EX-10.16.4



 




EXHIBIT 10.16.4

CONFIDENTIAL
TREATMENT REQUESTED



AMENDMENT

TO

MASTER SERVICES AGREEMENT



This Amendment including Attachment A hereto (collectively, the “Amendment”) dated as of
the 16th day of August, 2006 (the “Amendment Effective Date”) is by and among SYNACOR, INC.
(“Synacor”), Charter Communications Operating, LLC (“Client”) and Charter
Communications Holding Company, LLC under which the parties hereto mutually agree to modify and
amend as follows the Synacor Master Services Agreement, and exhibits thereto, effective as of
September 30, 2004 and as amended (collectively, the “Agreement”). All terms defined
herein shall be applicable solely to this Amendment. Any defined terms used herein, which are
defined in the Agreement, shall have the meanings ascribed to them in the Agreement solely when
interpreting the Agreement. Inconsistent terms shall have the meaning ascribed herein.



Whereas, Synacor desires to make certain additional services available to Client;



Whereas, Client desires to receive such additional services; and




Whereas, Synacor and Client would like to modify certain payment and revenue share terms.



Therefore,
the Parties hereby agree to enter into this Amendment and agree to the following:





	1.	 	Defined Terms. In the Agreement, including all Schedules and other attachments, Charter
Communications Holding Company, LLC shall be replaced as the “Client” and “party” by its
indirect, wholly owned subsidiary, Charter Communications Operating, LLC.
	 
	2.	 	(a) Schedule A. The parties agree that as of the Amendment Effective Date, Schedule A to the
Agreement, as amended, entitled “Product & Pricing Schedule,” is hereby deleted and replaced
in its entirety with the Schedule A attached hereto as
Attachment 1 to this Amendment. [*]
	 
	 	 	(b) Schedule F. The parties agree that effective as of the Amendment Effective Date,
Schedule F to the Agreement entitled Search Revenue Sharing Addendum is deleted in its
entirety.
	 
	3.	 	Data Privacy Amendment. The Parties agree that the Data Privacy Amendment attached as
Attachment 2 hereto shall be inserted as new Schedule G to the Agreement and will become
effective immediately upon the signing hereof and shall continue throughout the Term of this
Amendment.
	 
	4.	 	Extension of Term. Article 7.1 of the Agreement is hereby replaced in its entirety with the
following:






“7.1 Term: This Agreement shall continue in full force and effect through the end of
[*] (the “Initial Term”) and, except as provided in the
immediately following sentence, will renew at [*] (each a “Renewal Term” and collectively the Term and any
Renewal Term(s) being referred to as the “Term”). Notwithstanding anything to
the contrary in this Amendment or any Schedule, following the Initial Term, the
requirement of a [*] from Synacor to Client set forth in [*]
of the Amended and Restated Schedule A to the Synacor Master Service Agreement Product
and Pricing Schedule shall terminate at the end of the [*]. All other
revenue shares and fees shall remain the same as during the Initial Term unless
otherwise specified below.”




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






 


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








	6.	 	Additional Revisions. The following provisions identified as “Old Language” shall be
deleted and replaced in their entirety with the “New Language” as set forth in the table
below:





	 	 	 	 	 
	 SECTION REFERENCE	 	OLD LANGUAGE	 	NEW LANGUAGE
	Agreement Section 2.5, Data (new
text is denoted by underlining)

