gigamon inc. 3300 olcott street santa clara, ca 95054 … · 2019. 2. 12. · government reseller...

Government Reseller Amendment to the Gigamon Distribution Agreement Page 1 of 15

Gigamon Inc. 3300 Olcott Street Santa Clara, CA 95054 http://www.gigamon.com/

EC America Rider to Product Specific License Terms and Conditions

(for U.S. Government End Users)

1. Scope. This Rider and the attached Gigamon Inc. (“Manufacturer” or “Gigamon”) product specific license terms establish the

terms and conditions under which EC America (“Contractor”) will provide Manufacturer’s information technology products to

Ordering Activities under EC America’s GSA MAS IT70 contract number GS-35F-0511T (the “Schedule Contract”). The

foregoing shall not be deemed .to limit Contractor’s obligations under its other agreement(s) with Manufacturer or to limit the

applicability of the Gigamon Commercial Terms. Contractor shall cause that installation and use of the information

technology shall be in accordance with this Rider and Gigamon Commercial Terms, unless an Ordering Activity determines

that it requires different terms of use and Manufacturer specifically agrees in writing to such terms in a signed amendment to

this Rider.

2. Applicability. Whereas GSA and EC America agreed at the time of Schedule Contract award upon a base set of terms and

conditions applicable to all manufacturers and items represented on the Schedule Contract; and Whereas, the parties further

agreed that all product specific license, warranty and software maintenance terms and conditions would be submitted at the time

each new manufacturer was to be added to the Schedule Contract; Now, Therefore, the parties hereby agree that the

product specific license, warranty and software maintenance terms shown in current form in Attachment A hereto (as updated by

Gigamon) (the “Manufacturer Specific Terms” or the “Attachment A Terms”) are incorporated into the Schedule Contract, but

only to the extent that they are consistent with federal law (e.g., the Anti-Deficiency Act (31 U.S.C. § 1341), the Contracts

Disputes Act of 1978 (41 U.S.C. §§ 7101 et seq.), the Prompt Payment Act (31 U.S.C. §§ 3901 et. seq.), the Anti-Assignment

statutes (31 U.S.C. § 3727 and 41

U.S.C. § 6305), DOJ’s jurisdictional statute 28 U.S.C. § 516 (Conduct of Litigation Reserved to the Department of Justice

(DOJ), and 28 U.S.C. § 1498 (Patent and copyright cases)). Any changes required to comply with Federal law are

incorporated into the Gigamon End User License Agreement, Gigamon Product Support and Software Maintenance

Agreement, and Gigamon Limited Warranty – Hardware and Software (together the “Gigamon Commercial Terms”).

a) Contracting Parties. The GSA Customer (“Licensee”) is the “Ordering Activity”, defined as the entity authorized to order

under GSA MAS contracts as set forth in GSA ORDER OGP 4800.2I (July 2016), as may be revised from time to time.

b) Changes to Work and Delays. Contractor’s Schedule Contract is Subject to GSAR Clause 552.238-81 Modifications (Federal Supply Schedule) (APR 2014) (ALTERNATE I- APR 2014), and 52.212-4(f) Excusable Delays (MAY 2015) are regarding which the GSAR and the FAR provisions take precedence as between Contractor and the GSA Customer. However, these terms are not required flowdowns and are not incorporated into the Gigamon Commercial Terms or the Manufacturer Specific Terms.

c) Contract Formation. Subject to FAR 1.601(a) and FAR 43.102, the GSA Customer Purchase Order must be signed by a duly warranted Contracting Officer, in writing. The same requirement applies to contract modifications affecting the rights of the parties. All terms and conditions intended to bind the Government must be included within the contract signed by the Government. Contractor will not provide any Gigamon Products (as defined in the Gigamon EULA) to any GSA Customer prior to the Gigamon Commercial Terms (with any modifications expressly agreed to in writing by Gigamon) being included in

Contractor’s GSA Contract.

d) Termination. Clauses in the Manufacturer Specific Terms referencing termination are modified to be in accordance with the requirements of the Contract Disputes Act when such disputes are directly between Gigamon and the GSA Customer.

e) Choice of Law. Subject to the Contracts Disputes Act, the validity, interpretation and enforcement of this Rider shall be governed by and construed in accordance with the Federal laws of the United States. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal laws or regulations are enacted, to the extent allowed by federal law, they will not apply to this Rider or the underlying Schedule Contract.

f) Equitable remedies. Equitable remedies are generally not awarded against the Government absent a statute providing therefore. If no statute allowing for equitable remedies is available at the time such a remedy is sought, clauses in the Manufacturer Specific Terms referencing unavailable equitable remedies are superseded and not applicable to any GSA Customer order.

g) Unilateral Termination. Termination is governed by the Gigamon Commercial Terms, as revised by Gigamon to acknowledge Federal procurement requirements.

h) Unreasonable Delay. Force Majeure is not a required flowdown clause. Gigamon’s standard commercial force majeure term in the Gigamon Commercial Terms govern

http://www.gigamon.com/


i) Assignment. Gigamon’s standard commercial assignment clause is revised to reflect Federal procurement requirements.

j) Waiver of Jury Trial. Waivers of Jury Trials are subject to FAR 52.233-1 Disputes (MAY 2014). The Government will not agree to waive any right that it may have under federal law. All clauses governing a waiver of jury trial in the Manufacturer Specific Terms are hereby superseded.

k) Government Indemnities. Government Indemnity is an obligation in advance of an appropriation that violates anti-deficiency laws (31 U.S.C. § 1341 and 41 U.S.C. § 6301), since the GSA Customer commits to pay an unknown amount at an unknown future time. The violation occurs when the commitment is made, i.e., when the agreement featuring this clause is incorporated into a Government contract, and not when the clause is triggered. FAR 52.212-4(u) the Office of Legal Counsel opinion dated March 12, 2012 prohibit such indemnifications. The Gigamon Commercial Terms are revised for purposes of this Rider to reflect this prohibition.

