ELECTS TO DO SO, BUT IN NO EVENT SHALL SUCH MEETINGS BE HELD
LESS FREQUENTLY THAN ONCE EVERY CALENDAR QUARTER.
4.1.4
DECISION MAKING.
EACH PARTY'S DESIGNEES ON THE JSC SHALL
COLLECTIVELY HAVE ONE (1) VOTE ON ALL MATTERS BROUGHT BEFORE THE JSC AND
DECISIONS BY THE JSC ON ALL SUCH MATTERS SHALL BE MADE ONLY BY A UNANIMOUS VOTE
OF THE JSC.
ANY DISAGREEMENT BETWEEN THE DESIGNEES OF THE PARTIES ON THE JSC AS
TO MATTERS BROUGHT BEFORE IT SHALL BE REASONABLY DISCUSSED WITHIN THE JSC,
PROVIDED THAT SUCH DISCUSSIONS SHALL OCCUR NO LATER THAN THIRTY (30) DAYS AFTER
EITHER PARTY'S INITIAL REQUEST AND SUBJECT TO THE FOLLOWING.
IF ANY DISPUTE
REGARDING THE INTERPRETATION OF OR BREACH OF A TERM OR CONDITION OF THIS
AGREEMENT, OR THE REASONABLENESS OF ANY TERM OR CONDITION OF A MANUFACTURING AND
SUPPLY AGREEMENT OR OF ANY TERM OR CONDITION OF ANY INSTALLATION OR SERVICE
AGREEMENT (AS DEFINED IN SECTION 6.2), (EACH, A "CONTRACT DISPUTE") HAS NOT BEEN
RESOLVED BY THE JSC FOR ANY REASON WITHIN THIRTY (30) DAYS AFTER EITHER PARTY'S
REQUEST, UPON EITHER PARTY'S GOOD FAITH ELECTION, SUCH CONTRACT DISPUTES SHALL
BE SUBJECT TO THE DISPUTE RESOLUTION PROVISIONS OF SECTION 16.1 (ONLY FOR
ATTEMPTED RESOLUTION BY THE CEOS OR INDEPENDENT BOARD MEMBERS WITHIN THE SIXTY
(60) DAY PERIOD SPECIFIED IN SECTION 16.1) AND SECTION 16.2.
SUBJECT TO ANY
FINAL ARBITRATION DECISION CONCERNING A CONTRACT DISPUTE THAT HAS BEEN ISSUED
PURSUANT TO SECTION 16.2, ALL DECISIONS OF THE JSC SHALL BE FOR ADVISORY
PURPOSES ONLY AND SHALL NOT BE BINDING UPON EITHER PARTY, UNLESS SET FORTH IN A
WRITING THAT IS SIGNED BY BOTH PARTIES.
FOR CLARITY, SUBJECT TO CYBERHEART'S
COMPLIANCE WITH ITS OBLIGATIONS IN ARTICLES 5, 7, AND 8, AND SUBJECT TO SECTION
6.1, THE MANNER AND MEANS BY WHICH THE CYBERHEART PRODUCTS ARE DESIGNED,
DEVELOPED, MANUFACTURED, AND COMMERCIALIZED SHALL BE IN CYBERHEART'S SOLE
DISCRETION AND CONTROL, AND CYBERHEART SHALL HAVE EXCLUSIVE DECISION MAKING
AUTHORITY WITH RESPECT TO ALL SUCH DESIGN, DEVELOPMENT, MANUFACTURE, AND
COMMERCIALIZATION.
FOR CLARITY, NOTHING IN THIS SECTION 4.1.4 SHALL BE
CONSTRUED AS REQUIRING ARBITRATION OF ANY TOPICS OTHER THAN CONTRACT DISPUTES.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO GIVE ACCURAY, THE JSC, OR ANY
ARBITRATOR, DECISION MAKING AUTHORITY WITH RESPECT TO, AND THE CONSENT AND/OR
AGREEMENT OF ACCURAY, THE JSC, OR ANY ARBITRATOR SHALL NOT BE REQUIRED FOR, ANY
RESEARCH, DEVELOPMENT, DESIGN, MARKETING, PRICING, COMMERCIALIZATION, OR OTHER
DECISIONS RELATED TO CYBERHEART PRODUCTS.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY, THE JSC SHALL HAVE NO AUTHORITY OR POWER TO AMEND OR ALTER ANY OF THE
TERMS AND CONDITIONS OF, OR TO AMEND OR WAIVE COMPLIANCE WITH, THIS AGREEMENT.
20
4.1.5
MEETING AGENDAS.
EACH PARTY SHALL DISCLOSE TO THE OTHER
PARTY THE PROPOSED AGENDA ITEMS ALONG WITH APPROPRIATE INFORMATION AT LEAST
THREE (3) BUSINESS DAYS IN ADVANCE OF EACH MEETING OF THE JSC; PROVIDED THAT,
UNDER EXIGENT CIRCUMSTANCES REQUIRING JSC INPUT, A PARTY MAY PROVIDE ITS AGENDA
ITEMS TO THE OTHER PARTY WITHIN A LESSER PERIOD OF TIME IN ADVANCE OF