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TIVO INTERACTIVE PROGRAM GUIDE LICENSE AGREEMENT
This Interactive Program Guide License Agreement (“AGREEMENT”), having an effective date of June 6, 2003 (“EFFECTIVE DATE”), is entered into by and between Gemstar – TV Guide International, Inc., including all of its SUBSIDIARIES (hereinafter collectively referred to as “GEMSTAR”), and TiVo Inc., including all of its SUBSIDIARIES (hereinafter collectively referred to as “TIVO”); hereinafter sometimes individually referred to as a “PARTY” or collectively to as the “PARTIES”, who agree as follows:
SECTION 1.0 RECITALS
SECTION 2.0 DEFINITIONS
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[*]; or
[*].
(a) US Patent No. 4,706,121; and
(b) any and all IPG-RELATED PATENTS which GEMSTAR or any of its SUBSIDIARIES owns as of the EFFECTIVE DATE or thereafter during the TERM; and
(c) any and all other IPG-RELATED PATENTS under which GEMSTAR during the TERM obtains the right to grant licenses to third parties, provided such right to grant licenses is consistent with the scope of the grants set forth in this AGREEMENT.
The term “GEMSTAR IPG-RELATED PATENTS” shall not apply with respect to any claim of any patent not owned by GEMSTAR or a GEMSTAR SUBSIDIARY in which GEMSTAR obtains rights before, on or after the EFFECTIVE DATE if a grant of a license or the exercise of rights thereunder would result in the payment of royalties, or other consideration, or result in the loss of any rights in such patent, by GEMSTAR, except for:
(x) payments among GEMSTAR entities, such as payments to GEMSTAR by a GEMSTAR SUBSIDIARY, or
(y) payments to a GEMSTAR SUBSIDIARY by GEMSTAR, or
(z) payments to third parties for inventions made by said third parties while employed by GEMSTAR or by a GEMSTAR SUBSIDIARY.
An initial list of GEMSTAR patents, including GEMSTAR IPG-RELATED PATENTS and certain other patents currently owned or licensed by GEMSTAR has been provided as SCHEDULE C in response to a request by TIVO. TIVO agrees and acknowledges that the inclusion of any patent on SCHEDULE C is not
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a representation by GEMSTAR that such patent is an IPG-RELATED PATENT or that such patent is licensed under this AGREEMENT. Furthermore, TIVO agrees and acknowledges that SCHEDULE C may include patents which are not IPG-RELATED PATENTS, is provided solely for illustration purposes, and the rights TIVO has under the GEMSTAR patents shall be governed solely by the terms, conditions and provisions of this AGREEMENT, exclusive of SCHEDULE C. Additionally, GEMSTAR agrees and acknowledges that the exclusion of certain patents from SCHEDULE C does not by necessity indicate that such omitted patents are not GEMSTAR IPG-RELATED PATENTS, and the rights TIVO has under the GEMSTAR patents shall be governed solely by the terms, conditions and provisions of this AGREEMENT, exclusive of SCHEDULE C.
(a) access listings for television programming services, whether scheduled, delivered on demand, or time-delayed (e.g., broadcast, cable, satellite, PPV, VOD, PVR), or descriptive information for such programs presented, selected by or displayed in real-time response to such user action, including but not limited to episodic information, editorials, reviews, recommendations, previews and/or promotional information, advertisements, videos or graphics, interviews, and other similar information or content;
(b) navigate interactively through such listings and information as part of viewing such listing and information; and
(c) access such television programming services directly from said listings utilizing such product or service, including but not limited to, methods such as infra-red (IR) “blasting”,
in each instance in (a) through (c), regardless of whether the listings or information is delivered over the air, through a cable television system, satellite transmission, wireless transmission, via the Internet or any other method existing as of the EFFECTIVE DATE or thereafter created; and
in each instance in (a) through (c), regardless of whether the listings or information is presented as text, graphics, audio, video or otherwise.
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Notwithstanding the foregoing, the PARTIES agree and acknowledge that, for the purposes of this AGREEMENT only, IPG-RELATED PATENTS shall specifically exclude claims in patents and patent applications covering one or more features or functions that can be added to a product or service by which an END-USER is provided with the ability to:
(i) record one or more programs;
(ii) record one or more programs while playing back another program or watching a program as it is recording (i.e., time-shifting);
(iii) schedule multiple or repeated recordings;
(iv) control information in a digital device wherever such device is located including, but not limited to, pausing, rewinding, fast-forwarding, playing, playing faster, playing slower, instantly replaying, jumping, skipping, and playing in reverse such information;
(v) store, edit, manipulate, process or synchronize, deliver, stream, receive, or transmit information;
(vi) access information either in response to user action or not in response to user action, including but not limited to, preference engine or collaborative filtering technology; or
(vii) allow the exchange of information over a network,
in each instance in (i) through (vii), regardless of whether the information is delivered over the air, through a cable television system, satellite transmission, wireless transmission, via the Internet or any other method existing as of the EFFECTIVE DATE or thereafter created; and
in each instance in (i) through (vii), regardless of whether the information is presented as text, graphics, audio, video or otherwise.
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case with a partnership, joint venture, or unincorporated association, but more than 50% of whose ownership interest representing the right to make decisions for such corporation, company, or other entity is, as of the EFFECTIVE DATE or thereafter, owned or CONTROLLED, directly or indirectly by a PARTY hereto, but such corporation, company, or other entity shall be considered to be an SUBSIDIARY only so long as such ownership or CONTROL exists.
