CONFIDENTIAL TREATMENT REQUESTED

WHEREAS, Verizon as an Internet Service Provider (“ISP”) maintains several web portals through which Verizon delivers content and certain functionality; and

WHEREAS, Verizon has a web portal targeted for its consumer customers and a web portal for its small business customers; and

WHEREAS, Synacor provides web portal solutions for ISPs; and

WHEREAS, Synacor will provide to Verizon certain content, search capabilities and sourced advertising for inclusion on the designated web portals as set forth in this Agreement, and more specifically as set forth in the exhibits to this Agreement; and

WHEREAS, Synacor may host components of the infrastructure supporting web portals for Verizon as set forth in this Agreement, and Verizon may host components of such infrastructure; and

WHEREAS, Verizon and Synacor will maintain and integrate various Verizon proprietary applications, including, without limitation, customer information necessary for single sign on (“SSO”), eServices and Support, Email, FiOS Services, Verizon’s VAS services, and Verizon sourced content which may be placed upon or integrated with the Synacor hosted or provided web portals, each as set forth in this Agreement.

 

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such Advertisements), where the Party placing the Advertisement has a revenue share agreement with the applicable Content Provider related to such placement, [*].

2. SYNACOR SERVICES AND RESPONSIBILITIES

2.1. Services. Subject to the terms and conditions of this Master Agreement, as may be amended in a writing signed by the Parties, Synacor shall provide the following services to the Client, hereinafter referred collectively as the “Services”: (a) Portal Services as set forth in Schedule B including related infrastructure and hosting; (b) Search Services as set forth in Schedule C; (c) Advertising Services as set forth in Schedule D; (d) Synacor provided Premium Offerings as set forth in Schedule E; (e) Technical Support, Operations Support, Security, Content Management and other components of the Client Branded Services as defined by Service Level Agreements in Schedule G, and (f) Content Management as set forth in Schedule I. Such Services will be provided in accordance with the terms and conditions set forth herein and those set forth in the Addenda, Schedules, and Exhibits attached hereto and incorporated herein, and any other addenda, schedules, exhibits as may subsequently be agreed to and signed by each of the Parties hereto and attached to this Master Agreement from time to time (collectively, the “Supplements” and, together with the Master Agreement, the “Agreement”). Synacor may provide the Services directly to Client, or indirectly using contractors or other third party vendors or service providers, provided that in any event, Synacor shall be responsible for the delivery of the Services to Client in accordance with this Agreement. Each Party shall provide the other with reasonable cooperation, assistance, information and access as may be lawful and necessary to initiate Client’s and its Users’ use of the Services (such as, for example, developing any content, user interfaces or appearance specific to the Services contracted for by Client).

2.2. [*]

2.3. Infrastructure Planning. The Parties agree that Synacor will host, in its data center(s), all of the infrastructure required to provide and support the Services. The Parties agree that improvements to infrastructure will be pursued as set forth in Schedule G to support load balancing and more effective failover resolution. [*] The Parties will work diligently to create technical and process solutions which minimize injecting any risk or negative performance impacts which would require modification of the terms of this Agreement.

    

2.4. Additional Services. Upon mutual agreement of the Parties, Client may engage Synacor to provide development services or other professional services outside the overall scope of this Agreement (“Additional Services”). Such Additional Services shall be provided pursuant to a separately executed Professional Services Addendum and shall be provided as part of the Services. From time to time, Synacor may offer other services to Client that are beyond the scope of this Agreement. All such other services shall be provided upon terms and conditions as the Parties may mutually establish in writing.

2.5. Service Enhancements. As a normal roadmap planning function, Synacor agrees to provide revisions [*] including new features, enhancements or user-interface improvements (“Service Enhancements”) that generally and consistently improve the quality of the Services offered upon launch. Client may request additional or unique change orders for the Services at any time, which requests will be promptly reviewed by Synacor. If the Parties agree to move forward with any such change, the Parties will negotiate a statement of work (“SOW”) related to such change, which may include a mutually agreed upon fee for such services. Ownership of the change shall be determined as indicated in Section 4.2. Additionally, the Parties will meet [*] to review Client response to the Services and to discuss potential roadmap Service Enhancements.

Except as otherwise agreed by mutual written agreement, the Parties agree that Synacor will create and make available to Client, [*] for additional components and changes, an online Service demonstration; testable interface or other appropriate version [*]

2.6.    [*] that if Client has chosen to implement or have Synacor implement features, functionality or applications that are different than those of Synacor’s other customers, it is Client’s responsibility to ensure that they are of a quality that is satisfactory to Client prior to implementation.

2.7.    [*] Client understands and agrees that Synacor currently has a portal at www.synacor.net which is currently used for client demonstration purposes, but which is a public portal, and that Synacor provides portals to other clients including but not limited to telecommunications companies and MSOs, and neither shall be prohibited under this provision. Synacor may, during the Term, offer a portal similar to the Client Branded Portals directly to consumers and/or business users as a retail offering. [*]

 

2.8.     Content Management. Synacor shall provide an electronic mechanism to provide Client an opportunity to manage and view the Content available to Client on the Consumer Portal and Small Business portal as further set out in Schedule I. Client may request, and to the extent Synacor has the rights to do so from the relevant Content Provider, Synacor agrees to provide, commercially reasonable modifications to any text, images or Synacor Sourced Content displayed on the Client Branded Portals at any time in accordance with the terms of this Agreement, or alternatively at Verizon’s request, Synacor will remove the Synacor Sourced Content in question.

