AGREED STATEMENTS OF WORK THAT SHALL ENABLE CYBERHEART TO COMPLETE DEVELOPMENT
OF THE CYBERHEART MODULES AND CYBERHEART SYSTEMS FOR APPLICATIONS IN THE
CYBERHEART FIELD. ACCURAY SHALL USE REASONABLE COMMERCIAL EFFORTS TO ACCOMMODATE
CYBERHEART'S REQUESTS DURING THE DEVELOPMENT PERIOD FOR DEVELOPMENT SERVICES,
INCLUDING WITHOUT LIMITATION USING REASONABLE COMMERCIAL EFFORTS TO ACCOMMODATE
ANY SPECIFICATIONS AND REQUIREMENTS REQUESTED BY CYBERHEART.
3.3
STATEMENT OF WORK.
EACH STATEMENT OF WORK SHALL (I) BE ATTACHED
AND DEEMED INCORPORATED INTO THIS AGREEMENT, (II) HAVE A UNIQUE TITLE, AND
(III) BE CONSECUTIVELY NUMBERED (STATEMENT OF WORK D-1, D-2, D-3, ETC.).
THIS
AGREEMENT MAY COVER MORE THAN ONE STATEMENT OF WORK AT ANY ONE TIME, PROVIDED
THAT EACH STATEMENT OF WORK THAT HAS BEEN SIGNED BY BOTH PARTIES SHALL BE DEEMED
A SEPARATE ENGAGEMENT OF DEVELOPMENT SERVICES FROM ACCURAY.
EACH STATEMENT OF
WORK SHALL ALSO SPECIFY THE PRICE, INCLUDING WITHOUT LIMITATION NUMBER AND
15
TYPE OF FTES, THE TERM OF DEVELOPMENT SERVICES TO BE PERFORMED THEREUNDER, AND
SCHEDULE OF OR MILESTONES REQUIRED TO BE COMPLETED FOR PAYMENTS.
ANY PAYMENTS
THAT ARE SPECIFIED IN CONNECTION WITH A MILESTONE SHALL BECOME DUE AND PAYABLE
ONLY IF THE MILESTONE HAS BEEN SUCCESSFULLY COMPLETED BY ACCURAY, UNLESS CLEARLY
STATED TO THE CONTRARY IN THE APPLICABLE STATEMENT OF WORK.
IN THE EVENT OF ANY
CONFLICT BETWEEN THIS AGREEMENT AND A STATEMENT OF WORK, THE TERMS AND
CONDITIONS OF THIS AGREEMENT SHALL CONTROL IN ALL RESPECTS.
3.4
PERFORMANCE OF DEVELOPMENT SERVICES.
UPON AGREEMENT TO A
STATEMENT OF WORK, CYBERHEART SHALL ISSUE A PURCHASE ORDER TO ACCURAY FOR THE
DEVELOPMENT SERVICES IN ACCORDANCE WITH THE STATEMENT OF WORK, WHICH, SUBJECT TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT, SHALL BE DEEMED AUTHORIZATIONS TO
COMMENCE THE DEVELOPMENT SERVICES REFERENCED IN SUCH STATEMENT OF WORK.
COMMENCING UPON ISSUANCE OF SUCH PURCHASE ORDER AFTER ACCURAY HAS SIGNED THE
STATEMENT OF WORK, ACCURAY SHALL USE REASONABLE COMMERCIAL EFFORTS TO PERFORM
AND COMPLETE THE DEVELOPMENT SERVICES, AND DELIVER ALL DELIVERABLES TO
CYBERHEART, IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH EACH
STATEMENT OF WORK AND APPLICABLE LAW, INCLUDING WITHOUT LIMITATION USING
REASONABLE COMMERCIAL EFFORTS TO MEET ALL TIMELINES AND SPECIFICATIONS.
WITHOUT
LIMITING THE FOREGOING, ACCURAY SHALL DEDICATE AND UTILIZE ADEQUATE MANPOWER,
AND IN PARTICULAR A DEDICATED PROJECT TEAM, IN ORDER TO PERFORM THE DEVELOPMENT
SERVICES IN ACCORDANCE WITH THE STATEMENTS OF WORK IN A TIMELY MANNER, AND ALL
INDIVIDUALS PERFORMING THE DEVELOPMENT SERVICES SHALL BE REASONABLY QUALIFIED TO
PERFORM THE WORK ASSIGNED TO THEM.
ACCURAY SHALL USE REASONABLE COMMERCIAL
EFFORTS NOT TO REALLOCATE ANY INDIVIDUALS IN A MANNER THAT IS DISRUPTIVE OF THE
DEVELOPMENT SERVICES. ACCURAY SHALL REASONABLY SOLICIT CYBERHEART'S FEEDBACK
REGARDING THE DEVELOPMENT SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO
ALL DECISIONS THAT MAY SIGNIFICANTLY AFFECT THE PROGRESS OR RESULTS.
SUBJECT TO
COMPLIANCE WITH THE FOREGOING AND THE OTHER TERMS OF THIS AGREEMENT, THE MANNER
AND MEANS BY WHICH ACCURAY CHOOSES TO COMPLETE ITS RESPONSIBILITIES IN
PERFORMING THE DEVELOPMENT SERVICES ARE IN ACCURAY'S SOLE DISCRETION AND
CONTROL.
THE DELIVERABLES SHALL MATERIALLY CONFORM TO THE REQUIREMENTS SET
FORTH IN