EX-10.16.1



 





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 30th., 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.



			
	 	 	 
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     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



			
	 	 	 
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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



			
	 	 	 
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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.





			
	 	 	 
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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.



     [*]




	 	[*]	 	 
	 
	 	[*]	 	 
	 
	 	[*]	 	 





			
	 	 	 
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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. 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:



			
	 	 	 
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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.





 









 





(iii) any third party claims relating to the matters covered by the foregoing breaches or failures;
(iv) any injuries to persons or damage to property caused by the negligent, willful or intentional
acts or omissions of Synacor, its agents or employees; and (v) any third party claims relating to
the Services.




     8.4 Client Indemnifications. Client shall indemnify, defend and hold harmless Synacor from and
against any and all Claims suffered or incurred by Synacor, arising out of or resulting in any
manner from: (i) Client’s breach of any of its obligations under this Agreement, or its
representations and warranties set forth herein; (ii) the failure of any of the representations or
warranties made by Client herein to be true; (iii) any third party claims relating to the matters
covered by the foregoing breaches or failures; and/or (iv) any third party claims relating to
Client Materials.



     8.5 Claims. In case any Claim is brought by a third party for which indemnification is or may
be made pursuant to this Agreement, the indemnified Party shall provide prompt written notice
thereof to the other Party; provided, however, that the failure of the indemnified Party to comply
with the foregoing notification provision shall not relieve the indemnifying Party of its
indemnification obligations hereunder, except to the extent the indemnifying Party is actually and
materially prejudiced thereby. Where obligated to indemnify such Claim, the indemnifying Party
shall, upon the demand and at the option of the indemnified Party, assume the defense thereof (at
the expense of the indemnifying Party) within thirty (30) days or at least ten (10) days prior to
the time a response is due in such case, whichever occurs first. The Parties shall cooperate
reasonably with each other in the defense of any Claim, including making available (under seal if
desired and if allowed) all records reasonably necessary to the defense of such Claim, and the
indemnified Party shall have the right to join and participate actively in the indemnifying Party’s
defense of the Claim. Each Party shall be entitled to prior notice of any settlement of any Claim
to be entered into by the other Party, and any such settlement shall be subject to the reasonable
approval to the extent such Party’s rights would be directly and materially impaired.



     Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement
involving a portion of any portion of the Software and/or Services provided by Synacor: (i) upon
Client’s request and at Synacor’s expense, Synacor will use its best efforts to procure the right
or license, on commercially reasonable license terms, for Client to continue to use and otherwise
exploit in accordance with the terms hereof such portion of the Software and/or Services at no
additional cost or expense to Client other than the fees set forth herein; or (ii) at Synacor’s
sole discretion, but upon as much prior written notice to Client as is reasonably practicable,
Synacor may modify or alter (to the extent that Synacor has rights to so modify or alter), or
delete any such portion of the Software and/or Services, as the case may be, so as to make such
portion non-infringing while maintaining substantially comparable functionalities and capabilities
of such parts of the Software and/or Services that are material to Client’s then-current or
demonstrably anticipated use hereunder. If options (i) and (ii) are not achievable as to any such
portion: (1) Client may terminate the rights and licenses granted hereunder, in its sole
discretion, as to such infringing portion, or this Agreement without liability if loss of such
portion materially and adversely affects the Services or functionality Client expects hereunder; or
(2) to the extent Synacor used commercially reasonable efforts to obtain a license or modify the
Software and/or Services as set forth in subsections (i) or (ii), and Synacor is reasonably exposed
to liability from Client’s continued use of such portion of the technology and/or services, Synacor
may, in its discretion, terminate the rights and licenses granted hereunder with respect to such
portion. If, pursuant to the immediately foregoing sentence, Client or Synacor terminate the rights
and licenses granted hereunder as to any portion of any software and/or Services provided by
Synacor and Client does not elect to terminate this Agreement, if applicable, the Parties shall
thereafter negotiate in good faith for a period of not less than thirty (30) days with respect to
reduced fees under this Agreement.



9. LIMITATIONS OF LIABILITY AND DISCLAIMERS.



ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING EXCEPT WITH RESPECT TO SYNACOR’S INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 8.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS,
AFFILIATES, CLIENTS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL SYNACOR’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT
OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER EXCEED THE GREATER OF (i) $5,000,000.00 OR (ii) THE AMOUNT SYNACOR HAS RECEIVED FROM
CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT DURING THE TERM HEREOF.






			
	 	 	 
	MASTER SERVICES AGREEMENT
	 	 	7






 










 





EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY, SERVICES ARE PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYNACOR
DOES NOT WARRANT THAT THE SERVICES WILL MEET THE REQUIREMENTS OF CLIENT (EXCEPT TO THE EXTENT
SPECIFICALLY SET FORTH IN THIS AGREEMENT) OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, SYNACOR
DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.



EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SYNACOR MAKES NO WARRANTY WITH RESPECT TO ANY
SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SYNACOR DOES NOT WARRANT
OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE CONTENTS OF ANY
CONTENT OR THE RESULTS TO BE OBTAINED FROM THEIR USE. SYNACOR SHALL NOT BE LIABLE TO THIRD PARTIES
FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES,
EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.



EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 ABOVE, CLIENT MAKES NO WARRANTY WITH RESPECT TO ANY
CLIENT MATERIALS AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT
SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES.



10. PUBLIC RELATIONS. Except as it relates to Client’s marketing of portal and related matters to
Users and as otherwise permitted by the last sentence of Section 5.2 herein, neither Party will
issue any press release, nor otherwise disclose any information concerning this Agreement without
the prior written consent of the other. The Parties agree that a joint press release regarding the
establishment of their relationship is appropriate and that each will dedicate appropriate
resources to such effort.




11. RECORDS AND AUDIT.




     11.1 Throughout the Term and for a period of one (1) year after the expiration or earlier
termination of this Agreement, each of the Parties shall maintain books and records regarding the
Services, and other matters relating to this Agreement, including, without limitation, server logs,
and customer usage logs, in accordance with generally accepted accounting principles. Each Party
shall have the right to audit such books and records of the other party solely and directly
relating to this Agreement and all amendments, addendums, attachments, schedules, riders and/or
exhibits attached hereto exhibits, upon reasonable notice and at its expense, not more frequently
than once per consecutive twelve (12)-month period during the Term and for a period of one (1) year
thereafter and to take extracts from and/or make copies of such records. Each party shall maintain
at its principal place of business during the Term and for a period of one (1) year thereafter all
books, records, accounts, and technical materials regarding its activities in connection herewith
sufficient to determine and confirm all amounts payable to the other Party and all compliance with
all other material obligations pursuant to this Agreement. Upon a Party’s written request (to be
provided at least ten (10) business days prior to the date of the audit), the other Party will
permit one (1) or more representatives of an auditor or agent of the requesting Party’s choice to
examine and audit, during normal business hours, such books, records, accounts, documentation and
materials, and take extracts therefrom or make copies thereof for the purpose of verifying the
correctness of payments made pursuant hereto and/or compliance with the other material obligations
hereunder; provided that, the auditing Party shall first obtain a written agreement from any such
auditor or agent that such auditor or agent shall be bound by the confidentiality obligations set
forth in Section 5 herein and the auditing Party shall in all events be responsible to the audited
Party for any action or inaction of such auditor or agent that would violate Section 5 of this
Agreement. Unless otherwise agreed by the Parties in writing, such examination shall be in material
accordance with generally accepted accounting principles. The audited Party shall pay any unpaid,
non-disputed delinquent amounts within thirty (30) days of the other Party’s request. To the extent
such examination discloses an underpayment of the greater of 5% of the aggregate amount
paid or payable to the other party during the period which is the subject of the audit or
$15,000, the audited Party shall fully reimburse the other Party, promptly upon demand, for the
reasonable fees and disbursements due the auditor for such audit; provided that, such prompt
payment shall not be in lieu of any other remedies or rights available to such other Party
hereunder. In all other events,