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SECTION 3.0 GRANTS AND TIVO OBLIGATIONS
(a) TIVO PVR DEVICES. GEMSTAR grants to TIVO for the TERM, subject to TIVO’s continued compliance with the terms and conditions set forth herein:
(i) a worldwide, non-exclusive, nontransferable (except as set forth in Section 10.11) manufacturing right, under the GEMSTAR IPG-RELATED PATENTS, to make and have made TIVO PVR DEVICES;
(ii) a non-exclusive, nontransferable (except as set forth in Section 10.11) right, under the GEMSTAR IPG-RELATED PATENTS to import, sell, lease, offer to sell or otherwise TRANSFER such TIVO PVR DEVICES, and only in conjunction with such TIVO PVR DEVICES, the GEMSTAR AUTHORIZED TIVO IPG, and the TIVO SERVICE within the TERRITORY;
(iii) a non-exclusive, nontransferable (except as set forth in Section 10.11) right, under the GEMSTAR IPG-RELATED PATENTS to use, and have END-USERS use, the TIVO PVR DEVICES, and, only in conjunction with such TIVO PVR DEVICES, the GEMSTAR AUTHORIZED TIVO IPG, and the TIVO SERVICE within the TERRITORY; and
(iv) the limited right to sublicense the rights granted to TIVO under Sections 3.1(a)(i), 3.1(a)(ii), and 3.1(a)(iii) above to [*] in accordance with Section 3.1(b)(i), to [*] in accordance with Section 3.1(b)(ii), to [*] in accordance with Section 3.1(b)(iii) and to [*] in accordance with Section 3.1(b)(iv). Except as expressly set forth in this Section 3.1, no sublicense rights are granted by GEMSTAR to TIVO under this AGREEMENT.
(b) [*] PVR DEVICES.
(i) [*]. For a [*] of [*] immediately [*] (the “SECTION 3.1(b)(i) [*]”), [*] may seek to obtain a separate license agreement directly with each [*] for [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG. The PARTIES
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acknowledge and agree that [*] may enter into each such separate license agreement on terms and conditions within [*] discretion; provided that:
(A) the terms and conditions of each such license agreement shall expressly allow the [*] to incorporate the GEMSTAR AUTHORIZED TIVO IPG into [*] PVR DEVICES and shall include the right to co-brand such [*] PVR DEVICES with the TIVO BRAND;
(B) the economic terms and conditions of each such license agreement relating to the [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG shall be on terms and conditions no less favorable than those terms provided to such [*] for PVR DEVICES (or if PVR DEVICES are not specifically licensed, consumer electronics products) incorporating [*];
(C) each such separate license agreement shall provide that all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG are [*] with any [*] product under such agreement in [*] applicable to such products incorporating [*]; and
(D) each such separate license agreement terms shall be made available for all such [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG for the TERM of this AGREEMENT.
If [*] enters into such separate license agreement with an [*], [*] shall (Y) notify [*] within fifteen (15) business days of the effective date of such license agreement in writing, copying the [*], that such license agreement has been entered into, and such writing shall expressly confirm that all conditions (A)-(D) in Section 3.1(b)(i) are present in such license agreement, and (Z) seek payment of all applicable IPG-related fees for such [*] PVR DEVICES, including without limitation fees related to the GEMSTAR AUTHORIZED TIVO IPG, from [*]. [*] shall not be [*] for, or to create any reports regarding, [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG. Once such separate license agreement is executed, GEMSTAR agrees to generally and specifically release TIVO from any prior or future acts of infringement relating to the manufacture, import, sale, lease, offer for sale, TRANSFER, or use of the GEMSTAR AUTHORIZED TIVO IPG in such [*] PVR DEVICES (and the IPG features or functionality in the TIVO SERVICE provided to such products) TRANSFERRED under such license agreement.
If [*] does not enter into such separate license agreement with an [*] within the SECTION 3.1(b)(i) [*], or upon [*] written notification to [*] that [*] elects not to seek to obtain a separate license agreement with [*], then [*] pay to [*]:
(E) the PER UNIT FEE specified in Section 4.1 for the [*] of [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG that perform INITIAL ACTIVATION during the TERM in the TERRITORY as if such [*] PVR DEVICES were TIVO PVR DEVICES (for the avoidance of doubt, the [*] of [*]
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PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG that perform INITIAL ACTIVATION during the TERM in the TERRITORY shall be calculated on a [*] basis for [*]); and
(F) the PER UNIT FEE specified in Section 4.1 plus the [*] FEE specified in Section 4.3 for all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG over [*] that perform INITIAL ACTIVATION during the TERM in the TERRITORY as if such [*] PVR DEVICES were [*] PVR DEVICES.
[*] shall report all such [*] PVR DEVICES for which [*] pays the PER UNIT FEE pursuant to Section 5.3(a). [*] may sublicense the rights granted under Section 3.1(a)(i), 3.1(a)(ii) and 3.1(a)(iii) above to such [*] consistent with the terms and conditions of this AGREEMENT. Subsequent activations of the same [*] PVR DEVICES (excluding products refurbished and resold by [*]) do not require payment of any additional fee. Provided [*] pays the PER UNIT FEE and [*] FEE for such [*] PVR DEVICES then, except as expressly set forth in this Section 3.1(b)(i) and Section 3.2, the terms and conditions of this AGREEMENT applicable to TIVO PVR DEVICES shall be applicable to [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG, and shall be deemed to have applied during the SECTION 3.1(b)(i) [*], so long as [*] pays the [*] fees timely upon [*] of the SECTION 3.1(b)(i) [*]. [*]
(ii) [*]. In the event [*] has or elects to enter into an agreement with an [*], then upon [*] or such [*] request, [*] agrees to offer and provide to [*] IPG license rights for [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG for the TERM of this AGREEMENT. The PARTIES acknowledge and agree that [*] may enter into each such separate license agreement on terms and conditions within [*] discretion; provided that:
(A) the terms and conditions of each such license agreement shall expressly allow the [*] to incorporate the GEMSTAR AUTHORIZED TIVO IPG into [*] PVR DEVICES and shall include the right to co-brand such [*] PVR DEVICES with the TIVO BRAND;
(B) the economic terms and conditions of each such license agreement relating to the [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG shall be on terms and conditions no less favorable than those terms provided to [*] for PVR DEVICES (or if PVR DEVICES are not specifically licensed, consumer electronics products) incorporating any GEMSTAR IPG;
(C) each such separate license agreement shall provide that all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG are [*] with any [*] product under such agreement in [*] applicable to such products incorporating [*]; and
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(D) each such separate license agreement terms shall be made available for all such [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG for the TERM of this AGREEMENT.