Synacor shall update, replace and refresh the Content on a regular basis depending on the frequency from which updates are received from Content Providers, and Synacor will provide Client a list of the schedule of such updates.  To the extent Synacor has the rights from the Synacor Providers to archive such Provider’s Content, Synacor will maintain such archives.  Synacor will provide Client with a list of its archive rights for the Synacor Sourced Content within [*] after execution of this Agreement. If, based on such list, Client reasonably requires such Content to be archived for longer periods; Synacor will use commercially reasonable efforts to obtain longer archive rights from the relevant Synacor Providers. Additionally, to the extent Synacor manages the display of Client’s service offers on the Client Branded Portals; Synacor will archive such offers for a reasonable, mutually agreed upon period of time.  In the event Client requires such archived Content or offers to be retrieved, Synacor will retrieve any such archived information.  Client may also request Synacor’s assistance in retrieving Synacor provided Advertisements that have been displayed on the Client Branded Portals, and Synacor will work with third parties to attempt to obtain a copy of the requested Advertisement.

If at any time Client does not wish to have particular Content on the Client Branded Portals, Client shall have the right to have it removed by Synacor within the timeframes set forth in Schedule G, including if Client is not comfortable with the archive rights available from the relevant Content Provider. If Client wishes to have Content removed or add additional Content, the Parties will work together to find substitute or additional content.

Synacor agrees that it will provide Client reasonable advance written notice if there is a change in any Synacor Content Provider other than those Synacor Content Providers already in place at the time of the initial implementation. Upon receipt of such notice, Client will determine if those replacement Content Providers meet the Content needs of the Client at its sole discretion. If the Content provided by those replacement Content Providers do not meet the Content needs of the Client, Client may choose not to include such Content on the Client Branded Portal.

2.9.     Implementation Date. The Parties agree to support a rollout project plan that will progress in phases as described in Schedule H.

Absent express, contrary provisions in the Agreement, Client shall have [*] from the date of actual delivery (the “Acceptance Period”) of the Client Branded Portal for testing to accept or reject such deliverable for failure to comply with the applicable project specifications (“Acceptance Test”). The applicable project specifications for the launch of the Version 2.1, and the Consumer Portal Versions 3.0 and 3.5, and the initial launch of the Small Business Portals shall be as set forth in Schedules B-1 and B-2. Project specifications for any subsequent changes shall be set forth in a statement of work or customer product definition document that is mutually agreed to in writing by the Parties. If no notice of acceptance or rejection has been supplied during the Acceptance Period [*] If still no response is provided then absent written rejection after such reminder notification, Client shall be deemed to have accepted the Client Branded Portal, and in any event, if the change is commercially launched with Client’s permission, such launch shall be deemed acceptance. In the event Client rejects the Client Branded Portal, Client shall identify, in detail and in writing, any part of the deliverable which fails to meet the project specification and upon receipt of a notice of rejection, Synacor will use commercially reasonable efforts to correct the identified deficiencies specified in such notice and resubmit the Client Branded Portal to Client. Synacor shall complete and deliver the Client Branded Portal, including any required corrections, no later than [*] after receipt of Client’s notice of rejection for retesting.

If, following retesting, the Service does not meet the project specifications or comply with the Agreement, Synacor shall respond with a documented corrective action plan (“Corrective Action Plan”) established by Client and Synacor jointly. The plan which shall be mutually agreed upon shall address the failure to conform to project specifications, or to comply with the Agreement, with a root cause analysis of the problem, the proposed solution, any process modification to prevent reoccurrence, the time frame for any changes, and the person(s) responsible for Synacor’s implementation of the Corrective Action Plan.

The Corrective Action Plan shall be presented to the Client’s designated representative for concurrence prior to implementation, which concurrence shall not be unreasonably withheld or delayed. Upon completion of the Corrective Action Plan by Synacor, Client may either re-initiate its acceptance procedures and the applicable Acceptance Period shall start anew, or Client may forego further testing and issue a Notice of Acceptance.

Notwithstanding the foregoing, if Synacor fails to successfully launch the initial Client Branded Portals or other mutually agreed major releases after implementation of the Corrective Action Plan [*]

2.11. Technical Support.     Synacor will provide Client with technical support services as described in Schedule G - Service Level Agreement attached hereto. Synacor agrees that it will (a) provide Client with Tier 2 and Tier 3 support as set out in Schedule G and (b) adhere to the technical support standards regarding the functionality, quality, and service levels specified and agreed to between the Parties as set forth in Schedule G.

 

2.15. [*]

2.16. [*]

2.17. Client Management. Synacor will designate a team of its staff to manage the Client relationship. This team will handle all day to day aspects involving the Services provided to Client. This will include, for example purposes only, and not as a limitation, revenue management, content management, and advertising management. Client will be provided with the necessary contact information of those assigned to its account by Synacor.

3.1. Client Support; Synacor Status. Client acknowledges that the continuing performance of certain Services may depend on its provision of cooperation, assistance, information and access to Synacor. If Client fails to timely provide any of the foregoing and it can be shown that failure is a direct cause of a delay, then Synacor will not be liable for any corresponding delay in its performance. The Parties will communicate with each other regularly to identify any instances which may cause a delay. The Parties’ designated contacts are responsible for facilitating communication between Synacor and Client regarding all technical and business matters.

3.2. Materials and Equipment.  Client will provide (on its own behalf, or on behalf of its sponsors or advertisers) certain materials, domain names, Client Sourced Content, and other information (collectively, “Client Materials”) to Synacor as necessary to perform the Services. Client shall obtain, operate and maintain in good working order all equipment and ancillary services needed for Users to connect to, access or otherwise use the Services via the Internet, including without limitation, modems, servers, hardware, software, network and communication services (“Equipment”). Client shall maintain

the integrity and security of its Equipment (physical, electronic and otherwise), account passwords, Client Materials and other data.

