DATA PROTECTION AGREEMENT

Online Version 11-20-2020

DATA PROCESSING AGREEMENT AND STANDARD CONTRACTUAL CLAUSES

This Gigamon Data Processing Agreement (“DPA”), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, supplements any existing and currently valid agreement previously made between Gigamon Inc. and/or its subsidiaries (collectively, “Gigamon” or “Data Importer” or “Processor”) with their principal place of business at 3300 Olcott Street, Santa Clara, CA 95054, U.S.A., and Gigamon customer (“Customer” or “Data Exporter” or “Controller”) with respect to the terms governing the processing of Personal Data under the Gigamon Offerings’ applicable terms and conditions (the “Agreement”).
This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement. Gigamon reserves the right to periodically update this DPA.

1. DEFINITIONS

Capitalized terms that are used but not otherwise defined in this DPA shall have the meanings given in the applicable Agreement. 

1.1 “DPA Effective Date” means the effective date of the Agreement. 

1.2 “EEA” means the European Economic Area. 

1.3 “EU” means the European Union. 

1.4 “Data Protection Legislation” means applicable data protection laws, regulations, regulatory requirements in the relevant jurisdiction, including the GDPR and other relevant data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, applicable to the processing of Personal Data under the Agreement.   

1.5 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016. 

1.6 “Gigamon Hardware” means any Gigamon-branded hardware product that is purchased by Customer directly from Gigamon or through an authorized channel partner. For clarity, Software may be included with or embedded in Gigamon Hardware (but is not included within the scope of Gigamon Hardware). 

1.7 “Gigamon Offering(s)” or “Offering(s)” means Gigamon Hardware, Software (delivered on-premises or as a service), Support Services, and professional services.

1.8 “Information Security Incident” means a breach of Gigamon’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Gigamon’s possession, custody or control.

1.9 “Insight” Gigamon Software delivered as a service.

1.10 “Software” means any object or binary code or firmware, any accompanying Documentation, and any upgrades or updates therefor, that are provided by Gigamon or an Authorized Channel Partner on Gigamon’s behalf and that are either (i) included with or embedded in the Gigamon Hardware, or (ii) provided as a separate software product or service.

1.11 “Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses and set forth in Appendix 4 in this DPA. 

1.12 “Support Services” means the support and maintenance services purchased by Customer from Gigamon or through an authorized channel partner.

1.13 “Personal Data” means any personal data as defined in the Data Protection Legislation, including the GDPR, that Gigamon processes in connection with the Gigamon Offering. 

1.14 “Security Documentation” means Appendix 2 describing the Security Measures and Section 5.4 (Reviews and Audits of Compliance). 

1.15 “Security Measures” has the meaning given in Section 5.1.2 (Gigamon’s Security Measures).

1.16 “Special Categories of Personal Data” has the meaning given to it under Article 9.1 of the GDPR.

1.17 “Term” means the period from the DPA Effective Date until the end of Gigamon’s provision of the Gigamon Offering pursuant to the Agreement. 

1.18 “Subprocessors” means third parties authorized under this DPA to process Personal Data in relation to the Gigamon Offering.

1.19 The terms “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses. 

2. DURATION OF DPA

This DPA will take effect on the DPA Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon termination or expiration of the Agreement, or until such time as Gigamon no longer processes Personal Data. 

3. PROCESSING OF DATA

3.1 Roles and Regulatory Compliance.

3.1.1 Processor and Controller Responsibilities. The parties acknowledge and agree that: 

(a) the subject matter and details of the processing are described in Appendix 1a and/or Appendix 1b, depending on the Gigamon Offerings at issue; and 

(b) Gigamon is a Processor of that Personal Data under Data Protection Legislation; and 

(c) Customer is a Controller of that Personal Data under Data Protection Legislation; and 

(d) Gigamon will immediately inform Customer if it believes that Customer’s instructions with respect to the Processing of Personal Data violate the GDPR or Member State provisions; and

(e) each party will comply with the obligations applicable to it in such role under the Data Protection Legislation with respect to that Personal Data. 

3.1.2 Customer Responsibilities. Customer agrees that: (a) Customer has established or ensured that another party has established a legal basis for Gigamon’s processing of Personal Data contemplated by this DPA; (b) to the extent required by Data Protection Legislation given the context of the processing and unless another legal basis supports the lawfulness of processing, all notices have been given to, and consents and rights have been obtained from, the relevant data subjects and any other party as may be required under applicable law (including European Data Protection Legislation) for such processing; and (c) Personal Data does not and will not contain Special Categories of Personal Data. 

