1. Definitions

1.1. Agreement This Agreement consists of these General Terms and Conditions and the cover page hereto.

1.2. Designated CPUs The term "Designated CPUs" means collectively the designated file server CPU (central processing unit) and authorized number of workstation terminals owned and operated by Customer at the site(s) identified on the cover page.

1.3. Documentation The term "Documentation" means IMPAC’s published specifications relating to the use and performance of a Product in effect at the time such Product is licensed by Customer.

1.4. IMPAC Products The term "IMPAC Products" means IMPAC’s proprietary computer software programs identified on the cover page and all related materials, documentation, and operator manuals received by Customer from IMPAC.

1.5. Other Products The term "Other Products" means the hardware products, software products, and services of Third Party Suppliers identified on the cover page and all related materials, documentation, and operator manuals received by Customer from IMPAC or such Third Party Supplier.

1.6. Products The term "Products" means collectively the IMPAC Products and Other Products delivered to Customer under this Agreement.

1.7. Third Party Supplier The term "Third Party Supplier" means the supplier(s) identified for the Other Products on the cover page.

2. Purchase and License

2.1. License to IMPAC Products

2.1.1. Grant of License IMPAC hereby grants to Customer, and Customer hereby accepts from IMPAC, a nonexclusive, nontransferable, non-assignable limited license to use the IMPAC Product on the Designated CPUs for internal purposes only in accordance with this Agreement during the term specified in Section 2.1.9. Customer acknowledges and agrees that the IMPAC Product is the proprietary information and a trade secret of IMPAC and that this Agreement grants Customer no title or rights of ownership in the IMPAC Product. Customer agrees not to market, sublicense, distribute, permit timeshare, or allow any other access to the IMPAC Product other than Customer’s own internal use as permitted hereby. The data files and patient data stored in the software are and shall remain the exclusive property of Customer. Notwithstanding the foregoing, IMPAC shall have the right to incorporate Customer’s data files and patient data into national reference databases and other statistical compilations so long as the identities of the patients, hospitals, and physicians involved are not revealed to third parties. All such databases and compilations shall be the sole property of IMPAC.

2.1.2. Authorized Use Customer is authorized to use the IMPAC Product only on Designated CPUs at the site(s) specified on the cover page. Customer agrees that it will not use or permit the IMPAC Product to be used in any manner, whether directly or indirectly, that would enable Customer’s customers, employees, or any other person or entity to use the IMPAC Product on other than the Designated CPUs at the site(s) specified. Customer will take all necessary steps to protect the security and confidentiality of all data, information, programs, systems, materials, techniques, or procedures which are delivered to Customer by IMPAC.

2.1.3. Use on Other than Designated CPUs Notwithstanding the foregoing, Customer may use the IMPAC Product on other than the Designated CPUs in the following circumstances; (i) if a Designated CPU cannot be used because of equipment or software malfunction, Customer may temporarily use the IMPAC Product on another CPU owned and operated by Customer and (ii) if a Designated CPU is replaced by Customer, Customer may designate a successor CPU owned and operated by Customer and use the IMPAC Product on that CPU. Customer must give written notice and IMPAC must give its written consent (which shall not be unreasonably withheld) before such other uses are permitted.

2.1.4. Deliverables IMPAC shall provide Customer with the IMPAC Product in machine readable object code form and manuals for the Product.

2.1.5. Proprietary Markings Customer agrees not to remove or destroy any proprietary or copyright markings or confidential legends placed upon or contained within the IMPAC Product or any related material and documentation.

2.1.6. Copies Customer agrees that while this Agreement is in effect, or while Customer has custody or possession of any property of IMPAC, Customer will not; (i) copy or duplicate, or permit anyone else to copy or duplicate, any physical, magnetic, or other version of the IMPAC Product, documentation or information furnished by IMPAC in machine-readable form other than five (5) copies of the Product for back-up or archival purposes only; (ii) create or attempt to create, reverse engineer or otherwise, the source programs or any part thereof from the IMPAC Product or from other information made available under this Agreement or otherwise (whether oral, written, tangible, or intangible). Customer may copy for its own use and at its own expense operator manuals, training materials, and other terminal-user-oriented materials. All such copies shall contain IMPAC’s copyright notice and ownership declaration.