4.1. Client License Grant.   During the term of the Agreement, Client hereby grants to Synacor a limited, nonexclusive, non-transferable and royalty-free right and license to use, reproduce, modify, distribute, perform and display the Client Materials and Client’s trade names, trademarks, service marks, and domain names as defined in Schedule K (collectively, the “Client Marks”) solely in connection with the Services as contemplated by this Agreement, subject to Client’s Trademark License attached hereto as Schedule K. Except for the limited rights and licenses expressly granted herein, Client and its Affiliates shall retain all right, title and interest in and to the Client Materials, Client Marks and Equipment, including any intellectual property rights or other proprietary rights therein and thereto. Synacor agrees that it shall not, and it shall ensure that Synacor Providers do not, use, display or modify Client’s trademarks for use under this Agreement in any manner without the prior written consent of Client.

4.2. Ownership.  

(a) Except for the limited rights and licenses expressly granted herein, and except to the extent Client Materials, Client provided components, or Client’s equipment is included in the Services, Synacor shall retain all right, title and interest in and to (i) the Synacor Sourced Content, (ii) Synacor’s logos, product and service names, trademarks, service marks, and domain names (collectively, the “Synacor Marks”); (iii) the software owned or licensed by Synacor and used in connection with the Services (collectively, the “Software”); (iv) all other materials (including any hardware), information, ideas, inventions, know-how, methods, processes, templates, tools, frameworks, works of authorship, trade secrets and technologies that are owned or licensed by Synacor and that may be used in the performance of the Services; and (v) all intellectual property rights or other proprietary rights in and to any of the foregoing (all of the foregoing being referred to as “Synacor Property”). For clarity, in the event Client’s Materials, components or equipment are included in the Synacor Property, Client shall retain ownership of such Materials, components and equipment, and Synacor shall retain ownership to all other aspects of the Synacor Property. Unless specifically agreed to the contrary in a written, fully signed SOW, all Services including deliverables provided hereunder shall be owned by Synacor. Except as specifically set forth herein, all Software, hardware and other technology used by Synacor and owned or licensed by Synacor to provide the Services will be installed, accessed and maintained only by or for Synacor and no license therein is granted to Client.

(b) All licenses, rights, title, interest and intellectual property rights of any kind in and to the Content are entirely owned by and reserved to the applicable Content Provider and may be used by the Content Provider in such manner as the Content Provider may choose. Without limiting the foregoing, each Party hereby assigns to the applicable Content Provider all right, title and interest in the Content provided by the Content Provider, together with the goodwill attaching thereto, that may inure to such Party in connection with this Agreement or from such Party’s use of the Content hereunder. Each

Party agrees that it will not and will not assist any third party to register or attempt to register any trademark, trade name or other intellectual property right related to any Content or any derivation or adaptation thereof or any work, symbol, design or mark which is so similar thereto as to suggest a relationship with any Content Provider or affiliate of a Content Provider. Each Party agrees that it will not, nor will it assist any third party to, challenge the validity or ownership of any patent, copyright, trademark, or other intellectual property registration of any Content. If a Party breaches any provision of this section, such Party agrees that it will, at its expense, immediately terminate the unauthorized activity and promptly execute and deliver to the other Party or a Content Provider, as requested, such assignments and other documents as required to transfer to the Content Provider all rights to the registrations, patents or applications involved.

4.3. Synacor Marks. Client is not granted any right to use the Synacor Marks under this Agreement. Should Client and Synacor subsequently desire that Client be granted the right to use the Synacor Marks during the Term, any use thereof will be subject to a separate written agreement between the Parties or an amendment to this Agreement.

4.4. Restrictions.  Except as specifically permitted in this Agreement, Client shall not directly: (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 any of the Software used under this Agreement; (b) decompile, disassemble, reverse engineer or use any similar means to attempt to discover the source code of the Software, or the Services, or the trade secrets therein, or otherwise circumvent any technological measure that controls access to the Software or Services; (c) encumber, transfer, rent, lease, or time-share the Software or Services (except with other entities which are Controlled by, under common Control with or Controlling Client, subject to Synacor’s prior written consent), or use them in any service bureau arrangement or otherwise for the benefit of any third party; (d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify any Software or Services; (e) remove any proprietary notices; or (f) knowingly permit any third party associated with the Client to engage in any of the acts proscribed in clauses (a) through (e) above.

5.1 Proprietary Information.  Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) or its representatives has disclosed or may disclose information relating to the finances, business, marketing plans, clients, operations, technology or software of the Disclosing Party. “Proprietary Information” means any of the foregoing information (including all originals, copies, notes, analyses, digests and summaries) which is either (a) disclosed in writing and marked as confidential at the time of disclosure or (b) disclosed in any manner such that a reasonable person would understand the nature and confidentiality of the information. 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, (iii) was rightfully disclosed to it by a third party not under an obligation of confidentiality, or (iv) was independently developed without reference to or use of any Proprietary Information of the Disclosing Party. For purposes of this Agreement, User Personal Information and User Account Information is Client Proprietary Information.

5.2. Non-Disclosure.  The Receiving Party shall keep all Proprietary Information strictly confidential and shall not disclose such Proprietary Information to any third party except to its directors, officers, employees, independent contractors and subcontractors who have a need to know such information and who are bound by similar obligations of confidentiality. The Receiving Party shall not use the Proprietary Information of the Disclosing Party except to the extent necessary to perform its obligations under this Agreement. The Receiving Party shall use a commercially reasonable degree of care to protect the Proprietary Information. Each Party shall bear the responsibility for any breach of confidentiality by its employees and contractors.