			
	 	 	 
	MASTER SERVICES AGREEMENT
	 	8






 









 





all fees and expenses of the auditing Party’s auditor or agent under this Section shall be paid by
the auditing Party. If an audit reveals an overpayment, the auditing Party shall promptly notify
the other and shall pay the amount of any such overpayment to the other Party within thirty (30)
days thereafter.




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



			
	 	 	 
	MASTER SERVICES AGREEMENT
	 	9






 









 





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




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SYNACOR, INC.	 	 	 	Charter Communications Holding Company, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Jeff Jay	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	RONALD FRANKEL
	 	 	 	 	 	Name:
	 	Jeff Jay	 	 
	 

	 	Title:
	 	CEO
	 	 	 	 	 	Title:
	 	V P Product Development	 	 
	Date:	 	9-30-04	 	 	 	Date:	 	9/29/04	 	 






			
	 	 	 
	MASTER SERVICES AGREEMENT
	 	10







 









 





SCHEDULE A

TO

SYNACOR MASTER SERVICE AGREEMENT



PRODUCT & PRICING SCHEDULE




     This Schedule A forms a part of, and is governed by, the Synacor Master Services Agreement
dated September 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 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 (5th) business day following the occurrence of such event. Both
such assessments shall include, but not be limited to, outage time/impairment duration,
sequence of events, root cause, escalation path, issues identified, remedies to issues, and
action plan. The “post mortem” outage/impairment assessment shall be subject to Client’s
acceptance or rejection (and grounds therefor) within five (5) business days of receipt.
Synacor must submit final “post mortem” assessment in the event Client rejects the initial
assessment within ten (10) days of such rejection.



     System Availability SLA Credits:





The SLA credits set forth below will be applied automatically by Synacor and shall be required
for each instance of Synacor’s failure to meet the required System Availability. In the event
that Synacor fails to meet the provisions of this SLA cumulatively during a one (1) month
period during the Term, then the following credits will apply against the aggregate Fees
during the month in which such failure occurs:




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





	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	2






 









 







	 	i.	 	Cumulative Mean Time to Repair:






	 	[*]	 	 






	 	b.	 	[*]





Performance



The Performance (“Performance”) of the Client Branded Portal is defined as the System response time
for each Portal page as agreed upon by the Parties prior to the launch of the pertinent Portal page
(each, a “Response Time”), measured via HTTP requests, or similar requests via other protocol used
on the Client Branded Portal by Client or Users, performed by Client servers directly from any
Client IP backbone location. Performance of Response Times will be tested against a steady-state
Portal page of similar type and size to the pertinent Portal page, which steady-state Portal page
will reside on the same Host (as defined in the Synacor Specifications) as does the Client Branded
Portal. Synacor’s responsibility for Performance includes, but is not limited to, maintenance of
web server response, Authentication performance, routers, switches, Internet transit or Peering
connections (Network hardware, cross-connects, or circuits that are Synacor’s responsibility), or
any other device in Synacor’s direct control, at no less than [*]% peak utilization. If Synacor is
unable to perform in accordance with any pertinent Response Time, then Synacor will be responsible
for the following remedy:





Synacor will correct the identified performance failures as soon as is possible using and
pursuing to completion commercially reasonable efforts, and, in no event, later than fifteen
(15) calendar days after receipt of written notice from Client describing in reasonable detail
the performance failure of the Client Branded Portal, Synacor shall resubmit the Performance
changes, in detail, to Client for testing. Client shall conduct testing to verify that the
Synacor corrective measures are successful during a testing period (“Test Period”) of no more
than five (5) business days in length with respect to the specified failed criteria. Within
five (5) business days after the expiration of the Test Period, Client will provide Synacor
with a written response accepting the Performance or rejecting the Performance. Synacor shall
have an additional fifteen (15) calendar days from the date Client submits such
response to correct the identified Performance failures. Client shall conduct final
Performance correction testing for a period of not more than five (5) business days (the
“Final Test Period”) after the expiration of such fifteen (15) day period with respect to the
specified failed criteria. Within five (5) business days after the expiration of the Final
Test Period, Client will provide Synacor with (A) written response accepting the Performance,
or (B) written rejection if Client determines in good faith that the failed criteria
identified in the First Rejection Notice have still not been corrected (a “Final Rejection
Notice”). In the event the Client does not deliver a Final Rejection Notice as provided
herein, the Performance shall be conclusively deemed accepted by the Client. If Client
provides a Final Rejection Notice and the President of Synacor and the responsible Officer of
Client do not otherwise agree to pursue further Performance testing/remedies of the System,
the Final Termination Notice shall constitute a notice of termination of the Agreement without
further liability of either Party.






	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	3







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






 










 






V. Data Integrity





Synacor’s
Services platform shall meet or exceed a minimum of [*]% data integrity, including
without limitation User data required for login, as measured over each calendar month of the
term of the Agreement. In addition, Synacor will maintain the highest level of data security
and confidentiality as is commercially reasonable in the industry.




System Intrusion or Denial of Service “DOS” Attack In the event of (i) a System
intrusion by a “cracker,” “hacker”, or any other third party, or (ii) DOS attacks, such
intrusion or attacks shall be deemed a Priority One event and the notification protocol
applicable to a Priority One event will be followed. Synacor must notify Client of such
problem and implement a solution therefor. Notification by Synacor will occur immediately upon
identification of intrusion. If extensive damage occurs, including, but not limited to, damage
to Client data, user data, Systems, due to the failure of Synacor to follow the Security
Policy set forth as Schedule D to the Agreement, then this SLA will apply.



VI. Scheduled Maintenance Windows





Synacor has reserved a two (2)-hour window from 3:00 a.m., EST, to 5:00 a.m., EST, every
Sunday evening through Monday morning for weekly maintenance, should the need for such
maintenance arise (“Scheduled Maintenance”). In the event that additional maintenance will be
needed outside of this Scheduled Maintenance window, Synacor will provide Client no less than
three (3) business days prior written notice of the time during which Synacor intends to
perform such additional maintenance via Client’s change control organization/process (“Change
Management”). Such maintenance that occurs outside of the Scheduled Maintenance window and
grace period described above, for which three (3) days advance written notice has been given
that involves any Service outage or impairment, shall count against Service Availability at
one half (1/2) the credit rate set forth herein.




