Nondisclosure and Confidentiality Agreement

Ingram Micro Inc., for itself and its U.S. subsidiaries, and the other party identified below, wish to enter into discussions for the purpose of evaluating a potential business transaction ("Purpose"), during which one party hereto ("Owner") may disclose to the other party ("Recipient") Confidential Information, as defined below, to evaluate and discuss the feasibility, terms and conditions of the Purpose. The parties hereby agree as follows:

  1. Term. This agreement ("Agreement") will commence on the date this Agreement is signed below with a Term of five (5) years. Recipient's confidentiality obligations under this Agreement will survive the expiration of this Agreement.

  2. Confidential Information. "Confidential Information" means information that Owner deems confidential or proprietary, provided in any form or medium, that relates to the past, present or future activities of Owner, its subsidiaries and affiliates, including without limitation: (i) research, development or business plans, financial information, customer or vendor information, intellectual property, trade secrets, source code, object code, software, know-how, ideas, marketing strategies, operations or systems; (ii) materials prepared by or for the Recipient, that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing; and (iii) any third-party information Owner has in its possession under an obligation of confidentiality.

    Neither party hereto nor its Agents will publicize or disclose beyond those persons to whom Confidential Information may be disclosed hereunder the discussions or negotiations that may be or are underway between the parties regarding the Confidential Information or the Purpose, including the existence of this Agreement and its terms and conditions, without the prior written consent of the other party.

  3. Excluded Information. Confidential Information does not include information that: (a) was already known to Recipient prior to disclosure by or on behalf of Owner; (b) is publicly available through no wrongful act of Recipient; (c) is properly received by Recipient from a third party which is not subject to a duty of confidentiality to Owner; or (d) is independently developed by Recipient without reference to or use of, in whole or part, any of Owner’s Confidential Information.

  4. Nondisclosure Obligations. Recipient may use Confidential Information solely for the Purpose. Recipient will safeguard the Confidential Information with at least the same degree of care, but no less than a reasonable degree of care, to prevent any unauthorized use or dissemination or publication of the Confidential Information, as Recipient would protect its own confidential information. Recipient will not disclose any Confidential Information to any person, or entity except: (a) directors, officers and employees of Recipient, and (b) Recipient's advisors, contractors and consultants ("Agents") who have a need-to-know such information and have a written agreement in place with either party to keep information confidential.

  5. Required Disclosure. Recipient will notify Owner promptly if it is advised by counsel or otherwise determines that any Confidential Information must be disclosed to a government agency or is otherwise required to be disclosed by applicable law or regulation. Recipient will cooperate with Owner, at Owner's expense, in seeking a protective order or other appropriate remedies and will coordinate with the Owner in an effort to limit the nature and scope of such required disclosure.

  6. No Transfer of Ownership. The Owner will retain all its right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of Confidential Information will not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to the Recipient, or any of its Agents.

  7. Remedies. The parties acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by it or its Agents and that the other party will be entitled to seek equitable relief, including but not limited to injunctive relief and specific performance, as a remedy for any such breach.

  8. Disclaimer of Warranties and Limitation of Liability.The parties acknowledge that neither is responsible for the accuracy or completeness of, nor liable for any business decisions made by the other party in reliance upon, any disclosures between Owner and Recipient except as may be set forth in a separate written agreement between them. ALL CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND OWNER HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  None of the Confidential Information which may be disclosed or exchanged by the parties will constitute any representation, warranty, assurance, guarantee or inducement by either party to the other of any kind, and, in particular, with respect to the non-infringement of trademarks, patents, copyrights, mask protection rights, or other intellectual property rights or other rights of third persons. If either party is liable to the other party on account of this Agreement, the measure of damages will not include any amounts for indirect, special, consequential or punitive damages or lost profits, even if a party is advised of such.

  9. Disclaimer of Other Relationships. This Agreement is intended for the use, handling and protection of Confidential Information. It will not be construed as an agency, joint venture, partnership or other similar arrangement or relationship or creating or establishing such arrangement or relationship.

  10. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL.

  11. Miscellaneous. This Agreement constitutes the sole and entire agreement between the parties with respect to this subject matter and supersedes all prior and contemporaneous confidentiality agreements. Notwithstanding the foregoing, the parties hereto may have existing agreements covering other specific aspects of the parties’ relationship ("Other Agreements") which may include confidentiality obligations, either within the Other Agreements or by referencing another non-disclosure agreement. Such confidentiality obligations will remain and will not be superseded by this Agreement. Any amendments to this Agreement must be in writing. Neither party may assign its rights under this Agreement without the prior written consent of the other party. This Agreement may be executed in one or more counterparts, each of which, whether an original, facsimile or scanned PDF, will be deemed to be an original, but all of which will constitute the same Agreement.

(Full Legal Entity Name)

A copy of this Agreement will be sent to you at the email address provided above.