LICENSING AND MARKETING AGREEMENT

Exhibit 10.58

 

 

LICENSING AND MARKETING AGREEMENT

 

dated as of March 15, 2005

 

among

 

COMCAST STB SOFTWARE DVR, LLC

 

COMCAST CORPORATION

 

and

 

TIVO INC.

 

T ABLE OF C ONTENTS

 

[*]	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.

 

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T ABLE OF C ONTENTS

(CONTINUED)

 

[*]	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.

 

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LICENSING AND MARKETING AGREEMENT

 

This Licensing and Marketing Agreement (the “ Agreement ”) is made effective as of March 15, 2005 (the “ Effective Date ”), by and among Comcast STB Software DVR, LLC, a Delaware limited liability company, having its principal place of business at 1201 N. Market Street, Suite 1000, Wilmington, Delaware 19801 (“ Licensee ”), Comcast Corporation, a Pennsylvania corporation, having its principal place of business at 1500 Market Street, Philadelphia, Pennsylvania 19102-2148, as guarantor of Licensee’s obligations hereunder (“ Comcast Parent ” and, together with Licensee, “ Comcast ”), and TiVo Inc., a Delaware corporation, having its principal place of business at 2160 Gold Street, Alviso, California 95002 (“ TiVo ”). Comcast and TiVo may sometimes be individually referred to as a “ Party ” or collectively referred to as the “ Parties ”. Unless otherwise defined herein all capitalized terms shall have the meaning ascribed thereto in Exhibit A, attached hereto and incorporated herein by this reference.

 

RECITALS

 

WHEREAS, TiVo and Comcast desire to establish a strategic relationship that provides Comcast with

 

(i) a product featuring DVR Technology, Home Networking Technology and Media Center Technology that is integrated with certain of Comcast’s current and future DVR platforms and provides Comcast Subscribers with current and future TiVo products and services as an optional alternative to Comcast’s other DVR product offerings, and

 

(ii) an interactive advertising solution for deployment across certain of Comcast’s current and future platforms.

 

THEREFORE, the Parties, intending to be legally bound, hereby agree as follows:

 

SECTION 1. LICENSES.

 

1.1 TiVo Experience License . Subject to the terms and conditions of this Agreement, TiVo, on behalf of itself and all TiVo Affiliates, hereby grants to Licensee a royalty-bearing (as provided in Section 3), worldwide, non-exclusive, non-transferable (except as expressly provided in Section 30 of this Agreement), non-sublicensable (except as expressly provided in this Section 1.1) license under all of TiVo’s Intellectual Property Rights in, to and under the TiVo Experience to: (1) make, copy, modify, use, display, sell, distribute or otherwise transfer (and have made, copied, modified, used, displayed, sold, distributed, or otherwise transferred) the TiVo Experience solely as incorporated in Comcast Products used, displayed, sold, distributed or otherwise transferred within the Territory; (2) copy, use, display, license, distribute or otherwise transfer (and have copied, used, displayed, licensed, distributed or otherwise transferred) the TiVo Experience Software (solely in object code form) only as incorporated in, and for use in conjunction with, Comcast Products deployed to or used in Comcast Systems solely within the Territory; and (3) solely in connection with Licensee’s exercise of the rights granted in clauses (1) and (2) above, authorize and sublicense any or all of

 

1.

these same rights to Comcast Parent, all other Comcast Affiliates, Comcast Systems and Comcast Vendors (collectively, “ Comcast Sublicensees ”); provided that, in each case (1), (2) and (3), these rights are subject to the following restrictions and terms:

 

(a) the TiVo Experience Software shall be distributed to Comcast Subscribers in executable form only, unless such code is subject to open source license terms requiring disclosure of source code, and subject to end user terms and conditions no less restrictive than those used for Comcast’s or applicable Comcast Vendor’s, whichever is more restrictive, proprietary software incorporated in the Comcast Products;

 

(b) Licensee and the Comcast Sublicensees shall not attempt to reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from any TiVo Experience Software provided by TiVo in executable code form, and shall not modify such executable code except in the course of its intended use (e.g., linking executable code with other components);

 

(c) Licensee and the Comcast Sublicensees shall not obfuscate, alter or remove any of TiVo’s valid copyright or other proprietary rights notices or legends appearing on or in the TiVo Experience Software in the form provided by TiVo, and all such markings shall be included on or in all copies made by Licensee or any Comcast Sublicensee of any portion of such TiVo Experience Software, all as may reasonably be required to protect TiVo’s copyright or other proprietary rights and subject to Comcast’s reasonable approval as to the placement thereof;

 

(d) Licensee’s right to sublicense any of its rights under this Section 1.1 to Comcast Vendors and Comcast Systems shall not include the right to assign the benefit of any indemnities or warranties under this Agreement;

 

(e) Comcast acknowledges that (x) the TiVo Experience may incorporate, reference or require the use of certain Third Party IP and that licenses granted pursuant to this Section 1.1 specifically exclude any license rights in or to such Third Party IP, and (y) except as otherwise provided in the Initial TE Software Statement of Work or any other Statement of Work, Comcast and the Comcast Sublicensees shall be responsible for obtaining the necessary rights in any such Third Party IP, provided that TiVo shall use commercially reasonable efforts to promptly notify Comcast of any changes to the list of the Third Party IP attached hereto as Exhibit H; and

 

(f) Comcast shall be and remain responsible for any breach of the license rights granted pursuant to this Section 1.1 by any of the Comcast Sublicensees, and Comcast shall not purport to grant any sublicenses or other rights under the TiVo Experience or TiVo Experience Software that are inconsistent with the restrictions and terms of this Agreement.

 

For the avoidance of doubt, this Section 1.1 provides Comcast with a license to [*] elements of the TiVo Experience [*] but any additional software, documentation or other elements of the TiVo Experience not included in the TiVo Experience Software (other than bug

 

[*]	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.

 

2.

fixes, patches and similar software, documentation or other materials) will be delivered only under a Statement of Work to be negotiated by the Parties, and the only [*] any related development work as provided in the Statement of Work.

 

1.2 TIMS License . Subject to the terms and conditions of this Agreement, TiVo, on behalf of itself and all TiVo Affiliates, hereby grants to Licensee a royalty-free, worldwide, non-exclusive, non-transferable (except as expressly provided in Section 30 of this Agreement), non-sublicenseable (except as expressly provided in this Section 1.2 of this Agreement), fully paid-up license under all of TiVo’s Intellectual Property Rights in, to and under the TIMS IP to: (1) make, copy, modify, use, display, sell, distribute or otherwise transfer (and have made, copied, modified, used, displayed, sold, distributed, or otherwise transferred) the TIMS Solution (in object [*] form) and TIMS IP solely as in conjunction with Comcast Products deployed to or used in Comcast Systems solely within the Territory; and (2) in connection with Licensee’s exercise of the rights granted in clause (1) above, authorize and sublicense any or all of these same rights to Comcast Sublicensees, without further rights to sublicense; provided that, in each case (1) and (2), these rights are subject to the following restrictions and terms:

 

(a) any and all TIMS Solution and other TIMS IP software code incorporated in Comcast Products or deployed in Comcast Systems shall be distributed to Comcast Subscribers in executable form only, unless such code is subject to open source license terms requiring disclosure of source code, and subject to end user terms and conditions no less restrictive than those used for Comcast’s or applicable Comcast Vendor’s, whichever is more restrictive, proprietary software incorporated in the Comcast Products and Comcast Systems;

