PROVIDED SECTION
(III) APPLIES FOLLOWING THE TERM, ACCURAY SHALL NOT SELL, OR ENTER INTO
ANY AGREEMENT WITH A THIRD PARTY TO SELL, ANY STEREOTACTIC RADIOSURGERY PRODUCT
IN THE CYBERHEART FIELD FOR A PERIOD OF ONE (1) YEAR FOLLOWING THE TERM IF THIS
AGREEMENT IS TERMINATED PURSUANT TO (I) SECTION 11.2 FOR CAUSE AND ACCURAY'S
LICENSES TO CYBERHEART DO NOT SURVIVE SUCH TERMINATION PURSUANT TO SECTION
OR (II) SECTION 11.3.
3.
DEVELOPMENT.
3.1
DEVELOPMENT ENGAGEMENT.
IT IS THE INTENT OF THE PARTIES THAT
CYBERHEART SHALL HAVE SOLE DISCRETION WITH RESPECT TO THE DEVELOPMENT OF
CYBERHEART PRODUCTS.
ACCORDINGLY,
14
CYBERHEART HAS THE RIGHT TO ENGAGE THIRD PARTY CONTRACTORS TO PERFORM ANY AND
ALL DEVELOPMENT WORK IN CYBERHEART'S SOLE DISCRETION; PROVIDED THAT CYBERHEART
HAS NO RIGHT TO ENGAGE ACCURAY COMPETITORS FOR SUCH PURPOSE.
THE PARTIES
ACKNOWLEDGE THAT (I) IT IS IN THE INTEREST OF BOTH PARTIES THAT THE TRADE
SECRETS OF BOTH PARTIES BE PROTECTED FROM DISCLOSURE TO THIRD PARTIES AND (II)
THAT, IN LIGHT OF ACCURAY'S DEVELOPMENT OF THE CYBERKNIFE SYSTEM, ACCURAY IS
PARTICULARLY QUALIFIED TO DEVELOP SOME PARTS OF THE CYBERHEART MODULE AND
CYBERHEART SYSTEM.
CONSEQUENTLY, ACCURAY AGREES THAT IT WILL PROVIDE
DEVELOPMENT SERVICES TO CYBERHEART TO THE EXTENT SET FORTH IN SECTION 3.2 AND
AGREED BY ACCURAY.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
CYBERHEART HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REQUEST ACCURAY TO PERFORM
DEVELOPMENT SERVICES AND, IF ACCURAY AGREES TO SUCH REQUEST, THEN ACCURAY SHALL:
(A) PERFORM THE DEVELOPMENT SERVICES DURING THE DEVELOPMENT PERIOD; AND (B)
PROVIDE DELIVERABLES IN ACCORDANCE WITH SPECIFICATIONS, SCHEDULES, AND
MILESTONES, IN EACH CASE AS SET FORTH IN A STATEMENT OF WORK PREPARED BY MUTUAL
AGREEMENT OF THE PARTIES (THE "STATEMENT OF WORK").
FOR CLARITY, THE TERM
STATEMENT OF WORK DOES NOT MEAN STATEMENTS OF WORK BETWEEN CYBERHEART AND THIRD
PARTIES.
A FORM OF STATEMENT OF WORK IS SET FORTH IN EXHIBIT D.
EXCEPT FOR THE
RESTRICTION WITH RESPECT TO ACCURAY COMPETITORS, NOTHING IN THIS AGREEMENT SHALL
PREVENT CYBERHEART FROM USING ANY THIRD PARTY CONTRACTORS TO PERFORM ANY
DEVELOPMENT IN ITS SOLE DISCRETION.
ADDITIONALLY, CYBERHEART SHALL HAVE NO
OBLIGATION TO ENGAGE OR USE ACCURAY TO PERFORM ANY DEVELOPMENT SERVICES AND
ACCURAY SHALL HAVE NO OBLIGATION TO AGREE TO ANY REQUEST OF CYBERHEART TO
PERFORM ANY DEVELOPMENT SERVICES, EXCEPT AS SET FORTH IN SECTION 2.1.1 AND
SUBJECT TO SECTION 3.2.2.
3.2
CONTEMPLATED DEVELOPMENT SERVICES.
3.2.1
INITIAL DEVELOPMENT.
THE PARTIES AGREE THAT THE INITIAL
DEVELOPMENT SERVICES SHALL COMMENCE UPON WRITTEN AGREEMENT BY ACCURAY AND
CYBERHEART TO A STATEMENT OF WORK THAT DEFINES THE DEVELOPMENT SERVICES TO BE
PERFORMED BY ACCURAY USING REASONABLE COMMERCIAL EFFORTS.
EACH STATEMENT OF
WORK SHALL, TO THE EXTENT REQUESTED BY CYBERHEART, PROVIDE FOR DELIVERABLES
(INCLUDING WITHOUT LIMITATION BY WAY OF CYBERHEART IMPROVEMENTS) AS DESCRIBED
THEREIN.
3.2.2
SUBSEQUENT DEVELOPMENT.
IN ADDITION TO THE INITIAL DEVELOPMENT
SERVICES CONTEMPLATED IN SECTION 3.2.1, ACCURAY AGREES THAT IT SHALL, TO THE
EXTENT REASONABLY REQUESTED BY CYBERHEART AND AGREED TO BY ACCURAY, PROVIDE
SUBSEQUENT DEVELOPMENT SERVICES DURING THE DEVELOPMENT PERIOD UNDER MUTUALLY