SECOND AMENDED AND RESTATED SERVICES AGREEMENT

Exhibit 10.8

 

S ECOND A MENDED AND R ESTATED S ERVICES A GREEMENT

T HIS S ERVICES A GREEMENT , originally made and entered into as of February 15, 2002 (the “Effective Date” ), as amended by that First Amendment to the Services Agreement dated as of October 3, 2003 by and between T I V O I NC . , a Delaware corporation (“TiVo”) , and DIRECTV, I NC . , a California corporation (“DIRECTV”) , as amended and restated in full as of March 31, 2005 (the “First Restatement Effective Date”) and as amended by that First Amendment to the Amended and Restated Services Agreement dated as of April 7, 2006, that Second Amendment to the Amended and Restated Services Agreement dated as of July 25, 2007, and that Third Amendment to the Amended and Restated Services Agreement dated as of January 25, 2008, is hereby amended and restated in full as of September 2, 2008 (the “Second Restatement Effective Date” ). (As so amended and restated herein, the “Agreement.” )

R ECITALS

W HEREAS , TiVo has developed and commercially launched stand alone set-top receivers (the “Stand Alone Receivers” ) that allow consumers to receive the personalized television services provided by TiVo;

W HEREAS , the parties have developed and commercially launched a DIRECTV-TiVo combination receiver referred to as the “Reno Receiver”, and have entered into a Development Agreement dated February 15, 2002, as amended and restated (the “Development Agreement” ), relating to the development, production and marketing of additional DIRECTV-TiVo combination receivers referred to therein as the “Provo Receiver”, at DIRECTV’s option, a DIRECTV-TiVo combination receiver referred to therein as the “Two-Chip Receiver”, and a DIRECTV-TiVo combination receiver referred to therein as the “DIRECTV TE Receiver” (the Reno Receiver, Provo Receiver and Two-Chip Receiver are collectively referred to herein as “Legacy Combination Receivers” , and the Legacy Combination Receivers and the DIRECTV TE Receiver are collectively referred to herein as the “Combination Receivers” ); and

W HEREAS , the parties mutually desire that TiVo license the Authoring Tools (as defined herein) to DIRECTV for use in conjunction with the DIRECTV Service, as well as provide certain value-added services to DIRECTV.

N OW , T HEREFORE , in consideration of the foregoing and the mutual covenants, promises and undertakings set forth in this Agreement, the parties hereby agree as follows:

A GREEMENT

1. D EFINITIONS . The capitalized terms in this Agreement shall have the following meaning:

1.1 “Approved Lead Generation Functionality” shall mean each instance of Lead Generation and Submission Functionality that has been approved by DIRECTV for distribution to the Combination Receivers, in accordance with Exhibit C.

1.2 “Authoring Tools” shall be the tools set forth in Exhibit A, any updates or upgrades thereto, and any other tools provided by TiVo to DIRECTV that permit authoring of promotional or advertising content or functionality for TiVo Receivers.

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1.3 “Central Promotion” shall mean content ( e.g. , text with a gold star graphical element) that is placed in the Combination Receiver main menu ( e.g., DIRECTV Central) to promote a Showcase and which may be selected by the end user to display such Showcase.

1.4 “First Amendment Effective Date” means April 7, 2006.

1.5 “i-Preview Tags” shall mean software tags inserted into line 21 of the vertical blanking interval ( “VBI” ), or any digital equivalent (including, without limitation, EIA-708-B data) of broadcast or cable television video signals using the Authoring Tools to cause TiVo Receivers to display user interface elements superimposed over video content where such user interface elements may be selected by the end user of a TiVo Receiver to schedule recordings or display Showcases.

1.6 “Lead Generation and Submission Functionality” shall mean any content or functionality created using the Authoring Tools that requires the customer to initiate a process whereby customer information (e.g., customer address or credit card) is used to provide the customer with a product, service, information, or inclusion in a promotional mailing list.

1.7 “Launch Period” shall mean the 18 month period beginning on the Program Placement Launch Date.

1.8 [*]

1.9 “Program Placement” means TiVoVision accessed from a dialog screen within a Combination Receiver’s user interface at the conclusion of a recorded program.

1.10 “Program Placement Launch Date” means June 14, 2008.

1.11 “Second Amendment Effective Date” means July 25, 2007.

1.12 “Showcases” shall mean any user interface elements created using the Authoring Tools that may be selected, accessed or viewed by the end user of a TiVo Receiver and that are used for promotional or advertising purposes, including, without limitation, the display of images and/or text, playback of video and/or audio clips, Lead Generation and Submission Functionality, and functionality to schedule promoted recordings, subscribe to services or purchase products.

1.13 “TiVo Receiver” shall mean any Stand Alone Receiver or any Combination Receiver.

1.14 “TiVoVision” shall mean any promotional and advertising content or functionality for TiVo Receivers that is created using the Authoring Tools other than i-Preview Tags, including, without limitation, Showcases and Lead Generation and Submission Functionality.