 

(b) Licensee and the Comcast Sublicensees shall not obfuscate, alter or remove any of TiVo’s valid copyright, patent or other proprietary rights notices or legends appearing on or in the TIMS Solution in the form provided by TiVo, and all such markings shall be included on or in all copies made by Licensee or any Comcast Sublicensee of any portion of such TIMS Solution, all as may reasonably be required to protect TiVo’s copyright, patent or other proprietary rights and subject to Comcast’s reasonable approval as to the placement thereof;

 

(c) Licensee’s right to sublicense any of its rights under this Section 1.2 to Comcast Vendors and Comcast Systems shall not include the right to assign the benefit of any indemnities or warranties under this Agreement;

 

(d) the use of any TIMS Solution [*] by Licensee, Comcast Affiliates and Comcast Systems shall be solely pursuant to the [*] provisions set forth in Exhibit E;

 

(e) [*];

 

(f) Comcast acknowledges that (i) the TIMS IP may incorporate, reference or require the use of certain Third Party IP and that licenses granted pursuant to this Section 1.2 specifically exclude any license rights in or to such Third Party IP, and (ii) except as otherwise provided in the Initial TIMS Statement of Work, Comcast and the Comcast Sublicensees shall be

 

[*]	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.

 

3.

responsible for obtaining the necessary rights in any such Third Party IP, provided that TiVo shall use commercially reasonable efforts to promptly notify Comcast of any changes to list of Third Party IP attached hereto as Exhibit H; and

 

(g) Comcast shall be and remain responsible for any breach of the license rights granted pursuant to this Section 1.2 by any of the Comcast Sublicensees and Comcast shall not purport to grant any sublicenses or other rights under the TIMS Solution or TIMS IP that are inconsistent with the restrictions and terms of this Agreement.

 

For the avoidance of doubt, this Section 1.2 provides Comcast with a license to [*] elements of the TIMS IP [*] but any additional software, documentation or other materials of the TIMS IP not included in the TIMS Solution (other than bug fixes, patches and similar software, documentation or other materials) will be delivered only under a Statement of Work to be negotiated by the Parties, and the only [*] for any related development work as provided in the Statement of Work.

 

1.3 TiVo Marks . Subject to the terms and conditions of this Agreement, TiVo, on behalf of itself and all TiVo Affiliates, hereby grants to Licensee a royalty-free, non-exclusive, non-transferable (except as expressly provided in Section 30 of this Agreement), non-sublicensable (except as expressly provided in the Section 1.3 of this Agreement) license to: (1) use and display the TiVo Marks solely for use in, or in reference to, the TiVo Experience Software; (2) solely in the event that Comcast [*], use and display the TiVo Marks in reference [*]; (3) solely in the event of the termination of this Agreement by Comcast for cause as a result of a failure by TiVo to [*] use and display [*] in connection with [*]; and (4) in connection with Licensee’s exercise of the rights granted in Section 1.3, authorize and sublicense to Comcast Sublicensees the right to so use and display the TiVo Marks, in each case (1), (2), (3) and (4) subject to the following restrictions and terms:

 

(a) Licensee shall include [*] TiVo co-branding as part of the TiVo Experience Software as provided in Exhibit I and in related marketing materials as described in Section 4.8;

 

(b) except as provided in Section 1.3(a) above, neither Licensee nor any Comcast Sublicensee shall have any [*] to use or display the TiVo Marks in, on or with relation to [*];

 

(c) if Licensee or any Comcast Sublicensee shall use or display the TiVo Marks as permitted by this Section 1.3, such Person shall comply with TiVo’s trademark usage guidelines and policies attached hereto as Exhibit J, as the same may be reasonably modified from time to time by TiVo upon [*] notice to Comcast;

 

(d) before making use of any TiVo Marks, Comcast shall submit a sample of the proposed use to TiVo for its approval as to whether the proposed use complies with its trademark usage guidelines and policies, which approval shall not be unreasonably withheld, provided that (i) if TiVo does not provide Comcast with a written [*] of such proposed use [*]

 

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4.

after such submission, TiVo will be deemed to have [*] such proposed use, (ii) if TiVo withholds its approval in accordance with this clause (d), Comcast shall modify or cancel the proposed use as reasonably requested by TiVo, and (iii) if TiVo approves such proposed use or [*], no further approval by TiVo will be required with respect to such use of the TiVo Marks provided that the use, quality and depiction of the TiVo Marks, and the context in which they are depicted, remains substantially similar to the approved use;

 

(e) Comcast shall be and remain responsible for any breach of the license rights granted pursuant to this Section 1.3 by any of the Comcast Sublicensees;

 

(f) nothing in this Agreement shall in any way extinguish, limit, restrict or curtail, or be deemed to extinguish, limit, restrict or curtail, any rights that (i) any of Licensee, Comcast Parent or any other Comcast Sublicensees may have to use the TiVo Marks in the absence of this Agreement, including, without limitation, any constitutional, statutory and common law rights; or (ii) TiVo may have to prevent uses of TiVo Marks by Licensee or any of the Comcast Sublicensees other than in accordance with the license rights granted pursuant to this Section 1.3, including, without limitation, legal proceedings in courts of competent jurisdiction; and

 

(g) Licensee’s right to use and display the TiVo Marks shall be limited to TiVo’s then-current TiVo Marks [*].

 

1.4 Patent Marking . TiVo shall have the right [*] to display [*] patent numbers identified by TiVo (including, without limitation, the Goldwasser patent). TiVo shall be solely responsible for, and shall assume any and all liability associated with, determining which patent numbers are to be displayed [*] and TiVo agrees that Comcast shall not assume any responsibility or liability in this regard. The inclusion of such patent numbers [*] does not constitute an acknowledgment by Comcast or any Comcast Affiliates or Comcast Vendors of the applicability of the corresponding patents to any Comcast Products or to any other products.

 

SECTION 2. OWNERSHIP AND RIGHTS IN INTELLECTUAL PROPERTY.

 

2.1 TiVo IP . As between the Parties, all TiVo IP shall at all times remain the sole and exclusive property of TiVo, subject to the licenses and other rights granted to Licensee under this Agreement.

 

2.2 Newly Developed IP . All new Intellectual Property Rights that are created by TiVo or a TiVo Affiliate (whether solely or jointly with Comcast or a Comcast Affiliate) pursuant to a Statement of Work under this Agreement shall vest in and at all times remain the sole and exclusive property of TiVo; provided that any such new Intellectual Property Rights shall constitute TiVo Experience IP or TIMS IP, as applicable, and shall be subject to the licenses granted to Comcast pursuant to this Agreement, including the covenant granted pursuant to Section 5.1 (subject to the limitations in Section 5.1). All new Intellectual Property Rights that are created by Licensee or a Comcast Affiliate (that are not created jointly with TiVo or a

 

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5.

TiVo Affiliate) shall vest in and at all times remain the sole and exclusive property of Licensee or such Comcast Affiliate, as applicable, and TiVo shall not have any license or other rights therein, other than the covenant granted pursuant to Section 5.2 (subject to the limitations in Section 5.2). Each Party shall, [*], at any time during or after the Term, sign all instruments and documents reasonably requested by the other Party, and otherwise cooperate with the other Party, to effectuate or evidence its rights to any and all such new Intellectual Property Rights. The foregoing allocation of ownership and rights is as between the Parties only.

