THE ACCURAY FIELD,
CYBERHEART SHALL BE REIMBURSED OUT OF CYBERHEART'S OWN RECOVERY CYBERHEART'S
REASONABLE EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES) AND FOR ANY
PAYMENTS MADE TO ACCURAY FOR ANY REASONABLE EXPENSES INCURRED BY ACCURAY IN
PROVIDING ANY ASSISTANCE AND COOPERATION REQUESTED BY AND PROVIDED TO CYBERHEART
IN CONNECTION WITH SUCH SUIT OR ACTION. ANY REMAINING AMOUNT SHALL BE ALLOCATED
FIFTY PERCENT (50%) TO CYBERHEART AND FIFTY PERCENT (50%) TO ACCURAY.
BY ACCURAY.
IN THE EVENT CYBERHEART (I) HAS NOT FILED A
SUIT OR ACTION WITH RESPECT TO A THIRD-PARTY INFRINGEMENT OF CYBERHEART PATENTS
IN THE ACCURAY FIELD WITHIN NINETY (90) DAYS OF LEARNING OF SUCH THIRD-PARTY
INFRINGEMENT, (II) CEASES TO USE DILIGENT EFFORTS WITH RESPECT TO SUCH SUIT OR
ACTION, OR (III) PROVIDES WRITTEN NOTICE TO ACCURAY OF ITS REFUSAL TO FILE OR
PURSUE SUCH SUIT OR ACTION, THEN, UPON ACCURAY'S PRIOR WRITTEN NOTICE, ACCURAY
SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO BRING ANY APPROPRIATE SUIT OR
ACTION TO ENFORCE ANY SUCH CYBERHEART PATENTS. NOTWITHSTANDING THE FOREGOING,
ACCURAY SHALL NOT HAVE SUCH RIGHT EVEN IF CYBERHEART DOES NOT FILE OR PURSUE A
SUIT OR ACTION UNDER ALL PATENT CLAIMS THAT MAY BE INFRINGED, (I) IF CYBERHEART
HAS FILED DURING SUCH NINETY (90) DAY PERIOD, AND CONTINUES TO USE REASONABLE
COMMERCIAL EFFORTS TO PURSUE A SUIT OR ACTION TO ENFORCE THE CYBERHEART PATENTS,
UNDER SOME OF SUCH PATENT CLAIMS, THAT IS REASONABLY ANTICIPATED BY CYBERHEART
TO TERMINATE SUCH
34
THIRD-PARTY INFRINGEMENT, OR (II) IF CYBERHEART REASONABLY DETERMINES FILING A
SUIT OR ACTION WOULD MATERIALLY HARM ITS BUSINESS. IF ACCURAY UNDERTAKES SUCH A
SUIT OR ACTION, CYBERHEART SHALL REASONABLY JOIN AS A PARTY TO SUCH SUIT OR
ACTION, TAKE SUCH OTHER ACTIONS AS ARE NECESSARY FOR STANDING OR TO OTHERWISE
BRING OR PURSUE SUCH ACTION, AND CYBERHEART SHALL REASONABLY COOPERATE WITH
ACCURAY, INCLUDING WITHOUT LIMITATION EXECUTING ALL PAPERS, CAUSING ITS
EMPLOYEES TO TESTIFY WHEN REQUESTED, MAKING AVAILABLE RELEVANT RECORDS, PAPERS,
INFORMATION, SAMPLES, SPECIMENS, AND THE LIKE, AND PERFORMING SUCH OTHER ACTS AS
MAY BE REASONABLY REQUESTED BY ACCURAY.
ACCURAY SHALL BEAR THE REASONABLE
EXPENSES INCURRED BY CYBERHEART IN PROVIDING ASSISTANCE AND COOPERATION PURSUANT
TO THIS SECTION AS REQUESTED BY ACCURAY.
CYBERHEART MAY, AT ITS
EXPENSE, BE REPRESENTED BY COUNSEL OF ITS CHOICE.
UNLESS ACCURAY AND CYBERHEART
OTHERWISE AGREE, ANY AMOUNT RECOVERED IN SUCH SUIT OR ACTION, WHETHER BY
JUDGMENT OR SETTLEMENT, AFTER DEDUCTING ACCURAY'S REASONABLE EXPENSES (INCLUDING
WITHOUT LIMITATION ANY ATTORNEYS' FEES) AND SUBJECT TO PAYMENT TO CYBERHEART OF
ANY REASONABLE EXPENSES INCURRED BY CYBERHEART IN PROVIDING ASSISTANCE AND
COOPERATION AS REQUESTED BY ACCURAY, SHALL BE PAID TO OR RETAINED ENTIRELY BY
ACCURAY.
THIS SECTION SHALL NOT GIVE ACCURAY THE RIGHT TO ENFORCE ANY
CYBERHEART PATENT AGAINST ANY THIRD-PARTY INFRINGEMENT IN THE CYBERHEART FIELD.
11.
TERM AND TERMINATION.
11.1
TERM.
THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE EFFECTIVE DATE
AND SHALL REMAIN IN EFFECT UNTIL THE LAST TO EXPIRE OF THE ACCURAY PATENTS
UNLESS EARLIER TERMINATED IN ACCORDANCE WITH SECTION 11.2, SECTION 11.3, OR
SECTION 11.4