This Purchase Agreement (the “Agreement”) sets forth the terms and conditions that apply to all purchases of goods and services by Gigamon Inc. from Seller by means of a purchase order issued by Gigamon to Seller (a “PO”). As used in this Agreement, “Seller” means the entity identified on the face of a PO as “Seller”, and its subsidiaries and affiliates. Seller and Gigamon are each referred to herein as a “Party” and together as the “Parties”. The Parties hereby agree as follows.
1. PROVISION OF GOODS AND SERVICES. Seller agrees to provide the goods or Services deliverables described in a PO (collectively referred to as “Goods”) and/or perform the services described in a PO (“Services”), in accordance with the terms and conditions in this Agreement and the terms and conditions on the face of the PO, which terms are incorporated herein by reference. Upon the earlier of acceptance of a PO, shipment of Goods or commencement of Services, Seller agrees to be bound by the provisions of this Agreement. A PO may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded, or otherwise altered, except in writing signed by authorized representatives of both Gigamon and Seller. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Seller which are inconsistent with this Agreement are hereby rejected and do not apply. To the extent that a PO might be treated as an acceptance of Seller’s prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof, and shipment of the Goods or commencement of Services will constitute Seller’s assent. Forecasts provided by Gigamon are non-binding.
2. DELIVERY. Unless otherwise expressly specified on the face of the PO, deliveries of Goods will be made FOB (Free on Board) destination for domestic shipments, and DDP (Delivery Duty Paid) origin for international shipments, where the destination and origin, as applicable, are indicated on the face of the PO. Seller will deliver the Goods and/or complete the Services on or before the applicable date indicated in the PO (the “Delivery Date”); provided, however, that Gigamon, in its sole discretion, may refuse to accept Goods delivered more than five (5) business days prior to such Delivery Date and Seller will incur all costs associated with returning such Goods. Time is of the essence in the performance of Seller’s obligations in connection with the Agreement. Seller will give Gigamon prompt notice of any prospective failure to ship Goods or provide Services on the Delivery Date. Seller is responsible for insuring shipments and Gigamon will not be responsible for any additional cost of any insurance purchased by Seller covering shipments hereunder. Over-shipments may be returned at Seller’s expense or retained by Gigamon and Gigamon’s discretion.
3. CHANGES. Gigamon may at any time prior to the applicable Delivery Date have Seller make changes to any of the following: (i) Specifications provided to Seller; (ii) Seller’s method of shipment or packing; (iii) the quantities of Goods ordered; and/or (iv) the place and/or time of delivery.
4. LICENSE GRANT. If Goods include software, firmware or documentation, Seller grants to Gigamon a non-exclusive, perpetual, royalty free, worldwide license to use, reproduce, display, prepare derivative works of the documentation, and to distribute such works, software, firmware, or documentation directly or as integrated into Gigamon products, and to sublicense such rights (through multiple tiers) to third parties. Seller will identify all licenses and deliver to Gigamon all materials required to meet the requirements of any licenses for third party software that is included in the Goods or Service deliverables. Seller will deliver to Gigamon the source code for any software licensed under a license that has a source availability requirement (such as GNU GPL License). If the source code is not included with the materials that Seller has previously delivered, Seller will deliver within 7 days after Gigamon’s request the source code for any software licensed under an open source license that has a source availability requirement.
5. WARRANTIES. Seller warrants that all Goods delivered and Services performed under the Agreement will (i) be free from defects in workmanship and material and fit for the purposes for which such Goods or Services are intended, (ii) contain all new materials, (iii) strictly conform to the requirements stated in the Agreement, all other specifications furnished by Gigamon and, to the extent such specifications are consistent with the Specifications provided by Gigamon, Seller’s specifications, (collectively, “Specifications”); and (iv) be free and clear of all liens, encumbrances, security interests, burdens, and/or other claims. The foregoing warranties will remain in effect for a period of one (1) year after Gigamon’s acceptance of the Goods and/or Services. Further, Seller warrants all Goods against Epidemic Failure for a period of 3 years after Gigamon’s acceptance thereof. Epidemic Failure means the occurrence of the same or similar failure, defect, or non-conformity to Specifications in 2% or more of goods within any 3 month period. All warranties will run both to Gigamon and its customers.
6. EPIDEMIC FAILURE REMEDY. If an Epidemic Failure occurs, all costs, including without limitation, replacement goods, parts, upgrades, materials, labor, transportation, and inventory replacement arising from the Epidemic Failure, will be borne by Seller, regardless of whether Gigamon initiates a recall. If Gigamon elects to procure similar goods to substitute for the affected Goods, Seller will promptly reimburse Gigamon for all costs, charges, prices, and fees paid in purchasing such substitute goods.