	 	“As between Synacor and Client,
Client shall own all User names,
login IDs, passwords, and other User
registration or other information
provided by client and/or Users in
connection with the Services,
including without limitation any
identification numbers or other
information provided and/or used by
Synacor to identify and/or
distinguish between Users
(“Account Information”). Unless
otherwise agreed to by Client in
advance and in writing, its
obligations under this Agreement or
to comply with any legal or
regulatory requirement; provided
that, to the extent not otherwise
prohibited by law, Synacor shall
provide Client with prompt notice of
any such legal or regulatory
requirement in order that Client may
comply with the provisions of 47
U.S.C.A § 551 and/or seek a
protective order with respect to such
Account Information. To avoid
uncertainty, each Party hereby
acknowledges and agrees that,
subject at all times to Section 5.2
herein, Synacor may disclose
aggregate information (not
personally identifiable), of Users and
Service usage and performance
derived from Account Information
to Synacor Providers, Synacor
customers and Synacor investors;
provided that, no such information
shall identify Client or any User or
contain any Client-specific or User-
specific information. Synacor shall
	 	“As between Synacor and Client,
Client shall own all User names,
login IDs, passwords, click-stream
data and other User registration or
other information provided by client
and/or provided by or collected from
Users in connection with the
Services, including without
limitation any identification numbers
or other information provided and/or
used by Synacor to identify and/or
distinguish between Users
(“Account Information”). Unless
otherwise agreed to by Client in
advance and in writing, its
obligations under this Agreement or
to comply with any legal or
regulatory requirement; provided
that, to the extent not otherwise
prohibited by law, Synacor shall
provide Client with prompt notice of
any such legal or regulatory
requirement in order that Client may
comply with the provisions of 47
U.S.C.A § 551 and/or seek a
protective order with respect to such
Account Information. To avoid
uncertainty, each Party hereby
acknowledges and agrees that,
subject at all times to Section 5.2
herein, Synacor may disclose
aggregate information (not
personally identifiable), including
click-stream data of Users and
Service usage and performance
derived from Account Information
to Synacor Providers, Synacor
customers and Synacor investors;
provided that, no such information
shall identify Client or any User or






2









 





	 	 	 	 	 
	 SECTION REFERENCE	 	OLD LANGUAGE	 	NEW LANGUAGE
	 

	 	provide Client with all Account
Information in a format chosen by
Client within forty-eight (48) hours
of receipt of written notice from
Client requesting the same. This
clause and the Parties’
responsibilities hereunder shall
survive the expiration or earlier
termination of the Agreement.”
	 	contain any Client-specific or User-specific information unless
otherwise required by applicable
law. Synacor shall provide Client
with all Account Information in a
format chosen by Client within
forty-eight (48) hours of receipt of
written notice from Client requesting
the same. This clause and the
parties’ responsibilities hereunder
shall survive the expiration or
earlier termination of the
Agreement.”
	 
	 	 	 	 
	Agreement Section 9, last sentence
in Limitations of Liability

	 	“IN NO EVENT WILL
SYNACOR’S LIABILITY FOR
ANY AND ALL CLAIMS, IN THE
AGGREGATE, ARISING OUT OF,
RELATING TO OR IN
CONNECTION WITH THIS
AGREEMENT OF THE
PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER
EXCEED THE GREATER OF (I)
$5,000,000.00 OR (II) THE
AMOUNT SYNACOR HAS
RECEIVED FROM CLIENT IN
THE AGGREGATE UNDER THIS AGREEMENT
DURING THE TERM HEREOF.”
	 	“IN NO EVENT WILL EITHER
PARTIES LIABILITY FOR ANY
AND ALL CLAIMS, IN THE
AGGREGATE, ARISING OUT OF,
RELATING TO OR IN
CONNECTION WITH THIS
AGREEMENT OF THE
PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER
EXCEED THE LESSER OF (I) $16
MILLION OR (II) THE ACTUAL
DAMAGES INCURRED
DIRECTLY BY THE INJURED
PARTY.”
	 
	 	 	 	 
	Schedule C Synacor Specifications
Colorset, final paragraph

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







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






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	SYNACOR, INC.	 	 	 	CHARTER COMMUNICATIONS HOLDING COMPANY, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Ronald Frankel	 	 	 	By:	 	/s/ Greg Rigdon	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	RONALD FRANKEL
	 	 	 	 	 	Name:
	 	GREG RIGDON	 	 
	 
	 	Title:	 	PRESIDENT & CEO	 	 	 	 	 	Title:	 	SVP	 	 
	 
	 	 8-16-06 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	CHARTER COMMUNICATIONS

OPERATING, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	/s/ Greg Rigdon	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:
	 	GREG RIGDON	 	 
	 

	 	 	 	 	 	 	 	 	 	Title:
	 	SVP	 	 






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Attachment 1 to the Amendment




