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168
Chapter 9
17 Indemnity. YOU AGREE TO DEFEND, INDEMNIFY AND
HOLD HARMLESS TIVO FROM AND AGAINST ANY AND
ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES,
LOSSES, COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS’ FEES), INCLUDING, BUT NOT
LIMITED TO, CLAIMS ALLEGING NEGLIGENCE,
COPYRIGHT INFRINGEMENT AND/OR TRADEMARK
INFRINGEMENT AGAINST TIVO OR THE TIVO SERVICE,
RELATING TO OR ARISING OUT OF YOUR BREACH OF ANY
TERM OF THIS AGREEMENT, YOUR MISUSE OF THE TIVO
SERVICE, OR YOUR UNAUTHORIZED MODIFICATION OR
ALTERATION OF THE TIVO DVR OR RELATED SOFTWARE
(OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 16
(“OPEN SOURCE SOFTWARE”)).
18 Warranty Disclaimer. YOU UNDERSTAND AND AGREE
THAT THE TIVO SERVICE IS PROVIDED ON AN “AS IS” AND
“AS AVAILABLE” BASIS. TIVO MAKES NO WARRANTY
THAT THE TIVO SERVICE WILL MEET YOUR
REQUIREMENTS, ALLOW YOU TO RECORD OR VIEW ANY
PARTICULAR PROGRAMMING, OR THAT USE OF THE TIVO
SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR-FREE; NOR DOES TIVO MAKE ANY WARRANTY AS
TO THE ACCURACY OR RELIABILITY OF ANY
INFORMATION OBTAINED THROUGH THE TIVO SERVICE
(INCLUDING THIRD PARTY CONTENT), THAT ANY
DEFECTS IN THE TIVO SERVICE WILL BE CORRECTED OR
THAT THE TIVO DVR OR TIVO SERVICE WILL BE
COMPATIBLE WITH ANY OTHER SPECIFIC HARDWARE OR
SERVICE. FURTHER, TIVO DOES NOT WARRANT THAT THE
TIVO SERVICE OR THE TIVO SERVERS THAT PROVIDE YOU
WITH DATA AND CONTENT ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. YOU (AND NOT TIVO)
ASSUME THE ENTIRE COST OF ALL NECESSARY
MAINTENANCE, REPAIR OR CORRECTION. TIVO ALSO
ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE
LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY
INFECT YOUR TIVO DVR, TIVO SOFTWARE, OR OTHER
HARDWARE. TIVO AND ITS SUPPLIERS DISCLAIM ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, REGARDING THE TIVO SERVICE
OR TIVO SOFTWARE, INCLUDING ANY IMPLIED
WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF
THIRD PARTY RIGHTS. Because some jurisdictions do not permit
the exclusion of implied warranties, the last sentence of this section
may not apply to you.
19 Limitations of TiVo’s Liability. IN NO EVENT WILL TIVO OR
ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY
FOR ANY LOST PROFITS, USE OF USER INFORMATION,
LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER
INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL
DAMAGES OF ANY NATURE ARISING FROM OR RELATING
TO YOUR USE OF THE TIVO SERVICE OR USE OF THE TIVO
SERVICE THROUGH YOUR ACCOUNT BY ANYONE ELSE,
EVEN IF TIVO HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO CASE WILL TIVO'S TOTAL
CUMULATIVE LIABILITY TO YOU AND ANYONE WHO
USES THE TIVO SERVICE THROUGH YOUR ACCOUNT, FOR
ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW,
EXCEED THE AGGREGATE AMOUNT YOU PAID TO TIVO IN
THE PRECEDING TWELVE MONTHS. YOU UNDERSTAND
THAT THESE LIMITATIONS OF TIVO’S AND TIVO'S