If [*] enters into such separate license agreement or extends such license rights under an existing agreement with an [*], [*] shall (Y) notify [*] within fifteen (15) business days of the effective date of such license agreement in writing, copying the [*], that such license agreement or license right extension has been entered into or been granted, and such writing shall expressly confirm that all conditions (A)-(D) in Section 3.1(b)(ii) are present in such license agreement or license rights, and (Z) seek payment of all applicable IPG-related fees for such [*] PVR DEVICES, including without limitation fees related to the GEMSTAR AUTHORIZED TIVO IPG, from [*] and [*] shall not be [*] for, or to report, any [*] PVR DEVICES TRANSFERRED by [*]. Once such license agreement is executed, GEMSTAR agrees to generally and specifically release TIVO from any prior or future acts of infringement relating to the manufacture, import, sale, lease, offer for sale, TRANSFER, or use of the GEMSTAR AUTHORIZED TIVO IPG in, such [*] (and the IPG features or functionality in the TIVO SERVICE provided to such products) TRANSFERRED under such license agreement.
If [*] does not enter into such separate license agreement with an [*] within a [*] of [*] (“SECTION 3.1(b)(ii) [*]”), or upon [*] notification to [*] that [*] elects not to seek to obtain a separate license agreement with such [*] then [*] pay to [*] the PER UNIT FEE specified in Section 4.1 plus the [*] FEE specified in Section 4.3 for all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG that perform INITIAL ACTIVATION during the TERM in the TERRITORY as if such [*] PVR DEVICES were [*] PVR DEVICES. [*] may sublicense the rights granted under Section 3.1(a)(i), 3.1(a)(ii), and 3.1(a)(iii) above to such [*] consistent with the terms and conditions of this AGREEMENT. Subsequent activations of the same [*] PVR DEVICES (excluding products refurbished and resold by [*]) do not require payment of any additional fee. Provided [*] pays the PER UNIT FEE and [*] FEE for such [*] PVR DEVICES then, except as expressly set forth in this Section 3.1(b)(ii) and Section 3.2, the terms and conditions of this AGREEMENT applicable to TIVO PVR DEVICES shall be applicable to [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG, and shall be deemed to have applied during the SECTION 3.1(b)(ii) [*], so long as [*] pays the [*] fees timely upon [*] of the SECTION 3.1(b)(ii) [*]. [*]
TIVO agrees and acknowledges that any agreement that it enters into with an [*] with respect to the deployment of the GEMSTAR AUTHORIZED TIVO IPG on [*] PVR DEVICES shall:
(E) not indemnify such [*] against claims by GEMSTAR for infringement of GEMSTAR IPG-RELATED PATENTS or any fees due and payable to GEMSTAR for the deployment of such GEMSTAR AUTHORIZED TIVO IPG; and
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(F) expressly state in such agreement that such GEMSTAR AUTHORIZED TIVO IPG is being provided by TIVO without a license from GEMSTAR and that such [*] acknowledges that it may need to obtain a separate license agreement with respect to the deployment of such GEMSTAR AUTHORIZED TIVO IPG.
(iii) [*]. As to a third-party that is a [*], the PARTIES agree and acknowledge that [*] shall have an [*] from [*] to finalize any [*] with such third-party [*]. If [*] enters into a license agreement with such [*], [*] shall notify [*] within fifteen (15) business days of the date that such agreement is made public. If [*] desires to enter into a license agreement with a [*], [*] pay to [*] the PER UNIT FEE specified in Section 4.1 plus the [*] FEE specified in Section 4.3 for all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG that perform INITIAL ACTIVATION during the TERM in the TERRITORY as if such [*] PVR DEVICES were [*] PVR DEVICES. [*] may sublicense the rights granted under Section 3.1(a)(i), 3.1(a)(ii), and 3.1(a)(iii) above to such [*] consistent with the terms and conditions of this AGREEMENT. Subsequent activations of the same [*] PVR DEVICES (excluding products refurbished and resold by [*]) do not require payment of any additional fee. Provided [*] pays the PER UNIT FEE and [*] FEE for such [*] PVR DEVICES, except as expressly set forth in this Section 3.1(b)(iii) and Section 3.2, the terms and conditions of this AGREEMENT applicable to TIVO PVR DEVICES shall be applicable to [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG.
(iv) [*]. As to a third-party that is not (A) [*]; (B) [*]; or (C) [*], [*] shall notify [*] that it has publicly announced, executed, or intends to execute, an agreement with such [*] and [*] shall confirm whether such [*] is, as of the date of such notification, [*].
[*] pay to [*] the PER UNIT FEE specified in Section 4.1 for all [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG that perform INITIAL ACTIVATION during the TERM in the TERRITORY as if such [*] PVR DEVICES were TIVO PVR DEVICES. [*] shall [*] all such [*] PVR DEVICES for which [*] pays the PER UNIT FEE pursuant to Section [*]. [*] may sublicense the rights granted under Section 3.1(a)(i), 3.1(a)(ii) and 3.1(a)(iii) above to such [*] consistent with the terms and conditions of this AGREEMENT. Subsequent activations of the [*] PVR DEVICES (excluding products refurbished and resold by [*]) do not require payment of any additional fee. Provided [*] pays the PER UNIT FEE for such [*] PVR DEVICES then, except as expressly set forth in this Section 3.1(b)(iv) and Section 3.2, the terms and conditions of this AGREEMENT applicable to TIVO PVR DEVICES shall be applicable to such [*] PVR DEVICES incorporating the GEMSTAR AUTHORIZED TIVO IPG.
