ALSO SHALL BE RESPONSIBLE FOR RADIATION SURVEYS WHICH MAY
BE REQUIRED BY APPLICABLE LAW OR REGULATION OR WHICH MAY BE NECESSARY TO
ESTABLISH THAT RADIATION DOES NOT EXCEED SAFE LEVELS.
ACCURAY HAS NO
RESPONSIBILITY FOR ANY SUCH COMMISSIONING, QUALITY ASSURANCE TESTING,
CALIBRATION OR RADIATION SURVEYS.
4.2.
LOCAL REQUIREMENTS.
CUSTOMER SHALL BE RESPONSIBLE FOR
OBTAINING ALL PERMITS AND FOR MEETING ALL REQUIREMENTS RELATING TO STATE AND
LOCAL CODES, REGISTRATION, REGULATIONS AND ORDINANCES APPLICABLE TO CUSTOMER'S
USE OF THE CYBERHEART SYSTEM. ACCURAY HAS NO RESPONSIBILITY FOR COMPLIANCE BY
THE CYBERHEART SYSTEM WITH SUCH REQUIREMENTS.
5.
ACCEPTANCE.
"ACCEPTANCE" OF THE CYBERHEART SYSTEM
SHALL OCCUR UPON THE EARLIER OF (I) COMPLETION BY ACCURAY OF ITS ACCEPTANCE TEST
PROCEDURE THAT DEMONSTRATES THAT THE CYBERHEART SYSTEM SUBSTANTIALLY CONFORMS TO
THE SPECIFICATIONS OR (II) EXECUTION OF ACCURAY'S ACCEPTANCE FORM BY CUSTOMER.
IN NO EVENT SHALL CYBERHEART, CUSTOMER OR ITS AGENTS USE THE CYBERHEART SYSTEM
(OR ANY PORTION THEREOF) FOR ANY PURPOSE BEFORE ACCEPTANCE THEREOF WITHOUT THE
EXPRESS WRITTEN APPROVAL OF ACCURAY.
CYBERHEART AND/OR CUSTOMER SHALL INDEMNIFY
AND HOLD ACCURAY HARMLESS FROM ANY SUCH USE.
6.
MUTUAL INDEMNITY.
IF IT IS DETERMINED BY A COURT
IN ACCORDANCE WITH APPLICABLE LAW THAT THE NEGLIGENCE OF A PARTY (THE
"RESPONSIBLE PARTY"), ITS EMPLOYEES OR AGENTS CAUSES DAMAGE OR INJURY TO A THIRD
PARTY, THE RESPONSIBLE PARTY SHALL PAY THE OTHER PARTY FOR ANY DAMAGES AWARDED
BY A COURT OR AGREED TO BY THE RESPONSIBLE PARTY IN A SETTLEMENT ARISING FROM
SUCH CLAIMS TO THE EXTENT SUCH DAMAGES REFLECT THE RESPONSIBLE PARTY'S RELATIVE
FAULT THEREFOR.
NOTWITHSTANDING THE FOREGOING, ACCURAY SHALL HAVE NO
RESPONSIBILITY WHATSOEVER FOR, AND CYBERHEART SHALL INDEMNIFY AND HOLD ACCURAY
HARMLESS FROM, ALL DAMAGE OR INJURY TO THIRD PARTIES WHICH (I) RESULTS FROM THE
USE, OPERATION OR SERVICE OF THE CYBERHEART SYSTEM BY OTHER THAN ACCURAY
PERSONNEL PRIOR TO ACCEPTANCE AND COMPLETION OF THE RADIATION SURVEY BY
CUSTOMER, (II) RESULTS FROM OR RELATES TO ANY SERVICE OF THE CYBERHEART SYSTEM
BY A PARTY NOT AUTHORIZED TO PERFORM SUCH SERVICE BY ACCURAY, OR (III) ANY USE
BY CYBERHEART, CUSTOMER OR THEIR AGENTS OF THE CYBERHEART SYSTEM CONTRARY TO ANY
WRITTEN WARNING OR INSTRUCTION GIVEN BY ACCURAY.
7.
Limitation of Liability and Warranty
7.1.
Accuray's liability arising under this Agreement shall
be limited to an amount not to exceed the payment(s) received by Accuray for the
then current Agreement year.
In addition, Accuray shall not be liable to
CyberHeart in the event that CyberHeart's, Customer's or any third party's acts
or
F-3
omissions contributed in any way to any loss it sustained or the loss or damage
is due to an act of God or other causes beyond its reasonable control.
7.2.
This is a service agreement.
THERE ARE NO INCLUDED OR
IMPLIED ACCURAY WARRANTIES OF PRODUCT FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY.
8.
DAMAGES.
IN NO EVENT SHALL ACCURAY BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM OR RELATED TO THIS
AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCURAY'S
AGGREGATE LIABILITY ARISING FROM