7. TITLE, RISK OF LOSS, INSPECTION AND ACCEPTANCE.
7.1 Title and risk of loss or damage to the Goods will pass to Gigamon upon delivery to Gigamon, subject to Gigamon’s right to reject any non-conforming Goods. Notwithstanding the foregoing, risk of loss of any non-conforming Goods or deliveries will remain with Seller unless and until Gigamon finally accepts such Goods or deliveries.
7.2 Gigamon will have thirty (30) days after receipt of Goods to inspect them for conformity to the Agreement and applicable Specifications, and Goods received prior to inspection will not be deemed accepted until Gigamon has run adequate tests to determine whether the Goods conform thereto. Use of the Goods or for the purpose of testing will not constitute and acceptance of the Goods. If Goods tendered or Services rendered do not wholly conform to the provisions of this Agreement and applicable Specifications, Gigamon will have the right to reject such Goods or Services. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon Gigamon’s delivery to the common carrier.
8. PRICING, INVOICES, PAYMENT. As full consideration for performance of the Services and/or delivery of the Goods and assignment of rights to Gigamon, Gigamon will pay Seller the amount agreed upon and specified on the face of the PO. The prices in the PO include all costs and charges related to the sale and delivery of the Goods and/or Services, including, without limitation, packaging, packing, crating, storage, forwarding agent and brokerage fees, insurance costs, freight shipping charges, document fees, duties and charges of any kind. Invoices will be submitted to email@example.com, and will describe the items, state the PO Number, and be attached to the original bill of lading or other shipping receipt. Gigamon will pay undisputed invoices net 45 days from delivery of the Goods and/or Services and receipt of invoice together with supporting documentation, whichever occurs later.
9. TAXES. Gigamon will pay or reimburse Seller for Value Added Tax, GST, PST, Sales and Use or any similar transaction taxes imposed on the sale of Goods and or Services sold to Gigamon under this Agreement provided the taxes are statutorily imposed either jointly or severally on Gigamon. Gigamon will not pay or reimburse Seller for any taxes which are statutorily imposed on Seller including but not limited to taxes imposed on Seller’s net or gross income, capital, net worth, property, or any employment related taxes on Seller or Seller’s personnel. If Gigamon is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Gigamon upon which the deduction is based will be paid to Seller net of such legally required deduction or withholding. For U.S. purposes, and notwithstanding any other language in this Section, prices are exclusive of sales and use tax. Such taxes, if applicable, will be added separately in Seller’s invoice, and Gigamon will remit such taxes to Seller. Seller will not invoice, or otherwise attempt to collect from Gigamon, any taxes with respect to which Gigamon has provided Seller with (i) a valid resale or exemption certificate, (ii) evidence of direct payment authority, or (iii) other evidence, reasonably acceptable to Seller, that such taxes do not apply.
10. CONFIDENTIALITY. If Gigamon and Seller have entered into a Non-Disclosure Agreement (“NDA”), and if the NDA expires before the expiration or termination of this Agreement, then the terms of the NDA will be automatically extended to match the term of the Agreement. If the Parties have not entered into an NDA, then except as necessary for its performance under the Agreement, Seller will not disclose to any third party, reproduce, or use any information furnished by Gigamon and, at Gigamon’s request, Seller will return such information to Gigamon. Further, Seller will not issue any news release, advertisement, publicity, or promotional material regarding the Agreement or Seller’s relationship with Gigamon without Gigamon’s prior written consent. Seller will maintain administrative, technical, and physical security controls to ensure the confidentiality, integrity, security, and availability of any information furnished by Gigamon under this Agreement and promptly inform Gigamon of any security breaches of such information. Gigamon will not be precluded from independently developing, acquiring from other third parties, distributing or marketing other goods or services which may perform the same or similar functions as the Goods or Services provided under this Agreement. The provisions of this Section 10 (CONFIDENTIALITY) will survive the termination or cancellation of this Agreement.
11. TERMINATION; SURVIVAL.
11.1 At any time prior to the date of shipment of Goods or commencement of Services, Gigamon may terminate this Agreement by providing Seller 15 days’ prior written notice.
11.2 Either Party may terminate this Agreement immediately by delivering written notice to the other Party for any material breach not capable of cure or, if capable of cure, not cured within 5 days of receipt of notice thereof. Upon termination of this Agreement by Gigamon due to Seller’s default, (i) Gigamon may elect to purchase, at Seller’s cost, any Goods Seller may have purchased to fulfill Gigamon’s order; and/or (ii) exercise any other rights that Gigamon may have in law or in equity.
