TiVo 2004 Annual Report Download - page 177

Indemnifying Party will not relieve the Indemnifying Party from any liability or obligation which the Indemnifying Party may have to the Indemnified Party
(i) otherwise than under this Agreement or (ii) under this Agreement except to the extent of any material prejudice to the Indemnifying Party resulting from
such failure. If any such action, suit, proceeding, investigation or claim is brought against an Indemnified Party, the Indemnifying Party shall be entitled to
participate therein and, if it wishes to assume the defense thereof with counsel satisfactory to the Indemnified Party (who shall not, except with the consent of
the Indemnified Party, be counsel to the Indemnified Party in such action, suit, proceeding, investigation or claim) and gives written notice to the Indemnified
Party of its election so to assume the defense thereof within 15 days after notice shall have been given to it by the Indemnified Party pursuant to the preceding
sentence, shall be entitled to assume the defense with sole control thereof; provided that the Indemnified Party may participate in such defense with counsel of
its own choosing (with the expenses of such counsel to be borne solely by the Indemnified Party). Each Indemnified Party shall be obligated to cooperate
reasonably with the Indemnifying Party, at the expense of the Indemnifying Party, in connection with such defense and negotiations with respect to the
compromise or settlement of any such action, suit, proceeding or investigation. The Indemnifying Party will not be liable for any compromise or settlement of
any claim effected without its written consent (with such consent not to be unreasonably withheld). The Indemnifying Party shall not settle any claims without
the written consent of the Indemnified Party (with such consent not to be unreasonably withheld) unless such settlement is solely for monetary payment and
contains an explicit and unconditional release of the Indemnified Party.
SECTION 17. LIMITATION OF LIABILITY.
17.1 NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY'S CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT (OTHER THAN FOR PAYMENT OF FEES,
ROYALTIES AND ANY OTHER AMOUNTS OWED UNDER THIS AGREEMENT), WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED
(I) WITH RESPECT TO ANY OF EITHER PARTY'S INDEMNITY OBLIGATIONS UNDER SECTION 16, [*], AND (II) WITH RESPECT TO ANY
OTHER LIABILITY OR OBLIGATION ARISING UNDER THIS AGREEMENT, [*], PROVIDED THAT THE LIMITATION ON LIABILITY
PURSUANT TO THIS CLAUSE (II) SHALL BE CALCULATED AT THE TIME SUCH LIABILITY IS SETTLED, COMPROMISED OR OTHERWISE
SATISFIED. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY BE LIABLE UNDER THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR
EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY NATURE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER COMMERCIAL LOSS), EVEN IF SUCH PARTY KNEW
OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES, EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 16; PROVIDED, HOWEVER, THAT THE FOREGOING
[*] 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.
33.