such right of
return is in addition to, and not a substitute for, Ingram Micro's right to
indemnification hereunder.
8.3
Document Production Indemnity.
Each party
shall indemnify and hold the other party harmless from and against all actual
out of pocket costs associated directly with document production, depositions,
interrogatories and related demands, arising either from private third party
claims or governmental claims or investigations against or concerning the party
wherein the other party is neither a party to nor target of such claims or
investigations.
8.4
Indemnification by Ingram Micro.
Ingram Micro
will defend, indemnify and hold Vendor harmless from and against any and all
damages, liabilities, costs and expenses (including but not limited to
attorneys' fees) arising out of or incurred by Vendor in connection with or as a
result of any third party claim or proceeding made or brought against Vendor
with respect to any allegation that (i) *** , or (ii) ***.
9.
LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE STATED HEREIN, AND EXCEPT TO THE EXTENT OF BODILY INJURY OR
DEATH OR VIOLATION OF SECTIONS 5 OR 11.2, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR LOST PROFITS OR BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES,
WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE) WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. EXCEPT FOR CLAIMS BASED ON SECTIONS 5, 8 OR 11.2, IN NO EVENT WILL
VENDOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED
THE TOTAL AMOUNT ACTUALLY PAID BY INGRAM MICRO TO VENDOR ***.
10.
GOVERNMENT PROGRAMS
Vendor may, at its sole option, participate in a special pricing and marketing
program targeting the federal, state and local government and/or educational
markets. If Vendor participates in such a program, Vendor agrees to execute a
separate
*** Confidential material redacted and submitted separately to the Commission
4
agreement and comply with all mandatory Federal Acquisition Regulation ("FAR")
flow-down provisions, if any, required by such government entity and to which
Vendor has agreed in writing.
11.
GENERAL PROVISIONS
11.1
Conflicting Terms.
In the event of a conflict
between the terms and conditions of the underlying Agreement and the terms and
conditions in any exhibit thereto, the terms and conditions in the exhibit shall
govern.
11.2
Confidentiality.
(A)
EITHER PARTY MAY DISCLOSE TO THE OTHER INFORMATION IN
CONNECTION WITH ITS PERFORMANCE HEREUNDER WHICH IT DEEMS TO BE CONFIDENTIAL AND
PROPRIETARY. SUCH INFORMATION, WHICH IS ORIGINATED BY THE DISCLOSING PARTY (THE
"OWNER") OR IS WITHIN THE SPECIAL KNOWLEDGE OF SUCH PARTY SHALL, IF IN
DOCUMENTARY FORM AND CONSPICUOUSLY MARKED "CONFIDENTIAL, AT THE TIME OF
DISCLOSURE OR IT WOULD OTHERWISE BY ITS NATURE BE REASONABLY CONSIDERED
"CONFIDENTIAL", BE CONSIDERED TO BE CONFIDENTIAL AND PROPRIETARY ("CONFIDENTIAL
INFORMATION"). IN ADDITION, IF ANY OTHER INFORMATION IS NOT MARKED AND IN
DOCUMENTARY FORM WHEN DISCLOSED, BUT IS THEREAFTER REDUCED TO A WRITING AND
FORWARDED TO THE OTHER PARTY WITHIN TEN (10) DAYS OF THE DATE OF INITIAL VISUAL
OR ORAL