11.3 Either Party may terminate the PO immediately by delivering written notice to the other Party upon the occurrence of any of the following events: (i) a receiver is appointed for either Party or its property; (ii) a Party makes a general assignment for the benefit of its creditors; (iii) a Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency, or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (iv) either Party is liquidating, dissolving, or ceasing to do business in the ordinary course.
11.4 The respective provisions of this Agreement that by their nature would continue beyond the termination or expiration of this Agreement will survive any termination or expiration, including but not limited to Warranties, Epidemic Failure Remedy, Indemnification, Confidential Information, Limitation of Liability, Compliance, Governing Law, and General.
12. INDEMNIFICATION. Seller will indemnify, hold harmless, and at Gigamon’s request, defend Gigamon, its officers, directors, partners, customers, agents, and employees (collectively, “Indemnified Parties”), against claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in connection with the Goods or Services provided under this Agreement, including without limitation, with respect to: (i) the death or bodily injury to any person, destruction or damage to property, or contamination of the environment, and any associated clean-up costs, (ii) the negligence, omissions, or willful misconduct of Seller or any of Seller’s Affiliates, (iii) Seller’s breach of any provision of this Agreement, (iv) Seller failing to comply with any requirement of applicable law or regulation, and (v) any allegation by a third party against Gigamon claiming that the Goods or Services, the results of such Services, or any other products or processes provided pursuant to this Agreement, infringe or misappropriate an intellectual property right, whether alone or in combination with other products, software, or processes. Seller will not settle any suit or claim hereunder without Gigamon’s prior written approval, which will not be withheld unreasonably. Seller agrees to pay or reimburse all costs that may be incurred by Gigamon in enforcing this provision, including attorneys’ fees. If the use of any Goods or Services by Gigamon, its distributors, subcontractors, or customers be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller will, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Gigamon, its distributors, subcontractors, or customers the right to continue using the goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT WHERE ARISING IN CONNECTION WITH A PARTY’S BREACH OF CONFIDENTIALITY OR SELLER’S INDEMNIFICAITON OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT. IN NO EVENT WILL GIGAMON’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY GIGAMON FOR CONFORMING GOODS OR SERVICES DELIVERED BY SELLER IN ACCORDANCE WITH THE AGREEMENT. IN THOSE JURISDICTIONS THAT DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATION SET FORTH IN THIS SECTION DOES NOT APPLY.
14. INSURANCE. Seller will maintain and require its subcontractors to maintain such adequate health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller and Seller’s subcontractors’ trades or businesses, whichever affords greater coverage. Upon request, Seller will provide Gigamon with certificates of insurance or evidence of coverage. Seller will provide adequate coverage for any Gigamon property under its care, custody, or control.
15. ASSIGNMENT; SUBCONTRACTING. Seller may not assign any of its rights or delegate any of its obligations under this agreement without Gigamon’s prior written consent, which Gigamon will not unreasonably withhold. Any attempted assignment or delegation undertaken without Gigamon’s prior written consent will be void. If Gigamon consents to Seller’s use of a subcontractor, Seller will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify and hold harmless Gigamon for all damages and costs of any kind incurred by Gigamon or any third party and caused by the acts and omissions of Seller’s subcontractors; and (iii) make all payments to its subcontractors and indemnify and hold Gigamon harmless for all damages and costs of any kind, without limitation, incurred by Gigamon and caused by Seller’s breach of this subsection (iii). If Seller fails to timely pay a subcontractor for work performed, Gigamon will have the right, but not the obligation, to pay the subcontractor directly and offset any amount due to Seller by any amount paid by Gigamon to the subcontractor.
16. RELATIONSHIP OF THE PARTIES. Seller is an independent contractor for all purposes, without express or implied authority to bind Gigamon by contract or otherwise. Neither Seller nor its employees, agents, or subcontractors (“Seller’s Affiliates”) are agents or employees of Gigamon, and therefore are not entitled to any Gigamon employee benefits. Neither Party will enter into any contract with any third parties in the name of the other Party without the prior written consent of the other Party.
17.1 Seller will comply with all applicable laws and regulations and Seller will defend and hold Gigamon harmless from any expense or damage resulting from Seller’s (or any of Seller’s Affilates’) violation or alleged violation of any such law or regulation in the performance of this Agreement.
17.2 Upon Gigamon’s request, Seller will promptly provide Gigamon with a certification of country of origin and/or applicable Customs documentation for all Goods provided or to be provided under this Agreement.