Unless otherwise defined herein, capitalized terms shall have the respective meanings as defined in the Development Agreement.

2. L ICENSE G RANTS ; C OMMERCIAL U SE .

2.1 License Grant. Subject to the terms and conditions of this Agreement, TiVo grants to DIRECTV a nontransferable (except as set forth in Section 13.4 (Successors; Assigns)) license to internally use, perform, display and reproduce (or to engage a third party to do any of the foregoing on behalf of DIRECTV) the Authoring Tools solely to exercise its rights set forth in this Section 2.

 

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2.2

i-Preview.

(a) DIRECTV’s Commercial Use. DIRECTV may use the Authoring Tools to create and distribute i-Preview Tags to end users of Combination Receivers (such use, “DIRECTV’s i-Preview Use” ). Any revenues actually received by DIRECTV resulting from DIRECTV’s i-Preview Use will be retained by DIRECTV solely and will not be subject to a revenue share with TiVo.

(b) TiVo’s Commercial Use . DIRECTV grants TiVo the right to distribute i-Preview Tags to Combination Receivers (such use, as restricted below, “TiVo’s i-Preview Use”); provided, however, that TiVo may not distribute to Combination Receivers any i-Preview Tag which [*] . Any revenues actually received by TiVo resulting from TiVo’s i-Preview Use will be retained by TiVo solely and will not be subject to a revenue share with DIRECTV. TiVo may sublicense the above rights to any licensee of the Authoring Tools [*] .

(c) TiVo i-Preview Tag Reports. TiVo shall [*] , provide DIRECTV with notice of any i-Preview Tags inserted into television commercials by TiVo, indicating the content/type of tag, the type of product or service advertised, and proposed location of any graphical elements that will appear within such television commercial. DIRECTV will [*] notify TiVo [*] .

(d) DIRECTV i-Preview Pass Through Obligation. DIRECTV shall pass through i-Preview Tags via line 21 of the VBI, or via any digital equivalent (including, without limitation, EIA-708-B data) without any restriction, modification, alteration or other interference by DIRECTV, provided no action is required by DIRECTV to pass through such i-Preview Tags ( i.e. , DIRECTV passes (or reconstitutes) information received via line 21 of the VBI, or via such digital equivalent, in its regular course of business, without modification) [*] .

 

2.3

TiVoVision.

(a) DIRECTV’s TiVoVision Use. DIRECTV may use the Authoring Tools to create and distribute TiVoVision to Combination Receivers (such use, “ DIRECTV’s TiVoVision Use ”); provided, however , that DIRECTV may not use the Authoring Tools to create or distribute Program Placements for Legacy Combination Receivers until the expiration of the Launch Period. For clarity, DIRECTV may use the Authoring Tools to create or distribute Program Placements for DIRECTV TE Receivers at such time as DIRECTV determines and without further agreement required by TiVo. Any revenue actually received by DIRECTV resulting from DIRECTV’s TiVoVision Use will be retained by DIRECTV solely and will not be subject to a revenue share with TiVo.

(b) TiVo’s TiVoVision Use. DIRECTV grants TiVo the right to distribute TiVoVision to Combination Receivers (such use, “ TiVo’s TiVoVision Use ”); provided, however, that TiVo may not distribute to Combination Receivers any TiVoVision which (i)  [*] , (ii)  [*] , (iii) is rejected by DIRECTV pursuant to DIRECTV’s editorial review rights described in Section 6.3(a), (iv) includes any Lead Generation and Submission Functionality that is not an instance of Approved Lead Generation Functionality, or (v) will negatively impact the business relationship between DIRECTV and a third party [*] , is participating in [*] , or is a [*] to DIRECTV. For purposes of clarification, the fact that DIRECTV is or may be negotiating with a third party to create or distribute TiVoVision for such third party (programmer or other) shall not be deemed to create such negative impact. Notwithstanding the foregoing, if after the Commercial TE Launch (as defined in the Development Agreement) TiVo desires

 

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to use TiVoVision to distribute advertising regarding the DIRECTV TE Receivers to Legacy Combination Receivers, DIRECTV will not withhold or delay consent to such distribution, provided that [*] and TiVo and DIRECTV agree upon reasonable limits on the timing and frequency of such advertising (as appropriate, depending upon the customer call to action) to [*] . Any revenues actually received by TiVo resulting from TiVo’s TiVoVision Use will be retained by TiVo solely and will not be subject to a revenue share with DIRECTV. During the Term, DIRECTV will provide TiVo with contact information for (i) a DIRECTV employee or contractor responsible for the network connections and ticker servers at DIRECTV that are used to distribute TiVoVision to Combination Receivers via satellite broadcast and (ii) a DIRECTV employee to whom issues may be escalated. In the event of any change in such contact information or assigned personnel, DIRECTV will promptly update TiVo with new contact information for the assigned personnel.

