LIMITATION WITH RESPECT TO THE
INTELLECTUAL PROPERTY RIGHTS LISTED IN EXHIBIT B; (V) IT SHALL NOT DELIVER ANY
TECHNOLOGY TO CYBERHEART UNDER THIS AGREEMENT UNLESS, TO ITS ACTUAL KNOWLEDGE,
IT HAS THE RIGHT AND LICENSE TO AUTHORIZE CYBERHEART TO EXERCISE ITS RIGHTS AND
LICENSES USING SUCH TECHNOLOGY; AND (VI) IT IS NOT AWARE OF ANY PATENTS THAT ARE
NECESSARY OR USEFUL FOR CYBERHEART PRODUCTS OR CYBERKNIFE COMPONENTS IN THE
CYBERHEART FIELD THAT ARE OWNED BY ACCURAY, ITS AFFILIATES, OTHER LICENSEES, OR
CONTRACTORS, THAT ARE NOT LICENSED TO CYBERHEART AS ACCURAY PATENTS UNDER THIS
AGREEMENT.
15.2
ACCURAY INDEMNIFICATION.
15.2.1
SCOPE.
ACCURAY SHALL:
(I) AT ITS SOLE OPTION AND EXPENSE,
DEFEND CYBERHEART, ITS AFFILIATES, AND THEIR RESPECTIVE AGENTS, EMPLOYEES, AND
OFFICERS (EACH, A "CYBERHEART INDEMNITEE") AGAINST, OR SETTLE, ANY SUIT,
COMPLAINT, DEMAND, OR ACTION BY A THIRD PARTY AGAINST ANY CYBERHEART INDEMNITEE
ARISING OUT OF (A) A CLAIM BY A THIRD PARTY THAT (1) THE DEVELOPMENT SERVICES
PERFORMED BY ACCURAY, (2) THE USE, DISCLOSURE OR OTHER EXPLOITATION BY OR UNDER
AUTHORITY OF EITHER PARTY OF THE DELIVERABLES OR TECHNOLOGY DELIVERED BY ACCURAY
HEREUNDER (INCLUDING WITHOUT LIMITATION AS PART OF ANY CYBERHEART PRODUCT), OR
(3) ANY USE, DISCLOSURE OR EXPLOITATION OF ANY CYBERHEART PATENTS OR CYBERHEART
TECHNOLOGY, BY ACCURAY OR ANY PARTY RECEIVING RIGHTS THEREUNDER DIRECTLY OR
INDIRECTLY FROM ACCURAY, OTHER THAN AS NECESSARY TO PERFORM THE DEVELOPMENT
SERVICES ON BEHALF OF CYBERHEART IN ACCORDANCE WITH A STATEMENT OF WORK THEN IN
EFFECT, VIOLATE, INFRINGE, OR OTHERWISE MISAPPROPRIATE THE INTELLECTUAL PROPERTY
RIGHTS OF A THIRD PARTY (EACH OF (A)(1)-(3), AN "ACCURAY INFRINGEMENT CLAIM"),
(B) ANY BREACH OF ITS REPRESENTATIONS AND WARRANTIES UNDER SECTION 15.1 OR UNDER
THE MANUFACTURE AND SUPPLY AGREEMENT, (C) THE ACTS OR OMISSIONS OF ANY AFFILIATE
OR SUBCONTRACTOR USED TO EXERCISE ACCURAY'S RIGHTS OR FULFILL ITS OBLIGATIONS
HEREUNDER OR UNDER THE MANUFACTURING AND SUPPLY
41
AGREEMENT OR ANY NEGLIGENT OR RECKLESS ACTS OR OMISSIONS, OR WILLFUL MISCONDUCT,
OF ACCURAY OR ITS AFFILIATES, OR (D) ANY DISCLOSURE, USE OR EXPLOITATION OF ANY
CYBERHEART TECHNOLOGY OR CYBERHEART PATENTS BY ACCURAY OR ANY PARTY RECEIVING
RIGHTS OR ACCESS THERETO DIRECTLY OR INDIRECTLY (ONLY TO THE EXTENT AUTHORIZED
IN WRITING) FROM ACCURAY, OTHER THAN AS NECESSARY TO PERFORM THE DEVELOPMENT
SERVICES ON BEHALF OF CYBERHEART UNDER THIS AGREEMENT IN ACCORDANCE WITH A
STATEMENT OF WORK THEN IN EFFECT (OTHER THAN INFRINGEMENT CLAIMS) ((B), (C), AND
(D) REFERRED TO AS AN "ACCURAY GENERAL CLAIM," AND, TOGETHER WITH AN ACCURAY
INFRINGEMENT CLAIM, EACH AN "ACCURAY CLAIM") AND (II) INDEMNIFY EACH CYBERHEART
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
ACCURAY CLAIM; PROVIDED, HOWEVER, THAT ACCURAY INDEMNIFICATION OBLIGATIONS SHALL
NOT APPLY TO THE EXTENT THAT (1) SUCH ACCURAY CLAIM ARISES OUT OF ANY BREACH BY
CYBERHEART OF ANY OF ITS REPRESENTATIONS, WARRANTIES, OR COVENANTS IN THIS
AGREEMENT, OR (2) SUCH ACCURAY CLAIM ARISES OUT OF THE NEGLIGENCE, RECKLESSNESS
OR WILLFUL