(c) COMFORT LETTER. Within ten (10) business days of TIVO’s written request, GEMSTAR shall provide to the specified [*] an executed comfort letter substantially similar to that set forth in SCHEDULE I, with a copy to TIVO.
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(d) [*] Devices. The PARTIES agree to explore mutually beneficial opportunities for integrating a GEMSTAR authorized IPG and TIVO PVR TECHNOLOGY in [*] devices. Upon a request from a [*] that is a GEMSTAR IPG licensee, GEMSTAR agrees to integrate the TIVO PVR TECHNOLOGY with GEMSTAR’s IPG.
(e) [*] Licensees. TIVO may integrate the [*] with non-GEMSTAR, third-party IPGs in third-party provisioned devices. So long as TIVO (A) does not specify, supply or deliver the IPG or delivery television program schedule information; and (B) does not indemnify any such third party in any way with respect to the deployment of such third-party IPGs, GEMSTAR agrees to generally and specifically release TIVO from any acts of infringement of the GEMSTAR IPG-RELATED PATENTS relating to the manufacture, import, sale, lease, offer for sale, TRANSFER or use of such third-party IPG in such third-party provisioned devices. Except for the foregoing, TIVO agrees and acknowledges that such deployment of such third-party IPGs is not licensed or authorized, in any way, under this AGREEMENT or any other agreement with GEMSTAR.
(a) SERIES 2. In exchange for the [*] PER UNIT FEES set forth in Section 4 of this AGREEMENT, TIVO hereby agrees and commits during the TERM to [*] incorporate a GEMSTAR AUTHORIZED TIVO IPG into [*] TIVO PVR DEVICES manufactured during the TERM and that perform INITIAL ACTIVATION with the TIVO SERVICE, and into any and all versions of the TIVO SERVICE provided during the TERM (and through any sell-off period provided for in Section 6.6 of this AGREEMENT) by TIVO to Series 2 (or any future models of) PVR DEVICES. The PARTIES agree and acknowledge that TIVO shall have [*] after [*] to incorporate a GEMSTAR AUTHORIZED TIVO IPG in the TIVO SERVICE provided to Series 2 (or any future models of) PVR DEVICES. Notwithstanding the foregoing, the PARTIES further agree and acknowledge that [*] identified under Section [*] and [*] may [*] an [*] pursuant to [*]. In such event, TIVO’s obligations under this Section 3.2(a) shall [*] apply to any [*] TRANSFERRED by [*] and shall [*] apply to any TIVO SERVICE provided to [*].
(b) SERIES 1. [*] If TIVO [*] elects to provide a service upgrade to the existing base of Series 1 PVR DEVICES (other than an emergency service upgrade to provide bug fixes or workarounds to problems in such Series 1 PVR DEVICES), TIVO hereby agrees to incorporate a GEMSTAR AUTHORIZED TIVO IPG into such service upgrade [*]. Prior to any such [*] Series 1 service upgrade by TIVO, if GEMSTAR desires to have TIVO incorporate a GEMSTAR AUTHORIZED TIVO IPG into the existing base of Series 1 PVR DEVICES, the PARTIES agree to negotiate in good faith the timing and schedule for a dedicated service upgrade for the GEMSTAR AUTHORIZED TIVO IPG, with any [*] costs of TIVO associated with such dedicated service update to be borne solely by GEMSTAR.
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(a) GEMSTAR grants to TIVO, subject to TIVO’s continued compliance with the terms and conditions set forth in this AGREEMENT, a royalty-free, non-exclusive, nontransferable (except as set forth in Section 10.11), non-sublicenseable right to use the GEMSTAR MARK in the TERRITORY during the TERM of this AGREEMENT, and only in connection with the GEMSTAR AUTHORIZED TIVO IPG and advertising material related to the TIVO PVR DEVICES and TIVO SERVICE that provide access to the GEMSTAR AUTHORIZED TIVO IPG.
(b) TIVO hereby agrees and commits to brand or co-brand the GEMSTAR AUTHORIZED TIVO IPG such that the GEMSTAR MARK shall appear on all versions of the [*] and the [*] with [*] to the [*] or any other [*] on such [*]. The PARTIES agree and acknowledge that the co-branding set forth in SCHEDULE E is conceptually approved and agreed to by both PARTIES. Should TIVO elect to incorporate GEMSTAR IPG DATA into the GEMSTAR AUTHORIZED TIVO IPG, TIVO hereby agrees and commits to the provide the same branding or co-branding for the GEMSTAR MARK on the TIVO program information screen accessible from the [*] feature. In the event that TIVO [*] the GEMSTAR AUTHORIZED TIVO IPG such that [*] or [*] is [*], the PARTIES agree to discuss in good faith [*] for the [*] GEMSTAR MARK, such that the GEMSTAR MARK [*] from END-USERS through the TIVO SERVICE after [*] as [*].
(c) TIVO acknowledges that, as between GEMSTAR and TIVO, the GEMSTAR MARK is the sole and exclusive property of GEMSTAR. TIVO further acknowledges the value of the goodwill associated with the GEMSTAR MARK and agrees that any additional goodwill that may be created through TIVO’s use of the GEMSTAR MARK shall inure to the sole benefit of GEMSTAR. TIVO agrees and acknowledges that GEMSTAR shall have the right to review, monitor and approve the quality of any depiction of the GEMSTAR MARK used by TIVO as permitted under Section 3.3(a). TIVO shall request in writing GEMSTAR’s prior review and approval of any depiction of the GEMSTAR MARK, and GEMSTAR agrees to provide such review and approval within [*] of the receipt of TIVO’s request. If GEMSTAR does not respond to such request within such [*] period, such depiction shall be deemed approved. GEMSTAR retains the right to monitor the quality of any authorized products or services to which the GEMSTAR MARK is affixed by TIVO, and should it determine, in its sole discretion, that that quality of such products or services is not consistent with the quality required by GEMSTAR in connection with the GEMSTAR MARK, may notify TIVO in writing of any issues and the PARTIES will work in good faith to resolve any such issues.
