IS A COPYRIGHTED WORK OF SYMYX.
5.7
DISCLAIMER. THE SOFTWARE AND THE DEVELOPER'S
KIT SOFTWARE (INCLUDING THE SAMPLE CODE) ARE PROVIDED "AS IS" AND WITHOUT
WARRANTY OF ANY KIND, EXCEPT THAT THE SOFTWARE AND THE DEVELOPER'S KIT SOFTWARE
SHALL BE SUITABLE FOR USE AS SET FORTH IN EXHIBIT G.
IF ANY SOFTWARE OR THE
DEVELOPER'S KIT SOFTWARE IS NOT SUITABLE FOR SUCH USE, SYMYX SHALL, AT ITS
OPTION, REPAIR OR REPLACE AT NO COST TO TDCC ANY DEFECTIVE OR NONCONFORMING
SOFTWARE (OR COMPONENT THEREOF). THE FOREGOING WARRANTIES AND REMEDIES WILL BE
VOID AS TO ANY SOFTWARE DAMAGED OR RENDERED UNSERVICEABLE BY: (A) THE ACTS OR
OMISSIONS OF PERSONNEL OTHER THAN SYMYX EMPLOYEES AND SYMYX CONTRACTORS;
(B) MISUSE, ABUSE, NEGLECT, THEFT, VANDALISM, FIRE, WATER, OR OTHER PERIL;
(C) MODIFICATION OF, ALTERATION OF, OR ADDITIONS TO ANY SOFTWARE PERFORMED BY
NON-SYMYX PERSONNEL; OR (D) NON-CONFORMITIES ARISING FROM USE OF THE SOFTWARE
WITH ANY OTHER HARDWARE, SOFTWARE, FIRMWARE, DEVICES, OR OTHER PRODUCTS,
INCLUDING SOFTWARE CUSTOMIZATIONS.
SYMYX DOES NOT WARRANT THAT THE SOFTWARE OR
THE DEVELOPER'S KIT SOFTWARE (INCLUDING THE SAMPLE CODE) WILL MEET TDCC'S OR ITS
AFFILIATES' REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR THE
DEVELOPER'S KIT SOFTWARE (INCLUDING THE SAMPLE CODE) WILL BE UNINTERRUPTED OR
ERROR FREE OR THAT THE SOFTWARE OR THE DEVELOPER'S KIT SOFTWARE (INCLUDING THE
SAMPLE CODE) WILL BE COMPATIBLE WITH OTHER HARDWARE OR SOFTWARE THAT TDCC OR ITS
AFFILIATES MAY ELECT TO OPERATE. SYMYX MAKES AND TDCC RECEIVES NO OTHER
WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN ANY
PROVISION OF THIS AGREEMENT OR OTHER COMMUNICATION WITH TDCC, AND SYMYX
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT,
AND FITNESS FOR A PARTICULAR PURPOSE.
Confidential
23
5.8
SOURCE CODE.
THE PARTIES ON OR BEFORE THE
EFFECTIVE DATE SHALL ENTER INTO A SOURCE CODE ESCROW AGREEMENT THAT WILL PROVIDE
THAT, IN THE EVENT SYMYX IS LIQUIDATED, DISSOLVED OR CEASES TO CARRY ON ITS
BUSINESS, OR OTHERWISE BECOMES UNWILLING OR UNABLE TO SUPPORT TDCC'S USE OF THE
SOFTWARE OR THE DEVELOPER'S KIT SOFTWARE, ON COMMERCIALLY REASONABLE TERMS,
WHERE TDCC CAN DEMONSTRATE THAT ACCESS TO THE SOURCE CODE IS REASONABLY
NECESSARY FOR TDCC'S CONTINUED USE OF THE SOFTWARE AND/OR THE DEVELOPER'S KIT
SOFTWARE AS PROVIDED IN THE SOFTWARE DEPLOYMENT PLAN, AND PROVIDED THAT TDCC IS
NOT IN DEFAULT UNDER THIS AGREEMENT, A COPY OF THE SOFTWARE SOURCE CODE SHALL BE
PROVIDED TO TDCC SOLELY FOR THE PURPOSE OF THE SOFTWARE DEVELOPMENT PLAN.
SUCH
AGREEMENT SHALL CONTAIN PROVISIONS FOR PERIODIC VERIFICATION THAT THE ESCROWED
SOURCE CODE CORRESPONDS TO SYMYX'S THEN-CURRENT VERSION.
SUCH SOURCE CODE
ESCROW AGREEMENT SHALL BE IN SUBSTANTIALLY THE FORM ENTERED INTO BETWEEN TDCC
AND SYMYX TECH IN CONNECTION WITH THE SALE AND LICENSE AGREEMENT ENTERED INTO
BETWEEN TDCC AND SYMYX TECH AS OF OCTOBER 22, 1999, AND MAY BE AN AMENDMENT OF
SUCH AGREEMENT.
5.9
RESTRICTIONS.
TDCC WILL NOT ITSELF, NOR
THROUGH ANY PARENT, AFFILIATE, AGENT OR OTHER THIRD PARTY, EXCEPT FOR PURPOSES
OF EXERCISING LICENSED RIGHTS SET FORTH IN THIS ARTICLE 5: (A) REPRODUCE,