation links rather than from a specific Search Query. The context sensitive advertising accessed via such sub-navigation links are occasionally referred to as “Adsense for Content Ads” (hereinafter, “AFC Ads”).
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 content displayed on, or accessed via, any Results Site and/or any User’s access to, or use of, the Search Services provided pursuant to this Addendum.
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 of merchantability, fitness for a particular purpose, and non-infringement.

 	 	 	
*	 	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 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. Fees and Payment Terms.
      a. Search Services. As a fee for the foregoing Search Services, 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 AFS Percentage (as defined below) of Net AFS Revenues (as defined below) attributable to such month.
      c. AdSense for Content. Subject to the terms and conditions of this Agreement, for each month during the Services Term, Client shall receive the applicable Client Revenue Share set forth in the table in clause 5(d)(v) below 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 revenues received by Search Services Provider from sponsored links and/or context sensitive links for the inclusion of such sponsored links and/or context sensitive links on select websites, including, without limitation, the Pages, whether calculated as a fiat fee, on the basis of the number of “click-throughs,” or otherwise, minus agency fees, referral fees, costs related to third party advertising service providers, and discounts.
          iv. “Applicable AFS Percentage” with respect to any calendar month during the Services Term shall be [*].
          v. “Client Revenue Share” of Net AFC Revenues with respect to any calendar month during the Services Term shall depend upon the location of the pertinent third party content appearing on the pertinent Page accessed though sub-navigation links and shall be as follows:
[*]
          vi. “Applicable AFS Deduction” in any calendar month during the Initial Term (as defined herein) means [*]) of gross AFS Revenues in such month derived from any and all Results Sites. Notwithstanding anything herein to the contrary, Synacor reserves the right to increase the Applicable AFS 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.	
 -2- 

 

[*] from Search Services Provider in connection with AFS Revenues by providing: (i) advance written notice to Client, and (ii) documentary evidence of such increased cost.
          vii. “Applicable AFC Deduction” in any calendar month during the Initial Term means [*] of gross AFC Revenues in such month.
          viii. Notwithstanding any of the foregoing under this Section to the contrary, 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 undisputed payments due Adelphia by Synacor hereunder shall accrue on a monthly basis and be made by Synacor within [*] days after the end of each month in which the pertinent AFC Ads, AFS Ads, or Search Results Sets were displayed. All undisputed payments due Synacor by Adelphia hereunder shall be made by Adephia within [*] days after the end of the month for which the pertinent payment is due. All payments shall be made in full in United States Dollars.
6. Term. This Addendum will become effective on November 15, 2004 and shall expire on June 30, 2006 (the “Initial Term”), or earlier, upon (a) sixty (60) days’ prior written notice from either Party to the other Party, with or without cause, or upon the expiration or earlier termination of the Agreement, and may be renewed by the Parties only upon a definitive written agreement signed by both of 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.	ACC OPERATIONS, INC. (CLIENT):	
 	 	 	 	 	 	 	 	 	 	 		
By: 	/s/ Robert L. Rusak	 	 	 	By: 	 	/s/ Carl Leuschner	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	Name: 	Robert L. Rusak 	 	 	 	 	 	Name: 	Carl Leuschner 	 	 	 	
 	Title:	CFO	 	 	 	 	 	Title:	VP-HSI	 	 	 	
Date: 	10/26/05	 	 	 	Date:	 	10/26/05	 	 	 	

