Development and Distribution Agreement - America Online Inc. and TiVo Inc.
DEVELOPMENT AND DISTRIBUTION AGREEMENT
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This Development and Distribution Agreement (the "Agreement") is made and
entered into as of this 30th day of April, 2002 by and between America Online,
Inc., a Delaware corporation ("AOL"), and TiVo Inc., a Delaware corporation
("TiVo") (each a "Party" and, collectively, the "Parties").
R E C I T A L S
WHEREAS, AOL and TiVo entered into a Product Integration and Marketing Agreement
dated June 9, 2000 (the "Original Agreement") pursuant to which AOL and TiVo
undertook to develop an integrated product that would enable AOL's "AOL TV(R)"
service to be bundled with and installed on a TiVo personal digital video
recorder and to market and distribute such integrated product solely in the
United States; and
WHEREAS, AOL and TiVo intend that this Agreement terminate, replace and
supersede the Original Agreement in its entirety.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, AOL and TiVo, intending to be
legally bound, agree as follows:
1. Certain Definitions.
Capitalized terms used but not defined in the Agreement will be as defined
in Schedule 1 attached hereto.
2. Amended and Restated Agreement.
This Agreement terminates, replaces and supersedes the Original Agreement
in its entirety. The Original Agreement is hereby terminated and has no further
force or effect. Each Party hereby releases and discharges each other from any
and all claims, liens, charges and other rights with respect to the Original
Agreement.
3. Obligations related to the Development and Delivery.
3.1 Joint Responsibilities. Joint responsibilities of the Parties
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hereunder shall include, without limitation, the following:
(a) AOL and TiVo will jointly coordinate the development of the
Specifications to ensure compatibility and integration between
the AOL TV Service (existing as of the Effective Date) and the
TiVo Platform. TiVo will be responsible for the development and
integration of the AOL TV Application and the development of the
Mercury Application, as set forth in Schedule 2.
(b) AOL and TiVo will meet via teleconference or in person on a
regularly scheduled basis to discuss progress on the development
or marketing obligations set forth herein. AOL and TiVo each
shall designate a program manager ("Program Manager") who shall
be the principal point of contact between them for all matters
relating to this Agreement. The initial Program Manager for AOL
shall be Peter Nush and the initial Program Manager for TiVo
shall be Vic Alessi. AOL and TiVo may designate new Program
Managers and other personnel responsible for particular tasks
related to this Agreement by written notice to the other Party.
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(c) TiVo will develop[*] as set forth in Schedule 11 in
accordance with the Milestone Schedule set forth in Schedule 2.
AOL shall use commercially reasonable efforts to (i) provide to
TiVo [*] required from [*]and[*] necessary to develop and
demonstrate the prototype for[*]. AOL believes in good faith it
has through its existing agreements or can obtain through
commercially reasonable efforts [*]from [*] or[*]for the work
described at Schedule 11. TiVo agrees and acknowledges that it
must execute the standard [*]required by each of [*]and[*] (which
are substantially similar to the [*]obligations undertaken by AOL
with such party) prior to the provision by AOL of any necessary
sublicense of such third party rights (a "Third Party
Passthrough") and prior to receiving any information or materials
or documentation belonging to each such party. In the event that
TiVo is unable or unwilling to enter into such [*]with each
party, TiVo shall promptly refund to AOL the initial payment
allocated to[*], and the Parties shall have no further obligation
to each other with respect to[*]. In the event, notwithstanding
AOL's commercially reasonable efforts, that either [*]or[*]
refuses to or is otherwise unable or unwilling to perform the
work identified for such party in Schedule 11, the Parties shall
use commercially reasonable efforts to identify a substitute
project whereby the Parties would jointly develop a [*]similarly
suitable for deployment [*], and if the Parties are unable to
identify a substitute project, the Parties will use commercially
reasonable efforts to agree in good faith upon the reallocation
of the funds paid by AOL to TiVo for[*], provided, however, that
if the Parties, notwithstanding their good faith commercially
reasonable efforts, fail to agree upon the reallocation, then the
Parties shall agree in writing to cancel[*], and neither Party
shall have any further obligation to the other with respect to
[*] (including without limitation, any obligation of TiVo to
refund the initial payment paid by AOL for[*].)
(d) Acceptance Criteria. The Parties shall use commercially
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reasonable efforts and work in good faith to mutually agree upon
Acceptance Criteria within sixty (60) days of the Effective Date.
AOL has provided a draft of such Acceptance Criteria to TiVo, and
TiVo agrees that the final Acceptance Criteria shall be based
upon the draft Acceptance Criteria provided by AOL. AOL is
willing to agree to the draft Acceptance Criteria provided by AOL
as of the Effective Date; in the event the Parties are unable,
notwithstanding their commercially reasonable and good faith
efforts, to agree upon Acceptance Criteria within sixty (60)
days, either Party shall have the right to terminate this
Agreement solely with respect to the Development Activities
covered by the Acceptance Criteria, and TiVo shall promptly
refund to AOL all amounts paid by AOL to TiVo hereunder for such
Development Activities minus TiVo's reasonably documented
expenses incurred during such sixty (60) day period.
3.2 Development Obligations of TiVo.
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(a) Development. As of the Effective Date, TiVo has completed
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development of the TiVo Platform. Based on such TiVo Platform,
TiVo shall develop the AOL TV Application and the Mercury
Application in accordance with the Specifications and the
milestone schedule set forth in Schedule 2 (the "Milestone
Schedule").
(i) TiVo will develop Documentation necessary for the testing,
operation, and use of the AOL TV Application and the Mercury
Application running on or in conjunction with the TiVo
Platform and will deliver such Documentation, in both print
and machine-readable format, to AOL. Documentation shall
include release dates and version numbers to facilitate its
use with the Deliverables.
(ii) TiVo will provide AOL with [*]oral and written reports of
its progress in the development of the Deliverables in a
format to be mutually agreed upon by the Parties.
During the Term of this Agreement, TiVo shall not make or
implement any changes to the TiVo
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Platform that materially degrade the performance or
accessibility of the AOLTV Application, Mercury Application,
[*].
(b) Change Requests. Within sixty (60) days of the Effective Date
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with respect to the AOL TV Application or the Mercury
Application, and during the Term with respect to[*], AOL may,
from time to time, request changes (consisting of additions,
modifications, reallocation of development funds, deletions or
other revisions) to the Specifications or to the Development
Activities provided such changes relate to development work for a
[*]product or service for AOL or its Affiliates, subject to
TiVo's consent, [*]. Following the date occurring sixty (60) days
after the Effective Date, the Parties may from time to time agree
to changes (consisting of additions, modifications, reallocation
of development funds, deletions or other revisions) to the
Specifications or to the Development Activities identified for
the AOL TV Application or the Mercury Application. Each change
request must be reflected in a written document signed by both
Parties that includes a detailed description of the specific
change, along with any modified specifications and desired
completion date(s) ("Change Request"). Each Change Request duly
authorized in writing by the Parties shall constitute a formal
amendment to this Agreement, and shall be deemed incorporated
into and shall become part of this Agreement. A Change Request
shall have no effect on the rights and obligations of TiVo or AOL
with respect to products delivered or services provided before
the effective date of the Change Request. The Parties shall
negotiate in good faith the terms, conditions (including any
changes to the Milestone Schedule), and allocation of costs
related to the implementation of any Change Request.
(c) Delivery and Approval.
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(i) Delivery. TiVo shall deliver all Deliverables and
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[*]hereunder to AOL in accordance with the Milestone
Schedule. Without limitation of the foregoing, all such
Deliverables and all jointly-owned or AOL-owned elements of
[*]shall be provided to AOL in both Source Code and object
code and via electronic means mutually agreed to by the
Parties.
(ii) Acceptance Testing. Prior to delivery of the Deliverables to
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AOL, TiVo will perform its standard qualification testing.
Specifically, TiVo's standard qualification testing shall
include without limitation (A) efforts to diagnose any
failure of the Deliverable to comply with the Specifications
and the Acceptance Criteria prior to and during any testing;
and (B) correction of any such failure diagnosed by TiVo or
reported to TiVo in writing. Within [*]days of receipt, AOL
will test the Deliverables (including, without limitation,
all Documentation therefor), in accordance with standard
diagnostic practices, to determine whether or not it
substantially complies with the Acceptance Criteria. AOL
shall, within such [*]day period, provide TiVo with written
Acceptance of the Deliverable or a statement identifying any
failure of the Deliverable to comply with the Acceptance
Criteria in sufficient detail for TiVo to recreate such
non-compliance. In the event AOL identifies such a failure
and rejects the Deliverable, TiVo shall have [*]days from
TiVo's receipt of notice of such rejection to repair the
failure and resubmit the units of the repaired Deliverable
for testing. AOL shall then have [*]days after receipt of
the resubmitted Deliverable to determine whether such
version passes Acceptance testing. The Parties may repeat
the aforementioned process, provided, however, that [*]to
deliver a Deliverable that has been accepted by AOL in
accordance with this Section by the date specified for
"AOLTV Application Manufacturing Release as a Third Party
Application", in the case of the AOLTV Application, the date
specified for "Mercury Application Manufacturing Release as
a Third Party Application", in the case of the Mercury
Application, or by the date specified for "Full prototype
demo; [*]", in the case of[*]in the Milestone Schedule, as
mutually adjusted pursuant to Section 3.4 (or Sections
3.1(c) or 3.2(b), as applicable) shall [*]of this Agreement.
Each such date shall be [*]
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(iii) Test Units. TiVo shall provide (directly or indirectly
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through a Manufacturer) and AOL shall have the right, but
not the obligation, to purchase up to [*]total units of the
TiVo Platform. At AOL's request, TiVo shall assist AOL in
obtaining such units directly from the Manufacturer at
production cost, which the Parties anticipate will be no
more than [*]per unit. AOL and TiVo acknowledge and agree
that AOL has purchased [*]total units as of the Effective
Date. For each production run of development units provided
to AOL directly by TiVo, TiVo shall provide documentation
containing lists and descriptions of known errors and
limitations for such production run.
(iv) TiVo Cooperation. During the thirty (30) day Acceptance
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period and any subsequent periods referenced in Section
3.2(c)(ii) above, TiVo will provide AOL personnel with
telephone and e-mail access to TiVo development and quality
assurance personnel, during standard TiVo business hours to
answer questions about the development and architecture of
the AOLTV Application and Mercury Application, and the
infrastructure required to support them. A single point of
contact at each Party will be identified for emergencies
that require AOL communication with TiVo during[*]the
designated TiVo contact will be provided to AOL for use in
such emergencies.
(v) No Effect on TiVo's Other Obligations. AOL's inspection or
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failure to inspect, and AOL's Acceptance of the Deliverables
shall in no way relieve TiVo of its obligations under this
Agreement, including without limitation Section 5.1 of
Schedule 4.
(d) Support of AOL. TiVo will provide for the sole and exclusive
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benefit of AOL, support of the AOL TV Application and the Mercury
Application during the Warranty Period, in accordance with
Section 5.1 of Schedule 4. Such support does not extend to any
AOL TV Service End Users and specifically excludes any obligation
to provide corrections for errors in the operation of the AOL TV
Service if such errors are attributable to the AOL TV Service and
not the AOL TV Application or Mercury Application. In addition,
TiVo shall provide support of the AOL TV Application and the
Mercury Application as set forth in Schedule 10 (Maintenance) for
the lesser of (i) [*]from the first date of deployment for each
of the AOL TV Application and the Mercury Application, or (ii)
[*]from the date of final Acceptance of the "Manufacturing
Release as a Third Party Application" for each such AOL TV
Application and Mercury Application, [*].
(e) Launch and Hosting Services. Following the commercial launch of
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the Mercury Application, if any, subject to AOL's option to host
the Mercury Application in its entirety, during the Term and
specifically for the Mercury Application, TiVo will receive
specified information from AOL's servers and will provide backend
connectivity, through the TiVo Service, to provide such
information to the AOL TV-Enabled Products. Notwithstanding
anything contained herein, launch of the Mercury Application on
the AOL Service shall at all times be within AOL's sole
discretion. AOL will be solely responsible for providing
front-end services of the Mercury Application for the personal
computer presentation to AOL TV Service End Users. The hosting of
the Mercury Application, and the responsibilities of AOL and TiVo
for the initial hosting and interconnectivity, are more
specifically set forth in Schedule 6. Notwithstanding the
foregoing, AOL shall have the option at any point during the
Term, in AOL's sole discretion, to perform all or a part of the
hosting responsibilities initially allocated to TiVo or to
discontinue the provision of the Mercury service in its entirety;
provided that if AOL elects to transition the TiVo hosted
portions (excluding components related to the TiVo Service) to
AOL, then AOL shall pay any costs reasonably incurred by TiVo in
such transition.
