Agreement - TiVo Inc. and NBC Multimedia Inc.
Agreement, dated as of April 16, 1999 (the "Effective Date"), by and
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between TiVo Inc., a Delaware corporation having an address at 894 Ross Drive,
Sunnyvale, California 94089 ("TiVo") and NBC Multimedia, Inc., a Delaware
corporation having an address at 30 Rockefeller Plaza, New York, New York 10112
("NBC").
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WHEREAS, TiVo is in the business of developing and marketing personal video
recorders and services associated therewith (the "TiVo Service");
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WHEREAS, pursuant to that certain Series G Preferred Stock Purchase
Agreement, dated as of the Effective Date, NBC is purchasing certain securities
of TiVo; and
WHEREAS, as a charter partner of TiVo, TiVo has agreed to grant to NBC and
each network wholly or partially owned by the National Broadcasting Company,
Inc. or its affiliates (each an "NBC Network") certain preferential rights.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
enter into this Agreement on the terms and conditions set forth below:
1. Showcase Screen. NBC shall receive preferential "anchor" placement in the
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Showcase Screen (as defined below) for a period of [*] from the
Effective Date. TiVo staff, working in conjunction with NBC creative services,
will produce weekly showcases and special programming packages highlighting
current programming and upcoming events through the Showcase Screen. NBC will
provide TiVo with appropriate content and branding to support the production
effort to include graphics, video, audio and voiceovers. NBC, at its
discretion, can feature promotions for programming appearing on any NBC Network
through the Showcase Screen up to [*] in advance of the time a particular show
is scheduled to air. For purposes hereof, "Showcase Screen"
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means a screen available to TiVo users through a link on the main TiVo Central
screen which features TiVo's network partners and which will allow viewers to
receive information, trailers, previews or special video content for programming
promoted by TiVo's network partners, and a simple "record" capability.
2. Active Promos. TiVo shall work with NBC in order to embed data tags within
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promotions for upcoming NBC Networks shows in order to allow TiVo viewers
watching such promos to instruct the TiVo Service to record that show when it
airs simply by pressing a button on their TiVo remote controls ("Active
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Promos"); provided, however, that this provision shall become effective only
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when and if such functionality becomes technically feasible and generally
available on the TiVo Service; and provided, further, that TiVo shall have the
right to require payment of a fee for this service (which fee shall be [*] at
the earlier of i) when TiVo reaches [*] or ii) after [*] following the
implementation of Active Promos as a generally available feature of the TiVo
Service NBC shall pay the actual, documented incremental out-of-pocket costs of
developing Active Promos used to promote NBC Networks programming.
3. Promo Plus. TiVo shall work with NBC in order to cause the TiVo Service to
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trigger promotions immediately prior to NBC Networks programs that have been
recorded by viewers in
*Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities Exchange and
Commission.
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order to "up-sell" specials, new shows, and lesser performing programs;
provided, however, that this provision shall become effective only when and if
such functionality becomes technically feasible and generally available on the
TiVo Service; and provided, further, that TiVo shall have the right to require
payment of a fee for this service (which fee shall be [*]) at the earlier of i)
when TiVo reaches [*] or ii) after [*] following the implementation of Active
Promos as a generally available feature of the TiVo Service. NBC shall pay the
actual, documented incremental out-of-pocket costs of developing Active Promos
used to promote NBC Networks programming. At the discretion of NBC, these promos
will be encoded as Active Promos. TiVo shall not use Promo Plus functionality to
promote non-NBC Networks programming immediately prior to or following any NBC
Networks programs.
4. TiVolution Magazine. As a TiVo charter partner, NBC Network programming
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packages and specials shall be featured inside the TiVolution Magazine on the
TiVo Service; provided that inclusion and positioning of such features within
the TiVolution Magazine shall be at the discretion of TiVo's editorial staff.
All programming packages and specials would offer viewers an opportunity to
record those shows from inside the TiVolution Magazine.
5. Now Showing on TiVo. For a period of [*] from the Effective Date,
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NBC may at its option specify up to [*] of NBC Network promos and/or
featured programs for inclusion on the TiVo disc that is shipped standard from
the factory. These programs would expire at an appropriate time to remain
timely.
6. E-Commerce Mall. For a period of [*] after TiVo's e-commerce area
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(the "On-Air Mall") is launched, NBC shall receive placement [*] inside such On-
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Air Mall to sell NBC Networks merchandise. Other terms of such placement will be
agreed to by the Parties prior to the commercial launch of the On-Air Mall.
