Gigamon Insight Terms and Conditions

Updated as of November 8, 2019

 

In order to use or access INSIGHT products and services, a company or other legal entity (“Customer”) is required to enter into a customer agreement with Gigamon Inc., a Delaware corporation, (“Gigamon”) with offices at  3300 Olcott St, Santa Clara, CA 95054, for such products/services.

If, with respect to the product/service to which these terms and conditions apply or are attached:

  1. If the Customer has executed a written customer agreement with Gigamon covering such product/service, then the terms and conditions below do not apply and the written agreement governs and controls; OR
  2. If the Customer is evaluating such product/service, the Evaluation Terms below apply.  If the Customer has previously been bound by the current version of the Evaluation Terms as set forth below, the Evaluation Terms were effective and binding as of such earlier date; OR
  3. If otherwise, the Purchase Terms below apply.  If the Customer has previously been bound by the current version of the Purchase Terms as set forth below, the Purchase Terms were effective and binding as of such earlier date.  If the Customer has not previously entered into a written customer agreement or been bound by the current version of the Purchase Terms as set forth below, the Purchase Terms below become effective and binding upon acceptance and supersede any previous Purchase Terms for such product/service.

 

EVALUATION TERMS: Gigamon INSIGHT POC Evaluation Agreement

PLEASE READ CAREFULLY: IF YOU ARE ACCEPTING THIS EVALUATION AGREEMENT ("EVALUATION AGREEMENT") ON BEHALF OF CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT.  BY CLICKING "ACCEPT," CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN GIGAMON AND CUSTOMER.  IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CLICK "ACCEPT" AND CUSTOMER WILL NOT BE AUTHORIZED TO USE THE PRODUCT.

This Agreement is entered into as of the later of the date that Customer accepts the terms and conditions herein or the date on which Gigamon makes available to Customer for download the object code software component for installation on an endpoint in accordance with this Evaluation Agreement in order to access and use certain of Gigamon's proprietary cloud-based software (the object code component (whether on a hardware appliance or through download) and the cloud-based software are together the "Product"). All terms not defined in this Evaluation Agreement shall have the meaning set forth in the Purchase Terms and Conditions (set forth below).

  1. Evaluation Term. Gigamon agrees to provide Customer with access to the Product for evaluation purposes for a period of 30 days, provided, however, the evaluation period may be extended upon written (including email) authorization by Gigamon.
  2. Terms. Customer agrees to Gigamon’s current applicable purchase terms and conditions set forth below ("Purchase Terms") and which shall apply to the Product and Customer's evaluation thereof, except for the following different or additional terms  which shall apply to the evaluation of the Product: (i) the right to access and use evaluation versions of the Product is limited to the evaluation term permitted by Gigamon (or its authorized reseller,  as applicable) and only for the limited purpose of evaluating such Product and establishing Customer's desire to purchase subscriptions to such Product; (ii) Customer's access and use of the Product is limited to Internal Use only by your employees for your benefit and for the purposes of evaluating the Product, (iii) Customer represents that it is a bona fide potential customer of the Product that is evaluating whether to purchase and/or license such Product for deployment for its own internal information security needs and not for the benefit of any third party, the development of any product or service, competitive trialing or use, or any other purposes; (iv) the evaluation access and use is provided "AS IS" without any warranty of any kind; (v) Gigamon disclaims all warranties, support obligations and other liabilities and obligations in connection with the evaluation access or  use of  the  Product; (vii) Gigamon (or its authorized reseller) may terminate the evaluation access upon written notice to Customer and Customer shall remove all copies of the object-code components from its endpoints (if sensor is not on a hardware appliance) or return the hardware appliance, unless Customer has purchased a subscription to the Product prior to such termination. Unless otherwise agreed in writing, if and when Customer purchases a subscription to the Product, Customer hereby agrees to the then-current Purchase Terms.

 

PURCHASE TERMS: Gigamon INSIGHT Terms and Conditions

PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A CUSTOMER REPRESENTS AND WARRANTS THAT HE OR SHE HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT.   THESE TERMS AND CONDITIONS GOVERN CUSTOMER’S RIGHT TO USE THE GIGAMON PRODUCTS AND SERVICES.  BY ASSENTING TO THESE TERMS (EITHER BY CLICKING, CHECKING A BOX OR PLACING AN ORDER), THE CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND GIGAMON WITH A PRINCIPAL PLACE OF BUSINESS AT 619 WESTERN AVE., FLOOR 2, SEATTLE, WA.  IF THE CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ASSENT AND THE CUSTOMER WILL NOT BE AUTHORIZED TO INSTALL, USE OR ACCESS THE PRODUCTS OR SERVICES.  THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN, THE DATE SET FORTH ON AN ORDER OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, USES OR ACCESSES ANY GIGAMON PRODUCT OR SERVICE.

These Gigamon INSIGHT Terms and Conditions are a master agreement that covers all Gigamon products and services, but provisions regarding specific products or services apply only to the extent the Customer has purchased, accessed or used such products or services.

  1. Definitions.

Affiliate” means any entity that a party directly or indirectly controls (e.g. subsidiary), or is controlled by (e.g. parent) or with which it is under common control (e.g. sibling).

Authorized Contractor” means any individual or entity (other than a Gigamon competitor) that has a written agreement to provide Customer services and is subject to confidentiality obligations covering Gigamon’s Confidential Information and that is authorized hereunder to have access or use of a Product solely on behalf of and for Customer’s Internal Use.  Customer’s Authorized Contractors are subject to the terms and conditions herein.  Customer remains responsible for their acts and omissions, and any breach by any such Authorized Contractor of the terms or conditions herein is a breach by Customer.

