Gigamon Inc (“Gigamon”) provides certain scripts to be used in conjunction with Gigamon products, solutions and services (collectively, “Gigamon Products”). This license (“Agreement”) governs the copying, installing and use of the accompanying scripts and any associated script documentation provided therewith (collectively, “Materials”). For the avoidance of any doubt, Materials expressly exclude any and all Gigamon Products, third party products, software provided in object-code form, and software provided as a service.

If you use the Materials, you accept this license. If you do not accept the license, do not use the Materials. If you are an employee of or contractor to an entity that will copy, install or use the materials, your agreement to these terms will be deemed to be the agreement of that entity (“Customer”) and you and Customer represent and warrant that you have authority or have been provided the authority to bind Customer to the terms and conditions of this agreement.

1. Definitions.

“Internal Use License” means a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable, royalty-free license to internally use, reproduce, modify and create of derivative works of the Materials by Customer’s employees and contractors on behalf of and for the sole benefit of Customer (provided that Customer remains liable and responsible for the actions and inactions of its employees and contractors). Internal Use specifically excludes the right to disclose or distribute the Materials outside of Customer.

"Licensed Patent Claims" means the claims of Gigamon’s patents that are necessarily and directly infringed by the reproduction and distribution of the Materials when such items are in their unmodified form as delivered by Gigamon to Customer, and not modified or combined with anything else. Licensed Patent Claims are only those claims that Gigamon can license without paying, or obtaining the consent of, a third party.

2. License; Restrictions/Obligations.

(a) Grant of Copyright License. Subject to the terms of this Agreement, Gigamon grants Customer, during the term of this Agreement, under Gigamon’s copyrights, an Internal Use License to the Materials solely for use in conjunction with Gigamon Products.

(b) Grant of Patent License. Subject to the terms of this license, Gigamon grants Customer, during the term of this Agreement, under Licensed Patent Claims, an Internal Use License to the Materials solely for use in conjunction with Gigamon Products. For clarity, the license under the Licensed Patent Claims does not and will not apply to any modifications to or derivative works of the Materials, whether made by Customer or a third party, even if the modification or derivative work is permitted under Section 2(a).

(c) Restrictions/Obligations. Customer shall not, and shall not allow others to: (i) make the Materials (or modifications or derivatives thereof) available to any third party (other than to Customer’s employees and contractors as permitted hereunder), including through any service bureau arrangement, distribution, lease, rent, sale, sublicense, or transfer; (ii) remove any copyright or other proprietary notices contained in the Materials (or modifications or derivatives thereof); (iii) directly or indirectly export or re-export the Materials (or modifications or derivatives thereof) in violation of any applicable law or regulation; or (iv) use the Materials (or modifications or derivatives thereof) in a way which is not expressly authorized hereunder or which may be illegal. Customer shall comply with all applicable laws and regulations in connection with this Agreement.

(d) Open Source. The Materials may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have additional or different terms or conditions applicable to Customer’s use and/or access thereof as identified on a website designated by Gigamon or otherwise provided with the Materials. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor. Customer agrees not to use or include any Open Source with the Materials in such a way that would cause Gigamon or any non-Open Source portions of the Materials to be subject to any Open Source licensing terms or obligations.

3. Ownership. All right, title and interest in and to the Materials are and will remain the exclusive property of Gigamon and its licensors. There are no implied licenses granted by Gigamon under this Agreement. Except as expressly stated in Section 2, Customer shall have no rights to the Materials. Nothing in this Agreement requires or will be treated to require Gigamon to grant any additional license.

4. Disclaimers of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MATERIALS ARE DELIVERED FREE OF CHARGE AND ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER USES THE MATERIALS ENTIRELY AT ITS OWN RISK.

5. NO SUPPORT; UPDATES. GIGAMON MAY MAKE CHANGES TO THE MATERIALS, OR TO ITEMS REFERENCED THEREIN, AT ANY TIME WITHOUT NOTICE, AND HAS NO OBLIGATION TO SUPPORT, UPDATE OR PROVIDE TRAINING FOR THE MATERIALS. IF GIGAMON, IN ITS SOLE DISCRETION, PROVIDES BUG FIXES, MODIFICATIONS, UPDATES OR REPLACEMENTS TO THE MATERIALS, SUCH ITEMS WILL BE DEEMED PART OF THE MATERIALS AND SUBJECT TO THE TERMS HEREUNDER, UNLESS SEPARATE TERMS ACCOMPANY SUCH ITEMS.

6. Term. If Customer accesses the Materials through electronic means, Gigamon may terminate access at any time in the future without notice. If Customer has downloaded the Materials, this Agreement is effective until terminated and Customer may terminate this Agreement at any time by destroying all copies of the Materials. This Agreement and all licenses granted hereunder will terminate immediately without notice from Gigamon if Customer fails to comply with any provision of this Agreement. If Customer institute patent litigation against Gigamon over patents that may apply to the Materials (including a cross-claim or counterclaim in a lawsuit), Customer’s license to the Materials ends automatically. Upon any termination, Customer must destroy all copies of the Materials. Sections 1, 2(c), 2(d), 3, 4, 5, 6, 7, and 8 shall survive.

7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO CASE SHALL GIGAMON OR ITS LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GIGAMON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED U.S. FIFTY DOLLARS (US$50). MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION. IN ADDITION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. General Provisions. The parties are independent contractors, and nothing in this Agreement is intended to shall create any agency, partnership or joint venture relationship between them. This Agreement is governed and interpreted in accordance with the laws of the State of California without reference to conflicts of laws principles. Each party irrevocably submits to the jurisdiction and venue of the state and federal courts serving Santa Clara County, California, and waives any objections to the jurisdiction and venue of such courts. This Agreement is prepared and executed and will be interpreted in the English language only, and no translation of the Agreement into another language will have any effect. Gigamon and Customer agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from and will not apply to this Agreement. Customer may not assign this Agreement, or any of its rights or obligations hereunder, by operation of law or otherwise, without Gigamon’s prior written consent. Any purported assignment by Customer other than as provided above shall be null and void. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted. No failure by Gigamon to enforce any of its rights under this Agreement will act as a waiver of such rights. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous agreements and communications relating to the subject matter of this Agreement. This Agreement may not be modified without the prior written consent of both parties.

Revised: February 2020