18. GOVERNMENT REGULATIONS. Gigamon’s suppliers, contractors, and subcontractors are subject to the following provisions of the Federal Acquisition Regulation (“FAR”), if and to the extent applicable, and further, to the extent applicable, these provisions are incorporated herein by reference with the same force and effect as if they were included in full text in this Agreement: 48 CFR § 52.222-21 (Prohibition of Segregated Facilities), 48 CFR § 52.222-22 (Equal Opportunity), 48 CFR § 52.222-25 (Affirmative Action Compliance), 48 CFR § 52.222-26 (Equal Opportunity), 48 CFR § 52.222-35 ((Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans), 48 CFR § 52.222-36 (Affirmative Action for Workers with Disabilities), 48 CFR § 52.222-37 (Employment Reports on Veterans), 48 CFR § 52.222-50 (Combating Trafficking in Persons), 48 CFR § 52.203-13 (Contractor Code of Business Ethics and Conduct), 48 CFR § 52.203-14 (Display of Hotline Poster(s)), 48 CFR § 52.209-5 (Certification Regarding Responsibility Matters), 48 CFR § 52.209-2 (Prohibition on Contracting With Inverted Domestic Corporations – Representation), 48 CFR § 52.203-11 (Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions), 48 CFR § 52.203-12 (Limitation on Payments to Influence Certain Federal Transactions), and 48 CFR § 52.216-7 (Allowable Cost and Payment).
19. DEBARMENT AND SUSPENSION. Prior to award of the contract or PO, Seller must disclose in writing to Gigamon whether Seller or its principals are, or are not, debarred, suspended, or proposed for debarment by the federal government of the United States or any state or local government entity. Seller shall not subcontract any part of this Agreement to any entity that is, or its principals are, debarred, suspended, or proposed for debarment by the federal government of the United States or any state or local government entity.
20. COMPLIANCE WITH ANTI-CORRUPTION LAWS. Seller represents and warrants to Gigamon that, in connection with the transactions contemplated by this Agreement, Seller, and everyone acting on its behalf, will comply with any anti-corruption law or international anti-corruption standards, including without limitation, the U.S. Foreign Corrupt Practices Act, in connection with the performance of its obligations under this Agreement.
21. CONFLICT MINERALS. Seller will source materials for the Goods and Services from environmentally and socially responsible sources, including without limitation conflict free sources within the Democratic Republic of the Congo and adjoining countries. Additionally, Seller will conduct conflict minerals due diligence in line with a nationally or internationally recognized due diligence framework of its necessary conflict minerals sources, suppliers, and subcontractors, including without limitation a reasonable country of origin inquiry (“RCOI”) using the most current version of the EICC-GESI Conflict Minerals reporting template found at http://www.conflictfreesourcing.org. Seller will permit Gigamon, and any of its suppliers or subcontractors to conduct Gigamon’s own due diligence upon Gigamon’s reasonable request. In addition, Seller will respond promptly to, and provide reasonable assistance and cooperation in connection with any RCOI or due diligence from Gigamon.
22. INVOLUNTARY LABOR. Supplier represents that (i) it complies with all applicable laws and regulations, including eradication of forced, indentured, involuntary or compulsory labor in its facilities, and requires its suppliers, including labor brokers and agencies, to do the same; and (ii) its supply chain and materials incorporated into its products comply with national and international laws prohibiting slavery and human trafficking. Supplier will treat workers with dignity and respect, provide them with a safe work environment, conduct business in compliance with applicable environmental, labor and employment laws, and refrain from corrupt practices and engaging in human rights violations.
23. RoHS, WEEE and REACH. At Gigamon’s request, Seller will (i) certify its compliance, in a reasonable amount of time and in a format acceptable to Gigamon, with any directive or specific law, rule or regulation related to RoHS, WEEE, REACH or other environmental requirements applicable to Seller; (ii) provide Gigamon, free of charge, with information about preparation for re-use and treatment of the Goods; (iii) maintain traceability records indicating part number, quantity and revision status of the Goods for no less than 7 years; and (iv) provide certificates to Gigamon when regulation changes or Goods changes create a need for new certification.
24. GOVERNING LAW; VENUE. Except with regard to the application of federal law to federal statutes and regulations, this Agreement is governed by the laws of the State of California, without reference to its conflict of laws principles. Except as set forth above, 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. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and any applicable legislation implementing that convention will not apply to this Agreement or the relationship between Gigamon and Seller.
25. GENERAL. This Agreement and the applicable PO are the entire agreement between Customer and Gigamon and supersede any other communications with respect to Goods and Services. This is not an exclusive agreement and Gigamon is free to engage others to provide goods or perform services the same as or similar to Seller. Any delay or failure at any time to enforce any provision of the Agreement will not constitute a waiver of the right thereafter to enforce each and every provision of the Agreement. If any provision of this Agreement is found to be unenforceable, the unenforceable provisions will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the Parties as expressed herein.