2.1.7. Limited Warranty IMPAC warrants that each IMPAC Product, as delivered by IMPAC and properly installed and operated on Designated CPUs, will perform substantially as described in its current Documentation for one (1) year from date of acceptance as hereinafter defined. If any IMPAC Product fails to so perform during such one (1) year period, Customer shall promptly notify IMPAC of, and shall adequately describe, any such failure encountered by Customer and IMPAC’s sole obligation shall be to take corrective action as specified in Section 5.1 at no charge to Customer. IMPAC does not warrant that any IMPAC Product is error-free or that its use will be uninterrupted. IMPAC shall not be obligated to remedy any IMPAC Product defect which cannot be adequately repeated. The warranties in this Section 2.1.7 do not apply to any IMPAC Product which has been; (i) altered, except by IMPAC or in accordance with IMPAC’s written instructions; (ii) used in conjunction with any product other than the Designated CPUs or Other Products; or (iii) damaged by improper electrical power or environment, abuse, misuse, accident or negligence.

2.1.8. DISCLAIMER OF WARRANTY EXCEPT AS PROVIDED IN SECTION 2.1.7, THE IMPAC PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY OTHER WARRANTY WHATSOEVER. IMPAC DISCLAIMS ALL OTHER WARRANTIES WITH REGARDS TO THE IMPAC PRODUCT INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF IMPAC FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONJUNCTION WITH, THE USE OR PERFORMANCE OF THE IMPAC PRODUCT.

2.1.9. Term The license granted under this Section 2.1 shall commence upon the Acceptance, as hereinafter defined, of the IMPAC Product by Customer and shall continue for the license term specified on the cover page hereof unless sooner terminated in accordance with the provisions of this Agreement.

2.2. Purchase and License of Other Products

2.2.1. IMPAC will facilitate the purchase and license of the Other Products on behalf of Customer. The purchase and license of such Other Products shall be subject to and in accordance with the standard terms and conditions of purchase and license under the standard agreements of the Third Party Suppliers, copies of which have been supplied to Customer and are incorporated in this Agreement by this reference. Customer agrees to execute and deliver to IMPAC all agreements required to be executed by Third Party Suppliers. Customer acknowledges that IMPAC is not authorized to modify, amend, or supplement, and has not modified, amended, or supplemented, any term or condition of any Third Party Supplier’s standard agreement. IMPAC assigns, to the maximum extent permitted by applicable law, any and all warranties, maintenance and support obligations, or other benefits supplied by a Third Party Supplier under its standard agreement to Customer, and authorizes and appoints Customer to enforce, in its name and at its own expense, any warranty, maintenance or support obligation, or other benefit which may be made against the Third Party Supplier, but IMPAC assumes no obligation as to the extent or enforceability thereof.

2.2.2. DISCLAIMER CUSTOMER ACKNOWLEDGES AND AGREES THAT IMPAC IS NOT THE MANUFACTURER OR SUPPLIER OF THE OTHER PRODUCTS SUPPLIED BY THIRD PARTY SUPPLIERS AND IMPAC ASSUMES NO RESPONSIBILITY FOR THE PERFORMANCE OR USE OF SUCH PRODUCTS. IMPAC, NOT BEING THE MANUFACTURER OR SUPPLIER OF THE OTHER PRODUCTS, HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESSED OR IMPLIED WITH RESPECT TO THE DESIGN, CONDITION, DURABILITY, SUITABILITY, FITNESS FOR USE OR MERCHANTABILITY OF OTHER PRODUCTS IN ANY RESPECT. AS BETWEEN IMPAC AND CUSTOMER, THE OTHER PRODUCTS SHALL BE ACCEPTED AND PURCHASED OR LICENSED BY CUSTOMER "AS-IS" AND WITHOUT WARRANTY BY IMPAC. CUSTOMER AGREES TO SETTLE ALL CLAIMS DIRECTLY WITH THE APPROPRIATE THIRD PARTY SUPPLIER AND WILL NOT ASSERT ANY SUCH CLAIMS AGAINST IMPAC.

3. Delivery and Acceptance

3.1. Delivery The Products shall be delivered on or before the anticipated delivery date and to the site specified on the cover page. In the event the anticipated delivery date is not specified on the cover page, IMPAC shall provide Customer with written notification of a mutually agreed upon anticipated delivery date prior to installation. In the event Customer desires to change the anticipated delivery date, Customer shall so advise IMPAC in writing and shall pay any delay charges assessed by IMPAC or Third Party Supplier. Upon request, IMPAC shall advise Customer of the amount of such delay charges. Delivery charges shall be paid by Customer. IMPAC will ship the Products to Customer via a method and carrier selected by IMPAC unless Customer specifies otherwise.