5.4. Required Disclosure.  Nothing herein shall prevent a Receiving Party from disclosing the Disclosing Party’s Proprietary Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law or by court order; provided, that prior to any such disclosure, the Receiving Party shall (a) promptly notify the Disclosing Party in writing of such requirement to disclose; (b) cooperate fully with the Disclosing Party (at the Disclosing Party’s expense) in protecting against any such disclosure or obtaining a protective order; (c) the Receiving Party discloses only that portion of Proprietary Information that is advised in writing by counsel it is required to disclose; and (d) the Receiving Party uses reasonable efforts to obtain safeguards that confidential treatment reasonably acceptable to the Disclosing Party will be accorded to such Proprietary Information.

5.5. [*] Any contact with Users in any event, shall be done in compliance with this Agreement and upon the prior approval of Client, except that Client hereby approves all contact with Users necessary to provide technical support for issues escalated from Client.

5.6. Return of Proprietary Information. All Proprietary Information shall remain the property of the Disclosing Party and the original and all copies thereof, on whatever physical, electronic or other media such Information may be stored, shall be returned or destroyed (at the Disclosing Party’s option) within ten business days of the Disclosing Party’s request or the termination or expiration of this Agreement.

5.7. Relief.  Each Party agrees that any breach of the obligations in this Section 5 will cause irreparable harm to the Disclosing Party for which Money damages will not be an adequate remedy. 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 of this Section 5 without the necessity of posting any bond.

6.1. Revenue Share.  Client and Synacor shall share revenues and fees as set forth in Schedule A. With regard to revenue shares, each Party shall pay to the other Party the revenue shares earned on a calendar month basis within [*] from the last day of the month in which the revenues are earned. Any other fees due from Client to Synacor shall be due net [*] from receipt of invoice. Any dispute regarding a payment hereunder must be submitted to the appropriate Party in writing within [*] following receipt of the reporting associated with such inaccuracy. Each Party will make commercially reasonable efforts to resolve inaccuracies promptly ([*] of notice) and accurately. If the Parties are unable to resolve any such disputes [*] of notice of the dispute, the dispute will be referred to the Joint Steering Committee for resolution. All payments shall be made in full in United States dollars, at the appropriate Party’s usual business address or to an account designated by such Party.

6.2. Revenue Assurance. [*] Synacor will make available to Client and the Revenue Assurance Group the following data for the Consumer and Small Business Portals and a combination of the Consumer and Small Business Portals: (i) aggregate number of users unique visitors, page views, average revenues on Advertisements, (ii) any applicable refunds or other adjustments applied for the applicable period; (iii) the Revenue Share Percentage applied (as set forth in Schedule A); (iv) the amount of Fees earned by Client for such period; and (v) such other data sufficient for Client to have all relevant transaction activity and data and information relevant to Synacor’s calculations, to the extent mutually agreed upon by the Parties. If any of the above-referenced data is not available through the Online Reporting System, Synacor shall provide such information to Client in a separate written (including email) monthly report.

6.3. Online Reporting System. Synacor will provide Client access to its online reporting system (the “Online Reporting System”), on which Client may view reporting Synacor generally makes available to its other clients including, without

limitation, search revenue estimates, high-level site traffic metrics, and other custom metrics upon request. The information is available in a manner that allows Client to segment it by date, and by site (e.g., the Consumer Portal and its various components vs. Small Business Portal and its various components). Synacor will use reasonable commercial efforts to make this Online Reporting System available to Client [*], excluding scheduled maintenance and causes beyond Synacor’s control (such as Internet outages).

6.4.    Reporting by Synacor. As soon as reasonably practicable, but not more than [*] following the last day of each calendar month, Synacor shall provide Verizon, in electronic format, a detailed report for search and display Advertisement activity and related metrics as described in Schedule M and Section 12 below. This report will include at minimum the following information: Search Queries, Portal Page Views and Gross Revenue on all relevant sites referenced in Schedule B. Synacor will provide detailed documentation describing bandwidth costs related to this Agreement each month. The reporting provided by Synacor to Verizon shall be used solely for the purposes of calculating payments under this Agreement and to evaluate the performance of this Agreement.

6.5. Taxes and Costs. For the avoidance of doubt, all fees are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that my be assessed by any jurisdiction. Client shall not be liable for tax payments with respect to this Agreement or Services provided under it, except for state and local sales and use taxes, as applicable to Client. Client shall not be liable for sales, use or other taxes applicable to Synacor. Synacor agrees that it shall be Synacor’s responsibility to withhold all federal, state, or local income taxes, social security taxes, unemployment and other payroll taxes required by law to be withheld from the compensation of its employees or contractors performing work hereunder. Each Party is responsible for all costs associated with the setup, maintenance and other performance obligations of such Party under this Agreement.

7. TERM AND TERMINATION.

7.1. Term.  This Agreement shall commence as of the Effective Date and shall continue thereafter in full force and effect for a period of three (3) years from the launch of Version 3.5 of the Client Branded Portal (“Initial Term”). Thereafter, the Agreement shall automatically renew for up to two (2) terms of two years each (each a “Renewal Term”), and together with the Initial Term, the “Term”), provided however that either Party may prevent an automatic renewal by providing the other Party with at least six (6) months prior written notice of non-renewal.

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) immediately upon written notice to the other Party 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.

7.4. Client Termination. Client may terminate this Agreement or any part of the Services provided by Synacor upon thirty (30) days written notice if any of the following events occur: (i) Chronic failure as set forth in Schedule G; (ii) Synacor is acquired by or otherwise comes under Control of any Verizon Competitor, as described in Section 18(a), or (iii) revenue payments are not received from Synacor for any three (3) months during a rolling six-month period.