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period provided for in Section 6.6 of this AGREEMENT). Such re-branding of the “Showcase” menu item will [*] in lieu of [*], if [*] is [*] and is [*].
(a) TRANSFER REQUIREMENTS. TIVO agrees it shall not TRANSFER TIVO PVR DEVICES directly to SERVICE PROVIDER. Any TRANSFER of TIVO PVR DEVICES or the TIVO IPG directly to any SERVICE PROVIDERS shall not be authorized or licensed in any way under this AGREEMENT.
(b) NOTICE REQUIREMENTS. TIVO agrees to include notice language substantially as set forth in SCHEDULE B in the next set of revisions commenced after the EFFECTIVE DATE to the documentation accompanying each TIVO PVR DEVICE, and to also include similar language in the “SYSTEM INFORMATION” screen or equivalent area of the GEMSTAR AUTHORIZED TIVO IPG no later than [*] after [*]. GEMSTAR may update the notice information on SCHEDULE B to include other IPG-RELATED PATENTS licensed under this AGREEMENT on [*] by written notice to and approval by TIVO, which shall not be unreasonably withheld; provided that TIVO shall only be obligated to update such information in documentation accompanying each TIVO PVR DEVICE or in the “SYSTEM INFORMATION” screen or equivalent area in the revision to the documentation or in next software update or release commenced after receipt of such update notice from GEMSTAR.
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SECTION 4.0 FEES
SECTION 5.0 PAYMENTS AND REPORTS
(a) Within [*] of the close of each calendar [*], TIVO shall pay GEMSTAR the total of all PER UNIT FEES and [*] FEES attributable to each TIVO PVR DEVICE performing INITIAL ACTIVATION in the TERRITORY during such calendar [*].
(b) In addition, within [*] of the close of each calendar [*], each PARTY shall pay to the other PARTY all amounts accrued by the owing PARTY under this AGREEMENT during the immediately preceding calendar [*].
(c) All payments and other sums of money due hereunder shall be paid in United States dollars.
(d) All payments due under this AGREEMENT shall be paid via bank wire transfer in accordance with banking information to be supplied to each PARTY by the other during the TERM.
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(a) Each payment by TIVO pursuant to Sections 5.1(a) hereof shall be accompanied by a written [*] payment report identifying the number of TIVO PVR DEVICES TRANSFERRED and that perform INITIAL ACTIVATION pursuant to Section 4.1 in the TERRITORY during the calendar [*] for which payment is being made, showing at least the TIVO-branded PVR DEVICES by brand, model number (to the extent such information is available), country of manufacture (to the extent such information is available), destination country (to the extent such information is available), quantities TRANSFERRED (to the extent such information is available), and quantities that perform INITIAL ACTIVATION, as well as a calculation of the sum total of the PER UNIT FEES and [*] FEES that are being remitted to GEMSTAR hereunder, all in such form and detail as reasonably specified by GEMSTAR and approved by TIVO, such approval shall not be unreasonably withheld. Each payment report shall be certified, in writing, by an authorized representative of TIVO. GEMSTAR reserves the right to modify the format of the payment report from time to time by written notice to, and approval (which shall not be unreasonably withheld) by, TIVO.
(b) Each payment by one PARTY to the other pursuant to Section 5.1(b) shall be accompanied by a written [*] payment report identifying the basis and details for such payment, as well as a calculation of the payment to be made to the other PARTY, all in such form all in such form and detail as reasonably specified by the payee and approved by payor, such approval shall not be unreasonably withheld. Each payment report shall be certified, in writing, by an authorized representative of the payor.
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(c) Payment reports shall be sent by overnight delivery, or faxed and then mailed within five (5) days as set forth below.
To GEMSTAR:
Gemstar – TV Guide International, Inc. Attn: Licensing Department 6922 Hollywood Blvd. Los Angeles, CA 90028 Fax: US 323.817.4759
To TIVO:
TiVo Inc. Attn: Accounts Receivable 2160 Gold Street Alviso, CA 95002 Telephone: US 408.519.9203 Fax: US 408.519.5337
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SECTION 6.0 TERM AND TERMINATION
(a) TIVO is declared insolvent, makes an assignment for the benefit of creditors, becomes bankrupt, commits an act of bankruptcy, files a petition for protection from creditors and/or for any reorganization pursuant to the bankruptcy laws, or is subject to a court order requiring the compulsory liquidation of TIVO, and any of the foregoing is not rescinded or dismissed within [*];
(b) TIVO TRANSFERS TIVO PVR DEVICES or other TIVO branded products in violation of the terms and conditions of this AGREEMENT, and does not cure the same within [*] after receiving written notice of such violation from GEMSTAR;
(c) TIVO has been determined by a court of competent jurisdiction to have willfully or deliberately violated a material provision of this AGREEMENT;
(d) TIVO brings an action or proceeding against GEMSTAR asserting any of TIVO’s intellectual property rights; or
(e) TIVO has committed a material breach of its obligations under Sections 3.2, 3.3, 3.4, 3.5, 7.2, 8.2 or 10.9 and does not cure the same within [*] after receiving written notice of such material breach from GEMSTAR.
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giving written notice to GEMSTAR and this AGREEMENT shall terminate in [*] from the date of such notice if:
(a) GEMSTAR is declared insolvent, makes an assignment for the benefit of creditors, becomes bankrupt, commits an act of bankruptcy, files a petition for protection from creditors and/or for any reorganization pursuant to bankruptcy laws or is subject to a court order requiring the compulsory liquidation of GEMSTAR, and any of the foregoing is not rescinded or dismissed within [*];
(b) GEMSTAR is determined by a court of competent jurisdiction to have willfully or deliberately violated any material provision of this AGREEMENT;
(c) GEMSTAR brings an action or proceeding against TIVO asserting any of GEMSTAR’s intellectual property rights; or
(d) GEMSTAR has committed a material breach of its obligations under Section 7.2, 7.3, or 10.9 and does not cure the same within [*] after receiving written notice of such material breach from TIVO.