3.2. Delays IMPAC shall not be liable for any damages or penalty for delay in delivery or for failure to give notice of delay including, but not limited to, delays in transportation and delays in delivery by Third Party Suppliers or IMPAC’s other vendors.

3.3. Acceptance Customer shall inspect the IMPAC Product promptly upon receipt of delivery. Unless Customer objects in writing within five (5) business days after first clinical use, completion of on-site training, or remote installation, whichever is applicable or occurs first, Customer shall be deemed to have accepted the IMPAC Product as of the date of such first clinical use, completion of on-site training, or remote installation ("Acceptance"). All claims for damages, errors, or shortages in the IMPAC Products shall be made by Customer in writing within such five (5) business day period.

4. Purchase Price, License Fees, and Taxes

4.1. Purchase Price and License Fees IMPAC will invoice Customer for the purchase price and license fees for all Products, due on Acceptance of the Products, less any deposit as specified on the cover page. In the event the Products are shipped in installments, Customer shall be invoiced separately for each installment. All Product purchase prices or license fees are F.O.B. IMPAC’s factory. All payments shall be due and payable on Customer’s receipt of an invoice from IMPAC. All payments shall be made in U.S. dollars. IMPAC reserves the right to impose an interest charge not exceeding one and one-half percent (1-1/2%) per month, or fraction thereof, for failure to make a payment within thirty (30) days of Acceptance date. Customer’s obligation to pay all accrued charges shall survive the expiration or termination of this Agreement.

4.2. Taxes and Other Charges In addition to all charges specified in this Agreement, Customer shall pay or reimburse IMPAC for all federal, state, local or other taxes not based on IMPAC’s net income or net worth including, but not limited to, sales, use, occupational and property taxes, or amounts levied in lieu thereof, based on charges payable under this Agreement or based on the Products, its use or any services performed hereunder, whether such taxes are now or hereafter imposed under authority of any federal, state, municipal, or other taxing jurisdiction. Customer shall also pay or reimburse IMPAC for all delivery, transportation, insurance, and similar out-of-pocket charges incurred by IMPAC which shall be separately set forth on IMPAC’s invoice to Customer.

4.3. Security Interest IMPAC shall retain and is granted a purchase money security interest in each of the Products, and in any replacement, addition, or proceeds, to secure payment of the license fee until paid in full. If IMPAC so requests, Customer agrees to file this Agreement as a Financing Statement in any jurisdiction IMPAC deems necessary or advisable.

5. Maintenance and Support

5.1. Maintenance and Support by IMPAC

5.1.1. Maintenance and Support Services for IMPAC Products Subject to the terms, conditions and fees set forth in Section 5, IMPAC will provide Customer with the maintenance and support services specified in this Section for the IMPAC Products. IMPAC will; (i) install IMPAC Products and provide initial training for IMPAC Products at the Customer site(s) specified on the cover page; (ii) provide such assistance as is necessary to cause the IMPAC Product to perform substantially in accordance with its Documentation by providing a suitable "fix," "patch," or "work around" for the problem or a statement that an appropriate "fix" will be included in a future release of the IMPAC Product, the time period within which the release is expected to be issued and a commitment to provide the release at no cost to Customer; (iii) maintain a support desk for receipt of Customer telephone calls for first level diagnosis of IMPAC Product problems during the hours of 5:00 a.m. to 5:00 p.m. Pacific time, Monday through Friday, IMPAC holidays excepted; (iv) provide emergency beeper service during the hours of 5:00 a.m. to 5:00 p.m. Pacific time during IMPAC holidays; and (v) provide remote upgrades of new releases for licensed IMPAC Products. Current IMPAC holidays are New Year’s Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, day after Thanksgiving, Christmas Eve Day, and Christmas Day. IMPAC will inform Customer of any changes to IMPAC holidays. If IMPAC is unable, after reasonable effort, to cause the IMPAC Product to perform substantially in accordance with its Documentation, then this Agreement may be terminated with respect to the IMPAC Product at the option of either party hereto without further obligation or liability except as provided in Section 10.3 below. In the event this Agreement is terminated during the initial one (1) year limited warranty period for an IMPAC Product, IMPAC shall refund to Customer all license fees paid by Customer for such Product. IMPAC shall have no liability for misuse or modification of the IMPAC Product by Customer. New IMPAC Products are not included in IMPAC’s standard maintenance and support services and will be offered by IMPAC to Customer at IMPAC’s then current published prices.

