EX-10.17.2



 





EXHIBIT
10.17.2



CONFIDENTIAL
TREATMENT REQUESTED



EXECUTION COPY




SYNACOR

MASTER SERVICES AGREEMENT




1. PARTIES and EFFECTIVE DATE




1.1 Parties (each a “Party” and collectively, the “Parties).



	 	 	 	 	 	 	 	 	 	 	 
	Synacor, Inc.	 	(“Synacor”)	 	ACC Operations, Inc. (“Client”)
	Attention:

	 	George Chamoun
	 	Attention:
	 	Jeff Turner	 	 	 	 
	 

	 	(the “Synacor Representative”)
	 	 	 	(the “Adelphia Representative”)	 	 	 	 
	Address:

	 	50 Fountain Plaza, Suite 1520
	 	Address:
	 	DTC Parkway	 	 	 	 
	 

	 	Buffalo, New York 14202

	 	 	 	Englewood, Colorado 80111	 	 	 	 
	Telephone:

	 	716-853-1362 ext. 216
	 	Telephone:
	 	303-268-6362	 	 	 	 
	Fax:

	 	716-332-0081
	 	Fax:
	 	303-268-6382	 	 	 	 






1.2 Effective Date. July 13, 2004




2. SYNACOR SERVICES AND RESPONSIBILITIES



2.1 Services. Subject to the terms and conditions of this Master Services Agreement (this
“Agreement”), Synacor will provide the services contracted for hereunder, as more particularly
described in this Agreement, including the Content Distribution Addendum (the “Addendum”), Schedule
A, Schedule B, Schedule C, and any other schedules, attachments, exhibits, addenda, amendments or
riders that may be attached to this Agreement from time to time (collectively, the “Services”).
Synacor may provide the Services directly to Client, or indirectly using contractors or other third
party vendors or service providers; provided that, Synacor shall first obtain a written agreement
from any such contractor or third party that such contractor or third party shall be bound by
confidentiality obligations at least as protective of the Proprietary Information (as defined in
Section 5.1 herein) of the Parties as the provisions of Section 5 of this Agreement and Synacor
shall in all events be responsible to Client for any action or inaction of such contractors or
third parties. Each party shall provide the other with reasonable cooperation, assistance,
information and access as may be necessary to initiate Client’s and its registered users’ use of
the Services (such as, for example, developing any content, user interfaces or appearance specific
to the Services contracted for by Client). The Services will be available to customers of Client
subscribing to Client’s high speed internet (“HSI”) access service through a unique, HSI account
number issued by Client (collectively, “Users”).



2.2 Additional Services. Upon mutual agreement of the Parties, Client may engage Synacor to provide
development services or other professional services in addition to the Services. Such additional
services shall be provided pursuant to a separately executed Professional Services Addendum. From
time to time, Synacor may offer additional services to Client that are beyond the scope of this
Agreement. All such additional services shall be provided upon terms and conditions as the Parties
may mutually establish in writing which, provided that such additional services result in software,
computer programs or other work product which is developed exclusively for Client (collectively,
“Work Product”), shall include provisions relating to the ownership of such Work Product,
including, without limitation, the intellectual property rights in such Work Product by Client as
“works made for hire” for all purposes of copyright law.



2.3 Technical Support. Synacor will provide the Services and technical support services in
accordance with the requirements set forth in this Agreement, including, without limitation,
Schedule B — Service Level Agreement, attached hereto and made a part hereof.



2.4 Limitations. Synacor will not be responsible for, nor liable hereunder in connection with, any
failure in the Services due to or resulting from: (a) any Client Materials (as defined in Section
3.3 herein) or other content provided by or for Client by parties other than Synacor; (b) Client’s
negligence or Client’s acts or omissions; (c) telecommunications or equipment failures outside of
Synacor’s facilities, except for those facilities owned, operated or maintained by Synacor, or by a
third party on behalf of Synacor, necessary for Synacor to connect to the Internet; and (d)
scheduled maintenance as set forth in Schedule B. Further, except for breaches of Synacor’s
representation and warranty set forth in Section 8.1(g) hereof, Synacor will not be responsible
for, or liable hereunder, in connection with, any failure in the Services due to or resulting from
unauthorized access, breach of firewalls or other hacking by third parties of the System.




 









 





2.5 User Information. As between Synacor and Client, Client shall own all User names, login IDs,
passwords and other User registration information provided by Client and Users in connection with
the Services (“Account Information”). Unless otherwise agreed to by Client in advance and in
writing, Synacor shall not disclose to third parties or use any Account Information except as
reasonably necessary to perform its obligations under this Agreement or to comply with any legal or
regulatory requirement; provided that, to the extent not otherwise prohibited by law, Synacor shall
provide Client with prompt notice of any such legal or regulatory requirement in order that Client
may comply with the provisions of Client’s privacy policy and/or any applicable federal, state and
local privacy laws, rules and regulations and/or seek a protective order with respect to such
Account Information. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject
at all times to Section 5.2 herein, Synacor may disclose aggregate information (not personally
identifiable) of Users and Service usage and performance derived from Account Information to
Synacor Providers (as defined in the Addendum), Synacor customers and Synacor investors; provided
that, no such information shall identify Client or any User or contain any Client-specific or
User-specific information.



3. CLIENT RESPONSIBILITIES




3.1 Client Support; Synacor Status. Client acknowledges that the continuing performance of certain
Services may depend on Client’s cooperation, assistance, information and access to Synacor. If
Client fails to timely provide any of the foregoing, then Synacor will not be liable for any delay
in its performance. The Parties’ Representatives (designated in Section 1.1) are responsible for
facilitating communication between Synacor and Client regarding all technical and business matters.



3.2 Regulations. Client will use the Services only in compliance with all applicable federal, state
and local laws, rules and regulations (including, without limitation, laws related to “spamming,”
privacy, obscenity and defamation) (collectively, the “Regulations”). Client acknowledges and
agrees that each User’s access to the Services is subject to such User’s acceptance of an “end user
agreement” or “terms of use” regarding the Service and continuing compliance with the Regulations.
Synacor has no obligation to monitor the Client Materials or other content provided by or for
Client, except for Synacor Sourced Services (as defined in the Addendum). Synacor may do so,
however, and may remove any content or disable or terminate any use of the Services that Synacor,
in good faith, believes may be (or which is alleged to be) in violation of any Regulation.



3.3 Materials and Equipment. Client will provide (on its own behalf, or on behalf of its sponsors
or advertisers) certain materials, domain names, Client Sourced Services (as defined in the
Addendum) and other information (collectively, “Client Materials”) to Synacor as reasonably needed
by Synacor to perform the Services. Client represents and warrants that it has the right to provide
all Client Materials, and that use of such Client Materials hereunder will not violate Client’s
obligations under any other agreement, the Regulations and any privacy policies covering any Client
Materials. Except for any hardware, software and other technology used by Synacor to provide the
Services, Client shall be responsible for obtaining, operating and maintaining in good working
order all equipment and ancillary services under Client’s control needed in order for Users to
connect to, access or otherwise use the Services via the Internet, including modems,
authentication/provisioning servers, network hardware/software and such network and communication
services necessary to connect Users to the Internet (“Equipment”). Client shall ensure that all
Equipment is compatible with the Services (and, to the extent applicable, any software interface)
and that the Equipment complies with all configurations and specifications set forth in the Synacor
Specifications, attached hereto as Schedule C, which Schedule C the Parties hereby acknowledge is
subject to finalization, upon mutual agreement, within the thirty (30)-day period immediately
following the Effective Date. Client shall be responsible for the maintenance and integrity and
security of its Equipment (physical, electronic and otherwise), Account Information, passwords,
Client Materials and other data provided by Client to Synacor.



4. CLIENT LICENSE; SYNACOR PROPRIETARY RIGHTS.




4.1 License Grant. Client hereby grants to Synacor during the Term a nonexclusive, worldwide and
royalty-free right and license to use, reproduce, modify, distribute, perform and display the
Client’s Marks (as defined herein) solely in connection with the
Services hereunder.



4.2 No Implied Licenses. Except for the limited rights and licenses expressed hereunder, each Party
shall retain all right, title and interest in and to its logos and product and service names, which
shall at all times remain trademarks



2









 







of such party (the “Marks”), technology and other intellectual property (including, without
limitation, in the case of Synacor, the Services and the software used by Synacor to provide the
Services (the “Software”)). Neither Party shall take any action inconsistent with such ownership.
Each Party acknowledges that, as between the Parties, Client’s Marks and Synacor’s Marks are the
exclusive property of the respective Party and/or one or more entities affiliated with such Party
and neither Party has, nor will acquire, any proprietary rights thereto by reason of this Agreement
or otherwise. This is a contract for services only. All software, hardware and other technology
used to provide the Services will be installed, accessed and maintained only by or for Synacor and
no license therein is granted to Client. Client shall not use Synacor’s Marks, Software or Services
in any manner except as specifically provided herein. Synacor shall not use Client’s Marks in any
manner, except as specifically provided herein. No title to or ownership of any Client Sourced
Service, Client Marks or Client Materials and/or any part thereof is hereby transferred to Synacor
or any third party, nor shall any rights therein accrue to Synacor or any third party as the result
of the performance of this Agreement by either Party.