 

SECTION 3. FEES.

 

3.1 Upfront Fee . In consideration for the licenses granted under Section 1 of this Agreement and the other rights granted to Comcast under this Agreement, Licensee shall pay to TiVo [*] following the Effective Date.

 

3.2 Monthly Fees . Except as provided in Section 4.5 hereof, Licensee shall pay to TiVo a monthly fee for each Comcast TiVo Subscriber, calculated in accordance with the following [*]:

 

[*]

 

[*]

 

3.3 Other Fees and Payments.

 

(a) Licensee shall pay to TiVo (i) any applicable [*] under Section 4.2, (ii) the TIMS Solution Development Fee as further described in Section 6.1, (iii) the TiVo Experience Software Development Fee as further described in Section 6.2, (iv) any applicable fees for ongoing development activities under Section 7, (v) any applicable advertising fees under Section 9, (vi) any applicable fees for additional customer support, maintenance and support, and other services, as may be requested by Comcast, including, without limitation, those described in Sections 8.1, 8.2, 19.4, 24.1 and 24.2 and under Exhibits D and L; and (vii) any applicable audience research service fees under Section 10.2.

 

(b) TiVo shall pay to Comcast (i) any applicable [*], and (ii) any applicable [*].

 

3.4 Deployment Fees. [*]

 

(a) [*]

 

(b) [*]

 

(c) [*]

 

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6.

3.5 Payments . All payments relating to development work performed under a Statement of Work shall be paid in accordance with the billing procedures set forth in the applicable Statement of Work. All other payments shall be paid within [*] after the end of the month to which such obligations relate or in which such obligations accrue. All undisputed payments described in this Section 3 not received by a Party by the applicable due date shall be deemed delinquent. Delinquent payments shall accrue interest at a rate of [*] (or, if lower, the maximum rate permitted by law) during the period that such payment remains delinquent.

 

3.6 Wiring Instructions . All amounts due to TiVo shall be paid in United States Dollars within the time frames specified herein by wire pursuant to the instructions set forth in Exhibit N (Wiring Instructions). All amounts due to Comcast shall be paid in United States Dollars within the time frames specified herein by wire pursuant to instructions to be provided to TiVo no less than 10 days prior to the deadline for the relevant payment.

 

3.7 No Incremental Charges . Except as and to the extent otherwise expressly provided elsewhere in this Agreement, the financial terms set forth in this Section 3 reflect all of the fees, payments, royalties, charges and other costs to be charged by TiVo to Comcast or by Comcast to TiVo during the Term, and there shall be no other incremental charges imposed by either TiVo or Comcast during the Term in connection with the matters covered herein.

 

SECTION 4. PROMOTION COMMITMENT.

 

4.1 TiVo Experience Software Availability. Comcast will ^[*] make available the TiVo Experience Software in Qualifying Systems that serve [*] the total number of Comcast Subscribers in all Qualifying Systems [*]. In any event, such deployment will be completed within [*] following final Comcast acceptance of the initial TiVo Experience Software (“ Comcast TE Acceptance ”), subject to [*].

 

4.2 Subscriber Terms. Comcast will retain full discretion over [*] upon which the TiVo Experience Software will be offered and sold to Comcast Subscribers, provided that, [*] Comcast TiVo Subscribers, (i) if Comcast [*] in a particular Comcast System and Comcast [*], and (ii) if Comcast [*] in a particular Comcast System and Comcast [*].

 

4.3 Marketing Programs. Upon [*] of the TiVo Experience Software [*], Comcast will execute the following marketing programs in support of the TiVo Experience Software:

 

(a) [*];

 

(b) [*]; and

 

(c) [*].

 

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7.

4.4 Marketing Spending.

 

(a) Upon Comcast TE Acceptance, Comcast shall market the TiVo Experience Software for [*] following Comcast TE Acceptance through general marketing campaigns valued at a minimum of [*].

 

(b) Upon [*] of the TiVo Experience Software in a [*] Comcast Systems [*], Comcast shall make one component of its general marketing campaigns [*] the TiVo Spot.

 

(c) In addition to the launch-related marketing programs described in Sections 4.4(a) and 4.4(b) above, upon Comcast TE Acceptance Comcast will market the TiVo Experience Software as part of its general marketing campaigns [*], and Comcast will engage in general marketing valued at amounts [*] up to [*] per year [*]. The type of marketing employed in such general marketing campaigns (e.g., television commercials, print impressions, etc.) will be [*]. [*]

 

(d) For purposes of Comcast’s obligations under this 4.4, advertising distributed by Comcast on Comcast Systems shall be valued at [*].

 

4.5 [*]. Comcast will be permitted, but not obligated, to [*] of the TiVo Experience Software in connection with [*], during which [*] Comcast will [*] and TiVo will [*].

 

4.6 Comcast Marketing Control. Comcast will control the form and content of all marketing messages and materials executed by Comcast that relate to the TiVo Experience Software (subject to TiVo’s trademark usage guidelines in Exhibit J), and TiVo will assist Comcast in the design and development thereof.

 

4.7 Independent Marketing by TiVo. TiVo may, in its sole discretion and at its sole expense, conduct additional marketing to support the TiVo Experience Software [*]. Except as otherwise approved by Comcast in its sole discretion, TiVo’s use of any Comcast trademarks shall be limited to the display of Comcast’s then-current, primary logo used to brand Comcast’s cable service (the current version of which in effect as of the Effective Date is set forth on Exhibit O hereto) [*] and any such use shall otherwise be in accordance with Comcast trademark usage guidelines and policies as in effect from time to time. For the sake of clarity, the foregoing does not restrict TiVo’s advertising for the TiVo Standalone Products or the products of TiVo’s other commercial partners. Except as expressly provided in the first sentence of this Section 4.7, the provisions of this Section 4.7 shall not restrict TiVo’s right to make nominative use of any Comcast trademarks as permitted by law.

 

4.8 Branding of Marketing Materials . Subject to the restrictions and terms of use set forth in Section 1.3, Comcast will include the TiVo logo on all marketing and sales materials that refer to the TiVo Experience Software, including, without limitation, collateral/brochures, advertisements and retail merchandising.

 

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8.

SECTION 5. COVENANTS NOT TO ASSERT.

 

5.1 TiVo Covenant.

 

(a) During the Term, neither TiVo nor any of its Affiliates will assert against Comcast, Comcast Affiliates, Comcast Vendors (in relation to Comcast Products), or Comcast Subscribers (in relation to Comcast Products), any claims of infringement of any TiVo Patents (whether arising before or during the Term), in the following fields:

 

[*]

 

The Parties intend that the covenant in this Section 5.1, along with the limitations in this Section 5.1, shall run commensurate with the TiVo Patents and shall be binding upon any successors or assigns of any such TiVo Patents.

 

(b) This Section 5.1 [*] (i) with respect to the TIMS Solution and all Updates and Releases thereto, whether created by TiVo or otherwise, and [*]; provided that in the event of [*]; (ii) with respect to any Comcast Products deployed by Comcast during the Term; and (iii) upon any [*] than a termination by TiVo for cause pursuant to Section 23.2, and [*], with respect to any Comcast Products deployed by Comcast [*], provided, however, that, to the extent TiVo [*].