5.1.2. Charges for Maintenance and Support Maintenance and support during the one (1) year limited warranty period for an IMPAC Product is included with the payment of the applicable license fee. After such one (1) year limited warranty period, IMPAC will continue to provide customer with extended maintenance and support as described in Section 5.1.1 above on an annual basis, provided Customer pays IMPAC in advance the annual maintenance and support fee then in effect. The current extended maintenance and support fee is specified on the cover page.

5.1.3. Automatic Renewal IMPAC’s obligation to provide maintenance and support services and Customer’s obligation to pay the maintenance and support fees then in effect shall be automatically renewed on the anniversary dates of Acceptance, unless either IMPAC or Customer has given the other at least thirty (30) days prior written notice canceling IMPAC’s maintenance and support. If there is an increase in annual maintenance and support fees over the preceding year, Customer may also prevent such automatic renewal by giving IMPAC written notice of cancellation within fifteen (15) days of receipt of IMPAC’s invoice showing such increase. Any failure by IMPAC to provide ongoing annual maintenance and support on the anniversary date of Acceptance shall not constitute grounds for terminating this Agreement but shall only be a basis for terminating the parties’ future obligation with respect to maintenance and support.

5.1.4. Limitations on IMPAC’s Obligations Customer understands and agrees that IMPAC may develop and market new or different computer programs which use part or all of the IMPAC Product and which perform all or part of the functions performed by the IMPAC Product. Nothing contained in this Agreement gives Customer any rights with respect to such new or different computer programs.

5.1.5. Customer’s Duties Customer will; (i) perform routine maintenance as required by the Documentation for the IMPAC Products; (ii) maintain proper environmental conditions at the site in accordance with the Documentation; (iii) promptly install new updates of the IMPAC Product as requested by IMPAC; (iv) install the IMPAC recommended communication software, a 33,600 baud modem and dedicated phone line for remote diagnostics; (v) provide IMPAC with supervisor security rights on the designated CPUs; (vi) schedule adequate time during normal business hours for required on-site installation and training; and (vii) perform such other routine maintenance procedures as IMPAC may reasonably request from time to time.

5.2. Maintenance and Support by Third Party Suppliers Maintenance and support of the Other Products by Third Party Suppliers shall be provided in accordance with the terms and conditions of such Third Party Suppliers’ standard agreements assigned to Customer pursuant to Section 2.2 above. IMPAC shall use its reasonable efforts to assist Customer in obtaining maintenance and support from such Third Party Suppliers, provided, however, that in the event such Third Party Suppliers fail to maintain or support such Other Products, IMPAC shall have no responsibility or liability by reason of such failure.

6. LIMITATIONS ON LIABILITY

IN NO EVENT WILL IMPAC BE LIABLE FOR (1) INDIRECT, INCIDENTAL, COST OF SUBSTITUTE PROCUREMENT, OR CONSEQUENTIAL DAMAGES OR (2) ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT RESULTING FROM ANY DEFECT IN THE PRODUCTS EVEN IF IMPAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT IMPAC’S TOTAL MAXIMUM LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THE SUMS PAID TO IMPAC BY CUSTOMER FOR THE IMPAC PRODUCTS UNDER THIS AGREEMENT.

7. Trade Secret, Patent, and Copyright Indemnification

IMPAC agrees to indemnify Customer and to hold it harmless from all damages awarded against Customer and all reasonable expenses incurred by Customer as the result of any claim of trade secret, patent, or copyright infringement asserted against Customer by virtue of Customer’s use of the IMPAC Products as delivered by IMPAC and maintained on the Designated CPUs, provided that IMPAC is given prompt notice of any such claims and the right to control and direct the investigation, preparation, defense, and settlement of each such claim, and further provided that Customer shall fully cooperate with IMPAC in connection with the foregoing. Should the IMPAC Product as delivered by IMPAC become or, in IMPAC’s opinion, be likely to become, the subject of a claim of infringement of a trade secret, patent, or copyright, IMPAC may at its option and expense either (a) procure for Customer the right to continue to use the IMPAC Product as contemplated hereunder, or (b) replace or modify the IMPAC Product or modify its use to make its use hereunder non-infringing. If neither option is reasonably available to IMPAC, then this Agreement may be terminated with respect to the IMPAC Product at the option of either party hereto without further obligation or liability except as provided in Sections 10.3 hereof and IMPAC shall grant Customer a refund for such IMPAC Product as depreciated on a five-year, straight-line basis. IMPAC shall have no liability for any claim of trade secret, patent, or copyright infringement under this Section based on; (i) Customer’s use or combination of the IMPAC Product with products or data not supplied by IMPAC as part of the IMPAC Products; (ii) use of the IMPAC Product on other than the Designated CPUs or with the Other Products; (iii) any modification of any IMPAC Product by a party other than IMPAC; or (iv) Customer’s failure to install changes or updates as instructed by IMPAC.