(f) Provisioning Support. The TiVo Platform shall include service
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provisioning and download support required to remotely update,
manage and maintain the AOL TV Application and Mercury
Application, in a multiple service, closed loop bit and
information management system (the
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"Provisioning Support") [*], unless otherwise agreed by the
Parties. Such Provisioning Support also shall include without
limitation, download of [*]in TiVo's regularly scheduled update
downloads, download of [*]subject to [*]and service testing and
certification. The AOL TV Application shall operate substantially
in accordance with the specifications for maximum downtime,
service interruption and degradation as set forth in the
Specifications; provided that in no event shall TiVo be
responsible for any downtime, service interruption or degradation
attributable to the AOL communications network or the AOL TV
Service. Notwithstanding the foregoing, if AOL does not [*]from
the AOL TV Service as enabled on the TiVo Platform (excluding out
any [*]offered to End Users), then TiVo will[*]such Provisioning
Support provided [*]for such Provisioning Support (i.e., actual
[*]plus [*]).
(i) [*]In the event an [*]arises with regard to the AOL TV
Application, TiVo shall work in good faith with AOL to
develop a plan to test and certify (as required) within
[*]or as soon thereafter as possible of notification from
AOL of the need for such [*]and to [*]the [*]For purposes of
this provision, such [*]shall [*]TiVo's routine business
operations, [*] shall [*]related to the TiVo Platform or
TiVo Service (i.e., comparable to the [*].
(ii) Dispute Process. In the event that the Parties dispute
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whether [*]constitutes an[*], or regarding the [*]plan for
the[*], the dispute shall be immediately escalated to the
Management Committee for resolution in accordance with
Section 16.1 of Schedule 4; provided that the Management
Committee shall, within[*]business days of notice of the
dispute, use its best efforts to meet (in person or by
telephone) to resolve such dispute.
AOL shall [*]TiVo for [*]in [*]any such [*].
(g) [*]. Within thirty (30) days of the Effective Date, TiVo shall
cooperate with AOL to ensure that [*]are [*]in an[*], and upon
the Effective Date the Parties shall execute [*]attached hereto
as Schedule 9. Such [*]entered into by the Parties shall remain
in effect for the Term. TiVo shall update the [*]for each [*]of
the TiVo [*]that is[*] TiVo, but in no event shall TiVo be
obligated hereunder to [*]more than[*]. If for any reason,
the[*]expires or is terminated during the Term of this Agreement
(except in the event of termination by TiVo for a Material Breach
by AOL of this Agreement), other than upon the occurrence of a
[*]as defined in the[*], then [*]may require [*] to place the
[*]in [*]for AOL pursuant to[*]on substantially [*]as the[*]. If
for any reason, any such [*]are not in the [*]of an[*]pursuant to
such [*]upon the occurrence of a[*]shall provide such [*]to[*]
immediately upon [*]written request and [*]shall have the rights
and obligations with respect thereto set forth in the[*].
[*]shall[*]associated with such[*].
(h) Technology License Option. For a period of [*]from the Effective
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Date or if the Parties do not agree in writing to cancel
[*]development pursuant to Section 3.1(c) until completion
of[*]development, whichever occurs last, AOL shall have the
option to receive a license to the TiVo technology incorporated
within the TiVo Platform and the related server software on terms
and condition consistent with those terms and conditions set
forth in Schedule 7.
(i) AOL Time Warner. Nothing in this Agreement (including the fact of
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this Agreement) shall be construed to acknowledge, waive or
otherwise prejudice any rights or defenses of AOL Time Warner
Inc. and/or its Affiliates or TiVo with respect to the
reproduction, use, display, distribution, or performance by TiVo
of content owned or licensed by AOL Time Warner Inc. and/or its
Affiliates. Further, nothing in this Agreement (including the
fact of this Agreement) shall be construed to make
representations or any commitments on behalf of, or in any way
bind, AOL Time Warner Inc. and/or any other Affiliates of AOL,
Inc.
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3.3 Delivery and Development Obligations of AOL.
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(a) AOL's Assistance. AOL shall, at AOL's expense, furnish TiVo with
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materials specified in the Milestone Schedule and Specifications,
including without limitation the AOL Toolkit in object form
(collectively, "AOL Materials").
(b) Network Access. AOL will provide connectivity for the AOL TV
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Service only. AOL will agree to continue discussions with TiVo
concerning AOL assuming responsibility for certain connectivity,
network hosting, and customer support services for the TiVo
Platform and for certain services enabled on the TiVo Platform.
(c) Subscriber Documentation. AOL will develop documentation for the
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AOL TV Application instructing End Users how to subscribe to and
use the AOL TV Service ("Subscriber Documentation"). TiVo will
include this documentation in the TiVo packaging for all TiVo
products containing the TiVo Platform with the AOL TV Application
(each an "AOL TV-Enabled Product"). AOL shall be responsible for
all costs associated with the preparation, design and
reproduction of all such Subscriber Documentation prior to TiVo's
distribution.
3.4 TiVo Responsibility for Performance. TiVo acknowledges and agrees that
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it is solely responsible for performance of its obligations to develop
the AOL TV Application and the Mercury Application so that each
conforms in all material respects to the applicable Specifications, as
warranted by TiVo in Section 5 of Schedule 4. Notwithstanding the
foregoing, TiVo shall not be in breach of the foregoing obligation to
complete its development activities by a [*]to the extent TiVo fails
to perform such obligation because TiVo received the AOL Materials
later than the date specified in the Milestone Schedule (including
materials or assistance to be provided by [*]or[*]), and to the extent
such date has not been equitably adjusted by the Parties in accordance
with the following sentence. If the a milestone date specified in the
Milestone Schedule is missed due to the fault of AOL (or in the case
of the[*], due to [*]or[*]), the Parties shall mutually agree upon a
reasonable equitable adjustment of the Milestone Schedule to account
for the delay, solely to the extent such fault caused the delay.
4. The TiVo Platform.
4.1 Hard Drive Allocation. On all TiVo Platforms controlled by TiVo (as
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further defined in Section 8.3 of this Agreement) and containing the
AOL TV Application, in addition to the storage capacity for the AOL TV
Application, TiVo will allocate to AOLstorage capacity on the Hard
Drive of the TiVo Platform for the AOL TV Application for the purpose
of operating the AOL TV Service as follows: (a) no less than [*]for
the[*], provided that such storage capacity [*]following completion of
system testing, system resource constraints permitting; and (b) [*]for
application data storage. The storage capacity allocated to the AOL TV
Application may be increased to accommodate additional AOL TV
offerings in the future, as mutually agreed upon by the Parties.
4.2 Remote Device Hardware Costs. AOL shall be solely responsible for
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modifying, manufacturing or having manufactured, and distributing a
generic remote keyboard for use with the AOL TV-Enabled Products (the
"AOL Keyboard"). [*]AOL acknowledges and agrees that TiVo has provided
AOL with the TiVo technology and information necessary to allow AOL to
modify the AOL Keyboard for direct access to the TiVo Service.
5. The AOL TV Service.
5.1 AOL TV Service. Except as otherwise provided herein, AOL shall, at its
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expense, be responsible for programming, operation and management,
including any and all billing of End Users of the AOL TV Service.
Except as otherwise set forth in this Agreement, AOL shall determine,
in its sole and absolute
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discretion, branding, terms of use, functionality, content, features,
registration, advertising, e-commerce, m-commerce on the AOL TV
Service. In addition, AOL may, at any time and in its sole and
absolute discretion, discontinue the AOL TV Service and/or AOL TV
Application without any liability whatsoever to TiVo; provided that
AOL shall use commercially reasonable efforts to provide TiVo with a
minimum of [*]days' written notice prior to discontinuing the AOL TV
Service. Except as otherwise provided herein, during the Term, AOL
will use best efforts to ensure that the AOL TV Service performs
without persistent or gross malfunction. In the event that there are
recurring [*]with the AOL TV Service (excluding any such issues to the
extent they are attributable to the functions of the AOL TV
Application), such issues shall be escalated to the Management
Committee for resolution in accordance with Section 16.1 of Schedule 4
and, if such [*]continues for a period of not less than[*], TiVo shall
have the right to discontinue the promotion and loading the AOL TV
Application on AOLTV-Enabled Products pending resolution by the
Management Committee, provided, however, TiVo shall resume promotion
and the loading of the AOLTV Application as soon after the [*]is
resolved as is practicable, and shall notify AOL within [*]upon
resolution of the [*]of the time frame for resumption of promotion and
loading activities. Any dispute between the Parties with respect to
the timeframe for resumption of promotion and loading activities shall
be immediately referred to the Management Committee for resolution.
6. Viewer Data
6.1 TiVo Viewer Data. End User data collected by TiVo as part of the TiVo
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Service subscription and payment process or otherwise generated
through use of the TiVo Platform or TiVo Service, shall be owned by
TiVo (the "TiVo Data").
6.2 AOL Viewer Data. End User data collected by AOL as part of the AOL TV
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Service subscription and payment process or otherwise generated
through use of the AOL TV Service, shall be owned by AOL (the "AOL TV
Data").
6.3 Mercury Viewer Data. End User data collected by either Party that is
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generated through the use of the Mercury Application shall be jointly
owned by the Parties, with no duty of accounting. Each Party agrees to
provide the other Party with a copy of any such collected data within
thirty (30) days of the date of collection and in a form mutually
agreed to by the Parties.
6.4 Privacy Policy. Notwithstanding anything else contained herein, each
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Party's collection and use of End User data shall at all times comply
with the applicable privacy policy under which such information was
collected. The Parties shall mutually agree upon, and implement a
means of conveying to End Users, which privacy policy is applicable to
information or collected during an End User's use of the AOL TV
Service, AOL TV Application, Mercury Application and the TiVo Service.
7. Development Costs; Revenue Share
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7.1 Development Costs. In consideration for TiVo's satisfaction of its
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obligations herein, AOL shall pay to TiVo a total of [*]as follows;
(a) For the AOL TV Application and Mercury Application, [*]of which
shall be paid upon the Effective Date and the remaining[*]to be
paid in accordance with the AOL TV Application and Mercury
Application Milestone Schedule.
(b) For the[*]of which shall be paid upon the Effective Date and the
remaining [*]to be paid in accordance with [*]Milestone Schedule.
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7.2 Revenue Share. In addition to the development costs in Section 7.1,
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AOL shall pay to TiVo [*]of all subscription revenues generated by AOL
that are based on or attributable to the AOL TV Service as enabled on
each TiVo-Controlled TiVo Platform distributed in accordance with
Section 8.3 herein. Such revenue share shall accrue at the time such
revenue is collected by AOL and shall be paid on a quarterly basis,
with payment due simultaneous with submission of the report required
under Section 7.2(a) below.
(a) Reporting. Commencing the first calendar month following the
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launch of the AOL TV-Enabled Product, and within thirty (30) days
following the end of each calendar month thereafter, AOL shall
submit to TiVo a report detailing, for the reporting period: (i)
the number of all Qualified AOL TV Service End Users; (ii) the
amount of all subscription revenues generated by AOL that is
based on or attributable to Qualified AOL TV Service End Users;
and (iii) the amount paid to TiVo based on the foregoing, along
with any reasonable supporting data and information reasonably
requested by TiVo. Each Party shall keep and provide the reports
set forth in Section 3.3(d) and (e), as applicable, of Schedule
4.
