Common use of Usage Rules Clause in Contracts

Usage Rules. The License granted herein shall be subject to the “Usage Rules” set forth in this Section 2.2.4. Upon consummation by a Subscriber of a Subscriber Transaction for an Included Program during such Included Program’s License Period, the following Usage Rules shall apply: The Included Program shall be viewable via any Set-Top Box or PC Tuner registered to such Subscriber’s account and, subject to Sections 2.2.4.2 and 2.2.4.3 below, via no more than a combined total of five (5) Portable Devices and/or PCs taken together (e.g., 3 Portable Devices and 2 PCs, or 1 Portable Device and 4 PCs, or 5 Portable Devices and no PCs, etc.). Licensee represents and warrants that the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date have authorized Licensee to authorize their respective programs to be viewable on, for the payment of a single per-transaction fee by the Subscriber, a combined total of five (5) or more PCs and Portable Devices registered to such Subscriber’s account in addition to the Set-Top Boxes and PC Tuners registered to such Subscriber’s account. Any transfers of an Included Program from a Target Device to a Portable Device or a PC shall be solely by means of Side Loading; provided, however, that Licensee may be authorized to authorize IP Transfers if Licensee implements either (i) a secure and commercially reasonable DRM solution with proximity controls that is approved in writing by Licensor (such approval not to be unreasonably withheld or delayed) or (ii) a version of Windows Media DRM containing such proximity controls when such version becomes commercially available. The Included Program shall be viewable only via Approved Devices registered to such Subscriber. Notwithstanding the foregoing, and without limiting any other provision of this Agreement, a PC and Portable Device receiving a transfer of an Included Program (directly or indirectly via a PC) from a PC Tuner need not be registered to such Subscriber’s account (provided that Licensee shall not advertise to Subscribers that such devices need not be registered) during a period commencing on the first full commercial deployment of the PC Tuner to Subscribers and ending on the earliest of (i) 12 months after the date on which Licensee receives the Microsoft PlayReady SDK suited for the PC Tuner; (ii) 12 months after the date on which the number of PC Tuners deployed to Subscribers exceeds 50,000, and (iii) a date on which Licensee enables the registration of PCs and Portable Devices receiving programming from the PC Tuner for all other Major Studios. Licensee represents and warrants the programming of the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date will be made available on the Licensed Service for delivery to a PC Tuner and for transfer from a PC Tuner to an unregistered device, consistent with the terms herein. Notwithstanding anything to the contrary contained herein, the Licensed Service may enable a Subscriber to take an independent action to record or download (collectively, “Record”) an Included Program on such Subscriber’s Approved Devices; provided, that, commencing on (a) the Effective Date with respect to Approved Devices other than Set-Top Boxes and (b) April 25, 2008 with respect to Set-Top Boxes only (the “STB Expiration Deadline”), any Included Program Recorded by such Subscriber on any Approved Device shall be deleted or rendered inaccessible from such Approved Device upon (i) with respect to Included Programs other than Library FOD Programs, twenty-four (24) hours after such Subscriber exhausts any Preview rights with respect to such Recorded Included Program, and (ii) with respect to Library FOD Programs, the end of such Included Program’s Library FOD License Period; provided, further that Licensor agrees to enforce the same auto-deletion policy on Other Providers so that Licensee is not competitively disadvantaged in a material way as against any Other Provider. Notwithstanding anything to the contrary contained herein, with respect to Pay-Per-View and Video-On-Demand exhibitions ordered by a Subscriber in advance via telephone or the Internet and Recorded by such Subscriber on a Set-Top Box, such Recorded Included Program shall be deleted or rendered inaccessible no later than 4:00 a.m. local time two days after the