(c) TiVo’s Hard Disk Allocation; Program Placement Allocation. DIRECTV shall allocate for TiVo’s TiVoVision Use in each Legacy Combination Receiver the greater of (i)  [*] in such Legacy Combination Receiver (assuming use of the best recording quality setting for such Legacy Combination Receiver) without regard to the standards or technology employed by or used in such Legacy Combination Receiver; or (ii)  [*] in such Legacy Combination Receiver. DIRECTV shall allocate for TiVo’s TiVoVision Use in each DIRECTV TE Receiver [*] and, if DIRECTV extends the Term of the Development Agreement pursuant to Section 9.1 thereof, DIRECTV shall allocate for TiVo’s TiVoVision Use in each DIRECTV TE Receiver [*] . The hard disk allocation set forth above shall be referred to as the “ TiVo Hard Disk Allocation ” for each such Combination Receiver.

(i) In addition to the TiVo Hard Disk Allocation, [*] DIRECTV shall allocate in each Combination Receiver [*] in such Combination Receiver (assuming use of the best recording quality setting for such Combination Receiver) without regard to the standards or technology employed by or used in such Combination Receiver. Such additional allocation shall be referred to as the “ Program Placement Allocation ” for each such Combination Receiver. Without limiting TiVo’s right to distribute TiVoVision (including, but not limited to, distribution of Program Placements) to the Hard Disk Allocation of each Combination Receiver, during the Launch Period, the Program Placement Allocation will be allocated for TiVo’s distribution of Program Placements to Combination Receivers subject to the terms, conditions and restrictions applicable to TiVo’s TiVoVision Use including, but not limited to, the terms, conditions and restrictions set forth in Section 2.3(b) above. Notwithstanding the foregoing, during the [*] (i) DIRECTV will [*] the Program Placement Allocation for TiVo’s use and (ii) subject to technical feasibility, DIRECTV and TiVo will use commercially reasonable efforts to make excess capacity within the Program Placement Allocation available for TiVo’s distribution of Program Placements solely to the extent that such excess capacity is not immaterial and is sufficiently persistent to provide commercial value. Except as expressly agreed by the parties in writing, all rights and obligations of the parties with respect to the Program Placement Allocation shall terminate at the expiration of the Launch Period.

(ii) DIRECTV shall use commercially reasonable efforts to avoid broadcasting any content that would overwrite or otherwise make unavailable any data (whether video clips, Showcases or otherwise) resulting from TiVo’s TiVoVision Use in the TiVo Hard Disk Allocation or from TiVo’s Program Placement Use in the Program Placement Allocation. Notwithstanding the foregoing, in the event that DIRECTV causes, or expects to cause, any such data to be overwritten on any Combination Receiver, DIRECTV shall use commercially reasonable efforts

 

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to broadcast or re-broadcast any such data to such Combination Receiver as soon as practicable. The parties shall work together in good faith to manage throughout the Term, a process whereby both parties are able to track the status of network hard disk capacity in fielded Combination Receivers in order to assist the reliable delivery and capture of content. Such process shall be used in connection with the management of the TiVo Hard Disk Allocation and Program Placement Allocation as described in this Section 2.3(c).

(d) Satellite Broadcast Time. DIRECTV shall allocate to TiVo [*] of simultaneous, system-wide broadcast time, solely for TiVo’s use in distributing any Showcase content that will be available from within a Showcase (but not content that is recorded through a user-initiated record object), to the reserved portion of hard disk space in Combination Receivers in connection with TiVo’s rights under this Agreement. DIRECTV shall provide such broadcast time [*] on a recurring schedule each week, and shall provide TiVo with reasonable advance notice of any changes in such schedule.

(e) Showcase Grid Placement. With respect to the “Showcase” grid of Legacy Combination Receivers, the Parties agree as follows: DIRECTV shall be entitled to use [*] cells [*] , within the [*] rows (each row is comprised of four cells), and TiVo shall be entitled to use [*] , within the [*] row. If DIRECTV requires more than [*] cells [*] , DIRECTV shall use [*] rows [*] . If TiVo requires more than [*] cells [*] and DIRECTV has occupied [*] rows [*] and no more, TiVo shall use the cells in the [*] row [*] for each additional cell required. If TiVo requires more than [*] cells above the fold and DIRECTV has occupied [*] cells [*] and additional cells [*] , TiVo shall use [*] cells following (adjacent to) the cells used by DIRECTV [*] . If DIRECTV is using less than [*] cells [*] , TiVo’s cells will move up such that TiVo’s cells will start immediately [*] DIRECTV’s last used cell. If TiVo is using less than [*] cells [*] and DIRECTV requires more than [*] cells [*] , DIRECTV shall use [*] cells in the [*] row, provided, however, that TiVo’s used cells are all [*] . For purposes of this Section 2.3(e), the “ [*] ” refers to the [*] . DIRECTV and TiVo will work together to determine the applicability of the foregoing Showcase grid allocation for purposes of the DIRECTV TE Receiver and to the extent the foregoing Showcase grid allocation is inapplicable, the parties will [*] inventory allocation [*] in a manner that permits the parties to share inventory [*] with the foregoing.