AMENDED AND RESTATED

SCHEDULE A

TO

SYNACOR MASTER SERVICE AGREEMENT



PRODUCT & PRICING SCHEDULE




          Effective August 16th, 2006, this Amended and Restated Schedule A supersedes and replaces
Schedule A, as amended, and forms a part of, and is governed by, the Synacor Master Services
Agreement dated September 30, 2004, as amended, by and between Synacor, Inc. (“Synacor”),
Charter Communications Operating, LLC and Charter Communications Holding Company, LLC. including
any schedules, attachments, or exhibits attached thereto (collectively, the “Agreement”).
Any capitalized terms used in this Schedule A and not defined herein shall have the meanings
ascribed to such terms in the Agreement. As set forth in the Amendment to Master Services
Agreement executed simultaneously herewith, Charter Communications Operating, LLC is hereafter
referred to as the “Client” or “Charter”.




          The product deliverables and fees payable by Client to Synacor pursuant to the Agreement are
set forth below.





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






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






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






	 	 	 	[*]






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







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






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






	 	(i)	 	Definitions.






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






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	 	 	 	[*]






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






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






	 	a)	 	[*]
	 
	 	b)	 	[*]






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	 	i.	 	[*]; and
	 
	 	ii.	 	[*]






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






	 	(v)	 	[*]
	 
	 	(vi)	 	[*]






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[*]






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






	2.	 	Portal Content.






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






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






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






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







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	 	(xv)	 	Finance Channel (not currently provided);

	 
	 	(xvi)	 	Music Channel (or as a subset of Premium Music package); and
	 
	 	(xvii)	 	Maps and Directions






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






	3.	 	Premium Products and Associated Fees.
	 
	 	 	Definitions






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






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






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






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






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




6









 






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






	 	(ii)	 	Music Products






	 	i.	 	Charter Music2Go






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






	 	ii.	 	Charter Music (non portable):






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






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






	 	(b)	 	Premium Product Fees.






	 	(i)	 	Monthly Subscription Fees.






	 	a)	 	Monthly Subscription Fees — Definitions.






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






	 	b)	 	Monthly Subscription Revenues — Revenue Share.






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







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






	 	(ii)	 	Transaction Revenues.






	 	a)	 	Transaction Revenues — Definitions.






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






	 	b)	 	Transaction Revenues — Revenue Share.






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






	 	(iii)	 	[*].




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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.















 






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






	 	[*]	 	 




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













 















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
















 






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






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




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




















 












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
















 





EXHIBIT 1

to the Amended and Restated Schedule A




CHARTER PRODUCT ROADMAP



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

















 








EXHIBIT 2. Mock-up




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Attachment 2 to the Amendment




SCHEDULE G

TO

SYNACOR MASTER SERVICE AGREEMENT

DATA PRIVACY




     Charter Communications Operating, LLC (“Charter”) and Synacor, Inc. (“2nd
Party”) hereby agree to include this Schedule G as part of the Amendment to the Synacor Master
Service Agreement dated September 30, 2004 and as amended (the “Agreement”) in accordance with the
terms of this amendment (the “Amendment”) effective on this the __________day of __________, 2006 (the “Effective
Date”). To the extent any terms set forth in this Amendment conflict with those of the Agreement,
the terms of this Amendment shall control. Any capitalized terms not specifically defined herein,
shall have that meaning set forth for them in the Agreement.



1. CONFIDENTIALITY.





N.1 In connection with this Agreement, either party may furnish to the other certain
non-public information that is marked or otherwise specifically identified as proprietary or
confidential or which by its contents and the underlying circumstances, a reasonable person
would consider proprietary or confidential (“Confidential Information”). In addition, both
parties acknowledge that it and its personnel may have access to data, records and documents
pertaining to such Confidential Information. This Confidential Information may include, among
other things, the personally identifiable information of Charter customers (also referred to
as “Charter Customer Information”), private easements, licenses, utility agreements, permits,
other right-of-way granting documents, specifications, designs, business plans, schematics,
drawings, software, data, prototypes, or other business, marketing and/or technical
information. For purposes of this Section, the party that discloses Confidential Information
is referred to as the “Disclosing Party”, and the party that receives Information is referred
to as the “Receiving Party”.




