THAT EITHER PARTY MAY ASSIGN THIS AGREEMENT IN
WHOLE TO ANY AFFILIATE OR TO ANY SUCCESSOR IN INTEREST (OTHER THAN TO AN ACCURAY
COMPETITOR AS TO CYBERHEART) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR
ASSETS OF SUCH PARTY TO WHICH THIS AGREEMENT PERTAINS, WHETHER BY OPERATION OF
LAW, MERGER, PURCHASE, OR OTHERWISE.
ANY ATTEMPTED ASSIGNMENT IN VIOLATION OF
THE FOREGOING SHALL BE NULL AND VOID AND OF NO EFFECT.
SUBJECT TO THE
FOREGOING, THIS AGREEMENT SHALL BE BINDING AND INURE TO THE BENEFIT OF THE
RESPECTIVE PARTIES AND THEIR SUCCESSORS AND PERMITTED ASSIGNS, AND THE NAME OF
THE PARTY APPEARING HEREIN SHALL BE DEEMED TO CHANGE TO THE NAMES OF SUCH
PARTY'S SUCCESSORS AND PERMITTED ASSIGNS UPON SUCH A TRANSFER.
17.3
NON-SOLICITATION.
NEITHER PARTY SHALL SOLICIT DURING THE TERM AND
UNTIL THE IP CUTOFF DATE ANY OF THE EMPLOYEES OF THE OTHER PARTY TO THIS
AGREEMENT WITHOUT THE PRIOR CONSENT OF THE PRESIDENT OR CHIEF EXECUTIVE OFFICER
OF THE OTHER PARTY.
NOTWITHSTANDING ANYTHING IN THIS 17.3 TO THE CONTRARY, THE
PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT EACH PARTY SHALL NOT BE RESTRICTED
FROM HIRING ANY EMPLOYEE OF THE OTHER PARTY IF SUCH EMPLOYEE SEEKS EMPLOYMENT
AND WAS NOT INITIALLY SOLICITED OR INDUCED.
17.4
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REFERENCE TO ANY PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANY STATE OTHER THAN THE STATE OF CALIFORNIA.
EXCEPT
AS SET FORTH IN ARTICLE 16, ANY AND ALL DISPUTES ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT SHALL BE SUBMITTED EXCLUSIVELY IN THE STATE OR FEDERAL
COURTS LOCATED IN SANTA CLARA COUNTY, CALIFORNIA, THE PERSONAL JURISDICTION OF
WHICH EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS.
17.5
SEVERABILITY.
IF ANY TERM OF THIS AGREEMENT IS HELD TO BE INVALID
OR UNENFORCEABLE FOR ANY REASON, THE REMAINDER OF THE PROVISIONS SHALL CONTINUE
IN FULL FORCE AND EFFECT, AND THE PARTIES SHALL SUBSTITUTE A VALID PROVISION
WITH THE SAME INTENT AND ECONOMIC EFFECT AS NEARLY AS POSSIBLE.
17.6
NON-WAIVER.
THE FAILURE OF EITHER PARTY AT ANY TIME TO REQUIRE
PERFORMANCE BY THE OTHER PARTY OF ANY PROVISION HEREOF SHALL NOT AFFECT IN ANY
WAY, OR ACT AS A WAIVER OF, THE RIGHT TO REQUIRE THE OTHER PARTY TO PERFORM IN
ACCORDANCE WITH THIS AGREEMENT AT ANY OTHER TIME, NOR SHALL THE WAIVER OF EITHER
PARTY OF A BREACH OF A PROVISION OF THIS AGREEMENT BE HELD OR TAKEN TO BE A
WAIVER OF THE PROVISION ITSELF.
17.7
RELATIONSHIP OF PARTIES.
NOTHING IN THIS AGREEMENT SHALL BE
CONSTRUED TO CREATE A RELATIONSHIP OF EMPLOYER AND EMPLOYEE, PRINCIPAL AND
AGENT, JOINT VENTURE, PARTNERSHIP OR ASSOCIATION BETWEEN THE PARTIES, AND
NEITHER PARTY SHALL HAVE THE POWER TO OBLIGATE OR BIND THE OTHER IN ANY MANNER
WHATSOEVER.
46
17.8
INTERPRETATION.
THIS AGREEMENT IS TO BE DEEMED TO HAVE BEEN
DRAFTED JOINTLY BY THE PARTIES AND ANY UNCERTAINTY OR AMBIGUITY SHALL