15.3.1 FOR ANY CYBERHEART CLAIM TO THE EXTENT THAT THE CYBERHEART CLAIM
IS (I) A CYBERHEART INFRINGEMENT CLAIM AGAINST THE CYBERHEART TECHNOLOGY THAT IS
NOT REQUIRED IN ORDER TO PERFORM THE DEVELOPMENT SERVICES ON BEHALF OF
CYBERHEART UNDER THIS AGREEMENT IN ACCORDANCE WITH A STATEMENT OF WORK THEN IN
EFFECT AND INCORPORATED THEREBY BY ACCURAY WITHOUT REQUEST FROM CYBERHEART,
UNLESS CYBERHEART ACCEPTS SUCH INCORPORATION, WHETHER PASSIVELY OR ACTIVELY, IN
WHICH CASE THIS SECTION 15.3.4 WILL NOT APPLY; (II) RESULTS FROM ANY PORTION OF
ANY TECHNOLOGY TO THE EXTENT CONCEIVED OR CREATED BY OR ON BEHALF OF ACCURAY OR
ITS AFFILIATES AND NOT BY CYBERHEART OR ITS AFFILIATES; OR (III) RESULTS FROM
ANY GROSSLY NEGLIGENT OR WILLFUL MATERIAL FAILURE OF ACCURAY OR ITS AFFILIATES,
OR THEIR CONTRACTORS OR SUPPLIERS, TO COMPLY WITH THE TERMS OF THIS AGREEMENT OR
THE MANUFACTURING AND SUPPLY AGREEMENT, ANY MANUFACTURE OR SUPPLY BY OR UNDER
AUTHORITY OF ACCURAY NOT IN ACCORDANCE WITH APPLICABLE LAW OR ANY REGULATORY
APPROVAL, OR ANY NEGLIGENT OR RECKLESS ACTS OR OMISSIONS, OR WILLFUL MISCONDUCT,
OF ACCURAY OR ITS AFFILIATE OR THEIR CONTRACTORS OR SUPPLIERS.
15.4
SOLE REMEDY.
SECTIONS 15.2 AND 15.3 STATE EACH PARTY'S SOLE AND
EXCLUSIVE OBLIGATION AND EACH PARTY'S SOLE AND EXCLUSIVE REMEDY FOR ANY ACCURAY
CLAIMS THAT ARE THE SUBJECT OF SECTION 15.2 OR ANY CYBERHEART CLAIMS THAT ARE
THE SUBJECT OF SECTION 15.3.
15.5
INSURANCE.
CYBERHEART SHALL PROCURE AND MAINTAIN INSURANCE,
INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY AND OTHER APPROPRIATE INSURANCE,
ADEQUATE TO COVER ITS OBLIGATIONS HEREUNDER IN A MANNER WHICH IS CONSISTENT WITH
NORMAL BUSINESS PRACTICES OF PRUDENT COMPANIES SIMILARLY SITUATED AT ALL TIMES
DURING WHICH ANY CYBERHEART PRODUCT IS BEING CLINICALLY TESTED IN HUMAN SUBJECTS
OR COMMERCIALLY DISTRIBUTED OR SOLD. FOR CLARITY, SUCH INSURANCE SHALL NOT BE
CONSTRUED TO CREATE A LIMIT OF CYBERHEART'S LIABILITY WITH RESPECT TO ITS
INDEMNIFICATION OBLIGATIONS UNDER THIS ARTICLE 15.
CYBERHEART SHALL PROVIDE
ACCURAY WITH WRITTEN EVIDENCE OF SUCH INSURANCE UPON REQUEST.
CYBERHEART SHALL
PROVIDE ACCURAY WITH WRITTEN NOTICE AT LEAST THIRTY (30) DAYS PRIOR TO THE
CANCELLATION, NON-RENEWAL OR MATERIAL CHANGE IN SUCH INSURANCE OR SELF-INSURANCE
WHICH MATERIALLY ADVERSELY AFFECTS THE RIGHTS OF ACCURAY HEREUNDER.
15.6
WARRANTY DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE MANUFACTURE AND SUPPLY AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED, BY STATUTE, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT AND THE
MANUFACTURE AND SUPPLY AGREEMENT, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
OTHER REPRESENTATIONS AND
44
WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, AND NONINFRINGEMENT.
16.
DISPUTE RESOLUTION.
16.1
ANY DISPUTE BETWEEN THE PARTIES REGARDING INTERPRETATION OF OR
BREACH OF A TERM OR CONDITION OF THIS AGREEMENT SHALL FIRST BE DISCUSSED BETWEEN
THE PARTIES, EITHER AMONG THE JSC (AS PROVIDED IN SECTION 4.1.4) OR BY THE
PROJECT MANGER AND THE CYBERHEART LIAISON IN GOOD FAITH IN AN EFFORT TO ACHIEVE
A REASONABLE RESOLUTION.
IF THE DISPUTE IS NOT RESOLVED WITHIN THIRTY (30) DAYS
BY THE JSC