(b) Records and Audits. For as long as the AOL TV Service is provided
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to AOL TV-Enabled Products and for [*]thereafter, or if longer,
as mandated by applicable law, each Party shall maintain
complete, current and accurate records substantiating the reports
provided under Section 7.2(a) above and Section 3.3(d) and (e) of
Schedule 4 and documenting the revenue share due and payable to
the other Party under this Agreement (the "Records") Each Party
shall have the right to designate an independent auditor to
conduct an inspection and audit of such other Party's Records,
and to obtain true and correct photocopies thereof, during
regular business hours at the other Party's offices. Any and all
information reviewed by the independent auditor under this
Section 7.2(b) is Confidential Information of the Party
maintaining such records. The auditing Party shall provide the
audited Party with at least ten (10) days' advance notice of any
such audit and the audit shall be conducted no more frequently
than once per year and in a manner that does not unreasonably
interfere with the audited Party's normal business activities. If
any such audit should disclose any underpayments on behalf of the
audited Party, the audited Party shall promptly pay the auditing
Party such underpaid amounts, together with interest thereon at
one and one half percent (1.5%) per month or the highest rate
allowed by law, whichever is less, from the date such amount was
owed until paid by the audited Party. If any such audit should
disclose any overpayments, the auditing Party shall promptly pay
the audited Party such overpaid amounts, less the expenses
incurred by the auditing Party in connection with the audit. Any
such audit shall be at the auditing Party's expense, provided,
however, that if the audit reveals that the audited Party has
underpaid the auditing Party by five percent (5%) or more of the
amounts paid during such audited period, then the audited Party
shall promptly reimburse the auditing Party for all expenses
incurred by the audited Party in connection with the audit.
7.3 Invoices. Amounts to be paid by AOL to TiVo pursuant to this Agreement
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(except for the initial payments made on the Effective Date)
(including those set forth in Section 7.1, 7.2 or Section 8.3 (b), as
applicable) shall be paid by AOL within thirty (30) days of the date
of an undisputed invoice.
7.4 Taxes. Neither Party shall be required to reimburse the other Party
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for any taxes, including, without limitation, ad valorem personal
property taxes, state and local privilege, franchise and excise taxes
based on gross revenue, and taxes based on or measured by such Party's
net income.
8. Distribution, Marketing and Promotion.
8.1 TiVo Marketing. During the Term, commencing immediately preceding or
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following the commercial release of the first AOL TV-Enabled Product,
and in selected marketing campaigns (including without limitation,
marketing campaigns where TiVo mentions third party applications
enabled on the TiVo Platform, both online and offline promotions, and
product packaging) for the TiVo Platform containing
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the AOL TV Application, TiVo will promote the TiVo Platform as an AOL
TV-Enabled Product. TiVo's promotion and marketing activities, when
taken as a whole, will promote the TiVo Platform as an AOL TV-Enabled
Product [*]. All marketing of the AOL TV-Enabled Product shall be
substantially in accordance with TiVo's then-current marketing plan.
8.2 AOL Marketing and Branding. During the Term, commencing immediately
--------------------------
preceding or following the commercial release of the first AOL
TV-Enabled Product[*]. Such online marketing and promotion shall
include, (a) promotion of the TiVo Platform and TiVo Service as
AOLTV-enabled wherever the AOLTV Application is generally promoted on
the AOL Service; and (b) Mercury Application buttons (i.e., hyperlinks
to the Mercury Application features) branded with TiVo branding
wherever the Mercury Application functionality is displayed on the AOL
Service on a non-exclusive basis for at least [*]from Launch of the
Mercury Application, as follows: (i) [*].
8.3 Distribution.
------------
(a) During the Term (following completion of the Development
Activities and Acceptance), TiVo shall make the AOL TV
Application available on all TiVo Platforms distributed in the
Territory, provided, however, that in the event a third party
with Control over the distribution of a TiVo Platform objects to
the placement of the AOL TV Application on such TiVo Platform ,
in lieu of TiVo's obligation to distribute the AOL TV
Application, TiVo will use best efforts to facilitate discussions
between AOL and the applicable third party having Control over
such TiVo Platform regarding the incorporation of the AOL TV
Application and distribute the AOL TV Application subject to the
agreement of such third party. For purposes of this provision,
"Control" means material discretion as to the software and
services that operate on such TiVo Platform. Examples of TiVo
Platforms that are "not Controlled by TiVo" include, but are not
limited to, standalone or combination products that are
distributed in conjunction with network partners and products
that are manufactured by licensees of the TiVo technology and
that may or may not include TiVo services.
(b) TiVo intends to have up to [*]consumer electronics manufacturers
for the TiVo Platform. AOL may, from time to time suggest to TiVo
certain consumer electronics manufacturers to fill the
[*]consumer electronics manufacturer slots (e.g., [*]) that AOL
wishes to manufacture AOL TV-Enabled Products (each an
"AOL-Preferred Manufacturer"), and TiVo shall use commercially
reasonable efforts to enter into a manufacture and distribution
agreement with such AOL-Preferred Manufacturer. TiVo shall notify
AOL in writing of any change in the consumer electronics
manufacturer of the TiVo Platform and AOL shall have the option,
in its sole discretion, to include or not include the AOL TV
Application on such TiVo Platforms manufactured by such consumer
electronics manufacturer. Within thirty (30) days of such
notification from TiVo, AOL shall direct TiVo in writing to
either include or not include the AOL TV Application on all such
TiVo Platforms produced by such consumer electronics
manufacturer, and TiVo shall promptly comply and cause its
consumer electronics manufacturer to comply with any such written
directive.
(c) TiVo shall, at AOL's request, download the AOL TV Application to
AOL-identified products incorporating the TiVo Platform
manufactured and distributed prior to the completion of the AOL
TV Application; provided that such TiVo Platforms are Controlled
by TiVo and subject to pre-existing contractual limitations or
restrictions from TiVo's existing network distribution partners.
AOL will reimburse TiVo for its reasonable costs associated with
such download. Upon AOL's reasonable request, TiVo shall prepare
and provide to AOL a printout identifying the number of TiVo
Platforms in the field eligible to receive the download of the
AOL TV Application, the number of TiVo Platforms for which the
download has been completed, and the number of TiVo platforms in
the field that are not eligible to receive the download (e.g.,
TiVo Series 1 platform or
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
9
<PAGE>
third party controlled platform). The foregoing information shall
be calculated by TiVo based on the number of subscribers using
each of the various TiVo platforms.
9. Support.
9.1 Customer Support Responsibilities. TiVo will be responsible for
---------------------------------
providing tier one and tier two customer support to End Users of the
TiVo Service. AOL will be responsible for providing tier one and tier
two customer support to End Users of the AOL TV Service. Tier one
support includes (i) initial contact with the End User to define the
problem, if any, and (ii) the provision of answers to any questions
about product functionality, to the extent reasonably possible. Tier
two support is a higher level of support that reflects a knowledge
base of principally all known issues that may arise related to the
applicable service. Each Party will provide a toll-free telephone
number to the other Party for referral of End Users having support
issues. Each Party shall also provide the other Party with the current
telephone or pager numbers at which such Party's designated technical
support personnel can be reached by the other Party's designated
support personnel, [*], to answer questions with respect to the AOL TV
Application, Mercury Application and the AOL TV-Enabled Product that
could not be handled by such Party's tier one and tier two support
contacts. Each Party agrees that it will only contact the other
Party's designated support personnel outside of the other Party's
standard customer service hours in the event of a major service
interruption or other problem that results in a significant increase
in immediate call volume to such Party's call centers.
9.2 Training. The Parties shall mutually agree upon and implement training
--------
of a reasonable number of each Party's employees or designated
representatives with respect to support of the AOL TV Service, AOL TV
Application, Mercury Application, and TiVo Service. Each Party shall
bear its own costs associated with any such training.
9.3 Support Materials. Prior to the first commercial release of an AOL
-----------------
TV-Enabled Product, the Parties will mutually agree on customer
support information materials so as to clearly indicate the
appropriate customer service contact for particular problems and
questions related to the integration and user interface of the AOL
TV-Enabled Product.
9.4 Reports. The Parties will mutually agree upon reports to be exchanged
-------
detailing customer support information useful to each Party in
improving its customer service performance (e.g., call volumes,
complaints, etc.).
10. Term and Termination.
10.1 Term. Subject to the right of extension, as provided herein, the term
----
of this Agreement shall commence on the Effective Date and shall
terminate four (4) years from the Effective Date (the "Initial Term").
The Agreement may be extended by mutual agreement of the Parties. The
Initial Term, together with any extensions thereto, shall be referred
to herein as the "Term."
10.2 Termination for Material Breach. Either Party may terminate this
-------------------------------
Agreement immediately by giving written notice to the other Party for
the occurrence of any Material Breach by such other Party. For the
purposes of this Agreement, "Material Breach" shall mean a Party's
material default in the performance or observance of any material
covenant, agreement or condition set forth herein, which default
remains uncured for a period of thirty (30) days (or other applicable
cure period as may be specified herein) from the date that the other
Party provides notice to the defaulting Party of such default,
including, without limitation, any of the following:
(a) a Party's uncured Material Breach of any of Sections 3, 6, 7, or
8 of the Agreement; or
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
10
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(b) a Party's uncured Material Breach of any provision of Schedule 4
(Terms and Conditions); or
(c) failure of any Deliverable to pass the Acceptance Criteria by a
Final Milestone Date.
10.3 Termination for Change-in-Control. AOL shall have the right to
---------------------------------
terminate this Agreement by giving TiVo sixty (60) days' prior written
notice in the event that there is a Change-in-Control of TiVo to any
Person that provides any Interactive Service; provided that such
termination shall be without cause and without any liability to either
Party.
10.4 Termination for Insolvency. Either Party may terminate this Agreement
--------------------------
effective immediately upon giving notice to the other Party, (i) upon
the institution by or against such other Party of insolvency,
receivership or bankruptcy proceedings or any other proceedings for
the settlement of its debts and such proceeding is not rescinded or
dismissed within sixty (60) days of its being filed; (ii) upon such
other Party making an assignment for the benefit of creditors; or
(iii) upon such other Party's dissolution or liquidation.
10.5 AOL Termination. If AOL decides, in its sole discretion, not to pursue
---------------
the AOL TV Application, AOL shall have the right to terminate this
Agreement upon sixty (60) days notice to TiVo.
10.6 Effect of Termination or Expiration.
-----------------------------------
(a) If this Agreement is terminated by either Party for any reason,
TiVo shall return to AOL all of AOL's Confidential Information or
destroy all of AOL's Confidential Information, including all
copies of, and notes and compilations related thereto, and shall
certify in writing to AOL that such obligations have been
completed, and AOL shall return to TiVo all of TiVo's
Confidential Information or destroy all of TiVo's Confidential
Information, including all copies of, and notes and compilations
related thereto, and shall certify in writing to TiVo that such
obligations have been completed.
(b) Notwithstanding anything contained herein to the contrary, the
expiration of this Agreement shall not affect the right of any
End User (existing prior to the date of expiration) to continue
to receive and use the AOL TV Service, including without
limitation on or through the AOL TV Enabled Products; and
accordingly, AOL may continue providing the AOL TV Service to End
Users using the TiVo Platform with the AOL TV Application and
TiVo shall retain the licenses and other rights necessary to
continue supporting the AOL TV-Enabled Products.
(c) Within sixty (60) days of the date of termination or expiration
of this Agreement, TiVo shall cease manufacturing of all AOL
TV-Enabled Products (i.e., discontinue loading the AOL TV
Application on new TiVo Platforms). Within sixty (60) days of the
date of termination or expiration of this Agreement and unless
otherwise mutually agreed to by the Parties, TiVo shall
discontinue the distribution of the AOL TV Application; provided
that, subject to Section 10.6(d), TiVo shall retain the licenses
and other rights necessary to continue distribution, directly or
indirectly, and through multiple tiers of distribution, of any
AOL TV-Enabled Products previously manufactured for a period not
to exceed twelve (12) months. Subject to Section 10.6(d), in
addition, TiVo shall retain the licenses and other rights
necessary to continue supporting such previously manufactured AOL
TV Enabled Products.
(d) In the event of termination of this Agreement by TiVo pursuant to
Section 10.2, either Party may, in its sole discretion, disable
the AOL TV Application on all TiVo Platforms, provided, however,
upon AOL's request, AOL shall have a transition period not to
exceed one hundred and twenty (120) days following the effective
date of any such termination during which TiVo shall not disable
the AOL TV Application on any TiVo Platform unless an [*] exists
which TiVo believes in
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
11
<PAGE>
good faith is causing material adverse harm to the TiVo Platform
or TiVo brand. In the event of termination of this Agreement by
AOL pursuant to Section 10.2, AOL may, in its sole discretion and
at any time, discontinue providing AOL Service to the AOL
TV-Enabled Products provided, however, upon TiVo's request, AOL
shall not disable the AOL TV Application on any TiVo Platform for
a period not to exceed one hundred and twenty (120) days
following the effective date of any such termination unless an
[*]comparable to an [*]exists with respect to the TiVo Platform
or TiVo Service which AOL in good faith believes is causing
material adverse harm to the AOL TV Service or AOL brand.
