PROVISIONS UNDER ARTICLE 16.
6.1.2
IF CYBERHEART DESIRES TO HAVE A CYBERHEART PRODUCT,
CYBERKNIFE COMPONENT, OR OTHER COMPONENT OF A CYBERHEART PRODUCT (A "REQUESTED
ITEM(S)") MANUFACTURED AND SUPPLIED BY ACCURAY, CYBERHEART SHALL PROVIDE ACCURAY
WITH NOTICE OF SUCH DESIRE, TOGETHER WITH WRITTEN PROPOSED SPECIFICATIONS (AS
SUCH SPECIFICATIONS WILL BE DEFINED IN THE MANUFACTURING AND SUPPLY AGREEMENT)
THAT ARE DESIRED BY CYBERHEART FOR THE REQUESTED ITEMS, WHICH MAY INCLUDE
UPDATES AND MODIFICATIONS OF CYBERHEART PRODUCTS CURRENTLY BEING SUPPLIED BY
ACCURAY.
ACCURAY SHALL NOTIFY CYBERHEART WITHIN THIRTY (30) DAYS AFTER RECEIPT
OF SUCH NOTICE WHETHER OR NOT SUCH SPECIFICATIONS ARE ACCEPTABLE AND WHETHER
ACCURAY WILL SUPPLY SUCH REQUESTED ITEMS TO CYBERHEART IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF THE MANUFACTURING AND SUPPLY AGREEMENT.
UPON ACCURAY
NOTIFYING CYBERHEART THAT IT WILL SUPPLY SUCH REQUESTED ITEMS, CYBERHEART SHALL
BE ENTITLED TO PROVIDE ACCURAY WITH ITS FIRST FORECAST FOR SUCH REQUESTED ITEMS
AND THE TERMS AND CONDITIONS IN THE MANUFACTURING AND SUPPLY AGREEMENT SHALL
APPLY TO REQUIRE ACCURAY TO SUPPLY SUCH REQUESTED ITEMS TO CYBERHEART.
PROVIDED
THAT ANY SPECIFICATIONS PROVIDED BY CYBERHEART TO ACCURAY ARE REASONABLE, UNLESS
ACCURAY NOTIFIES CYBERHEART THAT IT WILL SUPPLY SUCH REQUESTED ITEMS TO
CYBERHEART WITHIN THIRTY (30) DAYS AFTER CYBERHEART'S REQUEST, CYBERHEART'S
MANUFACTURE AND HAVE MANUFACTURED RIGHTS THAT ARE GRANTED IN SECTION 2.2.1 SHALL
BE DEEMED TO EXTEND TO THE REQUESTED ITEM THAT WAS IDENTIFIED IN CYBERHEART'S
NOTICE AND NOT OTHERWISE ALREADY LICENSED TO CYBERHEART UNDER SECTION 2.2.1,
INCLUDING WITHOUT LIMITATION MODIFICATIONS, ENHANCEMENTS, AND UPDATES THEREOF.
FOR CLARITY, ACCURAY WILL HAVE NO RIGHT TO MANUFACTURE ANY REQUESTED ITEM FOR
CYBERHEART AFTER MANUFACTURING RIGHTS HAVE BEEN GRANTED TO CYBERHEART PURSUANT
TO THIS SECTION 6.1.2.
6.2
INSTALLATION AND SERVICE.
THE PARTIES SHALL COOPERATE ON
INSTALLATION AND CONDUCT IT PURSUANT TO THE TERMS AND CONDITIONS IN EXHIBIT F
(THE "INSTALLATION AGREEMENT").
THE PARTIES SHALL COOPERATE ON SERVICE OF
CYBERHEART PRODUCS AND CONDUCT IT PURSUANT TO THE TERMS AND CONDITIONS IN
EXHIBIT G (THE "SERVICE AGREEMENT").
6.3
COMMERCIALIZATION.
CYBERHEART HAS THE EXCLUSIVE RIGHT (INCLUDING
AS TO ACCURAY) TO MARKET AND COMMERCIALIZE CYBERHEART PRODUCTS.
COMMERCIALIZATION OF CYBERHEART
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PRODUCTS CAN BE THROUGH PER-USE (PER-CLICK) REVENUE GENERATED FROM CYBERHEART
PRODUCTS THAT ARE NOT SOLD OR FROM THE OUTRIGHT SALE OF CYBERHEART PRODUCTS,
PROVIDED THAT, IN ANY GIVEN CALENDAR YEAR, CYBERHEART SHALL NOT BE PERMITTED TO
SELL A NUMBER OF CYBERHEART SYSTEMS OR CYBERHEART MODULES GREATER THAN TEN
PERCENT (10%) OF THE CYBERHEART SYSTEMS OR CYBERHEART MODULES, RESPECTIVELY,
SUPPLIED TO CYBERHEART IN SUCH CALENDAR YEAR.
6.4
REVENUE SHARE.
6.4.1
PER-CLICK REVENUE: WITHIN THIRTY (30) DAYS AFTER THE END OF EACH
CALENDAR QUARTER, CYBERHEART SHALL PAY TO ACCURAY A PERCENTAGE OF PER-CLICK
REVENUE AS FOLLOWS:
*** OF PER-CLICK REVENUE FROM USE OF CYBERHEART MODULES.
*** PER-CLICK REVENUE FROM USE OF CYBERHEART SYSTEMS.
All Per-Click Revenue shall be collected in compliance with all federal fraud
and abuse laws.
THE ROYALTY RATES ABOVE IN SECTIONS AND SECTION
SHALL ALSO APPLY TO ANY OTHER REVENUE RECEIVED, EARNED, OR DEFERRED, BY
CYBERHEART (INCLUDING WITHOUT LIMITATION