EX-10.14.2



 




EXHIBIT 10.14.2
CONFIDENTIAL TREATMENT REQUESTED




EXECUTION COPY




	 	 	 	 	 	 	 
	

	 	Google Inc.

1600 Amphitheatre Parkway

Mountain View, CA 94043

Tel: (650) 623-4000

Fax:(650) 618-2678

	 	
Google Services Agreement

ORDER FORM
	 	Google SPD Rep: Steve Frost

Google SPD Director: Jeff Shardell

Google Sales Engineer: Ed Dunn

Google Legal Contact: Matt Sucherman






	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 
	 	CUSTOMER (FULL LEGAL NAME): SYNACOR, INC.
	 	 	GSA Effective Date: June 25, 2004
	 	 	NDA Effective Date: October 31, 2003	 
	 	 

	 	 	Corporate Contact Information:
	 	 	Billing Contact Information:
	 	 	Legal Notices to:	 
	 	Attention:

	 	 	Drew Buckley
	 	 	Brian Neeson
	 	 	Brian Neeson	 
	 	Title:

	 	 	Vice President of Business Development
	 	 	Controller
	 	 	Controller	 
	 	Address, City, State,

Postal Code, Country:

	 	 	2120 Colorado Ave., Suite 300,
Santa Monica, CA 90404
	 	 	50 Fountain Plaza, Suite 1520,
Buffalo, NY 14202
	 	 	50 Fountain Plaza, Suite 1520,
Buffalo, NY 14202	 
	 	Phone:

	 	 	310-586-4142
	 	 	716-853-1362, X243
	 	 	716-853-1362, X243	 
	 	Fax:

	 	 	716-332-0081
	 	 	716-332-0081
	 	 	716-332-0081	 
	 	Email:

	 	 	dbuckley@synacor.com
	 	 	bneeson@synacor.com
	 	 	bneeson@synacor.com	 
	 	Technical Contact:

	 	 	Name: Ross Winston
	 	 	Email: rwinston@synacor.com
	 	 	Tel: 716-853-1362, X224	 
	 	Customer Wire Transfer Info (if applicable):
	 	 	D&B DUNS Number:
[*]
	 	 	VAT/Tax Number:
[*]	 
	 	Order Form Effective Date: June 25, 2004
	 	 	Initial Services Term: June 25, 2004
through June 30, 2005	 
	 








SEARCH SERVICES






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Language	 	 	Country	 
	 	 	 	 	Non-Refundable	 	 	Monthly Search	 	 	 	 	 	Safe Search	 	 	Restrict	 	 	Restrict	 
	 	 	 	 	Annual Service and	 	 	Fee Minimum	 	 	 	 	 	(Check if	 	 	(Check if	 	 	(Check if	 
	 	SEARCH SERVICES	 	 	Support Fee	 	 	Payment	 	 	Search Fees	 	 	applicable)	 	 	applicable)	 	 	applicable)	 
	 	þ WebSearch Services

	 	 	 	 	 	 	 	 	 	 	 	þ SafeSearch
	 	 	o If checked,
specify
	 	 	o If checked,
specify	 
	 	Est. Query Vol./Day

	 	 	[*]
	 	 	[*]
	 	 	[*]
	 	 	 	 	 	languages:
	 	 	languages:	 
	 	WebSearch Site: See Section 3

	 	 	 	 	 	 	 	 	Search Result

Sets
	 	 	þ High
o Medium
o Off	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	þ News Search Services

Est. Query Vol./Day


News Search Site: See Section 3

*Provision of this Service is
subject to subsequent mutual
agreement as per Section 5

	 	 	
[*]
	 	 	
[*]
	 	 	
[*]

Search Result
Sets
	 	 	N/A
	 	 	N/A
	 	 	N/A	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	þ Image Search Services
Est. Query Vol./Day


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

	 	 	


[*]
	 	 	


[*]	 	 	
[*]

Search Result
Sets
	 	 	þ SafeSearch


þ High
o Medium
o Off
o Images
	 	 	N/A
	 	 	N/A	 
	 	o Directory Search Services

Est. Query Vol./Day 

Directory
Search Site:

	 	 	

N/A
	 	 	

N/A
	 	 	
     /1000
Search

Result Sets
	 	 	

N/A
	 	 	

N/A
	 	 	

N/A	 
	 





GSA Order Form



 

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



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ADSENSE SERVICES






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

	 	 	[*]


[*]
	 	 	Sponsored Links/Results Page Min. # 5

Wide Format # 5; Narrow Format # 0

Above-the-fold: Yes

AdWords Link Location: All Results

Pages AdWords Link Size:	 
	 





	 	 	 	 	 	 
	 	Optional AdSense for Search Features:

	 	 	þ AdSafe	 
	 	(check the applicable boxes)

	 	 	Level: þ High o Medium o Low o Off o Adult Only	 
	 





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

	 	 	[*]


[*]
	 	 	Ad Unit Size: See Exhibit C
Location: See Exhibit C

Above-the-fold: Location


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






	 	 	 	 	 	 
	 	Optional AdSense for Search Features:

	 	 	þ AdSafe	 
	 	(check the applicable boxes)

	 	 	Level: þ High o Medium 	 
	 







	 	 	 	 	 	 
	 	 	 	 	 	 
	 	To Be Completed By Google Finance
	 
	 	 	 	 	 	 
	 	Customer PO #:                     


	 	 	Currency:	 
	 	o Credit Check Complete

	 	 	þ US Dollar
o Japanese Yen
o Other:	 
	 	 	 	 	 	 






GSA Order Form



 

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



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GSA Order Form Terms and Conditions



1. Incorporation of Google Services Agreement. This Order Form, including the terms and
conditions
hereunder, shall be governed by and incorporates by reference the Google Services Agreement between
Google and Customer with the GSA Effective Date set forth above (the “GSA”). If any terms of this
Order
Form conflict with the terms of the GSA, the terms of this Order Form shall control. Capitalized
terms used
but not defined herein shall have the meanings stated in the GSA. The GSA and this Order Form
together
comprise the “Agreement.”



