TiVo 2004 Annual Report Download - page 115

terminated pursuant to this Section 12 (Term and Termination). Notwithstanding the foregoing, no less than 90 days prior to the expiration of the Term,
DIRECTV and TiVo agree to negotiate in good faith regarding an extension of the Term.
12.2 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within
sixty (60) days after receipt of written notice thereof from the non-breaching party.
12.3 Survival. Sections 1 (Definitions); 2.5 (Reservation of Rights; Ownership); 3 (User Data) (but only as related to DIRECTV's ownership and
control of the User Data); 5.1 (Existing Marketing Agreement); 5.2 (TiVo's Use of Network Showcases and TiVolution Magazine); 7 (Representations and
Warranties of TiVo); 8 (Representations and Warranties of DIRECTV); 9 (Confidentiality); 10 (Indemnification); 11 (Limitation of Liability); 12.3
(Survival); 12.4 (No Liability for Termination); and 13 (Miscellaneous) shall survive the termination or expiration of this Agreement. Notwithstanding the
foregoing, provided this Agreement is not terminated by the other party to this Agreement for material breach pursuant to Section 12.2 above, either party
may fulfill its obligations under advertising agreements with third parties executed prior to expiration or termination of this Agreement (and the other party
shall fulfill such obligations as necessary and appropriate hereunder in connection with such agreements) for up to twelve (12) months from such expiration or
termination.
12.4 No Liability for Termination. Each party understands that the rights of termination hereunder are absolute. The terminating party shall not incur
any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other arising from or incident to the terminating party's
exercise of its termination rights under this Agreement. In particular, without limiting the foregoing, the terminated party shall not be entitled to any damages
on account of prospective profits or anticipated sales related to such exercise of termination rights.
13. MISCELLANEOUS.
13.1 No Agency. Each party will in all matters relating to this Agreement act as an independent contractor. Nothing contained in this Agreement, nor
the execution or performance thereof, shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Neither
party will have authority nor represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to
represent the other party as agent, employee or in any other capacity.
13.2 Taxes. All payments made by each party hereunder shall be paid without deduction for and net of any sales, use, excise, import or export, value-
added or similar tax or duty, government permit or license fees, customs and similar fees, penalties and interest and any costs associated with the collection or
withholding of any of the foregoing (except for taxes based on the receiving party's net income) (collectively, "Taxes"). If any deduction is legally required on
any fees payable by one party to the other party hereunder, the party making such payment shall pay in the manner and at the same time such additional
amounts as will result in the receiving party receiving the amounts such party would have received absent such required deduction. The paying party shall
promptly pay or reimburse all federal, state, and local Taxes,