day of the initial Recording on such Set-Top Box. Notwithstanding anything to the contrary contained herein, Licensee represents and warrants and Licensor acknowledges that there are approximately (a) 130,000 standard definition first generation DIRECTV TIVO-integrated DVR Set-Top Boxes (“TIVO Set Top Boxes”) and (b) approximately 33,000 Microsoft Ultimate boxes (collectively, such boxes, “Legacy Boxes”) which are the only DVR-integrated Set-Top Boxes issued by Licensee technically incapable of complying with this Section 2.2.4.4. Licensor acknowledges that the failure of such Legacy Boxes to meet such requirement during the Term shall not be deemed a breach of this Agreement. Licensee represents and warrants that it will not issue any more Legacy Boxes after the date hereof. In addition, the parties acknowledge that Licensee will endeavor in good faith to obtain TIVO’s cooperation in the design of software necessary to enable TIVO Set-Top Boxes (other than the Legacy Boxes) to meet the foregoing deletion capabilities by the STB Expiration Deadline, provided that it is understood and agreed that (i) the foregoing capabilities will not be effective with respect to any Subscriber’s TIVO Set-Top Box until such Subscriber connects such Subscriber’s TIVO Set-Top Box to the Licensed Service after Licensee has implemented the enabling software and (ii) Subscriber’s failure so to connect his TIVO Set-Top Box to the Licensed Service shall not constitute a breach hereunder. Notwithstanding anything to the contrary contained herein, Licensee’s unintentional failure to meet the STB Expiration Deadline with respect to any of its Set-Top Boxes shall not be deemed a breach of this Agreement; provided that Licensee is using commercially reasonable efforts to remediate such failure, and such failure does not last on a material number of Set-Top Boxes for a cumulative period of over 12 months. In the event of a breach by Licensee of this Section 2.2.4.4, Licensor shall have the right to terminate this Agreement with respect to the affected platform(s), which termination shall be Licensor’s sole right and exclusive remedy with respect thereto.

Usage Rules. The License granted herein shall be subject to the “Usage Rules” set forth in this Section 2.2.4. Upon consummation by a Subscriber of a Subscriber Transaction for an Included Program during such Included Program’s License Period, the following Usage Rules shall apply: : 2.2.4.1 The Included Program shall be viewable via any Set-Top Box or PC Tuner registered to such Subscriber’s account and, subject to Sections 2.2.4.2 and 2.2.4.3 below, via no more than a combined total of five (5) Portable Devices and/or PCs taken together (e.g., 3 Portable Devices and 2 PCs, or 1 Portable Device and 4 PCs, or 5 Portable Devices and no PCs, etc.). Licensee represents and warrants that the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date have authorized Licensee to authorize their respective programs to be viewable on, for the payment of a single per-transaction fee by the Subscriber, a combined total of five (5) or more PCs and Portable Devices registered to such Subscriber’s account in addition to the Set-Top Boxes and PC Tuners registered to such Subscriber’s account. five 2.2.4.2 Any transfers of an Included Program from a Target Device to a Portable Device or a PC shall be solely by means of Side Loading; provided, however, that Licensee may be authorized to authorize IP Transfers if Licensee implements either (i) a secure and commercially reasonable DRM solution with proximity controls that is approved in writing by Licensor (such approval not to be unreasonably withheld or delayed) or (ii) a version of Windows Media DRM containing such proximity controls when such version becomes commercially available. . 