(f) Central Promotions; Other TiVoVision Inventory. Due to the limited number of times end users of Combination Receivers may [*] and to permit effective promotion of Showcases from the main menu, the parties agree to limit the number of Central Promotions to [*] , unless otherwise agreed. Notwithstanding anything to the contrary in this Agreement, each party may distribute no more than [*] Central Promotions [*] to any given group of Combination Receivers, unless otherwise agreed. If the [*] for other TiVoVision is constrained or limited at any particular time, the parties will allocate the available inventory [*] that permits the parties to share such inventory ( e.g. , by rotating inventory, allocating particular time periods, etc.) on [*] basis, consistent with [*] .

(g) DIRECTV Requests for Showcase Distribution to Stand Alone Receivers. With respect to any Showcase that DIRECTV plans to distribute to Combination Receivers under this Agreement, DIRECTV may request distribution of such Showcase to the Stand Alone Receivers by sending such request in writing to TiVo’s Director of Advertising Sales, with a copy to TiVo’s Advertising and Research Sales Manager, specifying the brand to be advertised, proposed start date and duration, and number of minutes of video content. TiVo will consider each such distribution request in !

 

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good faith and offer such distribution to DIRECTV unless TiVo reasonably determines that (i)  [*] ; or (ii)  [*] . TiVo will use reasonable efforts to respond to any such request [*] and will endeavor to respond [*] whenever possible. The response from TiVo will indicate whether TiVo will offer distribution of such Showcase to the Stand Alone Receivers and, if so, the terms and conditions for such distribution, including available start dates and fees for such distribution [*] . Notwithstanding anything to the contrary in the foregoing, any Showcase to be distributed to the Stand Alone Receivers pursuant to this Section 2.3(g) may be rejected by TiVo pursuant to TiVo’s editorial review rights described in Section 6.3(b).

(h) No False or Misleading Representations. TiVo shall use commercially reasonable efforts to see that its employees do not intentionally misrepresent TiVo’s rights to distribute TiVoVision to the Combination Receivers under this Agreement ( e.g. , TiVo will use commercially reasonable efforts to see that its employees do not represent that TiVo may distribute Showcases to Combination Receivers that [*] ). DIRECTV shall use commercially reasonable efforts to see that its employees do not intentionally misrepresent DIRECTV’s rights under this Agreement ( e.g. , DIRECTV will use commercially reasonable efforts to see that its employees do not represent that DIRECTV has the right to distribute Showcases to Stand Alone Receivers).

(i) Revenue Share for Program Placements. Notwithstanding anything in Section 2.3(b) to the contrary, during the Launch Period, TiVo will share revenue resulting from Program Placements distributed to the Program Placement Allocation of Combination Receivers as set forth on Exhibit D hereto. TiVo will pay DIRECTV such amounts quarterly by check or wire transfer with payment for a particular calendar quarter due 45 days after such calendar quarter. TiVo will include with such payment a report setting forth the Program Placements that were distributed during the applicable calendar quarter to the Program Placement Allocation and the Net Revenue (including a detailed list of all duties, taxes, expenses and commissions that were deducted from gross revenue to calculate Net Revenue, as defined in Exhibit D) associated therewith. The obligations set forth in this Section 2.3(i) will expire upon expiration of the Launch Period, except for outstanding payment obligations as of such date.

(j) Recordkeeping; Audit Rights. TiVo shall maintain books and records related to the revenue share set forth in Section 2.3(i) for no less than [*] after the Launch Period or such longer period as may be required by a timely noticed audit as provided herein. During the Launch Period and for [*] thereafter, DIRECTV shall have the right, at its cost, to appoint an independent auditor, agreed to by TiVo (not to be unreasonably withheld), on sixty (60) days’ advance written notice to TiVo, to examine at TiVo’s premises TiVo’s books and records that directly relate to the revenue share set forth in Section 2.3(i). Such examination right may be exercised once per twelve (12) months and once audited, books, records and revenue share payments for a given time period may not be subsequently reaudited. DIRECTV will ensure that such independent auditor conducts such examination during TiVo’s regular business hours and in a manner that does not unreasonably interfere with TiVo’s business activities. Such independent auditor will determine TiVo’s compliance with such payment obligations and report such determination in writing to each of TiVo and DIRECTV. If any such examination reveals a discrepancy in the amount actually paid to DIRECTV and the amount which should have been paid to DIRECTV, then (i) in the event of an overpayment by TiVo, DIRECTV shall promptly pay to TiVo the amount by which DIRECTV was overpaid, and (ii) in the event of any underpayment by TiVo, TiVo shall promptly pay to DIRECTV the amount by which DIRECTV was underpaid, plus interest on the amount of such underpayment at the rate of [*] or portion thereof (or, if lower, the maximum rate permitted by law), from the date on which such amount should have been paid to DIRECTV through the date on which payment

 

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of such underpayment is actually made to DIRECTV. If any such examination reveals an underpayment in excess of [*] of the amount which should have been paid to DIRECTV, then TiVo will pay DIRECTV’s reasonable out-of-pocket costs for the independent auditor provided that such costs do not exceed the amount of the underpayment.