 

(c) Notwithstanding the provisions of this Section 5.1, if at any time during the Term [*], Comcast, any Comcast Affiliate, or any Comcast Vendor asserts against TiVo or any TiVo Affiliate or TiVo Vendor (in relation to TiVo Products) any claim of infringement of any of such party’s patents in any of the fields identified in Section 5.1(a) or seeks to invalidate or otherwise challenge any TiVo Patent in any of such fields (other than defensively in response to a claim of patent infringement), TiVo will have the right to assert its patents in any of the foregoing fields against such party.

 

5.2 Comcast Covenant. During the Term [*], neither Comcast nor any of its Affiliates will assert against TiVo, TiVo Affiliates, TiVo Vendors (in relation to TiVo Products) or TiVo Users (in relation to TiVo Products), any claims of infringement of any Comcast Patent that claims an invention which invention is first embodied [*]. Notwithstanding the foregoing provisions of this Section 5.2, if at any time TiVo, any TiVo Affiliate or any TiVo Vendor asserts against Comcast or any Comcast Affiliate or Comcast Vendor (in relation to Comcast Products) any claim of infringement of any of such party’s patents in the field of Interactive Advertising Technology or seeks to invalidate any such Comcast Patent (other than defensively in response to a claim of patent infringement), Comcast would have the right to assert all such Comcast Patents against such party in defense of that party’s action. The Parties intend that the covenant in this Section 5.2, along with the limitations in this Section 5.2, shall run commensurate with the Comcast Patents and shall be binding upon any successors or assigns of any such Comcast Patents.

 

SECTION 6. INITIAL DEVELOPMENT.

 

6.1 TIMS Solution. Subject to the terms and conditions of this Section 6.1, TiVo shall develop and integrate the initial TIMS Solution with all Qualifying STBs [*] pursuant to specifications to be documented in an initial Statement of Work for the TIMS Solution (the

 

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9.

“ Initial TIMS Statement of Work ”). TiVo shall use its best efforts to include, without limitation, TiVo’s most current Interactive Advertising Technology in the initial version of the TIMS Solution, including such of those features described on Exhibit C as Comcast shall request consistent with this Section 6.1; provided that in any event the TIMS Solution [*] at the time the Initial TIMS Statement of Work is finalized, subject to obtaining the right to use any Third Party IP necessary to incorporate such features or functionality in the TIMS Solution.

 

(a) Following the Effective Date, Comcast and TiVo shall use commercially reasonable efforts to develop the Initial TIMS Statement of Work as follows:

 

(i) Within [*] after the Effective Date, each of Comcast and TiVo shall appoint an individual to serve as project manager and principal contact with respect to such Party’s obligations under this Section 6.1 and shall notify the other Party of such appointment.

 

(ii) Within [*] after the Effective Date, Comcast shall deliver the high-level feature specifications for the initial version of the TIMS Solution; provided that the TIMS Solution will be designed (x) to run on all existing versions and versions for which specifications exist of the Qualifying STBs; and (y) such that it could be used on Qualifying STBs deployed by Comcast before and after the Comcast TIMS Acceptance.

 

(iii) Within [*] after the Effective Date, Comcast shall deliver the operational requirements for the initial version of the TIMS Solution with respect to Comcast Systems.

 

(iv) Commencing as soon as commercially practicable following the Effective Date, TiVo shall conduct such technical diligence of the Qualifying STBs as is reasonably necessary to enable TiVo to prepare a preliminary version of the Initial TIMS Statement of Work, and Comcast shall use its commercially reasonable efforts to give TiVo access to such technical information, employees and facilities of Comcast and the appropriate Comcast Vendors as is reasonably necessary to complete such diligence.

 

(v) As soon as commercially practicable following completion of its technical diligence of the Qualifying STBs, TiVo shall prepare, in a commercially reasonable manner, a preliminary version of the Initial TIMS Statement of Work and deliver the same to Comcast.

 

(vi) Within [*] following delivery of such preliminary version of the Initial TIMS Statement of Work, Comcast shall deliver to TiVo Comcast’s comments to the Initial TIMS Statement of Work. Thereafter, the Parties shall negotiate in good faith to finalize such Initial TIMS Statement of Work.

 

(vii) The Parties shall finalize the Initial TIMS Statement of Work within [*] after the Effective Date or by such later date as shall be mutually agreed in writing by the Parties’ respective project managers appointed pursuant to Section 6.1(a)(i). If the Initial TIMS Statement of Work is not finalized by the Parties by such date, then either Party may elect

 

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10.

to submit the matter to the dispute escalation procedures set forth in Section 33. Should such procedures result in arbitration pursuant to Section 34, the arbitrator in such arbitration shall [*].

 

(b) The Initial TIMS Statement of Work shall, at a minimum, provide for:

 

(i) the software, hardware and development tools required to enable, operate and support the TIMS Solution, which shall not include any Third Party IP, except for any Third Party IP set forth on Exhibit H as of the Effective Date and any Third Party IP mutually agreed to by the Parties in the Initial TIMS Statement of Work;

 

(ii) the development of the TIMS Solution in a manner such that it can operate on the Qualifying STBs without the use of, or dependency on, any other TiVo IP that is not licensed to Comcast pursuant to this Agreement;

 

(iii) integration of the TIMS Solution into a centralized content distribution system designated by Comcast;

 

(iv) acceptance criteria (including features, functionality and interoperability) for Comcast’s acceptance of any deliverables relating to the TIMS Solution;

 

(v) the [*] required to complete the TIMS Solution and the [*] for the TIMS Solution [*];

 

(vi) specified milestone dates on which particular aspects of the TIMS Solution shall be delivered to Comcast, which milestone dates shall be (x) designed to provide for substantial development progress at reasonable intervals in the development process, including, without limitation, delivery by TiVo of the fully completed TIMS Solution at a date that allows sufficient time for Comcast to complete its acceptance testing (given a reasonable testing and field trial period taking into consideration the TIMS Acceptance Deadline) and accept the TIMS Solution by the second anniversary of the Effective Date (such second anniversary, the “ TIMS Acceptance Deadline ”) and (y) subject to review and adjustment by the Parties from time to time if TiVo fails to achieve any milestone as a result of a Non-TiVo Delay or as reasonably necessary to accommodate any project change requests (each, a “ PCR ”) submitted by Comcast;

 

(vii) the respective payments to be made by Comcast to TiVo on each of the specified milestone dates described in clause (vi) above (subject to satisfaction of the conditions applicable to such milestone), which payment amounts shall (x) reflect [*] of the TIMS Solution Development Fee [*] of the Initial TIMS Statement of Work, (y) reflect a [*] TIMS Solution Development Fee [*] Comcast TIMS Acceptance, and (z) subject to clauses (x) and (y), be designed to relate to the amount of work entailed in achieving the respective milestones;

 

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11.

(viii) reporting obligations for TiVo to update Comcast as to its progress under the Initial TIMS Statement of Work, which reports shall be required at commercially reasonable intervals; and

 

(ix) detailed procedures for modification of the Initial TIMS Statement of Work by a Party as evidenced in a PCR, which shall give such Party the right to request changes to the Initial TIMS Statement of Work subject only to the Parties’ acceptance of such changes and to Comcast paying any reasonable additional costs associated with such changes and such changes not imposing an undue burden on TiVo’s resource availability.