2.2.4.3 The Included Program shall be viewable only via Approved Devices registered to such Subscriber. Notwithstanding the foregoing, and without limiting any other provision of this Agreement, a PC and Portable Device receiving a transfer of an Included Program (directly or indirectly via a PC) from a PC Tuner need not be registered to such Subscriber’s account (provided that Licensee shall not advertise to Subscribers that such devices need not be registered) during a period commencing on the first full commercial deployment of the PC Tuner to Subscribers and ending on the earliest of (i) 12 months after the date on which Licensee receives the Microsoft PlayReady SDK suited for the PC Tuner; (ii) 12 months after the date on which the number of PC Tuners deployed to Subscribers exceeds 50,000, and (iii) a date on which Licensee enables the registration of PCs and Portable Devices receiving programming from the PC Tuner for all other Major Studios. Licensee represents and warrants the programming of the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date will be made available on the Licensed Service for delivery to a PC Tuner and for transfer from a PC Tuner to an unregistered device, consistent with the terms herein. . 2.2.4.4 Notwithstanding anything to the contrary contained herein, the Licensed Service may enable a Subscriber to take an independent action to record or download (collectively, “Record”) an Included Program on such Subscriber’s Approved Devices; provided, that, commencing on (a) the Effective Date with respect to Approved Devices other than Set-Set- Top Boxes and (b) April 25, 2008 with respect to Set-Top Boxes only (the “STB Expiration Deadline”), any Included Program Recorded by such Subscriber on any Approved Device shall be deleted or rendered inaccessible from such Approved Device upon (i) with respect to Included Programs other than Library FOD Programs, twenty-twenty- four (24) hours after such Subscriber exhausts any Preview rights with respect to such Recorded Included Program, and (ii) with respect to Library FOD Programs, the end of such Included Program’s Library FOD License Period; provided, further that Licensor agrees to enforce the same auto-deletion policy on Other Providers so that Licensee is not competitively disadvantaged in a material way as against any Other Provider. Notwithstanding anything to the contrary contained herein, with respect to Pay-Per-Per- View and Video-On-Demand exhibitions ordered by a Subscriber in advance via telephone or the Internet and Recorded by such Subscriber on a Set-Top Box, such Recorded Included Program shall be deleted or rendered inaccessible no later than 4:00 a.m. 4:00 a. m. local time two days after the day of the initial Recording on such Set-Top Box. Notwithstanding anything to the contrary contained herein, Licensee represents and warrants and Licensor acknowledges that there are approximately (a) 130,000 standard definition first generation DIRECTV TIVO-integrated DVR Set-Top Boxes (“TIVO Set Top Boxes”) and (b) approximately 33,000 Microsoft Ultimate boxes (collectively, such boxes, “Legacy Boxes”) which are the only DVR-integrated Set-Top Boxes issued by Licensee technically incapable of complying with this Section 2.2.4.4. Licensor acknowledges that the failure of such Legacy Boxes to meet such requirement during the Term shall not be deemed a breach of this Agreement. Licensee represents and warrants that it will not issue any more Legacy Boxes after the date hereof. In addition, the parties acknowledge that Licensee will endeavor in good faith to obtain TIVO’s cooperation in the design of software necessary to enable TIVO Set-Top Boxes (other than the Legacy Boxes) to meet the foregoing deletion capabilities by the STB Expiration Deadline, provided that it is understood and agreed that (i) the foregoing capabilities will not be effective with respect to any Subscriber’s TIVO Set-Top Box until such Subscriber connects such Subscriber’s TIVO Set-Top Box to the Licensed Service after Licensee has implemented the enabling software and (ii) Subscriber’s failure so to connect his TIVO Set-Top Box to the Licensed Service shall not constitute a breach hereunder. Notwithstanding anything to the contrary contained herein, Licensee’s unintentional failure to meet the STB Expiration Deadline with respect to any of its Set-Top Boxes shall not be deemed a breach of this Agreement; provided that Licensee is using commercially reasonable efforts to remediate such failure, and such failure does not last on a material number of Set-Top Boxes for a cumulative period of over 12 months. In the event of a breach by Licensee of this Section 2.2.4.4, Licensor shall have the right to terminate this Agreement with respect to the affected platform(s), which termination shall be Licensor’s sole right and exclusive remedy with respect thereto2.2.4.