l) Contractor Indemnities. All Manufacturer Specific Terms that violate DOJ’s jurisdictional statute (28 U.S.C. § 516) by requiring that the Government give sole control over the litigation and/or settlement to the Contractor are modified to reflect the requirement of the statute. Nothing contained in the Manufacturer’s Specific terms shall be construed in derogation of the U.S. Department of Justice’s right to defend any claim or action brought against the U.S., pursuant to its jurisdictional statute.

m) Renewals. All Manufacturer Specific Terms that provide for automatic renewals in a way that violates the Anti-

Deficiency Act and are modified in the Gigamon Commercial Terms, if necessary.

n) Future Fees or Penalties. All Manufacturer Specific Terms that require the Government to pay any future fees, charges or penalties are modified in the Gigamon Commercial Terms if necessary unless specifically authorized by existing statutes, such as the Prompt Payment Act (31 U.S.C. § 3901 et seq.) or Equal Access To Justice Act (5 U.S.C. § 504; 28 U.S.C. § 2412).

o) Taxes. Contractor shall state separately on its invoices, taxes excluded from the fees, and the GSA Customer agrees to either pay the amount of the taxes (based on the current value of the equipment or services) to Contractor or provide it evidence necessary to sustain an exemption.

p) Third Party Terms.

q) Dispute Resolution and Standing. Any disputes with the GSA Customer relating to the Manufacturer Specific Terms or to this Rider shall be resolved in accordance with the FAR, the underlying GSA Schedule Contract, any applicable GSA Customer Purchase Orders, and the Contract Disputes Act. The Ordering Activity expressly acknowledges that EC America as contractor, on behalf of the Manufacturer, shall have standing to bring such claim under the Contract Disputes Act.

r) Advertisements and Endorsements. Pursuant to GSAR 552.203-71, Gigamon may not refer to the GSA Customer in a way to state or imply that the product or service is endorsed or preferred by the White House, the Executive Office of the President, or any other element of the Federal Government, or is considered by these entities to be superior to other products or services. Any advertisement by the Contractor, including price-off coupons, that refers to a military resale

activity shall contain the following statement: “This advertisement is neither paid for nor sponsored, in whole or in part, by any element of the United States Government.”.

s) Public Access to Information. EC America agrees that the attached Manufacturer Specific Terms and this Rider contain no

confidential or proprietary information and acknowledges the Rider shall be available to the public.

t) Confidentiality. Any provisions in the attached Manufacturer Specific Terms that require the Ordering Activity to keep certain information confidential are subject to the Freedom of Information Act (5 U.S.C. § 552) and the exemptions thereto, and any order by a United States Federal Court. When the end user is an instrumentality of the U.S. Government, neither this Rider, the Manufacturer’s Specific Terms nor the Schedule Price List shall be deemed “confidential information” notwithstanding marking to that effect. Notwithstanding anything in this Rider, the Manufacturer’s Specific Terms or the Schedule Contract to the contrary, the GSA Customer may retain such Confidential Information as required by law, regulation or its bonafide document retention procedures for legal, regulatory or compliance purposes; provided however, that such retained Confidential Information will continue to be subject to the confidentiality obligations of this Rider, the Manufacturer’s Specific Terms and the Schedule Contract.

u) Alternate Dispute Resolution. The GSA Customer cannot be forced to mediate or arbitrate. Arbitration requires prior guidance by the head of a federal agency promulgated via administrative rulemaking according to 5 U.S.C. § 575(c). GSA has not issued any because it considers the Board of Contract Appeals to be an adequate, binding ADR alternative. Modification to the Gigamon Commercial Terms reflects these limitations.

v) Ownership of Derivative Works. Provisions purporting to vest exclusive ownership of all derivative works in the licensor of the standard software on which such works may be based are superseded. Ownership of derivative works should be as set forth in the copyright statute, 17 U.S.C. § 103 but at a minimum, the GSA Customer shall receive unlimited rights to use such derivative works at no further cost.

3. Order of Precedence/Conflict. To the extent there is a conflict between the terms of this Rider and the terms of the underlying

Schedule Contract or a conflict between the terms of this Rider and the terms of an applicable GSA Customer Purchase Order,


then, as between Contractor and the GSA Customer, the terms of the GSA Schedule Contract or any specific, negotiated terms on

the GSA Customer Purchase Order shall control over the terms of this Rider, however, Gigamon does not agree to any conflicting

or additional terms included in the GSA Customer Purchase Order or the underlying Schedule Contract, unless such terms have

been specifically identified to Gigamon and agreed to, in a signed writing, in advance of the order being placed with Gigamon. Any

capitalized terms used herein but not defined, shall have the meaning assigned to them in the underlying Schedule Contract.

ATTACHMENT A

CONTRACTOR SUPPLEMENTAL PRICELIST INFORMATION AND TERMS

Gigamon End User License Agreement (EULA)

End User License Agreement

This End User License Agreement (“EULA”) is a legal agreement between the end-user Customer of Gigamon

hardware and software products (“Customer”) and Gigamon Inc. (“Gigamon”) regarding Customer’s use of the

Software (as defined below). Gigamon is willing to license the Software to Customer upon the condition that it

accepts and complies with the terms contained in this EULA plus any additional terms in any supplemental license

accompanying Gigamon Software where Customer accepts such supplemental license at the time of download (the

“Supplemental Terms”, together with the EULA, the “Agreement”). To the extent of any conflict between the

terms of this EULA and any Supplemental Terms, the Supplemental Terms will apply to the applicable Software.