4.3 Restrictions. Except as specifically permitted in this Agreement, Client shall not, directly or
indirectly: (a) use any of Synacor’s Proprietary Information (as such term is defined in Section
5.1) to create any software that is similar to the Software; (b) decompile, disassemble, reverse
engineer or use any similar means to attempt to discover the source code of the Software or the
trade secrets therein, or otherwise circumvent any technological measure that controls access to
the Software or Services; (c) encumber, transfer (except as expressly permitted pursuant to Section
12 herein), rent, lease, or time-share the Software or Services, or use the Software or Services in
any service bureau arrangement or otherwise for the benefit of any third party, except for Users;
(d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify
the Software; (e) remove any proprietary notices; or (f) permit any third party to engage in any of
the acts proscribed in clauses (a) through (e).



5. CONFIDENTIALITY.




5.1 Proprietary Information. Each Party understands that the other Party or its representatives has
disclosed or may disclose during the course of this Agreement Proprietary Information (as defined
below) and each of the Parties desire to protect the confidentiality of its own Proprietary
Information. For purposes of this Agreement, “Proprietary Information” means any information
disclosed by either Party in the following forms: (a) information originally disclosed in written,
graphic, machine-readable or any other tangible medium, to the extent marked with a
“confidential,” proprietary” or similar legend, or (b) information disclosed orally, to the extent
identified as Proprietary Information at the time of such original disclosure. For purposes hereof,
any and all Account Information shall be deemed Proprietary Information of Client whether or not
marked as such, or identified as such, prior to disclosure. Proprietary Information shall not
include any information that the receiving Party can demonstrate by its written records (i) is or
becomes generally available to the public without breach of this Agreement; (ii) was in its
possession or known by it prior to receipt from the disclosing Party at a time when the receiving
Party was under no obligation to the disclosing Party to keep such information confidential; (iii)
was rightfully disclosed to it by a third party; or (iv) was independently developed without use of
any Proprietary Information of the disclosing Party. The Party claiming that any of the foregoing
exceptions applies shall have the burden of proving such applicability. Any issue that the
receiving Party may have as to the confidentiality expectations of the disclosing Party regarding
particular information shall be submitted to the disclosing Party for determination.



5.2 Non-Disclosure. Each Party shall refrain from copying the other Party’s Proprietary
Information, in whole or in part, except as required in furtherance of the uses permitted by this
Agreement and subject to the accurate reproduction of all proprietary legends and notices located
in the originals, and shall limit dissemination of the other Party’s Proprietary Information to
employees and agents of the receiving Party, or of the receiving Party’s affiliates, who have a
need to know such Proprietary Information in furtherance of the uses permitted by this Agreement.
Except for the specific rights granted by this Agreement, neither Party shall use or disclose any
Proprietary Information of the other Party without its written consent. The receiving Party shall
treat the Proprietary Information of the other Party with the same degree of confidentiality with
which it treats its own Proprietary Information, and, in any event, the receiving Party shall use a
commercially reasonable degree of care to protect the Proprietary Information of the other Party.
Each Party shall bear the responsibility for any breach of confidentiality by its employees,
agents, auditors and contractors. The terms and conditions of this Agreement shall be kept
confidential, except for (a) disclosure as may be required by law, regulation, court or government
agency of competent jurisdiction (redacted to the greatest extent possible); or (b) disclosure to
each Party’s respective officers, directors, employees and attorneys, in their capacity as such;
provided that, such parties shall be subject to this



3









 







Section 5.2. Notwithstanding the foregoing, each Party may disclose the general nature, but not any
specific terms, of this Agreement without the prior consent of the other Party.



5.3 Required Disclosure. Nothing herein shall prevent a receiving Party from disclosing all or part
of the other’s Proprietary Information as necessary pursuant to the lawful requirement of a
governmental agency or when disclosure is required by operation of law; provided that, prior to any
such disclosure, the receiving Party uses reasonable efforts to (a) promptly notify the disclosing
Party in writing of such requirement to disclose, to the extent not otherwise prohibited by law;
(b) cooperate fully with the disclosing Party in protecting against any such disclosure or
obtaining a protective order; (c) only disclose that portion of Proprietary Information which it is
advised in writing by counsel it is required to disclose; and (d) obtain safeguards that
confidential treatment reasonably acceptable to the disclosing Party will be accorded to such
Proprietary Information. Any such required disclosure shall not, in and of itself, change the
status of the disclosed information as Proprietary Information under the terms of this Section 5.



5.4 Return of Proprietary Information; Ownership. All Proprietary Information shall remain the
exclusive property of the disclosing Party and a valuable trade secret of such Party and the
original and all copies thereof, on whatever physical, electronic or other media such Proprietary
Information may be stored, shall be returned upon the earlier to occur of: (a) the expiration or
earlier termination of this Agreement, or (b) within ten (10) business days of the disclosing
Party’s request. Nothing in this Agreement shall be construed as granting any license or other
rights under any patents or copyrights of either Party, or any rights in or to Proprietary
Information of either Party, except for the limited rights to use and disclose such Proprietary
Information expressly granted to the other Party in this Agreement.



5.5 Relief. The Parties each acknowledge that the rights being protected by this Section 5 are of a
special, unique, unusual and extraordinary character, which gives them a particular value, and that
money damages will not be an adequate remedy if Section 5 is breached and, therefore, the
disclosing Party shall, in addition to any other legal or equitable remedies, be entitled to seek
an injunction or similar equitable relief against such breach or threatened breach without the
necessity of posting any bond.



6. SYNACOR FEES, PAYMENT TERMS AND TAXES.




6.1 Fees. Synacor’s fees for the Services are set forth in the Pricing Schedule attached hereto as
Schedule A and made a part hereof.



6.2 Payment Terms. Except as otherwise provided in this Agreement or any amendment, addendum,
attachment, exhibit, rider or schedule attached hereto as the same may be amended from time to time
pursuant to their terms, all payments shall be due [*] after receipt of an
applicable invoice. All payments shall be made in full in United States Dollars, at Synacor’s usual
business address or to an account designated by Synacor. Other than amounts disputed in good faith
by Client, any amount not paid when due shall bear a late payment charge, until paid, at the rate
of [*] or, if less, the maximum amount permitted by law. Synacor, in its
sole discretion, may terminate this Agreement or cease providing services if Client fails to pay
any invoice [*] after the Client receives written notice from Synacor that it
has failed to pay an invoice and such invoice, or any part thereof, is not in dispute. Client must
notify Synacor of any disputed invoice amounts [*] of receipt of such invoice
and provide a full explanation for any disputed amounts.



6.3 Taxes. Client shall be responsible for and shall pay any and all sales, use, personal property
or other taxes imposed on the delivery, licensing or use of the Client Branded Portal (as defined
in Schedule A) or the provision of the Services. Synacor shall pay all other taxes arising under
this Agreement, including without limitation, taxes based upon Synacor’s net income or ad valorem,
personal, or real property taxes imposed on Synacor’s property.



7. TERM AND TERMINATION.




7.1 Term. This Agreement shall commence as of the date hereof and, unless earlier terminated
pursuant to the terms hereof, shall continue thereafter in full force and effect for a period of
[*] from the Effective Date (the “Initial Term”) and, except as provided in the
immediately following sentence, will
automatically renew thereafter for up to [*] each (each a
“Renewal Term”) (the Initial Term and all




 

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





4









 







Renewal
Terms being referred to as the “Term”). Either Party may prevent the automatic renewal of
this Agreement by providing written notice to the other Party of such non-renewal not less than
[*] prior to the expiration of the Initial Term or the then-current Renewal Term.