2. Services Term. The term of this Order Form shall commence on the Order Form Effective
Date and
shall continue for the period of the Initial Services Term stated above, unless earlier terminated
as provided
in this Agreement. This Order Form will expire on the last date of the Initial Services Term and
may be
renewed by the parties only upon a definitive written agreement signed by the parties (the term of
any such
renewal being referred to as the “Renewal Term”). For purposes of the Agreement, the Initial
Services
Term together with any Renewal Term, if any, may also be referred to as the “Services Term.”



3. Sites.





     3.1. General. Customer builds, hosts and maintains Internet Web sites for its third
party customers (“Customer Clients”). Customer wishes to incorporate certain Google services into such Web sites as
provided herein.



     3.2. Sites. As used in this Agreement, the “WebSearch Sites,” “News Search Sites,” “Image
Search Sites,” “AFS Sites,” and “AFC Sites” are those Web sites located at the URLs identified
as such in Exhibit A1, as the same may be amended from time to time as permitted herein.
“Sites” means the WebSearch Sites, News Search Sites, Image Search Sites, AFS Sites and AFC Sites, collectively.
The list of Sites may be updated from time to time as provided below. Customer represents and warrants
that the Web sites set forth on Exhibit A1 represent all Web sites to which Customer provides
any services as of the Order Form Effective Date, except for http://www.mybudweiser.com.



     3.3. Additional Sites. If, during the Services Term, Customer (which for purposes of this Section will
be deemed to include any direct or indirect majority owned and controlled affiliates of
Customer) launches a Web site (which it will host and control) that
is not already a Site, then, [*]. Customer is responsible for each Site’s use of the
Services provided hereunder and shall ensure that any and all such Sites comply with the applicable terms
and conditions of the Agreement, including without limitation all terms and conditions regarding use and
prohibited uses of the Services, terms and conditions relating to the implementation of the Services, and
confidentiality requirements.



     3.4. Requirements for Incorporating Services into Customer Sites. In addition to the other
requirements of this Agreement, Customer’s right to incorporate the Services into Customer’s
Sites is subject to Customers agreement as to the following.



          3.4.1. Hosting and Control. At all times during the Services Term Customer must
(a) host and maintain any and all pages that comprise the Sites (subject to Section 3.4.2); (b)
maintain complete





GSA Order Form



 

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



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technical and editorial control of the Sites (subject to Section 3.4.2); (c) act as the
intermediary for all transmissions between Google and the Sites; (d) ensure that each Customer
Client complies with the terms and conditions of this Agreement applicable to the Site hosted on
such client’s behalf (including without limitation the Sections 2 (Customer Obligations) and
Section 4.2 (Google Rights)), as this Agreement may be amended from time to time as permitted
herein. In addition, Customer shall not provide any Customer Client (or any other third party)
with, and shall block access to, all or any portion of any Service protocol, the Google
Administration Console and any of Google’s confidential information.




     3.4.2. Hosting and Control Exceptions. Notwithstanding Sections 3.4.1 (a) and (b),
Google acknowledges that certain pages that comprise certain of the Sites may be hosted in data
center’s owned or leased by Customer’s Clients, and that in certain instances Customer’s Client may control a
portion of some of the Web pages that contain a Google branded Search Box. Customer agrees that Google may
require that any Search Box that resolves to Google results be removed from any page hosted or
controlled by any
of Customer’s Clients by providing Customer with written notice of such election and a
reasonable period of
time to remove such Search Box. For the avoidance of doubt, Customer will control all Results Pages.



     3.4.3. Search Boxes on Content Partner Sites. In addition to the foregoing, Customer may
place a Google branded search box on Web pages hosted by those of Customer’s premium content
partners that are approved by Google in writing (any such partners so approved being referred
to as
“Customer’s Content Partner(s)”); provided that (a) any searches entered into such Search
Boxes must
resolve to a results page (hosted by Customer) of the Site from which the End User linked to
such Customer
Content Partner Site; (b) Customer must act as the intermediary for all transmissions between
Google and
such Search Boxes; (c) Customer must ensure that each Customer Content Partner complies with
the terms
and conditions of this Agreement applicable to the use of such Search Box and the Google Brand
Features;
and (c) Google may require that any such Search Box be removed from any page hosted or
controlled by
any of Customer’s Content Partners by providing Customer with seven (7) days’ written notice
of such
election. Customer’s Content Partners listed on Exhibit A2 have been approved for
purposes of hosting
Google branded Search Box.



     3.4.4. Customer
Agreement with Customer Client. Customer must maintain a written
agreement with each Customer Client with respect to the hosting and maintenance of the Sites.
Such
agreement shall not contain any terms which are inconsistent with this Agreement and shall
contain
provisions which, at a minimum: (a) disclaim, to the extent permitted by applicable law,
Google’s liability for
any damages, whether direct, indirect, incidental or consequential, arising from the Site’s
access to or use of
the Services; (b) disclaim on behalf of Google, to the extent permitted by applicable law, all
warranties,
express or implied, with respect to the Service, including without limitation, warranties for
merchantability,
fitness for a particular purpose, and non-infringement; (c) impose confidentiality obligations
no less
protective of Google’s Confidential Information than this Agreement (provided that this clause
shall in no
event imply any right of Customer to disclose to any third party (including any Customer
Client) any
confidential information of Google); and (d) clearly acknowledge that Customer’s Client will
obtain no
ownership rights in and to Google’s Intellectual Property associated with the Services.
Customer expressly
acknowledges and agrees that no Customer Client will be considered a third party beneficiary
under this
Agreement.