 	 	
*	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- 

EXHIBIT 10.17.11
CONFIDENTIAL TREATMENT REQUESTED
EXECUTION COPY
SEARCH REVENUE SHARING ADDENDUM NO. 3
TO
SYNACOR MASTER SERVICES AGREEMENT
     This Search Revenue Sharing Addendum (this “Addendum No. 3”) dated this 26 th day of October, 2005 is by and between Synacor, Inc. (“Synacor”) and ACC Operations, Inc. (“Client”) (individually, a “Party” and, together, the “Parties”), and, together with the Search Revenue Sharing Addendum No. 2 (“Addendum No. 2”) dated October 26, 2005 by and between the Parties, supplements and amends the Master Services Agreement dated July 13, 2004 by and between the Parties, including any schedules, attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the “Agreement”) by establishing the terms and conditions by which the Parties will work together to facilitate the delivery of Internet “yellow pages” 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 No. 3. If any provision of this Addendum No. 3 conflicts with a provision of the Agreement, the provisions of this Addendum No. 3 shall control. Capitalized terms used but not defined in this Addendum No. 3 shall have the meanings ascribed to them in the Agreement. Notwithstanding anything in the Agreement or this Addendum No. 3 to the contrary, for purposes of determining Synacor’s obligations and liabilities in connection with the Search Services (as defined herein) provided pursuant to this Addendum no. 3, such Search Services shall be deemed a “Synacor Sourced Service.”
1. Definition of Yellow Pages Search Services and Selection of Yellow Pages Search Services Provider. Synacor shall, through its agreement with [*], (the “Yellow Pages Search Services Provider”), provide to Users links in response to Internet searches generated from the specific search box entitled “Yellow Pages” hosted by [*] (the “Yellow Pages Search Services”) appearing and/or accessible on pages within customer’s Client Branded Portal (collectively, the “Pages”).
      a. Operation of Search Services. Each time a User enters a search request in the Yellow Pages search box on a Page (a “Yellow Pages Query”), Synacor shall return to such User a set of results in response to such query (the “Yellow Pages Sites”), which Yellow Pages Sites may be accompanied by PFP Ads (as defined herein). For purposes hereof, “PFP Ads” means pay-for-performance advertising provided by the Yellow Pages Search Services Provider that are (i) compensated advertising listings that appear on a Yellow Pages Site in response to a keyword query entered by a User, and (ii) sold on a cost per “click” basis,
      b. Hosting and Control. At all times during the Services Term (as defined below), Synacor shall: (i) host and maintain any and all Pages that comprise the Yellow Pages Sites; (ii) maintain complete technical and editorial control of the Yellow Pages Sites; and (iii) act as the intermediary for all transmissions between the Yellow Pages Search Services Provider and the Yellow Pages Sites (i.e., any editing of, or additions to, the Yellow Pages. Sites that Adelphia desires to implement must be provided to, and agreed upon by, Synacor).

* 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. Disclaimers. Client understands and agrees that the Yellow Pages Search Services Provider shall not be liable for any damages, whether direct, indirect, incidental or consequential, arising from the content displayed on, or accessed via, any Yellow Pages Site and/or any User’s access to, or use of, the Yellow Pages Search Services provided pursuant to this Addendum No. 3.
3. No Warranties. Client understands and agrees that the Yellow Pages Search Services Provider makes no warranties, express or implied, with respect to the Yellow Pages Search Services, including, without limitation, warranties of 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 the Yellow Pages Search Services Provider.
5. Fees and Payment Terms.
      a. Yellow Pages Search Services. At no time during the Services Term shall Client be required to pay a fee or charge to Synacor or the Yellow Pages Search Services Provider for the Yellow Pages Search Services provided hereunder.
      b. Ad Revenues; Revenue Share. Synacor shall pay Client [*] of Net PFP Revenue (as defined herein) (“Client’s Revenue Share”). For purposes hereof, “Net PFP Revenue” means gross revenue received by Synacor from PFP Click-Throughs (as defined herein), less only direct, out-of-pockets costs and expenses relating to the Yellow Pages Search Services owed by Synacor to CitySearch, or retained by CitySearch, [*], without the prior, written consent of Client. For purposes hereof, “PFP Click-Through” means the act of a User “clicking” on a PFP Ad displayed on a Page and being transported to the pertinent advertiser’s web site or profile page featuring the pertinent advertiser’s web- based information.
      c. Payment of Client’s Revenue Share. Within [*] days after the end of each calendar quarter throughout the Services Term, Synacor shall provide Client with financial reporting statistics for all PFP Click-Throughs from the integrations of PFP Ads on the Client Branded Portal during such calendar quarter, together with Client’s Revenue Share for such calendar quarter.
      d. Non-Qualifying Ads. Notwithstanding anything in this Section to the contrary, 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, hot, automated program or similar device, including, without limitation, through any fraudulent act, as reasonably determined by Synacor; and (ii,) ads that advertise the Yellow Services Search Services Provider products or services (collectively, “Non-Qualifying Ads”). The number of queries, and impressions of and clicks on ads, as reported by the Yellow Pages Search Services Provider, shall be the number used in calculating payments hereunder.
 