Customer’s use, installation, or access of the Products constitutes agreement with and acceptance of this Agreement.

1. Definitions.

a. “Certified White Box Hardware” means the third party, non-Gigamon hardware products that Gigamon has certified to run Software under Gigamon’s white box solution program.

b. “Gigamon Hardware” means the Gigamon-branded hardware products, purchased from Gigamon directly or through an authorized Gigamon channel partner (“Approved Source”) that may include Software and

expressly excludes third party non-Gigamon branded hardware products that may run Software.

c. “Products” means, the Software, the Gigamon Hardware, and/or any combination thereof. d. “Software” means the object or binary code or firmware, any accompanying documentation, and any

upgrades or updates therefor, that are provided by Gigamon or an Approved Source on Gigamon’s behalf,

and either are (i) included with or embedded in the Gigamon Hardware, or (ii) provided as a stand-alone

software product. For the avoidance of doubt, Software expressly excludes third party software.

2. License Grant. Subject to and conditioned upon Customer’s compliance with the restrictions and terms set forth in the Agreement, (and, only where specifically agreed in a signed amendment by Gigamon and

Customer, – the underlying GSA Schedule Contract, Schedule Pricelist and Purchase Order(s))unless

otherwise set forth in the applicable Supplemental Terms:

a. Gigamon hereby grants Customer a non-exclusive, non-sublicensable (except as expressly set forth in Section 2(b) below), non-transferable (except as specified in Section 10 below) worldwide license to (i) use

the Software in object code format solely with the Gigamon Hardware or, if applicable, the Certified White

Box Hardware, for Customer’s internal business purposes only; and (ii) transfer the Software solely as

incorporated in the Gigamon Hardware or Certified White Box Hardware and solely in connection with the

sale of such Gigamon Hardware or Certified White Box Hardware, as applicable; and

b. Gigamon further hereby grants to Customer the right to sublicense Customer’s rights under Section 2(a)(i) to Customer’s contractors and subcontractors without further sublicense rights; provided that (i) such


sublicensed rights are for the sole purpose of providing services to Customer and are subject to all of the

limitations set forth in the Agreement; and (ii) Customer will be liable for any actions of, or failure to act

by, the contractors and subcontractors as if such actions or inactions were Customer’s.

3. Restrictions. Customer will not, nor will it allow or authorize any third party to: a. copy, duplicate, disclose, distribute, modify, sublicense (except as expressly set forth in sub-section 2(b)

above), license, transfer (except as expressly permitted herein in connection with the sale to a third party of

Gigamon Hardware or a Certified White Box Hardware), or exploit or create derivative works of the

Products or permit any third party to do so;

b. use, transfer, or distribute the Software in competition with Gigamon; c. decompile, reverse translate, disassemble, or reverse engineer the Software or cause the Software to be

subject to any open source obligations or release;

d. remove any proprietary markings or copyright notices from any Gigamon Hardware or Software, or translate the Software into any other format or language without Gigamon’s prior written consent;

e. publicly display, transmit or use supporting documentation for any other purpose other than to support Customer’s authorized use of the Products within its internal organization; or

f. create, disclose, distribute, sublicense, license or otherwise transfer any implementation of Gigamon’s application programming interfaces (APIs) except to support Customer’s authorized use of the Products

within its internal organization.

4. Ownership. The license granted in this Agreement is not a transfer or sale of Gigamon’s or its licensors’ ownership rights in the Software or its intellectual property. Except for the license specifically granted in this

Agreement, Gigamon retains all right, title, and interest in and to the Software, the related source code and

intellectual property, and any and all modifications or derivatives. The Software is confidential to Gigamon and

protected by applicable trade secret and intellectual property laws.

5. Open Source and Third Party Software. The Software may contain or be distributed with third party software covered by an open source software license that supersedes the licensing terms of this Agreement to

the extent required by that open source license (“Open Source Code”). All open source software is provided

WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF

NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Further,

notwithstanding any language contained in the Agreement, Gigamon has no obligation to defend, indemnify or

hold Customer harmless from and against any claim that any Open Source Code infringes any intellectual

property right, nor will Gigamon be liable for any damages, costs, or expenses incurred in connection therewith.

If, and to the extent required by the applicable open source license, Gigamon will make available the required

source code for the open source software in response to Customer’s request emailed to [email protected].

6. Technical Support, Limited Warranty. For ninety (90) days from the date the Software is downloaded by the Customer or shipped to the Customer by Gigamon or an Approved Source, Customer is entitled to all Gigamon-

provided software updates (bug fixes, maintenance releases, and feature upgrades) for the purchased the

Software. In addition, Gigamon offers a Limited Hardware and Software Warranty for its Products. Details and

current documentation for both are found at http://www.gigamon.com/support-and-services/overview-and- benefits.

All other Software maintenance and support is provided to Customer separately and for a fee.

7. Customer Use of Products. Customer has the sole obligation to manage, secure, and oversee its network and tools, and, provide notices, as necessary, to its users that their use of Customer’s computers, electronic

appliances, and devices (and those of users on Customer’s network) may be monitored, inspected, or decrypted.