If it is determined during the Scheduled Maintenance window that the Scheduled Maintenance
will run over the two (2) hour window, Client will be notified immediately and receive updates
every sixty (60) minutes or less until the maintenance is complete. During these Scheduled
Maintenance periods, the System and Services may be unavailable to Client and Users. If the
Scheduled Maintenance period exceeds the two (2) hour window and an additional one (1) hour
grace period, for a total of three (3) hours in any given week, or a cumulative of eight (8)
hours in any given month in total duration, then the System Availability SLA will apply.
Scheduled Maintenance windows that do not exceed set limits (i.e., three (3) hours in any
given week, or a cumulative of eight (8) hours in any given calendar month) are not counted
against System Availability percentages.



VII. Emergency Maintenance Notification





In the event that emergency maintenance (defined as any maintenance that exists that is not
within the Scheduled Maintenance window described above, or as to which three (3) business
days’ prior notification is not given) is required, during which time the System and Services
will be unavailable to Client and Users, Synacor will notify the Client’s NOC as promptly as
practicable and, if possible, prior to the repair window, so as not to prolong or negatively
effect the Services, the system, or otherwise Service Availability. Progress updates shall be
provided to the Client’s NOC every sixty (60) minutes or less until the maintenance is
complete. Emergency maintenance windows are counted against System Availability percentages.




The contact number to be used for verbal communications with the Client’s NOC is
1-866-248-7662 (1-866-CHTRNOC)



VIII. Incident Management



Technical Support. Synacor will provide Client Tier 2 e-mail and the appropriate of telephone,
e-mail, and/or other support to Client’s designated escalation specialists. These specialists will
be trained by





	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	4






 


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





 









 





Synacor to offer support to Client’s First-Level Support staff. Synacor shall make its support
center standard hours available twenty-four (24) hours per day, three hundred, sixty-five (365)
days per year throughout the Term.




          (a) Escalation and Tracking Process. Synacor will provide and track trouble-call escalations
from Client’s Technical Support Group. Synacor Customer Service will utilize two (2) escalation
methods from Client:





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






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






	 	(ii)	 	Phone: In the event that a support issue requires Priority 1 treatment
(e.g., Priority 1, Portal Unavailability, or Synacor/Client Unavailability), or is
otherwise better addressed by a telephone call rather than e-mail, Client may
by-pass Escalation Level 1 (as defined below) support and apply Escalation Level 2
support and initiate a call directly to a Synacor support specialist. Such calls
will be placed solely from the Client escalation group person(s) who is (/are)
responsible for initiating Level 2 support requests. Following each such call, a
Client escalation Level 2 support person will send an e-mail confirming all the
technical details regarding the issue. Synacor will follow the same process of
tracking such issues via the e-mail tracking system.





          (b) The escalation process starts with the troubleshooting, diagnosis, and resolution
processes. As Client’s service team receives alerts they will be prioritized by Synacor based on
the gravity/urgency of the underlying problem and assigned to a Synacor support technician. The
Synacor support technician will diagnose and fix the problem as soon as possible. Should the
problem be too severe for simple solution by Client, the problem incident shall be escalated to the
Synacor development team as soon as is possible.





	 	(i)	 	Escalation Process Example






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






	 	(ii)	 	Synacor Escalation Response Times





	 	 	 
	Escalation Levels	 	Escalation Response Time
	Level 1 — Email
Technical Support Agent

	 	Synacor Technical Support Agents available 24 hours
per day, 7 days per week.
	Level 2 — Voice
Support Specialist

	 	If Level 1 issue is not answered within 4 hours from
Level 1, Synacor automatic escalation to Level 2.






	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	5






 









 






	 	 	 
	Level 3

Support Management

	 	If Level 2 issue is not answered within 4 hours
from Level 2, Synacor automatic escalation to Level 3.
	Level 4

Account Manager

	 	If Level 3 issue not answered within 1 hour from
Level 3, automatic Synacor escalation to Level 4.
	Level 5

Product Management

	 	If Level 4 issue not answered within 30 minutes
from Level 4, Synacor automatic escalation to Level 5.
	Level 6

VP Engineering

	 	If Level 5 issue not answered within 30 minutes
from Level 5, Synacor automatic escalation to Level 6.
	Level 7

CEO

	 	If Level 6 issue not answered within 30 minutes
from Level 6, Synacor automatic escalation to Level 7.







Synacor will maintain a table with contact information for the Level 1 — Level 7
contacts and will be responsible for keeping it current. The contacts and response times
will be distributed to Client and/or provided in Client’s administration information
section located at admin.Synacor.com.




	 	a.	 	Priority 1 or Portal Unavailability Issues:






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






	 	b.	 	Service Level






	 	•	 	Customer service — general product information related to Product
	 
	 	•	 	Hours of operations: 24 x 7, 365 days per year
	 
	 	•	 	Service language: English
	 
	 	•	 	Issue reporting methods: electronic mail in English
	 
	 	•	 	Technical support — assistance with technical issues related to Product





          (c) Incident Management



Synacor and the Client will exercise reasonable discretion and good faith to classify reported
problems based upon the specified categories below. In case of disagreement about how to classify a
specific problem, such problem shall be deemed to be classified at the more severe priority level
recommended by one of the Parties.



The following priority allocations will apply:







Priority 1 — These cases involve a Synacor system condition where, with respect to authentication,
[*] or more of Users utilizing Unified Login are affected or likely to be affected in
their ability to access services as a result of an outage or, with respect to access to the Client
Branded Portal, [*] or more Users are affected or likely to be affected in
their ability to access the Client Branded Portal, regardless of the status of Unified Login.



Time
Frame — Response to Client within fifteen (15) minutes of identification or receipt of
notification.



Follow-up — Provide updates to Client every sixty (60) minutes until the problem is resolved.









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







	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	6






 





 


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









 









Time Frame — Response to Client within sixty (60) minutes of identification or receipt of
notification.



Follow-up — Provide updates to Client every sixty (60) minutes until problem is resolved.










Priority 3 — These cases involve problems other than those meeting the specifications of Priority 1
or Priority 2.



Time Frame — Response to Client within twenty-four (24) hours of identification or receipt of
notification.



Follow-up — Provide updates to Client as soon as practical, but no less than weekly. These problems
shall be resolved within sixty (60) days, unless otherwise agreed by parties, including the
possibility of an agreement not take any further action to resolve.







          Customer Info Required for Synacor Support:





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





          Escalation Information:





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






FAQ Documentation. Synacor will build a FAQ (list of frequently asked questions) prior to the
Client Branded Portal launch and shall update such FAQ as frequently as necessary for
accurate, up-to-date coverage of issues during the term of the Agreement, which pertain to the
Client Branded Portal that Client can review and modify at Client’s choosing. The FAQ page
will contain both Client Branded Portal and Content questions that consumers have asked in the
past.



IX. Product Revision Management



Synacor shall notify Client in writing at least five (5) business days in advance of any minor
product enhancements that do not substantially affect the Client Branded Portal.