* 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 

 

6. Term. This Addendum No. 3 will become effective on November 15, 2004 and shall expire on June 30, 2006 (the “Initial Term”), or earlier, upon (a) sixty (60) days’ prior written notice from either Party to the other Party, with or without cause, or upon the expiration or earlier termination of the Agreement, and may be renewed by the Parties only upon a definitive written agreement signed by both of 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.	 	 	 	ACC OPERATIONS, INC.	 		
 	 	 	 	 	 	 	 	 	 	 		
By:	 	/s/ Robert S. Rusak	 	 	 	By:	 	/s/ Carl Leuschner		
 	 	Name:	 	 
ROBERT S. RUSAK	 	 	 	 	 	Name:	 	 
Carl Leuschner	 	 	
 	 	Title:	 	CFO	 	 	 	 	 	Title:	 	VP — HSI	 	 	
Date:	 	10/26/05	 	 	 	Date:	 	10/26/05	 		
 3 

Exhibit 10.20
Synacor, Inc.
2007 Employee Stock Purchase Plan
(As Adopted September 17, 2007)

 

TABLE OF CONTENTS
 	 	 	 	 	
 	 	Page	 	
SECTION 1. PURPOSE OF THE PLAN	 	 	1	 	
 	 	 	 	 	
SECTION 2. ADMINISTRATION OF THE PLAN	 	 	1	 	
(a) Committee Composition	 	 	1	 	
(b) Committee Responsibilities	 	 	1	 	
 	 	 	 	 	
SECTION 3. STOCK OFFERED UNDER THE PLAN	 	 	1	 	
(a) Authorized Shares	 	 	1	 	
(b) Anti-Dilution Adjustments	 	 	1	 	
(c) Reorganizations	 	 	1	 	
 	 	 	 	 	
SECTION 4. ENROLLMENT AND PARTICIPATION	 	 	2	 	
(a) Offering Periods	 	 	2	 	
(c) Enrollment at IPO	 	 	2	 	
(c) Enrollment After IPO	 	 	2	 	
(d) Duration of Participation	 	 	2	 	
 	 	 	 	 	
SECTION 5. EMPLOYEE CONTRIBUTIONS	 	 	3	 	
(a) Commencement of Payroll Deductions	 	 	3	 	
(b) Amount of Payroll Deductions	 	 	3	 	
(c) Reducing Withholding Rate or Discontinuing Payroll Deductions	 	 	3	 	
(d) Increasing Withholding Rate	 	 	3	 	
 	 	 	 	 	
SECTION 6. WITHDRAWAL FROM THE PLAN	 	 	3	 	
(a) Withdrawal	 	 	3	 	
(b) Re-Enrollment After Withdrawal	 	 	3	 	
 	 	 	 	 	
SECTION 7. CHANGE IN EMPLOYMENT STATUS	 	 	4	 	
(a) Termination of Employment	 	 	4	 	
(b) Leave of Absence	 	 	4	 	
(c) Death	 	 	4	 	
 	 	 	 	 	
SECTION 8. PLAN ACCOUNTS AND PURCHASE OF SHARES	 	 	4	 	
(a) Plan Accounts	 	 	4	 	
(b) Purchase Price	 	 	4	 	
(c) Number of Shares Purchased	 	 	4	 	
(d) Available Shares Insufficient	 	 	5	 	
(e) Issuance of Stock	 	 	5	 	
(f) Tax Withholding	 	 	5	 	
(g) Unused Cash Balances	 	 	5	 	
(h) Stockholder Approval	 	 	5	 	
 i 

 

 	 	 	 	 	
 	 	 	Page	 	
SECTION 9. LIMITATIONS ON STOCK OWNERSHIP	 	 	5	 	
(a) Five Percent Limit	 	 	5	 	
(b) Dollar Limit	 	 	6	 	
 	 	 	 	 	