     3.4.5. Indemnity. Customer shall indemnify Google for any lawsuit or proceeding (a) relating to
or arising from Customer’s failure to include or enforce the contractual terms required to be
included in
Customer’s agreement with Customer’s Clients as provided in Section 3.4.2 above, and (b)
brought by any
Customer Client in connection with the Services. In addition, Customer acknowledges and
agrees that
Google’s obligations to defend Customer against third party claims provided in Section 7 of
the GSA will in
no event extend to claims or proceedings brought by any Customer Client. Section 7 of the GSA
is hereby
amended to include the terms of this paragraph.


4. WebSearch Services.




     4.1. Scope of WebSearch Services. If selected on the cover page(s) of this Order
Form, during the
Services Term and subject to the terms and conditions of this Agreement, Google will provide
Customer with
WebSearch search results (“WebSearch Results”) through its WebSearch service (the “WebSearch
Service”) for display on the WebSearch Sites as permitted herein. Customer agrees to
implement the
WebSearch Service as provided herein on the WebSearch Sites in existence as of the date hereof
within
thirty (30) days of the Order Form Effective Date, and to maintain such implementation
thereafter during the
Services Term. Customer agrees to implement the WebSearch Service on any WebSearch Site added
thereafter as contemplated by Section 3.3 herein.



     4.2. Implementation of WebSearch Services. Unless otherwise agreed to by the parties in writing,
Customer shall implement the WebSearch Services in a manner that: (a) conforms to the
WebSearch
Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to
Google’s brand



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treatment guidelines for WebSearch, as updated by Google from time to time, the current
version of which is located at http://www.google.com/wssynd/02brand.html; (c) conforms to
the screenshots and specifications set forth in Exhibit B attached hereto; and (d)
otherwise complies with the technical and implementation requirements provided by Google from time
to time, including those instructions contained in the documentation setting forth the protocol
provided by Google for accessing the WebSearch Services, as such protocol may be updated by Google
from time to time (the “WebSearch Protocol”). Without limiting the foregoing, Customer
acknowledges and agrees to the following:




     
     4.2.1. Search Boxes and Queries. Customer shall implement on each
WebSearch Site a search
box (each, a “WebSearch Box”) for End Users (as defined below) to enter queries to search the
Web (each,
a “WebSearch Query”). Customer shall send any and all WebSearch Queries received by Customer
from
End Users to Google in accordance with the requirements provided by Google, without editing,
filtering,
truncating or otherwise modifying such WebSearch Queries, either individually or in
the aggregate.
Customer understands and agrees that WebSearch Queries sent to Google for processing hereunder
may
be initiated only by End Users entering search queries into WebSearch Boxes implemented
on a
WebSearch Site as provided herein, unless otherwise approved by Google in writing. As used
herein, “End
Users” means individual, human end users who visit the applicable Site, and “Valid WebSearch
Queries”
means Queries sent to Google in compliance with the requirements of this Agreement.




      
    4.2.2. Operation of WebSearch Services. Customer will ensure
that each WebSearch Query will
(a) be from a list of approved Internet protocol addresses provided by Customer prior to
implementation of
the Services (“Valid IP Addresses”); (b) contain a unique alphanumeric code provided and used
as
specified by Google (“Client ID”); and (c) include End User IP address and user agent
information. The list
of Valid IP Addresses may be modified by Customer upon forty-eight (48) hours notice to Google
via the
online Google Administration Console located at: http://console.google.com, or such
other URL as may be
updated by Google from time to time. Upon Google’s receipt of a Valid WebSearch Query,
Google will
transmit up to ten (10) WebSearch results, to the extent available (each such set being
referred to as a “WebSearch Results Set”), via Google’s network
interface in accordance with the WebSearch Protocol.
Customer shall then display, in each instance, the entire WebSearch Results Set that
corresponds to such
WebSearch Query in the manner contemplated by this Agreement, without editing, filtering,
reordering,
truncating or otherwise modifying such WebSearch Results Set.




      
    4.2.3. Labeling, Branding and Attribution. Each WebSearch Box and each Results Page
containing a WebSearch Results Set shall conspicuously display a graphic module, in the form
as provided
by Google from time to time, that unambiguously indicates that the WebSearch Results Sets are
provided by
Google. Customer agrees that it shall not place anything on the Site that in any way implies
that information
other than the WebSearch Results Sets are provided by Google, unless otherwise expressly
provided
herein. The Google graphic module shall be, at minimum, 75 x 32 pixels in size and visible
to any End User
at a minimum resolution of 800 by 600 pixels without scrolling within a Site page as viewed
through an
Internet browser application considered among the top two (2) most widely used from time to
time (“Above-the-fold”), unless otherwise directed by Google.




     4.3. License
to WebSearch Protocol. Google grants to Customer a limited, nonexclusive
and non-sublicensable license during the Services Term to use the WebSearch Protocol solely for
the purpose of transmitting WebSearch Queries and other required information and receiving
WebSearch Results Sets solely to the extent permitted hereunder. Except to the limited extent
expressly provided in this Agreement, Google does not grant, and Customer shall not acquire, any
right, title or interest (including, without limitation, any implied license) in or to any Google
Intellectual Property; and all rights not expressly granted herein are reserved to Google.