Usage Rules. The License granted herein Paragraph (xi) of Schedule D-2 (DHE Usage Rules) shall be subject to the “Usage Rules” set forth amended and restated in this Section 2.2.4. Upon consummation by a Subscriber of a Subscriber Transaction for an Included Program during such Included Program’s License Period, the following Usage Rules shall applyits entirety as follows: The Included Program DHE Service shall be viewable via any Set-Top Box or PC Tuner registered configured to such Subscriber’s account andmake available to a Customer (or, subject to Sections 2.2.4.2 and 2.2.4.3 belowas applicable, via Customer Account) no more than three (3) streams in the aggregate of any DHE Included Programs at any one time. Licensor and Licensee agree that this limitation to three (3) streams may changed by mutual written agreement between the parties, provided that such agreement shall include a combined total of mutually agreeable timeframe for any such change. Licensor acknowledges that Licensee’s system will not be effective in every instance as it is subject to server sync and replications delays (which generally will not exceed five (5) Portable Devices and/or PCs taken together (e.g., 3 Portable Devices and 2 PCs, or 1 Portable Device and 4 PCs, or 5 Portable Devices and no PCs, etc.minutes). While Licensee represents is not required under this Agreement to limit the number of concurrent streams that a Customer (or, as applicable, Customer Account) may receive across all DHE programs (from any content provider) on the DHE Service, the parties agree and warrants acknowledge that Licensee is currently imposing a cap of three (3) concurrent streams per Customer (or, as applicable, Customer Account) across all DHE programs (from any content provider) on the DHE Service. If Licensee chooses to increase the cap on concurrent streams across all DHE programs to more than three (3) per Customer (or, as applicable, Customer Account), Licensee shall use best efforts to notify Licensor prior to implementing such increase (but in any event, promptly after such increase is implemented) and shall deliver to Licensor a monthly report setting forth, on a Territory by Territory basis, the number of Customers (or, as applicable, Customer Accounts) which had four (4) concurrent streams at any time during the previous month, five (5) other Major Studios with whom Licensee has executed a license agreement as of concurrent streams at any time during the Effective Date have authorized Licensee to authorize their respective programs to be viewable previous month, and so on, for the payment of a single per-transaction fee by the Subscriber, a combined total of five (5) or more PCs and Portable Devices registered to such Subscriber’s account in addition up to the Set-Top Boxes and PC Tuners registered to such Subscriber’s account. Any transfers of an Included Program from a Target Device to a Portable Device or a PC shall be solely by means of Side Loading; provided, however, that Licensee may be authorized to authorize IP Transfers if Licensee implements either (i) a secure and commercially reasonable DRM solution with proximity controls that is approved in writing by Licensor (such approval not to be unreasonably withheld or delayed) or (ii) a version of Windows Media DRM containing such proximity controls when such version becomes commercially available. The Included Program shall be viewable only via Approved Devices registered to such Subscriber. Notwithstanding the foregoing, and without limiting any other provision of this Agreement, a PC and Portable Device receiving a transfer of an Included Program (directly or indirectly via a PC) from a PC Tuner need not be registered to such Subscriber’s account (provided that Licensee shall not advertise to Subscribers that such devices need not be registered) during a period commencing on the first full commercial deployment of the PC Tuner to Subscribers and ending on the earliest of (i) 12 months after the date on which Licensee receives the Microsoft PlayReady SDK suited for the PC Tuner; (ii) 12 months after the date on which the maximum number of PC Tuners deployed to Subscribers exceeds 50,000, and (iii) a date on which Licensee enables the registration of PCs and Portable Devices receiving programming from the PC Tuner for all other Major Studios. Licensee represents and warrants the programming of the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date will be made available on the Licensed Service for delivery to a PC Tuner and for transfer from a PC Tuner to an unregistered device, consistent with the terms herein. Notwithstanding anything to the contrary contained herein, the Licensed Service may enable a Subscriber to take an independent action to record or download (collectively, “Record”) an Included Program on such Subscriber’s Approved Devices; provided, that, commencing on (a) the Effective Date with respect to Approved Devices other