(i) TIVO has paid GEMSTAR all fees and payments due GEMSTAR under this AGREEMENT in accordance with Section 4.1 and Section 4.3, as may be applicable; and
(ii) TIVO continues to adhere to the terms and conditions of this AGREEMENT, as if such AGREEMENT had not expired including but not limited to making all reports, fees and payments to GEMSTAR in a timely manner.
(a) Termination by GEMSTAR. The following provisions shall survive any termination of this AGREEMENT by GEMSTAR under Sections 6.2 or 6.3 above:
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(a) licenses granted under Section 3.1 and 3.3 during the sell-off period provided for in Section 6.6; (b) licenses granted under Section 3.1 and 3.3 for any TIVO PVR DEVICES TRANSFERRED during the TERM of this AGREEMENT (but prior to such expiration or termination) or during the sell-off period provided for in Section 6.6 and the GEMSTAR AUTHORIZED TIVO IPG and the TIVO SERVICE provided to such TIVO PVR DEVICES; (c) for the sell-off period provided for in Section 6.6, the obligations of TIVO under Sections 3.2, 3.3 and 3.4 with respect to the GEMSTAR AUTHORIZED TIVO IPG and TIVO SHOWCASE; (d) Section 5.0 with respect to any fees owed, but not yet paid under this AGREEMENT; (e) Section 6.6 for the term set forth therein; (f) Section 6.7(a); (g) Section 6.8; (h) Section 7; (i) Section 8.2 for any GEMSTAR authorized IPG product TRANSFERRED during the TERM and any GEMSTAR authorized IPG service provided to such GEMSTAR authorized IPG products; and (j) Section 10.
(b) Termination by TIVO or Expiration of AGREEMENT. The following provisions shall survive any expiration of this AGREEMENT or any termination of this AGREEMENT by TIVO under Sections 6.2 or 6.4 above: (a) licenses granted under Section 3.1 and 3.3 during the sell-off period provided for in Section 6.6; (b) licenses granted under Section 3.1 and 3.3 for any TIVO PVR DEVICES TRANSFERRED during the TERM of this AGREEMENT (but prior to such expiration or termination) or during the sell-off period provided for in Section 6.6 and the GEMSTAR AUTHORIZED TIVO IPG and the TIVO SERVICE; (c) during the sell-off period provided for in Section 6.6, the obligations of TIVO under Sections 3.2, 3.3 and 3.4 with respect to the GEMSTAR AUTHORIZED TIVO IPG and TIVO SHOWCASE; (d) Section 5.0 with respect to any fees owed, but not yet paid under this AGREEMENT; (e) Section 6.6 for the term set forth therein; (f) Section 6.7(b); (g) Section 7; (h) Section 8.2 for any GEMSTAR authorized IPG product TRANSFERRED during the TERM and any GEMSTAR authorized IPG service provided to such GEMSTAR authorized IPG products; and (i) Section 10.
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SECTION 7.0 REPRESENTATIONS, WARRANTIES, WAIVER LIMITATIONS ON LIABILITY AND DAMAGES, DISMISSAL AND RELEASE
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DATA OR OTHER TANGIBLE BUSINESS LOSS OR OTHER CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(a) RELEASE. As of the EFFECTIVE DATE hereof, each PARTY fully and forever, releases and discharges the other PARTY, including their existing and future SUBSIDIARIES, affiliates, stockholders, agents, servants, officers, and directors, and any former or current licensees and customers, from any and all manner of actions, claims, lawsuits, arbitration proceedings, liabilities, damages, attorneys’ fees and other expenses and costs, however and wheresoever, relating to the subject matter of the LAWSUIT (including without limitation any and all PVR DEVICES incorporating a TIVO IPG TRANSFERRED before the EFFECTIVE DATE of this AGREEMENT) and any and all other alleged or actual acts of IPG-RELATED PATENT infringement occurring prior to the EFFECTIVE DATE, except as noted below. Such release shall not bar, however, actions to enforce the rights of a PARTY under this AGREEMENT for wrongful acts or omissions occurring after the EFFECTIVE DATE. Notwithstanding anything in this Section 7.7, GEMSTAR expressly does not release any claims, including without limitation, claims for patent infringement, against TIVO or any of its licensees, customers, partners, joint venturers, affiliates or other third parties relating to any past, current or future DIRECTV SET-TOP BOXES that incorporate a TIVO IPG.
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(b) ACKNOWLEDGEMENT. The PARTIES hereto acknowledge the existence of Section 1542 of the Civil Code of the State of California that reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED SETTLEMENT WITH THE DEBTOR”
The PARTIES hereto respectively expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to any releases granted hereunder.
SECTION 8.0 RESPONSIBILITY AND NON-ASSERTION
(a) COVENANT. TIVO covenants that, subject to GEMSTAR’s continued compliance with the terms and conditions of this AGREEMENT, TIVO, to the extent it has the rights to assert, shall not assert against GEMSTAR, or against any of GEMSTAR’s suppliers, distributors, dealers, customers or licensees (“GEMSTAR’S CUSTOMERS”), any IPG-RELATED PATENT right against any IPG features or functionality of a GEMSTAR authorized IPG product or GEMSTAR authorized IPG service, either of the foregoing that is TRANSFERRED or provided in the TERRITORY during the TERM. This covenant shall not apply to any GEMSTAR CUSTOMER who files a claim for patent infringement against TIVO in connection with the IPG features or functionality of a TIVO PVR DEVICE, the GEMSTAR AUTHORIZED TIVO IPG, or the TIVO SERVICE. The covenant set forth in this section shall bind and inure to all successors of interest of TIVO’s IPG-RELATED PATENT rights.