7. Preference Engine Software. TiVo has no plans or intent to, now or in the
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future, provide favorable treatment to any programmer or programmers via its
preference engine software or any other technology incorporated within the TiVo
Service. However, if at any time TiVo implements a commercial program to favor
certain programmers or content producers via the TiVo Service, then TiVo shall
promptly offer any advantages provided to any other programmer or content
producer to NBC without additional compensation.
8. NBC Audience Response Data. For a period of [*] from the Effective Date,
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NBC shall have the right to receive from TiVo any data that TiVo makes available
or offers to sell to any third party which is related to or derived from any NBC
Network ("NBC Specific Data"), TiVo shall not market, sell, share or otherwise
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distribute the NBC Specific Data to, or function as a service bureau with
respect to the NBC Specific Data on behalf of, any NBC Competitor, without the
prior written consent of NBC. For purposes hereof, "NBC Competitor" means any
entity which owns or controls a broadcast, cable or satellite television channel
or service, or any affiliate of such an entity. To the extent that TiVo at any
time in the future offers for sale or otherwise distributes any reports or other
materials which incorporate or rely upon
*Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
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NBC Specific Data, then TiVo shall offer such reports or materials to NBC on
terms no less favorable than TiVo's standard rate for such reports or materials
at such time.
9. Restrictions on Commercial Alteration. TiVo will not swap out, replace or
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otherwise alter any commercial messages included within NBC Network programs
without the prior written consent of NBC. At such time when TiVo has the
technical capability to insert advertising within programming via the TiVo
Service, if the parties believe it to be in their best interests at such time,
the Parties will negotiate in good faith regarding opportunities presented by
such technology, including the method, mechanics and economics of inserting
advertising into programs broadcast by NBC Networks.
10. Restrictions on Adjacent Promotions. TiVo shall not insert promotions or
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advertising directly prior to or after any NBC Network programs unless such
promotions or advertising were provided by NBC or an NBC Network.
11. Signal Pass Through. TiVo shall ensure that the TiVo Service shall not
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delete any programming or data within the signals that are transmitted by any
NBC Network.
12. Internet Capability. If at any time during the Term the TiVo Service is
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enabled for Internet connectivity, then (a) TiVo shall ensure that any links
and/or web content incorporated within or otherwise accompanying the signal of
each NBC Network will be passed through to users of the TiVo Service, and (b)
prior to entering into any agreement with any other party regarding placement of
its Internet assets within the TiVo Service, TiVo shall negotiate in good faith
with NBC with respect to placement for the Internet assets of NBC and its
affiliates.
13. Trade Shows. NBC may offer TiVo demonstration space at relevant industry
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tradeshows in which NBC Interactive participates as an exhibitor. TiVo may
highlight programming of the NBC Networks (as specified by NBC) in its trade
show demonstrations.
14. Promotion; Links. For a period of [*] after the Effective Date,
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each of TiVo and NBC will feature each other as partners on their websites
(NBC.com & TiVo.com) with a link to the other's site; provided, however, that
NBC's obligation under this Section shall be subject to certain internal
approvals; and provided, further, that each party shall comply with the other
party's policies regarding the use of its trademarks and logos.
15. Minimum Standards. All NBC Network promotional material contemplated under
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this agreement shall comply with applicable governmental codes, comport with
reasonable standards of good taste (consistent with the broadcast standards
utilized by major broadcast television networks), and comply with TiVo's
reasonable policies and practices, including, without limitation, those relating
to advertisements of X-rated material, drug related paraphernalia, cigarettes
and liquor.
16. Confidentiality.
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(a) General. During the Term, each party hereto (the "Disclosing Party")
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may disclose to the other party (the "Receiving Party") information in
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connection with the performance of this Agreement, including without limitation
technical data, trade secrets, plans for products or services, customer or
supplier lists, marketing plans, software, source code for
*Material has been omitted pursuant to a request for confidential treatment.
Such materiual has been filed separately witht the Securities and Exchange
Commission.
3.
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software, financial documents or data, and designs which it maintains, and which
when provided hereunder, shall be designated in writing or otherwise reasonably
identified as confidential ("Confidential Information"). The parties shall use
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the Confidential Information of the other party solely to perform this
Agreement, and all Confidential Information shall remain the sole property of
the Disclosing Party. The Receiving Party shall hold the Confidential
Information in strict confidence and shall not make any disclosure of the
Confidential Information (including methods or concepts utilized in the
Confidential Information) to anyone during the Term [*] thereafter without the
express written consent of the Disclosing Party, except to employees,
consultants or agents to whom disclosure is necessary to the performance of this
Agreement and who have executed a confidentiality agreement with the Receiving
Party, or who have been advised of their obligation to maintain the
confidentiality of the Confidential Information. Each of the parties shall use
the same care as it uses to maintain the confidentiality of its most
confidential information, which shall in no event be less than reasonable care.