7.2 Termination for Cause. In addition to any of its other remedies, either Party may terminate
this Agreement: (a) in the event that the other Party materially breaches any provision of the
Agreement and the breaching Party fails to cure such breach within thirty (30) days after receiving
written notice of such breach from the non-breaching party; or (b) effective immediately upon
written notice, in the event any assignment is made by the other Party for the benefit of
creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take
charge of any or all of such other Party’s property, or if a voluntary or involuntary petition
under federal bankruptcy laws or similar state statutes is filed against the other Party, or if it
dissolves or fails to operate in the ordinary course. Synacor acknowledges that Client is a debtor
and debtor in possession pursuant to Chapter 11 of Title 11 of the United States Code (the
“Bankruptcy Code”), in the case entitled In Re Adelphia
Communications Corporation, et al., Case
No. 02-41729 (REG) (the “Bankruptcy Case”), pending in the United States Bankruptcy Court for the
Southern District of New York (the “Bankruptcy Court”). Notwithstanding anything in this Agreement
to the contrary, the Bankruptcy Case shall not be cause for termination under this Section 7.2 or
any other provision of this Agreement.



7.3 Effects of Termination. Upon any expiration or earlier termination of this Agreement, all
rights and obligations of the Parties shall cease, except that: (a) all obligations that accrued
prior to the effective date of termination (including, without limitation, all payment obligations)
shall survive termination; (b) each Party shall destroy (upon the written request of the other
Party) or return to the other Party all of the other’s Proprietary Information in its possession or
under its control pursuant to Section 5.4; and (c) Synacor shall, after providing Client with an
electronic copy of such information and data in a mutually agreeable format, delete archived
Account Information and other transaction data. The provisions of Sections 4.2 and 4.3
(Proprietary Rights), 5 (Confidentiality), 6 (Synacor Fees, Payment Terms and Taxes), 8
(Representations and Warranties; Indemnities), 9 (Limitations of Liability and Disclaimers), 12
(General Provisions) and this Section 7 shall survive any termination of this Agreement.



[*]




 



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








5









 











8. REPRESENTATIONS AND WARRANTIES; INDEMNITIES.




8.1 Synacor Representations and Warranties. Synacor represents, covenants and warrants to Client
that (a) Synacor is duly organized and validly existing under the laws of its state of
incorporation and has full power and authority to enter into this Agreement and to carry out the
provisions hereof; (b) the execution, delivery and performance of this Agreement by Synacor does
not conflict with any agreement, instrument or contract, to which Synacor is bound; (c) Synacor
shall perform the Services [*]; (d) Synacor owns all right,
title and interest in and to the Software, the Synacor Sourced Services and the System, each
element thereof, and all intellectual property rights embodied therein or licensed to Client
pursuant to this Agreement; or, in the case of any third party content, software, technology or
information included therein, Synacor possesses, or has otherwise obtained all rights and valid
licenses necessary to grant to Client all rights and licenses set forth in this Agreement; (e)
Synacor has all necessary rights in the Software and the Services and all rights of publicity with
respect to any artists, artwork, text material, images, sound or video, if any, associated with the
Services; (f) the Software, the Synacor Sourced Services, the System, the Services and the Client
Branded Portal, in whole or in part, do not and shall not infringe or interfere with any right of
publicity, patent, trademark, copyright, trade name or other intellectual property rights or
misappropriate any trade secret of any third party; (g) Synacor shall [*] protect its network in accordance with [*] to insure that
Synacor’s network and the Services are secure from unauthorized access and are free from any
viruses, worms, or other code that will damage, interrupt or interfere with any software, content,
data or hardware; and (h) the Services and the Software (excluding any tools, applets or other
software included in or comprising any Synacor Sourced Services and any tools developed by Synacor
which have expressly been discussed with Client and which Client has agreed shall be made available
to Users) shall not cause any disruption, interruption or failure to any of Users’ end user
equipment or Users’ ability to access the Internet. Synacor further represents and warrants that,
to its knowledge, the Synacor Sourced Services and the Services are not defamatory, obscene, or
otherwise unlawful in any jurisdiction, Synacor further represents and warrants to Client that
during the Term, the Services shall be provided in accordance with applicable United States federal
law and the laws of such other jurisdictions as may be applicable thereto by qualified personnel.
Synacor shall use commercially reasonable efforts, consistent with applicable industry standards
and practices, to provide the Services in a manner designed to minimize errors and interruptions.
Nonetheless, Services may be temporarily unavailable for scheduled maintenance or for unscheduled
emergency repairs, by Synacor or by third-party providers, or because of other causes beyond
Synacor’s reasonable control, subject at all times to the provisions of Paragraph 8 of Schedule A
and to Schedule B.



8.2 Client Representations and Warranties. Client represents, covenants and warrants to Synacor
that (a) Client is duly organized and validly existing under the laws of its state of incorporation
and has full power and authority to enter into this Agreement and to carry out the provisions
hereof; (b) the execution, delivery and performance of this Agreement by Client does not conflict
with any agreement, instrument or contract, to which Client is bound; (c) Client owns all right,
title and interest in and to the Client Materials, including, but not limited to, the Client
Sourced Services, each element thereof, and all intellectual property rights embodied therein or
licensed to Synacor pursuant to this Agreement; or, in the case of any third party content,
software, technology or information included therein, Client possesses, or has otherwise obtained
all rights and valid license necessary to grant to Synacor all rights and licenses set forth in
this Agreement; and (d) to Client’s knowledge the Client Materials are not defamatory, obscene, or
otherwise unlawful and do not infringe or interfere with any intellectual property, contract, right
of publicity, or any other proprietary right of any individual or entity. Client shall be fully
responsible for, and shall reimburse Synacor for any and all liabilities arising out of, any
warranty concerning the Services made by Client to any User, prospect or other third party, except
as expressly authorized in advance in writing by Synacor.



8.3 Synacor Indemnifications. Synacor shall indemnify, defend and hold harmless Client, its
permitted assigns and each of Client’s and its permitted assigns respective present and former
officers, shareholders, directors, employees, partners and agents from and against any and all
liabilities, claims, judgments, costs,
damages, suits, actions, proceedings, and expenses, including without limitation, reasonable
attorneys’ fees, and/or other losses (collectively “Claims”) suffered or incurred by Client,
arising out of or resulting in any manner from: (i) Synacor’s breach of any of its obligations
under this Agreement, or its representations and warranties set forth herein; (ii) the failure of
any of the representations or warranties made by Synacor herein to be true; (iii) any third party
claims relating to the matters covered by the foregoing breaches or failures; (iv) any injuries to
persons or damage to property caused by the negligent, willful or intentional acts or omissions of
Synacor, its agents or employees; and (v) any third party claims relating to the Services.




 



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







6









 





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



8.5 Claims. In case any Claim is brought by a third party for which indemnification is or may be
made pursuant to this Agreement, the indemnified Party shall provide prompt written notice thereof
to the other Party; provided, however, that the failure of the indemnified Party to comply with the
foregoing notification provision shall not relieve the indemnifying Party of its indemnification
obligations hereunder, except to the extent the indemnifying Party is actually and materially
prejudiced thereby. Where obligated to indemnify such Claim, the indemnifying Party shall, upon the
demand and at the option of the indemnified Party, assume the defense thereof (at the expense of
the indemnifying Party) within [*] to the time a
response is due in such case, claim or proceeding, whichever occurs first. The Parties shall
cooperate reasonably with each other in the defense of any Claim, including making available (under
seal if desired, and if allowed) all records reasonably necessary to the defense of such Claim, and
the indemnified Party shall have the right to join and participate actively in the indemnifying
Party’s defense of the Claim. Each Party shall be entitled to prior notice of any settlement of any
Claim to be entered into by the other Party and to reasonable approval of a settlement to the
extent such Party’s rights would be directly and materially impaired. Without limiting the
foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any
portion of the Software and/or Services provided by Synacor: (i) upon Client’s request and at
Synacor’s expense, Synacor will use its best efforts to procure the right or license, on
commercially reasonable license terms, for Client to continue to use and otherwise exploit in
accordance with the terms hereof such portion of the Software and/or Services at no additional cost
or expense to Client other than the fees set forth herein; or (ii) at Synacor’s sole discretion,
but upon as much prior written notice to Client as is reasonably practicable, Synacor may modify or
alter (to the extent that Synacor has rights to so modify or alter), or delete any such portion of
the Software and/or Services, as the case may be, so as to make such portion non- infringing while
maintaining substantially comparable functionalities and capabilities of such parts of the Software
and/or Services that are material to Client’s then-current or demonstrably anticipated use
hereunder. If options (i) and (ii) are not achievable as to any such infringing portion of the
Software and/or Services: (1) Client may terminate the rights and licenses granted hereunder, in
its sole discretion, as to such infringing portion; provided that, if the termination of such
infringing portion materially impairs the core functionality and/or capabilities of the Software,
then such infringement shall be deemed a material breach under this Agreement, and Client may
thereafter pursue all of its rights and remedies available under this Agreement and at law or in
equity in addition to terminating as to such infringing portion pursuant to this clause (1), or (2)
to the extent Synacor used commercially reasonable efforts to obtain a license or modify the
Software and/or Services as set forth in subsections (i) or (ii), and Synacor is reasonably exposed
to liability from Client’s continued use of such portion of the of the Software and/or Services,
Synacor may, in its discretion, terminate the rights and licenses granted hereunder with respect to
such portion; [*].