5. News Search Services. Customer
may add News Search Services to a Site hereunder only
upon obtaining the prior written consent of Google, which consent may include one or more
screenshots of the approved News Search implementation. In such event, the provisions of this
Section 5 will apply, but until such time, the provisions of this Section 5 will have no effect.




     5.1. Scope
of News Search Services. If Customer elects and Google consents to add to
News
Search Services to a Site as provided above, then from such time until the end of the Services
Term and
subject to the terms and conditions of this Agreement, Google will provide Customer with
search results
(“News Search Results”) through its News Search service (the “News
Search Service”) for display on the News Search Sites as permitted herein.



     5.2. Implementation
of News Search Services. Unless otherwise agreed to by the parties in
writing, Customer shall implement the News Search Services in a manner that: (a) conforms to
the News
Search Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms
to Google’s
brand treatment guidelines for News Search Services, the current version of which is
located at
http://www.google.com/wssynd/news guidelines.html, as updated by Google from time to
time; (c) conforms



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to the screenshots and specifications set forth or referred to in Google’s written consent
approving Customer’s use of News Search Services; and (d) otherwise complies with the technical
and implementation requirements provided by Google from time to time, including those instructions
contained in the documentation setting forth the protocol provided by Google for accessing the
News Search Services, as such protocol may be updated by Google from time to time (the “News
Search Protocol”). Without limiting the foregoing, Customer acknowledges and agrees to the
following:





          5.2.1. News Search Boxes and News Queries. Customer shall implement on each News
Search
Site a search box (each, a “News Search Box”) for End Users to enter news queries (each, a
“News
Query”). Customer shall send any and all News Queries received by Customer from End Users to
Google
in accordance with the requirements provided by Google, without editing, filtering, truncating
or otherwise
modifying such News Queries, either individually or in the aggregate. Customer understands
and agrees
that News Queries sent to Google for processing hereunder may be initiated only by End Users
entering
search queries into News Search Boxes implemented on a News Site as provided herein, unless
otherwise
approved by Google in writing. As used herein, “Valid News Queries” means News Queries sent to
Google
in compliance with the requirements of this Agreement.




          5.2.2. Operation of News Search Services. Customer will ensure that each News Query will (a)
be from a list of Valid IP Addresses; (b) contain a Client ID; and (c) include End User IP
address and user
agent information. Upon Google’s receipt of a Valid News Query, Google will transmit up to
ten (10) News
Search results, to the extent available (each such set being referred to as a “News Search
Results Set”),
via Google’s network interface in accordance with the News Search Protocol. Customer shall
then display,
in each instance, the entire News Search Results Set that corresponds to such News Query in
the manner
contemplated by this Agreement, without editing, filtering, reordering, truncating or
otherwise modifying such
News Search Results Set.




          5.2.3. Labeling, Branding and Attribution. Each News Search Box and each Results Page
containing a News Search Results Set shall conspicuously display a graphic module, in the form
as provided
by Google from time to time, that unambiguously indicates that the News Search Results Sets
are provided
by Google. Customer agrees that it shall not place anything on the Site that in any way
implies that
information other than the News Search Results Sets are provided by Google, unless otherwise
expressly
provided herein. The Google graphic module shall be, at minimum, 75 x 32 pixels in size and
located
Above-the-fold, unless otherwise directed by Google.




     5.3. License to News Search Protocol. Google grants to Customer a limited,
nonexclusive and non-sublicensable license during the Services Term to use the News Search
Protocol solely for the purpose of transmitting News Queries and other required information and
receiving News Search Results Sets solely to the extent permitted hereunder. Except to the limited
extent expressly provided in this Agreement, Google does not grant, and Customer shall not
acquire, any right, title or interest (including, without limitation, any implied license) in or
to any Google Intellectual Property; and all rights not expressly granted herein are reserved to
Google.


6. Image Search Services. Customer may add Image Search Services to any Site only upon
obtaining the prior written consent of Google, which consent may include one or more screenshots
of the approved Image Search implementation. In such event, the provisions of this Section will
apply, but until such time, the provisions of this Section will have no effect.




     6.1. Scope of Image Search Services. If Customer elects and Google consents to add
to Image
Search Services to a Site as provided above, then from such time until the end of the Services
Term and
subject to the terms and conditions of this Agreement, Google will provide Customer with
search results
(“Image Search Results”) through its Image Search service (the “Image Search Service”) for
display on
the Image Search Sites as permitted herein.



     6.2. Implementation of Image Search Services. Unless otherwise agreed to by the parties in
writing, Customer shall implement the Image Search Services in a manner that: (a) conforms
to the Image
Search Specifications set forth in the Cover Page(s) of this Order Form, if any; (b) conforms
to Google’s
brand treatment guidelines for Image Search Services, as updated by Google from time to time;
(c)
conforms to any screenshots and specifications approved by Google in writing in advance (any
such
screenshots being incorporated herein by reference as of the date of Google’s written approval
thereof); and
(d) otherwise complies with the technical and implementation requirements provided by Google
from time to
time, including those instructions contained in the documentation setting forth the protocol
provided by
Google for accessing the Image Search Services, as such protocol may be updated by Google from
time to
time (the “Image Search Protocol”). Without limiting the foregoing, Customer acknowledges and
agrees to
the following:



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          6.2.1. Image Search Boxes and Image Queries. Customer shall implement on each
Image
Search Site a search box (each, a “Image Search Box”) for End Users to enter image search queries (each,
a “Image Query”). Customer shall send any and all Image Queries received by Customer from End Users
to Google in accordance with the requirements provided by Google, without editing, filtering, truncating or
otherwise modifying such Image Queries, either individually or in the aggregate. Customer understands and
agrees that Image Queries sent to Google for processing hereunder may be initiated only through Image
Search Boxes implemented on an Image Site as provided herein, unless otherwise approved by Google in
writing. As used herein, “Valid Image Queries” means Image Queries sent to Google in compliance with
the requirements of this Agreement.