 

(c) Promptly following finalization of the Initial TIMS Statement of Work in accordance with Section 6.1(b) above, each Party shall commence performance of its obligations thereunder and cooperate with the other Party in the performance of such obligations in good faith and in a commercially reasonable manner. In carrying out their respective obligations under the Initial TIMS Statement of Work and any other Statement of Work relating to the TIMS Solution, TiVo and Comcast shall perform such obligations in a professional and workmanlike manner and comply with their respective time deadlines set forth therein. In addition, TiVo shall use commercially reasonable efforts to achieve all milestones specified therein and comply with all specifications contained therein (including, without limitation, those relating to the features, functionality and operational requirements thereof).

 

(d) Any deliverables relating to the TIMS Solution shall be delivered by TiVo and tested and accepted (or rejected) by Comcast in accordance with the following procedures:

 

(i) TiVo shall deliver all such deliverables pursuant to the respective milestone dates specified in the applicable Statement of Work and provide a written certification to Comcast when each such deliverable is delivered.

 

(ii) In determining whether any such deliverable satisfies the applicable acceptance criteria specified in the applicable Statement of Work, Comcast and TiVo shall follow the following procedures: Comcast shall have the number of days specified in the applicable Statement of Work for the applicable deliverable after delivery of each deliverable to perform appropriate acceptance tests (herein, the “ Acceptance Period ”). Within such Acceptance Period, Comcast shall use commercially reasonable efforts to perform such acceptance tests and communicate the results to TiVo. By the end of such Acceptance Period, Comcast shall notify TiVo in writing that (x) the deliverable has failed to meet the applicable acceptance criteria, specifying in reasonable detail that nature of such failure, or (y) Comcast accepts such deliverable. If Comcast fails to notify TiVo within such Acceptance Period as to any failure of the deliverable, or if Comcast distributes or otherwise uses the deliverable for commercial purposes, Comcast shall be deemed to have accepted such deliverable. If Comcast reports any failure with respect to a deliverable, TiVo shall use commercially reasonable efforts to correct such failure within the number of days specified in the applicable Statement of Work for the applicable deliverable after the date of receipt of Comcast’s notice of such failure and deliver to Comcast a corrected version of such deliverable. Upon delivery of a corrected version of a deliverable, the foregoing procedures shall be repeated until such deliverable has been accepted by Comcast, unless and until such time as Comcast terminates the development of the TIMS Solution as permitted under Section 6.1(g).

 

12.

(iii) If there occurs a dispute regarding whether any such deliverable satisfies the applicable acceptance criteria specified in the applicable Statement of Work (including following any attempts by TiVo to correct any such deliverable), Comcast and TiVo shall promptly communicate such dispute to the appropriate business/project manager when such Party becomes aware of the dispute. If such dispute cannot be mutually resolved by such business/project managers within [*] from the time the business/project managers begin discussions, then either Party may elect to submit the matter to the dispute escalation procedures set forth in Section 33 below.

 

(e) In consideration for the development of the TIMS Solution, Comcast shall pay TiVo such amounts at such times as shall be set forth in the Initial TIMS Statement of Work (subject to any changes thereto in accordance with the PCR procedures specified therein). The aggregate amount required to be paid by Comcast to TiVo pursuant to the Initial TIMS Statement of Work (subject to any such changes) shall be referred to herein as the “ TIMS Solution Development Fee .”

 

(f) For the avoidance of doubt, the TIMS Solution delivered by TiVo pursuant to the Initial TIMS Statement of Work [*] and pursuant to a Statement of Work mutually agreed to by the Parties.

 

(g) In the event that Comcast TIMS Acceptance has not occurred by the TIMS Acceptance Deadline and such failure is not the result of a Non-TiVo Delay, Comcast will have the right to terminate the TIMS Solution development project, in which event Comcast [*]. Upon any such termination, Comcast will be entitled to [*].

 

(h) TiVo acknowledges that the development and integration of the TIMS Solution will be a collaborative effort requiring performance by Comcast and Comcast Vendors in addition to TiVo, and, accordingly, TiVo shall negotiate in good faith with Comcast Vendors to enter into cooperation agreements with such Comcast Vendors on commercially reasonable terms to govern their respective rights and obligations in connection with the development and integration of the TIMS Solution (such cooperation agreement to include a provision substantially equivalent to the covenant set forth in Section 5.2 if the Comcast Vendor is a Comcast Affiliate with respect to which Comcast Parent does not have, directly or indirectly, the power or authority to cause such Affiliate to grant such covenant without the risk of liability to any third party). In addition, TiVo shall use commercially reasonable efforts to ensure that any third party software (including, without limitation, [*]) that Comcast requires to be integrated on the Qualifying STBs shall fully function in conjunction with the TIMS Solution, in each case to the extent that such requirements were specified in the Initial TIMS Statement of Work or any subsequent Statement of Work relating to the TIMS Solution.

 

6.2 TiVo Experience Software . Subject to the terms and conditions of this Section 6.2, TiVo shall develop and integrate the initial version of the TiVo Experience Software with the Qualifying STBs for Comcast pursuant to specifications to be documented in an initial Statement of Work for the TiVo Experience Software (the “ Initial TE Software Statement of Work ”). TiVo shall use its best efforts to include, without limitation, TiVo’s most current DVR

 

[*]	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.

 

13.

Technology, Home Networking Technology and Media Center Technology in the initial version of the TiVo Experience Software, including such of those features and functionality described on Exhibit B as Comcast shall request consistent with this Section 6.2; provided that in any event the TiVo Experience Software [*] at the time the Initial TE Software Statement of Work is finalized, subject to obtaining the right to use any Third Party IP necessary to incorporate such features or functionality in the TiVo Experience Software.

 

(a) Following the Effective Date, Comcast and TiVo shall use commercially reasonable efforts to develop the Initial TE Software Statement of Work as follows:

 

(i) Within [*] after the Effective Date, each of Comcast and TiVo shall appoint an individual to serve as project manager and principal contact with respect to such Party’s obligations under this Section 6.2 and shall notify the other Party of such appointment.

 

(ii) Within [*] after the Effective Date, Comcast shall deliver the high-level feature specifications for the initial version of the TiVo Experience Software; provided that the TiVo Experience Software will be designed (x) to run on all existing versions and versions for which specifications exist of the Qualifying STBs; (y) such that it could be offered both as a Comcast Subscriber’s initial DVR Product or as an option selected by a Comcast Subscriber who already subscribes to one of Comcast’s other DVR Products running on a Qualifying STB (which selection could be made by the Comcast Subscriber from home using its Qualifying STB and delivered via software download directly from a Comcast Headend to such Qualifying STBs); and (z) [*].

 

(iii) Within [*] after the Effective Date, Comcast shall deliver the operational requirements for the initial version of the TiVo Experience Software with respect to Comcast Systems.

 

(iv) Commencing as soon as commercially practicable following the Effective Date, TiVo shall conduct such technical diligence of the Qualifying STBs as is reasonably necessary to enable TiVo to prepare a preliminary version of the Initial TE Software Statement of Work, and Comcast shall use its commercially reasonable efforts to give TiVo access to such technical information, employees and facilities of Comcast and the appropriate Comcast Vendors as is reasonably necessary to complete such diligence.