2.4 License Restrictions. DIRECTV acknowledges and agrees that the Authoring Tools contain valuable trade secrets of TiVo, and, except as otherwise expressly provided herein, DIRECTV shall not, and shall not provide permission to any third party, to: (a) translate, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Authoring Tools; (b) sublicense, rent, lease, loan, timeshare, sell, distribute, assign or transfer any rights in, grant a security interest in, or transfer possession of any Authoring Tools; or (c) obfuscate, alter or remove any of TiVo’s copyright or other proprietary rights notices or legends appearing on or in the Authoring Tools.

2.5 Reservation of Rights; Ownership. Without limiting the rights granted to DIRECTV in Section 2.1 (License Grant), TiVo has and shall retain exclusive ownership of all of its right, title and interest in and to the Authoring Tools, and, other than the rights granted in Section 2.1, no other license, right, or interest is granted to DIRECTV by implication, estoppel, or otherwise, for any purpose.

2.6 Combination Receiver Software Capabilities . Notwithstanding anything to the contrary in this Agreement, in no event shall either party utilize i-Preview Tags or TiVoVision to invoke a new feature or functionality in any Combination Receiver unless and until such new feature or functionality (or any modification thereto) has been approved by the parties for use in such Combination Receiver in accordance with the Development Agreement. For purposes of clarification, all features and functionality available hereunder in the Legacy Combination Receivers as of the Second Restatement Effective Date are deemed approved for distribution to all Combination Receivers, provided that, in the case of DIRECTV TE Receivers, [*] has been approved or finalized pursuant to the Development Agreement.

3. U SAGE D ATA .

3.1 Ownership and Control of Usage Data. Following the transition of any current TiVo Service subscribers to DIRECTV pursuant to the Development Agreement, DIRECTV shall own and control all Combination Receiver usage data received or otherwise collected from the Combination Receivers. DIRECTV hereby grants TiVo the right to use [*] usage data [*] collected by TiVo from the Legacy Receivers and used to generate reports or services licensed or sold to third parties [*] (such [*] usage data, the “Usage Data” ), in accordance with this Section 3 (Usage Data). For clarity, in no event shall the Usage Data include [*] .

 

(a)

Subject to applicable Laws and the terms of the DIRECTV Privacy Policy (as such terms are defined below), DIRECTV shall allow TiVo to collect Usage Data directly from the Legacy Combination Receivers [*] . TiVo [*] its receipt or collection of the Usage Data from the Legacy Combination Receivers. To the extent any Usage Data from the Legacy Combination Receivers is in the possession of TiVo, TiVo agrees to transfer, provide and otherwise make available such Usage Data to DIRECTV in accordance with Section 6.2.

 

(b)

Subject to development and delivery by TiVo of the necessary software, tools and specifications required by DIRECTV [*] , all as outlined in the TE Statement of Work or a PCR thereto under the Development Agreement, including specifications for third party hardware and software, if

 

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any, required for such activities, DIRECTV shall provide the Usage Data from the DIRECTV TE Receivers to TiVo [*] , consistent with the [*] . At such time as the number of active TE Receivers [*] with collection by DIRECTV of all Usage Data from the TE Receivers, along with any [*] with storing, sorting or otherwise managing the Usage Data and [*] distribution of such Usage Data [*] (collectively, “TE Transmission Costs” ), provided, that, to the extent DIRECTV [*] uses such Usage Data in a [*] as collected and provided to TiVo hereunder, the parties [*] , reflecting such DIRECTV use. DIRECTV shall bill TiVo for the TE Transmission Costs on a monthly basis, with payment due within 45 days of receipt of invoice, or, at DIRECTV’s option, DIRECTV may offset the monthly TE Transmission Costs against amounts otherwise due to TiVo pursuant to the Development Agreement, with detail identifying such TE Transmission Costs amounts in the accompanying payment notice.

3.2 TiVo’s Use of Usage Data. Subject to Sections 3.1 and 3.4 of this Agreement, DIRECTV grants TiVo a non-transferable (except as set forth in Section 13.4 (Successors; Assigns)) license to use, perform, display, reproduce and create derivative works from, or to engage a third party to do any of the foregoing on behalf of TiVo, the Usage Data, provided, however that TiVo may not segregate out solely DIRECTV customers, uses, viewing patterns, programming or other data regarding services available exclusively to DIRECTV subscribers, e.g., NFL Sunday Ticket, or the Combination Receivers (as compared to all TiVo Receivers) (collectively, the “DIRECTV Sort Restriction” ), in each case subject to Laws (as defined below) and the then-current DIRECTV privacy policy applicable to Combination Receivers (the “DIRECTV Privacy Policy” ). It is understood and agreed that the use or presentation of data related solely to features that are unique to TiVo Receivers other than Combination Receivers shall not be deemed to be a violation of this Section 3.2.