than Set-Top Boxes and (b) April 25, 2008 with respect to Set-Top Boxes only (the “STB Expiration Deadline”), any Included Program Recorded concurrent streams then permitted by such Subscriber on any Approved Device shall be deleted or rendered inaccessible from such Approved Device upon (i) with respect to Included Programs other than Library FOD Programs, twenty-four (24) hours after such Subscriber exhausts any Preview rights with respect to such Recorded Included Program, and (ii) with respect to Library FOD Programs, the end of such Included Program’s Library FOD License Period; provided, further that Licensor agrees to enforce the same auto-deletion policy on Other Providers so that Licensee is not competitively disadvantaged in a material way as against any Other Provider. Notwithstanding anything to the contrary contained herein, with respect to Pay-Per-View and Video-On-Demand exhibitions ordered by a Subscriber in advance via telephone or the Internet and Recorded by such Subscriber on a Set-Top Box, such Recorded Included Program shall be deleted or rendered inaccessible no later than 4:00 a.m. local time two days after the day of the initial Recording on such Set-Top Box. Notwithstanding anything to the contrary contained herein, Licensee represents and warrants and Licensor acknowledges that there are approximately (a) 130,000 standard definition first generation DIRECTV TIVO-integrated DVR Set-Top Boxes (“TIVO Set Top Boxes”) and (b) approximately 33,000 Microsoft Ultimate boxes (collectively, such boxes, “Legacy Boxes”) which are the only DVR-integrated Set-Top Boxes issued by Licensee technically incapable of complying with this Section 2.2.4.4. Licensor acknowledges that the failure of such Legacy Boxes to meet such requirement during the Term shall not be deemed a breach of this Agreement. Licensee represents and warrants that it will not issue any more Legacy Boxes after the date hereof. In addition, the parties acknowledge that Licensee will endeavor in good faith to obtain TIVO’s cooperation in the design of software necessary to enable TIVO Set-Top Boxes (other than the Legacy Boxes) to meet the foregoing deletion capabilities by the STB Expiration Deadline, provided that it is understood and agreed that (i) the foregoing capabilities will not be effective with respect to any Subscriber’s TIVO Set-Top Box until such Subscriber connects such Subscriber’s TIVO Set-Top Box to the Licensed Service after Licensee has implemented the enabling software and (ii) Subscriber’s failure so to connect his TIVO Set-Top Box to the Licensed Service shall not constitute a breach hereunder. Notwithstanding anything to the contrary contained herein, Licensee’s unintentional failure to meet the STB Expiration Deadline with respect to any of its Set-Top Boxes shall not be deemed a breach of this Agreement; provided that Licensee is using commercially reasonable efforts to remediate such failure, and such failure does not last on a material number of Set-Top Boxes for a cumulative period of over 12 months. In the event of a breach by Licensee of this Section 2.2.4.4, Licensor shall have the right to terminate this Agreement with respect to the affected platform(s), which termination shall be Licensor’s sole right and exclusive remedy with respect thereto.

Usage Rules. The License granted herein shall be subject to the “Usage Rules” set forth in this Section 2.2.4. Upon consummation by a Subscriber of a Subscriber Transaction for an Included Program during such Included Program’s License Period, the following Usage Rules shall apply: : 2.2.4.1 The Included Program shall be viewable via any Set-Top Box or PC Tuner registered to such Subscriber’s account and, subject to Sections 2.2.4.2 and 2.2.4.3 below, via no more than a combined total of five (5) Portable Devices and/or PCs taken together (e.g., 3 Portable Devices and 2 PCs, or 1 Portable Device and 4 PCs, or 5 Portable Devices and no PCs, etc.). Licensee represents and warrants that the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date have authorized Licensee to authorize their respective programs to be viewable on, for the payment of a single per-transaction fee by the Subscriber, a combined total of five (5) or more PCs and Portable Devices registered to such Subscriber’s account in addition to the Set-Top Boxes and PC Tuners registered to such Subscriber’s account. five 2.2.4.2 Any transfers of an Included Program from a Target Device to a Portable Device or a PC shall be solely by means of Side Loading; provided, however, that Licensee may be authorized to authorize IP Transfers if Licensee implements either (i) a secure and commercially reasonable DRM solution with proximity controls that is approved in writing by Licensor (such approval not to be unreasonably withheld or delayed) or (ii) a version of Windows Media DRM containing such proximity controls when such version becomes commercially available. . 