7.5. Effects of Termination.  Upon any expiration or 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 or during the wind-down period described below (including without limitation, all payment obligations) shall survive termination; (b) each Party shall destroy or return to the other Party all of the other Party’s Proprietary Information in its possession or under its control; 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 (Ownership), 4.4 (Restrictions), 5 (Confidentiality), 6 (Synacor Revenue Share and Taxes), 8 (Representations and Warranties; Indemnities), 9 (Limitations of Liability), 10 (Open APIs and RSS Feeds), 13 (General Provisions) and this Section 7 shall survive any termination or expiration of this Agreement.

(c) Escrow Release Events. Occurrence of any of the following triggering events, each an “Escrow Release Event”, will permit Client to obtain the Escrow Materials held in Escrow and Client shall have the right to use such source code solely in accordance with the purposes and rights set forth in this Agreement.

8.1. Synacor Representations and Warranties. Synacor represents and warrants to Client that now and during the Term, (a) it has all rights necessary to enter into and perform this Agreement and to grant the limited rights and licenses granted herein including, without limitation, all necessary rights in the Services, the Synacor Sourced Content and [*], and that Synacor’s performance under this Agreement and its provision of the Services including, without limitation, the Synacor Sourced Content and Advertisements will not infringe any third party rights, including but not limited to any third party intellectual property rights, copyrights (including, without limitation, music synchronization and performance rights and dramatic and non-dramatic music rights), trademark rights, patent rights or rights of privacy or publicity of any third party (collectively, “Intellectual Property Rights”); (b) Synacor has and will have licenses or other legal rights sufficient to perform its obligations under this Agreement from the Synacor Providers of the Synacor Sourced Content, from the Search Services Providers; and from providers of Advertisements that are live, displayed or otherwise on the Client Branded Portals; (c) Synacor will use commercially reasonable efforts to ensure that Synacor Sourced Content does not violate any applicable law, including but not limited to such item being libelous, slanderous, obscene, defamatory or indecent, misleading, inaccurately described; (d) Synacor will use efforts commensurate with industry standards to (i) screen its proprietary software against viruses, worms, spyware and adware (“Malicious Agents”), promptly notify Client and remove any such Malicious Agents of which it becomes aware as soon as practicable, and (ii) not knowingly install or knowingly cause to be installed on any User’s computer or operating system any spyware, adware or other software, code or routines that interfere with, alter or modify a user’s computer or software or which monitors, records or transmits user information (including without limitation credit card or password data), key strokes, URL visits or Internet use, without a user’s knowledge and consent; (e) in its allowed collection of User Personal Information, User Account Information and any CPNI pursuant to the implementation and provision of Services under this Agreement, Synacor will at all times, take reasonable steps to ensure the security of the User Personal Information, User Account Information and any CPNI, including protecting it from intrusion (electronic or physical) by or disclosure of such information to unauthorized third parties, and to remain in compliance with the provisions of this Agreement pertaining to User Personal Information, User Account Information and CPNI and all applicable federal and state laws, rules and regulations related to the security and storage of such information; (f) it will ensure the Direct Advertisements placed on the Client Branded Portal meet the guidelines attached hereto and made a part hereof in Attachment A, Attachment B and Attachment C to Schedule D; (g) it will use commercially reasonable efforts to ensure the non Direct Advertisements placed on the Client Branded Portal meet the guidelines attached hereto and made a part hereof in Attachment A, Attachment B and Attachment C to Schedule D; (h) the Services provided by Synacor under this Agreement shall be provided in accordance with applicable laws and regulations including but not limited to laws and regulations applicable to its provision or use of the Services including, without limitation, OFAC regulations, export laws, anti-bribery laws, and all laws and regulations applicable to User Personal Information and CPNI, privacy, data security, unsolicited electronic mail and spyware or other harmful code or routines; (i) the Services will be provided by qualified personnel; and (j) Synacor shall not send or authorize the sending of unsolicited, bulk commercial email or other online communication to Client Users in violation of applicable anti-spam laws or Client policies communicated in advance to Synacor, and it shall use commercially reasonable efforts to ensure that its Advertisers are not obtaining Client User’s email address or Personal Information from Synacor or from cookies placed on the Client Branded Portal.

8.2. Client Representations and Warranties [*] EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLIENT MAKES NO WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR

    

8.4. Client Indemnifications [*]

8.5. Claims. In case any Claim is brought by a third party for which a Party (the “Indemnifying Party”) is required to indemnify the other Party (the “Indemnified Party”) pursuant to this Section 8, the Indemnified Party shall provide prompt written notice thereof to the Indemnifying Party (provided, however, that any failure or delay in notice shall not excuse the Indemnified Party of its obligations hereunder) of such Claim, and the Indemnifying Party shall assume the defense of such Claim. 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 participate in the defense of such Claim with counsel of its own choosing at its own expense. The Indemnifying Party shall not enter into any settlement of any Claim without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld) if Indemnified Party’s rights would be directly and materially impaired thereby, of if such settlement results in any admission of liability or wrongdoing. Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any Software and/or Services provided by Synacor, Synacor may (at Synacor’s option) (i) procure the right or license for Client to continue to use and otherwise exploit in accordance with the terms hereof such portion of the Software and/or Services on commercially reasonable license terms; or (ii) 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 commercially reasonable, either Synacor or Verizon may terminate this Agreement or the rights and licenses granted hereunder.

