without the written
consent of the other.
11.
ARBITRATION AND EQUITABLE RELIEF.
(A)
ARBITRATION.
EXCEPT AS PROVIDED IN
SECTION 11(B) BELOW, THE COMPANY AND CONTRACTOR AGREE THAT ANY DISPUTE OR
CONTROVERSY ARISING OUT OF OR RELATING TO ANY INTERPRETATION, CONSTRUCTION,
PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION TO BE
HELD IN SANTA CLARA COUNTY, CALIFORNIA
BEFORE A SINGLE, NEUTRAL ARBITRATOR
ASSOCIATED WITH THE JUDICIAL ARBITRATION AND MEDIATION SERVICE ("JAMS").
THE
ARBITRATOR SHALL BE SELECTED BY THE PARTIES OR, IF THE PARTIES ARE UNABLE TO
AGREE, BY JAMS, IN ACCORDANCE WITH ITS SELECTION PRACTICES.
THE ARBITRATOR MAY
GRANT INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY.
THE DECISION
OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE
ARBITRATION.
JUDGMENT MAY BE ENTERED ON THE ARBITRATOR'S DECISION IN ANY COURT
OF COMPETENT JURISDICTION.
UNLESS OTHERWISE REQUIRED TO PRESERVE THE
ENFORCEABILITY OF THIS ARBITRATION CLAUSE, THE COMPANY AND CONTRACTOR SHALL EACH
PAY ONE-HALF OF THE COSTS AND EXPENSES OF SUCH ARBITRA­TION.
(B)
EQUITABLE RELIEF.
CONTRACTOR AGREES THAT IT
WOULD BE IMPOSSIBLE OR INADEQUATE TO MEASURE AND CALCULATE THE COMPANY'S DAMAGES
FROM ANY BREACH OF THE COVENANTS SET FORTH IN SECTION 4 OR 5 HEREIN.
ACCORDINGLY, CONTRACTOR AGREES THAT IF CONTRACTOR BREACHES SECTIONS 4 OR 5, THE
COMPANY WILL HAVE AVAILABLE, IN ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE,
THE RIGHT TO OBTAIN FROM ANY COURT OF COMPETENT JURISDICTION AN INJUNCTION
RESTRAINING SUCH BREACH OR THREATENED BREACH AND SPECIFIC PERFOR­MANCE OF ANY
SUCH PROVISION.
CONTRACTOR FURTHER AGREES THAT NO BOND OR OTHER
INDEPENDENT CONTRACTOR AGREEMENT
ACCURAY CONFIDENTIAL
John Adler, M.D. - 3.22.07
8
Initials:
Contractor
Accuray
/s/ D.M.
SECURITY SHALL BE REQUIRED IN OBTAINING SUCH EQUITABLE RELIEF AND CONTRACTOR
HEREBY CONSENTS TO THE ISSUANCES OF SUCH INJUNCTION AND TO THE ORDERING OF SUCH
SPECIFIC PERFORMANCE.
12.
MISCELLANEOUS.
(A)
AMENDMENTS AND WAIVERS.
ANY TERM OF THIS
AGREEMENT MAY BE AMENDED OR WAIVED ONLY WITH THE WRITTEN CONSENT OF THE PARTIES.
(B)
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING
THE EXHIBITS HERETO, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES AND
SUPERSEDES AND REPLACES ALL ORAL NEGOTIATIONS AND PRIOR WRITINGS WITH RESPECT TO
THE SUBJECT MATTER HEREOF.
(C)
NOTICES.
ANY NOTICE REQUIRED OR PERMITTED
BY THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED SUFFICIENT UPON
RECEIPT, WHEN DELIVERED PERSONALLY OR BY COURIER OR OVERNIGHT DELIVERY SERVICE,
OR THREE DAYS AFTER BEING DEPOSITED IN THE REGULAR UNITED STATES MAIL AS
CERTIFIED OR REGISTERED MAIL (AIRMAIL IF SENT INTERNATIONALLY) WITH POSTAGE
PREPAID, IF SUCH NOTICE IS ADDRESSED TO THE PARTY TO BE NOTIFIED AT SUCH PARTY'S
ADDRESS OR FACSIMILE NUMBER AS SET FORTH BELOW, OR AS SUBSEQUENTLY MODIFIED BY
WRITTEN NOTICE.
(D)
GOVERNING LAW.
THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS PRINCIPLES
OF CONFLICT OF LAWS.
(e)
Legal Fees.
If any dispute arises between
the Parties with respect to matters covered by this Agreement which leads to a
proceeding,