THIRD PARTY TO MANUFACTURE A COMPONENT OR COMPONENTS OF A CYBERHEART PRODUCT
PURSUANT TO EXHIBIT E, THEN, TO THE EXTENT NECESSARY, CYBERHEART SHALL OBLIGATE
SUCH THIRD PARTY TO USE REASONABLE COMMERCIAL EFFORTS TO PROVIDE REASONABLE
TRAINING TO ACCURAY WITH RESPECT TO THE INSTALLATION OF SUCH COMPONENT OR
COMPONENTS.
CYBERHEART SHALL PROVIDE ACCURAY WITH NO LESS THAN ONE HUNDRED EIGHTY (180) DAYS
NOTICE OF A REQUEST FOR INSTALLATION AND ACCURAY WILL AGREE TO INSTALL A
CYBERHEART PRODUCT WITHIN THIRTY (30) DAYS BEFORE OR AFTER SUCH DATE. SUCH
INSTALLATION DATE WILL BE SUBJECT TO AND CONDITIONED UPON THE CUSTOMER END-USER
SITE MEETING ALL THE REQUIREMENTS OF THE SITE READINESS GUIDE. ANY MATERIAL
DELAY OF INSTALLATION BEYOND THIRTY (30) DAYS AFTER SUCH INSTALLATION DATE THAT
IS CAUSED BY CYBERHEART OR THAT IS DUE TO A CUSTOMER END-USER SITE NOT MEETING
THE REQUIREMENTS OF THE SITE READINESS GUIDE SHALL RESULT IN A DELAY FEE TO BE
PAID TO ACCURAY BY CYBERHEART OF TEN PERCENT (10%) OF THE TRANSFER PRICE FOR
SUCH CYBERHEART PRODUCT.
ACCURAY'S OBLIGATIONS UNDER SUCH INSTALLATION AGREEMENT SHALL BE SUBJECT TO
CYBERHEART REMAINING CURRENT WITH ALL PAYMENTS THEREIN. UPON ANY DEFAULT BY
CYBERHEART DUE TO FAILURE TO MAKE PAYMENTS, ACCURAY WILL HAVE THE RIGHT, BUT NOT
THE OBLIGATION, TO CONTRACT DIRECTLY WITH THE END-USER FOR INSTALLATION
SERVICES.
CYBERHEART INSTALLATION AGREEMENT
SEE BELOW
F-1
CyberHeart Installation Agreement
1.
Scope of Agreement.
1.1.
Scope.
This Installation Agreement ("Agreement") is
made by and between ACCURAY INCORPORATED ("Accuray"), a Delaware corporation,
with its principal place of business at 1310 Chesapeake Terrace, Sunnyvale, CA
94089, and CYBERHEART INCORPORATED ("CyberHeart"), a Delaware corporation, with
its principal place of business at 3270 Alpine Road, Portola Valley, CA, for
Accuray to install the CyberHeart System at
'S ("Customer") site at
("System").
1.2.
CyberHeart Obligation.
Accuray's obligations under this
Agreement are contingent on CyberHeart's performance under its installation
contract with Customer.
As such, Accuray expects and CyberHeart agrees that
CyberHeart will provide Customer with the same or greater service as is offered
by Accuray under this Agreement; provided, however, that Accuray shall perform
the actual installation of the CyberHeart System.
2.
TERMS OF PAYMENT.
2.1.
INSTALLATION PRICE; PAYMENT SCHEDULE.
THE INSTALLATION
PRICE FOR THE CYBERHEART SYSTEM IS $125,000.00. THE INSTALLATION PRICE IS VALID
ONLY FOR THE SYSTEM SPECIFIED ABOVE IN SECTION 1. THE INSTALLATION PRICE IS
EXCLUSIVE OF ALL TAXES (INCLUDING, BUT NOT LIMITED TO, ANY SALES TAX, USE TAX,
OR VALUE-ADDED TAX OR OTHER SIMILAR TAX), LICENSE FEES, CUSTOMS FEES, DUTIES,
AND SIMILAR CHARGES.
CYBERHEART SHALL PAY FOR INSTALLATION OF THE CYBERHEART
SYSTEM FIFTY PERCENT (50%) UPON DELIVERY OF THE CYBERHEART SYSTEM AND FIFTY
PERCENT (50%) UPON ACCEPTANCE.
2.2.
Invoices; Late Payments. If CyberHeart's or Customer's
internal payment processing procedure requires CyberHeart to receive an invoice
before paying amounts due hereunder, CyberHeart shall request such invoice
sufficiently in advance to make the payment in accordance with the payment
schedule set forth in Section 2.1 above.
Past due balances shall bear interest
at the rate of 1% per month or,