9.1 Limitation on Indirect Liability. EXCEPT AS SET FORTH IN SECTION 9.3, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES,  EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

9.2 Limitation on Amount of Liability.   IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY (A) OF SYNACOR AND ITS AFFILIATES TO CLIENT AND ITS AFFILIATES, OR (B) OF CLIENT AND ITS AFFILIATES TO SYNACOR AND ITS AFFILIATES, UNDER THIS AGREEMENT FOR ANY REASON FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED US [*] Each Party’s payment obligations to the other Party are not subject to this Section 9.2

(a) As to Synacor, these limitations do not apply to breaches of confidentiality obligations, or Indemnification obligations.

(b) As to Client, these limitations do not apply to Indemnification obligations

11. PUBLICITY. Except as it relates to Client’s marketing of the Client Branded Portals and related matters, neither Party will issue any press release or make any public announcements, nor otherwise disclose any information concerning this Agreement without the prior written consent of the other.

12.1. Audit.

(a) Each Party shall have the right to audit the books and records of the other Party solely relating to this Agreement upon reasonable notice and at its’ expense, not more frequently than annually during the Term of the Agreement and for a period of [*] thereafter and to take extracts from and/or make copies of such records. Each Party shall maintain during the Term and for a period of [*] 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 request and with reasonable notice, the other Party will permit one or more representatives of an auditor or agent of the requesting Party’s choice to examine and audit, during normal business hours, such books, records, accounts, documentation and materials, and take extracts therefrom or make copies thereof for the purpose of verifying the correctness of payments made pursuant hereto and/or compliance with the other material obligations hereunder. Unless otherwise agreed by the Parties in writing, such examination shall be in material accordance with generally accepted accounting principles. The audited Party shall pay any unpaid delinquent amounts within ten days of the other Party’s request. To the extent such examination discloses an underpayment greater than [*], 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 Party and shall pay the amount of any such overpayment to the other Party within [*] 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 [*] after receipt of the audit report, the audit report shall be deemed accepted and all amounts due thereunder shall be paid pursuant to subsection 11(a). In the event that Client and Synacor have not resolved all disputed items to their mutual satisfaction within [*] after a Notice of Dispute has been received by the auditing Party, they shall promptly submit such audit report and all supporting work papers to an independent accounting firm of national stature in the United States selected by mutual agreement of Client and Synacor for binding review of any disputed items. All costs and expenses of such review shall be apportioned between the Parties on the basis of each Party bearing the expense of that

portion of the review 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 New York, New York in accordance with the rules and regulations of the American Arbitration Association.

(c.) In no case will information shared under this Section include confidential information of third parties including, without limitation, Personal Information relating to Verizon’s customers or highly sensitive information of Verizon including, without limitation, classified, restricted, or legally privileged information.

14. Foreign Based Services. Synacor represents and warrants that the Service provided hereunder will not be provided, directed, controlled, supervised, or managed, and no data or Verizon customer communication (voice or data) relating to any such service shall be stored or transmitted, at, in, or through, a site located outside of the United States without the advance written consent of Verizon and without obtaining the required licenses and approvals prior to movement outside the United States. For clarity, the foregoing shall not prohibit Synacor from using off-shore resources for development of the Services. Synacor agrees that, in the event it comes into possession of any Verizon customer data, no such data shall be stored or transmitted, at, in or through, a site located outside of the United States without the advance written consent of Verizon. For purposes of this provision, the term “Verizon customer data” shall mean: (a) any subscriber information, including, without limitation, name, address, phone number or other personal information of any Verizon subscriber; (b) any call-associated data, including, without limitation, the telephone number, internet address or similar identifying designator associated with a communication; (c) any billing records; (d) the time, date, size, duration of a communication or the physical location of equipment used in connection with a communication; or (e) the content of any Verizon customer communication.;

15. Export. The Parties acknowledge that the export, import, and use of certain hardware, software, and technical data provided under the Agreement is regulated by the United States and other governments and agrees to comply with all applicable laws and regulations, including the U.S. Export administration Act, the regulations promulgated there under by the U.S. Department of Commerce, and any other applicable laws or regulations. Without limiting the generality of the foregoing the Parties further agree:

a. The Parties shall not export, re-export, release, transfer or allow the diversion of any items, hardware, software, technology, or the direct product of such technology obtained by Parties under this Agreement without first complying fully with all applicable law and obtaining any and all required licenses from US and other governmental authorities.

b. The Parties shall not conduct business with any company, individual, organization or country that is subject to trade sanctions, embargoes, or other restrictions under US law, nor any entity that is involved in an end use prohibited under US law including but not limited to chemical or biological weapons proliferation or nuclear or missile technology proliferation, in either case without complying fully with all applicable law and obtaining any and all required licenses from US and other governmental authorities.

c. The Parties shall cooperate with and provide to the appropriate authority all necessary information needed to facilitate full compliance with all trade-related laws and regulations.

18. GENERAL PROVISIONS.  

expressly provides otherwise. Any different or additional terms contained in any purchase order, confirmation or similar form, even if signed by the Parties after the date hereof, shall have no force or effect.

  

        

By:    /s/ Ronald Frankel                By:     /s/ W.R. Mudge            

Name:     Ronald Frankel                    Name:     W.R. Mudge            

Title:    President & CEO                    Title: President Consumer & Mass Business Markets

Date:    7-25-11                        Date:    7-22-11                

The revenue share and fee structure for the Services are set forth below.

Provision of Premium Offerings is subject to the terms and conditions in Schedule F and all other provisions of the Agreement unless specifically expressly excluded below. The timing of the implementation of Premium Offerings will be solely at Client’s discretion.