8. Modification of Product by Customer

Customer shall not modify the Products in any manner without the express written authorization of IMPAC or the appropriate Third Party Supplier, as the case may be. Any modification of the Product by Customer or any failure by Customer to implement any improvements or updates to the Product as supplied by IMPAC or Third Party Supplier shall void any and all of IMPAC’s obligations under this Agreement, whether expressed in this Agreement or implied by law.

9. Non-Disclosure and Confidentiality

9.1. IMPAC Confidential Information Customer understands and agrees that, in IMPAC’s performance of its duties under this Agreement, IMPAC may communicate to Customer (or its designees) certain confidential or proprietary information concerning IMPAC’s products (present and proposed), product design, product plans, product and business processes, techniques, know-how, technology, schedules, and marketing plans all of which are confidential, proprietary to, and trade secrets of IMPAC. Any such disclosure shall be in utmost confidence. Customer agrees to hold all of such disclosures within its own organization and shall not, without the specific written consent of an authorized corporate officer of IMPAC, utilize in any manner, publish, communicate, or disclose any part thereof to third parties. Customer may be released from all obligations as to maintaining confidentiality of IMPAC’s confidential information to the extent that any such information or data; (i) rightfully is or becomes publicly known; (ii) is demonstrated to be known by Customer prior to disclosure by IMPAC; (iii) is subsequently rightfully received by Customer from a third party not itself in breach of a duty to IMPAC not to disclose; (iv) is approved for release by IMPAC; or (v) is ascertained through examination of a commercially available product, system, or software. This Section 9.1 and all confidentiality commitments shall survive termination of this Agreement for any reason.

9.2. Customer Confidential Information IMPAC understands and agrees that, in its performance of its duties under this Agreement, certain Customer confidential information, including proprietary information concerning business plans and procedures and medical information concerning patients and patient records may be revealed to IMPAC by Customer. Except as otherwise provided in Section 2.1.1., IMPAC agrees to hold all such disclosures within its own organization and shall not, without the specific written consent of an authorized officer of Customer, or, as the case may be, the specific written authorization from the patient, utilize in any manner, publish, communicate, or disclose any part thereof to third parties. IMPAC may be released from all obligations as to maintaining confidentiality of Customer’s confidential information to the extent that any such information or data; (i) rightfully is or becomes publicly known; (ii) is demonstrated to be known by IMPAC prior to disclosure by Customer; (iii) is subsequently rightfully received by IMPAC from a third party not in breach of a duty to Customer not to disclose; (iv) is approved for release by Customer; or (v) is ascertained through examination of a commercially available product, system, or software. This Section 9.2 and all confidentiality commitments shall survive termination of this Agreement for any reason.

9.3. Security Measures Customer will take all necessary steps to protect the security and confidentiality of all data, information, programs, systems, materials, techniques, or procedures which are delivered to Customer by IMPAC.

9.4. Injunction Relief The parties acknowledge that the restrictions contained in Sections 2 and 9 are reasonable and necessary to protect IMPAC’s legitimate interest, and that remedies at law will be inadequate. Any violations of the provisions of Sections 2 and 9 will cause irreparable damage to IMPAC within a short period of time and IMPAC shall be entitled to preliminary injunction relief and other injunction relief against each violation. Such relief shall be in addition to, and in no way in limitation of, any and all other remedies available in law and equity.

10. Termination

10.1. Basis for Termination by IMPAC: IMPAC without further notice shall have the right to terminate this Agreement without further obligation or liability to Customer if any of the following events or conditions occur:

10.1.1. Customer is delinquent in making payments of any sum due under this Agreement and continues to be delinquent for a period of thirty (30) days after the last day on which such payment is due; or

10.1.2. Customer commits any other breach of this Agreement.

10.2. Basis for Termination by Customer: Customer shall have the right to terminate this Agreement, without further obligation or liability to IMPAC (except as specified in Sections 4, 9, 10.3 and 11.6 hereof) if any of the following events or conditions occur:

10.2.1. IMPAC commits any breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Customer of such breach; or

10.2.2. Upon ninety (90) days’ prior notice for any reason if the license granted hereunder for the IMPAC Product is for any term other than perpetual.