(e) In the event of termination of this Agreement pursuant to Section
10.5, TiVo shall invoice AOL, and AOL shall pay to TiVo, for all
work performed up to the date of termination and for all costs
reasonably incurred by TiVo in modifying the marketing and
promotional materials to remove all references to the AOL
TV-Enabled Product and the AOL TV Service.
10.7 Survival. Notwithstanding the termination, cancellation or expiration
--------
of this Agreement for any reason, the provisions of Sections 2, 6, 7,
10, and 11 of this Agreement and Sections 2.4, 3, 4 (for a period of
four (4) years), 5.5, 7, 8, 11, and 14 through 18 and 20 through 31 of
Schedule 4 shall survive such termination, cancellation or expiration
indefinitely and the provisions of Section 10 of this Agreement and
Section 1 of Schedule 4 shall survive such termination, cancellation
or expiration solely to the extent necessary to provide the continuing
End User support set forth in Section 10.6 of this Agreement.
11. Standard Terms.
The Standard Terms & Conditions set forth on Schedule 4 attached hereto are
hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized officers and representatives as of the day and year
first written above.
AMERICA ONLINE, INC. TIVO INC.
By: /s/ Edward M. Prince, Jr. By: /s/ Morgan Guenther
----------------------------------- -----------------------------------
Name: Edward M. Prince, Jr. Name: Morgan Guenther
--------------------------------- ---------------------------------
SR Vice President Business
Title: Affairs and Development Title: President
-------------------------------- --------------------------------
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
12
<PAGE>
Schedule 1
Definitions
"Acceptance Criteria" shall mean the mutually agreed upon criteria for
-------------------
evaluating whether the Deliverables conform with the Specifications, agreed upon
in accordance with Section 3.1(d) and set forth in Schedule 3.
"Affiliate" shall mean, with respect to any Person, any other Person that
---------
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person where
"control" means ownership, directly or indirectly, of[*]or more of the
outstanding voting stock or other equity or ownership interest in such Person.
Such Person shall be deemed an "Affiliate" only for so long as such ownership
exists.
"Agreement" shall have the meaning set forth the first paragraph of the
---------
Agreement.
"AOL" shall have the meaning set forth the first paragraph of the Agreement.
---
"AOL Classic Service" shall mean the narrow-band U.S. version of the America
-------------------
Online(R) brand service specifically excluding (a) the AOL TV Service, (b) the
AOL "Mobile" service, (c) AOL.com or any other AOL interactive site, (d) the
international versions of an America Online service (e.g., AOL Japan), (e)
"ICQ," "AOL NetFind," "AOL Instant Messenger" or any similar independent product
or service which may be offered by, through or with the U.S. version of the
America Online(R) brand service, (f) any content or programming area over which
AOL does not exercise complete operational control (including, without
limitation, content areas controlled by AOL Studios (e.g., Digital City),
content areas controlled by other information providers and member-created
content areas), (g) any yellow pages, white pages, classifieds or other search,
directory or review services or content offered by or through the U.S. version
of the America Online(R) brand service, (h) any property, feature, product or
service which AOL or its Affiliates may acquire subsequent to the Effective Date
and (i) any other version of an America Online service which is materially
different from the narrow-band U.S. version of the America Online brand service,
by virtue of its branding, distribution, functionality, content and/or services,
including, without limitation, any co-branded version of the service and any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
"AOL IP" shall have the meaning set forth in Section 3.1 of Schedule 4.
------
"AOL Keyboard" shall have the meaning set forth in Section 4.2 of the Agreement.
------------
"AOL Mark" shall have the meaning set forth in Section 2.1 of Schedule 4.
--------
"AOL Materials" shall have the meaning set forth in Section 3.3(a) of the
-------------
Agreement.
"AOL Network" shall mean (i) the AOL Classic Service, (ii) the AOL TV Service,
-----------
(iii) AOL's ICQ product, (iv) AOL.com, (v) the AOL "Mobile" service, (vi) any
international versions of the AOL Classic Service and/or the AOL TV Service,
(vii) AOL's CompuServe branded Interactive Service, (viii) Compuserve.com, and
(ix) any other product or service owned, operated, distributed or authorized to
be distributed by or through AOL or its Affiliates worldwide (which may include,
without limitation, Internet sites promoting AOL products and services and any
"offline" information browsing products of AOL or its Affiliates).
[*] shall have the meaning set forth in[*].
[*]shall have the meaning set forth in[*].
"AOL Preferred Manufacturer" shall have the meaning set forth in Section 8.3(b)
--------------------------
of the Agreement.
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1-1
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"AOL Toolkit" means the libraries and core engines in object code form upon
-----------
which the AOL TV Service is based.
"AOL TV Application" shall mean the software developed by TiVo to enable access
------------------
to the AOL TV Service via the TiVo Platform in accordance with the
Specifications.
"AOL TV-Enabled Product" shall have the meaning set forth in Section 3.3(c) of
----------------------
the Agreement.
"AOL TV Data" shall have the meaning set forth in Section 6.2 of the Agreement.
-----------
"AOL TV Service" shall mean any interactive television service offered by or on
--------------
behalf of AOL or any successor thereto.
"AOL TV Service Successor" shall have the meaning set forth in Section 12 of
------------------------
Schedule 4.
"Arbitration Costs" shall have the meaning set forth in Section 16.6 of Schedule
-----------------
4.
"Attorneys' Fees" shall have the meaning set forth in Section 16.6 of Schedule
---------------
4.
[*] shall have the meaning set forth in [*]of the Agreement.
"Browser Software" shall mean the then-current version of the browser software
----------------
provided as part of the TiVo Platform and any future browsers or versions
thereof.
"Carriage Plan" shall have the meaning set forth in Section 8.2 of the Agreement
-------------
and Schedule 5.
"Change-in-Control" shall mean:
-----------------
(i) any Person is or becomes the beneficial owner, directly or indirectly
(whether by merger, consolidation, purchase of securities or
otherwise), of more than 50% of the total voting power of all the
outstanding Voting Securities of TiVo (or its successor by merger,
consolidation or purchase of all or substantially all of its assets)
(for the purposes of this clause, such person shall be deemed to
beneficially own any Voting Securities of TiVo held by an entity, if
such Person beneficially owns, directly or indirectly, more than 50%
of the total voting power of the Voting Securities of such entity).
(ii) the Transfer, lease or other disposition, in one or a series of
related transactions, of all or substantially all of the assets of
TiVo and its Subsidiaries taken as a whole to any Third Party; or
(iv) the adoption by the stockholders of TiVo of a plan or proposal for the
liquidation or dissolution of TiVo.
"Change Request" shall have the meaning set forth in Section 3.2(b).
--------------
"Commercial Rules" shall have the meaning set forth in Section 16.2 of Schedule
----------------
4.
"Complex Procedures" shall have the meaning set forth in Section 16.2 of
------------------
Schedule 4.
"Components" shall have the meaning set forth in Section 7.1(b) of Schedule 4.
----------
"Confidential Information" shall have the meaning set forth in Section 4.1 of
------------------------
Schedule 4.
"Control" shall have the meaning set forth in Section 8.3(a) of the Agreement.
-------
"Deliverable" shall mean the AOL TV Application and Mercury Application to be
-----------
developed and delivered by TiVo as set forth in the Specifications.
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1-2
<PAGE>
"Demand" shall have the meaning set forth in Section 16.2 of Schedule 4.
------
[*] shall mean the [*]and any additional [*]required to operate and maintain the
AOL TV Application running on the AOL TV-Enabled Product. For avoidance of
doubt, the [*]specifically exclude any[*], other than any [*]is permitted to
include as[*].
"Development Activities" shall mean the development activities to be undertaken
----------------------
by TiVo pursuant to Section 3.1(c), 3.2(a), Schedule 2, and Schedule 11.
"Developed Application" shall have the meaning set forth in Schedule 10.
---------------------
"Disclaimed Damages" shall have the meaning set forth in Section 11 of Schedule
------------------
4.
"Dispute" shall have the meaning set forth in Section 16.1 of Schedule 4.
-------
"Documentation" shall mean written end-user and user instructions.
-------------
"Effective Date" shall mean April 30, 2002.
--------------
"Emergency Download" means the delivery of an Emergency Upgrade to the TiVo
------------------
Platform.
[*].
"Emergency Upgrade" means an upgrade that provides a fix or workaround for and
-----------------
Emergency Issue.
"End Users" means third parties who use the AOL TV-Enabled Products.
---------
"Exclusivity Period" shall have the meaning set forth Section 3.3(b) of Schedule
------------------
4.
"Force Majeure Event" shall have the meaning set forth in Section 13 of Schedule
-------------------
4.
[*]shall have the meaning set forth [*]of the Agreement.
"Group" shall have the meaning assigned to such term in Section 13(d)(3) of the
-----
Securities Exchange Act of 1934, as amended.
"Hard Drive" means the hard disk drive contained in a TiVo Platform.
----------
"Indemnified Party" shall have the meaning set forth in Section 8.1 of Schedule
-----------------
4.
"Indemnifying Party" shall have the meaning set forth in Section 8.1 of Schedule
------------------
4.
"Initial Term" shall have the meaning set forth in Section 10.1 of the
------------
Agreement.
[*]shall mean the [*]described in[*].
"Interactive Service" shall mean one or more of the following: (i) online or
-------------------
Internet connectivity services (e.g., Internet service provision); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); (iii) a persistent desktop client;
or (iv) communications software capable of
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1-3
<PAGE>
serving as the principal means through which a user creates, sends and receives
electronic mail or real time or "instant" online messages (whether by telephone,
computer or other means).
"Management Committee" shall have the meaning set forth in Section 16.1 of
--------------------
Schedule 4.
"Manufacturer" shall mean any third party manufacturer of the TiVo Platform.
------------
"Marks" shall have the meaning set forth in Section 2.1 of Schedule 4.
-----
"Material Breach" shall have the meaning set forth in Section 10.2 of the
---------------
Agreement.
"Mercury Application" shall mean the server-based software application for a
-------------------
service to be offered to AOL members to allow them to remotely schedule program
recordings and other TV-related activities via a PC to be developed by TiVo in
accordance with the Specifications.
"Milestone Schedule" shall have the meaning set forth in Section 3.2(a) of the
------------------
Agreement.
"Network Operator" shall have the meaning set forth in Section 3.3(b) of
----------------
Schedule 4.
"Non-Arbitration Claims" shall have the meaning set forth in Section 16.7 of
----------------------
Schedule 4.
"Original Agreement" shall have the meaning set forth in the Recitals to the
------------------
Agreement.
"Party(ies)" shall have the meaning set forth the first paragraph of the
----------
Agreement.
"Person" shall mean any individual, corporation, limited liability company,
------
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivisions thereof, but specifically excluding AOL or any Affiliate of AOL, or
any Group, other than a Group which includes AOL or any of its Affiliates as
members, comprised of two or more of the foregoing.
"Program Manager" shall have the meaning set forth in Section 3.1(b) of the
---------------
Agreement.
"Provisioning Support" shall have the meaning set forth in Section 3.2(f) of the
--------------------
Agreement.
"Qualified AOL TV Service End User" shall mean an end user who subscribes to the
---------------------------------
AOL TV Service with access provided via an AOL TV-Enabled Product.
"Records" shall have the meaning set forth in Section 7.2(b) of the Agreement.
-------
"Release Condition" shall have the meaning set forth in Section 3.2(a) of the
-----------------
Agreement.
[*]shall have the meaning set forth in [*]of the Agreement.
"Services" shall mean the work to be performed by TiVo pursuant to this
--------
Agreement.
"Source Code" means fully commented source code, related technical
-----------
specifications and notes therefor.
"Specifications" shall mean detailed written technical, functional and
--------------
performance specifications for the AOL TV Application and Mercury Application,
as set forth in Schedule 2 attached hereto.
"Subscriber Documentation" shall have the meaning set forth in Section 3.3(c) of
------------------------
the Agreement.
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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<PAGE>
"Subsidiary(ies)" shall mean (i) any corporation of which a majority of the
---------------
securities entitled to vote generally in the election of directors thereof, at
the time as of which any determination is being made, are owned by another
entity, either directly or indirectly, and (ii) any joint venture, general or
limited partnership, limited liability company or other legal entity in which an
entity is the record or beneficial owner, directly or indirectly, of a majority
of the voting interests or the general partner.
"Term" shall have the meaning set forth in Section 10.1 of the Agreement.