SECTION 10. RIGHTS NOT TRANSFERABLE	 	 	6	 	
 	 	 	 	 	
SECTION 11. NO RIGHTS AS AN EMPLOYEE	 	 	7	 	
 	 	 	 	 	
SECTION 12. NO RIGHTS AS A STOCKHOLDER	 	 	7	 	
 	 	 	 	 	
SECTION 13. MANDATORY HOLDING PERIOD	 	 	7	 	
 	 	 	 	 	
SECTION 14. SECURITIES LAW REQUIREMENTS	 	 	7	 	
 	 	 	 	 	
SECTION 15. AMENDMENT OR DISCONTINUANCE	 	 	7	 	
(b) General Rule	 	 	7	 	
(b) Impact on Purchase Price	 	 	7	 	
 	 	 	 	 	
SECTION 16. DEFINITIONS	 	 	8	 	
(a) Board	 	 	8	 	
(b) Code	 	 	8	 	
(c) Committee	 	 	8	 	
(d) Company	 	 	8	 	
(e) Compensation	 	 	8	 	
(f) Corporate Reorganization	 	 	8	 	
(g) Eligible Employee	 	 	8	 	
(h) Exchange Act	 	 	9	 	
(i) Fair Market Value	 	 	9	 	
(j) IPO	 	 	9	 	
(k) IPO Date	 	 	9	 	
(l) Offering Period	 	 	9	 	
(m) Participant	 	 	9	 	
(n) Participating Company	 	 	9	 	
(o) Plan	 	 	9	 	
(p) Plan Account	 	 	9	 	
(q) Purchase Price	 	 	9	 	
(r) Stock	 	 	9	 	
(s) Subsidiary	 	 	9	 	
 	 	 	 	 	
SECTION 16. EXECUTION	 	 	10	 	
 ii 

 

Synacor, Inc.
2007 Employee Stock Purchase Plan
SECTION 1. PURPOSE OF THE PLAN.
          The Board adopted the Plan effective as of the IPO Date. The purpose of the Plan is to provide Eligible Employees with an opportunity to increase their proprietary interest in the success of the Company by purchasing Stock from the Company on favorable terms and to pay for such purchases through payroll deductions. The Plan is intended to qualify for favorable tax treatment under section 423 of the Code.
SECTION 2. ADMINISTRATION OF THE PLAN.
          (a)  Committee Composition . The Committee shall administer the Plan. The Committee shall consist exclusively of one or more members of the Board, who shall be appointed by the Board.
          (b)  Committee Responsibilities . The Committee shall interpret the Plan and make all other policy decisions relating to the operation of the Plan. The Committee may adopt such rules, guidelines and forms as it deems appropriate to implement the Plan. The Committee’s determinations under the Plan shall be final and binding on all persons.
SECTION 3. STOCK OFFERED UNDER THE PLAN.
          (a)  Authorized Shares . The number of shares of Stock available for purchase under the Plan shall be 250,000 (subject to adjustment pursuant to Subsection (b) below).
          (b)  Anti-Dilution Adjustments . The aggregate number of shares of Stock offered under the Plan, the 1,000-share limitation described in Section 8(c) and the price of shares that any Participant has elected to purchase shall be adjusted proportionately for any increase or decrease in the number of outstanding shares of Stock resulting from a subdivision or consolidation of shares or the payment of a stock dividend, any other increase or decrease in such shares effected without receipt or payment of consideration by the Company, the distribution of the shares of a Subsidiary to the Company’s stockholders, or a similar event.
          (c)  Reorganizations . Any other provision of the Plan notwithstanding, immediately prior to the effective time of a Corporate Reorganization, the Offering Period then in progress shall terminate and shares shall be purchased pursuant to Section 8, unless the Plan is continued or assumed by the surviving corporation or its parent corporation. The Plan shall in no event be construed to restrict in any way the Company’s right to undertake a dissolution, liquidation, merger, consolidation or other reorganization.

