USE *
COPIES OF THE SOFTWARE, IN OBJECT CODE FORMAT, DURING THE PROGRAM TERM, SOLELY
FOR TDCC'S INTERNAL RESEARCH AND DEVELOPMENT ACTIVITIES. SYMYX DOES NOT PROVIDE,
AND TDCC AND ITS AFFILIATES SHALL BE RESPONSIBLE TO SECURE OR USE THEIR OWN
ORACLE DATABASE[S] AND OPERATING SYSTEM[S] AND APPROPRIATE LICENSES THERETO, AS
WELL AS LICENSES FOR ANY THIRD PARTY SOFTWARE TDCC WISHES TO USE (E.G.,
SPOTFIRE).
TDCC WILL REPORT TO SYMYX THE NUMBER OF USERS OF THE SOFTWARE,
WITHIN * AT THE REQUEST OF SYMYX, BUT NOT MORE FREQUENTLY THAN *.
Confidential
21
5.3
DEVELOPER'S KIT SOFTWARE LICENSE.
SYMYX
DTOOLS SHALL PROVIDE THE DEVELOPER'S KIT SOFTWARE TO TDCC (AND TO AFFILIATES
DESIGNATED BY TDCC) ON OR BEFORE THE BEGINNING OF THE PROGRAM TERM AND SHALL
PROVIDE DOCUMENTATION FOR SAME IN ACCORDANCE WITH THE SOFTWARE DEPLOYMENT PLAN
AND ANNUAL PROGRAM GOALS, AND SYMYX HEREBY GRANTS TO TDCC A WORLDWIDE,
NONEXCLUSIVE, NONTRANSFERABLE, NONSUBLICENSABLE (EXCEPT AS PROVIDED IN
SECTION 5.10) RIGHT TO INSTALL AND USE * COPIES OF THE DEVELOPER'S KIT SOFTWARE,
IN OBJECT CODE FORMAT, DURING THE PROGRAM TERM, TO CREATE SOFTWARE
CUSTOMIZATIONS SOLELY FOR TDCC'S INTERNAL RESEARCH AND DEVELOPMENT ACTIVITIES.
SYMYX AND TDCC AGREE THAT TDCC WILL RETAIN OWNERSHIP OF THE SOFTWARE
CUSTOMIZATIONS (AND THE INTELLECTUAL PROPERTY RIGHTS THEREIN) IT CREATES USING
THE DEVELOPERS KIT SOFTWARE HEREUNDER.
WITH RESPECT TO ANY SUCH SOFTWARE
CUSTOMIZATIONS, TDCC WILL EITHER (I) RELY SOLELY ON TRADE SECRET PROTECTION, OR
(II) AGREES TO GRANT AND HEREBY GRANTS TO SYMYX A NONEXCLUSIVE, WORLDWIDE,
PERPETUAL, IRREVOCABLE, PAID-UP, TRANSFERABLE, SUBLICENSEABLE RIGHT TO MAKE,
HAVE MADE, MODIFY, COPY, CREATE DERIVATIVE WORKS BASED ON, USE, OFFER TO SELL,
SELL, EXPORT AND IMPORT ANY SOFTWARE CUSTOMIZATIONS TO THE EXTENT THESE ARE
CLAIMED IN ANY PATENT APPLICATION FILED BY TDCC TO THE EXTENT TDCC MAY GRANT
RIGHTS TO SYMYX. IN THE EVENT TDCC ELECTS (II) ABOVE WITH RESPECT TO ANY
SOFTWARE CUSTOMIZATION, TDCC WILL PROVIDE SYMYX THE OPPORTUNITY TO REVIEW AND
COMMENT ON ASSOCIATED PATENT APPLICATION DRAFTS AT LEAST * DAYS PRIOR TO FILING
OR PROSECUTING ANY APPLICATION FOR A PATENT WITH RESPECT TO ANY SOFTWARE
CUSTOMIZATION, AND SHALL PROMPTLY NOTIFY SYMYX IN THE EVENT ANY PATENT PUBLISHES
OR IS ISSUED WITH CLAIMS COVERING ANY SOFTWARE CUSTOMIZATION.
NOTWITHSTANDING
THE PRECEDING, IT IS UNDERSTOOD AND AGREED THAT U.S. PROVISIONAL PATENT
APPLICATIONS (FILED UNDER 35 U.S.C.§111(B)) MAY BE FILED BY TDCC WITHOUT REVIEW
AND COMMENT IN ORDER TO OBTAIN THE EARLIEST POSSIBLE FILING DATE, BUT TDCC WILL
USE COMMERCIALLY REASONABLE EFFORTS TO SEEK REVIEW AND COMMENT FROM THE OTHER
PARTY PRIOR TO FILING SUCH PROVISIONAL PATENT APPLICATIONS.
FURTHERMORE, FOR
CLARIFICATION, IT IS UNDERSTOOD THAT THE LICENSE TO SYMYX UNDER THIS
SECTION SHALL NOT APPLY TO ANY INVENTIONS CONCEIVED AND REDUCED TO PRACTICE BY
TDCC INDEPENDENT OF THE DEVELOPER'S KIT SOFTWARE AND WITHOUT USE OF CONFIDENTIAL
INFORMATION OWNED BY SYMYX.
IN ADDITION, NOTHING HEREIN SHALL BE CONSTRUED TO
OBLIGATE TDCC TO GRANT TO SYMYX THE RIGHT TO USE OR SUBLICENSE BACKGROUND RIGHTS
IN TECHNOLOGY OF TDCC THAT EXISTED PRIOR TO THE EFFECTIVE DATE.
TDCC ALSO IS
NOT