----
"Territory" shall mean the United States.
---------
"Third Party" shall mean any Person who is not an Affiliate of either Party,
-----------
including any Group, other than a Group which includes a Party or any of its
Affiliates as members.
"Third Party Passthrough" shall have the meaning set forth in Section 3.1(c) of
-----------------------
the Agreement.
"TiVo" shall have the meaning set forth the first paragraph of the Agreement.
----
"TiVo Data" shall have the meaning set forth in Section 6.1 of the Agreement.
---------
"TiVo IP" shall have the meaning set forth in Section 3.2 of Schedule 4.
-------
"TiVo Marks" shall have the meaning set forth in Section 2.1 of Schedule 4.
----------
[*].
[*].
"TiVo Platform" shall mean the combination of the TiVo Software Series 2 and the
-------------
associated hardware and any subsequently released generations of such TiVo
Software or hardware.
"TiVo Software" shall mean any system and operating software of TiVo operating
-------------
on the TiVo Platform that enables the personal video recording functionality or
that enables the interface between the TiVo Platform and other software
applications.
"Transfer" shall mean, directly or indirectly, to sell, transfer, assign,
--------
pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition of, any
Equity Securities beneficially owned by a Person.
"Unauthorized Code" shall mean (i) any virus, Trojan horse, worm, or other
-----------------
software routines designed to permit unauthorized access, or to disable, erase,
modify, deactivate or otherwise harm software, hardware, or data or (ii) any
back door, time bomb, drop dead device, protect codes, data destruct keys, or
other software routines designed to disable a computer program automatically
with the passage of time; provided, however, that "Unauthorized Code" shall not
include any software routines designed to permit TiVo, AOL or an End User to
obtain access to or to disable the AOL TV Application or Mercury Application for
purposes such as maintenance or technical support, or as part of the ordinary
operation of the AOL TV Application or Mercury Application.
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1-5
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[*]
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
2-1
<PAGE>
[*]
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
3-1
<PAGE>
[*]
1 Licenses.
1.1 AOL License Grant. AOL hereby grants to TiVo a non-exclusive license,
-----------------
solely for the purposes of this Agreement, (i) to use and reproduce
the AOL Materials only as necessary in order to perform the
Development Activities (and to sublicense such limited right to the
Browser Software supplier as necessary to fulfill TiVo's obligations
hereunder) and distribution obligations set forth in Section 7.3, and
(ii) to use, demonstrate, test, display, perform, market, distribute
and promote the AOL Materials, as incorporated in the AOL TV
Application or Mercury Application, and Subscriber Documentation in
accordance with Section 7 of the Agreement. TiVo may sublicense
(through multiple tiers) the license rights granted in clauses (i) and
(ii) of the preceding sentence to third parties as necessary to carry
out the purposes of this Agreement, including without limitation the
manufacture, reproduction, distribution, and licensing of the TiVo
Platform with the AOL TV Application, provided however that TiVo shall
bear full responsibility for any breach of the applicable license
terms, use restrictions and nondisclosure provisions from the actions
of any TiVo sublicensees (specifically excluding End Users and other
third parties receiving license rights directly from AOL). AOL hereby
grants to TiVo a non-exclusive license, to the extent AOL IP is
incorporated therein, solely to demonstrate the[*]. TiVo acknowledges
and agrees that it shall not attempt to disassemble, decompile,
reverse engineer or otherwise access the human readable source code of
AOL Materials provided in object code form. End Users will receive
rights to use the AOL TV Application and the AOL TV Service by
entering into a license agreement directly with AOL (and not by
sublicense from or through TiVo), and such license agreements shall be
entered into and terminated without regard to the termination or
expiration of this Agreement.
1.2 TiVo License Grant. TiVo hereby grants to AOL a non-exclusive license,
------------------
solely for the purposes of this Agreement, (i) to use the TiVo
Platforms provided by TiVo pursuant to Section 3.2(c)(iii) of the
Agreement, and (ii) to use and reproduce the remote control technology
provided by TiVo only as necessary to develop the AOL Keyboard. AOL
acknowledges and agrees that it shall not attempt to disassemble,
decompile, reverse engineer or otherwise access the human readable
source code of the TiVo Platform or any remote control technology
provided to AOL in object code form. TiVo hereby grants to AOL a
non-exclusive license, to the extent TiVo IP is incorporated therein,
solely to demonstrate the[*].
1.3 Territory. The rights and licenses granted, and the obligations of the
---------
Parties, under this Agreement are applicable in Territory only.
2 Trademark License.
-----------------
2.1 License Grant. Solely in connection with the marketing, promotion and
-------------
distribution obligations specified herein, TiVo shall be entitled to
use the following trade names, trademarks and service marks of AOL:
the "America Online(R)" brand service, "AOLTV(R)" brand service,
"AOL(TM)" service/software, AOL's triangle logo (each, an "AOL Mark")
(all in accordance with AOL's standard trademark usage guidelines);
and AOL shall be entitled to use the trade names, trademarks and
service marks of TiVo as provided to AOL by TiVo during the Term (each
a "TiVo Mark") (all in accordance with TiVo's standard trademark usage
guidelines) (collectively, together with the AOL Marks listed above,
the "Marks").
2.2 Rights. Each Party acknowledges that its utilization of the other
------
Party's Marks will not create in it, nor will such Party represent
that it has, any right, title or interest in or to such Marks other
than the licenses expressly granted herein. Each Party agrees not to
do anything contesting or impairing the trademark rights of the other
Party.
2.3 Quality Standards. Each Party agrees that the nature and quality of
-----------------
its products and services supplied in connection with the other
Party's Marks shall conform to quality standards communicated in
writing by the other Party for use of its trademarks. Each Party
agrees to supply the other Party, upon request, with a reasonable
number of samples of any materials publicly disseminated by such Party
which utilize the other Party's Marks. Each Party shall comply with
all applicable laws and regulations and obtain any required government
approvals pertaining to use of the other Party's Marks.
2.4 Infringement Proceedings. Each Party agrees to promptly notify the
------------------------
other Party of any unauthorized
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4-1
<PAGE>
use of the other Party's Marks of which it has actual knowledge. Each
Party shall have the sole right and discretion to bring proceedings
alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the
other Party, at such other Party's expense, with its reasonable
cooperation with respect to any such infringement proceedings arising
out of the distribution or promotion of AOL TV-Enabled Products
hereunder.
3 Ownership.
3.1 Pre-Existing AOL Intellectual Property. AOL, or its applicable third
--------------------------------------
party licensors, shall retain all ownership and license rights in and
to all patent, trademark, copyright, trade secret and other
intellectual property rights in and to the AOL Materials and AOL
Documentation and any other products or technology pre-existing as of
the Effective Date, or developed by or for AOL outside of the scope of
this Agreement, that are provided by AOL to TiVo for incorporation in
the AOL TV Application or Mercury Application (collectively, "AOL
IP"), and TiVo shall have only the limited license rights thereto as
set forth herein. Except for the licenses granted pursuant to Sections
1.1 and 2 of this Schedule 4, AOL does not grant or transfer any right
in the foregoing AOL intellectual property to TiVo.
3.2 Pre-Existing TiVo Intellectual Property. TiVo, or its applicable third
---------------------------------------
party licensors, shall retain all ownership and license rights in and
to all patent, trademark, copyright, trade secret and other
intellectual property rights in and to the TiVo Software and TiVo
Platform and any other products or technology pre-existing as of the
Effective Date, or developed by or for TiVo outside of the scope of
this Agreement, that are incorporated in the AOL TV Application or
Mercury Application (collectively, "TiVo IP"). Except for the licenses
granted pursuant to Sections 1.2 and 2 of this Schedule 4, TiVo does
not grant or transfer any right in the foregoing TiVo intellectual
property to AOL.
3.3 Developed Intellectual Property.
-------------------------------
(a) As related to the AOL TV Application, AOL shall own all rights in
and to all patent, trademark, copyright, trade secret and other
intellectual property rights in and to the components specified
as AOL Owned in Schedule 8; TiVo shall own all rights in and to
all patent, trademark, copyright, trade secret and other
intellectual property rights in and to the components specified
as TiVo Owned in Schedule 8; and the Parties shall jointly own
(with no duty of accounting) all rights in and to all trademark,
copyright, trade secret and other intellectual property rights
(excepting patent rights which shall be governed by Section
3.3(d) of this Schedule 4) in and to the components specified as
Jointly Owned in Schedule 8. Each Party agrees to execute any
documents and take any other steps necessary or helpful to
effectuate the ownership provisions of this Section 3.3.
(b) As related to the Mercury Application, AOL shall own all rights
in and to all patent, trademark, copyright, trade secret and
other intellectual property rights in and to the components
specified as AOL Owned in Schedule 8; TiVo shall own all rights
in and to all patent, trademark, copyright, trade secret and
other intellectual property rights in and to the components
specified as TiVo Owned in Schedule 8; and the Parties shall
jointly own (with no duty of accounting) all rights in and to all
trademark, copyright, trade secret and other intellectual
property rights (excepting patent rights which shall be governed
by Section 3.3(d) of this Schedule 4) in and to the components
specified as Jointly Owned in Schedule 8. Each Party agrees to
execute any documents and take any other steps necessary or
helpful to effectuate the ownership provisions of this Section
3.3. Notwithstanding the foregoing, TiVo agrees that for a period
of [*]from the date of AOL's acceptance of the Mercury
Application[*], TiVo shall [*]other than [*]and the [*];
provided, however, that in the event AOL does not deploy the
Mercury Application within [*]days of the date of acceptance, the
foregoing [*]shall be [*], and if AOL does not deploy the Mercury
Application within [*]days the foregoing[*]shall immediately[*].
As used herein, [*]shall mean [*]delivering [*]to service
populations.
(c) As related to the[*], and except for (i) any AOL IP or TiVo IP
incorporated therein and (ii) works created by [*]at AOL's
request (which shall be AOL-owned unless created jointly with
TiVo), the Parties shall jointly own all right, title and
interest in and to all components of the [*]created by TiVo
pursuant to this Agreement (including works jointly created by
TiVo and [*]at AOL's request), and all intellectual property
rights (excepting patent rights which shall be governed by
Section 3.3(e) of this
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4-2
<PAGE>
Schedule 4) therein, without any duty of accounting. Each Party
agrees to execute any documents and take any other steps
necessary or helpful to effectuate the ownership provisions of
this Section 3.3.
(d) [*]Notwithstanding anything to the contrary contained herein, AOL
shall have [*], with respect to any works identified within
Section 3.3(a) and Section 3.3(b) of this Schedule 4 or Schedule
8 (with respect to the AOLTV Application or the Mercury
Application) as "jointly owned[*], to[*] at its sole expense, and
all right, title and interest in and [*]or[*] (as the case may
be) and [*]thereon shall be [*]by AOL. For purposes of this
Section 3.3(d), [*]arising out of the [*]shall include any [*]and
any other[*]to same, including any foreign or domestic
counterparts, [*],[*],[*],[*], [*],[*], and [*]thereof, and
any[*] resulting from any of the foregoing in any [*] (herein,
the [*]). AOL hereby [*]to TiVo a [*]in and to any such[*]product
or service[*], and to otherwise exploit in any manner[*]. TiVo
may[*]) to the [*]provided that any such[*] is restricted to
using the [*]in conjunction with, or as embodied within, other
[*]offered or provided by TiVo or its Affiliates. The [*]in this
Section 3.3(d) shall be [*]to (i) any[*], (ii) to a[*], (iii) to
a [*]that utilizes the [*]in the event of a[*], or (iv) to any
[*]. Further, to the extent AOL enforces such [*]the [*]to a
third party on a [*] (i.e., excluding [*]arrangements under which
AOL does not receive[*]and only after [*]associated with
obtaining any such [*]and any such enforcement, TiVo shall be
entitled to [*]of any [*]which [*]from, and are reasonably
attributable to, the [*]on a [*]. In accordance with the
provisions of[*]) of the Agreement, AOL shall [*]to TiVo on all
such[*], and associated[*], and shall [*]on a[*] basis (but in no
event longer than [*]days from the first [*]). TiVo shall have
the right to [*]related to AOL's [*]in accordance with the
provisions of [*]of the Agreement. Notwithstanding the foregoing,
[*]shall have the right to request in writing [*]to[*]
(including, without limitation, [*]) with respect to any element
of the[*], and if, after a reasonable period of time for
investigation of such[*],[*]to do so, TiVo shall have the right
to [*]with such element of the[*], and if TiVo [*]such[*], such
element of the[*]shall be deemed [*]. Each Party agrees to [*]and
take any other steps necessary or helpful to [*]the[*]of this
Section 3.3.