8. No Other Warranties. EXCEPT AS SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE

PRODUCTS TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF,

AND RESULTS OBTAINED. GIGAMON MAKES NO REPRESENTATIONS AND UNDERTAKES NO

INDEMNIFICATION OBLIGATIONS REGARDING, ARISING FROM, OR RELATED TO THE

LEGALITY OF MONITORING OF NETWORKS OR INFORMATION IN A PARTICULAR

JURISDICTION, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT

CUSTOMER’S PROPOSED OR ACTUAL USE OF THE PRODUCTS COMPLIES WITH APPLICABLE

LAWS. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGAMON WILL HAVE NO LIABILITY

WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS

RESULTING FROM: (A) THE USE OF THE PRODUCTS BY CUSTOMER OR THIRD PARTIES; (B)

SECURITY BREACHES; (C) EAVESDROPPING, INTERCEPTION, FAILURE OF DELIVERY OR LOSS

OF DATA SENT, STORED, OR RECEIVED USING THE PRODUCTS; OR (D) ANY CERTIFIED WHITE

BOX HARDWARE. THESE LIMITATIONS APPLY EVEN IF GIGAMON HAS BEEN ADVISED OF THE

mailto:[email protected]


POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL

PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY

APPLICABLE LAW, GIGAMON AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO

THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED

WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NONINFRINGEMENT,

NON- INTERFERENCE WITH THE ENJOYMENT OF THE HARDWARE, AND FITNESS FOR A

PARTICULAR PURPOSE.

9. Certified White Box Hardware. Customer acknowledges and agrees that, if Customer obtains Certified White Box Hardware, Gigamon makes no endorsements of and provides no warranties or support with respect thereto.

Customer assumes all risk related to as well as all responsibility for the selection and use of the Certified White

Box Hardware and should contact the applicable third party hardware provider or such third party’s agent for

support and warranty related information.

10. Term and Termination. This Agreement is effective as of the date of the beginning of the period of performance provided in the applicable Gigamon accepted ordering document. Recourse against the United States for

any disputed alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a

dispute under the contract disputes clause (Contract Disputes Act) as applicable. The Contractor shall proceed

diligently with performance of this contract, pending final resolution of any disputed request for relief, claim, appeal,

or action arising under the contract, and comply with any decision of the Contracting Officer. If any breach by

Customer is undisputed by Customer, Gigamon and Customer may agree in writing to terminate this Agreement.

Customer may terminate the License Grant section of this EULA at any time upon written notice to Gigamon

that it has transferred or sold to a third party the Gigamon Hardware or the Certified White Box Hardware

containing the Software. Any such termination will not entitle Customer to a refund for any Products or for

Support and Maintenance, which is not transferable. Gigamon’s rights and Customer’s obligations survive the

termination of this Agreement. Upon termination of this Agreement and upon Gigamon’s request, Customer

will certify in writing to Gigamon that all instances and copies of the Software, or any portion thereof (other

than firmware), have either been returned to Gigamon or otherwise destroyed or deleted from any of its

devices or storage devices.

11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL GIGAMON BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR INFORMATION, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN EXCLUSIVE REMEDY. IN NO EVENT WILL GIGAMON’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCTS AT ISSUE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATION SET FORTH IN THIS PARAGRAPH MAY NOT APPLY. The foregoing limitation of liability shall not apply to (1) personal injury or death resulting from Licensor’s gross negligence; (2) for fraud; or (3) for

any other matter for which liability cannot be excluded by law.

12. Audit. Customer will keep current, complete, and accurate records regarding the installation and use of the Software. Customer will provide such information to Gigamon and certify that it has paid all related fees, if

applicable, within five business days of any written request, so long as Gigamon does not make more than one

request during any 12-month period. Except to the extent prohibited by applicable law, Customer will, after

reasonable prior notice from Gigamon and subject to Government security requirements, provide Gigamon with

reasonable access to its premises, records, and personnel so that Gigamon or its designee may audit and confirm

compliance with this Agreement. If an audit reveals any non-permitted reproduction, installation, or use of the

Software, Customer will (i) promptly comply with this Agreement and (ii) be invoiced for the additional fees

(at the underlying GSA Schedule Price List rate).

13. Indemnification. Except to the extent prohibited by the Anti-Deficiency Act, Customer will defend, indemnify, and hold harmless Gigamon (including its officers, employees, directors, subsidiaries,

representatives, affiliates, agents, and licensors) from and against any damages (including reasonable

attorney’s fees and expenses), claims, and lawsuits that arise or result from Customer’s breach of any provision

of this Agreement.

14. Intellectual Property. Gigamon, its logo, and all other names, logos, or icons identifying Gigamon and its


programs, products, and services are proprietary, and any use of identical or confusingly similar marks, including as

domain names, without Gigamon’s express written permission is strictly prohibited. If Customer provides any

feedback to Gigamon concerning the functionality and performance of the Products (including identifying potential

errors, enhancements, and improvements) (“Feedback”), Customer hereby assigns to Gigamon all right, title, and

interest in and to the Feedback. Gigamon may use Feedback without any payment or restriction.

15. Compliance with Laws and Export Restrictions. The Products are subject to U.S. export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of

Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets

Control, and the International Traffic in Arms Regulations maintained by the Department of State. Customer

will comply with all applicable laws and regulations regarding use of the Products, including all U.S. export

control laws and regulations as well as those of any country of import and/or export. Customer covenants that

it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products or

technology received from Gigamon to any destination, entity, or person prohibited by the laws or regulations

of the United States. In addition, Customer may not use the Products for any end-use prohibited by the laws or

regulations of the United States without obtaining prior authorization from the competent government

authorities as legally required. Customer will indemnify, to the fullest extent permitted by law, Gigamon from

and against any fines or penalties that may arise as a result of its breach of this Section. This Section will

survive indefinitely.

16. US Government Rights. The Software is a “commercial item” as that term is defined at FAR 2.101. If

Customer is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Gigamon

provides the Software, including any related technical data, and/or professional services in accordance with the

following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of

Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212

(Computer Software), only those rights in technical data and software customarily provided to the public as

defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD and if the

DoD’s rights are subject to Subpart 227.72, then the Government acquires, in accordance with DFARS

227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only

those rights in technical data and software customarily provided in this Agreement. In addition, if the DoD’s

rights are subject to Subpart 227.72, then DFARS 252.227-7015 (Technical Data – Commercial Items) applies to

technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those

rights in technical data and software customarily provided to the public as defined in this Agreement. If any

Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described

in this Section, it must negotiate with Gigamon to determine if there are acceptable terms for transferring such

rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any

applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is

inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for the end

user license agreement for the Software, the Government agrees to return the Software, unused, to Gigamon.

