HAVE A RIGHT AND LICENSE TO CONTINUE TO USE AND DISCLOSE IN
ACCORDANCE WITH THIS AGREEMENT, TO THE SAME EXTENT THEN EXISTING, ANY
CONFIDENTIAL INFORMATION OF THE OTHER PARTY DISCLOSED DURING THE TERM TO THE
EXTENT SUCH PARTY'S RIGHTS AND LICENSES UNDER THE ACCURAY TECHNOLOGY (IN THE
CASE OF RIGHTS AND LICENSES TO CYBERHEART) OR UNDER THE CYBERHEART TECHNOLOGY
(IN THE CASE OF RIGHTS AND LICENSES TO ACCURAY) SURVIVE. UPON EACH PARTY'S
DECISION TO TERMINATE USE AND DISCLOSURE OF SUCH CONFIDENTIAL INFORMATION OF THE
OTHER PARTY, SUCH PARTY SHALL RETURN, OR AT THE INSTRUCTION OF THE DISCLOSING
PARTY, DESTROY, THE DISCLOSING PARTY'S RETAINED CONFIDENTIAL INFORMATION.
FOR AVOIDANCE OF DOUBT, NO TERMINATION OR EXPIRATION OF THIS
AGREEMENT SHALL BE DEEMED TO TERMINATE OR OTHERWISE EXTINGUISH ANY RIGHTS OF ANY
CUSTOMERS OF A CYBERKNIFE SYSTEM UNDER THEIR THEN CURRENT CONTRACTS FOR USE OF
SUCH CYBERKNIFE SYSTEM, AND NO TERMINATION OR EXPIRATION OF THIS AGREEMENT SHALL
TERMINATE OR OTHERWISE AFFECT OR EXTINGUISH THE RIGHTS OR LICENSES OF ANY
CUSTOMER FOR ANY CYBERHEART PRODUCTS.
IF A CUSTOMER OF A CYBERHEART PRODUCT
MATERIALLY BREACHES ITS USER AGREEMENT WITH CYBERHEART, OR ANY AGREEMENT WITH
ACCURAY RELATED TO SUCH CYBERHEART PRODUCT, THROUGH NO FAULT OF CYBERHEART,
WHETHER BY INDUCEMENT OR OTHERWISE, THEN ANY LICENSES TO CYBERHEART UNDER THIS
AGREEMENT SHALL NOT BE EXTINGUISHED DUE TO SUCH CUSTOMER BREACH.
NO TERMINATION BY ANY PARTY OR THE EXPIRATION OF THIS
AGREEMENT SHALL RELIEVE EITHER PARTY OF ANY LIABILITY ACCRUED HEREUNDER PRIOR TO
ITS TERMINATION.
11.5.2
DEVELOPMENT SERVICES.
UNLESS OTHERWISE INSTRUCTED BY
CYBERHEART, UPON THE TERMINATION OF THIS AGREEMENT OR ANY RELEVANT STATEMENT OF
WORK, ACCURAY SHALL:
37
IMMEDIATELY CEASE ALL PERFORMANCE OF THE TERMINATED
DEVELOPMENT SERVICES AND FURNISH TO CYBERHEART ALL DELIVERABLES AND WORK IN
PROGRESS; AND
WITHIN THIRTY (30) DAYS, PROVIDE TO CYBERHEART A FULL
ACCOUNTING ITEMIZING ALL DEVELOPMENT SERVICES PERFORMED PRIOR TO TERMINATION,
FOR WHICH ACCURAY HAS NOT YET RECEIVED PAYMENT AND IS ENTITLED TO RECEIVE
PAYMENT.
IN THE EVENT CYBERHEART INSTRUCTS ACCURAY TO CONTINUE TO
PERFORM ANY DEVELOPMENT SERVICES PURSUANT TO ANY OUTSTANDING PURCHASE ORDER
UNDER ANY STATEMENT OF WORK, ALL RELEVANT PROVISIONS APPLICABLE TO SUCH
PERFORMANCE SHALL CONTINUE TO SURVIVE AS NECESSARY FOR ACCURAY TO FULFILL SUCH
OBLIGATIONS.
11.5.3
TERMINATION PURSUANT TO SECTION 11.4.
IF CYBERHEART
TERMINATES THIS AGREEMENT PURSUANT TO SECTION 11.4, CYBERHEART SHALL COMPENSATE
ACCURAY FOR ALL COSTS INCURRED TO WIND DOWN ANY ONGOING ACTIVITIES (INCLUDING
WITHOUT LIMITATION ANY DEVELOPMENT SERVICES OR MANUFACTURING, INSTALLATION, OR
MAINTENANCE SERVICES) BEING PERFORMED BY ACCURAY AS OF THE EFFECTIVE DATE OF
SUCH TERMINATION AND REASONABLY INCURRED BY ACCURAY THEREAFTER, AND CYBERHEART
SHALL HAVE NO RIGHT TO ENTER INTO AGREEMENTS OR ARRANGEMENTS WITH ACCURAY
COMPETITORS FOR A PERIOD OF TWO (2) YEARS FOLLOWING SUCH TERMINATION.
11.6
SURVIVAL.
THE FOLLOWING PROVISIONS SHALL SURVIVE ANY TERMINATION
OR EXPIRATION OF THIS AGREEMENT:
(I) ARTICLES 1, 5 (ONLY WITH RESPECT TO
ACTIVITIES OCCURRING OR COMMENCED DURING THE TERM), 8 (SOLELY FOR AMOUNTS OWED
DURING THE TERM BUT NOT PAID), 9, 10 (BUT ONLY TO THE EXTENT