          6.2.2. Operation of Image Search Services. Customer will ensure that each Image Query will (a)
be from a list of Valid IP Addresses; (b) contain a Client ID; and (c) include End User IP address and user
agent information (if then required). Upon Google’s receipt of a Valid Image Query, Google will transmit up
to twenty (20) Image Search results, to the extent available (each such set being referred to as an “Image
Search Results Set”), via Google’s network interface in accordance with the Image Search Protocol.
Customer shall then display, in each instance, the entire Image Search Results Set that corresponds to such
Image Query in the manner contemplated by this Agreement, without editing, filtering, reordering, truncating
or otherwise modifying such Image Search Results Set.




          6.2.3. Layout and Indemnification Obligations. Customer shall take reasonable steps to
minimize any legal risks associated with offering image search on any of its Sites, including but not limited
to: (a) ensuring that the page on which the Image Search Results (an “Image Results Page”) is displayed is
similar to the image results page used by Google on its Web site; (b) complying with such other layout and
implementation requirements as Google may reasonably request from time to time; and (c) not displaying
any advertising (whether provided by Google or a third party) on any Image Results Page. To the extent
Customer or any Site uses Image Search Results in a manner inconsistent with the foregoing, then, in
addition to any other rights and remedies available to it, Google may terminate or suspend its performance
under this Agreement if Customer fails to conform its use within two (2) calendar days after receiving written
notice from Google.




          6.2.4. Labeling, Branding and Attribution. Each Image Search Box and each Image Results
Page shall conspicuously display a graphic module, in the form as provided by Google from time
to time,
that unambiguously indicates that the Image Search Results Sets are provided by Google.
Customer
agrees that it shall not place anything on the Site that in any way implies that information
other than the
Image Search Results Sets are provided by Google, unless otherwise expressly provided herein.
The
Google graphic module shall be, at minimum, 75 x 32 pixels in size and located Above-the-fold,
unless
otherwise directed by Google.




     6.3. License to Image Search Protocol. Google grants to Customer a limited,
nonexclusive and non-sublicensable license during the Services Term to use the Image Search
Protocol solely for the purpose of transmitting Image Queries and other required information and
receiving Image Search Results Sets solely to the extent permitted hereunder. Except to the
limited extent expressly provided in this Agreement, Google does not grant, and Customer shall not
acquire, any right, title or interest (including, without limitation, any implied license) in or
to any Google Intellectual Property; and all rights not expressly granted herein are reserved to
Google.


7. AdSense for Search Services.




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



     7.2. Implementation of AFS Services.
Unless otherwise agreed to by the parties in writing,
Customer shall implement the AFS Services in a manner that: (a) conforms to the AFS
Specifications set
forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand
treatment guidelines for
AFS Services, as updated by Google from time to time, the current version of which is located
at
http://www.google.com/wssynd/02brand.html; (c) conforms to the screenshots and
specifications set forth in
Exhibit B attached hereto; and (d) otherwise complies with the technical and
implementation requirements
provided by Google from time to time, including those instructions contained in the
documentation setting
forth the protocol provided by Google for accessing the AFS Services, as such protocol may be
updated by
Google from time to time (the “AFS Protocol”). Without limiting the foregoing, Customer
acknowledges and
agrees to the following:



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




          7.2.2. Operation of AFS Services. In addition to the requirements set forth in Section 5,
Customer will ensure that each WebSearch Query will request no fewer than the minimum number
of AFS
Ads per AFS Results Page stated in the Cover Page(s) of this Order Form. Upon Google’s receipt
of a Valid
WebSearch Query, in addition to Google’s obligation to transmit WebSearch Results, Google will
transmit at
least such minimum number of AFS Ads requested by Customer, to the extent available (each such
set
being referred to as an “AFS Results Set”), via Google’s network interface in accordance with
the AFS
Protocol. Customer shall then display, in each instance, the entire AFS Results Set that
corresponds to
such WebSearch Query in the manner contemplated by this Agreement, without editing, filtering,
reordering,
truncating or otherwise modifying such AFS Results Set.




          7.2.3. Labeling, Branding and Attribution. Customer shall unambiguously mark each AFS Ad,
or each cluster or grouping of AFS Ads, as a “Sponsored Link” or “Sponsored Links,” as the
case may be,
unless otherwise instructed or agreed by Google. In any event, Google reserves approval
authority to
ensure that AFS Ads are labeled in a manner so as to sufficiently distinguish them from search
results.




     7.3. License to AFS Protocol. Google grants to Customer a limited, nonexclusive and
non-sublicensable license during the Services Term to use the AFS Protocol solely for the purpose
of transmitting WebSearch Queries and other required information and receiving AFS Result Sets, as
applicable, solely to the extent permitted hereunder. Except to the limited extent expressly
provided in this Agreement, Google does not grant, and Customer shall not acquire, any right,
title or interest (including, without limitation, any implied license) in or to any Google
Intellectual Property; and all rights not expressly granted herein are reserved to Google.


8. AdSense for Content.




     8.1. Scope of AdSense for Content Services. If selected on the cover page(s) of this
Order Form,
during the Services Term and subject to the terms and conditions of this Agreement, Google
will provide
Customer with advertisements (“AFC Ads”) and related advertising links (“Related Ad Links”)
through its
AdSense for Content Service (the “AFC Service”) for display as permitted herein on the URL(s)
identified on
the cover page(s) of this Order Form as the AFC Site(s) (the
“AFC Site(s)”). Customer agrees to implement
such AFC Service on the AFC Sites as provided herein within thirty (30) days of the Order Form Effective
Date, and thereafter during the Services Term. Customer agrees to implement the AFS Service on any AFS
Site added thereafter as contemplated by Section 3.3 herein. AFC Ads shall not appear on search results,
registration, “thank you,” error, email, chat, and message board pages; Google may update the list of
prohibited pages from time to time during the Services Term upon written notice.