Should a change be required in the hosting environment (whether hardware, software or network)
Synacor is responsible for opening and shall submit a change request at least forty-eight (48)
hours in advance of initiating such change and must receive approval from the Client’s NOC
twenty-four (24) hours in advance of initiating any such change.



For major modifications to the Client Branded Portal, Client and Synacor personnel must first agree
(subject to the respective reasonable discretion of both) on the appropriate launch date therefor,
which date will be no less than ten (10) and no more than thirty (30) days after Client’s
acceptance of such major modification.




X. Disaster Recovery




	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	7






 









 





The following disaster recovery plan is specific to Client and must be implemented/undertaken by
Synacor as described herein.




Overview:



Synacor must back up all data, software, and configurations every twenty-four (24) hours to an
offsite location at least one hundred (100) miles from Synacor’s primary data center/the location
at which the Disaster (defined below) is expected to occur, is occurring or has occurred such that
should a Disaster occur, such data, software, and configurations can be installed on hardware at a
new data center. The new data center will initially be a third-party managed hosting provider.




Possible Disaster Recovery Scenarios



Synacor’s Disaster Recovery Plan shall take into account the partial or full destruction of
Synacor’s data center. For purposes of the Agreement, a “Disaster” shall be any event in which
there is full or partial destruction of Synacor’s data center, underlying building or other
significant facilities affecting Syncacor’s data center (e.g., events caused by or resulting from
any variety of destructive events including, but not limited to, fire, earthquake, the
unavailability of the Synacor’s building, data center, or otherwise location in which data is
otherwise located or dependent or for any other reason).



The building housing Synacor’s data center is also the primary location where many of the Tier 1
providers bring their networks into Buffalo, New York. If an adverse event giving rise to the
likelihood of a Disaster that might or does impact/affect such building in whole or in part,
Synacor shall activate the disaster recovery plan.




Recovery Time Performance Obligations





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






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






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






	 	A.	 	Synacor shall construct a cluster of servers in
order to mimic the original configuration
	 
	 	B.	 	Synacor shall copy all data to and secure such at
the disaster recovery location
	 
	 	C.	 	Synacor shall install all software such that it
is operational/“up and running” at the disaster recovery location
	 
	 	D.	 	Synacor shall ensure that the Services are
operating in accordance with the parameters required under this
Agreement, if possible.





          Roles and Responsibilities





1. Synacor will be responsible for ensuring and shall protect the integrity of the daily
data backups, as well as ensuring that the disaster contingency site is available,
capable of handling data and system relocation and re-configuration, and otherwise kept
up-to-date. Such measures will include:




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





	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	8






 









 







	 	•	 	Updating the Charter static page at the disaster recovery site with
up-to-date content no less than once an hour






2. Synacor will test the offsite cluster no less than once every fourteen (14) days in
order to verify that it is ready to accept connections.




3. Synacor will test the Disaster Recovery Plan no less than once annually to insure
capability to respond within the above timeframes in the event of a Disaster at the
Synacor data center. The Disaster Recovery test can be conducted at a location
determined by Synacor and could be within one hundred (100) miles from Synacor’s primary
Data Center. The intention of the test will be to verify Synacor’s ability to implement
the Disaster Recovery process, but the Disaster Recovery test will likely utilize up to
three servers and therefore will not be set up to appropriately measure load or response
times.




4. Synacor will be responsible for setting up all servers and networks and restoring
services at the Disaster recovery location. Synacor will provide all necessary manpower
to return services as defined herein.




5. Synacor will be responsible for the DNS modifications under Synacor’s control;
however, Charter also has access and authority to make its own DNS modifications in the
event it elects to do so, provided that doing so would reduce downtime, with no harmful
effect to the Disaster recovery process.



XI. Software Updates



Synacor agrees to keep critical software updated to a version supported by the vendor, including
operating system software and application software such as PHP and MySQL.




XI. Application and Design Review



Synacor and Client will meet at least once annually to review the application and design overview
for the Charter Branded Portal, The initial meeting will take place within the first one hundred
twenty (120) days of commercial launch of the Charter Branded Portal.




	 	 	 	 	 
	SERVICE LEVEL AGREEMENT — SCHEDULE B

	 	 	 	9







 









 







SCHEDULE C

TO

SYNACOR MASTER SERVICE AGREEMENT




SYNACOR SPECIFICATIONS




     This Schedule C forms a part of, and is governed by, the Synacor Master Services Agreement
dated September 30th., 2004, by and between Synacor, Inc. and Charter Communications
Holding Company, LLC, including any schedules, attachments, or exhibits attached thereto
(collectively, the “Agreement.”) Any capitalized terms used in this Schedule C and not defined
herein shall have the meanings ascribed to such terms in the Agreement. This Schedule C outlines
Synacor’s technology specifications, including the customization elements relating to the graphical
presentation, components, and other design elements of Portelus, Synacor’s Portal, and the Client
Branded Portal. In addition to the options presented here, custom development is possible.



INTERFACE



The standard Portelus implementation integrates basic and premium content into one user experience.
The user Interface will be branded to Client, below is an example.




Figure 1: Example of a Charter Branded Portal










			
	 	 	 
	Synacor Specifications — Schedule C
	 	1






 









 





Synacor will participate in the development of all user interface implementations for the initial
launch. The interior layout of the portal pages and each hosted premium service page shall be
maintained by Synacor, and subject to Client’s reasonable discretion, Synacor may change such pages
in order to add more features to the product.




Localization



At Client’s option, Synacor will work with the Client technology team to provide localized
components. Such local component will be in such a location on the Charter Branded Portal page and
have that capability necessary to show configurable content based on a user data field such as
region identifier, which Client can provide to Synacor when the user is created.




Colorset



Much of the look and feel of the Charter Branded Portal is affected by the colorset, which controls
the colors and basic shapes used in the following areas of the portal:





	 	•	 	The Welcome Bar (background and font)
	 
	 	•	 	The Channel Bar (button colors, highlights, background, and font)
	 
	 	•	 	The Search bar (background and images)
	 
	 	•	 	The Dynamic Content Component (background and controls)
	 
	 	•	 	The Customization dropdown and Wizard (background and graphics)
	 
	 	•	 	Component headers (background, shading, and corner shapes)




The colorset shall not modify the design of secondary pages (such as the Sports page or premium
services) beyond the obvious changes in the header and framing. As part of its obligations under
the Agreement, Synacor will implement the colorset of Client’s choosing for the areas described
above.



Synacor will provide Client with the right to implement design change, including colorset
modifications, header and footer changes and design consultation, at no charge once each year.
Additional design changes (those desired or requested less than twelve [12] months after the last
design change) will be available to Client as an additional professional service at a rate to be
agreed upon by the parties.




Header and Footer



The header and footer pair shall control the display of the page above and below the internal
content area. Client shall have the right to customize such header and footer pair, and Synacor
shall make such header and footer pair accessible for real-time editing and content scheduling by
Client through Synacor’s web-based content publishing tools, which will enable Client chosen
personnel to create or publish content on to the Charter Branded Portal, including the header and
footer sections. (See below Content Publishing.) For example, Client can schedule a banner ad in
the header to coincide with holidays or promotions.