(b) Exclusions. Notwithstanding the foregoing, the Receiving Party shall
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have no obligation under this Agreement with respect to any Confidential
Information disclosed to it which: (a) the Receiving Party can demonstrate was
already known to it at the time of its receipt hereunder; (b) is or becomes
generally available to the public other than by means of the Receiving Party's
breach of its obligations under this Agreement; (c) is independently obtained
from a third party whose disclosure violates no duty of confidentiality; (d) is
independently developed by or on behalf of the Receiving Party without use of or
reliance on any Confidential Information furnished to it under this Agreement,
and such independent development can be reasonably evidenced by the Receiving
Party; or (e) is disclosed pursuant to applicable law or regulation or by
operation of law, provided that the Receiving Party may disclose only such
information as is legally required, and provided further that the Receiving
Party shall provide reasonable notice to the Disclosing Party of such
requirement and a reasonable opportunity to object to such disclosure.
17. Term and Termination.
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(a) Term. The term of this Agreement (the "Term") shall commence on the
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Effective Date and expire three (3) years thereafter.
(b) Termination for Breach. If either party is in material breach of this
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Agreement, the other party shall so notify the breaching party in writing,
specifying the nature of the breach. The breaching party shall have [*] from
receipt of such notice to correct the breach. If the breach is not cured within
that time period, the other party may terminate this Agreement by providing the
breaching party with written notice of termination. Each party acknowledges that
the remedy at law for any breach or threatened breach of the provisions of
Sections 6-13 and 16 shall be inadequate, and that the non-breaching party, in
addition to any other remedy available to it, shall be entitled to obtain
injunctive relief without proof of irreparable injury and without posting bond.
(c) Other Termination. Either party may terminate this Agreement
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immediately upon the occurrence of any of the following events with respect to
the other party: (a) a receiver is appointed for such party or its material
assets; (b) such party becomes insolvent, generally unable to pay its debts as
they become due, makes an assignment for the benefit of its creditors
*Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
4.
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or seeks relief under any bankruptcy, insolvency or debtor's relief law; (c) if
proceedings are commenced against the other party under any bankruptcy,
insolvency or debtor's relief law, and such proceedings have not been vacated or
set aside within [*] from the date of commencement thereof, or (d) if such
party is liquidated or dissolved or otherwise ceases to do business.
(d) Return of Confidential Information. Upon any termination of this
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Agreement, each party shall immediately return, or if so requested destroy, all
Confidential Information and other property belonging to the requesting party.
18. Right of First Negotiation. For a period of [*] after the expiration
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or termination of this Agreement, prior to entering into any agreement with a
third party which would grant such third party preferential treatment with
respect to the matters discussed in Sections, 7 or 12 hereof, TiVo shall
negotiate in good faith with NBC with respect to obtaining such preferences on
behalf of the NBC Networks.
19. Miscellaneous. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California, without regard to
principles of conflicts of law. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all previous or contemporaneous agreements, proposals, understandings and
representations, written or oral, with respect to the terms and conditions
hereof. This Agreement may not be modified or amended except in writing signed
by a duly authorized representative of each party. All notices, including
notices of address changes, required or permitted to be given by either party
under this Agreement shall be sent by registered or certified mail or by
reputable overnight commercial delivery to the address specified herein by each
party. In the event that any one or more of the provisions of this Agreement
shall be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be affected, or if any one or more of the provisions contained herein shall
be held to be excessively broad as to duration, activity or subject, such
provision shall be construed by limiting and reducing such provisions so as to
be enforceable to the maximum extent compatible with applicable law. The waiver
by either party of any default or breach of this Agreement shall not constitute
a waiver of any other or subsequent default or breach. Neither party may assign
this Agreement or the rights and obligations accruing hereunder without the
prior written consent of the other party, except that either party may so assign
(i) in connection with the sale of all or substantially all of its assets, (ii)
to the surviving entity in any merger or consolidation, or (iii) to an
affiliated company; provided, that the applicable assignee must assume all of
the obligations of the assignor hereunder. The parties' rights and obligations
under Section 16 shall survive expiration or termination of this Agreement.
*Material has been omitted pursuant to a request for confidential treatment.
Such treatment has been filed separately with the Securities and Exchange
Commission.
5.
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IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed
by their respective duly authorized officers or representatives as of the day
and year first above written.
NBC MULTIMEDIA, INC. TIVO INC.
/s/ Chris Glohacki /s/ David H. Courtney
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Signature Signature
Chris Glohacki David H. Courtney
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Print Name Print Name
Vice President Vice President, Chief Financial Officer
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Title Title
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