(b) RELEASE. TIVO hereby generally and specifically releases GEMSTAR and GEMSTAR’S CUSTOMERS from any acts of infringement occurring prior to the EFFECTIVE DATE under TIVO IPG-RELATED PATENTS relating to the IPG features or functionality of any GEMSTAR authorized IPG product or GEMSTAR authorized IPG related service, provided such release in so far as such GEMSTAR CUSTOMER’S is concerned, shall apply only to such GEMSTAR CUSTOMERS who have similarly released TIVO.
SECTION 9.0 OTHER TIVO – GEMSTAR OPPORTUNITIES
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on the [*] or [*] of the GEMSTAR AUTHORIZED TIVO IPG in which [*] information is presented for [*] or [*] (as opposed to [*] solely [*] to [*]) (“IPG ADVERTISING”), TIVO will appoint and designate GEMSTAR as [*] representative for provisioning and providing IPG ADVERTISING. The PARTIES agree and acknowledge that the current TIVO Showcases and related TIVO promotions shall not be considered IPG ADVERTISING and any advertising or promotion taking place in any screen or region of any screen of the GEMSTAR AUTHORIZED IPG in which no television program schedule information is presented for currently broadcast or future television programs shall not be considered IPG ADVERTISING. The provisioning and providing of IPG ADVERTISING by GEMSTAR shall be in accordance with terms and conditions which shall be set forth in an amendment to this AGREEMENT and which shall include, at a minimum, GEMSTAR providing or securing content-related licenses and indemnifications to TIVO. The following additional terms and conditions shall apply to the provisioning and providing of IPG ADVERTISING by GEMSTAR, as further described in such amendment to this AGREEMENT:
(a) TIVO shall be entitled to receive [*] of ADVERTISING REVENUE, if any, from IPG ADVERTISING in or on GEMSTAR AUTHORIZED TIVO IPGs provisioned or provided by GEMSTAR.
(b) TIVO shall retain the right to sell IPG ADVERTISING, so long as such IPG ADVERTISING is [*] with the sale of TIVO Showcases and related promotions.
(c) So long as GEMSTAR is actively engaged in the provisioning and providing of IPG ADVERTISING in or on the GEMSTAR AUTHORIZED TIVO IPG, GEMSTAR shall be entitled to receive [*] of ADVERTISING REVENUE, if any, from IPG ADVERTISING in or on GEMSTAR AUTHORIZED TIVO IPGs provisioned or provided by TIVO under the limited exception set forth above.
(d) If GEMSTAR is not actively engaged in the provisioning and providing of IPG ADVERTISING in or on the GEMSTAR AUTHORIZED TIVO IPG, TIVO shall be entitled to retain [*] of ADVERTISING REVENUE, if any, from IPG ADVERTISING in or on GEMSTAR AUTHORIZED TIVO IPGs provisioned or provided by TIVO under the limited exception set forth above.
If GEMSTAR elects not to perform, or cannot perform, as [*] representative for provisioning and providing IPG ADVERTISING within [*] of TIVO’s notice of TIVO’s election to enable advertising on the GEMSTAR AUTHORIZED TIVO IPG, then GEMSTAR shall have an additional [*] to elect to be [*] agent for sales of IPG ADVERTISING. Upon such election, the PARTIES shall agree on the terms and conditions of such agency; provided that GEMSTAR shall receive a commission of [*] of all ADVERTISING REVENUES for IPG ADVERTISING sold by GEMSTAR.
Once IPG ADVERTISING has been incorporated in the GEMSTAR AUTHORIZED TIVO IPG, in the event that TIVO, in its sole discretion, modifies the
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GEMSTAR AUTHORIZED TIVO IPG such that [*] or any other screen of the GEMSTAR AUTHORIZED TIVO IPG in [*] information is presented for [*] is [*], the PARTIES agree to discuss in good faith potential [*] opportunities for the [*] IPG ADVERTISING, such that the IPG ADVERTISING [*] from END-USERS through the TIVO SERVICE after [*] as [*].
The PARTIES agree to use commercially reasonable efforts to define the TIVO specification for incorporating the GEMSTAR IPG DATA into the GEMSTAR AUTHORIZED TIVO IPG within [*] of the EFFECTIVE DATE of this AGREEMENT.
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website, any [*] costs of TIVO associated with the integration of such remote scheduling feature shall be reimbursed by GEMSTAR. In addition, the PARTIES will mutually agree on any [*] costs incurred by TIVO for the on-going delivery of the remote scheduling feature that [*] would [*]. Any additional specific terms and conditions relating such incorporation shall be mutually agreed to by the PARTIES and set forth in an applicable amendment to this AGREEMENT, but shall include at least the following provisions:
(a) GEMSTAR shall be responsible for all of the development work to enable the client web application to interface with TIVO’s back-end scheduling system;
(b) a royalty-free trademark license from TIVO to GEMSTAR for use of the to the TIVO logo in association with the remote scheduling feature;
(c) GEMSTAR shall display the TIVO logo on the tvguide.com homepage with a size no smaller than the smaller of (x) any [*] or (y) [*] the size of the GEMSTAR MARKS and in the event that no third-party logos are displayed, the TIVO logo shall no smaller than [*] the size of the GEMSTAR MARKS and in close proximity to the IPG, and in a manner and location to be negotiated by the PARTIES in good faith;
(d) GEMSTAR shall display the TIVO logo on any pages or screens pertaining to the use of the remote scheduling software by END-USERS with a size no smaller than the smaller of (x) any [*] or (y) [*] the size of the GEMSTAR MARKS and in the event that no third-party logos are displayed, the TIVO logo shall no smaller than [*] the size of the GEMSTAR MARKS and in close proximity to the IPG, and in a manner and location to be negotiated by the PARTIES in good faith; and
(e) GEMSTAR shall pay TIVO [*] of any revenues directly attributable to the resale of the remote scheduling feature to any advertiser or third party. As used herein, “revenues” shall be the [*] of [*] determined using generally accepted accounting principles, minus (i) [*], not to exceed current industry market rates; and (ii) [*].
