Common use of Manufacturing Rights Clause in Contracts

Manufacturing Rights. (a) If Tesla fails to supply Product ordered by ViewRay in accordance with the Section 3.3, in accordance with the terms of this Agreement regarding the quantity or quality of Products supplied to ViewRay, then Tesla shall use Commercially Reasonable Efforts to remedy the problem or secure an alternative source of supply within [***] at no cost to ViewRay, and any such alternative source of supply shall be on terms substantially identical with the terms of this Agreement. If Tesla is unable to remedy the problem or secure an alternative source of supply within [***] after its initial failure to supply, then Tesla shall consult with ViewRay and the parties shall work together to remedy the problem. If Tesla is unable to remedy the supply problem after [***] (or longer as agreed in writing by the parties), commencing with the date upon which such failure to supply began, then ViewRay may at its option, and upon notice to Tesla, manufacture the Products itself or through a third party in accordance with the provisions of Section 3.10(b). (b) If ViewRay notifies Tesla that ViewRay will manufacture the Products itself or through a third party, then: (i) ViewRay shall pay Tesla the sum of $5,000,000 and purchase all of Tesla’s applicable tools, dies, fixtures, drawings, and other information and tangible items necessary to manufacture Products that conform to the Specifications; and (ii) Tesla shall (1) cooperate with ViewRay to cause the release of the Deposit Materials (as defined in Section 3.10(c)); and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Manufacturing Rights. (a) If Tesla fails to supply Product ordered by ViewRay in accordance with the Section 3.3, in accordance with the terms of this Agreement regarding the quantity or quality of Products supplied to ViewRay, then Tesla shall use Commercially Reasonable Efforts to remedy the problem or secure an alternative source of supply within [***] at no cost to ViewRay, and any such alternative source of supply shall be on terms substantially identical with the terms of this Agreement. If Tesla is unable to remedy the problem or secure an alternative source of supply within [***] after its initial failure to supply, then Tesla shall consult with ViewRay and the parties shall work together to remedy the problem. If Tesla is unable to remedy the supply problem after [***] (or longer as agreed in writing by the parties), commencing with the date upon which such failure to supply began, then ViewRay may at its option, and upon notice to Tesla, manufacture the Products itself or through a third party in accordance with the provisions of Section 3.10(b). (b) If ViewRay notifies Tesla that ViewRay will manufacture the Products itself or through a third party, then: (i) ViewRay shall pay Tesla the sum of $5,000,000 and purchase all of Tesla’s applicable tools, dies, fixtures, drawings, and other information and tangible items [***] necessary to manufacture Products that conform to the Specifications; and (ii) Tesla shall (1) cooperate with ViewRay to cause the release of the Deposit Materials (as defined in Section 3.10(c)); and (2) provide ViewRay or its designee, upon request, with reasonable assistance in establishing a back-up manufacturing line, having [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. reference to Tesla’s then existing resources. ViewRay shall [***]. ViewRay shall require any third party ViewRay designates to manufacture Products pursuant to this Section 3.10, to agree in writing to observe the terms of this Agreement relating to confidentiality and the manufacture of Products. It is understood and agreed that ViewRay’s access to Deposit Materials pursuant to this Section 3.10(b) is conditional upon [***] (and [***] necessary to manufacture Products that conform to the Specifications) as provided in Section 3.10(c). (c) On the Effective Date or as soon as is reasonably practicable thereafter, the parties shall enter into a escrow agreement (the “Escrow Agreement”) with [***] (the “Escrow Agent”) containing terms acceptable to the parties and the Escrow Agent. The Escrow Agreement shall provide, among other provisions, that Tesla shall deposit within forty (40) Business Days following the date that the design for the Products is completed (estimated to be within six months after the Effective Date) and maintain in escrow information necessary to enable ViewRay or its designee to manufacture Products conforming with the Specifications (and any enhancements, modifications, upgrades, corrections, and components to the Product developed during the term of this Agreement), including any drawings, manufacturing instructions, testing equipment vendors (and detailed modification notes for any modifications made to such testing equipment for purposes of testing the Products) equipment settings, supply chain information, costed bills of materials, testing procedures, or other information as well as any manuals, programmers notes, and other materials needed to access and use such materials (collectively, the “Deposit Materials”). The escrow described in this Section 3.10(c) will be created and maintained [***]. The Deposit Materials shall be released to ViewRay in accordance with the terms of the Escrow Agreement, in the event that: (i) Tesla is in breach of its obligations under this Agreement and fails to cure such breach within the time period set forth in Section 9.2, and then upon the date such cure period has elapsed; or (ii) Tesla makes a general assignment for the benefit of its creditors or a receiver or administrative receiver is appointed over any of Tesla’s assets, or an order is made or any petition is presented (other than a petition which is discharged within 60 days of its presentation and before it is advertised) by Tesla, any creditor or otherwise, for the winding up, dissolution, liquidation or reconstruction of Tesla or for the making of an administration order in relation to Tesla or the freezing or other attachment of Tesla’s assets, or any resolution is passed for the voluntary winding up of Tesla; or any proceeding or step analogous to any of the foregoing events or circumstances described in this Section 3.10(c)(ii) is taken in any jurisdiction, and then upon the occurrence of such event or circumstances, save in the case of the presentation of a petition when the Deposit Materials shall be released to ViewRay upon the day on which the 60 day period following such presentation has elapsed without discharge PROVIDED THAT ViewRay shall not seek release of the Deposit Materials from the Escrow Agent pursuant to this Section 3.10(c)(ii) in the event and for so long as Tesla or any liquidator, administrator, receiver or administrative receiver or trustee in control of Tesla’s assets continues to perform (or cause Tesla to perform) Tesla’s obligations under this Agreement. A copy of the Escrow Agreement is attached as Attachment 3. (d) Upon release of the Deposit Materials in accordance with the Escrow Agreement, Tesla hereby grants ViewRay a limited, non-exclusive, license to use, reproduce, and modify the Deposit Materials as necessary to manufacture (or have manufactured on its behalf by a third party) the Products. The Deposit Materials will be treated as Confidential Information of Tesla [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. and ViewRay will restrict disclosure of the Deposit Materials to those of its employees to whom it is necessary to disclose such Confidential Information in connection with the performance of their duties hereunder. Receipt by ViewRay of the Deposit Materials pursuant to this Section 3.10 does not convey title or ownership of the Deposit Materials, which shall remain with Tesla and all Deposit Materials will continue to be treated as Tesla Confidential Information following the release thereof.