This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or

other clause, provision, or supplemental regulation that addresses Government rights in computer software or

technical data under this Agreement.

17. Reserved.

18. Equitable Relief. T h i s s e c t i o n i s a p p l i c a b l e o n l y t o t h e e x t e n t p r o v i d e d i n t h e E C A m e r i c a R i d e r t o P r o d u c t S p e c i f i c L i c e n s e T e r m s a n d C o n d i t i o n s .

Customer acknowledges that (a) the Software is confidential and proprietary to Gigamon and contains valuable

trade secrets; (b) any breach, threatened or actual, of this Agreement will cause irreparable injury to Gigamon;

(c) such injury would not be quantifiable in monetary damages; and (d) Gigamon would not have an adequate

remedy at law in the event of such a breach or threatened breach. Customer therefore agrees that Gigamon will

be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate

equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of

Customer’s obligations under any provision of this Agreement. Accordingly, Customer hereby waives any

requirement that Gigamon post any bond or other security in the event any injunctive or equitable relief is

sought by or awarded to Gigamon to enforce any provision of this Agreement.

19. General. This Agreement is governed by the Federal Laws of the United States, without reference to its conflict of laws principles. Except as mandated by applicable Federal law, any dispute regarding this Agreement will be

subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California,


U.S.A. This Agreement (and, only where specifically agreed in a signed amendment by Gigamon and Customer,

–the Purchase Order, the underlying GSA Schedule Contract, and Schedule Pricelist) constitutes the entire

agreement between Customer and Gigamon and supersedes any other communications with respect to the

Software(but, if specifically agreed in a signed amendment by Gigamon and Customer, – would then shall not

supersede the terms of the underlying GSA Schedule contract negotiated purchase order or the Schedule

pricelist of Gigamon’s reseller)). Additional or conflicting terms on any purchase order or other document issued

by Customer or any Approved Source will have no force or effect. If any provision of this Agreement is held

invalid or unenforceable, the remainder of this Agreement will continue in full. No waiver by either party of any

rights under the Agreement will be effective unless such waiver is in a writing signed by the party against whom

enforcement is sought. Any notices relating to this Agreement should be sent via receipted delivery to Gigamon

Inc., Attention: Legal Department, 3300 Olcott Street, Santa Clara, CA 95054 or by email to

[email protected].



Agreement for optional Gigamon Product Support and Software Maintenance

PRODUCT SUPPORT AND SOFTWARE MAINTENANCE AGREEMENT

This Product Support and Software Maintenance Agreement (“Support Agreement”) is between Gigamon Inc.

(“Gigamon”) and customer (“Customer”) for the support and maintenance of the Products (defined below) by Gigamon. This

Support Agreement is for the period specified in Attachment A to this Support Agreement (the “Effective Period”). Attachment

A is hereby incorporated by this reference.

1. Definitions.

a. “ARU” means an advance replacement unit.

b. “Error” means any verifiable and reproducible failure of the Product to materially conform to the Specifications unless such failure is caused by (a) Customer’s failure to implement in a timely manner Software updates,

improvements, or modifications to the Product provided to Customer by Gigamon; (b) acts of God, (c) acts of

government; (d) misuse or abuse, (e) Customer instructions, installation, or set up adjustments; (f) modifications of or

to any part of the Product by any party other than Gigamon; (g) accident or damage; or (h) use of the Software other

than as permitted in Gigamon’s End User License Agreement.

c. “General Availability Releases” means Software issued concurrently to all customers with an active Support Agreement at regular pre-planned intervals. General Availability Releases are identified by the first two digits. The

first digit (e.g. 3.x and 4.x) indicates a Major Release. The second digit (e.g. 4.0 and 4.1) indicates a Minor Release.

d. “Hardware” means the Gigamon-branded hardware products, purchased from Gigamon or its authorized distributors, and listed in Attachment A.

e. “Hot Patch” means corrections provided to address defects or Errors in existing Software.

f. “Major Release” means an upgrade, such as an architectural change or new platform support, to existing Software.

g. “Minor Release” means an update providing a new feature that builds upon the main upgrade trunk of existing Software.

h. “Maintenance Release” means Software issued to address a known defect and/or to introduce minor feature additions.

i. “Product” means the Hardware, the Software, or any combination thereof.

j. “Priority 1 Error” means any demonstrable Error in the Product that, in a production environment, (a) causes the Product to have a significant loss of utility of intended function; or (b) prevents the Product from being installed or

operated when properly configured.

k. “Priority 2 Error” means any demonstrable Error in the Product that (a) causes the Product to operate improperly in a manner which negatively impacts the normal course of business for Customer; or (b) produces results materially

different from those described in the Specifications but does not rise to the level of a Priority 1 Error.

l. “Priority 3 Error” means any demonstrable Error in the Product that (a) causes a function not to execute as documented in the Specifications without a significant loss of utility or intended functionality; or (b) disables one or

more nonessential functions.


m. “RMA” means a Gigamon-authorized return material authorization.

n. “Select Countries” means the countries listed at www.gigamon.com/support-and-services/rma-sd.

o. “Software” means the object or binary code included in the Hardware or ordered separately from Gigamon or its authorized distributors for use in connection with the Hardware and listed in Attachment A.

p. “Specifications” means the applicable Gigamon-published Product specifications.