(e) TiVo Patent Rights. Notwithstanding anything to the contrary
------------------
contained herein, TiVo shall have [*]right, with respect to any
works identified within Section 3.3(c) of this Schedule 4 as
"jointly owned" [*]to [*]at its sole expense, and all right,
title and interest in and [*] (as the case may be) and [*]thereon
shall be [*]by TiVo. For purposes of this Section 3.3(e),
[*]arising out of the [*]shall include any [*]and any other [*]to
same, including any foreign or domestic counterparts, [*]and
[*]thereof, and any patents resulting from any of the foregoing
in any [*] (herein, the [*]). TiVo hereby [*]to AOL a [*]in and
to such [*]product or service [*]to [*] and to otherwise exploit
in any manner [*]. AOL may [*]to the [*]provided that any such
[*]is restricted to using the [*]in conjunction with, or as
embodied within, other [*]offered or provided by AOL or its
Affiliates. The [*]in this Section 3.3(d) shall be [*]to (i) any
[*], (ii) to a [*] (iii) to a [*]that utilizes the [*]in the
event of a [*], or (iv) to [*]. Further, to the extent TiVo
enforces such [*]the [*]to a third party on a [*] (i.e.,
excluding [*]arrangements under which TiVo does not receive [*]),
and only after [*]associated with obtaining any such [*]and any
such enforcement, AOL shall be entitled to [*]of any [*]which
[*]from, and are reasonably attributable to, the [*]on a [*]. In
accordance with the provisions of [*]of the Agreement, TiVo shall
[*]to AOL on all such [*], and associated [*], and shall [*]on a
[*]basis (but in no event longer than [*]from the first date
[*].) AOL shall have the right to [*]related to TiVo's [*]in
accordance with the provisions of [*]of the Agreement.
Notwithstanding the foregoing, [*]shall have the right to request
in writing [*]to [*](including, without limitation, [*]) with
respect to any element of the [*], and if, after a reasonable
period of time for investigation of such [*]to do so, AOL shall
have the right to [*]with such element of the [*], and if AOL
[*]such [*]such element of the [*]shall be deemed [*]. Each Party
agrees to [*]and take any other steps necessary or helpful to
[*]the [*]of this Section 3.3.
3.4 [*]. Except as otherwise set forth in [*]and excluding any [*]or
[*]incorporated therein, the [*]in the [*] (specifically excluding
[*]of either Party contained therein) and any other [*]pre-existing as
of the [*], that was [*]by the Parties under the [*], shall continue
to be [*]by the Parties, without any [*]. Each Party agrees to [*]and
take any other steps necessary or helpful to [*]of this Section 3.4.
4 Confidentiality.
4.1 Definition. "Confidential Information" means any confidential and
----------
proprietary information of, or in possession of, either Party,
including, without limitation, information relating to either Party's
product and service plans, trade secrets, inventions, data, designs,
reports, analyses, costs, prices and names, customer lists, finances,
marketing plans, business opportunities, personnel, research and
development, and know-how exchanged hereunder
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4-3
<PAGE>
or under the Original Agreement. The disclosing Party will mark all
Confidential Information in tangible form as "confidential" or
"proprietary" or with a similar legend. The disclosing Party will
identify all Confidential Information disclosed orally as confidential
at the time of disclosure and provide to the receiving Party a written
summary of such Confidential Information within thirty (30) days after
such disclosure. "Confidential Information" shall not, however,
include information that: (i) is or becomes generally known or
available by publication, commercial use or otherwise through no fault
of the receiving Party; (ii) is known by the receiving Party at the
time of disclosure and is not subject to restriction; (iii) is
independently developed by the receiving Party; (iv) is lawfully
obtained from a third party that rightfully makes such disclosure
without breach of a duty of confidentiality; or (v) is made generally
available by the disclosing Party without restriction on disclosure.
Notwithstanding anything to the contrary, "Confidential Information"
of a Party shall at all times remain the property of such Party.
4.2 Treatment of Confidential Information. TiVo and AOL recognize that, in
-------------------------------------
connection with the performance of this Agreement, each of them may
disclose to the other its Confidential Information, or each may obtain
Confidential Information of the other through performance under this
Agreement (including Confidential Information of a Party that is
developed by the other Party). Except as permitted in connection with
the license rights granted pursuant to this Agreement, a Party who
obtains any Confidential Information of the other agrees (i) to
maintain the confidential status of such Confidential Information,
(ii) not to use any such Confidential Information for any purpose
other than the purpose for which it was originally disclosed to the
receiving Party (which purpose, unless otherwise specified, shall be
to develop, market, sell and maintain the Integrated Product), and
(iii) to disclose such Confidential Information only to those of its
employees having a need to know such information, and not to disclose
any of such Confidential Information to any third party other than
consultants, contractors and advisors having a need to know such
information and under a written obligation (A) to keep such
information confidential and (B) to use such information only for the
purposes set forth above.
4.3 Required Disclosure. The Parties acknowledge that each may be required
-------------------
by law or order of a court or other governmental authority to disclose
the other's Confidential Information, and that each shall endeavor in
a commercially reasonable manner to stop or limit such disclosure and
afford the other the opportunity to do so. Each Party shall
immediately give the other Party written notice of any anticipated
disclosure pursuant to this Section 4.3 and will provide reasonable
assistance to the other Party, at the other Party's expense, in
resisting such disclosure.
4.4 Third Party Confidential Information. Any confidential information of
------------------------------------
a third party disclosed by a Party to the other in accordance with the
marking requirements of Section 4.1 of this Schedule 4 shall be
considered Confidential Information hereunder and shall be subject to
such additional restrictions as may be imposed by such third party on
the discloser and communicated in writing by the discloser to the
recipient.
4.5 Injunctive Relief. Each Party agrees that if a court of competent
-----------------
jurisdiction determines that one Party has breached, or attempted or
threatened to breach, any of its confidentiality obligations to the
other Party or its proprietary rights, such other Party will be
entitled to seek appropriate injunctive relief and other measures
restraining further attempted or threatened breaches of such
obligations.
4.6 Independent Activities. Nothing in this Agreement and the terms of
----------------------
confidentiality hereunder will be construed as a representation or
agreement to restrict reassignment of either Party's employees, or in
any manner to affect or limit either Party's present and future
business activities of any nature, including business activities which
could be competitive with the disclosing Party, so long as the
receiving Party does not breach the restrictions on use and disclosure
of Confidential Information as set forth herein. Each Party shall be
free to use any residuals resulting from access to or work with
Confidential Information, subject to any valid patents, copyrights,
and mask work rights of the other Party. The term "residuals" means
information in non-tangible form, which may be retained by persons in
their unaided memory who had access to such Confidential Information,
including, without limitation, ideas, concepts, know-how techniques
contained therein. A person's memory is considered unaided if such
person has not intentionally memorized the Confidential Information
for the purpose of retaining and subsequently using or disclosing it
in violation of this Agreement.
4.7 Third Party Confidentiality. TiVo agrees and acknowledges that to the
---------------------------
extent the standard
4-4
<PAGE>
confidentiality agreement it enters into with [*]and/or [*]subsequent
to the Effective Date conflicts with the provisions of this Section 4,
with respect to any [*]or[*]Confidential Information, the provisions
of the subsequently executed confidentiality agreement shall govern
TiVo's obligations to AOL with respect to such[*]Confidential
Information.
5 General Representations, Warranties and Acknowledgements.
5.1 Performance of AOL TV Application and Mercury Application. TiVo
---------------------------------------------------------
warrants to AOL that for a period of[*] days after the date of AOL's
acceptance of the AOL TV Application or Mercury Application,
respectively (the "Warranty Period"), the Deliverable, when used as
permitted under this Agreement and in accordance with the TiVo
Documentation shall substantially conform to the Specifications,
except to the extent that any nonconformity is caused by a failure of
the AOL Materials or AOL TV Service to conform with the
Specifications. TiVo does not warrant that the AOL TV Application or
Mercury Application will be error free or operate uninterrupted. If
the AOL TV Application or Mercury Application fails to substantially
conform to the Specifications, AOL shall provide TiVo a statement
identifying any failure in sufficient detail for TiVo to recreate such
non-compliance. TiVo will, at its own expense and as its sole
obligation and AOL's sole remedy for any breach of this warranty,
correct or obtain a correction for any reproducible failure of the AOL
TV Application or Mercury Application to comply with the foregoing
warranty that is reported to TiVo during the Warranty Period.
5.2 No Unauthorized Code in Applications. TiVo warrants that, to the best
------------------------------------
of its knowledge, the AOL TV Application and Mercury Application as
delivered to AOL will not contain any Unauthorized Code; provided that
the AOL Toolkit and AOL Materials as delivered to TiVo, does not
contain any Unauthorized Code. Using a current version of a reputable
"antivirus" program, TiVo shall test the AOL TV Application and
Mercury Application for Unauthorized Code. AOL acknowledges that not
all Unauthorized Code can be detected by such programs and, therefore,
TiVo does not represent or warrant that the AOL TV Application or
Mercury Application will be free of Unauthorized Code. TiVo's sole
obligation if TiVo's screening procedures detect Unauthorized Code on
the AOL TV Application and Mercury Application, or if AOL is otherwise
able to demonstrate that the AOL TV Application or Mercury Application
when supplied by TiVo is the source of Unauthorized Code, will be to
use commercially reasonable efforts to deliver a replacement version
of the AOL TV Application or Mercury Application free of the
identified Unauthorized Code, at no charge to AOL.
5.3 No Unauthorized Code in AOL Materials. AOL represents and warrants
-------------------------------------
that, to the best of its knowledge, the AOL Toolkit and AOL Materials,
as delivered, will not contain any Unauthorized Code. Using a current
version of a reputable "antivirus" program, AOL shall test the AOL TV
Software for Unauthorized Code. TiVo acknowledges that not all
Unauthorized Code can be detected by such programs and, therefore, AOL
does not represent or warrant that the AOL Toolkit and AOL Materials
will be free of Unauthorized Code. AOL's sole obligation if AOL's
screening procedures detect Unauthorized Code on the AOL Toolkit and
AOL Materials, or if TiVo is otherwise able to demonstrate that the
AOL Toolkit or AOL Materials when supplied by AOL is the source of
Unauthorized Code, will be to use commercially reasonable efforts to
deliver a replacement version of the AOL Toolkit or AOL Materials free
of the identified Unauthorized Code, at no charge to TiVo.
5.4 Additional Representations of TiVo.
----------------------------------
(a) No Liens. TiVo represents and warrants that the test units
--------
provided by TiVo to AOL pursuant to Section 3.2(c)(iii) of the
Agreement, and paid for by AOL, shall be provided to AOL free and
clear of any liens, imperfections in title, claims, charges,
damages, security interests, restrictions or other encumbrances.
(b) No Infringement. TiVo represents and warrants that the
---------------
Deliverables (except to the extent they contain AOL Materials) to
the best of its knowledge shall not willfully infringe any patent
right, existing in the United States.
5.5 Acknowledgment.
--------------
TiVo hereby acknowledges and agrees that (i) nothing contained in this
Agreement shall be construed to obligate or require AOL to provide or
continue to provide the AOL TV Service during the Term and (ii) AOL
shall be entitled to deliver the
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4-5
<PAGE>
AOL TV Service, or any part thereof, to End Users through the AOL
Network, as determined by AOL in its sole and absolute discretion.
6 Right of Access.
6.1 Access by AOL. TiVo shall permit AOL reasonable access to TiVo's
-------------
premises for the purposes of inspecting the AOL TV Application and
Mercury Application and determining TiVo's compliance with the terms
of this Agreement. When on TiVo's premises, AOL shall comply with
TiVo's security and other plant rules that have been provided to AOL
in writing and shall comply with any applicable governmental laws and
regulations. In the event that any deficiency is found with respect to
the AOL TV Application, Mercury Application, or TiVo's compliance with
this Agreement, the Parties agree to negotiate in good faith
appropriate means for remedying such deficiency. Except as permitted
hereunder, AOL shall not access or attempt to access, and shall
reasonably cooperate with TiVo, at TiVo's request and sole expense, in
the investigation of any apparent unauthorized access to, any computer
system, electronic file, software or electronic services of TiVo in
which AOL or AOL employees are involved. All user identification
numbers and passwords disclosed to a Party and any information
obtained by that Party as a result of its access to and use of the
computer and electronic data storage systems of the other Party shall
be deemed to be, and shall be treated as, Confidential Information of
such other Party.