     8.2. Implementation of AFC Services. Unless otherwise agreed to by the parties in writing,
Customer shall implement AFC Services in a manner that: (a) conforms to the AFC Specifications
set forth
in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment
guidelines for AFC
Services, as the same may be updated by Google from time to time, the current version of which
is located
at http://www.google.com/wssgnd/adsense guidelines.html; (c) conforms to
the screenshots and
specifications set forth in Exhibit C attached hereto; and (d) otherwise complies with
the technical and
implementation requirements provided by Google from time to time, including those instructions
contained in
the documentation setting forth the applicable protocol provided by Google for accessing the
AFC Services,
as such protocol may be updated by Google from time to time (the “AFC Protocol”). Without
limiting the
foregoing, Customer acknowledges and agrees to the following:



          8.2.1. AFC Requests. Customer shall request AFC Ads in accordance with the AFC Protocol
specified by Google for any and all pageviews required to display AFC Ads as provided herein
(each such
request being referred to as an “AFC Request”).




          8.2.2.
Server Side Implementations. For server side
implementations (e.g., XML
implementations), each AFC Request (a) must be from a list of Valid IP Addresses; (b) must
contain a Client
ID; and (c) must include End User IP address and user agent information. Upon Google’s
receipt of an AFC
Request as described above, Google will transmit AFC Ad(s), to the extent available (the set
of AFC Ads
sent in response to an AFC Request being referred to as an “AFC Results Set”), via Google’s
network
interface in accordance with the AFC Protocol. Customer shall then display, in each
instance, the entire




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AFC Results Set that corresponds to
such AFC Request in the manner contemplated by this
Agreement, without editing, filtering, reordering, truncating or otherwise modifying such AFC
Results Set. Customer will not send more than one (1) AFC Request per Web page pageview unless
otherwise authorized by Google.




     8.2.3. Client Side
Implementations. For client side implementations (eg., iFrame or
Javascript
data feed implementations), each AFC Request must contain an AFC Client ID provided and used
as
specified by Google. Upon Google’s receipt of an AFC Request as described above, Google will
transmit an
AFC Results Set, to the extent available, via Google’s network interface in accordance with
the AFC
Protocol. Customer’s code shall, in each instance, ensure the display of the entire AFC
Results Set that
corresponds to such AFC Request in the manner contemplated by this Agreement, without editing,
filtering,
reordering, truncating or otherwise modifying such AFC Results Set. Customer will not send
more than one
(1) AFC Request per Web page pageview unless otherwise authorized by Google.



     8.2.4. Labeling. AFC Results Set shall be identified with the label “Ads by Google” as
reflected in
Exhibit C to this Order Form, unless otherwise instructed or agreed by Google.



     8.2.5. Related Ad Links. If Customer implements Related Ad Links provided by Google,
Customer understands and agrees to the following additional provisions: (a) if applicable,
in no event will
End User clicks on Related Ad Links, or the display of a Related Ad Links on a Customer Web
page in and
of itself, qualify as a click on an Ad, or an “Impression,” as the case may be, for purposes
of determining
Customer’s click or impression guarantees (if any) or Google’s payment or other obligations
under this
Agreement; and (b) notwithstanding anything to the contrary, Related Ad Links are
automatically generated
and consequently are provided to Customer “as is,” with no representation or warranty, express
or implied,
and, for the avoidance of doubt, any obligation Google may have to indemnify, defend or hold
Customer
harmless under this Agreement will in no event extend to any claims that in any way arise out
any Related
Ad Links provided hereunder. Customer further understands and agrees that Google is under no
obligation
to offer related ad links, and any agreement between the parties to provide related ad links
on the Sites will
be subject to Google’s right to discontinue such offering.



     8.3. License to AFC Protocol. Google grants to Customer a limited, nonexclusive and
non-sublicensable license during the Services Term to use the AFC Protocol solely for the purpose
of transmitting AFC Requests and other required information and receiving AFC Results Sets solely
to the extent permitted hereunder. Except to the limited extent expressly provided in this
Agreement, Google does not grant, and Customer shall not acquire, any right, title or interest
(including, without limitation, any implied license) in or to any Google Intellectual Property;
and all rights not expressly granted herein are reserved to Google.


9. Site Modifications. Google acknowledges that Customer, or Customer’s Clients, may
update the
design and content of the Sites in a manner consistent with the provisions of this Agreement;
provided that
Customer agrees that (a) it shall keep Google informed of all material changes planned by Customer
to
such Sites; and (b) no changes may be made to the look and feel, dimension and/or placement of the
WebSearch Results, News Search Results, Image Search Results, AFS Ads or AFC Ads, without obtaining
the prior written consent of Google. For the avoidance of doubt, Google may, and the foregoing
will in no
event limit Google’s ability to, require changes to the look and feel, content or targeting
methodology of any
such Results or Ads provided herein.