2. Technical Support Response, Restore, and Communication Levels.

a. Generally. If Customer believes a Product is experiencing an Error, Customer may contact Gigamon Technical Support team (“Support Team”) as specified in https://www.gigamon.com/support-and-services/contact-support.

Once Tech Support has confirmed that the Product is covered by an active Support Agreement, they will assist the

Customer in addressing the Error in accordance with Gigamon’s Support Response Time Policy, which is attached as

Attachment B, and incorporated by reference. Gigamon and the Customer will jointly agree on the priority level

assigned to an Error.

b. Hardware. If a Support Team Engineer confirms the Customer-reported Error, in Hardware, and the RMA is approved before the local cut-off time, Gigamon will arrange for (a) next day delivery of the ARU to Customer locations in the

U.S. and Select Countries; and (b) same-day shipment of the ARU to Customer for Customer locations in all other

countries. For all ARU shipments, Gigamon will pay for freight to Customer’s location; however for Customers

outside of the U.S. and Select Countries, Gigamon shall invoice Customer for any other customs, taxes, duties or

related fees.. Gigamon may ship ARUs with a minimum shipping version of Software and Customer will be

responsible for upgrading to the then-current version of the Software for the ARU or as recommended by the Support

Team. Customer must return the suspect Hardware to Gigamon’s specified location (“Return Location”) within thirty

(30) days of receiving the ARU unless Gigamon agrees in advance in writing. Regarding the return shipment to the

Return Location: (a) for Customers in the US and Select Countries, Gigamon will provide a pre-paid return label; and

(b) for Customers outside these countries, Gigamon shall invoice Customer for the return freight as well as any other

customs, taxes, duties or related fees. Customer agrees either to pay the amount of the taxes or to provide evidence

necessary to sustain an exemption, in accordance with FAR 52.229-1 and FAR 52.229-3. Suspect Hardware must be

returned in the same packaging in which the ARU was provided, unless otherwise agreed to between the parties,

with the RMA number prominently displayed. Gigamon will not be responsible for any damage to the suspect

Hardware that occurs during return shipment to Gigamon. Customer will be invoiced for the then-current

published GSA Schedule list price of the ARU if it fails to return the suspect Hardware to Gigamon within the

requested time frame, or if Gigamon reasonably determines, after receipt of the Hardware, that the Customer-

reported Error is not covered under this Support Agreement.

c. Software. Subject to Gigamon’s Software Release Policy (at https://www.gigamon.com/support-and- services/policies?sstarget=srp), Customers will be entitled to receive General Availability Releases, Maintenance

Releases and Hot Patches during the Effective Period of this Support Agreement. Customers registered on Gigamon’s

Customer Portal website as the email contact for updates will receive email notification of Software releases. Both the

Customer Portal and Gigamon website (www.gigamon.com), have information on the latest released Software

versions.

If a Support Team Engineer confirms a Customer-reported Error in Software, Gigamon will provide the Customer a

workaround or instructions for downloading a Software correction. If the issue is new and has not been previously

resolved by Gigamon, the Support Team will escalate the problem and provide a correction as set forth in Attachment

B.

d. Exclusions. Gigamon has no obligation under this Support Agreement to provide support or troubleshooting services, and will have no liability, for any hardware or software purchased from Gigamon or its authorized channel partners

but not listed on Attachment A. Gigamon will have no obligation to provide:

(i) design, staging, or configuration validation unless directly associated to addressing an Error; (ii) support, troubleshooting or configuration assistance for third party (non-Gigamon) hardware and/or software

products

(iii) support or troubleshooting services in connection with use of the Product or for any failure or error in the Product caused by: (A) the improper use, alteration, or damage of the Product by Customer or any third party; (B)

modifications to the Product; or (C) third party hardware or software.

http://www.gigamon.com/support-and-services/rma-sdhttps://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/policies?sstarget=srphttps://www.gigamon.com/support-and-services/policies?sstarget=srphttps://www.gigamon.com/support-and-services/policies?sstarget=srphttp://www.gigamon.com/


e. Additional Services. If Gigamon performs services at Customer’s request beyond the scope of the services set forth in in this Section (Technical Support Response, Restore, and Communication Levels), (the “Support Services”),

Customer will order them (and be invoiced) separately and they are not part of the GSA Schedule Contract. Gigamon

will be under no obligation to provide any such services.

3. Fees. Gaps in coverage of a Support Agreement are not allowed. Therefore, Customers that purchase a Support Agreement after the initial Product purchase or an expiration of prior coverage may be required to purchase additional Support to cover all gaps in coverage, in addition

to any new Support Agreement purchased. Support Service fees for coverage gaps will be calculated starting as of the later of (a) the date of

initial Product purchase; or (b) for renewals, the date the previous Support Agreement expired. All Software Support and Maintenance

fees are non-refundable.

Force Majeure. Notwithstanding any other provision of this Support Agreement, Gigamon will have no liability for any

cessation, interruption, or delay in the performance of its obligations hereunder due to causes beyond its reasonable control

including, but not limited to: earthquake, flood, fire, storm, or other natural disaster, act of God, act of government, labor

controversy or threat thereof, civil disturbance or commotion, acts or threats of terrorism, war, or armed conflict.

4. No Warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN THE SUPPORT SERVICES AND ARUs ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED,

IMPLIED, OR STATUTORY. TO THE EXTENT PERMITTED BY LAW, GIGAMON EXPRESSLY DISCLAIMS

ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS

FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NONINFRINGEMENT. TO THE EXTENT

AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE

APPLICABLE COVERAGE PERIOD.