1.    Premium Offerings and Associated Compensation.

In the event Client elects to offer any of the Premium Offerings sourced by Synacor or Premium Offerings sourced by Client, on the Client Branded Portals, the Executive Steering team will (i) select a module compensation structure from the list below; (ii) select a compensation approach from the list below and (iii) negotiate in good faith specific rate(s) for each such Premium Offering; and (iv) develop a mutually agreeable Statement of Work (“SOW”) memorializing the agreement of Client and Synacor as to the Premium Offering. Such SOW development shall be done at the direction of the Executive Steering Committee. Any request by Client for a Premium Offering shall not be unreasonably denied by Synacor. If the Parties cannot agree upon a compensation structure, then the Executive Steering Committee shall intervene and have final decision on the rate structure. This change in the compensation would apply only so long as the Premium Offering was being offered. Client can opt to remove such Premium Offering from the Client Branded Portal in its sole discretion upon [*] notice to Synacor.

3.    Content. The Content to be included in the Client Branded Portal(s) may be Synacor Sourced Content and/or Client Sourced Content. All Portal Content and Premium Content Products are subject to the terms and conditions included in this Schedule. Synacor will provide Client on an ongoing basis throughout the Term an updated list of Synacor Providers which would include a schedule as to the frequency of updates to the Content provided on the Client Branded Portals by the various Synacor Providers.

4.    Content Hosting and Delivery System.[*] Depending upon the implementation of the CMS for Client, hosting and serving of Client Sourced Content may be provided by Client, Client Providers, or Synacor, and hosting and serving of Synacor Sourced Content will be provided by Synacor or Synacor Providers. Through the CMS, upon Client’s prior approval, Synacor can: (i) offer new Content which it has obtained for distribution; (ii) create and modify bundles of Content to be made available to Users.

5.    Terms of Use. Client will include on the Client Branded Portals links to terms of use (“TOU”) related to the Users’ use of the Client Branded Portals. The Parties will work together to ensure that the appropriate links thereto are on the Client Branded Portals. Client agrees to include in such TOU, any restrictions related to the Content, if any, that are set forth in this Agreement that would require notice to or compliance with by the User. Synacor may request that Client amend, modify or otherwise change the TOU, and Client will not unreasonably decline such request, provided, however, that Client agrees to amend the terms of the TOU (i) if new, Client approved, Content is added to the Client Branded Portal and the relevant Synacor Provider requires modification to the TOU in order for its content to appear on the Client Branded Portals, or (ii) if applicable laws require modifications to such TOU. Client acknowledges that individual Content Providers may require separate terms of use to be presented to Users who utilize their Content, and Synacor may include such terms of use on the Client Branded Portals in a mutually agreed location. Client agrees that to the extent a Synacor Provider requires that it be included as a third party beneficiary to the TOU, Client will include such required language in the TOU.

(a)Subject to the provisions of the Agreement, Synacor grants to Client during the Term, a worldwide limited, non-exclusive, non-transferable, right and license to: (i) display the Synacor Sourced Content, solely on the Client Branded Portals in the United States; and (ii) use and utilize Synacor Provider trademarks, logos and other works which are protected by intellectual property rights laws (the “Synacor Provider Properties”) solely in connection with the display of Synacor Sourced Content to Users pursuant to this Agreement. For clarity purposes, Synacor acknowledges and agrees that any display of the Synacor Sourced Content to individuals who may access the Synacor Sourced Content via the Internet from outside the United States does not constitute a violation of the right and license granted in this Section 4(a).

(b)Subject to the provisions of the Agreement, Client grants to Synacor during the Term, a limited, non-exclusive, non-transferable, royalty‑free right and license to: (i) transmit and distribute individual copies of the Client Sourced Content, solely for purposes of distributing the Client Sourced Content to Users; and (ii) use and utilize such Client and Client Provider trademarks, logos and other works which are protected by intellectual property rights laws (the “Client Properties”) in connection with the distribution of Content to Users pursuant to this Agreement. Synacor expressly agrees that it shall not, and shall not permit any third party to, duplicate, copy, modify, amend, add to, delete from or otherwise make any change whatsoever in the Client Sourced Content or otherwise violate any intellectual property rights in the Client Sourced Content including but not limited to copyrights of third parties therein.    

(c)As to individual pieces of Content, the rights and licenses to use such Content as granted herein shall expire upon the expiration or earlier termination of the agreement pursuant to which distribution rights and licenses to such Content are made available, and neither Synacor nor Synacor’s Provider shall have any liability in such event, except as set forth below in this Section 5(c). Either Party shall have the right to have particular Content promptly removed upon notice to the other Party: (i) if the distribution of such Content has exposed or is reasonably expected to expose it to potential legal liability; or (ii) in the event a Synacor Provider or Client Provider ceases to operate a site, or produce or distribute such Content. In the event there is a change to Content hereunder, Synacor will provide Client notice and replacement Content as provided in Section 2.8 of the Master Agreement.

(a)    Client acknowledges and agrees that the look, feel, size and placement of any Synacor Sourced Content on the Client Branded Portal (and any change or modification thereof), may be subject to requirements or limitations from the Synacor Providers, and the Parties will work together to address such requirements or limitations. Client understands and agrees that Client may need to include additional terms, conditions and restrictions on the use of such Synacor Sourced Content in its TOU.

(b)    Client will not, at any time, permit access to the Synacor Sourced Content by any access method other than through the Client Branded Portal(s) unless approved in advance by Synacor. If Client wishes to use the Synacor Sourced Content other than as permitted herein, and Synacor does not currently have the rights for such use, Synacor will use commercially reasonable efforts to obtain such rights from the Synacor Provider. To the extent such rights are able to be obtained; the Parties will address the appropriate business model for such use, and mutually agree in writing to the new use as associated business model.