2.2.4.3 The Included Program shall be viewable only via Approved Devices registered to such Subscriber. Notwithstanding the foregoing, and without limiting any other provision of this Agreement, a PC and Portable Device receiving a transfer of an Included Program (directly or indirectly via a PC) from a PC Tuner need not be registered to such Subscriber’s account (provided that Licensee shall not advertise to Subscribers that such devices need not be registered) during a period commencing on the first full commercial deployment of the PC Tuner to Subscribers and ending on the earliest of (i) 12 months after the date on which Licensee receives the Microsoft PlayReady SDK suited for the PC Tuner; (ii) 12 months after the date on which the number of PC Tuners deployed to Subscribers exceeds 50,000, and (iii) a date on which Licensee enables the registration of PCs and Portable Devices receiving programming from the PC Tuner for all other Major Studios. Licensee represents and warrants the programming of the five (5) other Major Studios with whom Licensee has executed a license agreement as of the Effective Date will be made available on the Licensed Service for delivery to a PC Tuner and for transfer from a PC Tuner to an unregistered device, consistent with the terms herein. registration 2.2.4.4 Notwithstanding anything to the contrary contained herein, the Licensed Service may enable a Subscriber to take an independent action to record or download (collectively, “Record”) an Included Program on such Subscriber’s Approved Devices; provided, that, commencing on (a) the Effective Date with respect to Approved Devices other than Set-Set- Top Boxes and (b) April 25, 2008 with respect to Set-Top Boxes only (the “STB Expiration Deadline”), any Included Program Recorded by such Subscriber on any Approved Device shall be deleted or rendered inaccessible from such Approved Device upon (i) with respect to Included Programs other than Library FOD Programs, twenty-twenty- four (24) hours after such Subscriber exhausts any Preview rights with respect to such Recorded Included Program, and (ii) with respect to Library FOD Programs, the end of such Included Program’s Library FOD License Period; provided, further that Licensor agrees to enforce the same auto-deletion policy on Other Providers so that Licensee is not competitively disadvantaged in a material way as against any Other Provider. Notwithstanding anything to the contrary contained herein, with respect to Pay-Per-Per- View and Video-On-Demand exhibitions ordered by a Subscriber in advance via telephone or the Internet and Recorded by such Subscriber on a Set-Top Box, such Recorded Included Program shall be deleted or rendered inaccessible no later than 4:00 a.m. 4:00 a. m. local time two days after the day of the initial Recording on such Set-Top Box. Notwithstanding anything to the contrary contained herein, Licensee represents and warrants and Licensor acknowledges that there are approximately (a) 130,000 standard definition first generation DIRECTV TIVO-integrated DVR Set-Top Boxes (“TIVO Set Top Boxes”) and (b) approximately 33,000 Microsoft Ultimate boxes (collectively, such boxes, “Legacy Boxes”) which are the only DVR-integrated Set-Top Boxes issued by Licensee technically incapable of complying with this Section 2.2.4.4. Licensor acknowledges that the failure of such Legacy Boxes to meet such requirement during the Term shall not be deemed a breach of this Agreement. Licensee represents and warrants that it will not issue any more Legacy Boxes after the date hereof. In addition, the parties acknowledge that Licensee will endeavor in good faith to obtain TIVO’s cooperation in the design of software necessary to enable TIVO Set-Top Boxes (other than the Legacy Boxes) to meet the foregoing deletion capabilities by the STB Expiration Deadline, provided that it is understood and agreed that (i) the foregoing capabilities will not be effective with respect to any Subscriber’s TIVO Set-Top Box until such Subscriber connects such Subscriber’s TIVO Set-Top Box to the Licensed Service after Licensee has implemented the enabling software and (ii) Subscriber’s failure so to connect his TIVO Set-Top Box to the Licensed Service shall not constitute a breach hereunder. Notwithstanding anything to the contrary contained herein, Licensee’s unintentional failure to meet the STB Expiration Deadline with respect to any of its Set-Top Boxes shall not be deemed a breach of this Agreement; provided that Licensee is using commercially reasonable efforts to remediate such failure, and such failure does not last on a material number of Set-Top Boxes for a cumulative period of over 12 months. In the event of a breach by Licensee of this Section 2.2.4.4, Licensor shall have the right to terminate this Agreement with respect to the affected platform(s), which termination shall be Licensor’s sole right and exclusive remedy with respect thereto2.2.4.