8.6 Insurance. Synacor shall obtain, before the commencement of the Services herein
described, and, during the term of this Agreement, maintain in full force and effect, the insurance
coverage described in this Section with an insurance carrier or carriers approved by Client, which
approval shall not be unreasonably withheld. Synacor shall include Client as an additional insured
party in Synacor’s liability insurance policies obtained hereunder. The minimum acceptable limits
and types of coverage shall be not less than [*] combined single limit per occurrence for
each of the following categories: (a) commercial general liability, covering the risks of bodily
injury, property damage and personal injury (including death); and (b) automobile liability (owned
and unowned) covering the
risks of public liability and property damage. Additionally, Synacor shall, throughout the Term and
for a period of not less that twelve (12) months following the expiration or earlier termination of
this Agreement, maintain in full



 



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







7









 







force and effect professional liability (technology errors and omissions) insurance in an amount
not less than [*]. Synacor shall obtain, before the commencement of the Services herein,
and, during the term of this Agreement, maintain, in full force and effect, worker’s compensation
coverage in amounts commensurate with the statutory requirements of the states in which the
Services are to be performed. Client will not be responsible for payment of worker’s compensation
premiums or for any other claim or benefit for Synacor, or any employees, agents, contractors or
subcontractors of Synacor, which might arise under the worker’s compensation laws during the
performance of Services under this Agreement. Synacor shall require any and all of its contractors
and subcontractors to take out and maintain similar policies of insurance as described in this
Section 8.6 or be properly certified under applicable state law as self-insured. A certificate of
such insurance policy carried shall be furnished to Client upon request. Synacor shall, prior to
the commencement of work under this Agreement, provide to Client a certificate of insurance
evidencing such coverage as mentioned above, which shall also provide that Client will be notified
in writing at least thirty (30) days prior to renewal, cancellation of, or any change in, coverage
during the term of this Agreement.



9. LIMITATIONS OF LIABILITY AND DISCLAIMERS.




ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY,
ITS AGENTS, AFFILIATES, CLIENTS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES. HOWEVER, WITH RESPECT TO LOST REVENUES OR LOST PROFITS, THE FOREGOING
DISCLAIMER SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING OR OBTAINING LOST REVENUES OR LOST PROFITS
TO THE EXTENT THAT SUCH ARE EXPRESSLY PROVIDED FOR BY STATUTE OR OTHERWISE ALLOWED BY LAW AS THE
MEASURE OF DIRECT DAMAGES (INCLUDING TREBLE DAMAGES RESULTING FROM WILLFUL INFRINGEMENT) WITH
RESPECT SOLELY TO (A) ANY BREACH BY EITHER PARTY OF ITS OBLIGATIONS OF CONFIDENTIALITY UNDER
SECTION 5 (CONFIDENTIALITY), OR (B) LIABILITIES ARISING IN CONNECTION WITH A PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (BUT WITH RESPECT TO THIRD PARTY DAMAGES ONLY). EXCEPT
WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.3 HEREIN AND ITS
CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 HEREIN TO WHICH NO LIMITATION SHALL APPLY, IN NO
EVENT WILL SYNACOR’S LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING
TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER EXCEED THE
GREATER OF: (1) THE AMOUNT SYNACOR HAS RECEIVED FROM CLIENT IN THE AGGREGATE UNDER THIS AGREEMENT
DURING THE TERM HEREOF, OR, (2) [*].



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



EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, SYNACOR MAKES NO WARRANTY WITH RESPECT TO ANY
SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SYNACOR DOES NOT WARRANT
OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE CONTENTS OF ANY
CONTENT OR THE RESULTS TO BE OBTAINED FROM THEIR USE. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 8.3 HEREIN, SYNACOR SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY
LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF
ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.



EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 ABOVE, CLIENT MAKES NO WARRANTY WITH RESPECT TO ANY
CLIENT SOURCED SERVICE AND EXPRESSLY DISCLAIMS ANY WARRANTY,




 



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







8









 







EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 8.4 HEREIN, CLIENT SHALL NOT BE LIABLE TO THIRD PARTIES FOR ANY LOST PROFITS OR
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.



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



11. RECORDS AND AUDIT.




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



(b) If any report of an audit under the provisions of subsection (a) of this Section discloses to
the auditing Party any underpayments or overpayments, a copy of such audit report shall be promptly
delivered to the audited Party. Unless the amount of any underpayment or overpayment shown on such
report is disputed by the audited Party in writing (a “Notice of Dispute”) within twenty (20) days
after receipt of the audit report, the audit report shall be deemed accepted and all amounts due
thereunder shall be paid according to the applicable provisions of subsection (a) of this Section.
In the event that Client and Synacor have not resolved all disputed items to their mutual
satisfaction within thirty (30) days after a Notice of Dispute has been received by the auditing
Party, the Parties shall promptly submit such audit report and all supporting work papers to an
independent accounting firm (i.e., an accounting firm that does not, and has not, provided any
services to either Party or to any of the Parties’ subsidiaries or affiliated entities) of national
stature in the United States selected by mutual agreement of Client and Synacor for binding review
of any disputed items. All costs and expenses of such review shall be apportioned between the



9









 







Parties on the basis of each Party bearing the expense of that portion of the review which shall be
related to disputed items that are resolved against such Party. If Client and Synacor are unable to
agree upon the selection of an independent accounting firm of national stature in the United States
to perform the binding review of any disputed items, the determination and selection of the
independent accounting firm of national stature shall be settled by arbitration in Buffalo, New
York in accordance with the rules and regulations of the American Arbitration Association.



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



[SIGNATURE BLOCKS FOLLOW ON NEXT PAGE]




10









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SYNACOR, INC.	 	 	 	ACC OPERATIONS, INC. (CLIENT)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ George Chamoun
 

	 	 
	 	By:
	 	/s/ Marwan Fawaz
 

	 	 	 	 	 	 
	 

	 	Name: George Chamoun
	 	 	 	 	 	Name: Marwan Fawaz	 	 	 	 	 	 
	 

	 	Title: SVP
	 	 	 	 	 	Title: CTO/SVP	 	 	 	 	 	 
	Date:

	 	7/21/2004
	 	 	 	Date:
	 	July 13th, 2004	 	 	 	 	 	 







11










 





SCHEDULE A




TO

SYNACOR MASTER SERVICES AGREEMENT

PRODUCT & PRICING SCHEDULE




     This Schedule A forms a part of, and is governed by, the Synacor Master Services Agreement
dated July 21 2004, by and between Synacor, Inc. and ACC Operations, Inc., including any schedules,
attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the
“Agreement.”) Any capitalized terms used in this Schedule A and not defined herein shall have the
meanings ascribed to such terms in the Agreement.


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




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




     (a) Portal deliverables consist of the following product elements:




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






 



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







A-1









 






	 	 	 	connections. Synacor shall be responsible for providing and maintaining the
equipment necessary to maintain the Peering connection to Synacor’s data center,
including, without limitation, routers, cross-connects and necessary hardware; and
	 
	 	(vii)	 	assistance from Synacor in obtaining Peering connections to Synacor
Provider Content which Client accesses utilizing the Service.





     (b) The Portal deliverable shall be Synacor’s standard portal product, together with User
Authentication (as defined in the Synacor Specifications) (the “Portal Deliverable”), customized
with Client’s color scheme, logo, design elements and other ‘look and feel” elements as determined
by Client (the “Appearance Requirements,” as more fully described in the Synacor Specifications),
which shall be delivered within ninety (90) days after the Effective Date, unless the Parties
otherwise mutually agree. The Client Branded Portal will provide the functionality described in the
Synacor Specifications. If Client desires additional appearance or functionality for the Client
Branded Portal, the Parties will, upon Client’s request, negotiate in good faith for at least
thirty (30) days with respect to additional deliverables and the cost to Client for such additional
deliverables. Client will use good faith efforts to launch the Client Branded Portal to Users
within sixty (60) days after acceptance of the Client Branded Portal as provided in Paragraph 7 of
this Schedule A.



     (c) The fees associated with delivery of Client Branded Portal and Portelus Technology are
listed below:



          (i) [*]




          (ii)[*]








 



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







A-2









 






[*]


 



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









A-3









 








[*]




2. Portal Content:




     (a) The below-listed initial Content (the “Initial Information Services”) will be integrated
into the Client Branded Portal [*]:



          (i) Switchboard: Including Yellow, White Pages, Maps, Restaurant Search;




          (ii) [*] Search;




          (iii) Horoscopes;




          (iv) Auto Channel — currently provided by [*];




          (v) Career Channel — currently provided by [*]; and




          (vi) Travel Channel — currently provided by [*].