3.3 DIRECTV Sale of Usage Data to Third Parties. DIRECTV owns all Usage Data, and as such, DIRECTV shall have the right to sell or license Usage Data to third parties subject to applicable Laws. Any revenue actually received by DIRECTV resulting from DIRECTV’s use of Usage Data received, derived or otherwise collected from the Combination Receivers will be retained by DIRECTV solely and will not be subject to a revenue share with TiVo.

3.4 TiVo’s Sale of Usage Data to Third Parties. Subject to the terms and conditions of Section 3.1 above, the DIRECTV Sort Restriction, applicable Laws, and the DIRECTV Privacy Policy (a current copy of which is attached hereto as Exhibit B, as amended from time to time), TiVo may offer to sell, sell, offer to license or license to any third party other than a DIRECTV competitor the Usage Data and any derivative work incorporating such Usage Data, provided that such data or derivative works shall in no event include Usage Data derived from “opt-in” panels or non-aggregated data reports. Any revenue actually received by TiVo resulting from TiVo’s use of Usage Data will be retained by TiVo solely and will not be subject to a revenue share with DIRECTV.

4. DIRECTV S ERVICES D ATA P ROTOCOL . The terms and conditions set forth in Exhibit E, attached hereto (DIRECTV Protocols and Agreements for Using Personally Identifiable Information), which is incorporated fully herein by this reference, apply to any Personal Data (as defined in Exhibit E) provided to TiVo or obtained by TiVo under this Agreement. Notwithstanding anything to the contrary in this Agreement, all Personally Identifiable Information (as defined in Exhibit E) provided or disclosed to TiVo by DIRECTV hereunder shall be subject to the provisions of Exhibit E. In the event there are any inconsistencies between this Agreement and Exhibit E, the terms and conditions of Exhibit E shall control.

 

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5. U SE OF E XISTING S ERVICES AND F UNCTIONALITIES .

5.1 Existing Marketing Agreement. With respect to the Marketing Agreement, dated April 13, 1999 (the “Marketing Agreement” ) DIRECTV and TiVo acknowledge that (i) DIRECTV’s bandwidth obligations under this Agreement superseded DIRECTV’s bandwidth obligations under the Marketing Agreement; and (ii) TiVo’s obligation to provide a Showcase to DIRECTV pursuant to the Marketing Agreement was superseded by the terms of this Agreement. Bandwidth made available under this Agreement by DIRECTV satisfied DIRECTV’s obligations under the Promissory Note referenced in the Marketing Agreement. DIRECTV and TiVo further acknowledge that the Marketing Agreement expired prior to the Second Restatement Effective Date, and in no event shall this Section 5.1 be interpreted to create any ongoing obligation or extension of the parties’ rights and obligations under the Marketing Agreement.

5.2 TiVo’s Use of Network Showcases and TiVolution Magazine. As of the First Restatement Effective Date, TiVo shall terminate the distribution and display of the Showcases commonly referred to by the parties as the “Auto-Generation Showcases” (i.e., those Showcases that are automatically generated and solely schedule recordings) and the “TiVolution Magazine” to Combination Receivers.

6. O THER C ONSIDERATIONS .

6.1 Technical Support.

(a) Technical Assistance. During the Term, TiVo shall provide to DIRECTV commercially reasonable training and technical assistance related to DIRECTV’s reasonable use of the most recent version of the Authoring Tools provided by TiVo to DIRECTV and use of TiVo’s server infrastructure, if applicable, in accordance with this Agreement. In furtherance and not in limitation of the foregoing, TiVo shall provide sufficient technical assistance regarding the then-current version of the Authoring Tools so that (i)  ![*] of notice from DIRECTV regarding a problem or issue with the Authoring Tools, the appropriate TiVo personnel are available to meet (in person or by phone, as appropriate) with DIRECTV to discuss in detail and provide initial evaluation of the problem or issue and (ii) TiVo shall further evaluate and define the scope of the issue or problem and use commercially reasonable efforts to provide potential solutions thereto within [*] after such initial meeting. Notwithstanding the foregoing, until the earlier of (x) the date when conditions are met to allow use of the most recent version of the Authoring Tools provided by TiVo to DIRECTV or (y)  [*] from the First Amendment Effective Date (the earlier of (x) or (y), the “EOL Date” ), TiVo shall instead provide to DIRECTV, [*] , such commercially reasonable training and technical assistance related to DIRECTV’s reasonable use of the version of Authoring Tools then in use by DIRECTV and use of TiVo’s server infrastructure, if applicable, in accordance with this Agreement. Following the EOL Date and for the remainder of the Term, at DIRECTV’s option, TiVo will provide such commercially reasonable training and technical assistance related to DIRECTV’s reasonable use of the version of Authoring Tools then in use by DIRECTV (if other than the most recent version of the Authoring Tools provided by TiVo to DIRECTV) and use of TiVo’s server infrastructure, if applicable, in accordance with this Agreement, and DIRECTV will pay TiVo for such training and technical assistance at the [*] within 30 days of receipt of an invoice from TiVo for such services.