 

SECTION 4. ENROLLMENT AND PARTICIPATION.
          (a)  Offering Periods . While the Plan is in effect, two Offering Periods shall commence in each calendar year. The Offering Periods shall consist of the six-month periods commencing on each May 1 and November 1, except that:
          (i) The first Offering Period under the Plan shall commence on the IPO Date and shall end on April 30, 2008; and
          (ii) The Committee may determine that the first Offering Period applicable to the Eligible Employees of a new Participating Company shall commence on any date specified by the Committee, provided that an Offering Period shall in no event be longer than 27 months.
          (b)  Enrollment at IPO . Each individual who, on the IPO Date, qualifies as an Eligible Employee shall automatically become a Participant on such day. Each Participant who was automatically enrolled on the IPO Date shall file the prescribed enrollment form with the Company. The enrollment form shall be filed at the prescribed location within 10 business days after the Company filed a registration statement on Form S-8 for the shares of Stock offered under the Plan. If a Participant who was automatically enrolled on the IPO Date fails to file such form in a timely manner, then such Participant shall be deemed to have withdrawn from the Plan under Section 6(a). A former Participant who is deemed to have withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Subsection (c) below. Re-enrollment may be effective only at the commencement of an Offering Period.
          (c)  Enrollment After IPO . In the case of any individual who qualifies as an Eligible Employee on the first day of any Offering Period other than the first Offering Period, he or she may elect to become a Participant on such day by filing the prescribed enrollment form with the Company. The enrollment form shall be filed at the prescribed location at least five business days prior to such day.
          (d)  Duration of Participation . Once enrolled in the Plan, a Participant shall continue to participate in the Plan until he or she:
          (i) Reaches the end of the Offering Period in which his or her employee contributions were discontinued under Section 5(c) or 9(b);
          (ii) Is deemed to withdraw from the Plan under Subsection (b) above;
          (iii) Withdraws from the Plan under Section 6(a); or
          (iv) Ceases to be an Eligible Employee.
A Participant whose employee contributions were discontinued automatically under Section 9(b) shall automatically resume participation at the beginning of the earliest Offering Period ending in the next calendar year, if he or she then is an Eligible Employee. In all other cases, a former
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Participant may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Subsection (c) above.
SECTION 5. EMPLOYEE CONTRIBUTIONS.
          (a)  Commencement of Payroll Deductions . A Participant may purchase shares of Stock under the Plan solely by means of payroll deductions. Payroll deductions shall commence as soon as reasonably practicable after the Company has received the prescribed enrollment form.
          (b)  Amount of Payroll Deductions . An Eligible Employee shall designate on the prescribed enrollment form the portion of his or her Compensation that he or she elects to have withheld for the purchase of Stock. Such portion shall be a whole percentage of the Eligible Employee’s Compensation, but not less than 1% nor more than 15%.
          (c)  Reducing Withholding Rate or Discontinuing Payroll Deductions . If a Participant wishes to reduce his or her rate of payroll withholding, such Participant may do so by filing a new enrollment form with the Company at the prescribed location at any time. The new withholding rate shall be effective as soon as reasonably practicable after the Company has received such form. The new withholding rate may be 0% or any whole percentage of the Participant’s Compensation, but not more than his or her old withholding rate. No Participant shall make more than two elections under this Subsection (c) during any Offering Period. (In addition, employee contributions may be discontinued automatically pursuant to Section 9(b).)
          (d)  Increasing Withholding Rate . If a Participant wishes to increase his or her rate of payroll withholding, such Participant may do so by filing a new enrollment form with the Company at the prescribed location at any time. The new withholding rate may be effective on the first day of any Offering Period, provided that the Participant has filed the enrollment form with the Company at the prescribed location at least five business days prior to the first day of such Offering Period. The new withholding rate may be any whole percentage of the Participant’s Compensation, but not less than 1% nor more than 15%. An increase in a Participant’s rate of payroll withholding may not take effect during an Offering Period.
SECTION 6. WITHDRAWAL FROM THE PLAN.
          (a)  Withdrawal . A Participant may elect to withdraw from the Plan by filing the prescribed form with the Company at the prescribed location at any time before the last day of an Offering Period. As soon as reasonably practicable thereafter, payroll deductions shall cease and the entire amount credited to the Participant’s Plan Account shall be refunded to him or her in cash, without interest. No partial withdrawals shall be permitted.
