ACHIEVE
AGREED COMMERCIALIZATION MILESTONES WITHIN THE AGREED PERIOD OF TIME.
FOR
CLARITY, CYBERHEART SHALL NOT BE CONSIDERED TO HAVE FAILED TO MEET ITS DILIGENCE
OBLIGATION UNDER THIS SECTION 7.2 DUE TO ANY FAILURE TO MEET SUCH MILESTONES SO
LONG AS CYBERHEART HAS USED REASONABLE COMMERCIAL EFFORTS TO MEET THE MILESTONE.
7.3
ANY FAILURE OF CYBERHEART TO USE REASONABLE COMMERCIAL EFFORTS TO
MEET THE DILIGENCE OBLIGATIONS UNDER THIS ARTICLE 7 SHALL BE A MATERIAL BREACH
OF THIS AGREEMENT BY CYBERHEART.
NOTWITHSTANDING ANYTHING TO THE CONTRARY,
CYBERHEART SHALL BE DEEMED TO HAVE USED THE REASONABLE COMMERCIAL EFFORTS
REQUIRED IN SECTIONS 7.1 AND 7.2 AND 11.3.3, AND TO HAVE MET ITS DILIGENCE
OBLIGATIONS UNDER THIS ARTICLE 7 AND 11.3.3, IF THE TOTAL AGGREGATE COSTS,
EXPENSES, AND OTHER PAYMENTS INCURRED BY CYBERHEART, ITS AFFILIATES, AND
SUB-LICENSEES (IF AUTHORIZED BY ACCURAY) IN CONNECTION WITH THE RESEARCH,
DEVELOPMENT, FILINGS, MAKING, MARKETING, AND OTHER COMMERCIALIZATION OF
CYBERHEART PRODUCT(S) ARE AT LEAST (I) *** DURING THE TWELVE (12) MONTHS AFTER
THE EFFECTIVE DATE AND (II) AN AGGREGATE OF *** FROM THE EFFECTIVE DATE UNTIL
TWENTY-FOUR (24) MONTHS AFTER THE EFFECTIVE DATE.
7.4
CYBERHEART SHALL USE REASONABLE COMMERCIAL EFFORTS TO OPERATE IN
GOOD STANDING WITH LOCAL, STATE, AND FEDERAL GOVERNMENT AGENCIES, INCLUDING
WITHOUT LIMITATION THE FDA, AND WILL NOT KNOWINGLY MATERIALLY VIOLATE ANY LOCAL,
STATE, OR FEDERAL LAW OR KNOWINGLY CONTINUE ANY SUCH VIOLATION PREVIOUSLY
UNKNOWN THAT AS A CONSEQUENCE OF SUCH VIOLATION, MAY HARM THE GOODWILL AND
REPUTATION OF ACCURAY.
8.
COMPENSATION AND PAYMENT TERMS.
8.1
FEES.
8.1.1
DEVELOPMENT SERVICES FEES.
IN CONSIDERATION OF ACCURAY'S
PERFORMANCE OF THE DEVELOPMENT SERVICES HEREUNDER, CYBERHEART SHALL PAY TO
ACCURAY THE AMOUNTS INDICATED, AND AT THE TIMES SET FORTH, IN EACH STATEMENT OF
WORK.
8.2
PAYMENT.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
27
8.2.1
DEVELOPMENT SERVICES FEES.
FOR DEVELOPMENT SERVICES
PERFORMED ON A FIXED PRICE BASIS, ACCURAY MAY INVOICE CYBERHEART UPON ACCEPTANCE
BY CYBERHEART OF THE APPLICABLE MILESTONE AND DELIVERABLES AS INDICATED IN THE
STATEMENT OF WORK AND SECTION 3.6.
IF THE STATEMENT OF WORK INDICATES THAT
DEVELOPMENT SERVICES ARE TO BE PERFORMED ON A TIME AND MATERIALS BASIS, ACCURAY
SHALL INVOICE CYBERHEART ON A CALENDAR MONTHLY BASIS FOR TIME REASONABLY
EXPENDED IN PERFORMING THE DEVELOPMENT SERVICES AND MATERIALS EXPENSES
AUTHORIZED IN THE STATEMENT OF WORK, OR OTHERWISE AUTHORIZED BY CYBERHEART IN
ADVANCE IN WRITING, AND ACTUALLY INCURRED DURING THE PRIOR CALENDAR MONTH.
UNDER NO CIRCUMSTANCES SHALL CYBERHEART BE RESPONSIBLE FOR PAYING ANY AMOUNTS IN
EXCESS OF ANY BUDGET SET FORTH IN A STATEMENT OF WORK, AND UNDER NO
CIRCUMSTANCES SHALL CYBERHEART BE RESPONSIBLE FOR REIMBURSING ACCURAY FOR ANY
OUT OF POCKET COSTS OR EXPENSES EXCEPT TO THE EXTENT APPROVED BY CYBERHEART IN
ADVANCE IN WRITING AND DOCUMENTED TO CYBERHEART'S REASONABLE SATISFACTION.
THE
RATES CHARGED TO CYBERHEART FOR ACCURAY'S TIME SHALL BE EQUAL TO