     (b) The following Portal content may be integrated into the Client Branded Portal, for the
costs listed below, which will be pass-through costs from third party content providers to Client,
with no mark-up by Synacor:



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






 



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







A-4









 









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





          (ii) Local movie listings by Zip Code





     [*]


3. Synacor Sourced Services Fees. For purposes of creating a fee structure, relevant Synacor
Sourced Services may be bundled into products as described below (the “Synacor Products”) at the
request of Client, and subject to Client’s prior written approval. In the event Client elects any
such Synacor Product, each month, Synacor shall bill Client for an amount determined [*]. For purposes hereof, a
“Subscription Account” is defined as an account that allows a User access to a given Synacor
Product utilizing Unified Login.




     Synacor Products may be made available from time to time to Client for distribution to Users
as described in separate Content Attachments (as defined in Paragraph 9 of the Addendum) and for
the monthly fees described in such Content Attachments.




	 	 	 	[*]





     The first annual billing
cycle shall end on the first anniversary of the Effective Date.


4. High Capacity Bandwidth and Hardware Fees. Synacor would prefer for the Client to host products
such as video streaming, which are considered high capacity Internet bandwidth (“High Capacity”)
services. Client agrees to reasonably pay, on a monthly basis, the fees or other charges incurred
by Synacor (at Synacor’s cost), for the additional internet connectivity bandwidth and/or hardware
required to host High Capacity services hosted directly on Synacor’s network, at Client’s choosing.



5. Content Integration Fees. Client will pay to Synacor an integration fee in connection with any
new third party premium content or services (each a “Client Sourced Service”), that is not a
Synacor Sourced Service and which Client requests Synacor to integrate into the Client Branded
Portal and that requires utilization of Unified Login. Provided that such integration requires [*] of software development time, such fee will be [*]. Subsequent to such
integration, such Client Sourced Service shall, so long as Client continues to make such Client
Sourced Service available to Users by way of the Client Branded Portal, be managed by Synacor, [*], pursuant to the terms of the Agreement as if it were a Synacor Sourced Service,
including, without limitation, Unified Login Registration and Revision Management (each as defined
in the Synacor Specifications). If such integration is reasonably anticipated by Synacor to require [*] of software development
time, Synacor will prepare a detailed statement of work for such integration, including the fee
payable to Synacor, which shall be approved by Client prior to the commencement of work. [*]



 




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







A-5









 






[*]



6. Professional Services. The following services are considered professional services:




     (i) Integration beyond Synacor’s APIs;



     (ii) Portal customization beyond the look, feel, element placement and similar options
embedded in the Synacor Portal template (as defined in the Synacor Specifications) as of the date
of the Agreement;



     (iii) Onsite Training and Travel; and



     (iv) Other programming or customizations not specified in the Synacor Specifications.



     Such Professional Services shall be billed at the rate of [*].


7. Acceptance Process. Client may test and approve the Client Branded Portal prior to launching it
to Users. Commencing upon the delivery to Client of the Client Branded Portal as set forth in the
Synacor Specifications and continuing up to [*] days thereafter (the “Test
Period”), Client shall have the right and will use its best efforts to test that the Client Branded
Portal substantially meets both the Appearance Requirements and the Synacor Specifications. Within
five (5) business days after the expiration of the Test Period, Client will provide Synacor with
(a) written acceptance of the Client Branded Portal, or (b) written rejection, including a
reasonably detailed explanation therefor (a “First Rejection Notice”), if the Client determines in
good faith that the Client Branded Portal does not substantially meet the Appearance Requirements
and/or the Synacor Specifications. In the event the Client does not deliver a First Rejection
Notice as provided herein, the Client Branded Portal shall be conclusively deemed to have been
accepted by the Client. In the event that Client provides a First Rejection Notice, then Synacor
will use its best efforts to correct the identified failures as soon as commercially reasonable
and, in no event, later than [*] days after receipt of such First Rejection
Notice Synacor shall resubmit the Client Branded Portal to Client for further testing for a period
of not more than [*] days (the “Second Test Period”) by Client with respect to
the specific failed criteria. Within [*] days after the expiration of the Second Test
Period, Client will provide Synacor with either (i) written acceptance of the Client Branded
Portal, or (ii) written rejection if Client determines in good faith that the failed criteria
identified in the First Rejection Notice have not been corrected, including a reasonably detailed
explanation therefor (a “Second Rejection Notice”). In the event the Client does not deliver a
Second Rejection Notice as provided herein, the Client Branded Portal shall be conclusively deemed
to have been accepted by the Client. In the event that Client provides a Second Rejection Notice,
Client shall resubmit the Client Branded Portal to Synacor and Synacor will use its best efforts to
correct the identified failures as soon as commercially reasonable and, in no event, later than
[*] days after receipt of such Second Rejection Notice, Synacor shall resubmit
the Client Branded Portal to Client for final testing. Client shall conduct final testing for a
period of not more than [*] days (the “Final Test Period”) with respect to the
specified failed criteria. Within [*] days after the expiration of the Final Test
Period, Client will provide Synacor with (A) written acceptance of the Client Branded Portal, or
(B) written rejection if Client determines in good faith that the failed criteria identified in the
First Rejection Notice or Second Rejection Notice have still not been corrected (a “Final Rejection
Notice”). In the event the Client does not deliver a Final Rejection Notice as provided herein, the
Client Branded Portal shall be conclusively deemed to have been accepted by the Client. If Client
provides a Final Rejection Notice and Client has not otherwise agreed to pursue further development
and/or testing of the Client Branded Portal, the Final Termination Notice shall constitute a notice
of termination of the Agreement without further liability of either Party to the other, provided,
however, that Synacor shall return [*] to Client within [*] after receipt of the Final Rejection Notice.



8. Technical Support. Synacor will provide Client Tier 2 e-mail and telephone support to Client’s
escalation specialists. These specialists will be trained by Synacor to offer support to Client’s
First-Level Support staff. Synacor shall make its support center standard hours available 24 hours
per day, 365 days per year throughout the Term.




     (a) Escalation and Tracking Process. Synacor will provide an effective process to track
escalations from Client Technical Support. Synacor Customer Service will process two (2) types of escalation
methods from Client:




 




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





A-6









 






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






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






	 	(ii)	 	Phone: In the event that a support issue so requires (e.g., Priority 1,
Portal Unavailability, or Synacor/Client Unavailability), or is otherwise better
addressed by a telephone call rather than e-mail, Client may by-pass Escalation
Level 1 (as defined below) support and apply Escalation Level 2 support and
initiate a call directly to a Synacor support specialist. Such calls will be placed
solely from a Client escalation group person who is responsible for initiating
Level 2 support requests. Following each such call, a Client escalation Level 2
support person will send an e-mail confirming all the technical details regarding
the issue. Synacor will follow the same process of tracking such issues via the
e-mail Ticket Tracking system.
	 
	 	(iii)	 	The Ticket Tracking number allows a Client support agent to easily
follow the progress of the case resolution process and maintain the integrity of
the e-mail exchange thread.
	 
	 	(iv)	 	Each incoming e-mail from Client will be queued in a Client-specific
queue (partnersupport) until a Synacor support agent assigns it to himself/herself
and marks it as “work in progress” until the case is resolved.





     (b) The escalation process starts with the troubleshooting, diagnosis, and resolution as
Client’s service team receives alerts, they are prioritized and assigned to a Synacor support
technician. The Synacor support technician then attempts to diagnose and fix the problem quickly
and efficiently. Should the problem be too severe for simple solution by Client, the problem
incident is escalated to the Synacor development team as soon as practical.




	 	(i)	 	Escalation Process Example






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






	 	(ii)	 	Synacor Escalation Response Times





	 	 	 	 	 
	Escalation Levels	 	Escalation Response Time	 	Contact Information
	Level
1 — Email

Technical Support
Agent

	 	Synacor Technical
Support Agents
available 24 hours
	 	E-mail: adelphia@synacor.com.






A-7









 







	 	 	 	 	 
	Escalation Levels	 	Escalation Response Time	 	Contact Information
	 

	 	per day, 7 days per week.	 	 
	 