10. Filters.




     10.1. General. Certain Services may contain filtering capability, such as
SafeSearch, Country
Restrict, Language Restrict, AdSafe and other filters. Notwithstanding anything to the
contrary, if Customer
elects to enable any such filters, Customer expressly acknowledges and agrees (a) it is
Customer’s
responsibility to enable such features in accordance with the instructions provided by Google
in the
applicable Service protocol, and (b) that Google cannot and does not make any representation,
warranty or
covenant that all results will be limited to results elected by enabling such filter(s). For
example, but without
limiting the foregoing, if Customer elects SafeSearch, Country Restrict, Language Restrict
and/or AdSafe,
Google cannot and does not make any representation, warranty or covenant that all results will
be limited to
the countries or languages selected or that all objectionable results will be prevented.



     10.2. URL Blocking. During the Services Term, Google will use commercially reasonable efforts to
exclude from Ads served under this Agreement Ads that contain the URLs set forth on
Exhibit D attached
hereto and made part hereof. Notwithstanding anything to the contrary, Customer understands
that Google
cannot and does not commit or guarantee that no Ads will contain any of the URLs listed in
Exhibit D.


11. Updates. If Google updates its technical or implementation specifications {including,
without limitation,
by way of updating the applicable Service protocol) from time to time as contemplated herein,
Customer





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shall implement such updates or modifications as soon as reasonably practical, but in any
event within fifteen (15) days of the date it receives notice thereof.



12.
Notice of System Changes. Customer will provide Google with fourteen (14) days’
advance notice of
any change in the code or serving technology used to display Google advertising and/or search
results (e.g.,
a change in the advertising serving technology used) that could be reasonably be expected to have
the
potential to adversely affect the delivery or display of Google search or advertising results as
required by this
Agreement (it being understood that notice will in no event relieve Customer of its obligations to
display
search and advertising results as required hereunder).



13. Optimization. The parties agree to consult in good faith from time to time with the
objective of optimizing the performance of Ads served under this Agreement.



14.
AdWords Link. Customer agrees to promote the Google AdWords Program (including any
successor
programs thereto) by placing on the Sites a link in the form as provided by Google from time to
time that
contains the Google logo, text and a link to facilitate registration of advertisers in the Google
AdWords
Program (“AdWords Link”). Customer shall provide to Google the URL for any Site page containing
an
AdWords Link (“AdWords Link Page”) and shall promptly notify Google in writing of any change to any
AdWords Link Page. Unless otherwise agreed to by the parties in writing: (a) the specific size
and location
of the AdWords Link within the AdWords Link Page shall conform to the specifications provided by
Google
from time to time, and (b) the AdWords Link shall be displayed Above-the-fold.



15. Technical Support. The Technical Contact may use the following Google e-mail
aliases to submit requests for TSS:



• websearch-support@google.com (for WebSearch Services requests)

• syndication-support@google.com (for GSLP requests)

• media-suppport@google.com (for AdSense Services requests)



16.
Fees and Payment Terms.




     16.1.
WebSearch Services. On or before the Order Form Effective Date, Customer
shall submit a
completed Google credit application form. If applicable, Customer shall pay the
non-refundable Annual
Service and Support Fee and the first payment of the Monthly WebSearch Fee Minimum as
indicated on the
Order Form, which shall be due on the Order Form Effective Date and payable upon execution thereof.
For all other WebSearch Fees (including Monthly WebSearch Fee Minimums), Google shall bill Customer
monthly at the rates stated on Cover Page(s) of this Order Form and all such fees shall be due and payable
“net thirty (30) days” from date of invoice. Within thirty (30) days of the end of each month during the
Services Term, Google shall provide Customer with WebSearch Services usage reports in the form
generally made available at that time.



     16.2. News Search Services. The provisions of this paragraph apply only to the extent that
Customer elects to order and Google agrees to provide News Search
Services as provided herein. If applicable, Customer shall pay the non-refundable Annual Service and Support Fee and the first
payment of
the Monthly News Search Fee Minimum as indicated on the Order Form, which shall be due as
agreed by
the parties. For all other News Search Fees (including Monthly News Search Fee Minimums),
Google shall
bill Customer monthly at the rates stated on Cover Page (s) of this Order Form and all such
fees shall be due
and payable “net thirty (30) days” from date of invoice. Within thirty (30) days of the end of each month
during the Services Term, Google shall provide Customer with News Search Services usage reports in the
form generally made available at that time.



     16.3. Image Search Services. The provisions of this paragraph apply only to the extent that
Customer elects to order and Google agrees to provide Image Search Services as provided
herein. If
applicable, Customer shall pay the non-refundable Annual Service and Support Fee and the first
payment of
the Monthly Image Search Fee Minimum as indicated on the Order Form, which shall be due as
agreed by
the parties. For all other Image Search Fees (including Monthly Image Search Fee Minimums),
Google shall
bill Customer monthly at the rates stated on the Cover Page(s) of this Order Form and all such
fees shall be
due and payable “net thirty (30) days” from date of invoice. Within thirty (30) days of the
end of each month
during the Services Term, Google shall provide Customer with Image Search Services usage reports in the
form generally made available at that time.



     16.4. AdSense for Search. Subject to the terms and conditions of this Agreement, for each month
during the Services Term Customer shall receive the Applicable Percentage (as defined below)
of Net AFS
Revenues attributable to such month. Google’s obligation to pay Customer’s percentage of
Net AFS
Revenues shall not commence until Google’s technical personnel provide written approval of
Customer’s
implementation of the AFS Service on each AFS Site, which shall not be unreasonably withheld
or delayed.



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Payments required under this paragraph shall be made by the last day of the calendar month
following the calendar month in which the applicable AFS Ads were displayed on the AFS Sites, and
shall be accompanied by a revenue report in the form generally made available at that time.




