TiVo 2004 Annual Report Download - page 113

any Law or the DIRECTV Privacy Policy or the other restrictions set forth herein, except, to the extent caused by DIRECTV in the case of violations of
the Privacy Policy, or (3) allegations that any Content violates any Law; and (ii) pay any award, damages, or costs (including, without limitation,
reasonable attorneys' fees) as incurred or finally awarded by a court of competent jurisdiction or agreed on in a settlement of any such Claim; provided
that DIRECTV: (A) promptly notifies TiVo, in writing, of all such Claims; (B) cooperates reasonably with TiVo (at TiVo's expense) in defending such
Claims; and (C) allows TiVo the primary right to control the defense (including the selection of counsel), or at TiVo's sole option, to settle, all such
Claims; provided such settlement provides a full unconditional release of DIRECTV and does not impose any liability on DIRECTV. At its discretion,
DIRECTV shall be entitled to jointly participate in the defense of such Claim with counsel of its own selection and DIRECTV shall be obligated to pay
the fees and expenses of such counsel of its own selection.
(b) Mitigation. If TiVo receives written notice of an alleged infringement or believes that a Claim of infringement is likely, or if DIRECTV's use
of the Authoring Tools is prevented by a permanent injunction, TiVo may, at its sole option and expense, (i) procure for DIRECTV the right to continue
use of the Authoring Tools at TiVo's sole expense; (ii) modify the Authoring Tools; or (iii) replace the infringing portion of the Authoring Tools with
technology that does not infringe, provided that, in the case of subsections (ii) and (iii), the modified and/or replaced technology contains substantially
similar functionality and otherwise complies with the requirements of this Agreement (the "Replacement Technology").
(c) Exceptions. TiVo shall have no liability for any such Claims based on (i) any use of the Authoring Tools in combination with products,
services or technology not required by TiVo or not otherwise required to use the Authoring Tools in a standalone form, if such infringement would not
occur except for such combination; or (ii) any use of an infringing version of the Authoring Tools once a non-infringing version of Replacement
Technology has been made available to DIRECTV.
(d) Entire Obligation. The foregoing states TiVo's entire liability and DIRECTV's sole and exclusive remedy with respect to any infringement
by the Authoring Tools of any patents, copyrights, trademarks, trade secrets or other proprietary rights of any third party whether direct or contributory.
10.2 DIRECTV Indemnity.
(a) Indemnity. DIRECTV, at its own expense, shall (i) defend, or at its option, settle, any claims, suits, and actions brought by a third party
(collectively "Claims") against TiVo and its affiliated companies and their respective employees, officers, agents, attorneys, stockholders and directors,
and their respective successors and assigns (the "TiVo Indemnified Party(ies)") based on allegations that (1) any use by DIRECTV or use expressly
authorized by DIRECTV of the Authoring Tools, violates any Law, other than Claims for which TiVo is obligated to defend DIRECTV pursuant to
Section 10.1(a)(i)(1), or (2) allegations that any use by DIRECTV or use expressly authorized by DIRECTV of the User Data violates any Law or the
DIRECTV Privacy Policy or the other restrictions set forth herein, except, to the extent caused by TiVo in the case of violations of the Privacy Policy;
and (ii) pay any award, damages, or costs (including, without limitation, reasonable attorneys' fees) as incurred or finally