Usage Rules. The License granted herein Paragraph (xi) of Schedule D-2 (DHE Usage Rules) shall be subject to the “Usage Rules” set forth amended and restated in this Section 2.2.4. Upon consummation by a Subscriber of a Subscriber Transaction for an Included Program during such Included Program’s License Period, the following Usage Rules shall applyits entirety as follows: The Included Program DHE Service shall be viewable via any Set-Top Box or PC Tuner registered configured to such Subscriber’s account andmake available to a Customer (or, subject to Sections 2.2.4.2 and 2.2.4.3 belowas applicable, via Customer Account) no more than three (3) streams in the aggregate of any DHE Included Programs at any one time. Licensor and Licensee agree that this limitation to three (3) streams may changed by mutual written agreement between the parties, provided that such agreement shall include a combined total of mutually agreeable timeframe for any such change. Licensor acknowledges that Licensee’s system will not be effective in every instance as it is subject to server sync and replications delays (which generally will not exceed five (5) Portable Devices and/or PCs taken together minutes). While Licensee is not required under this Agreement to limit the number of concurrent streams that a Customer (e.g.or, 3 Portable Devices as applicable, Customer Account) may receive across all DHE programs (from any content provider) on the DHE Service, the parties agree and 2 PCsacknowledge that, or 1 Portable Device as of the Amendment Date, Licensee is imposing a cap of three (3) concurrent streams per Customer (or, as applicable, Customer Account) across all DHE programs (from any content provider) on the DHE Service. If at any time after the Amendment Date Licensee chooses to increase the cap on concurrent streams across all DHE programs to more than three (3) per Customer (or, as applicable, Customer Account), Licensee shall use best efforts to notify Licensor prior to implementing such increase (but in any event, Licensee shall notify Licensor promptly after such increase is implemented) and 4 PCsshall deliver to Licensor a monthly report setting forth, or 5 Portable Devices on a Territory by Territory basis, the number of Customers (or, as applicable, Customer Accounts) which had four (4) concurrent streams at any time during the previous month, five (5) concurrent streams at any time during the previous month, and no PCsso on, etc.)up to the maximum number of concurrent streams then permitted by Licensee. Licensee represents and warrants to Licensor that the five at least three (53) other Major Qualifying Studios with whom Licensee has executed a license agreement as of the Effective Date have authorized contractually agreed to DHE usage rules which do not require Licensee to authorize their respective programs to be viewable on, for the payment of a single per-transaction fee by the Subscriber, a combined total of five (5) or more PCs and Portable Devices registered to such Subscriber’s account in addition to the Set-Top Boxes and PC Tuners registered to such Subscriber’s account. Any transfers of an Included Program from a Target Device to a Portable Device or a PC shall be solely by means of Side Loading; provided, however, that Licensee may be authorized to authorize IP Transfers if Licensee implements either (i) a secure and commercially reasonable DRM solution with proximity controls that is approved in writing by Licensor (such approval not to be unreasonably withheld or delayed) or (ii) a version of Windows Media DRM containing such proximity controls when such version becomes commercially available. The Included Program shall be viewable only via Approved Devices registered to such Subscriber. Notwithstanding the foregoing, and without limiting any other provision of this Agreement, a PC and Portable Device receiving a transfer of an Included Program (directly or indirectly via a PC) from a PC Tuner need not be registered to such Subscriber’s account (provided that Licensee shall not advertise to Subscribers that such devices need not be registered) during a period commencing on the first full commercial deployment of the PC Tuner to Subscribers and ending on the earliest of (i) 12 months after the date on which Licensee receives the Microsoft PlayReady SDK suited for the PC Tuner; (ii) 12 months after the date on which limit the number of PC Tuners deployed to Subscribers exceeds 50,000concurrent