Such customization capability shall include simple tasks such as adding a logo, as well as more
complicated functions such as adding links, scripting, and design elements. The header typically
contains a logo and other branding, while the footer usually has a copyright statement and links to
site-related content (such as a privacy policy). There shall not be any maximum or minimum height
for the header or footer areas; however, Synacor recommends that much of the content be displayed
above the fold, such that the header area remains under 100 pixels high.



Synacor will work with Client to develop channel navigation to Client’s corporate links within the
header that resembles the dropdown menu located at the Charter.com web site. Synacor will also
include links to Charter.com/security according to Client’s specifications.



The header (see Figure 2) shall be bounded by thin lines, which are part of the portal template’s
colorset. In the Figure 1 example, these lines are blue. The width of the header must be exactly
764 pixels, which is the size of
the bounding table cell. By default, the HTML is shown on top of a white background. To use a
different color background, it is necessary to create a table with width=764, cellpadding=0 and
cellspacing=0.




			
	 	 	 
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Figure 2: The Header



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









Figure 3: The Footer




The Welcome Bar



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



Synacor will provide an editable HTML area on the right side of the Welcome Bar for Client to enter
customized links.









Figure 4: The Welcome Bar




The Channel Bar



Figure 5 shows a sample Channel Bar. The Channel Bar will primarily be used to navigate between
portal pages hosted by Synacor. The colors used in the Channel Bar vary by colorset choice.



The Channel Bar is customizable by Client to some extent. Channels can be removed or added, with
the following caveats:





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










Figure 5: The Channel Bar




The Dynamic Content Component



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




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









Figure 6. Three different examples of DCC panes.




HTML Components



The portal’s start page shall consist of a set of “components” decided by Charter personnel from
all of the components Synacor has at that given time and any content components that Charter
develops. In addition to these components, Client shall be able to place its own HTML on the start
page. This HTML is pulled from Synacor’s database and will be easy to edit, schedule, and publish
using Synacor’s on-line Provisioning Platform.



The HTML Components may either look and act exactly like regular components (bearing up/down/close
buttons and appearing in the customization dropdowns) or they may be static HTML that are always
shown on the page and cannot be removed by the user. Client will be given the ability to use these
components for off-site linking, advertisements, important news, or other HTML content.



With respect to designing HTML Components, each column of the Charter Branded Portal will have a
different width, and the allowed width of Client HTML will vary depending on the column as well as
whether the HTML will be surrounded by the normal component borders and header. Please consult the
following table for width guidelines:




	 	 	 	 	 	 	 
	 	 	Left Column	 	Middle Column	 	Right Column
	Bounded Content



	 	178 pixels
	 	300 pixels
	 	231 pixels
	Non-bounded



	 	190 pixels
	 	312 pixels
	 	243 pixels






			
	 	 	 
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LAYOUT



Each column of the Charter Branded Portal will contain a number of Synacor’s standard components.
Synacor typically recommends component placement based on its experience with usage patterns for
the specific purpose of the portal. Synacor will work with Client to design an appropriate
component layout.



The components in the default view, as well as those available in the dropdowns, shall be easy to
customize for each portal. In addition at Client’s request, Synacor can set up default values for
component parameters. For example, the weather component can always default to a specific zip code,
the GameBlast component can feature a specific game, and the news components can show entertainment
news instead of sports news.



Each component, including standard Synacor components as well as the HTML Components described
above shall at a minimum provide Client with the following customizable default options:





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






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






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






	 	•	 	Logged-in users — enables Client to display content only to users that are
logged into the Charter Branded Portal.
	 
	 	•	 	Logged-out users — enables Client to display content only to users that
are logged into the Charter Branded Portal
	 
	 	•	 	Other specific identified classification or groups of Users (e.g., Users in
a specific geographic location, etc.)
	 
	 	•	 	All Users





USER PERSONALIZATION



Synacor’s technology shall be capable of storing database registration and preferences based on the
User’s individual username. Users will have the flexibility/capability to personalize their home
page by adding or deleting content components to the left, middle or right hand columns. Users will
be given the ability to select a dropdown from the Charter Branded Portal, use “move” arrows on the
component or select a customization link to a layout wizard environment.



Users will be given the ability to personalize their portal experience in the following ways:





	 	•	 	Use of the customization page enabling the User to see and select from all available
components on one screen, as they might elect to create their own personalized portal.
This customization page will also be set up to enable the User to edit the layout of the
portal.
	 
	 	•	 	Ability to access easy-to-use dropdown menus for each column, which list all available
components From which the User shall have the ability to add components to his
personalized portal with just one click.
	 
	 	•	 	The ability to relocate/move up/down components on the homepage, as well as deleted
with a simple click on the ‘x’.
	 
	 	•	 	The ability to personalize their weather and local movie listings by typing in their
Zip Codes
	 
	 	•	 	The ability to edit the Photo News component to display only the three (3) categories
of news the User most wants to read about (e.g., health, entertainment, and more)





CONTENT PUBLISHING



Client will have the flexibility/ability to publish content to the Charter Branded Portal within
the specific content components that Client defines by communication to it Synacor account manager
prior to or after the commercial launch of the Charter Branded Portal. The content publishing tools
shall be available to Client through a web-based administrative layer and shall enable Client
personnel to select from three (3) methods of publishing; (i) inserting an




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



Synacor’s Content Publishing Tools shall enable:





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










Figure 7: Selecting a Content Component




			
	 	 	 
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Figure 8: Edit, Delete or Preview a Content Component









Figure 9: Set # of Days Component should Display & Content Format: HTML or a preset Template




DATA CENTER & ARCHITECTURE




Synacor’s Data Center



Synacor’s
primary Data Center shall be located within the Main Place Tower, Buffalo, NY




			
	 	 	 
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Architecture Overview




[*]


UNIFIED REGISTRATION & LOGIN



[*]




			
	 	 	 
	Synacor
Specifications — Schedule C
	 	 	8







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






 










 






[*]



CHARTER CONTEST



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




			
	 	 	 
	Synacor Specifications — Schedule C
	 	9









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







 










 





SCHEDULE D

TO

SYNACOR MASTER SERVICE AGREEMENT




Synacor System Security Policy (“Security”)




     This Schedule D forms a part of, and is governed by, the Synacor Master Services Agreement
dated September 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 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).



			
	 	 	 
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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
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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”).




			
	 	 	 
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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






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




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






			
	 	 	 
	SYNACOR SYSTEM SECURITY POLICY — SCHEDULE D
	 	6






 









 










Schedule E

TO THE MASTER SERVICES AGREEMENT

BETWEEN SYNACOR, INC. AND

CHARTER COMMUNICATIONS HOLDING COMPANY, LLC




ESCROW AGREEMENT








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







Deposit Account Number 0308129-00001



This agreement (“Agreement”) is effective August ___, 2004 among DSI Technology Escrow Services,
Inc. (“DSI”), Synacor, Inc (“Depositor”) and Charter Communications Holding Company, LLC
(“Preferred Beneficiary”), who collectively may be referred to in this Agreement as the parties
(“Parties”), or individually as a party (“Party”).