N.2 When Confidential Information is furnished in tangible form or when Confidential
Information is provided orally, the Disclosing Party shall, at the time of disclosure or
promptly thereafter, identify the Confidential Information as being proprietary or
confidential. Notwithstanding, such identification is not necessary with respect to any
Charter Customer Information, which shall at all times be considered to be “Confidential
Information”.




N.3 With respect to Confidential Information disclosed under this Agreement, the Receiving
Party and its employees shall:




N.3.1 secure and hold the Confidential Information in confidence, exercising a degree of
care not less than the care used by the Receiving Party to protect its own proprietary or
confidential information that it does not wish to disclose (but in no event shall such care
be less than that which is commercially reasonable), and specifically, the Receiving Party
shall maintain and secure any Confidential Information in electronic data format using
security measures that meet or exceed the IS01799 information security controls standard;




N.3.2 restrict disclosure of the Confidential Information solely to those of its employees
to whom further disclosure is necessary for Receiving Party to perform its obligations
under this Agreement, and not disclose the Confidential Information to any other person or
entity without the prior written consent of the Disclosing Party which shall not be
unreasonably withheld;



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N.3.3 advise and secure the agreement of those employees of their obligation to keep Confidential
Information confidential in accordance herewith;




N.3.4 use the Confidential Information only in connection with the performance of this
Agreement, except as the Disclosing Party may otherwise agree in writing; and




N.3.5 segregate all such Confidential Information from the confidential materials and information
of Service Provider or others to prevent commingling.


N.4 Confidential Information shall be deemed the property of the Disclosing Party during the term
of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated
herein. Upon written request of the Disclosing Party, the Receiving Party shall return all
Confidential Information received in tangible form, except that each party’s legal counsel may
retain one copy for its files solely to provide a record of such Confidential Information for
archival purposes.



N.5 Receiving Party shall notify the Disclosing Party immediately upon discovery of any actual or
reasonably suspected compromise, unauthorized use or disclosure of Confidential Information, or
any other breach of this Section, and will cooperate with the Disclosing Party in every reasonable
way to help the Disclosing Party regain possession of the Confidential Information and prevent any
further compromise, unauthorized use or disclosure.



N.6 Except to the extent of Client Customer Information for which the confidentiality obligations
shall remain intact unless otherwise required by court order, the Receiving Party shall have no
obligation to preserve the proprietary nature of Confidential Information that:





N.6.1 was previously known to the Receiving Party free of any obligation to keep it confidential;
or




N.6.2 is or becomes publicly available by means other than unauthorized or illegal disclosure; or




N.6.3 is developed by or on behalf of the Receiving Party independently of any Confidential
Information furnished under this Agreement; or




N.6.4 is received from a third party whose disclosure does not violate any confidentiality
obligation.


N.7 The terms of this Agreement, and all information that may be disclosed (whether identified as
such or not) to Receiving Party pertaining to the identities, locations, and requirements of the
Disclosing Party’s customers, is Confidential Information of Disclosing Party.



N.8 Under no circumstances shall either party disclose the other party’s customer Confidential
Information to any third party (even if under contract to that party) or to any personnel of the
party responsible for publicity or for end user sales or marketing.



N.9 If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information
by an order or a lawful process of a court or governmental body, the Receiving Party shall
promptly notify the Disclosing Party, and shall cooperate with the Disclosing Party in seeking
reasonable protective arrangements before the Confidential Information is produced.



N.9 Each party agrees that a breach of any of the terms of this “Confidentiality” Section by the
Receiving Party or its representatives will result in irreparable harm for which there is no
adequate remedy at law, and in the event of any such breach the Disclosing Party may seek a
preliminary or


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permanent injunction and/or specific performance which shall be granted upon a finding of a breach
(or substantial likelihood of a breach in the case of a preliminary injunction). Such remedies
shall not be deemed to be the exclusive remedies for a breach of the terms of this
“Confidentiality” Section, but shall be in addition to all other remedies available at law or in
equity.





