excused, and TiVo shall have
no liability therefor, to the extent such non-performance is caused by (a) BBY's
breach of the Agreement, including any breach of this Non-DVR Addendum or the
Non-DVR Statement of Work, (b) TiVo's inability to use any BBY provided
Technology for use in connection with the Non-DVR Project, because of a material
failure of such BBY provided Technology, (c) BBY's failure to conduct or have
conducted repair on any component of any Covered Device, and/or (d) the failure
of any Deliverable to be provided by BBY, including any third party components
or materials that BBY is obligated to procure for the Non-DVR Project.
10. ADDITIONAL DISCLAIMERS. IN ADDITION TO ANY OTHER DISCLAIMERS SET FORTH IN
SECTION 9 OF THE AGREEMENT, TIVO DOES NOT REPRESENT OR WARRANT THAT THE
DELIVERABLES, INCLUDING THE NON-DVR MEDIA APPLICATION, AS WELL AS THE QUALITY
ASSURANCE, TESTING, AND SOFTWARE UPDATE SERVICES SET FORTH IN SECTION 5, WILL
OPERATE WITHOUT ANY FAILURE, INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT
ALL FAILURES OF THE DELIVERABLES OR THE SOFWARE UPDATES IN SECTION 5 TO CONFORM
TO THE SPECIFICATIONS AND OTHER REQUIREMENTS SET FORTH IN A NON-DVR STATEMENT OF
WORK CAN OR WILL BE CORRECTED. IN ADDITION, TIVO SHALL NOT BE HELD LIABLE FOR
ANY SUCH LIABILITY CAUSED BY ANY ACT, OMISSION OR TECHNOLOGY OF BBY OR ANY THIRD
PARTY ACTING AT THE DIRECTION OR THE BEHALF OF BBY IN CONNECTION WITH THE
DELIVERABLES OR THE SOFTWARE UPDATES TO BE PROVIDED TO THE COVERED DEVICES
PURSUANT TO SECTION 5.
11. LIMITATION OF LIABILITY.
11.1 EXCLUSION OF CERTAIN DAMAGES. WITH RESPECT TO ACTIVITIES UNDERTAKEN
PURSUANT TO THIS NON-DVR ADDENDUM AND NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 7
(INDEMNIFICATION) AND FOR BREACHES OF SECTIONS 2.3 (TIVO MARKS, BRANDING, AND
MARKETING COMMITMENT) AND 6 (INTELLECTUAL PROPERTY) OF THE NON-DVR ADDENDUM AND
FOR BREACHES OF SECTION 14 (CONFIDENTIAL INFORMATION) OF THE AGREEMENT, IN NO
EVENT WILL EITHER PARTY
10.
Exhibit 10.3
as filed with
10-Q
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
BE LIABLE UNDER THIS NON-DVR ADDENDUM UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL,
EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS, OTHER COMMERCIAL LOSS, OR COST OF
PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES), ARISING FROM OR RELATING TO
THIS NON-DVR ADDENDUM, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
11.2 LIMITATION OF DAMAGES. WITH RESPECT TO ACTIVITIES UNDERTAKEN PURSUANT TO
THIS NON-DVR ADDENDUM ONLY, [*], EACH PARTY'S CUMULATIVE LIABILITY ARISING FROM
OR RELATED TO THIS NON-DVR ADDENDUM (OTHER THAN FOR PAYMENT OF FEES OWED UNDER
THIS NON-DVR ADDENDUM), WHETHER IN CONTRACT OR TORT OR