	 	 	 	 
	Level 2 — Voice

Support Specialist

	 	If Level 1 issue is not
answered within 4 hours
from Level 1, Synacor
automatic escalation to
Level 2.
	 	[*]
	 
	 	 	 	 
	Level 3

Support Management

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

Account Manager

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

Product Management

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

VP Engineering

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







	 	a.	 	Priority 1 or Portal Unavailability Issues:






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






	 	b.	 	Service Level






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





     (c) Incident Management


Synacor’s Client Support Group will be responsible for the control and management of incident calls
and their assignment of priority and escalation to resources within Synacor in their sole and
absolute discretion.



The following priority allocations will apply:







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



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



Follow-up — Provide updates to Client every sixty (60) minutes until the problem is resolved.
Client will also receive in writing a complete post-mortem of the outage within two (2) business
days, to include, but not be limited to, the number of Users using the Client Branded Portal during the outage, reason for the
outage, duration, and resolution.






A-8





 


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









 











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



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



Follow-up
— Provide updates to Client every sixty (60) minutes until problem is resolved. Client
will also receive in writing a complete post-mortem of the outage within two (2) business days, to
include, but not be limited to, the number of Users using the Client Branded Portal during the
outage, reason for the outage, duration, and resolution.









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



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



Follow-up
— Provide updates to Client as soon as practical.







	 	(d)	 	Customer Info Required for Synacor Support:






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






	 	(e)	 	Escalation Information:






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






	 	(f)	 	FAQ Documentation. Synacor will build a FAQ (frequently asked questions) prior to
the Portal launch and updated as frequently as necessary during the term by Synacor, for
the portal that Client can review and modify at Client’s choosing. The FAQ page will
contain both Client Branded Portal and Content questions that consumers have asked in the
past.




9. Training. Synacor will build a training manual for the Client Branded Portal and Content that
Client can modify. Synacor will be responsible for training Client’s customer support trainers on
the Client Branded Portal and Content that are sourced through Synacor. Synacor will train for up
to six (6) days without charging additional professional services. If travel is required, Client
will be responsible for reasonable travel expenses as mutually agreed upon by Synacor and Client
prior to Synacor incurring such expenses.



A-9




 


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










 








SCHEDULE B

TO

SYNACOR MASTER SERVICES AGREEMENT




SERVICE LEVEL AGREEMENT




     This Schedule B forms a part of, and is governed by, the Synacor Master Services Agreement
dated July 21 2004, by and between Synacor, Inc. and ACC Operations, Inc., including any schedules,
attachments, exhibits, addenda, amendments or riders attached thereto (collectively, the
“Agreement.”) Any capitalized terms used in this Schedule B and not defined herein shall have the
meanings ascribed to such terms in the Agreement.



I. General





Synacor shall provide the agreed upon service levels seven (7) days a week, twenty-four (24)
hours a day, three hundred sixty-five (365) days a year, consisting of monitoring,
notification, repair of service outages and maintenance, as set forth in this Service Level
Agreement (this “SLA”).




It is expected that the evaluation of Synacor’s performance against this SLA will be evaluated
on a quarterly basis, beginning ninety (90) days from the date of the Agreement.




Client has the right to review any service level agreement of any Synacor Provider (each, a
“Synacor Provider SLA”) whose Content is proposed to be made available to Users. If Client
chooses to include such Synacor Provider’s Content, then Client shall have the right to
enforce the service level requirements set forth in the pertinent Synacor Provider SLA against
Synacor as apply to such Synacor Provider vis a vis Synacor under such Synacor Provider SLA
and Synacor shall extend fee credits and any other adjustments to Client in amounts or
percentages identical to the amounts or percentages to which Synacor may be entitled under
such Synacor Provider SLA. Synacor and Client shall work in good faith to appropriately modify
this SLA if Client chooses to migrate the Services directly to Client’s IP network as set
forth in Paragraph l (a)(v) of Schedule A to the Agreement.



II. Monitoring





In an effort to detect potential problems before they impact the availability and performance
of the System or the Services, Synacor monitors the status of its systems using both automated
and manual tools employed in its 24 by 7 system monitoring and administration. Synacor will
work with Client to create any reasonable scripts necessary for accessing performance data,
agreed upon by Synacor and Client, necessary for Client’s network operations center to perform
health checks on the Services and to use in the event that customer troubleshooting is needed.
Synacor shall also share any performance data it has available including, but not limited to,
what is defined herein with Client upon Client’s written request within five (5) business days
of such request.




Such monitoring includes, but is not limited to:




System availability, Service availability, database connectivity and performance, System
load, network availability and performance, System usage.



III. Reporting





Synacor will provide access to the following standard reporting tools, which will deliver
reports through a web-based interface:




SUBSCRIBER DATA




	 	1.	 	Number of Users
	 
	 	2.	 	User Cancellations






MONTHLY USAGE DATA




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




B-1









 











     Such reporting tools can be enhanced as mutually agreed upon by the Parties at Synacor’s
standard professional services rates.



IV. System Availability





“System Availability” is defined as the operable state of Synacor’s entire service platform in
that service functionality, including, but not limited to, the Client Branded Portal,
Synacor/Client Authentication, the method in which billing data is derived and transmitted to
Client, routers, switches, servers, operating systems, and any software application running on
the servers that supports the Client, is available to Client and its Users [*]% of the time
during any given calendar month (i.e., the System will be available at all times throughout
the pertinent month, except for up to forty-three (43) minutes cumulative downtime time during
such month), excluding scheduled maintenance. System Availability does not take into account:
(i) the performance or inability of Users to access Synacor’s systems as a result of such
Users’ Internet/network connection; (ii) Synacor Providers’ ability to update or deliver
content, excluding the unified login functionality between Synacor and the third party
providers, although any Synacor Provider SLA will apply to such Synacor Provider’s Content as
set forth above; or (iii) occasions where, due to the architectural design of the Internet,
access to Synacor’s systems is prohibited based on a User’s Internet Service Provider’s
(“ISP”) fault or failure or by the path (route) traveled in accessing Synacor’s systems,
except those facilities in which Synacor is in direct control. The Parties hereby acknowledge
and agree that the instances described in clauses (i), (ii) and (iii) of this Paragraph IV
shall not be included in the calculation of System Availability against which the SLA applies.



V. System Availability; Performance





System Intrusion or Denial of Service “DOS” Attack In the event of a System intrusion
by a “cracker,” “hacker”, any other third party, or DOS attacks, such intrusion shall be
deemed a Priority One (as defined in Schedule C) event and the notification protocol
applicable to a Priority One event will be followed. Client will be notified by Synacor and a
solution will be implemented by Synacor as set forth in Schedule C. Notification by Synacor
will occur upon identification of intrusion. If extensive damage is incurred, including to,
but not limited to, Client data, user data, Systems, due to the failure of Synacor to follow
its published Security Policy (as defined in the Synacor Specifications) then this SLA will
apply.




System Availability; Data Integrity; SLA Credits:




The SLA credits set forth below will be based off of any failure of System Availability, or
Data Integrity (as defined in the System Specifications). In the event that Synacor fails to
meet the provisions of this SLA cumulatively during any calendar month during the Term, then
the following credits will apply against the aggregate Portal Fees, combined with the
aggregate Content Access Fees due for the pertinent month (collectively, the “Aggregate Fees”)
in which such failure occurs:




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






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






	 	1.	 	[*]
	 
	 	2.	 	[*]






	 	b.	 	Synacor API Unavailability






 




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





B-2









 












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






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







	 	c.	 	[*]





Performance



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





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






 




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





B-3









 






	 	 	 	Notice have still not been corrected (a “Final Rejection Notice”). In the event the
Client does not deliver a Final Rejection Notice as provided herein, the Performance
shall be conclusively deemed acceptable by the Client. If Client provides a Final
Rejection Notice and the President of Synacor and the Chief Technology Officer of Client
do not otherwise agree to pursue further Performance testing/ remedies of the System,
the Final Termination Notice shall constitute a notice of termination of the Agreement
without further liability of either Party.





VI. Scheduled Maintenance Windows





Synacor has reserved a two (2)-hour window from 3:00 a.m., EST, to 5:00 a.m., EST, every
Sunday evening -Monday morning for weekly maintenance, should the need for such maintenance
arise. In the event that this window will be needed in a given week, Synacor will provide
Client no less than three (3) business days prior to the window via Clients change control
organization (“Change Management”). The form of notification must conform to Client’s current
Change Management process. If it is determined during the window that the scheduled
maintenance will run over the two (2)-hour window, Client will be notified immediately and
receive updates every sixty (60) minutes or less until the maintenance is complete. During
these scheduled maintenance periods, the System and Services may be unavailable to Client and
Users. If the maintenance period exceeds three (3) hours in any given week, or a cumulative of
twelve (12) hours in any given month in total duration, then the System Availability SLA will
apply. Scheduled Maintenance Windows that do not exceed set limits (i.e., three (3) hours in
any given week, or a cumulative of twelve (12) hours in any given calendar month) are not
counted against System Availability percentages.