3.2 Scope of Processing and Authorization. 

3.2.1 Customer’s Instructions. By entering into this DPA, Customer instructs Gigamon to process Personal Data: (a) to provide the Gigamon Offering; (b) as authorized by the Agreement, including this DPA; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Gigamon. 

3.2.2 Gigamon’s Compliance with Instructions. Gigamon will only process Personal Data in accordance with Customer’s instructions described in Section 3.2.1 unless Data Protection Legislation requires otherwise, in which case Gigamon will notify Customer in writing (unless that law prohibits Gigamon from doing so on important grounds of public interest).

4. DATA DELETION AND RETENTION

4.1 Deletion on Termination. On termination of the Agreement or expiry of the Term and at the choice of the Customer, Gigamon will either delete or return (in a commonly machine readable format) the Personal Data to the Customer and certify in writing that it has done so unless Union or Member State law requires storage of the Personal Data.

4.2 Retention. Gigamon will use all commercially reasonable efforts to implement and maintain appropriate retention periods for Personal Data in accordance with Data Protection Legislation. Gigamon will delete Personal Data as soon as retention of such data is no longer necessary for the purposes of processing under this DPA, subject only to situations where a longer period is required under European Union or Member State law.

5. DATA SECURITY

5.1 Gigamon Security Measures, Controls and Assistance.

5.1.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller and the Processor shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk.

5.1.2 Gigamon Security Measures. Gigamon will implement and maintain technical and organizational measures designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data as described in Appendix 2 (the “Security Measures”). 

5.1.3 Gigamon Security Controls. Gigamon may grant employees, contractors and Subprocessors access to Personal Data when appropriate confidentiality arrangements or obligations no less protective than those set forth in this DPA are in place and when such access is required to perform their job duties. 

5.1.4 Gigamon Security Assistance. Gigamon will (taking into account the nature of the processing of Personal Data and the information available to Gigamon) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Personal Data under European Data Protection Legislation, including Articles 32 to 36 (inclusive) of the GDPR, by: 

(a) implementing and maintaining the Security Measures in accordance with Section 5.1.2 (Gigamon Security Measures); and

(b) complying with the terms of Section 5.2 (Information Security Incidents).

5.2 Information Security Incidents. 

5.2.1 Information Security Incident Notification. If Gigamon becomes aware of, an Information Security Incident, Gigamon will (a) notify Customer of the Information Security Incident without undue delay (and in any event within 72 hours) including: (a.1) description of the nature of the Information Security Incident, (a.2) the name and contact details for the contact point to find more information, (a.3) the description of likely consequences of Information Security Incident, and (a.4) description of the measures taken or proposed to be taken to address the Information Security Incident  including, where appropriate, measures to mitigate its possible adverse effects; and Gigamon will (b) take prompt action, at its own expense, to investigate the Information Security Incident. 

5.3 Customer’s Security Responsibilities and Assessment. 

5.3.1 Customer’s Security Responsibilities. Customer agrees that, without limitation of Gigamon’s obligations under Section 5.1 (Gigamon’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents): 

(a) Customer is solely responsible for its use of the Gigamon Offering, including: 

(i)   securing the account authentication credentials, systems and devices Customer uses to access the Gigamon Offering; 

(ii)  securing Customer’s systems and devices that Gigamon uses to provide the Gigamon Offering; and 

(iii) independently backing up Personal Data; and 

(b) Gigamon has no obligation to protect Personal Data that Customer elects to store or transfer outside the scope of this DPA.

5.3.2 Customer’s Security Assessment. 

Customer has reviewed the Security Documentation and evaluated that the Gigamon Offering, the Security Measures and Gigamon’s commitments under this Section 5 (Data Security) meets Customer’s needs. 

5.4 Reviews and Audits of Compliance.

5.4.1 Customer may audit Gigamon’s compliance with its obligations under this DPA up to once per year and on such other occasions as may be required by Data Protection Legislation, including where mandated by Customer’s supervisory authority. Gigamon will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit. 

5.4.2 If a third party is to conduct the audit, Gigamon may object to the auditor if the auditor is, in Gigamon’s reasonable opinion  a competitor of Gigamon. Such objection by Gigamon will require Customer to appoint another auditor or conduct the audit itself.

5.4.3 Subject to clause 5.2.1 in relation to an Information Security Incident and aside from in the event of an investigation of a supervisory authority, to request an audit, Customer must submit a detailed proposed audit plan to Gigamon at least thirty (30) days in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Gigamon will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Gigamon security, privacy, employment or other relevant policies). Gigamon will work cooperatively with Customer to agree on a final audit plan.  Nothing in this Section 5.4 shall require Gigamon to disclose any information where such disclosure would result in a breach of any duties of confidentiality.   

