SUBLICENESS OF OBJECT CODE TO NON END-USERS) UNDER SECTION 2.2.1 AND
SECTION 2.2.2 ONLY UPON PRIOR WRITTEN
10
CONSENT OF ACCURAY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED,
OR CONDITIONED; PROVIDED THAT IN NO EVENT SHALL CYBERHEART GRANT OR AUTHORIZE
ANY SUBLICENSES TO ANY ACCURAY COMPETITOR OR TO ANY PARTY ACCURAY REASONABLY
DETERMINES MAY BECOME A COMPETITOR OF ACCURAY IN THE FUTURE. ACCURAY AGREES THAT
IT SHALL NOT WITHHOLD, DELAY, OR CONDITION ANY CONSENT UPON ADDITIONAL FEES OR
PAYMENTS (E.G., ADDITIONAL LICENSE FEES OR ROYALTIES) BEING PROVIDED.
CYBERHEART SHALL PROVIDE ACCURAY A COPY OF EACH SUBLICENSE UNDER THIS SECTION
NOT LESS THAN THIRTY (30) DAYS PRIOR TO EXECUTION OF SUCH SUBLICENSE,
EACH SUCH SUBLICENSE SHALL REQUIRE THE SUBLICENSEE TO AGREE IN WRITING TO BE
BOUND BY TERMS AND CONDITIONS MATERIALLY AS PROTECTIVE OF ACCURAY AS OF THE
PROVISIONS OF THIS AGREEMENT, AND ALL SUBLICENSES UNDER THIS SECTION
SHALL TERMINATE UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT EXCEPT TO THE
EXTENT OTHERWISE AGREED BY THE PARTIES IN WRITING. NOTWITHSTANDING THIS SECTION
, ABOVE, BUT WITHOUT LIMITING CYBERHEART'S MANUFACTURE AND HAVE
MANUFACTURED RIGHTS PURSUANT TO SECTION 2.2, SECTION 6.1, OR THE MANUFACTURING
AND SUPPLY AGREEMENT, CYBERHEART MAY GRANT SUBLICENSES OF THE OBJECT CODE FORM
OF ACCURAY'S SOFTWARE WITHOUT PERMISSION FROM, OR REVIEW OF THE SUBLICENSE BY,
ACCURAY SOLELY TO CONTRACTORS AND MAY USE CONTRACTORS TO DEVELOP HARDWARE AND
SOFTWARE (WITHOUT PROVIDING ACCESS TO ANY SOURCE CODE FORM OF ANY ACCURAY
SOFTWARE), IN EACH CASE PROVIDED THAT SUCH USE OF CONTRACTORS OTHERWISE COMPLIES
WITH SECTION .
IF A THIRD PARTY TO WHICH A SUBLICENSE HAS BEEN PROPERLY
GRANTED UNDER THIS SECTION BECOMES AN ACCURAY COMPETITOR AFTER THE
GRANTING OF SUCH SUBLICENSE, SUCH SUBLICENSE SHALL TERMINATE IMMEDIATELY AT THE
TIME SUCH THIRD PARTY BECOMES AN ACCURAY COMPETITOR.
WITHOUT GRANTING TO CYBERHEART THE RIGHT TO MANUFACTURE OR HAVE
MANUFACTURED CYBERKNIFE COMPONENTS, AND SUBJECT TO SECTION , CYBERHEART
HAS THE RIGHT TO USE CONTRACTORS TO EXERCISE ITS RIGHTS UNDER THIS AGREEMENT
(INCLUDING WITHOUT LIMITATION UNDER SECTION 2.2.1 AND 2.2.2), PROVIDED THAT THE
CONTRACTOR IS NOT AN ACCURAY COMPETITOR OR POTENTIAL ACCURAY COMPETITOR, AS
REASONABLY DETERMINED BY ACCURAY, AND IS BOUND BY TERMS AND CONDITIONS AS
PROTECTIVE OF ACCURAY, ACCURAY'S INTELLECTUAL PROPERTY RIGHTS, AND ACCURAY'S
CONFIDENTIAL INFORMATION, AS THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, CYBERHEART SHALL NOT BE REQUIRED TO OBTAIN
OWNERSHIP OF ACCURAY IMPROVEMENTS FOR ACCURAY FROM ANY CONTRACTORS SO LONG AS
(I) CYBERHEART ATTEMPTS IN GOOD FAITH TO OBTAIN SUCH OWNERSHIP; AND (II) IF
CYBERHEART DOES NOT OBTAIN OWNERSHIP, THEN ACCURAY IMPROVEMENTS CONCEIVED OR
CREATED BY THE CONTRACTOR ARE LICENSED BY SUCH CONTRACTORS TO CYBERHEART AND
DEEMED CYBERHEART TECHNOLOGY LICENSED TO ACCURAY UNDER SECTION 2.2.6.
2.2.5
DEVELOPMENT SERVICES LICENSE.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, CYBERHEART HEREBY GRANTS TO ACCURAY A WORLDWIDE,
NON-EXCLUSIVE, NON-SUBLICENSEABLE (WITHOUT LIMITING ACCURAY'S RIGHTS TO USE
SUBCONTRACTORS AS SET FORTH IN SECTION 3.9), LIMITED, INTERNAL RIGHT AND LICENSE
UNDER CYBERHEART'S INTELLECTUAL PROPERTY RIGHTS TO (I) PERFORM THE DEVELOPMENT