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SECTION 10.0 MISCELLANEOUS PROVISIONS
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Where NOTICE is sent by certified or registered mail under this AGREEMENT, NOTICE shall be effective on the [*] business day following the date of mailing, and, if NOTICE is delivered in person or by facsimile, such NOTICE shall be effective when so delivered or rejected. NOTICES shall be addressed as follows:
To GEMSTAR:
Gemstar – TV Guide International, Inc. ATTN: Stephen Kay, EVP and General Counsel 6922 Hollywood Blvd. Los Angeles, CA 90028 Telephone: US 323.817.4600 Facsimile: US 323.817.4759
To TIVO:
TiVo Inc. ATTN: Matthew Zinn, VP, General Counsel and Chief Privacy Officer 2160 Gold Street Alviso, CA 95002-2160 Telephone: US 408.519.9311 Facsimile: US 408.519.5333
(a) TIVO Obligations. TIVO and its employees, representatives and agents shall keep confidential the terms and conditions of this AGREEMENT, any and all data, reports and information relating thereto, and any confidential technical (including but not limited to software), business and/or financial information provided by GEMSTAR to TIVO and identified as “CONFIDENTIAL”, unless:
(i) otherwise required by a judicial order issued by a court of competent jurisdiction;
(ii) otherwise required by governmental laws or regulations;
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(iii) pursuant to the rules and regulations of any stock association or exchange on which TIVO’s stock is traded; or
(iv) in confidence in connection with the enforcement of this AGREEMENT, or any rights under this AGREEMENT, against GEMSTAR,
in which event TIVO shall (A) give GEMSTAR prior written notice of such intended disclosure and (B) use best efforts to obtain an appropriate protective or comparable confidentiality order applicable to all information subject to disclosure.
(b) GEMSTAR Obligations. GEMSTAR and its employees, representatives and agents shall keep confidential the terms and conditions of this AGREEMENT, any and all data, reports and information relating thereto, and any confidential technical (including but not limited to software), business and/or financial information provided by TIVO to GEMSTAR and identified as “CONFIDENTIAL”, unless
(i) otherwise required by a judicial order issued by a court of competent jurisdiction;
(ii) otherwise required by governmental laws or regulations;
(iii) pursuant to the rules and regulations of any stock association or exchange on which GEMSTAR’s stock is traded; or
(iv) in confidence in connection with the enforcement of this AGREEMENT, or any rights under this AGREEMENT, against TIVO,
in which event GEMSTAR shall (A) give TIVO and prior written notice of such intended disclosure and (B) use best efforts to obtain an appropriate protective or comparable confidentiality order applicable to all information subject to disclosure.
(c) GENERALLY. Notwithstanding the foregoing, it is understood that no data, report or other information provided by one PARTY (the “DISCLOSING PARTY”) to another PARTY (the “RECEIVING PARTY”) pursuant hereto shall be considered confidential information of the DISCLOSING PARTY subject to the requirements of this Section 10.9 if the RECEIVING PARTY can document that such data, report or other information (i) was rightfully in the possession of the RECEIVING PARTY prior to its being communicated to the RECEIVING PARTY by or on behalf of the DISCLOSING PARTY, (ii) was publicly known or becomes publicly known through no unauthorized act or fault of the RECEIVING PARTY or any of its SUBSIDIARIES, if any or (iii) becomes available to the RECEIVING PARTY on a non-confidential basis from a source other than the DISCLOSING PARTY or any of its SUBSIDIARIES, if any, provided that such source is not bound by a contractual, legal or fiduciary obligation of confidentiality or nondisclosure, or (iv) is independently developed by the RECEIVING PARTY, without use or access to the DISCLOSING PARTY’S confidential information. The PARTIES agree to not use any confidential information of the other for any purpose other than for the purposes specifically authorized under this AGREEMENT. The confidentiality
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obligations set forth in this Section 10.9 shall continue for three (3) years after the TERM.
(a) such assignment shall not be to any entity [*] as of the date of such assignment or to any entity [*];
(b) the assignee expressly agrees and acknowledges that the economic terms and conditions set forth [*] shall supersede and replace the economic terms and conditions set forth in Section [*] this AGREEMENT for any INITIAL ACTIVATIONS of TIVO PVR DEVICES performed after the date of such assignment.
(a) Either PARTY may provide written notice to the other PARTY that it is invoking the expedited resolution procedure set forth in this section. Such notice shall include a reasonable identification of the issues arising sufficient to inform the other PARTY of the issue to be resolved.
(b) Each PARTY will appoint a designated representative whose task it will be to attempt to resolve such issue(s).
(c) The designated representatives from each PARTY will discuss the issues in dispute and/or negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceedings.
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(d) The specific format for such discussions will be left to the discretion of the designated representatives.
(e) If the designated representatives are unable to agree within [*] days after the initial written request for resolution, the respective chief executive officers (“CEOs”) of the PARTIES will attempt to resolve the dispute. If no agreement can still be reached after discussions between the CEOs, the PARTIES may seek any relief to which they are entitled to under this AGREEMENT.
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Thus, for the avoidance of doubt, the PARTIES acknowledge and agree that the tax treatment and tax structure of any transaction does not include the name of any PARTY to a transaction or any sensitive business information (including, without limitation, the name and other specific information about any PARTY’S intellectual property or other proprietary assets including confidential information disclosed pursuant to Section 10.9) unless such information may be related or relevant to the purported or claimed federal income tax treatment of the transaction.
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[GEMSTAR LOGO]
IN WITNESS WHEREOF, the PARTIES hereto have caused this AGREEMENT to be executed by their respective duly authorized representatives to be effective as of the date first written above.
FOR THE AVOIDANCE OF DOUBT, each PARTY certifies that the provisions of Section 6.8 are reasonable under the circumstances existing as of the EFFECTIVE DATE by signing below:
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