A. Depositor and Preferred Beneficiary have entered into an agreement, regarding the delivery of
services (the “Service”) utilizing proprietary technology of Depositor (referred to in this
Agreement as the “License Agreement”).



B. Depositor desires to avoid disclosure of its proprietary technology except under certain limited
circumstances.



C. The availability of the proprietary technology of Depositor is critical to Preferred Beneficiary
in the conduct of its business and, therefore, Preferred Beneficiary needs access to the
proprietary technology under certain limited circumstances.



D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI to provide for the
retention, administration and controlled access of the proprietary technology materials of
Depositor.



E. The parties desire this Agreement to be supplementary to the License Agreement pursuant to 11
United States [Bankruptcy] Code, Section 365(n).




ARTICLE 1 — DEPOSITS



1.1 Obligation to Make Deposit. After execution of the Master Agreement and this Agreement
by the parties and before January 31, 2005, Depositor shall deliver to DSI the proprietary
technology and other materials (“Deposit Materials”) required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be deposited with DSI,
then such materials will be identified on Exhibit A to this agreement. If Exhibit A is applicable,
it is to be prepared and signed by Depositor and Preferred Beneficiary. DSI shall have no
obligation to either party with respect to the preparation, accuracy, execution, signing, delivery
or validity of Exhibit A.



1.2 Identification of Tangible Media. Prior to the delivery of the Deposit Materials to
DSI, Depositor shall conspicuously label for identification each document, magnetic tape, disk, or
other media




			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	1






 









 




upon which the Deposit Materials are written or stored. Additionally, Depositor shall complete
Exhibit B to this Agreement by listing each such media by the item label description, the type of
media and the quantity. Exhibit B shall be signed by Depositor and delivered to DSI with the
Deposit Materials. Unless and until Depositor makes the initial deposit with DSI, DSI shall have no
obligation with respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.



1.3 Acceptance of Deposit. When DSI receives the Deposit Materials and Exhibit B, DSI will
conduct a visual deposit inspection. At completion of the deposit inspection, if DSI determines
that the labeling of the media matches the item descriptions and quantity on Exhibit B, DSI will
date and sign Exhibit B and mail a copy thereof to Depositor and Preferred Beneficiary. If DSI
determines that the labeling does not match the item descriptions or quantity on Exhibit B, DSI
will (a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B with the
exceptions noted; and (c) mail a copy of Exhibit B to Depositor and Preferred Beneficiary. DSI’s
acceptance of the deposit occurs upon the signing of Exhibit B by DSI. Delivery of the signed
Exhibit B to Preferred Beneficiary is Preferred Beneficiary’s notice that the Deposit Materials
have been received and accepted by DSI. OTHER THAN DSI’S INSPECTION OF THE DEPOSIT MATERIALS, AS
DESCRIBED ABOVE, DSI SHALL HAVE NO OBLIGATION REGARDING THE ACCURACY, COMPLETENESS, FUNCTIONALITY,
PERFORMANCE OR NON-PERFORMANCE OF THE DEPOSIT MATERIALS.



1.4 Depositor’s Representations. During the term of this Agreement, Depositor represents as
follows:





	 	a.	 	Depositor lawfully possesses all of the Deposit Materials deposited with DSI;
	 
	 	b.	 	With respect to all of the Deposit Materials and any materials provided solely for
verification, pursuant to Section 1.5 of the Agreement (“Test Materials”) Depositor has
the right and authority to grant to DSI and Preferred Beneficiary the rights as provided
in this Agreement, provided further that DSI’s or its independent contractor’s use of any
Deposit Materials or Test Materials, pursuant to Section 1.5 of this Agreement, is lawful
and does not violate the rights of any third parties;
	 
	 	c.	 	As of the effective date of this Agreement, the Deposit Materials are not the
subject of any liens or encumbrances, however, any liens or encumbrances made after the
execution of this Agreement will not prohibit, limit, or alter the rights and obligations
of DSI under this Agreement;
	 
	 	d.	 	The Deposit Materials consist of the proprietary technology and other materials
identified either in the License Agreement, Exhibit A, or Exhibit B, as the case may be;
and
	 
	 	e.	 	The Deposit Materials are readable and useable in their current form or, if any
portion of the Deposit Materials is encrypted, the decryption tools and decryption keys
have also been deposited.




1.5 Available Verification Services. Upon receipt of a written request from Preferred
Beneficiary, DSI and Preferred Beneficiary may enter into a separate proposal agreement (“Statement
of Work”) pursuant to which DSI will agree, upon certain terms and conditions, to inspect the
Deposit Materials consistent with one or several of the levels of verification described in the
attached Technical Verification Options as selected by Preferred Beneficiary. Depositor consents to
DSI’s performance of






			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	2






 









 






any level(s) of verification described in the attached Technical Verification Options. Depositor
shall reasonably cooperate with DSI by providing its facilities, computer software systems, and
technical and support personnel for verification whenever reasonably necessary. If a verification
is elected after the Deposit Materials have been delivered to DSI, then only DSI, or at DSI’s
election, an independent contractor or company selected by DSI may perform the verification.



1.6 Deposit Updates. Unless otherwise provided by the License Agreement but no earlier than
January 31, 2005, Depositor shall update the Deposit Materials within thirty (30) days of the
launch of each release of a new version of the product, which is subject to the License Agreement.
Such updates will be added to the existing deposit. All deposit updates shall be listed on a new
Exhibit B and Depositor shall sign the new Exhibit B. Each Exhibit B will be held and maintained
separately within the escrow account. An independent record will be created which will document the
activity for each Exhibit B. Any deposit updates shall be held in accordance with Sections 1.2
through 1.4 above. All references in this Agreement to the Deposit Materials shall include the
initial Deposit Materials and any updates.



1.7 Removal of Deposit Materials. The Deposit Materials may be removed and/or exchanged
only on written instructions signed by Depositor and Preferred Beneficiary, or as otherwise
provided in this Agreement.




ARTICLE 2 — CONFIDENTIALITY AND RECORD KEEPING



2.1 Confidentiality. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement or any subsequent
agreement between the Parties, including without limitation Section 1.5, DSI shall not disclose,
transfer, make available or use the Deposit Materials. DSI’s independent contractors are subject to
appropriate confidentiality restrictions with DSI. DSI shall not disclose the terms of this
Agreement to any third party. If DSI receives a subpoena or any other order from a court or other
judicial tribunal pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge any such order; provided,
however, that DSI does not waive its rights to present its position with respect to any such order.
DSI will not be required to disobey any order from a court or other judicial tribunal, including,
but not limited to, notices delivered pursuant to Section 7.6 below.



2.2 Status Reports. DSI shall provide to Depositor and Preferred Beneficiary a report
profiling the account history semiannually.




