BY ACCURAY AND ITS
AFFILIATES OR UNTIL TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 11.2,
11.3, OR 11.4, WHICHEVER OCCURS FIRST.
1.31
"MANUFACTURING AND SUPPLY AGREEMENT" HAS THE MEANING ASSIGNED TO
SUCH TERM UNDER SECTION 6.1.1.
6
1.32
"MANUFACTURING TECHNOLOGY" MEANS THE TECHNOLOGY OWNED OR CONTROLLED
BY ACCURAY THAT IS USED IN OR IS USEFUL FOR ANY MANUFACTURING OF A CYBERKNIFE
SYSTEM, CYBERKNIFE COMPONENT, OR CYBERHEART PRODUCT, OR OF ANY COMPONENTS OR
PORTIONS OF A CYBERHEART PRODUCT.
FOR CLARITY, MANUFACTURING TECHNOLOGY DOES
NOT INCLUDE (I) DRAWINGS OR DESIGNS OF CYBERHEART PRODUCTS, (II) SOFTWARE
FLOW-CHARTS OR PSEUDOCODE THAT IS NOT CONSIDERED SOURCE CODE OR WRITTEN IN ANY
PROGRAMMING LANGUAGE, OR (III) SOURCE CODE FOR ANY INTERFACE DELIVERED UNDER A
STATEMENT OF WORK OR UNDER SECTION 2.1.
1.33
"NEW SOFTWARE" MEANS ALL RIGHT, TITLE AND INTEREST IN AND TO ALL
SOFTWARE, FIRMWARE, AND OTHER CODE THAT IS CREATED OR DEVELOPED IN CONNECTION
WITH THE RESEARCH, DEVELOPMENT, OR MODIFICATION OF OR FOR ANY CYBERHEART
PRODUCT, OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION UNDER THIS
AGREEMENT AND INCLUDING WITHOUT LIMITATION ALL INTELLECTUAL PROPERTY RIGHTS TO
THE EXTENT EMBODIED IN OR CONCERNING SUCH SOFTWARE, FIRMWARE, AND OTHER CODE.
FOR THE AVOIDANCE OF DOUBT, NEW SOFTWARE SHALL NOT INCLUDE ANY SOFTWARE
DEVELOPED BY ACCURAY, OUTSIDE OF A STATEMENT OF WORK, FOR ITS CYBERKNIFE SYSTEM.
1.34
"PATENTS" MEANS ANY AND ALL (I) PENDING AND ISSUED U.S., FOREIGN,
INTERNATIONAL, AND REGIONAL PATENTS, PATENT APPLICATIONS, CERTIFICATES OF
INVENTION, PATENTS OF ADDITION OR SUBSTITUTION, UTILITY MODEL, DESIGN
REGISTRATION, AND OTHER GOVERNMENTAL GRANTS FOR THE PROTECTION OF INVENTIONS, OR
INDUSTRIAL DESIGNS ANYWHERE IN THE WORLD; (II) PROVISIONAL, CONTINUATIONS,
CONTINUATIONS-IN-PART, SUBSTITUTIONS
DIVISIONAL, CONTINUED PROSECUTION, AND
OTHER APPLICATIONS THEREOF; (III) PATENTS ISSUING ON ANY OF THE FOREGOING;
(IV) RENEWAL, REISSUES, RE-EXAMINATIONS, AND EXTENSIONS OF ANY SUCH PATENTS OR
PATENT APPLICATIONS; AND (V) FOREIGN COUNTERPARTS OR EQUIVALENTS OF ANY OF THE
FOREGOING IN ANY COUNTRY OR JURISDICTION.
1.35
"PER-CLICK REVENUE" MEANS THE PER-USE REVENUE ACTUALLY RECEIVED,
EARNED OR DEFERRED, BY CYBERHEART FROM AN END-USER OF A CYBERHEART PRODUCT IN
CONSIDERATION FOR EACH USE OF THE CYBERHEART PRODUCT BY SUCH END-USER; LESS:
SALES TAXES, DUTIES AND OTHER GOVERNMENTAL CHARGES (INCLUDING VALUE ADDED TAX),
BUT EXCLUDING WHAT IS COMMONLY KNOWN AS INCOME TAXES; PROVIDED THAT SUCH AMOUNTS
ARE CHARGED SEPARATELY ON THE INVOICE AND PAID BY SUCH END-USER OR
REPRESENTATIVE OR AGENT (INCLUDING, WITHOUT LIMITATION, FINANCING ENTITIES) OF
SUCH END-USER.
1.36
"PERSON" SHALL BE BROADLY INTERPRETED TO INCLUDE AN INDIVIDUAL, A
PARTNERSHIP, A CORPORATION, A LIMITED LIABILITY COMPANY, AN ASSOCIATION, A JOINT
STOCK COMPANY, A TRUST, A JOINT VENTURE, AN UNINCORPORATED ORGANIZATION, OR A
GOVERNMENTAL ENTITY OR ANY DEPARTMENT, AGENCY, OR POLITICAL SUBDIVISION THEREOF.
1.37
"PROJECT MANAGER" HAS THE MEANING ASSIGNED TO SUCH TERM UNDER
SECTION 4.2.1.
1.38
"REASONABLE COMMERCIAL EFFORTS"
MEANS (I) WITH RESPECT TO THE
EFFORTS TO BE EXPENDED BY ANY PERSON - WITH RESPECT TO ANY OBJECTIVE - REASONABLE,
DILIGENT, GOOD FAITH EFFORTS TO ACCOMPLISH SUCH OBJECTIVE AS SUCH PERSON WOULD
USE OR HAS USED IN THE ORDINARY COURSE OF BUSINESS TO ACCOMPLISH A SIMILAR
OBJECTIVE