5.4.4 If the controls or measures to be assessed in the requested audit are addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Gigamon has confirmed there are no known material changes in the controls audited, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures.  

5.4.5 The audit must be conducted during regular business hours, subject to the agreed final audit plan and Gigamon’s safety, security or other relevant policies, and may not unreasonably interfere with Gigamon business activities. 

5.4.6 Customer will promptly notify Gigamon of any non-compliance discovered during the course of an audit and provide Gigamon any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA. 

5.4.7 Any audits are at Customer’s expense. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.  Nothing in this DPA shall be construed to require Gigamon to furnish more information about its Subprocessors in a connection with such audits than such Subprocessors make available to Gigamon without restriction on further disclosure.  If any audit reveals that Gigamon is not in compliance with the provisions of this DPA and/or Data Protection Legislation, Gigamon shall take at its own cost all commercially reasonable corrective actions including any temporary work-arounds necessary to comply with the provisions of this DPA and/or Data Protection Legislation.  

6. IMPACT ASSESSMENT AND CONSULTATION

Gigamon will (taking into account the nature of the processing and the information available to Gigamon) reasonably assist Customer in complying with its obligations under Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by (a) making available for review copies of the Security Documentation or other documentation or information describing relevant aspects of Gigamon’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement including this DPA.

7. DATA SUBJECT RIGHTS

7.1 Customer’s Responsibility for Requests. During the Term, if Gigamon receives any request from a data subject in relation to the data subject’s Personal Data processed in connection with the Gigamon Offering, Gigamon will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request, subject to the assistance to be provided by Gigamon pursuant to Section 7.2 below. 

7.2 Gigamon’s Data Subject Request Assistance. Gigamon will (taking into account the nature of the processing of Personal Data) provide Customer with reasonable assistance as necessary for Customer to perform its obligation under Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR. 

8. DATA TRANSFERS TO A THIRD COUNTRY

8.1 Data Storage and Processing Facilities. Gigamon may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Personal Data in the United States or anywhere Gigamon or its Subprocessors maintains facilities. 

8.2 Transfers of Data Out of the EEA. 

8.2.1 Gigamon’s Transfer Obligations. If Customer is established in the EEA and Gigamon’s processing of Personal Data involves transfers of Personal Data out of the EEA to Gigamon in a country not deemed by the European Commission to have adequate data protection, and the European Data Protection Legislation applies to such transfer, such transfer will be governed by the Standard Contractual Clauses.  For the purposes of the Standard Contractual Clauses, Customer and Gigamon agree that (a) Customer will act as the data exporter on its own behalf and on behalf of any of its subsidiaries and (b) Gigamon will act as the data importer.   

8.2.2 Standard Contractual Clauses Administration. The parties agree that (a) upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and that data importer may remove or redact all commercial information or clauses unrelated the Standard Contractual Clauses or their equivalent beforehand; (b) the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 5.4 of this DPA; (c) Customer’s authorizations in Section 9.1 will constitute Customer’s prior written consent to the subcontracting by Gigamon of the processing of Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses, provided that Gigamon shall remain responsible with its Subprocessors’ acts or omissions under the Agreement including this DPA; and (d) certification of deletion of Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request.

9. SUBPROCESSORS

9.1 Consent to Subprocessor Engagement. Customer specifically authorizes and consents to the engagement of Gigamon’s subsidiaries as Subprocessors. In addition, Customer generally authorizes and consents to the engagement of any other relevant third parties as Subprocessors as needed to provide the Gigamon Offering. Gigamon currently engages the Subprocessors listed in Appendix 3.

9.2 Requirements for Subprocessor Engagement. When first engaging any Subprocessor, Gigamon will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the Gigamon Offering provided by such Subprocessor.

9.3 Opportunity to Object to Subprocessor Changes.

When a new Subprocessor is engaged during the Term, Gigamon will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by sending an email.  If Customer objects to such engagement in a written notice to Gigamon within fifteen (15) days of being informed thereof on reasonable grounds relating to the protection of Personal Data, Customer and Gigamon will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Gigamon.

10. NOTICES

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Gigamon to Customer under this DPA. may be given (a) in accordance with the notice clause of the Agreement; and/or (b) as described in Section 5.2.1; and/or (c) to Gigamon’s primary points of contact with Customer.

11. EFFECT OF THESE TERMS

Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. To the extent of any conflict or inconsistency between this DPA and the remaining terms of the Agreement regarding the subject matter herein, this DPA will govern.

