TiVo 2004 Annual Report Download - page 190

34.4 Each Party shall pay the fees of its own attorneys, expenses of witnesses and all other expenses and costs in connection with the presentation of
such Party's case (collectively, "Attorneys' Fees"). The remaining costs of the arbitration, including, without limitation, fees of the arbitrator, costs of records
or transcripts and administrative fees (collectively, "Arbitration Costs") shall be borne equally by the Parties. Notwithstanding the foregoing, the arbitrator
may modify the allocation of Arbitration Costs and award Attorneys' Fees in those cases where fairness dictates a different allocation of Arbitration Costs
between the Parties and/or an award of Attorneys' Fees to the prevailing Party as determined by the arbitrator.
34.5 The arbitrator shall be empowered to award such remedies as he or she shall consider appropriate based upon the arbitrator's findings of fact and
conclusions of law and such other factors as the arbitrator considers relevant.
34.6 Notwithstanding the dispute resolution procedures contained in this Section, any Party may apply to a court as set forth in this Section 34: (i) to
enforce this agreement to arbitrate, (ii) to seek injunctive relief so as to enforce any agreements in this Agreement until the arbitration award is rendered or the
dispute is otherwise resolved, (iii) to avoid the expiration of any applicable limitation period, (iv) to preserve a superior position with respect to other
creditors, or (v) to challenge or vacate any final judgment, award or decision of the arbitrator that does not comport with the express provisions of this
Section.
SECTION 35. SEVERABILITY. The Parties agree that each provision of this Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision hereof. In the event that
a court of competent jurisdiction determines that a restriction contained in this Agreement shall be unenforceable because of the extent of time or geography,
such restriction shall be deemed amended to conform to such extent of time and/or geography as such court shall deem reasonable.
SECTION 36. [*]
SECTION 37. CONFIDENTIALITY. The terms and conditions of this Agreement and the Confidential Information disclosed in connection with the
performance hereof shall be considered proprietary and kept strictly confidential by each Party and used solely for the purposes authorized under this
Agreement, except for (a) disclosure as may be required by law, regulation, national stock exchange or national listing system; (b) disclosure in response to a
valid subpoena, order, or formal request for information of a court or government agency of competent jurisdiction; provided, however, that any Party
required to make such disclosure shall give the other Party prompt notice of any such requirement and the disclosure proposed to be made in response thereto
to permit the other Party to contest such disclosure; (c) disclosure to a Party's Affiliates, auditors, legal or financial advisors or other representatives so long as
such parties are expressly bound to keep such information confidential and to use such Confidential Information solely for the purposes authorized under this
Agreement; (d) disclosure necessary for TiVo to comply with any contractual obligations to provide notices of more favored terms or similar provisions in
other distribution agreements so long as TiVo makes such offers in an
[*] 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.
46.