VII. Emergency Maintenance Notification





In the event that emergency maintenance (defined as any maintenance that exists that is not
within the standard maintenance window described above, or as to which three (3) business
days’ prior notification is not given) is required, during which time the System and Services
will be unavailable to Client and Users, Synacor will notify the Client as promptly as
practicable and, if possible, during the repair window, and so as not to prolong or negatively
effect system service or its availability. Emergency maintenance windows are counted against
System Availability percentages.



VIII. Incident Management





Synacor’s Client Support Group will be responsible for the control and management of incident
calls and their assignment of priority and escalation to resources within Synacor in their
sole and absolute discretion.




When analyzing a case, it is important that Client understands that the Synacor Support Group
will expect Client to aid in the analysis by providing any information and performing any
actions or tasks requested by the pertinent Synacor Support Group analyst and that is
reasonably necessary to assist the Synacor Support Group in analyzing such case. If Client is
not willing to assist such analyst, Client understands that the case may take longer to solve
and will not be included in the measurement of this SLA.



IX. Product Revision Management





Client will be notified in writing ten (10) business days in advance with respect to minor
product enhancements, which do not substantially affect the Client Branded Portal. For
example, adding personalization to a news component or modifying a Gameblast component so
Client can include additional games within the Client Branded Portal.




For major modifications to the Client Branded Portal, Client and Synacor personnel must first
agree on the appropriate launch date after negotiating in good faith for a period of not less
than ten (10) days; provided that, such launch shall not exceed
[*] days
after the date after which Client requests such modification unless the Parties are unable to
agree upon the launch date after negotiating for such ten (10)-day period. For example,
creating a Flash or DHTML version of the Portal that allowed for dragging and dropping of
components.




 




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





B-4









 





X. Limitations on Content Publishing



Client personnel shall not, unless agreed to in advance by Synacor, upload video files onto
Synacor’s servers.





B-5








 





SCHEDULE C




TO

SYNACOR MASTER SERVICES AGREEMENT

SYNACOR SPECIFICATIONS


[*]




C-1






 


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










 




[*]






C-2





 


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









 






[*]




C-3





 


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











 





[*]




C-4




 


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










 





[*]



C-5





 


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










 





[*]




C-6




 


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










 






[*]



C-7






 


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









 






[*]




Synacor System Security (“Security”)




Security Policy




Access Control





Synacor’s network topology is devised to keep machines hosting sensitive data (IE.
Client specific data) inaccessible from the Internet. In order to facilitate this goal,
the machines are connected only to a Private Network (defined as a network which has no
public route to the Internet and cannot be accessed by any unauthorized Third Party),
with no additional public routes defined, and a set of filtering rules, including but
not limited to TCP/ IP, UDP, and ICMP (“Internet Traffic”), which discards any traffic
from foreign networks or Internet Traffic going to an inappropriate Port.




Hosts (as defined herein) providing public services are insulated from the Internet by
being hosted on a Private Network, with access provided only through a Layer 4 switch
(“Load Balancer”), which only forwards connections to designated Ports (Defined: A port
number represents an endpoint or “channel” for network communications. Port numbers
allow different applications on the same computer to utilize network resources without
interfering with each other)




Access to Servers with Client content or sensitive Client information (“Hosts”) residing
on the Private Network is limited solely to system administration tasks such as
maintenance, monitoring and software/operating system upgrades; company employees not
directly involved with the maintenance of the Hosts are limited to a separate Private
Network designated for their use.




Those cases where less stringent access restrictions are necessary, such as the Hosts
used by our vendors to upload Content to use, are also kept separate from the more
sensitive Private Networks, where no outbound route from the Public Network to the
Private Network is available, so as to isolate Third Party access.




Split horizon DNS is used in order to protect the Hosts, as well as their layout, from
all but authorized Synacor personnel.




Ownership of operating system objects, such as files, directories, and processes are
handled with the principle of least possible privilege — e.g. read and write privileges
are only granted where a demonstrable need exists. “Jails” are used to further isolate
running processes from the rest of the file system whenever feasible. (Defined: A Jail
is when a process is launched with diminished permissions, i.e. access to a limited set
of files and directories, in order to reduce the damage in the event of malicious
execution of the process.)




No file sharing protocols, such as NFS (Defined: As Network File System, allow machines
to mount a disk partition on a remote machine as if it were on a local hard drive) or
SMB (Defined: Server Message Block, is a protocol for sharing files, printers, serial
ports, and communications abstractions such as named pipes



C-8






 


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









 









and mail slots between computers), are utilized when accessing secured hosts from the Public
Network; secure transfers will only be over encrypted mediums using SSH/SCP (as defined
herein).



Software Integrity





The installed base of software on each Host is kept as small as possible. Software packages
which have been deemed unnecessary or redundant have been eliminated so as to minimize the
potential number of access points on any given Server.




When an advisory for installed software is released from sources including CERT,
SecurityFocus/BugTraq, and/or Synacor vendors, Synacor will immediately perform an evaluation
of the relative risk. Highest priority (eg. Priority 1) is given where a known exploit is
published that affects services accessible to public networks. Depending on the nature of the
advisory a given service may be further restricted or shut down as we prepare an update.




The time frames between an advisory, triage, testing and patching differ based on the severity
of the advisory. A critical patch will be applied as soon as it has been staged and tested,
and will receive the highest level of attention from Synacor staff; Adelphia will be notified
either while the patch is being evaluated, or as soon afterward as possible, when relevant to
the customer’s service. Non-critical patches will be applied as part of the Maintenance
Window; however, Synacor may not reveal all details (other than affected services) to the
customer until after the patch has been applied to prevent potential security breaches.




With few exceptions, such as a fundamental design issue that necessitates changes that cannot
be easily ported to installed versions, any updates related to security are applied to the
existing version of the software, even if the fix is released by an upstream source in new
release. This is to avoid ancillary changes which may result in undesired behavior or even new
security risks.




Regardless of source, any updates are tested independently for suitability before general
deployment, both to test the correctness of the fix itself as well as general functionality.
This review process is, of course, expedited in the case of a serious risk. The review process
is: apply patch, build package, install on a test host, review by QA and System Administration
personnel with an attempt to run any known exploit if one exists, install on a pilot machine,
review again, and general deployment.



Data Backups, backup handling:





All data backups are performed once per night, only over a secured Private Network to a
protected Host residing in a locked rack. Backups are kept off-site as defined herein. The
on-call Synacor Systems Administrator is alerted in the event of a backup failure for
immediate resolution. Alltapes that have been used to contain sensitive data are stored in a
locked cabinet in the Synacor operations center, accessible only by Synacor personnel as
described in the Physical Security section below, or in a locked office at Synacor’s corporate
headquarters, accessible only to Synacor’s Systems staff and Controller.



Failover Testing





In order to ensure that the redundancy of Synacor’s architecture is working, Synacor will
perform failover testing on the following components during initial deployment, and once every
six (6) months, including but not limited to, web servers, database servers, and redundant
network equipment. Additionally, load balancers will be failover tested once every three (3)
months.



Monitoring and Auditing





Monitoring of hosts is performed both through the use of a central server and agents running
on the individual machines. Among other things, log files and running processes are
periodically checked against a checklist specifically given to that class of Host. Any
deviation is immediately brought to the attention of the on-call Synacor personnel.




The polling occurs every 5 minutes for each Host. Push updates from the clients are also on a
5 minute interval with slight delay randomization. There are processes running on two separate
machines which



C-9









 






ensure connectivity to the monitoring server and contact a Synacor administrator in case of
failure. In addition, a test message is sent through the Monitoring notification
infrastructure every 30 minutes in order to ensure that Monitoring infrastructure is operating
to the designed specifications.




In addition to local logging, each host reports a subset of system events to a central Host,
which is monitored by the Synacor staff for any suspicious activity. Logs are archived for a
period of one (1) year.



Physical Security



Twenty-Four (24) hour by Seven (7) days a week building security, including but not limited to
uniformed guard service, interior and exterior closed-circuit television surveillance, provided by
the Main Place Liberty Group.



The collocation facility, provided by Switch and Data, includes several forms of security and
access control including but not limited to individual pass card access to the administration
facility, with an additional secured door protecting the server room. Inside the facility is an
additional closed-circuit television system, with the additional capability for off-site monitoring
by authorized personnel.



Staffing of the facility is maintained Twenty-Four (24) hour by Seven (7) days a week, providing
constant monitoring and a point of contact for any non-secured personnel. Visitors are required to
be signed in and are provided with escort until such time as they vacate the secured area.