5. Limitations of Liability: GIGAMON WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR LOST DATA, IN

CONNECTION WITH THE PRODUCTS. IF A PRODUCT CONTAINS AN ERROR, CUSTOMER’S SOLE AND

EXCLUSIVE REMEDY SHALL BE REPAIR OR REPLACEMENT OF THE PRODUCT. GIGAMON’S MAXIMUM

LIABILITY UNDER THIS SUPPORT AGREEMENT IS EXPRESSLY LIMITED TO THE LESSER OF THE PRICE

PAID FOR THE PRODUCT OR THE COST OF REPAIR OR REPLACEMENT OF THE PRODUCT. THESE

LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE NATURE OR THEORY OF THE CLAIM

AND WILL BE EFFECTIVE EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF ANY

DAMAGES. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF

ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS SUPPORT AGREEMENT. The foregoing limitation

of liability shall not apply to (1) personal injury or death resulting from Licensor’s gross negligence; (2) for fraud; or (3)

for any other matter for which liability cannot be excluded by law.

6. General. Gigamon’s entire liability and Customer’s exclusive remedy under this Support Agreement will be the repair or replacement, at Gigamon’s sole discretion, of the Hardware and/or Software which do not meet the applicable

Specifications. This Support Agreement is governed by the Federal Laws of the United States, without reference to its

conflict of laws principles. This Support Agreement is non-transferrable and non- refundable. The Support

Agreement, constitutes the entire Support Agreement between Customer and Gigamon and supersedes any other

communications with respect to the Products. Additional or conflicting terms on any purchase order or other document

issued by Customer or any third party will have no force or effect, unless accepted, in a signed writing, by Gigamon and

Customer. These terms and conditions may not be amended, waived or modified, except in a writing signed by a duly

authorized representative of each party and no course of dealing or usage of trade may be invoked to amend, waive or

modify any term of this Support Agreement. If any provision of the Support Agreement is held invalid or unenforceable,

the remainder of the Support Agreement will continue in full force and effect. No waiver by either party of any rights

under the Support Agreement will be effective unless such waiver is in a writing signed by the party against whom

enforcement is sought. Any notices relating to this Support Agreement should be sent via receipted delivery to

Gigamon Inc., Attention: Legal Department, 3300 Olcott Street, Santa Clara, CA 95054 or by email to

[email protected].



Attachment A PRODUCTS COVERED BY A

GIGAMON® PRODUCT SUPPORT AND SOFTWARE MAINTENANCE SUPPORT AGREEMENT

Customer Name:

Customer Account #:

End Customer PO#:

Reseller PO#:

SO#:

Premium Support Contact Number(s):

Your primary Technical Support contact is provided by:

If Applicable your Gigamon Support Partner Program Level is: The Products with the Serial Number(s) below are covered under this Product Support and Software Maintenance

Support Agreement for the applicable time period(s) indicated below:

Product Product Description Serial Number(s) Coverage Start Date Coverage

End Date


Attachment B Support Response Time Policy

Type Priority 1 Priority 2 Priority 3

S T A N D A R D

Initial Response 2 Hour 4 Hours 2 Days

Status* Live on phone until Daily Twice Weekly

Restore Times SW: 24 hours SW: 48 Hours N/A

Resolution Time SW: 5 Days SW: 10 Days As agreed / Next MNT

Communication

Method Phone Only Phone/Email Phone/Email

P R E M I U M

Initial Response 1 Hour 2 Hours 8 Hours

Status* Live on phone until Daily Daily

Restore Times SW: 24 hours SW: 48 Hours N/A

Resolution Time SW: 5 Days SW: 10 Days As agreed / Next MNT

Communication

Method Phone Only

Phone/Email

After Hours: Phone only

Phone/Email

After hours: Phone only

* Status update time may be renegotiated as agreed by Gigamon and Customer on a case by case basis.


Gigamon Limited Warranty for Hardware and Software

Limited Warranty – Hardware and Software

Effective July 1, 2015

This Limited Warranty for Hardware and Software (this “Limited Warranty”) sets forth the terms by which

Gigamon Inc. (“Gigamon”) will repair or replace Gigamon-manufactured Products that contain defects in material

and workmanship that cause the Products to fail to conform with the applicable Gigamon-published specifications

(collectively, the “Defects”). This Limited Warranty covers Gigamon-manufactured software (the “Software”) and

Gigamon-manufactured hardware (the “Hardware”) and the Software and Hardware are sometimes referred to in

this Limited Warranty together as the “Products”. This Limited Warranty is available only to the original end user

customer (the “Customer”) and solely covers Products purchased from Gigamon or its authorized channel partners.

Hardware

For five years from the initial date that the Hardware is shipped by Gigamon or its designee (“Hardware Coverage

Period”), Gigamon will, at its option, repair or replace such Hardware determined by Gigamon to have a Defect

provided that: (a) the Hardware has been used within normal operating conditions; (b) the Customer notifies the

Gigamon technical support team (“Technical Support”) of the suspected Defect during the Hardware Coverage

Period; (c) Technical Support reproduces and validates the Defect; and (d) Customer complies with this Limited

Warranty. Gigamon may, at its option, repair or replace any such Hardware with validated Defects with new or

equivalent-to-new components or hardware with equivalent fit, form, and function. Any Hardware without validated

Defects will be repaired at Customer’s expense and at Gigamon’s then-current professional service rates.

Process: Customer must first contact Technical Support to obtain approval to return Hardware that Customers

suspects has a Defect. Following Customer’s receipt of Technical Support’s approval of Customer’s return of such

Hardware, Technical Support will use commercially reasonable efforts to same-day ship an advanced replacement

unit (“ARU”) to Customer. Each ARU will include a Gigamon Return Materials Approval (“RMA”) number that

Customer must include when shipping the suspect Hardware back to the location designated by Technical Support.

Upon ARU receipt, Customer is responsible for shipping the suspect Hardware, in either its original packaging or

packaging affording an equal degree of protection, to the designated location. Customer shall return the suspect

Hardware within 30 calendar days of Customer’s receipt of the ARU. Customer shall return the suspect Hardware

within 30 calendar days. If Customer fails to do so, Customer will be invoiced for the price of the ARU.