12. ADDITIONAL TERMS TO STANDARD CONTRACTUAL CLAUSES (Commission Decision C(2010)593  Standard Contractual Clauses (processors))

12.1 These terms apply where the Standard Contractual Clauses (Commission Decision C(2010)593 Standard Contractual Clauses (processors)) are adopted by the parties in lieu of another adequate personal data transfer mechanism to the transfer of Customer Personal Data from the European Economic Area, Switzerland, or the United Kingdom to another jurisdiction not recognized as adequate by the European Commission, Swiss Federal Data Protection and Information Commissioner, or United Kingdom Information Commissioner’s Office respectively.

12.2 The Standard Contractual Clauses and the additional terms specified in this Section 13 of this DPA shall apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and, (ii) all subsidiaries of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed an Agreement for Gigamon Offering. With regard to the Standard Contractual Clauses and this Section 13, the aforementioned entities shall be deemed “Data Exporters”. 

12.3 Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Gigamon for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and where applicable Order Form(s); (b) Processing initiated by Customer in their use of the Gigamon Offering and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. 

12.4 Appointment of new Subprocessors and List of current Subprocessors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) Gigamon’s subsidiaries may be retained as Subprocessors; and (b) Gigamon and Gigamon’s subsidiaries respectively may engage third-party Subprocessors in connection with the provision of the Gigamon Offering. Gigamon shall make available to Customer the current list of Subprocessors in accordance with Section 9 of this DPA.

12.5 Notification of New Subprocessors and Objection Right for new Subprocessors. Pursuant to Clause 5(h) of the Standard Contractual Clauses and consistent with Article 28 of the GDPR, Customer acknowledges and expressly agrees that Gigamon may engage new Subprocessors as described in Section 9 of the DPA.

12.6 Sub-processor Agreements. The parties agree that Subprocessing obligations pursuant to Clause 11 of the Standard Contractual Clauses shall be carried out in accordance with GDPR Article 28. The parties agree that the copies of the Subprocessor agreements that must be provided by Gigamon to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial and confidential information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, redacted by Gigamon beforehand; and, that such copies will be provided by Gigamon, in a manner to be determined in its discretion, only upon written request by Customer. 

12.7 Audits. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with Section 5.4 of this DPA. To the extent the Standard Contractual Clauses additionally require Gigamon’s facilities be submitted for inspection, Customer may contact Gigamon through prior written notice to request an on-site audit of the procedures relevant to the protection of Customer Personal Data. Customer shall reimburse Gigamon for any time expended for any such on-site audit at the Gigamon’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Gigamon shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Gigamon with information regarding any noncompliance discovered during the course of an audit.

12.8 Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Gigamon to Customer only upon Customer’s request pursuant to Section 4 of this DPA.

12.9 Conflict. In the event and to the extent of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Appendix 4 in a way that materially affects the adequacy of the transfer, the Standard Contractual Clauses shall prevail.

Appendix 1a to the DPA - Insight
Subject Matter and Details of the Data Processing

Appendix 1b to the DPA – GIGAMON OFFERINGS
Subject Matter and Details of the Data Processing

Appendix 2 to the DPA
Security Measures

As from the DPA Effective Date, Gigamon will implement and maintain the Security Measures set out in this Appendix 2.

Appendix 3 to the DPA
Subprocessors

• Amazon Web Services
• Salesforce
• JIRA
• Thales e-Security; FKA Gemalto
• Gigamon UK Ltd.
  100 Brook Drive, Green Park
  Reading, Berkshire, RG2 6UJ
  United Kingdom
• Gigamon Solutions India Private Limited
  Level 5, S.P.Plot No 16
  ThiruViKa Industrial Estate
  Inner Ring Road, Guindy
  Chennai 600032, Tamil Nadu
  India

Appendix 4 to the DPA
Commission Decision C(2010)593
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: Customer
And
Name of the data importing organisation: Gigamon

each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

For the purposes of the Clauses:

1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
2. 'the data exporter' means the controller who transfers the personal data;
3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:

1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
5. that it will ensure compliance with the security measures;
6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:

1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
4. that it will promptly notify the data exporter about:
   1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
   2. any accidental or unauthorised access, and
   3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
   1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
   2. to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9
Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11
Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses . Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12
Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter
The data exporters are (please specify briefly your activities relevant to the transfer):

Each of the Customer EEA Affiliates (as defined in the DPA)

Data importer
The data importer is (please specify briefly activities relevant to the transfer):

Gigamon (as defined in the DPA)

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):

As described in the section entitled "Categories of Statutorily Defined Data Subjects for Whom the Customers' Personal Data Relates" in Appendix 1 to the DPA.

Categories of data
The personal data transferred concern the following categories of data (please specify):

As described in the section entitled "Categories of Personal Data" in Appendix 1 to the DPA.

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):

None.

Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):

As described in the section entitled "Nature and Purpose of the Processing" in Appendix 1 to the DPA.