WITH THE
DETAILS THAT TDCC REQUIRES TO AUTHORIZE SUCH PAYMENTS CONSISTENT WITH ITS
BUSINESS PRACTICES.
8.7
FTE RATE ADJUSTMENTS.
THE FTE RATES SET
FORTH IN SECTIONS 8.1 AND 8.2 SHALL BE SUBJECT TO ADJUSTMENT AS FOLLOWS:
*.
8.8
*
8.9
PROGRAM RECORDS.
SYMYX SHALL KEEP COMPLETE,
TRUE AND ACCURATE BOOKS OF ACCOUNT AND RECORDS SUFFICIENT TO DETERMINE THE
NUMBER/HOURS OF FTE'S UTILIZED IN EACH QUARTER DURING THE PROGRAM TERM IN
CONNECTION WITH THE PERFORMANCE OF THE RESEARCH PROGRAM, THE SOFTWARE DEPLOYMENT
AND THE EFFORT TO CONSTRUCT AND DELIVER DISCOVERY TOOLS HEREUNDER.
SYMYX SHALL
ALSO MAKE AVAILABLE OTHER BOOKS AND RECORDS AS MAY BE NECESSARY TO CONFIRM *.
SUCH BOOKS AND RECORDS SHALL BE KEPT AT THE PRINCIPAL PLACE OF BUSINESS OF SYMYX
FOR AT LEAST * FOLLOWING THE END OF THE CALENDAR YEAR QUARTER TO WHICH THEY
PERTAIN.
SUCH RECORDS WILL BE OPEN FOR INSPECTION DURING NORMAL BUSINESS HOURS
UPON * PRIOR NOTICE DURING SUCH * PERIOD, BY AN INDEPENDENT AUDITOR OF TDCC, FOR
THE PURPOSE OF VERIFYING THE NUMBER OF SYMYX FTE'S USED IN THE RESEARCH PROGRAM,
THE SOFTWARE DEPLOYMENT AND THE EFFORT TO CONSTRUCT AND DELIVER DISCOVERY TOOLS
HEREUNDER DURING THE PROGRAM TERM AS WELL AS OTHER INFORMATION RELEVANT TO
DETERMINATION OF *.
SUCH INSPECTIONS MAY BE MADE NO MORE THAN ONCE EACH
CALENDAR YEAR, AT REASONABLE TIMES MUTUALLY AGREED BY SYMYX AND TDCC.
IT IS
UNDERSTOOD AND AGREED THAT TDCC'S AUDITOR WILL BE OBLIGED TO EXECUTE A
REASONABLE CONFIDENTIALITY AGREEMENT PRIOR TO COMMENCING ANY SUCH INSPECTION.
INSPECTIONS CONDUCTED UNDER THIS SECTION 8.9 SHALL BE AT THE EXPENSE OF TDCC,
UNLESS A VARIATION OR ERROR PRODUCING AN INCREASE IN THE PAYMENT DUE EXCEEDING
THE * FOR ANY PERIOD COVERED BY THE INSPECTION IS ESTABLISHED IN THE COURSE OF
ANY SUCH INSPECTION, WHEREUPON ALL REASONABLE COSTS RELATING TO THE INSPECTION
FOR SUCH PERIOD AND ANY UNPAID AMOUNTS THAT ARE DISCOVERED WILL BE PAID PROMPTLY
BY SYMYX TOGETHER WITH INTEREST THEREON FROM THE DATE SUCH PAYMENTS WERE DUE AT
THE LESSER OF (I)
OR (II) THE MAXIMUM RATE PERMITTED BY LAW.
8.10
ROYALTIES.
TDCC SHALL PAY TO SYMYX TECH (A) A
ROYALTY ON NET SALES OF PRODUCTS BY TDCC AND ITS AFFILIATES AND TDCC JOINT
VENTURES AS SET FORTH IN EXHIBIT J, AND (B) A SHARE OF ANY PAYMENTS FROM
SUBLICENSEES AS SET FORTH IN EXHIBIT J.
8.11
PAYMENTS IN LIEU OF ROYALTIES.
ROYALTIES DUE ON
NET SALES OF PRODUCTS OR CLASSES OF PRODUCTS MAY BE BURDENSOME TO CALCULATE AND
REPORT.
TDCC AND SYMYX TECH IN SUCH CASES WILL SEEK TO NEGOTIATE AN ALTERNATIVE
BASIS FOR CALCULATION OF CONSIDERATION PAYABLE IN LIEU OF RUNNING ROYALTIES ON
SUCH CLASSES OF PRODUCTS, WHICH BOTH PARTIES DEEM WILL RESULT IN A PAYMENT TO
SYMYX TECH OF AN AMOUNT COMMENSURATE WITH THE ROYALTIES OTHERWISE PAYABLE UNDER
SECTION 8.10.
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8.12
THIRD PARTY ROYALTIES.
SYMYX SHALL NOT BE
RESPONSIBLE FOR PAYMENTS DUE TO THIRD PARTIES FOR THE MANUFACTURE, SALE, OR USE
OF PRODUCTS BY TDCC OR ITS AFFILIATES OR SUBLICENSEES, UNLESS SYMYX HAS