streams per Customer (or, and as applicable, Customer Account) across all DHE programs (iiifrom any content provider) a date on which Licensee enables the registration of PCs and Portable Devices receiving programming from DHE Service. Without limiting the PC Tuner for all other Major Studios. Licensee represents and warrants the programming generality of the five (5) other Major Studios with whom “Fraud Prevention” section set forth above, Licensee has executed a license agreement as of the Effective Date will be made available on the Licensed Service shall use existing monitoring and fraud detection mechanisms for delivery to a PC Tuner and for transfer from a PC Tuner to an unregistered device, consistent detecting concurrent logins with the terms herein. Notwithstanding anything same credentials to the contrary contained herein, the Licensed Service may enable a Subscriber to take an independent action to record also monitor and detect unauthorized or download (collectively, “Record”) an Included Program on such Subscriber’s Approved Devices; provided, that, commencing on (a) the Effective Date with respect to Approved Devices other than Set-Top Boxes and (b) April 25, 2008 with respect to Set-Top Boxes only (the “STB Expiration Deadline”), any Included Program Recorded by such Subscriber on any Approved Device shall be deleted or rendered inaccessible from such Approved Device upon (i) with respect to Included Programs other than Library FOD Programs, twenty-four (24) hours after such Subscriber exhausts any Preview rights with respect to such Recorded Included Program, and (ii) with respect to Library FOD Programs, the end of such Included Program’s Library FOD License Period; provided, further that Licensor agrees to enforce the same auto-deletion policy on Other Providers so that Licensee is not competitively disadvantaged in a material way as against any Other Provider. Notwithstanding anything to the contrary contained herein, with respect to Pay-Per-View and Video-On-Demand exhibitions ordered by a Subscriber in advance via telephone or the Internet and Recorded by such Subscriber on a Set-Top Box, such Recorded Included Program shall be deleted or rendered inaccessible no later than 4:00 a.m. local time two days after the day of the initial Recording on such Set-Top Box. Notwithstanding anything to the contrary contained herein, Licensee represents and warrants and Licensor acknowledges that there are approximately (a) 130,000 standard definition first generation DIRECTV TIVO-integrated DVR Set-Top Boxes (“TIVO Set Top Boxes”) and (b) approximately 33,000 Microsoft Ultimate boxes (collectively, such boxes, “Legacy Boxes”) which are the only DVR-integrated Set-Top Boxes issued by Licensee technically incapable of complying with this Section 2.2.4.4. Licensor acknowledges that the failure of such Legacy Boxes to meet such requirement during the Term shall not be deemed a breach of this Agreement. Licensee represents and warrants that it will not issue any more Legacy Boxes after the date hereof. In addition, the parties acknowledge that Licensee will endeavor in good faith to obtain TIVO’s cooperation in the design of software necessary to enable TIVO Set-Top Boxes (other than the Legacy Boxes) to meet the foregoing deletion capabilities by the STB Expiration Deadline, provided that it is understood and agreed that (i) the foregoing capabilities will not be effective with respect to any Subscriber’s TIVO Set-Top Box until such Subscriber connects such Subscriber’s TIVO Set-Top Box to the Licensed Service after Licensee has implemented the enabling software and (ii) Subscriber’s failure so to connect his TIVO Set-Top Box to the Licensed Service shall not constitute a breach hereunder. Notwithstanding anything to the contrary contained herein, Licensee’s unintentional failure to meet the STB Expiration Deadline with respect to any of its Set-Top Boxes shall not be deemed a breach of this Agreement; provided that Licensee is using commercially reasonable efforts to remediate such failure, and such failure does not last on a material number of Set-Top Boxes for a cumulative period of over 12 months. In the event of a breach by Licensee of this Section 2.2.4.4, Licensor shall have the right to terminate this Agreement with respect to the affected platform(s), which termination shall be Licensor’s sole right and exclusive remedy with respect theretofraudulent concurrent stream use.