THOSE
MEASURES THAT SUCH PARTY TAKES TO PROTECT ITS OWN CONFIDENTIAL INFORMATION OF A
SIMILAR NATURE, BUT IN NO EVENT LESS THAN REASONABLE MEASURES.
EACH PARTY SHALL
REPRODUCE THE OTHER PARTY'S PROPRIETARY RIGHTS NOTICES ON ALL COPIES, IN THE
SAME MANNER IN WHICH SUCH NOTICES WERE SET FORTH IN OR ON THE ORIGINAL.
EACH
PARTY SHALL IMMEDIATELY NOTIFY THE OTHER PARTY IN THE EVENT OF ANY UNAUTHORIZED
USE OR DISCLOSURE OF THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY.
14.5
NON-DISCLOSURE OF TERMS.
EACH PARTY AGREES NOT TO DISCLOSE TO ANY
THIRD PARTY THE TERMS OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ALL
EXHIBITS) WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, EXCEPT TO SUCH
PARTY'S ATTORNEYS, ADVISORS, INVESTORS, POTENTIAL INVESTORS, AND OTHERS ON A
NEED TO KNOW BASIS UNDER CIRCUMSTANCES THAT REASONABLY ENSURE THE
CONFIDENTIALITY THEREOF, OR IN CONNECTION WITH FINANCING ACTIVITIES, SECURITIES
FILINGS, MERGERS, ACQUISITIONS, OR THE LIKE.
14.6
PERMITTED DISCLOSURES.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED
TO PROHIBIT THE RECEIVING PARTY FROM DISCLOSING ANY CONFIDENTIAL INFORMATION TO
THE EXTENT (I) REQUIRED BY LAW OR (II) PURSUANT TO THE WRITTEN CONSENT OF THE
DISCLOSING PARTY; PROVIDED, HOWEVER, THAT IN THE EVENT OF SUCH REQUIREMENT,
PRIOR TO DISCLOSING ANY CONFIDENTIAL INFORMATION, THE RECEIVING PARTY SHALL
NOTIFY THE DISCLOSING PARTY OF THE SCOPE AND SOURCE OF SUCH LEGAL REQUIREMENT
AND SHALL, TO THE EXTENT REASONABLY POSSIBLE, GIVE THE DISCLOSING PARTY THE
OPPORTUNITY TO CHALLENGE THE NEED TO DISCLOSE AND/OR LIMIT THE SCOPE OF
DISCLOSED INFORMATION.
40
15.
REPRESENTATIONS, WARRANTIES, INDEMNIFICATION, AND INSURANCE.
15.1
REPRESENTATIONS AND WARRANTIES.
15.1.1
GENERAL.
EACH PARTY HEREBY REPRESENTS AND WARRANTS THAT IT
HAS THE FULL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT; THAT THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREUNDER DO NOT VIOLATE OR BREACH
THE TERMS OF ANY OTHER AGREEMENT WITH ANY THIRD PARTY; AND IT HAS NOT PREVIOUSLY
MADE, AND DURING THE TERM SHALL NOT MAKE, ANY COMMITMENT OR GRANT OR
AUTHORIZATION OF RIGHTS WHICH ARE IN CONFLICT IN ANY MATERIAL WAY WITH THE
RIGHTS, LICENSES, OR EXCLUSIVITY GRANTED TO THE OTHER PARTY HEREIN.
15.1.2
INTELLECTUAL PROPERTY RIGHTS.
ACCURAY HEREBY REPRESENTS AND
WARRANTS THAT (I) IT IS THE SOLE AND EXCLUSIVE OWNER OF THE TECHNOLOGY SET FORTH
IN EXHIBIT B AND THE PATENTS SET FORTH IN EXHIBIT B, AND HAS THE RIGHT WITH
RESPECT THERETO TO GRANT THE EXCLUSIVITY, RIGHTS, AND LICENSES THERETO TO
CYBERHEART AS SET FORTH HEREIN; (II) IT HAS NOT RECEIVED ANY WRITTEN NOTICE FROM
ANY THIRD PARTY THAT THE CYBERKNIFE SYSTEM, COMPONENT THEREOF, OR METHOD OF
MAKING OR MANUFACTURING ANY OF THE FOREGOING INFRINGES OR MISAPPROPRIATES THE
RIGHTS OF ANY THIRD PARTY; (III) IT IS NOT AWARE OF ANY FACTS OR CIRCUMSTANCES
PROVIDING THE BASIS FOR ANY THIRD PARTY MAKING ANY OFFER OR DELIVERING ANY
INFRINGEMENT NOTICE UNDER (II), ABOVE; (IV) UPON EXECUTION OF THIS AGREEMENT BY
BOTH PARTIES, TO ITS ACTUAL KNOWLEDGE, THE RIGHTS AND LICENSES GRANTED BY
ACCURAY TO CYBERHEART IN THIS AGREEMENT SHALL BE FULLY VALID AND ENFORCEABLE IN
ACCORDANCE WITH THEIR TERMS, INCLUDING WITHOUT