SECTIONS AND
INCLUDE THE RIGHT FOR ACCURAY TO GRANT AND AUTHORIZE SUBLICENSES ONLY TO FINAL
END-USERS, WITHOUT CYBERHEART'S CONSENT, OF THE OBJECT CODE VERSION OF ANY
SOFTWARE, FIRMWARE, AND OTHER CODE THAT IS INCLUDED IN ANY CYBERKNIFE SYSTEM
(THE "CYBERKNIFE SOFTWARE") FOR USE OF THE CYBERKNIFE SOFTWARE WITH THE
CYBERKNIFE SYSTEM, ON COMMERCIALLY REASONABLE TERMS.
SUCH LICENSE SHALL INCLUDE
PROHIBITIONS AGAINST REVERSE ENGINEERING OF THE CYBERKNIFE SOFTWARE, SUBJECT TO
APPLICABLE LAW.
ACCURAY SHALL HAVE THE RIGHT TO GRANT AND AUTHORIZE SUBLICENSES
(INCLUDING WITHOUT LIMITATION SUBLICENESS OF OBJECT CODE TO NON END-USERS) OF
THE RIGHTS GRANTED TO ACCURAY IN THIS SECTION 2.2.6 ONLY UPON THE PRIOR WRITTEN
CONSENT OF CYBERHEART,
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WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED, OR CONDITIONED.
CYBERHEART 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. EACH SUCH SUBLICENSE SHALL REQUIRE THE SUBLICENSEE TO AGREE IN
WRITING TO BE BOUND BY TERMS AND CONDITIONS MATERIALLY AS PROTECTIVE OF
CYBERHEART AS OF THE PROVISIONS OF THIS AGREEMENT, AND NO SUBLICENSE UNDER THIS
SECTION SHALL TERMINATE UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT
EXCEPT TO THE EXTENT OTHERWISE AGREED BY THE PARTIES IN WRITING, SUCH AGREEMENT
NOT TO BE UNREASONABLY WITHHELD, DELAYED, OR CONDITIONED.
2.2.7
RETAINED RIGHTS; NO OTHER RIGHTS.
ACCURAY EXPRESSLY RESERVES AND RETAINS ALL RIGHT, TITLE, AND INTEREST
IN, TO, AND UNDER ACCURAY'S INTELLECTUAL PROPERTY RIGHTS OUTSIDE THE CYBERHEART
FIELD AND ALL RIGHTS OF ACCURAY NOT EXPRESSLY GRANTED TO CYBERHEART BY ACCURAY
UNDER THIS AGREEMENT.
SIMILARLY, CYBERHEART EXPRESSLY RESERVES AND RETAINS ALL
RIGHT, TITLE, AND INTEREST IN, TO, AND UNDER CYBERHEART'S INTELLECTUAL PROPERTY
RIGHTS OUTSIDE THE ACCURAY FIELD AND ALL RIGHTS OF CYBERHEART NOT EXPRESSLY
GRANTED TO ACCURAY BY CYBERHEART UNDER THIS AGREEMENT.
NO OTHER RIGHTS,
LICENSES, OR INTEREST ARE GRANTED BY A PARTY TO THE OTHER PARTY BY IMPLICATION,
ESTOPPEL, OR OTHERWISE, UNDER SUCH PARTY'S INTELLECTUAL PROPERTY RIGHTS OTHER
THAN AS EXPRESSLY GRANTED BY THIS AGREEMENT.
CYBERHEART AGREES AND ACKNOWLEDGES
THAT IT SHALL NOT EXERCISE OR PRACTICE ANY OF ACCURAY'S INTELLECTUAL PROPERTY
RIGHTS TO DEVELOP OR COMMERCIALIZE ANY PRODUCT IN THE ACCURAY FIELD.
FOR
CLARITY, THE LICENSES GRANTED TO CYBERHEART UNDER THIS AGREEMENT SHALL NOT BE
CONSTRUED TO PROHIBIT OR RESTRICT ACCURAY OR ITS AFFILIATES IN ANY MANNER FROM
EXPLOITING THE ACCURAY PATENTS OR ACCURAY TECHNOLOGY FOR ANY PURPOSES OUTSIDE
THE CYBERHEART FIELD.
ADDITIONALLY, ACCURAY RETAINS:
(I) A NON-EXCLUSIVE RIGHT IN THE
CYBERHEART FIELD ONLY (A) TO PERFORM THE DEVELOPMENT SERVICES IN ACCORDANCE WITH
STATEMENT(S) OF WORK UNDER THIS AGREEMENT FOR THE BENEFIT OF CYBERHEART DURING
THE DEVELOPMENT PERIOD AND (B) TO MANUFACTURE AND SELL TO CYBERHEART COMPONENTS
OF CYBERHEART PRODUCTS THAT ARE NOT A CYBERKNIFE COMPONENT, BUT ONLY TO THE
EXTENT MUTUALLY AGREED BY THE PARTIES IN THE MANUFACTURING AND SUPPLY AGREEMENT
ENTERED INTO PURSUANT TO SECTION 6.1 OR OTHERWISE AGREED IN A SUBSEQUENT
WRITING; AND (II) AN EXCLUSIVE RIGHT TO MANUFACTURE AND HAVE MANUFACTURED (A)
ANY CYBERKNIFE COMPONENTS THAT ARE SOLD