DIRECT LABOR
COSTS PLUS FORTY PERCENT (40%). NOTWITHSTANDING THE FOREGOING, ALL PAYMENTS
UNDER THIS SECTION 8.2.1 THAT BECOME DUE OR PAYABLE PRIOR TO CYBERHEART
OBTAINING MORE THAN ONE MILLION U.S. DOLLARS ($1,000,000) OF INVESTMENT
FINANCING SHALL BE DEFERRED UNTIL, AND SHALL NOT BE DUE OR PAYABLE UNTIL THIRTY
(30) DAYS AFTER SUCH TIME AS CYBERHEART HAS COMPLETED INVESTMENTS TOTALING SUCH
AMOUNT.
8.3
PAYMENT TERMS.
ALL AMOUNTS PAID HEREUNDER SHALL BE IN U.S.
DOLLARS.
CYBERHEART SHALL PAY ALL FEES THAT HAVE BECOME DUE AND PAYABLE
HEREUNDER WITHIN THIRTY (30) DAYS OF RECEIPT OF ACCURAY'S INVOICE IN ACCORDANCE
WITH THIS AGREEMENT.
IF CYBERHEART FAILS TO MAKE ANY PAYMENT REQUIRED UNDER
THIS AGREEMENT WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH SUCH PAYMENT
BECOMES DUE AND PAYABLE, THEN ACCURAY MAY, AT ITS OPTION AND SOLE DISCRETION AND
IN ADDITION TO ANY OTHER REMEDIES IT MAY HAVE AT LAW OR EQUITY, ASSESS A LATE
FEE IN THE AMOUNT EQUAL TO ONE PERCENT (1%) OF THE UNPAID BALANCE FOR EACH MONTH
AFTER PAYMENT IS DUE UNTIL THE INVOICE IS PAID IN FULL, OR IF LESS, THE MAXIMUM
ALLOWABLE BY LAW.
8.4
TAXES.
IN ADDITION TO THE PAYMENT OF FEES AND OTHER AMOUNTS
DESCRIBED ABOVE, CYBERHEART SHALL PAY ALL TAXES, INCLUDING WITHOUT LIMITATION
SALES AND USE TAX, BUT EXCLUDING ANY TAX BASED UPON THE NET INCOME OF ACCURAY,
IF IMPOSED BY ANY GOVERNMENT AS A RESULT OF PAYMENTS MADE TO ACCURAY UNDER THIS
AGREEMENT.
CYBERHEART MAY WITHHOLD FROM, AND REDUCE THE AMOUNT OF, PAYMENT TO
ACCURAY UNDER THIS AGREEMENT FOR ANY TAXES REQUIRED TO BE WITHHELD BY CYBERHEART
UNDER THE APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER COUNTRY.
SUCH
AMOUNT SHALL BE PAID TO THE APPROPRIATE TAXING AUTHORITIES, AND CYBERHEART SHALL
PROVIDE ACCURAY WITH OFFICIAL RECEIPTS ISSUED BY SAID TAXING AUTHORITY OR SUCH
OTHER EVIDENCE AS IS REASONABLY AVAILABLE TO ESTABLISH THAT SUCH TAXES HAVE BEEN
PAID.
CYBERHEART SHALL COOPERATE WITH ACCURAY AND TAKE ALL ACTIONS REASONABLY
NECESSARY, THAT DO NOT RESULT IN ANY COST, EXPENSE, OR DETRIMENT TO CYBERHEART,
IN ORDER TO SECURE ANY REASONABLY AVAILABLE REDUCTION OR ELIMINATION OF
WITHHOLDING TAXES PURSUANT TO ANY INCOME TAX TREATY BETWEEN THE UNITED STATES
AND ANY OTHER COUNTRY.
8.5
CYBERHEART BOARD OF DIRECTORS OBSERVATION RIGHT. AS PART OF THE
CONSIDERATION FROM CYBERHEART TO ACCURAY UNDER THIS AGREEMENT, CYBERHEART SHALL
PROVIDE REASONABLE BOARD OBSERVATION RIGHTS TO AN INDIVIDUAL DESIGNATED BY
ACCURAY TO WHICH CYBERHEART
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HAS NO REASONABLE OBJECTION. THIS SECTION 8.5 SHALL NOT SURVIVE ANY TERMINATION
OR EXPIRATION OF THIS AGREEMENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY.
8.6
THE FEES ARE ACCURAY'S SOLE REMUNERATION FOR ALL RIGHTS AND
LICENSES GRANTED, AND SERVICES PROVIDED, UNDER THIS AGREEMENT.
9.
INTELLECTUAL PROPERTY OWNERSHIP.
9.1
OWNERSHIP.
9.1.1
EXISTING RIGHTS. EXCEPT AS SPECIFIED OTHERWISE IN THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ANY EXCLUSIVITY IN THIS AGREEMENT, (I) EACH PARTY
SHALL RETAIN AND OWN ALL RIGHT, TITLE, AND INTEREST IN AND TO ALL INTELLECTUAL
PROPERTY RIGHTS CONCEIVED OR CREATED SOLELY BY SUCH PARTY, (II) THE PARTIES
SHALL JOINTLY OWN ALL RIGHT,