6.2 Access by TiVo. AOL may in its sole discretion permit TiVo access to
--------------
its premises or to any of its computer or electronic data storage
systems. When on the premises of AOL, TiVo shall comply with AOL's
security and other plant rules that have been provided to TiVo in
writing and shall comply with any applicable governmental laws and
regulations. TiVo shall limit such access and use to that necessary to
perform work within the scope of this Agreement. TiVo shall not
otherwise access or attempt to access, and shall reasonably cooperate
with AOL at AOL's request and sole expense in the investigation of any
apparent unauthorized access to any computer system, electronic file,
software or electronic services of AOL in which TiVo or TiVo's
employees are involved. All user identification numbers and passwords
disclosed to TiVo and any information obtained by TiVo as a result of
TiVo's access to and use of the computer and electronic data storage
systems of AOL shall be deemed to be, and shall be treated as,
Confidential Information of AOL.
7 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5 OF THIS SCHEDULE 4,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE
AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE.
8 Indemnification.
8.1 Employee Indemnification. Each Party (the "Indemnifying Party") will
------------------------
defend at its expense any suit brought against the other Party and the
officers, directors, agents, and employees of such other Party (the
"Indemnified Party"), relating to or resulting from personal injury,
death, or loss of or damage to tangible property in connection with
negligent, reckless or otherwise wrongful acts or omissions, including
theft, by the Indemnifying Party, its employees, agents or
subcontractors; and by employees of the Indemnifying Party under
worker's compensation, or similar employer-employee liability acts,
against the Indemnified Party.
8.2 Intellectual Property Infringement Indemnification.
--------------------------------------------------
(a) In addition to the indemnification obligations set forth in
Section 8.1, each the Indemnifying Party will defend at its
expense any suit brought against the other Indemnified Party and
will pay all damages finally awarded in such suit insofar as such
suit is based on a claim that the Indemnifying Party's Components
infringes any United States patent or copyright, or violates any
trade secret right, subject to the Indemnified Party's
obligations in Section 8.3. If AOL is the Indemnifying Party, the
"Components" shall be defined as the AOL Materials and AOL Marks.
If TiVo is the Indemnifying Party, the "Components" shall be
defined as the AOL TV Application (specifically excluding any AOL
Components therein), the Mercury Application (specifically
excluding any AOL Components therein), the TiVo Platform, and the
TiVo Marks. Notwithstanding the foregoing, neither Party shall be
obligated to indemnify the other Party for infringement claims
solely to the
---------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4-6
<PAGE>
extent based on or arising from compliance with the
Specifications, if such claim would not have arisen except for
such compliance. For avoidance of doubt, TiVo shall be
responsible for infringement claims based on TiVo's
implementation of such Specifications if alternate non-infringing
implementations were available. In addition, TiVo shall defend at
its expense any suit brought against AOL and will pay all damages
finally awarded in such suit insofar as such suit is based on the
claim that TiVo's manufacturing of an AOLTV-Enabled Product
(specifically excluding any AOL Components therein) infringes any
patent or copyright, or violates any trade secret right, subject
to the Indemnified Party's obligations in Section 8.3. In
addition, AOL shall defend at its expense any suit brought
against TiVo and will pay all damages finally awarded in such
suit insofar as such suit is based on the claim that AOL's grant
of any Third Party Passthrough exceeds the scope of rights
granted to AOL by such third party, subject to the Indemnified
Party's obligations in Section 8.3.
(b) In the event that the Indemnifying Party's Component is held in
any suit to infringe and the right to reproduce, use, or
distribute such materials is enjoined, or in the Indemnifying
Party's opinion is likely to become the subject of a claim, the
Indemnifying Party at its own election and expense will either
(i) procure for the Indemnified Party the right to continue using
such Component, (ii) replace the Component with a functionally
equivalent non-infringing product, (iii) modify or replace such
Component, or (iv) if none of the foregoing options can be
obtained using commercially reasonable efforts and on
commercially reasonable terms, require return of the Component
and terminate any licenses granted to the Indemnified Party
and/or the End User with respect thereto, in which case the
Indemnified Party may terminate this Agreement without cost or
penalty, provided, however, in the event AOL is the Indemnified
Party terminating this Agreement, TiVo shall refund to AOL an
amount equal to [*]depreciated on a straight line basis over [*]
years.
(c) Notwithstanding the foregoing, the Indemnifying Party shall have
no liability for any infringement arising from: (i) use of the
Components in combination with other items, unless the
Indemnifying Party provided, required the use of, or specifically
recommended or approved such items as a combination, or unless
such specific combination would be necessary for use in the
normal course of events in connection with the use of the AOL
TV-Enabled Product, (ii) modification of the Components after
delivery, unless the Indemnifying Party made, required,
specifically recommended, or approved such modification, to the
extent such infringement is caused by such modification, (iii)
any use of the Components not in accordance with this Agreement,
for purposes not intended by the Indemnifying Party or after the
Indemnifying Party gave the Indemnified Party written notice that
such Component was potentially infringing and elected one of the
options set forth in this Section 8.2(a), or (iv) any use of any
release of an Component other than the most current release made
available to the Indemnified Party, provided that the Indemnified
Party has been notified of the need to upgrade to the most
current release in order to avoid a possible proprietary rights
infringement and has had a reasonable opportunity to upgrade to
such release.
8.3 Defense and Settlement. If any claim covered by Section 8.1 or 8.2 of
----------------------
this Schedule 4 is asserted by a third party against the Indemnified
Party, and the Indemnifying Party is notified promptly of such claim
or is not prejudiced by any delay in notice, then: (a) the
Indemnifying Party shall assume, at its cost and expense, the sole
defense of such claim through counsel selected by the Indemnifying
Party and reasonably acceptable to the indemnified parties, except
that the Indemnified parties may at their option and expense select
and be represented by separate counsel; (b) the Indemnifying Party
shall maintain control of such defense and have the sole right, at its
option, to settle any such claim; provided that any settlement shall
provide a full release of the indemnified party; (c) Indemnified
parties may, at their option and expense, participate in such defense,
and if they so participate, the Indemnifying Party and the Indemnified
Party shall cooperate with one another in such defense; and (d) the
Indemnifying Party shall bear the total costs of any court award or
settlement of such claim and all other costs, fees and expenses
related to the resolution thereof. THIS SECTION 8 STATES EACH PARTY'S
ENTIRE LIABILITY AND SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS AND
ACTIONS SET FORTH IN SECTION 8.1 AND ANY OTHER CLAIMS OR ACTIONS FOR
INFRINGEMENT.
9 Insurance.
9.1 Required Limits. TiVo shall maintain during the Term of this Agreement
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all insurance and/or bonds required by law or this Agreement,
including without limitation:
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(a) Workers' Compensation and/or other similar insurance coverage
with (i) statutory limits of coverage as prescribed by the law of
the state in which TiVo's obligations under this Agreement are
performed or the Deliverables are delivered; and (ii) although
not required by statute, coverage for any TiVo employee entering
onto AOL's or any other AOL's premises;
(b) Employer's Liability insurance with limits of at least[*];
(c) Commercial General Liability insurance, including contractual
liability, with combined single limits for each occurrence of at
least [*]for bodily injury, including death, and property damage;
provided that such insurance can come into effect after
application of a self-insurance program of no more than[*];
(d) Products Liability and Products-Completed Operations insurance
with a limit of not less than [*]; provided that such insurance
can come into effect after application of a self-insurance
program of no more than[*];
(e) Umbrella/Excess Liability Insurance with umbrella/excess
liability insurance limits of [*]over all other lines of
insurance;
(f) If the use of motor vehicles is required, Commercial Automobile
Liability insurance (including hired and non-owned coverage) with
combined single limits for each occurrence of at least [*]for
bodily injury, including death, and property damage; and
(g) Director and Officer Liability insurance of[*].
9.2 Coverage for AOL and the Other Entities. TiVo shall cause AOL to be
---------------------------------------
named as an additional insured entity under General Liability and
Umbrella/Excess Liability Insurance as required by Section 9.1 of this
Schedule 4 (except Workers' Compensation), and coverage for AOL under
such policies shall be primary. Such policies shall state that AOL is
to be notified in writing at least thirty (30) days prior to
cancellation of, termination of, or any reduction of coverage in each
policy; except that in the event of termination for non-payment of
premium, such policies provide for termination upon ten (10) days
written notice. TiVo shall [*]of each policy prior to performance
hereunder and[*]upon the renewal of each coverage required herein
during the term of this Agreement. TiVo shall provide information
concerning the extent and limits of TiVo's insurance coverage upon
request of AOL. TiVo's purchase of insurance shall not, in any way,
limit TiVo's liability under this Agreement.
9.3 Agents and Subcontractors. Prior to TiVo requiring any agent and/or
-------------------------
subcontractor to enter upon AOL's premises for performance of TiVo's
obligations under this Agreement, TiVo shall require such agent or
subcontractor to maintain the insurance coverage required by Section
9.1 of this Schedule 4, and [*]of insurance or adequate proof of such
insurance upon request.
9.4 Insurers. All policies required by Section 9.1 of this Schedule 4
--------
shall be maintained with insurers with a minimum of A.M. Best's rating
of A-VII.
10 Subcontractors.
10.1 Subcontractors. No provisions of this Agreement or of any agreement
--------------
between a Party and any subcontractor shall be construed as an
agreement between the other Party and such subcontractor. Each Party
shall be as fully responsible to the other Party for the acts and
omissions of any of such Party's subcontractors or of any other
contractors engaged by the subcontractor as such Party is for the acts
and omissions of such Party's own employees. Notwithstanding anything
contained herein, and subject to the confidentiality and ownership
provisions herein, each Party shall have the right to contract with
third parties for engineering, installation or maintenance or any
other services specified as such Party's responsibilities under this
Agreement, provided, however, that if TiVo wishes to engage the third
party subcontracting services of a firm or entity for a substantial
portion of the development work set forth herein, [*].
11. Limitation of Liability. EXCEPT IN THE EVENT OF A BREACH OF THE
CONFIDENTIALITY PROVISIONS CONTAINED HEREIN, NEITHER PARTY SHALL BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), ARISING FROM BREACH OF THE
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[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AGREEMENT (EXCEPT IN THE EVENT OF A BREACH OF THIS AGREEMENT INVOLVING FRAUD,
WILLFUL MISCONDUCT OR THE GROSS NEGLIGENCE OF EITHER PARTY), THE SALE OF THE AOL
TV-ENABLED PRODUCT, THE USE OR INABILITY TO USE THE AOL SERVICE OR THE TIVO
SERVICE, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A
THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 8 OF THIS
SCHEDULE 4. Except for [*]to [*]or [*]and for [*], each Party's liability to the
other arising out of this Agreement will be limited to [*]. These limitations
will apply notwithstanding any failure of essential purpose of any limited
remedy. The Parties acknowledge that the fees payable hereunder reflect the
allocation of risk set forth in this agreement and that neither Party would
enter into this Agreement without these limitations on its liability.
12 Assignment. The rights and liabilities of the Parties hereto will bind and
inure to the benefit of their respective permitted successors; provided,
however, that neither Party may assign its rights hereunder, either in
whole or in part, without the prior written consent of the other. Any
attempted assignment in violation of the provisions of this Section 12
shall be void. Notwithstanding the foregoing, without securing such prior
consent, AOL shall have the right to assign this entire Agreement and all
of its rights and obligations hereunder to (i) an Affiliate of AOL, (ii)
any successor of AOL by way of merger, consolidation or the acquisition of
substantially all of the business and assets of AOL or (iii) any successor
to all of the assets of AOL relating to the AOL TV Service (an "AOL TV
Service Successor"), provided that a party shall not be deemed an AOL TV
Service Successor if such party does not (i) possess all necessary rights
to use the AOL TV Marks in connection with the AOL TV Service, and (ii)
actually use the AOL TV Marks, without modification or combination with
other trademarks, trade names or logos, in its operation of the AOL TV
Service business. If at any time an AOL TV Service Successor ceases to meet
one or more of the requirements set forth in clauses (i) through (ii)
above, TiVo may terminate this Agreement immediately without cost or
penalty.