ARTICLE 3 — RIGHT TO MAKE COPIES



3.1 Right to Make Copies. DSI shall have the right to make copies of the Deposit Materials
as reasonably necessary to perform this Agreement. DSI shall copy all copyright, nondisclosure,
and other proprietary notices and titles contained on the Deposit Materials onto any copies made
by DSI. With all Deposit Materials submitted to DSI, Depositor shall provide any and all
instructions as may be necessary to duplicate the Deposit Materials, including, but not limited
to, the hardware and/or software needed. Any copying expenses incurred by DSI as a result of a
request to copy will be borne by the party requesting the copies. Alternatively, DSI may notify
Depositor requiring its reasonable cooperation in promptly copying the Deposit Materials in order
for DSI to perform this Agreement.





			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	3







 









 







ARTICLE 4 — RELEASE OF DEPOSIT



4.1 Release Conditions. As used in this Agreement, “Release Condition” shall mean the
following:





	 	a.	 	Depositor intentionally discontinues providing the Service to Preferred Beneficiary
for a period of two (2) days, and within five (5) days thereafter a successor to
Depositor does not make available to Preferred Beneficiary a service which is
substantially similar to the Service (as defined in the License Agreement) on terms which
are substantially similar to the terms of the License Agreement and provided such
discontinuation is not attributable to the actions of Preferred Beneficiary or acts
beyond the control of Depositor or Preferred Beneficiary; or
	 
	 	b.	 	A change of control of Depositor where its successor does not fulfill any of its
material obligations pursuant to the License Agreement; or
	 
	 	c.	 	Joint written instructions from Depositor and Preferred Beneficiary.




4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a Release
Condition has occurred, Preferred Beneficiary may provide to DSI written notice of the occurrence
of the Release Condition and a request for the release of the Deposit Materials. Such notice shall
be signed by the Preferred Beneficiary and on company letterhead. Unless DSI acknowledges or
discovers independently, or through the Parties, its need for additional documentation or
information in order to comply with this Section, DSI shall promptly provide a copy of the notice
to Depositor by commercial express mail. Such need for additional documentation or information may
extend the time period for DSI’s performance under this Section.



4.3 Contrary Instructions. From the date DSI mails the notice requesting release of the
Deposit Materials, Depositor shall have five (5) business days to deliver to DSI contrary
instructions (“Contrary Instructions”). Contrary Instructions shall mean the written representation
by Depositor that a Release Condition has not occurred or has been cured. Contrary Instructions
shall be signed by Depositor and on company letterhead. Upon receipt of Contrary Instructions, DSI
shall promptly send a copy to Preferred Beneficiary by commercial express mail. Additionally, DSI
shall notify both Depositor and Preferred Beneficiary that there is a dispute to be resolved
pursuant to Section 7.4 of this Agreement. Subject to Section 5.2 of this Agreement, DSI will
continue to store the Deposit Materials without release pending (a) joint instructions from
Depositor and Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.4; or (c) an
order from a court of competent jurisdiction.



4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the Depositor,
DSI is authorized to release the Deposit Materials to the Preferred Beneficiary or, if more than
one beneficiary is registered to the deposit, to release a copy of the Deposit Materials to the
Preferred Beneficiary. However, DSI is entitled to receive any fees due DSI before making the
release. Any copying expenses will be chargeable to Preferred Beneficiary, for which Depositor
shall reimburse preferred Beneficiary within thirty (30) days of receipt of a statement thereof.
This Agreement will terminate upon the release of the Deposit Materials held by DSI.



4.5 Right to Use Following Release. Unless otherwise provided in the License Agreement,
upon release of the Deposit Materials in accordance with this Article 4, Preferred Beneficiary
shall have the right to use the Deposit Materials for the sole purpose of continuing the benefits
afforded to Preferred





			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	4







 









 






Beneficiary by the License Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.




ARTICLE 5 — TERM AND TERMINATION



5.1 Term of Agreement. The initial term of this Agreement is for a period of one (1) year.
Thereafter, this Agreement shall automatically renew from year to year unless (a) Depositor and
Preferred Beneficiary jointly instruct DSI in writing that the Agreement is terminated; (b) DSI
instructs Depositor and Preferred Beneficiary in writing after its renewal date that the Agreement
is terminated for nonpayment in accordance with Section 5.2; or (c) DSI reserves the right to
terminate this Agreement, for any reason, other than for nonpayment, by providing Depositor and
Preferred Beneficiary sixty (60) days written notice of its intent to terminate this Agreement. If
the Deposit Materials are subject to another escrow agreement with DSI, DSI reserves the right,
after the initial one year term, to adjust the anniversary date of this Agreement to match the then
prevailing anniversary date of such other escrow arrangements.



5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to DSI, DSI
shall provide written notice of delinquency to all parties to this Agreement. Any party to this
Agreement shall have the right to make the payment to DSI to cure the default. If the past due
payment is not received in full by DSI within one (1) month of the date of such notice, then DSI
shall have the right to terminate this Agreement at any time thereafter by sending written notice
of termination to all parties. DSI shall have no obligation to take any action under this Agreement
so long as any payment due to DSI remains unpaid.



5.3 Disposition of Deposit Materials Upon Termination. Subject to the foregoing termination
provisions, and upon termination of this Agreement, DSI shall destroy, return, or otherwise deliver
the Deposit Materials in accordance with Depositor’s instructions. If there are no instructions,
DSI may, at its sole discretion, destroy the Deposit Materials or return them to Depositor. DSI
shall have no obligation to destroy or return the Deposit Materials if the Deposit Materials are
subject to another escrow agreement with DSI or have been released to the Preferred Beneficiary in
accordance with Section 4.4.



5.4 Survival of Terms Following Termination. Upon termination of this Agreement, the
following provisions of this Agreement shall survive:





	 	a.	 	The obligations of confidentiality with respect to the Deposit Materials;
	 
	 	b.	 	The obligation to pay DSI any fees and expenses due;
	 
	 	c.	 	The provisions of Article 7; and
	 
	 	d.	 	Any provisions in this Agreement which specifically state they survive the
termination of this Agreement.





ARTICLE 6 — DSI’S FEES



6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses applicable to
the services provided. DSI shall notify the party responsible for payment of DSI’s fees at least
sixty (60) days prior to any increase in fees. For any service not listed on DSI’s standard fee
schedule, DSI will provide a quote prior to rendering the service, if requested.





			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
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6.2 Payment Terms. DST shall not be required to perform any service, including release of
any Deposit Materials under Article 4, unless the payment for such service and any outstanding
balances owed to DSI are paid in full. Initial fees are due upon receipt of a signed contract or
receipt of the Deposit Materials whichever is earliest. Payments on all renewal and services
invoices are due net thirty (30) days from date of invoice. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.




ARTICLE 7 — LIABILITY AND DISPUTES



7.1 Right to Rely on Instructions. DSI may act in reliance upon any instruction,
instrument, or signature reasonably believed by DSI to be genuine. DSI may assume that any officer
of a party to this Agreement who gives any written notice, request, or instruction has the
authority to do so. DSI will not be required to inquire into the truth or evaluate the merit of any
statement or representation contained in any notice or document. DSI shall not be responsible for
failure to act as a result of causes beyond the reasonable control of DSI.