(c)    User access to the Premium Content Products or Premium Offerings may, upon mutual agreement of the Parties, be included either as a stand alone product or as part of Client’s tiered offerings to the extent authorized in Schedule E. Client will not permit access to Synacor Sourced Premium Content Products or Premium Offerings to anyone who is not a paid subscriber to such Synacor Sourced Premium Content Products or Premium Offering, unless approved in advance by Synacor.

(d)    Client will not (i) interfere with Synacor Sourced Premium Content by sending any interstitials, pop-up windows, or other messages or files to the User during the time in which any Synacor Sourced Premium Content is displayed on the Synacor Provider’s site, or by having interstitials inserted immediately prior to the Synacor Provider’s page load that are monetized or (ii) sell any advertising in, on, or related to any Synacor Sourced Content, including but not limited to banners, buttons, links, streaming audio or streaming video advertisements unless approved in advance by Synacor. In connection with Synacor Sourced Content distributed pursuant to this Agreement, without the prior submission to Synacor of any relevant materials which Synacor may request (including but not limited to web pages) and unless Client has obtained Synacor’s written approval, Client will not use the name, logo or any of the proprietary marks of any Synacor Provider in any sales, advertising or marketing materials.

Synacor shall provide the agreed to service levels seven (7) days a week, twenty-four (24) hours a day, consisting of threshold performance standards, monitoring, notification, repair of service outages, and maintenance, as well as compliance with Search, Advertising, Content and Security guidelines as set forth in this Service Level Agreement (“SLA”). Synacor (with Client’s input when necessary) will track and report on each category included herein and for each significant incident will provide a written ‘After Action Review Report’ identifying: (a.) the appropriate elements involved such as incident description, time of occurrence, duration, type of User affected and components impacted, and other elements as appropriate; (b) analysis of the root cause(s) of the incident; (c.) activities undertaken to correct this incident; and (d) plans to ensure the incident does not recur. These After Action Review Reports will be summarized with all other activities including activities not specifically identified in an After Action Review Report in monthly reports as needed to help determine if a Standard or Chronic violation has occurred. Client’s representatives on the appropriate governance committee(s) will be responsible to review, concur, or escalate the assessments of responsibility.

It is expected that the evaluation of Synacor’s performance against this SLA will be evaluated on a monthly basis beginning [*] from the date of activation of this SLA.

This SLA excludes events resulting from acts of God, war, acts by civil or military authorities, and energy shortages inclusive of fuel providers, except if such deficiency would have been avoided by properly designed, redundant solutions),

Incident system fixes and / or work-arounds will conform to the priority schedule identified in the Standard Priority Response Time Table in Customer Support Procedures, Section 2 below.

In an effort to detect potential problems before they impact the availability and performance of the system or services, Synacor continuously monitors the status of the systems using both automated and manual tools employed in its 24 by 7 network operations center (NOC). Synacor shall poll for the symptoms of P1 and P2 outages [*]

[*]

C. Subset Measurement. [*]

D.    Portal Availability SLA Non-Performance Consequences. If Client makes a request to Synacor within [*]of receipt of the SLA performance data after the end of the month in which Synacor failed to meet the Portal Availability SLA, the SLA Non-Performance Consequences set forth below will be applied to Client’s account for such month. To the extent possible, the adjustment will be applied during the billing period following the month in which such failure occurs (or as soon thereafter as possible) and shall be detailed as a separate line item on the revenue share report, but in no event later than the following month . For example if adjustment is due for failure(s) that occurred in the month of September, such adjustment(s) will be applied to the October billing period.

[*]

[*]

[*]

In the event that emergency maintenance is required and it will adversely affect Client’s Users, Synacor will make reasonable efforts to notify Client about the emergency maintenance window. Notification will be based on practicality and the degree of adverse affect on the applicable service or availability thereof. Emergency maintenance windows are counted against Portal Availability percentages (as applicable), unless Synacor and Client mutually agree otherwise in writing (timely acknowledged email approval being sufficient for this purpose).

[*]

The Parties agree that the foregoing timeframes are target dates, and that they are subject to change.

(a) Synacor shall review and correct the Home/Overview, News and Resources pages of the Small Business Portal, as well as any sub-channels on the Small Business Portal provided by Synacor under this Agreement, for any feed, display or other technical content problems, such as those listed below.

[*]

[*]

The representative designated above shall be responsible for communicating the approval or disapproval of the Materials utilizing the Verizon Licensed Marks to Synacor in the timeframe noted above.

1. Reporting Requirements.

[*] Synacor will work with Verizon to ensure that each portal site can be properly benchmarked – as a site as well as by channel - by competitive benchmarking tools including, but not limited to, Nielsen and comScore.

Synacor will provide reporting as follows:

1. 2. Synacor will provide the following reports through a secured, web-based interface along with FTP archived and email report options to Client designated personnel:

[*]

1.2.6. User Satisfaction. The Parties will agree to a methodology for reporting about User satisfaction which methodology may include

[*]

1.2.5 A/B and Multivariate Testing Results. Synacor will provide reports covering any optimization and testing activities on the sites with the following metrics built into each report;

[*]

1.3. All reports should be provided to Client showing data in the aggregate as well as being able to be dissected at any level of the portal site hierarchy. In any event no data collected or provided shall be allowed to be dissected or disassembled to show the identity of Users.

1.4. Synacor shall provide samples of Synacor’s current standard reporting, but not include HBX reporting samples. Copies of such standard samples shall be attached hereto as Schedule WW.

1.5. All reports, including the information contained therein, the use and disclosure of such information shall be subject to this Agreement, Client’s Privacy Policy, and to applicable laws, rules and regulations, and will not reveal Client as the source of the information. Synacor shall not provide the information, contained in any report provided by Client to Client’s Competitor(s).