13 Force Majeure. Neither Party shall be deemed in default of this Agreement
to the extent that performance of its obligations or attempts to cure any
breach are delayed or prevented by reason of any fire, flood, explosion,
war, strikes, threatened strikes, stoppage of work, slowdowns, picketing,
boycotts, embargoes, requirements imposed by governmental regulations,
civil or military authorities, acts of God, or other causes that are beyond
the control and without the fault or negligence of the entity unable to
perform ("Force Majeure Event") provided that such Party gives the other
Party written notice thereof promptly and, in any event, within fifteen
(15) days of discovery thereof and uses its commercially reasonable efforts
to cure any such breach. The failure of a supplier or subcontractor of
either Party to perform under its agreement with such Party shall not
constitute a Force Majeure Event, unless such supplier or subcontractor's
failure to perform is caused by a Force Majeure Event and a reasonable
alternate supplier of subcontractor is not available. In the event of any
Force Majeure Event, the time for performance or cure shall be extended for
a reasonable period of time to allow the Party to secure performance
through alternate means on commercially reasonable terms and conditions. If
any Force Majeure Event prevents a Party from performing for a period of
more than six (6) months, the other Party may terminate this Agreement
without cost or penalty upon notice to the nonperforming Party.
14 Member Information. Each Party shall use commercially reasonable efforts to
ensure that its collection, use and disclosure of information obtained from
End Users under this Agreement complies with (i) all applicable laws and
regulations and (ii) such Party's own standard privacy policies. Neither
Party will disclose any End User information collected hereunder to any
third party in a manner that identifies the End Users as end users of a
product or service of the other Party (except to subcontractors having a
need to know such information to perform its obligations for a Party as
described in Section 10.1 who have agreed in writing to restrictions at
least as stringent as those
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[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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contained herein) or use End User information collected under this Agreement to
market another (a) Interactive Service in the case of TiVo or (b) any service
similar to the TiVo Service (other than the AOL TV Service) in the case of AOL.
15 Relationship of Parties. The Parties are and shall be independent
contractors. Neither Party, its employees, consultants, or agents shall be
deemed under this Agreement to be the agents, employees, partners or joint
venturers of the other, nor does either Party have any authority to enter
into any obligation on behalf of the other. Neither Party shall make any
express or implied representations to any third party to the contrary. Each
Party and all of its subcontractors shall be solely responsible for
compliance with all rules, laws, and regulations relating to the
individuals whom they employ. Neither Party nor its Affiliates undertake by
this Agreement or otherwise to perform or discharge any liability or
obligation of the other Party, whether regulatory or contractual, or to
assume any responsibility whatsoever for the conduct of the business or
operations of the other Party.
16 Management Committee/Arbitration.
16.1 Management Committee. The Parties will act in good faith and use
--------------------
commercially reasonable efforts to promptly resolve any claim,
dispute, controversy or disagreement (each a "Dispute") between the
Parties or any of their respective subsidiaries, Affiliates,
successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement. If the Parties cannot
resolve the Dispute, the Dispute will be submitted to the Management
Committee for resolution. For ten (10) days following submission of
the Dispute to the Management Committee, the Management Committee will
have the exclusive right to resolve such Dispute; provided further
that the Management Committee will have the final and exclusive right
to resolve Disputes arising from any provision of the Agreement which
expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is unable
to amicably resolve the Dispute during the ten (10) day period, then
the Management Committee will consider in good faith the possibility
of retaining a third party mediator to facilitate resolution of the
Dispute. In the event the Management Committee elects not to retain a
mediator, the dispute will be subject to the resolution mechanisms
described below. "Management Committee" will mean a committee made up
of a senior executive from each of the Parties for the purpose of
resolving Disputes under this Section 16 and generally overseeing the
relationship between the Parties contemplated by this Agreement.
Neither Party will seek, nor will be entitled to seek, binding outside
resolution of the Dispute unless and until the Parties have been
unable amicably to resolve the Dispute as set forth in this Section 16
and then, only in compliance with the procedures set forth in this
Section 16.
16.2 Arbitration. Except for Disputes relating to issues of (i) proprietary
-----------
rights, including but not limited to intellectual property and
confidentiality, and (ii) any provision of the Agreement which
expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms (which will be resolved by the Parties
solely and exclusively through amicable resolution as set forth in
Section 16.1), any Dispute not resolved by amicable resolution as set
forth in Section 16.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in Washington, D.C. and will be
initiated and conducted in accordance with the Commercial Arbitration
Rules ("Commercial Rules") of the AAA, including the AAA Supplementary
Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules will be in effect on the date of delivery
of a demand for arbitration ("Demand"), except to the extent that such
rules are inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good faith
that the Complex Procedures will not apply in order to promote the
efficient arbitration of Disputes where the nature of the Dispute,
including without limitation the amount in controversy, does not
justify the application of such procedures.
16.3 Selection of Arbitrators. The arbitration panel will consist of three
------------------------
arbitrators. Each Party will name an arbitrator within ten (10) days
after the delivery of the Demand. The two arbitrators named by the
Parties may have prior relationships with the naming Party, which in a
judicial setting would be considered a conflict of interest. The third
arbitrator, selected by the first two, should be a neutral
participant, with no prior working relationship with either Party. If
the two arbitrators are unable to select a third arbitrator within ten
(10) days, a third neutral arbitrator will be appointed by the AAA
from the panel of commercial arbitrators of any of the AAA Large and
Complex Resolution Programs. If a vacancy in the arbitration panel
occurs after the hearings have commenced, the remaining arbitrator or
arbitrators may not continue
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with the hearing and determination of the controversy, unless the
Parties agree otherwise.
16.4 Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
-------------
not state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing a fair, speedy and
cost-effective resolution of the Disputes. The arbitrators will
reference the Federal Rules of Civil Procedure then in effect in
setting the scope and timing of discovery. The Federal Rules of
Evidence will apply in toto. The arbitrators may enter a default
decision against any Party who fails to participate in the arbitration
proceedings.
16.5 Arbitration Awards. The arbitrators will have the authority to award
------------------
compensatory damages only and will not have the authority to grant any
damages that are excluded by the terms and conditions of this
Agreement. Any award by the arbitrators will be accompanied by a
written opinion setting forth the findings of fact and conclusions of
law relied upon in reaching the decision. The award rendered by the
arbitrators will be final, binding and non-appealable, and judgment
upon such award may be entered by any court of competent jurisdiction.
The Parties agree that the existence, conduct and content of any
arbitration will be kept confidential and no Party will disclose to
any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial
reporting purposes in each Party's financial statements.
16.6 Fees. Each Party will pay the fees of its own attorneys, expenses of
----
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees").
The remaining costs of the arbitration, including without limitation,
fees of the arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") will be born
equally by the Parties. Notwithstanding the foregoing, the arbitrators
may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees
to the prevailing Party as determined by the arbitrators.
16.7 Non Arbitrable Disputes. Any Dispute that is not subject to final
-----------------------
resolution by the Management Committee or to arbitration under this
Section 16 or by law (collectively, "Non-Arbitration Claims") will be
brought in a court of competent jurisdiction in the Commonwealth of
Virginia. Each Party irrevocably consents to the exclusive
jurisdiction of the state and federal courts serving Fairfax or Loudon
counties in the Commonwealth of Virginia, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims
or to recover damages or other relief in connection with such claims.
17 Governing Law. The validity, construction and enforceability of this
Agreement (including in an arbitration proceeding) will be governed in all
respects by the law of the State of New York, without reference to its
choice of law principles.
18 Compliance with Laws. Each Party and all persons performing work under this
Agreement under the direction or control of such Party shall comply with
the provisions of the Fair Labor Standards Act; the Federal Occupational
Safety and Health Act; the Americans with Disabilities Act; the
Communications Act of 1934, as amended, all federal, state, county and
local rules and regulations relevant to these Acts, rules and regulations
to the extent they are applicable to such Party's performance under this
Agreement; and any and all other federal, state, county and local laws,
ordinances and regulations and codes applicable to the performance of this
Agreement.
19 Exports; Re-Exports. Each Party shall comply with all applicable laws,
regulations, and rules relating to the export of commodities, software or
technical data, and shall not export or re-export any commodities,
software, technical data, any products received from the other Party, or
direct product of such commodities, software or technical data, to any
proscribed country, party, or entity listed in such applicable laws,
regulations, and rules, unless properly authorized by the U.S. Government.
20 Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, that provision of the Agreement will be
enforced to the maximum extent permissible so as to give effect to the
intent of the Parties, and the validity, legality and enforceability of the
remaining terms or provisions shall not in any way be affected or impaired
thereby. In such event, the Parties agree to negotiate in good faith
alternate provisions to substitute for any such provisions in order to give
effect, to the maximum extent permissible, the intent of any such
provision.
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21 Rights and Remedies Cumulative. Except to the extent otherwise provided in
this Agreement, the rights and remedies provided herein and all other
rights and remedies available at law or in equity are, to the extent
permitted by law, cumulative and not exclusive of any other right or remedy
now or hereafter available at law or in equity. Neither asserting a right
nor employing a remedy shall preclude the concurrent assertion of any other
right or employment of any other remedy.
22 Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (except as
may otherwise be specifically provided herein to the contrary): (i) if
delivered by hand or courier service which provides evidence of delivery to
the Party to whom said notice or other communication shall have been
directed, upon such receipt, (ii) if mailed by registered air mail with
postage prepaid, return receipt requested, on the tenth business day after
mailing, or (iii) if transmitted by fax, on the date of transmission, with
such transmittal followed by delivery of a confirmation copy via one of the
other methods set out herein. All notices shall be addressed as set forth
below or to any other address such Party shall notify to the other Party in
accordance with this Section 21.
If to AOL, to:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Attention: President, Business Affairs
Fax: (703) 265-0672
with a copy to:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Attention: Deputy General Counsel
Fax: (703) 265-3992
If to TiVo, to:
TiVo Inc.
2160 Gold Street
Alviso, California 95002
Attention: President
Fax: (408) 519-5330
with a copy to:
TiVo Inc.
2160 Gold Street
Alviso, California 95002
Attention: General Counsel
Fax: (408) 519-5330
23 No Waiver. Failure by either Party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any
other provision.
24 No Rights in Third Parties. This Agreement is made for the benefit of AOL
and TiVo and not for the benefit of any third party.
25 Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but which collectively will
constitute one and the same instrument.
26 Headings and References. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
27 Construction. This Agreement has been negotiated by the Parties and their
respective counsel. This Agreement will be interpreted fairly in accordance
with its terms and without any strict construction in favor of or against
either Party.
28 Publicity; Press Release; Promotional Materials. TiVo and AOL shall
cooperate with each other as to the timing and content of press releases to
be issued by the Parties concerning this Agreement. Except as may be
required by applicable law or regulation, neither Party shall issue a press
release relating to, or otherwise disclose, the existence of or any terms
of this Agreement without the prior approval of the other. Before any Party
or any of its affiliates releases any press release or other statement or
makes any other disclosure concerning this Agreement or the matters
contemplated hereby (excluding any disclosure contained in any filing of a
Party with the SEC), such Party shall cooperate with the other Party,
furnish drafts of all such statements or disclosure to such other Party,
and provide the other Party a reasonable opportunity to review and comment
upon any such statement or disclosure. The disclosing Party shall reflect
all reasonable comments and requests of the other Party in such statement
or disclosure prior to the release thereof, and the non-disclosing Party
agrees to review and provide comments on any such statement or disclosure
promptly following receipt thereof. Notwithstanding the foregoing, nothing
in this
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Section 28 shall in any way interfere with either Party's right to make any
statement or disclosure it believes, in its sole discretion, is necessary
under any federal, state or foreign law applicable to such Party.
29 Further Assurances. Each Party hereto shall perform all other acts and
execute and deliver all other documents as may be reasonably necessary to
give effect to the provisions of this Agreement, including, without
limitation, to secure all necessary authorizations and approvals of this
Agreement of all applicable United States governmental bodies.
30 Complete Agreement. This Agreement, including all exhibits and schedules
hereto which are incorporated herein by this reference, and the AOL
Investment Agreement, constitute the entire agreement between the Parties
with respect to the subject matter hereof, and supersede and replace all
prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter, including, without limitation, the Original
Agreement. No amendment to or modification of this Agreement shall be
binding unless in writing and signed by a duly authorized representative of
both Parties.
31 No Offer. This Agreement does not constitute a legally binding or
enforceable offer by either Party and will not be effective until signed by
both Parties.
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the Securities and Exchange Commission. Confidential treatment has been
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