 

(v) As soon as commercially practicable following completion of its technical diligence of the Qualifying STBs, TiVo shall prepare, in a commercially reasonable manner, a preliminary version of the Initial TE Software Statement of Work and deliver the same to Comcast.

 

(vi) Within [*] following delivery of such preliminary version of the Initial TE Software Statement of Work, Comcast shall deliver to TiVo its comments to the Initial TE Software Statement of Work. Thereafter, the Parties shall negotiate in good faith to finalize such Initial TE Software Statement of Work.

 

[*]	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.

 

14.

(vii) The Parties shall finalize the Initial TE Software Statement of Work within [*] after the Effective Date or by such later date as shall be mutually agreed in writing by the Parties’ respective project managers appointed pursuant to Section 6.2(a)(i). If the Initial TE Software Statement of Work is not finalized by the Parties by such date, then either Party may elect to submit the matter to the dispute escalation procedures set forth in Section 33. Should such procedures result in arbitration pursuant to Section 34, the arbitrator in such arbitration shall [*].

 

(b) The Initial TE Software Statement of Work shall, at a minimum, provide for:

 

(i) the software, hardware and development tools required to enable, operate and support the TiVo Experience Software, which shall not include any Third Party IP , except for any Third Party IP set forth on Exhibit H as of the Effective Date and any Third Party IP mutually agreed to by the Parties in the Initial TE Software Statement of Work;

 

(ii) the development of the TiVo Experience Software in a manner such that it can operate on the Qualifying STBs without the use of, or dependency on, any other TiVo IP that is not licensed by Comcast pursuant to this Agreement;

 

(iii) integration of the TiVo Experience Software with the appropriate Comcast Headend system providing for billing and conditional access;

 

(iv) acceptance criteria (including features, functionality and interoperability) for Comcast’s acceptance of any deliverables relating to the TiVo Experience Software;

 

(v) the [*] required to complete the TiVo Experience Software and [*] for the TiVo Experience Software [*];

 

(vi) specified milestone dates on which particular aspects of the TiVo Experience Software shall be delivered to Comcast, which milestone dates shall be (x) designed to provide for substantial development progress at reasonable intervals in the development process, including, without limitation, delivery by TiVo of the fully completed TiVo Experience Software at a date that allows sufficient time for Comcast to complete its acceptance testing (given a reasonable testing and field trial period taking into consideration the TE Acceptance Deadline) and give Comcast TE Acceptance by the second anniversary of the Effective Date (such second anniversary, the “ TE Acceptance Deadline ”) and (y) subject to review and adjustment by the Parties from time to time if TiVo fails to achieve any milestone as a result of a Non-TiVo Delay or as reasonably necessary to accommodate any PCRs submitted by Comcast;

 

(vii) the respective payments to be made by Comcast to TiVo on each of the specified milestone dates described in clause (vi) above (subject to satisfaction of the conditions applicable to such milestone), which payment amounts shall (x) reflect [*] of the TiVo Experience Software Development Fee [*] of the Initial TE Software Statement of Work,

 

[*]	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.

 

15.

(y) reflect a [*] TiVo Experience Software Development Fee [*] Comcast TE Acceptance, and (z) subject to clauses (x) and (y), be designed to relate to the amount of work entailed in achieving the respective milestones;

 

(viii) reporting obligations for TiVo to update Comcast as to its progress under the Initial TE Software Statement of Work, which reports shall be required at commercially reasonable intervals; and

 

(ix) detailed procedures for modification of the Initial TE Software Statement of Work by a Party as evidenced in a PCR, which shall give such Party the right to request changes to the Initial TE Software Statement of Work subject only to the Parties’ acceptance of such changes and to Comcast paying any reasonable additional costs associated with such changes and such changes not imposing an undue burden on TiVo’s resource availability.

 

(c) Promptly following finalization of the Initial TE Software Statement of Work in accordance with Section 6.2(b) above, each Party shall commence performance of its obligations thereunder and cooperate with the other Party in the performance of such obligations in good faith and in a commercially reasonable manner. In carrying out their respective obligations under the Initial TE Software Statement of Work and any other applicable Statement of Work, TiVo and Comcast shall perform such obligations in a professional and workmanlike manner and comply with their respective time deadlines set forth therein. In addition, TiVo shall use commercially reasonable efforts to achieve all milestones specified therein and comply with all specifications contained therein (including, without limitation, those relating to the features, functionality and operational requirements thereof).

 

(d) Any deliverables relating to the TiVo Experience Software shall be delivered by TiVo and tested and accepted (or rejected) by Comcast in accordance with the following procedures:

 

(i) TiVo shall deliver all such deliverables pursuant to the respective milestone dates specified in the applicable Statement of Work and provide a written certification to Comcast when each such deliverable is delivered.

 

(ii) In determining whether any such deliverable satisfies the applicable acceptance criteria specified in the Initial TE Software Statement of Work or other applicable Statement of Work, Comcast and TiVo shall follow the following procedures: Comcast shall have the applicable Acceptance Period specified in the relevant Statement of Work for the applicable deliverable. Within such Acceptance Period, Comcast shall use commercially reasonable efforts to perform such acceptance tests and communicate the results to TiVo. By the end of such Acceptance Period, Comcast shall notify TiVo in writing that (x) the deliverable has failed to meet the applicable acceptance criteria, specifying in reasonable detail that nature of such failure, or (y) Comcast accepts such deliverable. If Comcast fails to notify TiVo within such Acceptance Period as to any failure of the deliverable, or if Comcast distributes or otherwise uses the deliverable for commercial purposes, Comcast shall be deemed

 

[*]	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.

 

16.

to have been accepted such deliverable. If Comcast reports any failure with respect to a deliverable, TiVo shall use commercially reasonable efforts to correct such failure within the number of days specified in the applicable Statement of Work for the applicable deliverable after the date of receipt of Comcast’s notice of such failure and deliver to Comcast a corrected version of such deliverable. Upon delivery of a corrected version of a deliverable, the foregoing procedures shall be repeated until such deliverable has been accepted by Comcast, unless and until such time as Comcast terminates the development of the TiVo Experience Software as permitted under Section 6.2(g) below, unless and until such time as Comcast terminates the development of the TiVo Experience Software as permitted under Section 6.2(g).

 

(iii) If there occurs a dispute regarding whether any such deliverable satisfies the acceptance criteria specified in the applicable Statement of Work (including following any attempts by TiVo to correct any such deliverable), Comcast and TiVo shall promptly communicate such dispute to the appropriate business/project manager when such Party becomes aware of the dispute. If such dispute cannot be mutually resolved by such business/project managers within [*] from the time the business/project managers begin discussions, then either Party may elect to submit the matter to the dispute escalation procedures set forth in Section 33 below.

 

(e) In consideration for the development of the TiVo Experience Software, Comcast shall pay TiVo such amounts at such times as shall be set forth in the Initial TE Software Statement of Work (subject to any changes thereto in accordance with the PCR procedures specified therein). The aggregate amount required to be paid by Comcast to TiVo pursuant to the Initial TE Software Statement of Work (subject to any such changes) shall be referred to herein as the “ TiVo Experience Software Development Fee .”