The only personnel allowed physical access to Synacor’s servers are authorized Synacor employees,
paid contractors, and vendors or other entities escorted by authorized Synacor staff members.




Authentication and Authorization



Accounts on any Host are created on a strictly discretionary basis, with access on most Hosts being
restricted solely to Synacor administration staff. Superuser (root) access is even more stringently
restricted, with no one outside the current Synacor administration staff having access to the
passwords.



When each account is created it is created it is assigned a one time (Non-Dictionary) password,
which is transmitted to the intended user face-to-face or through a phone call in which the
recipient’s identity is verifiable , in order to facilitate the user setting their own. All
passwords, including those which are strictly temporary, are verified with the ‘cracklib’ (Defined:
A password library which can be used to prevent users from creating passwords which can easily be
guessed by and intruder) module to be sufficiently strong.



Once accounts are created, authentication is done solely via encrypted channels: either TLS
(“Transport Layer Security”) or SSH (“Secure Shell”).




Incident Management



Synacor has adopted the following Incident Response Plan. Incidents are defined as malicious
attacks to gain access to Synacor systems, including hacking attempts and other intrusions.
Identifiable denial-of-service attacks are also included, when they target equipment controlled by
Synacor.




Security Incident Response Team (“SIRT”)



The primary SIRT team will be comprised of the following roles:



The SIRT Team Leader, currently the Systems Manager, is responsible for overseeing the team and
conducting policy review once a year and after each incident.





C-10









 




The SIRT Incident Lead will be selected based on the nature of the incident, and will either be a
Synacor System Administrator, Network Administrator, or the IT Manager. The Incident Lead is
responsible for coordinating and reporting on the response.



The SIRT Communications Lead is responsible for managing communications between the response team,
internal interested parties such as account managers and Synacor executives, and external clients
as appropriate. This role is currently assigned to the Senior Account Manager.




Incident Response Plan




Notification





When an incident is identified, either as the result of internal monitoring or other
notification, the on-call Synacor Systems Administrator will immediately notify the Team
Leader, who will assign an Incident Lead and notify the Communications Lead. The on-call
Systems Administrator will follow an escalation procedure to notify technology managers
if the Team Leader is unavailable. The time from initial identification to the start of
the assessment stage is not to exceed thirty (30) minutes.




The following types of events will trigger notification to the on-call Systems Administrator:




	 	•	 	detected intrusions on servers
	 
	 	•	 	detected intrusions on network equipment
	 
	 	•	 	privilege exceptions
	 
	 	•	 	unexpected changes to system configurations






The following incidents will be relayed from external sources to the on-call Systems
Administrator and will be treated as serious incidents for immediate risk assessment:




	 	•	 	provider network equipment intrusions
	 
	 	•	 	intrusions on third-party equipment adjacent to Synacor’s network






The following types of events will be logged and will be analyzed by a member of the
Systems team on a regular basis, with any suspicious activity being escalated to the
SIRT Team Lead for investigation.




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





Initial Assessment





The Incident Lead will determine the nature and extent of the incident, and will
communicate this to the rest of the team. The Incident Lead will also begin to record
all activities in a manual log and isolate evidence pertaining to the incident.



Incident Communication





Depending on the severity, scope, and possible originators of the incident, not all
details will be immediately disclosed to the Clients. The Communications Lead will
initially notify Clients in accordance with the Service Level Agreements in place,
concerning any service disruptions. When the incident has been contained and all
evidence secured, the Communications Lead will provide detailed written reports about
the incident and any remaining service restoration issues.



Damage Identification, Containment and Recovery





The Incident Lead will determine the following:




	 	•	 	duration of attack
	 
	 	•	 	the effects of isolating/turning off compromised systems
	 
	 	•	 	the extent of compromised systems
	 
	 	•	 	the duration of the attack






The Incident Lead will also attempt to determine:




	 	•	 	the origin of the attack




C-11









 












	 	•	 	the intent of the attack




In general, attacks against redundant systems, including web servers, load balancers, database
servers, or any other redundant network, hardware device, or software in Synacor’s direct
control will be addressed by removal of the affected system from the production environment,
if deemed appropriate.





In some cases, it may be necessary to disable service completely. This will be necessary
in cases where the intrusion is either widespread across an entire set of redundant
servers and is malicious in nature, or when the intrusion did significant damage to
justify restoration from backups. In this case, the length of the outage will depend on
the extent of the damage.




Once the incident has been contained and service has been restored, the Incident Lead
will perform the following tasks:




	 	•	 	audit of affected systems and all other systems for malicious software, and document.
	 
	 	•	 	audit of system logs on affected systems
	 
	 	•	 	conduct comparison of filesystem on affected systems against the base
	 
	 	•	 	server installation to identify attack details
	 
	 	•	 	audit of in-memory processes on all systems






The Incident Lead is responsible for archiving all evidence, including logs and possibly
entire filesystems, for future civil or criminal investigation. This will involve
burning disk contents or logfiles on to CD-R (eg. Writable CD ROM), saving the actual
hard disks, or other archival methods depending on the incident specifics. The evidence
will be kept in a locked cabinet for a period of time to be determined based on the
nature of the incident and the media; CD-R disks, for example, will be kept for several
years after the investigation has ended.




In the event that preserving data would compromise the recovery effort, the Team Lead
will make the decision concerning the balance of evidence preservation vs. recovery
time.



Post-Incident Monitoring





The Incident Lead, Team Leader and other parties will determine if additional processes
are necessary to monitor for this type of attack in the future; if so, these processes
will be specified and developed. In addition, manual audits may be required for a period
of time after the incident to verify the integrity of the systems.



Civil/Criminal Investigation





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




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





Disaster Recovery Plan



The following disaster recovery plan is specific to the Adelphia implementation.




Overview:





All data, software, and configurations will be backed up every twenty-four (24) hours to
an offsite location such that should a disaster occur, they can be copied to and
installed at a new data center. The data center



C-12









 






could be an Adelphia data center with appropriate hardware available or at a third party
location such as Rackspace.



Possible Disaster Recovery Scenarios





Synacor’s Disaster Recovery Plan takes into account the partial or full destruction of
Synacor’s data center. This may be caused by fire, earthquake, or the building or data
center becoming unavailable for any other reason.




The building housing Synacor’s data center is also the primary location where many of
the Tier 1 providers bring their networks into Buffalo. If something happens to the
building in whole or in part, it may become necessary to activate the disaster recovery
plan.



Recovery Time Objectives





Within 12 hours:




One webserver will be brought online at the disaster recovery location. A static
website explaining what is wrong with the service will be brought up at the
disaster recovery location.




Nameservice will need be changed to point websites to the new location.




This time period can be shortened drastically by having a machine on standby at
Adelphia, and by ensuring that the TTL of the nameservice is sufficiently low.




Within 48 hours




A cluster of webservers and application servers will be brought online at the
disaster recovery location.




A non-configurable portal site with some content and an Adelphia-branded pages will
be brought online at the disaster recovery location.




Within 96 hours




A cluster of servers will be built to mimic the original configuration.




All data will be copied to disaster recovery location.




All software will be installed and running at disaster recovery location.




At this time we expect we can have all services operating as close to normal as
possible.



Recovery Point Objectives





Synacor will back up all data, software, and configurations once per twenty four (24) hour
(“Daily”) period to an offsite location. In the event of a disaster, Synacor will be able to
restore services to the state at that time, which will be a regular time in the early morning.



Roles and Responsibilities





Synacor and Adelphia will mutually agree on the choice of a disaster recovery site upon
execution of contract. If an option other than a third-party managed hosting provider
such as Rackspace is chosen, Synacor and Adelphia will need to determine how to ensure
that the hardware required is available for quick installation.




Synacor will be responsible for ensuring the integrity of the Daily data backups.




Synacor will be responsible for setting up all servers and networks and restoring
services at the disaster recovery location. Synacor will provide all necessary manpower
to return services as defined herein. If
the disaster recovery site is located in an Adelphia data center, Synacor may solicit
Adelphia resources to accelerate the recovery process.




Adelphia will be responsible for DNS modifications.




C-13










 





[*]




C-14 




 


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











 



[*]




C-15 





 


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











 








[*]




 




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






C-16 









 







[*]



 




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







C-17 









 









[*]



 




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





C-18 









 







[*]




 




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







C-19 









 









[*]





 




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







C-20 









 









[*]




 




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







C-21 









 








[*]


 




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






C -22 









 






[*]


 




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








C-23 









 









[*]


 




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








C-24 









 










[*]


 




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







C-25 









 








[*]




 

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





C-26









 









[*]



 

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





C-27









 







[*]


 

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




C-28









 







[*]


 

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





C-29









 








[*]


 

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




C-30