N.10 Each party will keep this Agreement and its terms confidential and will make no press release
or public disclosure, either written or oral, regarding the transactions contemplated by this
Agreement without the prior consent of the other party hereto, which consent will not be
unreasonably withheld; provided that the foregoing will not prohibit any disclosure that is
required by law or the rules of any stock exchange or other entity where a party’s securities are
traded.




N.11 ADDITIONAL REQUIREMENTS WITH RESPECT TO CHARTER CUSTOMER INFORMATION. Any collection,
maintenance, disclosure or use of the personally identifiable information of Charter customers
shall be undertaken by 2nd Party (i) to the extent applicable, in accordance with the
subscriber information collecting business practices of Charter and in a manner that does not
violate or cause Charter to be in violation of Charter’s written customer privacy policy (which
practices and policies are described more fully at www.charter.com) and, in all cases,
(ii) in compliance with any applicable laws (domestic or foreign) governing the collection,
maintenance, transmission, dissemination, use and destruction thereof, including specifically the
subscriber privacy provisions of the Cable Communications Policy Act of 1984, as amended (47
U.S.C. § 551), and any and all other applicable laws or regulations, including, but not limited
to, the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., Cal. Penal Code § 637.5,
any state and/or federal security breach notification laws; and (iii) in compliance with the
Payment Card Industry Association Security Standards, to the extent the recipient has access to
any Charter customer’s payment card information.




2nd Party shall retain all customer information only for so long as is reasonably
necessary to complete the purposes for which the Charter Customer Information has been disclosed
to 2nd Party, unless otherwise specified by a mutual written agreement of the Parties.
Thereafter, 2nd Party shall, at Charter’s election, permanently destroy or return such
customer information to Charter with a certification signed by an officer of 2nd Party
that all such customer information has been destroyed or returned.




N.12 Upon reasonable request from Charter, 2nd Party shall provide access to, and the
right to inspect, all records relating to (i) the collection, processing, or transfers of data
relating to Charter Customer Information and (ii) the information security measures used by
2nd Party to secure Confidential Information, including without limitation, Charter’s
Customer Information. Unless otherwise agreed, any such inspection shall be at Charter’s expense
and shall occur only at the business offices of 2nd Party during normal business hours
and shall be conducted by a mutually acceptable third-party inspector and shall be subject to the
confidentiality obligations set forth in this Exhibit G. 2nd Party further agrees to
cooperate, at Charter’s expense, in any regulatory investigation or in any internal investigation
by Charter (and in responding to any inquiry by any Charter customer) relating to Charter Customer
Information. In the event of any such investigation or inquiry, upon notice to 2nd
Party, Charter may suspend any further transfers of customer information for so long as may be
necessary to obtain assurances that any additional transfers will not provide the basis for
further regulatory action or possible liabilities. Any such suspension will not relieve either
party for any liability arising from this Agreement or any other commercial agreements with
Charter.




N.13 Without limiting or otherwise abrogating 2nd Party’s other indemnity obligations
stated elsewhere in the Agreement, 2nd Party at its own expense shall indemnify and
hold Charter harmless from and against any and all third party damage, loss, expense, claims,
lawsuits, judgments and/or other liability (including without limitation attorneys’ fees and court
costs) arising



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from the failure of 2nd Party, its agents, employees or contractors to comply with
any of the terms set forth in this “Confidentiality” Section; provided Charter provides
2nd Party with prompt written notice of such claim, reasonable cooperation and
joint control over the defense and settlement of such claim; provided that Charter shall not
unreasonably withhold its consent to any settlement proposed by 2nd Party. Charter
shall have the right but not the obligation to participate in defending against any such claim
subject to the foregoing.




N.14 The provisions set forth in this Section, shall survive the expiration or earlier
termination of this Agreement.


2.
BUSINESS CONTINUITY PLAN. Notwithstanding anything to the contrary set forth in the Agreement,
2nd Party agrees that it shall have and maintain a business continuity plan under which
2nd Party shall proceed in the event of a disaster or other major event affecting its
business operations in order to continue its operations after such event, including without
limitation, compliance with its obligations under the Agreement.





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