 

(f) For the avoidance of doubt, the TiVo Experience Software delivered by TiVo pursuant to the Initial TE Software Statement of Work [*] and pursuant to a Statement of Work mutually agreed to by the Parties.

 

(g) In the event that Comcast TE Acceptance has not occurred by the TE Acceptance Deadline and such failure is not the result of a Non-TiVo Delay, Comcast will have the right to terminate this Agreement pursuant to Section 23.1(e).

 

(h) TiVo acknowledges that the development and integration of the TiVo Experience Software will be a collaborative effort requiring performance by Comcast and Comcast Vendors in addition to TiVo. Accordingly, TiVo shall negotiate in good faith with Comcast Vendors to enter into cooperation agreements with such Comcast Vendors on commercially reasonable terms to govern their respective rights and obligations in connection with the development and integration of the TiVo Experience Software. In addition, TiVo shall use commercially reasonable efforts to ensure that any third party software (including, without limitation, [*]) that Comcast requires to be integrated on the Qualifying STBs shall fully function in conjunction with the TiVo Experience Software, in each case to the extent that such requirements were specified in the Initial TE Software Statement of Work or any subsequent Statement of Work relating to the TiVo Experience Software.

 

[*]	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.

 

17.

6.3 Notice and Effect of Delay.

 

(a) In any case where TiVo believes that a milestone date in a Statement of Work shall be extended or delayed pursuant to the provisions herein due to a delay directly attributable to any material action, inaction, or omission by Comcast, any Comcast Affiliate or any other Comcast Vendor (other than TiVo, TiVo Affiliates, or TiVo vendors) (each such case, a “ Non-TiVo Delay ”), TiVo shall (i) promptly document such delay, (ii) provide Comcast with prompt written notice (which shall in any event be delivered to Comcast [*]) of TiVo’s understanding regarding the reasons for such delay and the anticipated consequences of such delay (including whether such Non-TiVo Delay will cause TiVo to fail to achieve either the Comcast TIMS Acceptance by the TIMS Acceptance Deadline or Comcast TE Acceptance by the TE Acceptance Deadline) and (iii) [*]. In the event of any dispute regarding an extension or delay hereunder, the Parties shall first attempt to resolve such dispute pursuant to the dispute escalation procedures set forth in Section 33.

 

(b) In the event that [*] any Non-TiVo Delay has occurred, all remaining milestones will be extended on a day-for-day basis by the length of the Non-TiVo Delay. In addition, if a material Non-TiVo Delay causes TiVo to fail to achieve a payment milestone pursuant to a Statement of Work, Comcast shall pay to TiVo an amount equal to [*] had such milestone been achieved [*].

 

SECTION 7. ONGOING DEVELOPMENT.

 

7.1 Additional Development Work. Following the initial development of the TiVo Experience Software and/or TIMS Solution, TiVo will perform the following additional development work for Comcast throughout the Term, subject to Section 7.2 below regarding allocation of the cost of such development work:

 

(a) [*];

 

(b) [*]; and

 

(c) such other development work as Comcast may request, including development of new features and functionality and porting to and integration with additional software or hardware platforms.

 

7.2 Additional Statements of Work. The Parties will enter into additional Statements of Work to provide for the terms of any additional development work requested by Comcast. The cost of any such development work will be negotiated as part of the applicable Statement of Work, subject to the following:

 

(a) During the [*] following the [*] TiVo will commit to provide [*] development work [*]. For [*] thereafter during the Term, TiVo will provide [*] development work [*].

 

[*]	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.

 

18.

(b) For any development work requested by Comcast [*], the Parties will negotiate [*] and TiVo will own the deliverables resulting therefrom and Comcast will have a license thereto on the same terms as the license granted pursuant to Section 1.1 (with respect to development work relating to the TiVo Experience Software) and Section 1.2 (with respect to development work relating to the TIMS Solution). [*].

 

(c) In calculating the cost of development work for purposes of the foregoing Sections 7.2(a) and 7.2(b), [*].

 

(d) To the extent that TiVo’s commitment to perform development work pursuant to Section 7.2(a) [*]. Comcast will provide reasonable advance notice to TiVo regarding the extent and timing of any such development work to be requested.

 

7.3 TiVo Roadmap. Subject to TiVo’s confidentiality obligations, TiVo will keep Comcast apprised of, and consult with Comcast periodically concerning, TiVo’s product roadmap such that Comcast (i) can recommend desired features and functionality for inclusion in TiVo Products and (ii) will be aware of [*] to [*] in order to facilitate its request of Updates and Releases pursuant to Section 7.1.

 

7.4 Comcast Roadmap. Comcast will designate for TiVo, on an annual basis, the primary hardware/software platform on which Comcast expects to offer DVR Technology, Home Networking Technology or Media Center Technology to Comcast Subscribers during the following year and (i) if such platform does not already constitute a “Qualifying STB” and (ii) Comcast has the right to give TiVo access to such platform for porting of the TiVo Experience Software, TiVo will have the right to port the TiVo Experience Software to such platform [*], and Comcast will provide TiVo with information regarding the technical specifications of such platform and otherwise reasonably cooperate with TiVo in connection therewith.

 

7.5 Additional Development Obligations. In furtherance of the foregoing development obligations, TiVo will:

 

(a) use good faith efforts to design the initial TiVo Experience Software and TIMS Solution and all Updates and Releases to its DVR Technology, Home Networking Technology, Media Center Technology and Interactive Advertising Technology to ensure that it is technically feasible for TiVo to perform such development obligations in a cost-effective manner [*];

 

(b) use commercially reasonable efforts to continue to innovate and to continue its research and development efforts to enhance its products and technologies; and

 

(c) not knowingly design, develop or deploy DVR Technology, Home Networking Technology, Media Center Technology or Interactive Advertising Technology in a manner that is intended to circumvent TiVo’s obligations pursuant to this Agreement.

 

[*]	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.

 

19.

SECTION 8. CUSTOMER SUPPORT; COMCAST MAINTENANCE AND SUPPORT.

 

8.1 Customer Support. During the Term, [*] TiVo will provide Comcast with the customer support services for Comcast Subscribers described on Exhibit D. Except in the event of termination by TiVo for cause, following the Term, Comcast will have the right to purchase the same services on an ongoing basis [*].

 

8.2 Maintenance and Support.

 

(a) As a condition to each of Comcast TE Acceptance and Comcast TIMS Acceptance, the Parties will enter into a maintenance and support agreement for the TiVo Experience Software and TIMS Solution, respectively (each, a “ Maintenance and Support Agreement ”), providing for maintenance and support services substantially as described in Exhibit L [*].

 

(b) TiVo will provide the services described in Exhibit L in relation to any particular TiVo Release for [*]. Notwithstanding the foregoing, TiVo will support [*] of the TiVo Experience Software and TIMS Solution. Under no circumstances shall [*].

 

(c) Except in the event of termination by TiVo for cause, following the Term, Comcast will have the right to purchase the same services on an ongoing basis [*].

 

8.3 Documentation. TiVo will provide Comcast with all documentation created by TiVo from time-to-time that is reasonably necessary for the deployment, operation, maintenance and support of the TiVo Experience Software and TIMS Solution, including without limitation all documentation required to be created pursuant to the applicable Statement of Work. Except as set forth in the applicable Statement of Work, nothing in this Section 8.3 shall require TiVo to create any documentation not otherwise created in the ordinary course.