          (b)  Re-Enrollment After Withdrawal . A former Participant who has withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Section 4(c). Re-enrollment may be effective only at the commencement of an Offering Period.
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SECTION 7. CHANGE IN EMPLOYMENT STATUS.
          (a)  Termination of Employment . Termination of employment as an Eligible Employee for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 6(a). (A transfer from one Participating Company to another shall not be treated as a termination of employment.)
          (b)  Leave of Absence . For purposes of the Plan, employment shall not be deemed to terminate when the Participant goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. Employment, however, shall be deemed to terminate 90 days after the Participant goes on a leave, unless a contract or statute guarantees his or her right to return to work. Employment shall be deemed to terminate in any event when the approved leave ends, unless the Participant immediately returns to work.
          (c)  Death . In the event of the Participant’s death, the amount credited to his or her Plan Account shall be paid to a beneficiary designated by him or her for this purpose on the prescribed form or, if none, to the Participant’s estate. Such form shall be valid only if it was filed with the Company at the prescribed location before the Participant’s death.
SECTION 8. PLAN ACCOUNTS AND PURCHASE OF SHARES.
          (a)  Plan Accounts . The Company shall maintain a Plan Account on its books in the name of each Participant. Whenever an amount is deducted from the Participant’s Compensation under the Plan, such amount shall be credited to the Participant’s Plan Account. Amounts credited to Plan Accounts shall not be trust funds and may be commingled with the Company’s general assets and applied to general corporate purposes. No interest shall be credited to Plan Accounts.
          (b)  Purchase Price . The Purchase Price for each share of Stock purchased at the close of an Offering Period shall be the lower of:
          (i) 85% of the Fair Market Value of such share on the last trading day before the commencement of such Offering Period or, in the case of the first Offering Period under the Plan, 85% of the price at which one share of Stock is offered to the public in the IPO; or
          (ii) 85% of the Fair Market Value of such share on the last trading day in such Offering Period.
          (c)  Number of Shares Purchased . As of the last day of each Offering Period, each Participant shall be deemed to have elected to purchase the number of shares of Stock calculated in accordance with this Subsection (c), unless the Participant has previously elected to withdraw from the Plan in accordance with Section 6(a). The amount then in the Participant’s Plan Account shall be divided by the Purchase Price, and the number of shares that results shall be purchased from the Company with the funds in the Participant’s Plan Account. The foregoing notwithstanding, no Participant shall purchase more than 1,000 shares of Stock
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with respect to any Offering Period nor more than the amounts of Stock set forth in Sections 3(a) and 9(b). The Committee may determine with respect to all Participants that any fractional share, as calculated under this Subsection (c), shall be (i) rounded down to the next lower whole share or (ii) credited as a fractional share.
          (d)  Available Shares Insufficient . In the event that the aggregate number of shares that all Participants elect to purchase during an Offering Period exceeds the maximum number of shares remaining available for issuance under Section 3, then the number of shares to which each Participant is entitled shall be determined by multiplying the number of shares available for issuance by a fraction. The numerator of such fraction is the number of shares that such Participant has elected to purchase, and the denominator of such fraction is the number of shares that all Participants have elected to purchase.
          (e)  Issuance of Stock . The shares of Stock purchased by a Participant under the Plan may be registered in the name of such Participant, or jointly in the name of such Participant and his or her spouse as joint tenants with the right of survivorship or as community property (with or without the right of survivorship). The Committee may require that such shares must be held for the Participant’s benefit by a broker designated by the Committee until the expiration of the holding period described in section 423(a)(1) of the Code. (The preceding sentence shall apply whether or not the Participant is required to pay income tax in the United States.)
          (f)  Tax Withholding . To the extent required by applicable federal, state, local or foreign law, a Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise in connection with the Plan. The Company shall not be required to issue any shares of Stock under the Plan until such obligations are satisfied.
          (g)  Unused Cash Balances . An amount remaining in the Participant’s Plan Account that represents the Purchase Price for any fractional share shall be carried over in the Participant’s Plan Account to the next Offering Period. Any amount remaining in the Participant’s Plan Account that represents the Purchase Price for whole shares that could not be purchased by reason of Subsection (c) above, Section 3 or Section 9(b) shall be refunded to the Participant in cash, without interest.