7.2 Indemnification. Depositor and Preferred Beneficiary each agree to indemnify, defend
and hold harmless DSI from any and all claims, actions, damages, arbitration fees and expenses,
costs, attorney’s fees and other liabilities (“Liabilities”) incurred by DSI relating in any way to
this escrow arrangement, except where it is adjudged that DSI acted with gross negligence or
willful misconduct.



7.3 Limitation of Liability. In no event will DSI be liable for any incidental, indirect,
special, exemplary, punitive or consequential damages, including, but not limited to, damages
(including loss of data, revenue, and/or profits) costs or expenses (including legal fees and
expenses), whether foreseeable or unforeseeable, that may arise out of or in connection with this
Agreement; and in no event shall the collective liability of DSI exceed ten times the fees paid
under this Agreement. The foregoing limitation of liability does not apply with respect to any acts
of gross negligence, personal injury claims, property damage claims (excluding the Deposit), or
intellectual property infringement.



7.4 Dispute Resolution. Any dispute, difference or question relating to or arising among
any of the parties concerning the construction, meaning, effect or implementation of this Agreement
or any party hereof will be submitted to, and settled by arbitration by a single arbitrator chosen
by the San Diego Regional Office of the American Arbitration Association in accordance with the
Commercial Rules of the American Arbitration Association. The arbitrator shall apply California
law. Unless otherwise agreed by Depositor and Preferred Beneficiary, arbitration will take place in
San Diego, California, U.S.A. Any court having jurisdiction over the matter may enter judgment on
the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by
First Class mail or by commercial express mail, to the attorney for the party or, if unrepresented,
to the party at the last known business address. If, however, Depositor and/or Preferred
Beneficiary refuses to submit to arbitration, the matter shall not be submitted to arbitration and
DSI may submit the matter to any court of competent jurisdiction for an interpleader or similar
action. Unless adjudged otherwise on grounds including but not limited to the failure of DSI to
comply with its obligations hereunder, any costs of arbitration incurred by DSI, including
reasonable attorney’s fees and costs, shall be divided equally and paid by Depositor and Preferred
Beneficiary.



7.5 Controlling Law. This Agreement is to be governed and construed in accordance with the
laws of the State of California, without regard to its conflict of law provisions.





			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	6







 









 






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





	 	a.	 	Give DSI at least five (5) business days prior notice of the hearing;
	 
	 	b.	 	Include in any such order that, as a precondition to DSI’s obligation, DSI be paid
in full for any past due fees and be paid for the reasonable value of the services to be
rendered pursuant to such order; and
	 
	 	c.	 	Ensure that DSI not be required to deliver the original (as opposed to a copy) of
the Deposit Materials if DSI may need to retain the original in its possession to fulfill
any of its other duties.





ARTICLE 8 — GENERAL PROVISIONS



8.1 Entire Agreement. This Agreement, which includes Exhibits described herein,
embodies the entire understanding among the parties with respect to its subject matter and
supersedes all previous communications, representations or understandings, either oral or written.
DSI is not a party to the License Agreement between Depositor and Preferred Beneficiary and has no
knowledge of any of the terms or provisions of any such License Agreement. DSI’s only obligations
to Depositor or Preferred Beneficiary are as set forth in this Agreement. No amendment or
modification of this Agreement shall be valid or binding unless signed by all the parties hereto,
except that Exhibit A need not be signed by DSI, Exhibit B need not be signed by Preferred
Beneficiary, Exhibit C need not be signed, and the Statement of Work need only be executed by DSI
and Preferred Beneficiary.



8.2 Notices and Correspondence. All notices regarding Articles 4 and 5 and any Deposit
Materials shall be sent by commercial express or certified mail, return receipt requested. All
other correspondence, including invoices, payments, and other documents and communications, shall
be sent First Class U.S. Mail and given to the parties at the addresses specified in the attached
Exhibit C. It shall be the responsibility of the parties to notify each other as provided in this
Section in the event of a change of physical and e-mail addresses. The parties shall have the right
to rely on the last known address of the other parties. Any correctly addressed notice or last
known address of the other parties that is relied on herein that is refused, unclaimed, or
undeliverable because of an act or omission of the party to be notified as provided herein shall be
deemed effective as of the first date that said notice was refused, unclaimed, or deemed
undeliverable by the postal authorities by mail, through messenger or commercial express delivery
services.



8.3 Severability. In the event any provision of this Agreement is found to be invalid or
unenforceable, the parties agree that unless it materially affects the entire intent and purpose of
this Agreement, such invalidity or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be
replaced with a valid and enforceable provision most closely reflecting the intent and purpose of
the original provision.



8.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have no obligation in
performing this Agreement to recognize any successor or assign of Depositor or Preferred
Beneficiary unless DSI receives clear, authoritative and conclusive written evidence of the change
of parties.





			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
	 	7







 









 






8.5 Waiver. Any term of this Agreement may be waived by the party entitled to the benefits
thereof, provided that any such waiver must be in writing and signed by the party against whom the
enforcement of the waiver is sought. No waiver of any condition, or breach of any provision of this
Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of
such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the
waiver of that right or remedy.



8.6 Regulations. Depositor and Preferred Beneficiary are responsible for and warrant
compliance with all applicable laws, rules and regulations, including but not limited to
Depositor’s responsibility to comply with customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may be delivered in
accordance with the provisions of this Agreement.



8.7 Attorney’s Fees. In any litigation or other proceeding by which one party either seeks
to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks
declaration of any rights or obligations under this Agreement (whether in contract, tort, or both),
the prevailing party (whether prosecuting such action or defending against such action) shall be
awarded reasonable attorneys’ fees, together with any costs and expenses, to resolve the dispute
and to enforce final judgment.



8.8 No Third Party Rights. This Agreement is made solely for the benefit of the Parties to
this Agreement and their respective permitted successors and assigns, and no other person or entity
shall have or acquire any right by virtue of this Agreement unless otherwise agreed to by all the
parties hereto.



8.9 Authority to Sign. Each of the Parties herein represents and warrants that the
execution, delivery, and performance of this Agreement has been duly authorized and signed by a
person who meets statutory or other binding approval to sign on behalf of its business organization
as named in this Agreement. DSI will be able to perform its obligations under this agreement once
DSI has received a fully executed agreement.



8.10 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one instrument.




	 	 	 	 	 	 	 	 	 	 	 
	Synacor, Inc.

(Depositor)	 	 	 	Charter
Communications Holding Company, LLC

(Preferred Beneficiary)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ronald Frankel

 

	 	 	 	By:
	 	/s/ Jeff Jay

 
	 	 
	 

	 	Name: RONALD FRANKEL
	 	 	 	 	 	Name: Jeff Jay	 	 
	 

	 	Title:   CEO
	 	 	 	 	 	Title:   VP Product Development	 	 
	Date:

	 	9-30-04
	 	 	 	Date:
	 	9/29/04	 	 






	 	 	 	 	 
	 	DSI Technology Escrow Services, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Date:  	 	 
	 




			
	 	 	 
	ESCROW AGREEMENT — SCHEDULE E
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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