 

SECTION 9. ADVERTISING.

 

9.1 TIMS Solution Deployment . Following final Comcast acceptance of the initial TIMS Solution (“ Comcast TIMS Acceptance ”), Comcast will [*] make available the TIMS Solution in Qualifying Systems that serve [*] of the total number of Comcast Subscribers in all Qualifying Systems. [*]

 

9.2 Sale of Advertising . Comcast will have the [*] right to sell [*] advertising on Qualifying STBs [*] including any such advertising [*] except as expressly provided in this Section 9.

 

9.3 TiVo-enabled STBs . For so long as there are any Comcast TiVo Subscribers, TiVo will have the [*] subject to the limitations specified in Section 9.9. TiVo will [*] generated by it from the sale of TiVo Showcase Advertising on TiVo-enabled STBs.

 

[*]	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.

 

20.

9.4 [*] Advertising . Upon Comcast’s deployment of any Non-TiVo Qualifying STBs, TiVo will [*] in the form of Showcase Advertising on Non-TiVo Qualifying STBs, subject to the following:

 

(a) TiVo will [*] generated by TiVo from the sale of TiVo Showcase Advertising on Non-TiVo Qualifying STBs.

 

(b) The TiVo Showcase Advertising will be subject to the limitations specified in Section 9.9.

 

(c) TiVo’s right to sell TiVo Showcase Advertising on Non-TiVo Qualifying STBs shall terminate with respect to all Non-TiVo Qualifying STBs upon the earlier to occur of (x) Comcast [*], provided that, if Comcast subsequently [*], TiVo shall [*] have the right to sell TiVo Showcase Advertising on Non-TiVo Qualifying STBs, or (y) Comcast’s election, [*] prior written notice to TiVo, to proceed under either [*] Advertising or [*] Advertising as described in Sections 9.5 and 9.6, respectively, provided that Comcast shall be obligated to honor any legally binding, commercially reasonable commitments and obligations of TiVo in respect of the sale and delivery of TiVo Showcase Advertising on Non-TiVo Qualifying STBs existing at the time of such notice for a period [*] following the date of such notice [*]. By way of clarification, Comcast need [*], provided that Comcast gives TiVo the notice described in this Section 9.5 prior to Comcast’s deployment of any Non-TiVo Qualifying STBs, in which event Comcast [*].

 

9.5 [*] Advertising. Upon Comcast’s election to proceed under [*] Advertising pursuant to Section 9.4(c), Comcast shall [*], subject to the following:

 

(a) For each calendar month during [*] Advertising, Comcast will pay TiVo an amount (the “ [*] Monthly Advertising Fee ”) equal to [*]. If [*] Advertising commences during a calendar month, the initial [*] Monthly Advertising Fee will be adjusted by [*] over the period between the commencement of [*] Advertising and the end of the applicable month.

 

(b) Once Comcast elects to proceed under [*] Advertising, Comcast shall not have any right to return to [*] Advertising.

 

(c) The [*] Monthly Advertising Fee shall terminate upon the earlier to occur of (x) Comcast [*], provided that, if Comcast [*], Comcast shall [*] to TiVo of the [*] Monthly Advertising Fee, or (y) Comcast’s election, at any time [*] prior written notice to TiVo, to proceed under [*] Advertising.

 

9.6 [*] Advertising . Upon Comcast’s one-time election to proceed under [*] Advertising pursuant to Section 9.5(c), Comcast shall no longer be obligated to pay the [*] Monthly Advertising Fee, subject to the following:

 

(a) Comcast will continue to [*].

 

(b) Neither Party shall [*] obligations.

 

[*]	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.

 

21.

(c) Comcast shall pay TiVo [*] (the “[*]”), commencing on the [*] Commencement Date and continuing through the remainder of the Term, [*] after the [*] Commencement Date, which [*] shall increase [*] following [*] the [*] Commencement Date (provided that [*] whether or not Comcast has elected this [*] Advertising option).

 

(d) Once Comcast elects to proceed under [*] Advertising, Comcast shall not have any right to return to [*] Advertising or [*] Advertising.

 

9.7 Discontinuation of TIMS Solution . If, at any time during [*] Advertising or [*] Advertising, Comcast discontinues deployment of the TIMS Solution or any applicable Alternate Advertising Product on Non-TiVo Qualifying STBs [*], TiVo will cease selling any TiVo Showcase Advertising on such Non-TiVo Qualifying STBs [*] and Comcast will not have any [*]. Any such discontinuation of deployment of the TIMS Solution will not affect TiVo’s right to sell TiVo Showcase Advertising on TiVo-enabled STBs in accordance with Section 9.3.

 

9.8 Alternate Advertising Products . If Comcast TIMS Acceptance has occurred and Comcast deploys an alternate advertising product other than the TIMS Solution to Non-TiVo Qualifying STBs which has [*] (an “Alternate Advertising Product”), TiVo will have the right to sell TiVo Showcase Advertising using such Alternate Advertising Product. If TiVo exercises such right, the terms under which TiVo will be allowed to sell TiVo Showcase Advertising will be the same as if such advertising were enabled by the TIMS Solution. TiVo will be responsible for all development work necessary to enable its TiVo Showcase Advertising to function with such Alternate Advertising Product [*]. Comcast’s election to deploy an Alternate Advertising Product shall not affect TiVo’s right to sell TiVo Showcase Advertising on TiVo-enabled STBs in accordance with Section 9.3.

 

9.9 Additional Limitations. In addition to the limitations on its sale of advertising as specified elsewhere in this Section 9, TiVo Showcase Advertising will be limited as follows:

 

(a) TiVo will [*] with respect to each TiVo-enabled STB and, during [*] Advertising, with respect to each Non-TiVo Qualifying STB for its TiVo Showcase Advertising.

 

(b) Comcast will not be required to [*].

 

(c) The quality of the video comprising the TiVo Showcase Advertising will be at least equal to the video quality of [*] programming available on Comcast’s then-current [*].

 

(d) All TiVo Showcase Advertising will consist solely of Permitted Advertising.

 

(e) At all times during which TiVo has the right to sell TiVo Showcase Advertising, TiVo will be permitted to sell TiVo Showcase Advertising to [*].

 

[*]	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.

 

22.

(f) TiVo will only be permitted to sell TiVo Showcase Advertising to [*] on the following terms and conditions:

 

(i) From the date of Comcast’s initial commercial deployment of the TIMS Solution following Comcast TIMS Acceptance until [*] of such initial commercial deployment, TiVo will be permitted to sell TiVo Showcase Advertising to [*], provided that (A) such TiVo Showcase Advertising (x) [*], (y) [*], and (z) is not for any [*], and (B) Comcast shall only be required to display TiVo Showcase Advertising for any particular [*].

 

(ii) Commencing no later than [*] of Comcast’s [*] of the TIMS Solution, the Parties will commence negotiations with respect to the terms and conditions on which TiVo may [*]. If the Parties cannot reach agreement [*], then from and after [*]. TiVo will [*]. Comcast will [*] for any such [*], provided that if Comcast does [*] of any such [*] within [*], Comcast will be [*]. [*].

 

(g) TiVo will reasonably cooperate with Comcast’s advertising personnel in connection with TiVo’s sale of TiVo Showcase Advertising.

 

(h) TiVo will be