OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED
THE PAYMENT RECEIVED BY ACCURAY FOR THE INSTALLATION OF THE CYBERHEART SYSTEM
RESULTING IN THE LOSS OR DAMAGE CLAIMED.
9.
CONFIDENTIALITY. ALL DRAWINGS, DESIGNS,
SPECIFICATIONS, MANUALS AND SOFTWARE AND OTHER NON-PUBLIC INFORMATION FURNISHED
TO CYBERHEART OR CUSTOMER BY ACCURAY HEREUNDER SHALL REMAIN THE CONFIDENTIAL AND
PROPRIETARY PROPERTY OF ACCURAY ("CONFIDENTIAL INFORMATION").
ALL SUCH
INFORMATION, EXCEPT AS MAY BE FOUND IN THE PUBLIC DOMAIN, SHALL BE HELD IN
CONFIDENCE BY CYBERHEART AND SHALL NOT BE DISCLOSED BY CYBERHEART TO ANY THIRD
PARTIES OR USED BY CYBERHEART OTHER THAN IN ITS OPERATION OF THE CYBERHEART
SYSTEM IN ACCORDANCE WITH THE SPECIFICATIONS.
CYBERHEART SHALL REQUIRE THAT
CUSTOMER AGREE IN WRITING TO SIMILAR CONFIDENTIALITY OBLIGATIONS.
10.
ASSIGNMENT. NEITHER PARTY MAY ASSIGN THIS AGREEMENT
WITHOUT THE OTHER PARTY'S PRIOR WRITTEN CONSENT, EXCEPT THAT ACCURAY MAY ASSIGN
THIS AGREEMENT WITHOUT CYBERHEART'S CONSENT TO AN AFFILIATE AND EITHER PARTY MAY
ASSIGN THIS AGREEMENT WITHOUT THE OTHER PARTY'S CONSENT TO A SUCCESSOR OR
ACQUIRER IN CONNECTION WITH A MERGER OR ACQUISITION, OR THE SALE OF ALL OR
SUBSTANTIALLY ALL OF SUCH PARTY'S ASSETS OR THE SALE OF THAT PORTION OF SUCH
PARTY'S BUSINESS TO WHICH THIS AGREEMENT RELATES, UPON WRITTEN NOTICE; PROVIDED
THAT ANY PARTY TO WHICH CYBERHEART PROPOSES ASSIGNING THIS AGREEMENT MUST MEET
ACCURAY'S STANDARD CREDITWORTHINESS REQUIREMENTS.
SUBJECT TO THE FOREGOING,
THIS AGREEMENT WILL BIND AND INURE TO THE BENEFIT OF THE PARTIES' PERMITTED
SUCCESSORS AND ASSIGNS. ANY ATTEMPTED ASSIGNMENT IN VIOLATION OF THIS SECTION 10
SHALL BE NULL AND VOID.
11.
DISPUTE RESOLUTION.
ANY DISPUTE BETWEEN ACCURAY AND
CYBERHEART ARISING FROM OR RELATED TO THIS AGREEMENT, EXCLUDING DISPUTES
REGARDING PAYMENT OR CYBERHEART'S UNAUTHORIZED USE OR DISCLOSURE OF ACCURAY
CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, SHALL BE SETTLED AS FOLLOWS.
THE PARTY INITIATING THE DISPUTE SHALL PROVIDE WRITTEN NOTIFICATION TO THE OTHER
PARTY IDENTIFYING IN DETAIL THE NATURE OF THE DISPUTE.
THE OTHER PARTY SHALL
RESPOND IN WRITING TO THE NOTIFICATION WITHIN 30 CALENDAR DAYS FROM THE DATE OF
RECEIPT OF THE NOTIFICATION.
THE PARTY INITIATING THE DISPUTE SHALL HAVE AN
ADDITIONAL 30 CALENDAR DAYS AFTER THE RECEIPT OF THE RESPONSE TO EITHER ACCEPT
THE RESOLUTION OFFERED BY THE OTHER PARTY OR ESCALATE THE MATTER.
IF THE
DISPUTE IS NOT RESOLVED WITHIN THE FOREGOING 30-DAY PERIOD, THE PARTIES SHALL
ESCALATE THE CLAIM TO THE PRESIDENT OF ACCURAY AND THE CHIEF EXECUTIVE OFFICER
OF CYBERHEART.
EACH SHALL NEGOTIATE IN GOOD FAITH AND USE HIS OR HER BEST
EFFORTS TO RESOLVE SUCH DISPUTE OR CLAIM.
IF THE DISPUTE IS NOT RESOLVED WITHIN
15 CALENDAR DAYS AFTER ESCALATION TO THE PRESIDENT AND CHIEF EXECUTIVE OFFICER
AS DESCRIBED ABOVE, THEN EITHER PARTY MAY PURSUE RESOLUTION BY ANY MEANS
AVAILABLE AT LAW OR EQUITY.
12.
Governing Law.
The rights and obligations of the
parties under this Agreement shall be governed in all respects by the laws of
the United States and the State of California without regard to conflicts of
laws principles that would require the application of the laws of any other
jurisdiction. No