(b) Upgrades to Authoring Tools. TiVo shall provide upgrades to the Authoring Tools which TiVo creates, if any, during the Term.

 

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6.2 Technical Support by TiVo for DIRECTV’s Use of Usage Data from Legacy Combination Receivers. At DIRECTV’s option, TiVo agrees to provide to DIRECTV commercially reasonable training, technical assistance and use of TiVo’s data collection, infrastructure and tools in accessing Usage Data from Legacy Combination Receivers at the [*] ; provided that, to the extent data requested by DIRECTV is already collected by TiVo and will require [*] to share such data with DIRECTV, TiVo shall do so [*] . Upon request, TiVo will provide DIRECTV with data reports from Legacy Combination Receivers [*] , consistent with past practices.

6.3 Editorial Review Rights.

(a) DIRECTV shall have the right to reasonably review and approve the factual accuracy and the creative content generated by TiVo or any third party providing content to TiVo for distribution to the Combination Receivers, including but not limited to Showcases and Lead Generation and Submission Functionality (collectively, the “TiVo Content” ). All TiVo Content shall comply with applicable Laws and comport with reasonable standards of good taste (consistent with the broadcast standards utilized by major broadcast television networks for commercial advertising, including standards applicable to advertising that is available during daytime hours), including without limitation, those relating to advertisements of material that would be considered objectionable to a reasonable DIRECTV customer, and further including without limitation, those relating to advertisements for drug-related paraphernalia, cigarettes and distilled spirits.

(b) TiVo shall have the right to reasonably review and approve the factual accuracy and the creative content generated by DIRECTV or any third party providing content to DIRECTV for distribution to the Stand Alone Receivers (including but not limited to Showcases and Lead Generation and Submission Functionality (collectively, the “DIRECTV Content” ). All DIRECTV Content shall comply with applicable Laws and comport with reasonable standards of good taste (consistent with the broadcast standards utilized by major broadcast television networks for commercial advertising, including standards applicable to advertising that is available during daytime hours), including without limitation, those relating to advertisements of material that would be considered objectionable to a reasonable TiVo customer, and further including without limitation, those relating to advertisements for drug-related paraphernalia, cigarettes and distilled spirits.

(c) DIRECTV and TiVo will cooperate to establish mutually agreeable editorial review procedures so as to enable each party to exercise its rights as contemplated by this Agreement.

6.4 User-Interface Modifications and Control. DIRECTV shall have the sole control over modifications to the user interface in the application of the TiVoVision functionality on the Combination Receivers for DIRECTV TiVoVision Use, and TiVo agrees to implement and manage such user interface modifications at TiVo’s then-current rates for such services; provided that any such modification does not require an upgrade to the then-current software version on any of the Combination Receivers (in which event the PCR process set forth in the Development Agreement shall apply for development of any such modification). The user interface presentation for the TiVoVision functionality on the Combination Receivers TiVo’s TiVoVision Use shall be substantially similar in nature and quality as that of DIRECTV use for similar content.

 

[*]	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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6.5 Publishing Instruction Report; Showcase Publishing Status Reports.

(a) Showcase Publishing Instruction Report. Commencing no later than [*] , DIRECTV shall provide to TiVo a “Publishing Instruction Report” to assist TiVo in planning the Showcase publishing activity and preparing the Showcase Publishing Status Report described below, with revised Publishing Instruction Reports to be provided by DIRECTV on a [*] basis no less than [*] prior to the start of the [*] described in the applicable Publishing Instruction Report. Each Publishing Instruction Report shall contain at a minimum the following information with respect to each DIRECTV-authored Showcase planned to be distributed during the [*] : (i) First and last day of distribution of each DIRECTV-authored Showcase planned to be distributed during the [*] ; (ii) Central Promotion text (if applicable) and associated distribution schedule; (iii) Position in Showcase grid of each DIRECTV-authored Showcase; (iv) Total video clip length per DIRECTV-authored Showcase; (v) the length of each individual video clip; and (vi) DIRECTV’s requirements (including frequency of delivery) for any DIRECTV-Authored Showcase Reports (as described below in Section 6.6).

(b) Showcase Publishing Status Reports. Commencing on the First Amendment Effective Date, TiVo shall create, maintain and provide to DIRECTV, no later than [*] prior to the start of the [*] described, a “Showcase Publishing Status Report” containing at a minimum the following information with respect to each TiVo-authored Showcase, and, beginning with receipt of the Showcase Publishing Instruction Report, also with respect to each DIRECTV-authored Showcase planned to be distributed during the [*] : (i) First and last day of distribution for each Showcase; (ii) DIRECTV Central Promotion text (if applicable) and associated distribution schedule; (iii) Position in Showcase grid of each Showcase; (iv) Total video clip length per Showcase, along with schedule and total video clip length of all Showcases to be distributed to the hard disk of Combination Receivers during the week; and (v) description of each new TiVo-authored Showcase sufficient to allow DIRECTV to develop customer service agent scripting to support in-bound inquiries from Combination Receiver customers relating to such TiVo-authored Showcases. DIRECTV shall provide any corrections or changes to the Publishing Status Report items prior to expiration of the [*] , and TiVo shall then make such corrections or changes prior to the distribution of such items to subscribers.

