THE OTHER PARTY FOR DAMAGES OR LOSSES (EXCEPT FOR
PAYMENT OBLIGATIONS) ON ACCOUNT OF FAILURE OF PERFORMANCE BY THE DEFAULTING
PARTY IF THE FAILURE IS OCCASIONED BY WAR, STRIKE, FIRE, ACT OF GOD, ACT OF
TERRORISM, EARTHQUAKE, FLOOD, LOCKOUT, EMBARGO, GOVERNMENTAL ACTS OR ORDERS OR
RESTRICTIONS, FAILURE OF SUPPLIERS, OR ANY OTHER REASON WHERE FAILURE TO PERFORM
IS BEYOND THE REASONABLE CONTROL AND NOT CAUSED BY THE NEGLIGENCE, INTENTIONAL
CONDUCT OR MISCONDUCT OF THE NON-PERFORMING PARTY AND SUCH PARTY HAS EXERTED ALL
REASONABLE EFFORTS TO AVOID OR REMEDY SUCH FORCE MAJEURE; PROVIDED, HOWEVER,
THAT IN NO EVENT SHALL A PARTY BE REQUIRED TO SETTLE ANY LABOR DISPUTE OR
DISTURBANCE.
Confidential
57
16.17
COMPLETE AGREEMENT.
THIS AGREEMENT WITH ITS EXHIBITS,
CONSTITUTES THE ENTIRE AGREEMENT, BOTH WRITTEN AND ORAL, BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND ALL PRIOR AGREEMENTS RESPECTING
THE SUBJECT MATTER HEREOF, EITHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, SHALL BE
ABROGATED, CANCELED, AND ARE NULL AND VOID AND OF NO EFFECT.
NO AMENDMENT OR
CHANGE HEREOF OR ADDITION HERETO SHALL BE EFFECTIVE OR BINDING ON EITHER OF THE
PARTIES HERETO UNLESS REDUCED TO WRITING AND EXECUTED BY THE RESPECTIVE DULY
AUTHORIZED REPRESENTATIVES OF SYMYX AND TDCC.
16.18
DISPUTE RESOLUTION.
ANY DISPUTE UNDER THIS AGREEMENT
THAT IS NOT SETTLED BY MUTUAL CONSENT SHALL BE FINALLY SETTLED BY BINDING
ARBITRATION, CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF
THE AMERICAN ARBITRATION ASSOCIATION BY THREE (3) NEUTRAL ARBITRATORS APPOINTED
IN ACCORDANCE WITH SAID RULES, UNLESS THE PARTIES AGREE TO CONDUCT SUCH
ARBITRATION WITH A SINGLE ARBITRATOR.
THE ARBITRATION SHALL BE HELD IN
WILMINGTON, DELAWARE, AND THE ARBITRATORS SHALL BE INDEPENDENT EXPERTS WITH A
BACKGROUND SUITABLE FOR THE MATTERS IN DISPUTE.
THE ARBITRATORS SHALL DETERMINE
WHAT DISCOVERY WILL BE PERMITTED, CONSISTENT WITH THE GOAL OF LIMITING THE COST
AND TIME WHICH THE PARTIES MUST EXPEND FOR DISCOVERY; PROVIDED THE ARBITRATORS
SHALL PERMIT SUCH DISCOVERY AS THEY DEEM NECESSARY TO PERMIT AN EQUITABLE
RESOLUTION OF THE DISPUTE.
ANY WRITTEN EVIDENCE ORIGINALLY IN A LANGUAGE OTHER
THAN ENGLISH SHALL BE SUBMITTED IN ENGLISH TRANSLATION ACCOMPANIED BY THE
ORIGINAL AND A TRUE COPY THEREOF.
THE COSTS OF ARBITRATION, INCLUDING
ADMINISTRATIVE AND ARBITRATORS' FEES, SHALL BE SHARED EQUALLY BY THE PARTIES.
EACH PARTY SHALL BEAR ITS OWN COSTS AND ATTORNEYS' AND WITNESS' FEES.
A
DISPUTED PERFORMANCE OR SUSPENDED PERFORMANCES PENDING THE RESOLUTION OF THE
ARBITRATION MUST BE COMPLETED WITHIN * FOLLOWING THE FINAL DECISION OF THE
ARBITRATORS OR SUCH OTHER REASONABLE PERIOD AS THE ARBITRATORS DETERMINE IN A
WRITTEN OPINION.
ANY ARBITRATION SUBJECT TO THIS SECTION 16.18 SHALL BE
COMPLETED WITHIN * FROM THE FILING OF NOTICE OF A REQUEST FOR SUCH ARBITRATION.
THE AWARD SHALL BE FINAL AND BINDING UPON THE PARTIES HERETO.
JUDGMENT UPON ANY
DECISION RENDERED BY THE ARBITRATORS MAY BE ENTERED BY ANY COURT HAVING
JURISDICTION. WITHIN * OF THE COMMENCEMENT OF AN ARBITRATION PROCEEDING, THE
PARTIES SHALL AGREE UPON A TIMETABLE TO CONDUCT AND COMPLETE SUCH PROCEEDING
WITHIN THE * PERIOD AS SPECIFIED ABOVE.
16.19
TDCC