TiVo 2004 Annual Report Download - page 114

awarded in a court of competent jurisdiction or agreed on in a settlement of any such Claim; provided that TiVo (A) promptly notifies DIRECTV, in
writing, of all such Claims; (B) cooperates reasonably with DIRECTV (at DIRECTV's expense) in defending such Claims; and (C) allows DIRECTV
the primary right to control the defense (including the selection of counsel), or at DIRECTV's sole option, to settle, all such Claims; provided such
settlement provides a full unconditional release of TiVo and does not impose any liability on TiVo. At its discretion, TiVo shall be entitled to jointly
participate in the defense of such Claim with counsel of its own selection and TiVo shall be obligated to pay the fees and expenses of such counsel of
its own selection.
(b) Exceptions. DIRECTV shall have no liability for any such Claims based on (i) a combination of the Authoring Tools with the DIRECTV
DVR Receiver; or (ii) the TiVo Authoring Tools.
11. Limitation of Liability. EXCEPT IN THE EVENT OF A BREACH OF THE LICENSE GRANTED IN SECTION 2 (LICENSE GRANTS;
COMMERCIAL USE), A KNOWING OR GROSSLY NEGLIGENT BREACH OF THE RESTRICTIONS HEREIN ON THE USE OF USER DATA,
UNDER LAWS AND DIRECTV PRIVACY POLICY, OR A BREACH OF SECTION 9 (CONFIDENTIALITY) AND EXCEPT FOR THE
INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE
UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE
THEORY FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING WITHOUT
LIMITATION, LOSS OF PROFITS, OTHER COMMERCIAL LOSS, OR COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR
SERVICES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY EXCLUSIVE REMEDY STATED IN THIS AGREEMENT IS DEEMED TO FAIL OF ITS
ESSENTIAL PURPOSE. EXCEPT IN THE EVENT OF A BREACH OF THE LICENSES GRANTED IN SECTION 2 (LICENSE GRANTS;
COMMERCIAL USE), A KNOWING OR GROSSLY NEGLIGENT BREACH OF THE RESTRICTIONS HEREIN ON THE USE OF USER DATA,
UNDER LAWS AND DIRECTV PRIVACY POLICY, OR A BREACH OF SECTION 9 (CONFIDENTIALITY) AND EXCEPT FOR THE
INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY'S
CUMULATIVE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE
AMOUNT OF ALL FEES PAID BY, OR DUE FROM, DIRECTV TO TIVO HEREUNDER. THIS LIMITATION OF LIABILITY IS CUMULATIVE,
WITH ALL PAYMENTS FOR CLAIMS IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF
THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT ENLARGE THE LIMIT.
12. TERM AND TERMINATION.
12.1 Term. The term (the "Term") of this Agreement shall begin on the Effective Date and continue until the termination of the Development
Agreement, unless sooner