NOT
BASED ON, AND WHICH DOES NOT INCORPORATE ANY ACCURAY TECHNOLOGY, AS DELIVERED TO
ACCURAY HEREUNDER VIOLATES, INFRINGES OR OTHERWISE MISAPPROPRIATES THE
INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY ("CYBERHEART INFRINGEMENT CLAIM"),
(B) THE
DISCLOSURE, USE, OR EXPLOITATION OF ANY ACCURAY TECHNOLOGY OR ACCURAY
PATENTS OUTSIDE OF THE CYBERHEART FIELD BY CYBERHEART OR ANY PARTY RECEIVING
RIGHTS THEREUNDER DIRECTLY OR INDIRECTLY FROM CYBERHEART, (C) ANY USE OF A
CYBERHEART PRODUCT IN THE CYBERHEART FIELD, OR (D) ANY BREACH OF ITS
REPRESENTATIONS AND WARRANTIES UNDER SECTION 15.1 OR THE NEGLIGENCE,
RECKLESSNESS, OR WILLFUL MISCONDUCT OF CYBERHEART OR ITS AFFILIATE (EACH OF (A),
(B), (C), AND (D), A "CYBERHEART CLAIM") AND (II) INDEMNIFY EACH ACCURAY
INDEMNITEE AGAINST ANY AND ALL DAMAGES, COST, EXPENSES, LOSSES, AND LIABILITIES,
INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, WHICH ARE AWARDED IN
CONNECTION WITH, OR WHICH ARE INCLUDED IN ANY SETTLEMENT AMOUNTS OF, ANY SUCH
CYBERHEART CLAIM; PROVIDED, HOWEVER, THAT CYBERHEART'S INDEMNIFICATION
OBLIGATIONS SHALL NOT APPLY TO THE EXTENT THAT (1) SUCH CYBERHEART CLAIM ARISES
OUT OF ANY BREACH BY ACCURAY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, OR
COVENANTS IN THIS AGREEMENT OR THE MANUFACTURING AND SUPPLY AGREEMENT, OR (2)
SUCH CYBERHEART CLAIM ARISES OUT OF THE NEGLIGENCE, RECKLESSNESS OR WILLFUL
MISCONDUCT OF ACCURAY, ITS AFFILIATES, OR OTHERWISE OUT OF THE ACTS OR OMISSIONS
OF AFFILIATES AND CONTRACTORS FOR WHICH ACCURAY IS RESPONSIBLE IN SECTION 15.1.
15.3.2
REQUIREMENTS.
CYBERHEART'S INDEMNITY OBLIGATIONS ABOVE
SHALL BE RELIEVED TO THE EXTENT THAT ANY ACCURAY INDEMNITEE FAILS TO (I) GIVE
CYBERHEART WRITTEN NOTICE THEREOF AND SUCH FAILURE PREJUDICES CYBERHEART'S
ABILITY TO DEFEND THE CYBERHEART CLAIM; OR (II) PROVIDE CYBERHEART, AT
CYBERHEART'S EXPENSE, WITH INFORMATION, COOPERATION, AND ASSISTANCE IN
CONNECTION WITH SUCH CYBERHEART CLAIM.
ANY ACCURAY INDEMNITEE SHALL HAVE THE
RIGHT TO PARTICIPATE, AT ITS OPTION AND AT ITS OWN EXPENSE, IN ANY SUCH
CYBERHEART CLAIM.
NO SETTLEMENT OF A CYBERHEART INFRINGEMENT CLAIM THAT
INVOLVES A REMEDY OTHER THAN PAYMENT OF MONEY BY CYBERHEART SHALL BE AGREED TO
AND ENTERED INTO WITHOUT THE CONSENT OF ACCURAY, WHOSE CONSENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED.
CYBERHEART SHALL NOT BE RESPONSIBLE UNDER
THIS SECTION 15.3 FOR ANY COST, EXPENSES, OR SETTLEMENTS INCURRED WITHOUT
CYBERHEART'S PRIOR WRITTEN CONSENT, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD
OR DELAYED.
15.3.3
REMEDIES.
WITHOUT LIMITING THE INDEMNIFICATION OBLIGATION
SET FORTH IN SECTION 15.3, IF IT IS DETERMINED, OR IF CYBERHEART REASONABLY
BELIEVES, THAT ANY CYBERHEART TECHNOLOGY, OR ANY PORTION THEREOF, INFRINGES ANY
THIRD PARTY INTELLECTUAL PROPERTY
43
RIGHTS, THEN CYBERHEART SHALL HAVE THE RIGHT, AT ITS OPTION AND EXPENSE:
(I) TO
PROCURE FOR ACCURAY THE RIGHT TO CONTINUE USING SUCH CYBERHEART TECHNOLOGY, OR
PORTION THEREOF, SUFFICIENT TO PERFORM THE DEVELOPMENT SERVICES UNDER THIS
AGREEMENT; (II) REPLACE THE RELEVANT CYBERHEART TECHNOLOGY OR PORTION THEREOF
WITH A SUBSTANTIALLY SIMILAR NON-INFRINGING ALTERNATIVE SUFFICIENT TO PERFORM
THE DEVELOPMENT SERVICES; OR (III) MODIFY SUCH CYBERHEART TECHNOLOGY WITH AN AT
LEAST FUNCTIONALLY EQUIVALENT MODIFICATION SO THAT ACCURAY'S USE IN PERFORMING
THE DEVELOPMENT SERVICES BECOMES NON-INFRINGING.
15.3.4
EXCLUSIONS.
CYBERHEART SHALL HAVE NO LIABILITY UNDER
SECTION