THE RIGHTS AND LICENSES TO CYBERHEART
UNDER SUCH TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS OF THE SCOPE CONTEMPLATED
IN THIS AGREEMENT (AND SUFFICIENT TO GRANT THE BACKUP MANUFACTURING RIGHTS TO BE
GRANTED IN THE MANUFACTURING AND SUPPLY AGREEMENT), INCLUDING WITHOUT LIMITATION
TO EXERCISE ALL SUCH RIGHTS BASED UPON AND USING THE DELIVERABLES.
TO THE
EXTENT THAT ACCURAY IS UNABLE TO OBTAIN SUCH OWNERSHIP, THEN IT SHALL OBTAIN
SUFFICIENT RIGHTS FOR ACCURAY TO GRANT TO CYBERHEART UNDER ALL SUCH TECHNOLOGY
AND INTELLECTUAL PROPERTY RIGHTS THE RIGHTS AND LICENSES TO CYBERHEART OF THE
SCOPE CONTEMPLATED IN THIS AGREEMENT.
TO THE EXTENT APPLICABLE AS SET FORTH
ABOVE, CYBERHEART MAY, IN ITS SOLE DISCRETION, BRING ANY ACTION FOR THE
ENFORCEMENT OF, OR CLAIM UNDER, THIS AGREEMENT OR SUB-AGREEMENT, AGAINST EITHER
OR BOTH OF ACCURAY OR ANY AFFILIATE OR SUBCONTRACTOR.
ACCURAY SHALL BE DIRECTLY
LIABLE TO CYBERHEART FOR ANY ACT OR OMISSION OF ANY AFFILIATE OR SUBCONTRACTOR
THAT WOULD GIVE RISE TO A BREACH OF THIS AGREEMENT IF BY ACCURAY, AND ACCURAY
AND ANY SUCH AFFILIATE AND SUBCONTRACTOR SHALL BE JOINTLY AND SEVERALLY LIABLE
FOR ANY BREACH OF ANY SUB-AGREEMENT OR ANY SUCH BREACH OF THIS AGREEMENT AND
WITH RESPECT TO ANY LIABILITY OF ACCURAY OR ANY AFFILIATE OR SUBCONTRACTOR WITH
RESPECT THERETO, SOLELY TO THE EXTENT OF CYBERHEART'S DAMAGES RESULTING FROM THE
BREACH.
NOTWITHSTANDING THE FOREGOING, ACCURAY SHALL BE UNDER NO OBLIGATION TO
RENEGOTIATE OR AMEND ANY AGREEMENT ENTERED INTO OR EFFECTIVE PRIOR TO THE
EFFECTIVE DATE.
HOWEVER, ANY SUCH PRIOR AGREEMENT UNDER WHICH DEVELOPMENT
SERVICES ARE PERFORMED FOR CYBERHEART MUST ENABLE ACCURAY TO GRANT THE RIGHTS
AND LICENSES TO CYBERHEART OF THE SCOPE CONTEMPLATED IN THIS AGREEMENT UNDER THE
TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS DEVELOPED PURSUANT TO SUCH
DEVELOPMENT SERVICES.
3.10
RECORDS.
ACCURAY SHALL KEEP REASONABLE RECORDS OF ALL WORK
CONDUCTED AND RESULTS ACHIEVED IN PERFORMING WORK UNDER THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ALL AGREED UPON DOCUMENTATION, PROCEDURES,
PROCESSES, PROTOCOLS, EQUIPMENT AND MATERIALS EMPLOYED IN CONDUCTING THE WORK,
AND ALL INVENTIONS AND TECHNOLOGY DEVELOPED OR USED.
ADDITIONALLY, IF
DEVELOPMENT SERVICES ARE BEING PAID FOR ON A TIME AND/OR MATERIALS BASIS,
ACCURAY SHALL INCLUDE IN SUCH RECORDS THE TIME AT WHICH THE WORK WAS CONDUCTED
AND THE NAME OF EACH INDIVIDUAL CONDUCTING THE WORK.
ACCURAY SHALL PROVIDE A
COPY OF SUCH RECORDS TO CYBERHEART UPON REASONABLE REQUEST.
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4.
MANAGEMENT.
4.1
JOINT STEERING COMMITTEE.
4.1.1
THE PARTIES SHALL ESTABLISH A JOINT STEERING COMMITTEE
("JSC"), WHICH SHALL PROVIDE A FORUM FOR ENABLING AND FACILITATING COORDINATION
OF THE PARTIES' ACTIVITIES HEREUNDER AND HAVE THE ADDITIONAL RESPONSIBILITIES
ALLOCATED TO IT IN THIS ARTICLE 4.
4.1.2
MEMBERSHIP.
EACH PARTY SHALL DESIGNATE TWO (2) SENIOR
EXECUTIVES WITH APPROPRIATE EXPERTISE TO SERVE AS MEMBERS OF THE JSC, WHO SHALL
INCLUDE THE CYBERHEART CEO AND THE ACCURAY CEO OR AN EXECUTIVE DESIGNATED BY THE
RESPECTIVE PARTY'S CEO.
SUBJECT TO THE FOREGOING, EACH PARTY MAY REPLACE ITS
JSC REPRESENTATIVES AT ANY TIME UPON WRITTEN NOTICE TO THE OTHER PARTY.
4.1.3
MEETINGS.
THE JSC SHALL HOLD MEETINGS AT TIMES AND
LOCATIONS AS IT