Each ARU is covered by this Limited Warranty for the longer of (a) the remainder of the original Hardware

Coverage Period; or (b) ninety days from the ARU shipment date. Any Hardware returned to Gigamon will become

Gigamon’s property.

For Customers in Select Countries with a Local Service Depot: Gigamon will pay the freight and all other costs

associated with the ARU shipment and the return shipment of the suspect Hardware via a Gigamon-provided pre-

paid return label referencing the RMA number. Please see www.gigamon.com/support-and-services/rma-sd for a list

of countries with a local service depot.

For Customers in all other Geographic Locations: Gigamon will pay the freight associated with the ARU shipment,

but Gigamon shall invoice Customer for any other customs, taxes, duties or related fees. Customer will be

responsible for the costs related to returning the suspect Hardware to Gigamon’s designated location.

http://www.gigamon.com/support-and-services/rma-sd


Software

For one year from the date the Software is initially shipped to or downloaded by the Customer (“Software Coverage

Period”), as applicable, Gigamon will use commercially reasonable efforts to provide the Customer a correction or

workaround for any Defects in the Software provided that: (a) the suspected Defect occurs when the Software is

used within normal operating conditions and as permitted in Gigamon’s End User License Agreement; (b) the

Customer notifies Technical Support of the suspected Defect during the Software Coverage Period; (c) Technical

Support reproduces and validates the Defect; and (d) Customer complies with this Limited Warranty. For Software

shipped to or downloaded by Customers located outside of North America and Latin America, the Software

Coverage Period is thirteen months, instead of one year, from the original date of shipment.

Hardware and Software

Technical Support Contact Information: For contact details, please visit https://www.gigamon.com/support-and-

services/contact-support.

Limitations: This Limited Warranty is non-transferable and only covers Defects. This Limited Warranty does not

cover issues caused by (a) Customer’s failure to implement Software updates; (b) acts of God, (c) acts of

government; (d) misuse or abuse, (e) Customer instructions, installation, or set up adjustments; (f) modifications of

or to any part of the Products; (g) accident or damage; or (h) use of the Software other than as permitted in

Gigamon’s End User License Agreement. This Limited Warranty does not apply to Products sold AS IS or WITH

ALL FAULTS, nor does it apply to open source software, which is provided subject to the terms and conditions of

the applicable open source license. Further, this Limited Warranty is invalid if the factory-applied serial number has

been altered or removed from the Product. Gigamon may require Customer to provide proof of purchase by

Customer and of the applicable shipment date.

Disclaimer of Warranties: EXCEPT AS EXPRESSLY SET FORTH HEREIN THE PRODUCTS ARE PROVIDED

WITHOUT ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED, IMPLIED OR

STATUTORY. TO THE EXTENT PERMITTED BY LAW, GIGAMON EXPRESSLY DISCLAIMS ALL

IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS

FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NONINFRINGEMENT. TO THE

EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN

DURATION TO THE APPLICABLE COVERAGE PERIOD. THIS LIMITED WARRANTY SUPERSEDES

ANY PRIOR AGREEMENTS OR REPRESENTATIONS—INCLUDING REPRESENTATIONS MADE IN

GIGAMON SALES LITERATURE OR ADVICE GIVEN BY GIGAMON, ANY GIGAMON AUTHORIZED

CHANNEL PARTNER, OR AN AGENT OR EMPLOYEE THEREOF—THAT MAY HAVE BEEN MADE IN

CONNECTION WITH THE PURCHASE OF A PRODUCT. NO CHANGE TO THIS LIMITED WARRANTY IS

VALID UNLESS IT IS MADE IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF

GIGAMON.

Limitations of Liability: GIGAMON WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE

OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR LOST

DATA, IN CONNECTION WITH THE PRODUCTS. IF A PRODUCT CONTAINS A DEFECT, CUSTOMER’S

SOLE AND EXCLUSIVE REMEDY SHALL BE REPAIR OR REPLACEMENT OF THE PRODUCT.

GIGAMON’S MAXIMUM LIABILITY UNDER THIS LIMITED WARRANTY IS EXPRESSLY LIMITED TO

THE LESSER OF THE PRICE PAID FOR THE PRODUCT OR THE COST OF REPAIR OR REPLACEMENT

OF ANY PRODUCT. THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE NATURE

OR THEORY OF THE CLAIM AND WILL BE EFFECTIVE EVEN IF GIGAMON HAS BEEN ADVISED OF

THE POSSIBILITY OF ANY DAMAGES. THE LIMITATIONS IN THIS LIMITED WARRANTY WILL

APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN

THIS AGREEMENT. The foregoing limitation of liability shall not apply to (1) personal injury or death resulting

from Licensor’s gross negligence; (2) for fraud; or (3) for any other matter for which liability cannot be excluded

by law.

Force Majeure: Notwithstanding any other provision of this Agreement, Gigamon will have no liability for any

cessation, interruption, or delay in the performance of its obligations under this Limited Warranty due to causes beyond

its reasonable control including: natural disaster, act of God, act of government, labor controversy or threat thereof,

civil disturbance or commotion, acts or threats of terrorism, war, or armed conflict.

https://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/contact-support


Choice of Law; Venue: This Agreement is governed by the Federal laws of the United States, without reference to its

conflict of laws principles. V e n u e a n d j u r i s d i c t i o n a r e g o v e r n e d b y a p p l i c a b l e U n i t e d

S t a t e s F e d e r a l l a w .

Except as mandated by applicable Federal law, any dispute regarding this Limited Warranty will be subject to the

exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, U.S.A. v061815

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