Broadband ITV v. OpenTV CA1/3

BACKGROUND

In 2006, OpenTV and Broadband entered into the Agreement, which granted OpenTV a license to use Broadband’s software; the software facilitates on-demand television viewing. OpenTV intended to develop the software, create derivative software, and distribute it to OpenTV customers. Section 3.2 of the Agreement (revenue share provision) states, “[Broadband] shall be entitled to a revenue share equal to [a percentage] of any Net Licensed Software Revenue actually received by OpenTV.” Under the Agreement, revenue is generated from license fees, royalties, revenue shares, and other amounts OpenTV receives from a customer that are “directly attributable” to OpenTV’s sale, license, or other distribution of the software. Section 8 of the Agreement (limitation of liability provision) states, “in no event shall either party be liable to the other party for any special, indirect or consequential loss or damages arising under this agreement.” (All caps. omitted.) The provision continues, “[i]n no event will the total liability of either party hereunder to the other party exceed, either individually or in the aggregate, the aggregate revenue share payments, if any, made by OpenTV…