          (h)  Stockholder Approval . Any other provision of the Plan notwithstanding, no shares of Stock shall be purchased under the Plan unless and until the Company’s stockholders have approved the adoption of the Plan.
SECTION 9. LIMITATIONS ON STOCK OWNERSHIP.
          (a)  Five Percent Limit . Any other provision of the Plan notwithstanding, no Participant shall be granted a right to purchase Stock under the Plan if such Participant, immediately after his or her election to purchase such Stock, would own stock possessing more than 5% of the total combined voting power or value of all classes of stock of the Company or any parent or Subsidiary of the Company. For purposes of this Subsection (a), the following rules shall apply:
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          (i) Ownership of stock shall be determined after applying the attribution rules of section 424(d) of the Code;
          (ii) Each Participant shall be deemed to own any stock that he or she has a right or option to purchase under this or any other plan; and
          (iii) Each Participant shall be deemed to have the right to purchase 1,000 shares of Stock under this Plan with respect to each Offering Period.
          (b)  Dollar Limit . Any other provision of the Plan notwithstanding, no Participant shall purchase Stock with a Fair Market Value in excess of the following limit:
          (i) In the case of Stock purchased during an Offering Period that commenced in the current calendar year, the limit shall be equal to (A) $25,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased in the current calendar year (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company).
          (ii) In the case of Stock purchased during an Offering Period that commenced in the immediately preceding calendar year, the limit shall be equal to (A) $50,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company) in the current calendar year and in the immediately preceding calendar year.
For purposes of this Subsection (b), the Fair Market Value of Stock shall be determined in each case as of the beginning of the Offering Period in which such Stock is purchased. Employee stock purchase plans not described in section 423 of the Code shall be disregarded. If a Participant is precluded by this Subsection (b) from purchasing additional Stock under the Plan, then his or her employee contributions shall automatically be discontinued and shall automatically resume at the beginning of the earliest Offering Period ending in the next calendar year (if he or she then is an Eligible Employee).
SECTION 10. RIGHTS NOT TRANSFERABLE.
          The rights of any Participant under the Plan, or any Participant’s interest in any Stock or moneys to which he or she may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or in any other manner other than by beneficiary designation or the laws of descent and distribution. If a Participant in any manner attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than by beneficiary designation or the laws of descent and distribution, then such act shall be treated as an election by the Participant to withdraw from the Plan under Section 6(a).
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SECTION 11. NO RIGHTS AS AN EMPLOYEE.
          Nothing in the Plan or in any right granted under the Plan shall confer upon the Participant any right to continue in the employ of a Participating Company for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Participating Companies or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her employment at any time and for any reason, with or without cause.
SECTION 12. NO RIGHTS AS A STOCKHOLDER.
          A Participant shall have no rights as a stockholder with respect to any shares of Stock that he or she may have a right to purchase under the Plan until such shares have been purchased on the last day of the applicable Offering Period.
SECTION 13. MANDATORY HOLDING PERIOD
          Any shares of Stock purchased under the Plan may not be sold until the date that is at least six (6) months following the date on which such shares were purchased.
SECTION 14. SECURITIES LAW REQUIREMENTS.
          Shares of Stock shall not be issued under the Plan unless the issuance and delivery of such shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded.
SECTION 15. AMENDMENT OR DISCONTINUANCE.
          (a)  General Rule . The Board shall have the right to amend, suspend or terminate the Plan at any time and without notice. Except as provided in Section 3, any increase in the aggregate number of shares of Stock that may be issued under the Plan shall be subject to the approval of the Company’s stockholders. In addition, any other amendment of the Plan shall be subject to the approval of the Company’s stockholders to the extent required by any applicable law or regulation. The Plan shall terminate automatically 20 years after its adoption by the Board, unless (a) the Plan is extended by the Board and (b) the extension is approved within 12 months by a vote of the stockholders of the Company.