     16.5. AdSense for Content. Subject to the terms and conditions of this Agreement, for
each month
during the Services Term Customer shall receive the Applicable Percentage of Net AFC Revenues
attributable to such month. Google’s obligation to pay Customer’s percentage of Net AFC
Revenues shall
not commence until Google’s technical personnel provide written approval of Customer’s
implementation of
the AFC Service on each AFC Site, which shall not be unreasonably withheld or delayed. Payments
required under this paragraph shall be made by the last day of the calendar month following the calendar
month in which the applicable AFC Ads were displayed on the AFC Sites, and shall be accompanied by a
revenue report in the form generally made available at that time.



     16.6. Ad Revenues: Applicable Percentage; Applicable Deduction.



          16.6.1. “Net AFS Revenues” means (a) Ad Revenues derived from clicks on AFS Ads (excluding
Non-Qualifying Ads as defined below) displayed on AFS Site pages approved for the AFS Service
minus (b)
the Applicable AFS Deduction.




          16.6.2. “Net AFC Revenues” means (a) Ad Revenues derived from clicks on AFC Ads (excluding
Non-Qualifying Ads as defined below) displayed on AFC Site pages approved for the AFC Service
minus (b)
the Applicable AFC Deduction.




          16.6.3. “Ad Revenues” means gross ad revenues minus agency fees, referral fees, costs related
to third party advertising service providers, and discounts.




          16.6.4. “Applicable Percentage” with respect to any calendar month during the Services Term
means [*].




          16.6.5. “Applicable AFS Deduction” in any calendar month during the Initial Services Term
means [*].
Notwithstanding
anything to the contrary, Google reserves the right to increase the Applicable AFS Deduction
[*] after the Initial Services Term by [*] in each case by providing
advance written
notice to Customer, together with an explanation supporting such increase.




          16.6.6. “Applicable AFC Deduction” in any calendar month during the Initial Services Term
means [*].




     16.7. Non-Qualifying Ads. Notwithstanding any of the foregoing under this Section,
Google shall not
be liable for payment in connection with (a) any amounts which result from invalid queries, or
invalid
impressions of (or clicks on) Ads, generated by any person, bot, automated program or similar
device,
including, without limitation, through any Fraudulent Act, as reasonably determined by
Google; (b)
impressions of Ads or clicks on Ads delivered through an implementation which is not initially
approved by
Google pursuant to the Agreement or subsequently fails to meet Google’s technical requirements
and
specifications; and (c) Ads that advertise Google products or services (collectively,
“Non-Qualifying Ads”).
The number of queries, and impressions of and clicks on Ads, as reported by Google, shall be the number
used in calculating payments hereunder.



     16.8. Methods of Payment.



          16.8.1. Payments to Google. All payments due to Google shall be in the currency
specified in this Order Form. Any charges for converting foreign currency shall be the
responsibility of Customer and shall be invoiced accordingly. If paid in US dollars, payments to
Google shall be made preferably via wire transfer with the following instructions:




	 	 	 	 	 
	[*]

	 	 
	 	 





If paid in US dollars and not wired to Google, payment shall be made by check for receipt by
Google at the address specified on the Order Form on or before the payment due date. If payment is
made in any other currency, payment shall be made by wire pursuant to the wire instructions
specified below on this Order





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*CERTAIN
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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Form (or if no applicable wire instructions are specified, payment shall be made using the US
wire transfer instructions above). Delinquent payments due to Google shall bear interest at the
rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less)
from the payment due date until paid in full. Customer will be responsible for all reasonable
expenses (including legal fees) incurred by Google in collecting unpaid or delinquent amounts. In
addition, Google may suspend performance and/or terminate this Order Form upon fourteen (14) days
written notice if Customer fails to make any required payment when due unless such payment is made
within such fourteen (14) day notice period. If Google reasonably deems itself insecure with
respect to Customer’s ability to meet its financial obligations under the Agreement, Google may, at
its sole option, modify the payment terms or require other reasonable assurances or forms of
security prior to providing or continuing to provide any Services.




     16.8.2. Payments to Customer. Payments to Customer (if by wire transfer) shall be
made pursuant to the wire transfer instructions specified on this Order Form. In addition,
Customer acknowledges that Google may, at its option, offset its payment obligations to Customer
it may incur under the Agreement against any product or service fees (including late fees) owed
and not yet paid by Customer under the Agreement or any other agreement between Customer and
Google, in addition to whatever other rights and remedies Google may have.



     17. Authority to Bind. Each of Customer’s and Google’s signatory to this Order Form
represents and warrants that he or she has the power and authority to accept and bind Customer and
Google, as the case may be, to the terms of this Order Form.


This Order Form may be executed in counterparts, including facsimile counterparts, each of which
shall be deemed and original, and all of which, when taken together, shall constitute one and the
same instrument. An original copy, if requested, shall be sent to the following Customer contact
reference identified above (check one): þ Corporate o Billing o Legal




	 	 	 	 	 	 	 
	Google: GOOGLE INC.	 	Customer: SYNACOR, INC
	 
	 	 	 	 	 	 
	By:

	 	/s/ Joan Braddi
	 	By:
	 	/s/ M. Drew Buckley
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Print Name: Joan Braddi	 	Print Name: M. Drew Buckley
	 
	 	 	 	 	 	 
	Title: VP, Search Services	 	Title: Vice President, Business Development
	 
	 	 	 	 	 	 
	Date: 6/30/04	 	Date: 6/25/04







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Exhibit A1



WebSearch Sites, AFS Sites. AFC Sites




[*]





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




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Exhibit A2

Customer Premium Content Sites Approved for Search Box




[*]





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



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Exhibit B



WebSearch and AFS Implementation Mockup








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Exhibit C

AFC Implementation








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Exhibit C Continued








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Exhibit D

URL Blocklist




To come, based on the mutual agreement of the parties.




Google Confidential

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