SUCH REJECTION, ACCURAY SHALL, WITHIN TWENTY (20) BUSINESS DAYS
AFTER RECEIVING EACH REPORT REGARDING DEFICIENCIES, OR IF THE PARTIES AGREE IN
WRITING TO A DIFFERENT TIME PERIOD, UPON SUCH TIME AS HAS BEEN AGREED TO BY THE
PARTIES, CORRECT THE DEFICIENCIES SO THAT THE DELIVERABLE MATERIALLY CONFORMS TO
THE APPLICABLE PART OF THE SPECIFICATIONS OR STATEMENT OF WORK.
CYBERHEART
AGREES TO COOPERATE REASONABLY WITH ACCURAY IN ACCURAY'S EFFORTS TO DIAGNOSE AND
CORRECT ANY DEFICIENCIES.
THE PROCEDURE IN THIS SECTION 3.6 SHALL BE REPEATED
WITH RESPECT TO A REVISED DELIVERABLE TO DETERMINE WHETHER IT IS ACCEPTABLE TO
CYBERHEART, UNLESS AND UNTIL CYBERHEART EXPRESSLY INDICATES IN ITS DEFICIENCY
NOTICE THAT IT IS ISSUING FINAL REJECTION OF THE REVISED DELIVERABLE AFTER
REJECTING THE DELIVERABLE ON AT LEAST TWO (2) PRIOR OCCASIONS OR OTHERWISE
TERMINATES THE DEVELOPMENT SERVICES UNDER THE STATEMENT OF WORK.
IF CYBERHEART
ISSUES A FINAL REJECTION OF THE REVISED DELIVERABLE PURSUANT TO THIS SECTION
3.6, ACCURAY SHALL RETURN ANY AND ALL COMPENSATION PREVIOUSLY PAID BY CYBERHEART
TO ACCURAY FOR THE NONCONFORMING DELIVERABLE(S) AND FOR THE APPLICABLE STATEMENT
OF WORK. NOTWITHSTANDING THE ABOVE, ACCURAY SHALL NOT BE REQUIRED TO RETURN ANY
PAYMENTS FOR PREVIOUSLY ACCEPTED DELIVERABLES, OR TO THE EXTENT THAT THE
STATEMENT OF WORK IDENTIFIES SEPARATE PAYMENTS FOR CONFORMING COMPONENTS OF
REJECTED DELIVERABLES, FOR SUCH CONFORMING COMPONENTS.
3.7
CHANGES.
CYBERHEART SHALL HAVE THE RIGHT TO PROPOSE CHANGES
("CHANGES") TO ANY STATEMENT OF WORK BY SUBMITTING A CHANGE REQUEST ("CHANGE
REQUEST") TO ACCURAY AS DESCRIBED IN THIS SECTION 3.7.
EACH CHANGE REQUEST
SHALL IDENTIFY THE RELEVANT STATEMENT OF WORK TO WHICH THE CHANGE APPLIES.
UPON
RECEIPT OF ANY CHANGE REQUEST, ACCURAY SHALL, WITHIN FIFTEEN (15) DAYS AFTER ITS
RECEIPT THEREOF, DELIVER A WRITTEN RESPONSE SETTING FORTH THE EFFECT OF ANY SUCH
CHANGE TO THE RELEVANT STATEMENT OF WORK, INCLUDING WITHOUT LIMITATION (I) THE
FEES PAYABLE
17
BY CYBERHEART TO UNDERTAKE THE CHANGE, (II) THE TIME REQUIRED TO EFFECT SUCH
CHANGE, AND (III) ANY ADDITIONAL INFORMATION REASONABLY REQUESTED BY ACCURAY
FROM CYBERHEART TO UNDERTAKE SUCH CHANGE ("CHANGE REQUEST RESPONSE").
ACCURAY
SHALL USE REASONABLE COMMERCIAL EFFORTS TO MINIMIZE ANY INCREASE IN FEES AND THE
DELAY OF ANY SCHEDULE BASED ON ANY CHANGE REQUEST AND SHALL ONLY PROPOSE IN GOOD
FAITH THE EFFECT OF ANY CHANGE ON THE AGREED TO SCHEDULE AND FEES.
UPON RECEIPT
OF ACCURAY'S CHANGE REQUEST RESPONSE, CYBERHEART SHALL, AT ITS SOLE OPTION AND
IN ITS SOLE DISCRETION, EITHER (A) ACCEPT SUCH CHANGE REQUEST RESPONSE, IN WHICH
CASE, THE PARTIES SHALL AMEND THE RELEVANT STATEMENT OF WORK ACCORDINGLY;
(B) PROVIDE ACCURAY WITH A REVISED CHANGE REQUEST ("MODIFIED CHANGE REQUEST") AS
A COUNTEROFFER TO ACCURAY; OR (C) OPT NOT TO EFFECT THE CHANGE.
IN THE EVENT
CYBERHEART DELIVERS A MODIFIED CHANGE REQUEST TO ACCURAY, THE PARTIES SHALL
REPEAT THE PROCESS SET FORTH ABOVE UNTIL ACCURAY HAS ACCEPTED SUCH MODIFIED
CHANGE REQUEST OR CYBERHEART OPTS NOT TO UNDERTAKE THE RELEVANT CHANGE, BUT IF
NO AGREEMENT BETWEEN THE PARTIES AS TO THE CHANGE HAS BEEN REACHED, THE PROPOSED
CHANGE SHALL NOT BE ADOPTED.
NOTWITHSTANDING