10.3. Disposition of Products on Termination

10.3.1. IMPAC Product Upon the termination of this Agreement for any reason, the license and all other rights granted to the Customer hereunder for the IMPAC Product shall immediately cease, and Customer shall immediately; (i) return the IMPAC Product to IMPAC together with all reproductions and modifications of the IMPAC Product and all copies of any documentation, notes, and other materials respecting the IMPAC Product; (ii) purge all copies of the IMPAC Product or any portion thereof from all Designated CPUs and from any computer storage device or medium on which Customer has placed or has permitted others to place IMPAC Product; and (iii) give IMPAC a written certification that Customer has complied with all of its obligations under Section 10. IMPAC’s termination of this Agreement and repossession of the IMPAC Product shall be without prejudice to any other remedies IMPAC may lawfully have.

10.3.2. Other Products Disposition of the Other Products shall be governed by the terms and conditions of the Third Party Suppliers’ standard agreements.

10.3.3. Survival The terms and provisions of Sections 2.1.8, 2.2, 4, 6, 7, 10 and 11 of this Agreement shall survive any termination of this Agreement to the extent necessary to facilitate their complete fulfillment or discharge.

11. General

11.1. Relationship Between Parties The relationship established by this Agreement between IMPAC and Customer shall be that of licensor and licensee. Nothing contained in this Agreement shall constitute Customer as a partner, joint venture, broker, employee, servant, or agent of or for IMPAC. Customer and its employees, agents, or representatives will not make any representations that IMPAC is in any way responsible for the acts or omissions of Customer or its employees, agents, or representatives. Customer or Customer’s employees, agents, or representatives will not make any written or oral agreements or commitments on behalf of IMPAC other than in accordance with this Agreement.

11.2. Attorneys’ Fees In the event of any dispute arising hereunder, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to such other relief as the court may order.

11.3. Assignment This Agreement is not assignable without the prior written consent of IMPAC. Any attempt to assign any of the rights, duties, or obligations of this Agreement without such consent is void.

11.4. Amendment This Agreement can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of IMPAC and of Customer, and variance from the terms and conditions of this Agreement in any order or other written notification from the Customer will be of no effect.

11.5. Severability If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties agree to replace such invalid, illegal or unenforceable provision with a valid and enforceable provision which will achieve, to the extent possible, the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.

11.6. Limitation of Actions No action, regardless of form, arising out of any of the transactions under this Agreement may be brought by Customer more than one (1) year after such action has accrued. The parties hereby agree that any suit to enforce provision of this Agreement arising out of or based upon this Agreement or the business relationship between IMPAC and Customer shall be brought in the United States District Court for the Northern District of California or in the Superior or Municipal Courts in and for Santa Clara County, California, providing that the court selected shall have jurisdiction of the subject matter of the action and of the parties. Each party agrees that such court shall have exclusive in persona jurisdiction and venue with respect to such party, and each party shall have exclusive in persona jurisdiction and venue of such courts.

11.7. California Law This Agreement shall be governed by and constructed in accordance with the laws of the State of California.

11.8. Compliance with the Law Customer agrees that it will comply with all federal, state and local laws and regulations governing the use of the IMPAC Product. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER SUCH RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF PRODUCTS, OR OF INFORMATION ABOUT SUCH PRODUCTS WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER SHALL NOT EXPORT OR RE-EXPORT, DIRECTLY OR INDIRECTLY, ANY PRODUCTS, OR INFORMATION PERTAINING THERETO TO ANY COUNTRY OR DESTINATION OR PERMIT ITS TRANSSHIPMENT TO ANY COUNTRY OR DESTINATION FOR WHICH SUCH GOVERNMENTAL APPROVAL IS REQUIRED AT THE TIME OF EXPORT WITHOUT FIRST OBTAINING SUCH LICENSES OR APPROVAL.

11.9. Notice Any notice or other communication required or permitted hereunder shall be given in writing to the other party at the address stated on the cover page, or at such other address as shall be given by either party to the other in writing. Such notice shall be deemed to have been given or made when delivered personally or when placed, properly addressed and postage prepaid, in the United States mail.

11.10. Entire Agreement Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. This Agreement, the cover page hereto and documents referenced herein are the complete and exclusive statement of the agreement between the parties, which supersedes all proposals, marketing literature, or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.