          (b)  Impact on Purchase Price . This Subsection (b) shall apply in the event that (i) the Company’s stockholders during an Offering Period approve an increase in the number of shares of Stock that may be issued under Section 3 and (ii) the aggregate number of shares to be purchased at the close of such Offering Period exceeds the number of shares that remained available under Section 3 before such increase. In such event, the Purchase Price for each share of Stock purchased at the close of such Offering Period shall be the lower of:
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          (i) The higher of (A) 85% of the Fair Market Value of such share on the last trading day before the commencement of the applicable Offering Period or, in the case of the first Offering Period under the Plan, 85% of the price at which one share of Stock is offered to the public in the IPO or (B) 85% of the Fair Market Value of such share on the last trading day before the date when the Company’s stockholders approve such increase; or
          (ii) 85% of the Fair Market Value of such share on the last trading day in such Offering Period.
SECTION 16. DEFINITIONS.
          (a) “ Board ” means the Board of Directors of the Company, as constituted from time to time.
          (b) “ Code ” means the Internal Revenue Code of 1986, as amended.
          (c) “ Committee ” means a committee of the Board, as described in Section 2.
          (d) “ Company ” means Synacor, Inc., a Delaware corporation.
          (e) “ Compensation ” means (i) the total compensation paid in cash to a Participant by a Participating Company, including salaries, wages, bonuses, incentive compensation, commissions, overtime pay and shift premiums, plus (ii) any pre-tax contributions made by the Participant under section 401(k) or 125 of the Code. “Compensation” shall exclude all non-cash items, moving or relocation allowances, cost-of-living equalization payments, car allowances, tuition reimbursements, imputed income attributable to cars or life insurance, severance pay, fringe benefits, contributions or benefits received under employee benefit plans, income attributable to the exercise of stock options, and similar items. The Committee shall determine whether a particular item is included in Compensation.
          (f) “ Corporate Reorganization ” means:
          (i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization; or
          (ii) The sale, transfer or other disposition of all or substantially all of the Company’s assets or the complete liquidation or dissolution of the Company.
          (g) “ Eligible Employee ” means any employee of a Participating Company who meets both of the following requirements:
          (i) His or her customary employment is for more than five months per calendar year and for more than 20 hours per week; and
          (ii) He or she has been an employee of a Participating Company for not less than one month, or such other period not in excess of 24
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months as the Committee may determine before the beginning of the applicable Offering Period.
The foregoing notwithstanding, an individual shall not be considered an Eligible Employee if his or her participation in the Plan is prohibited by the law of any country that has jurisdiction over him or her or if he or she is subject to a collective bargaining agreement that does not provide for participation in the Plan.
          (h) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
          (i) “ Fair Market Value ” means the price at which Stock was last sold in the principal U.S. market for Stock on the applicable date or, if the applicable date was not a trading day, on the last trading day prior to the applicable date. If Stock is no longer traded on a public U.S. securities market, the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate. The Committee’s determination shall be conclusive and binding on all persons.
          (j) “ IPO ” means the Company’s initial offering of Stock to the public.
          (k) “ IPO Date ” means the effective date of the registration statement filed by the Company with the Securities and Exchange Commission for its initial offering of Stock to the public.
          (l) “ Offering Period ” means a period with respect to which the right to purchase Stock may be granted under the Plan, as determined pursuant to Section 4(a).
          (m) “ Participant ” means an Eligible Employee who participates in the Plan, as provided in Section 4.
          (n) “ Participating Company ” means (i) the Company and (ii) each present or future Subsidiary designated by the Committee as a Participating Company.
          (o) “ Plan ” means this Synacor, Inc. 2007 Employee Stock Purchase Plan, as it may be amended from time to time.
          (p) “ Plan Account ” means the account established for each Participant pursuant to Section 8(a).
          (q) “ Purchase Price ” means the price at which Participants may purchase Stock under the Plan, as determined pursuant to Section 8(b).
          (r) “ Stock ” means the Common Stock of the Company.
          (s) “ Subsidiary ” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
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SECTION 17. EXECUTION.
          To record the adoption of the Plan by the Board on September 17, 2007, the Company has caused its duly authorized officer to execute this document in the name of the Company.
 	 	 	 	 	
 	 	Synacor, Inc.	
 	 	 	 	 	
 	 	By:	 	/s/ Ron Frankel	
 	 	 	 	 	
 	 	Title:	 	Chief Executive Officer	
 	 	 	 	 	
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