(c) DIRECTV TE Receivers. With respect to DIRECTV TE Receivers and/or new forms of TiVoVision advertising, the parties will coordinate and cooperate with respect to reporting and planning consistent with Sections 6.5 (a) and 6.5(b) above.

6.6 DIRECTV-Authored Showcase Reports.

(a) Reporting Obligations. Commencing with the First Amendment Effective Date and solely with respect to each DIRECTV-authored Showcase distributed during the Term, whenever DIRECTV-authored Showcases are distributed, TiVo shall provide DIRECTV with a basic report (the “DIRECTV-Authored Showcase Report” ) of the Usage Data capturing interactions of end users with each such DIRECTV-authored Showcase. A separate DIRECTV-Authored Showcase Report shall be provided for each DIRECTV-authored Showcase on such frequency as requested by DIRECTV pursuant to the Publishing Instruction Report, but in any event no more than a [*] basis per DIRECTV-Authored Showcase Report.

(b) Report Format. The format for a basic DIRECTV-Authored Showcase Report is presented in Attachment 1 to the First Amendment to this Agreement. DIRECTV acknowledges and agrees that TiVo may modify the form of such basic DIRECTV-Authored Showcase Report in TiVo’s sole discretion, so long as the information conveyed in the basic report is not materially reduced.

 

[*]	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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(c) Report Format Modification Requests. In the event DIRECTV wishes to receive a basic DIRECTV-Authored Showcase Report that differs from that defined in Attachment 1 to the First Amendment to this Agreement, DIRECTV shall request TiVo for such report; provided, however, if such modified report is created pursuant to the terms set forth herein, all subsequent DIRECTV-Authored Showcase Reports shall be in the modified form. DIRECTV shall be allowed to make such requests no more than [*] per calendar [*] . TiVo shall assess the costs associated with providing a report meeting with DIRECTV’s request. In the event that TiVo determines such costs will [*] , TiVo will create the modified DIRECTV-Authored Showcase Report on a timely basis. In the event that TiVo determines such costs will [*] , the parties will follow the processes set forth in Section 6.6(d) below.

(d) Custom Research. In the event DIRECTV or any third party wishes to receive from TiVo significantly more comprehensive DIRECTV-Authored Showcase Reports and/or additional research solely related to Usage Data (collectively, “Custom Research” ), DIRECTV shall contact, or may direct such third party to contact, TiVo. TiVo shall negotiate in good faith with DIRECTV or, solely if requested by DIRECTV, such third party (as the case may be) the terms and conditions pursuant to which TiVo would provide such Custom Research. TiVo shall pay DIRECTV [*] of any revenue actually received by TiVo resulting from TiVo’s sale of any Custom Research to any such third party and retain the remaining [*] of such revenue. TiVo shall not sell any Custom Research other than as set forth in the preceding sentence ( i.e. , only third parties which DIRECTV has requested or approved shall be permitted to purchase Custom Research from TiVo. For purposes of clarification, Custom Research does not include or incorporate any customer data received, derived or otherwise collected from the Stand Alone Receivers ( “Stand Alone Data” ), and TiVo, in its sole discretion, shall determine whether to provide Stand Alone Data (or any report or other document which includes or incorporates Standalone Data) to DIRECTV or any third party.

(e) Scope of Reporting Obligations. TiVo’s obligations under this Section 6.6 shall continue through the Term. This Section 6.6 comprises TiVo’s sole and entire reporting obligation with respect to Usage Data, other than as expressly set forth in Section 3.1 of this Agreement.

6.7 Lead Generation Files.

(a) DIRECTV grants TiVo a non-transferable (except as set forth in Section 13.4 (Successors; Assigns)) license to collect, use, perform (or to engage a third party to do any of the foregoing on behalf of TiVo), Lead Generation Responses on Legacy Combination Receivers. DIRECTV shall make available the DIRECTV customer information necessary for TiVo to fulfill Lead Generation Responses from Legacy Combination Receivers and to generate its own aggregate reports in connection therewith.

(b) DIRECTV shall notify TiVo no less than [*] prior to distributing any lead generation objects to Legacy Combination Receivers and provide TiVo with the following information: (i) the dates that DIRECTV will distribute such lead generation objects; (ii) the frequency with which (or the period for which) DIRECTV desires TiVo to collect and aggregate responses to lead generation objects ( e.g. , [*] ) into a lead generation file; and (iii) the person or persons DIRECTV designates to receive such lead generation file (which person shall be an employee of DIRECTV, and not a third party advertiser, “DIRECTV’s Lead Gen Recipient” ). TiVo shall use commercially reasonable efforts to deliver lead generation files in a mutually agreed format