THE STATEMENT OF WORK, INCLUDING WITHOUT LIMITATION THE SPECIFICATIONS,
AND ACCURAY SHALL NOTIFY CYBERHEART IN WRITING, CONCURRENT WITH DELIVERY OF EACH
DELIVERABLE, OF ANY NON-COMPLIANCE KNOWN TO ACCURAY, ITS AFFILIATES, OR
CONTRACTORS AT SUCH TIME.
EXCEPT FOR THE PARTICULAR DEVELOPMENT SERVICES
REQUESTED UNDER ANY PURCHASE ORDER, NO TERMS OR CONDITIONS IN SUCH PURCHASE
ORDER, NOR ANY OF THE TERMS OF ANY ACKNOWLEDGEMENT OR OTHER DOCUMENT OF ACCURAY,
SHALL BE DEEMED TO VARY ANY OF THE TERMS OF THIS AGREEMENT WHICH SHALL CONTROL
IN ALL RESPECTS.
ALL SUCH ADDITIONAL TERMS AND CONDITIONS ARE HEREBY REJECTED
AND EXCLUDED.
ALL OBLIGATIONS BASED UPON PURCHASE ORDERS FOR DEVELOPMENT
SERVICES SHALL BE SOLELY UNDER, AND AS EXPRESSLY SET FORTH IN, THIS AGREEMENT
AND THE APPLICABLE STATEMENT OF WORK.
3.5
TECHNICAL ASSISTANCE.
UNTIL THE LATER OF COMPLETION AND
ACCEPTANCE OF ALL DELIVERABLES UNDER ANY STATEMENT OF WORK AND ACCURAY PROVIDING
INFORMATION, MATERIALS, AND ASSISTANCE THAT ARE SUFFICIENT TO ENABLE CYBERHEART
TO REASONABLY UNDERSTAND, USE, AND OTHERWISE EXPLOIT SUCH DELIVERABLES IN
CYBERHEART PRODUCTS IN THE CYBERHEART FIELD, ACCURAY SHALL MAKE REASONABLY
AVAILABLE TO CYBERHEART DURING NORMAL BUSINESS HOURS, AT CYBERHEART'S REQUEST
AND WITHOUT CHARGE, ONGOING TECHNICAL ASSISTANCE WITH RESPECT TO ANY DELIVERABLE
PROVIDED BY ACCURAY TO CYBERHEART IN CONNECTION WITH THIS AGREEMENT.
AFTER SUCH
TIME, ACCURAY SHALL NOT
16
UNREASONABLY REFUSE CYBERHEART'S REQUESTS FOR ADDITIONAL TECHNICAL ASSISTANCE
WITH RESPECT THERETO.
3.6
ACCEPTANCE OF DELIVERABLES.
UPON DELIVERY OF EACH DELIVERABLE TO
CYBERHEART, CYBERHEART SHALL ASSESS WHETHER THE DELIVERABLES MATERIALLY CONFORM
TO THE APPLICABLE PART OF THE SPECIFICATIONS AND THE STATEMENT OF WORK.
CYBERHEART SHALL HAVE A PERIOD OF THIRTY (30) BUSINESS DAYS TO ACCEPT OR REJECT
EACH DELIVERABLE AFTER DELIVERY, OR SUCH LONGER PERIOD AS IS REASONABLE UNDER
THE CIRCUMSTANCES.
IF WRITTEN NOTICE OF REJECTION IS NOT RECEIVED BY ACCURAY
WITHIN SUCH THIRTY (30) BUSINESS DAYS AFTER DELIVERY OF THE APPLICABLE
DELIVERABLE (OR SUCH LONGER TIME AS IS REASONABLE UNDER THE CIRCUMSTANCES), THE
DELIVERABLE SHALL BE DEEMED ACCEPTED.
NOTWITHSTANDING THE FOREGOING, IF MORE
TIME IS NEEDED TO COMPLETE ANY REASONABLE EVALUATION AND/OR TESTING OF THE
DELIVERABLES (SUCH AS IN THE CASE OF CYBERHEART PERFORMING FIELD TRIALS AND/OR
TESTING), AND CYBERHEART PROVIDES ACCURAY WITH NOTICE DURING SUCH THIRTY (30)
BUSINESS DAY PERIOD OF THE NEED FOR ADDITIONAL TIME, THEN SUCH TIME PERIOD FOR
ACCEPTANCE OR REJECTION SHALL BE REASONABLY EXTENDED SUFFICIENT TO ALLOW
COMPLETION OF THE DESIRED EVALUATIONS AND TESTING.
IN THE EVENT THAT A
DELIVERABLE DOES NOT MATERIALLY CONFORM TO THE SPECIFICATIONS OR STATEMENT OF
WORK (SUCH NONCONFORMANCE SHALL BE REFERRED TO AS "DEFICIENCIES"), CYBERHEART
MAY REJECT THE DELIVERABLE AND PROVIDE WRITTEN NOTICE TO ACCURAY WHICH NOTICE
SHALL PROVIDE A REASONABLE DESCRIPTION OF WHY CYBERHEART BELIEVES THAT THE
DELIVERABLE DID NOT COMPLY WITH THE SPECIFICATION OR STATEMENT OF WORK.
ACCURAY
SHALL REVIEW SUCH DESCRIPTION WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF
SUCH NOTICE.
IF ACCURAY DISAGREES WITH CYBERHEART'S REASON(S) FOR SUCH
REJECTION, THE MATTER SHALL BE SUBMITTED FOR RESOLUTION IN ACCORDANCE WITH THE
PROCEDURES SET FORTH IN ARTICLE 16.
IF ACCURAY AGREES WITH CYBERHEART'S
REASON(S) FOR