 “Documentation” means Gigamon’s end-user technical documentation supplied with the applicable Offering.

Error” means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation.

Gigamon Competitor” means a person or entity in the business of developing, distributing or commercializing products or services substantially similar to or competitive with Gigamon’s products or services.

Internal Use” means access or use solely for Customer’s own internal information security purposes.  By way of example and not limitation, Internal Use does not include access or use for the benefit of any person or entity other than Customer or for the development of any product or service.

License/Access Term” means the period of time during which Customer is authorized by Gigamon to access and use the Product as set forth in the applicable Order.

Offerings” means, collectively, any Products and/or Services.

Order” means any purchase order or other ordering document (including any statement of work) accepted by Gigamon or a reseller that identifies any Offering and any quantity thereof ordered by Customer based on Gigamon’s applicable license metrics (e.g., number of hardware sensors or purchased capacity). For an Order, only those transaction-specific terms detailing the Offerings ordered, quantity, price, payment terms, License/Access Term, and billing/provisioning contact information will have any force or effect unless a particular Order is executed by an authorized signer of Gigamon and returned to Customer (or the applicable reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Offerings ordered on such Order. Orders are non­cancellable.

"Product" means any of Gigamon’s cloud-based software or other software products (which in some cases may be delivered on a hardware appliance) as set forth in the relevant Order, including any Documentation and any Updates (as applicable) thereto that may be made available to Customer from time to time by Gigamon.

"Product-Related Services" means the standard technical support service for a Product that is included with a Product during its License/Access Term.

"Services" means any Product-Related Services.

"Updates" means any correction, update, upgrade, patch, or other modification or addition made by Gigamon to any object code software component of a Product and made available to Customer by Gigamon from time to time.

2. Agreement Scope & Terms.

a. Entire Agreement.  These Gigamon INSIGHT Terms and Conditions together with each Order (this "Agreement") constitute the entire agreement between Customer and Gigamon concerning the subject matter of this Agreement and It supersedes, and its terms govern, all prior proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter.

b. Payment. Customer will pay the fees for Offerings as set forth in the applicable Order within 30 days after receipt of the applicable invoice (unless otherwise expressly set forth on the Order). All fees and other amounts are non-refundable (except as otherwise expressly provided in this Agreement) and exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated, and Customer will pay all such taxes levied or imposed by reason of the transactions hereunder, except for taxes based on Gigamon’s net income. If Customer's actual access and use of a Product exceeds the quantity ordered in the applicable Order, then Customer shall (a} purchase such additional quantity of the Product (based on the applicable license metric that applies to such Product) or (b) promptly cease such excess usage. Fees for excess usage shall be based on Gigamon’s then-current price list.  Customer may be subject to reactivation fees or late fees in connection with late renewal of subscriptions.  Amounts payable to Gigamon shall continue to accrue during any period of suspension and must be paid as a condition  to reactivation.    

c. Affiliates and Resellers. Any Affiliate of Customer purchasing hereunder or using or accessing any Offering hereunder will be bound by and comply with all terms and conditions of this Agreement, and Customer will remain responsible for Customer's Affiliate’s acts and omissions as if they were Customer’s, unless Customer's Affiliate has entered into its own Terms and Conditions with Gigamon. Any Order through resellers is subject to, and Gigamon’s obligations and liabilities to Customer are governed by, this Agreement.

3. Access & Use Rights.

a. Evaluation. If Gigamon approves Customer's evaluation use of a Gigamon product ("Evaluation Product"), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (a) the License/Access Term is as mutually agreed upon by Customer and Gigamon, provided that either Gigamon or  Customer  can terminate the  evaluation at  any time upon written (including email)  notice to the other party; (b) the Evaluation Product is provided "AS-IS" without warranty of any kind, and Gigamon disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (c) Customer 's access and use is limited to Internal Use.

b. Access & Use Rights.   Subject to  the  terms and conditions  of  this Agreement (including Gigamon's receipt  of applicable fees), Gigamon grants Customer, under Gigamon's intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided in the Section 15.1(Assignment)), non-sublicensable license to access and use the Products in accordance with any applicable Documentation solely for Customer's Internal Use during the applicable License/Access Term. Customer's access and use is limited to the quantity ordered in the applicable Order, which quantity is based on the license metric that applies to  such Product  (e.g., number of hardware sensors and/or purchased capacity).Furthermore, the following additional terms and conditions apply to specific Products (or components thereof):

 i. Products with Object-Code Components. If Customer purchases a subscription to a Product with an object- code component, which may be installed on a hardware appliance ("Software Component''), Customer may, during the License/Access Term : (i) install and run multiple copies of the Software Components, respectively, solely for Customer's and Customer's Affiliates' Internal Use up to the maximum quantity based on the applicable license metric as ordered in the applicable Order; and (ii) allow Customer's Authorized Contractors to use and access the Software Component and associated Products solely on behalf and for the benefit of Customer and Customer's Affiliates.  If a Software Component is delivered on a hardware appliance, such appliance remains Gigamon’s property shall not be relocated after initial delivery, and shall be returned by Customer to Gigamon promptly after expiration of the License/Access Term pursuant to Gigamon’s instructions, unless the Customer is located outside the United States.

ii. Restrictions. Except as expressly set forth in Section 3.b., Gigamon reserves all rights and grants Customer no licenses or access and use rights of any kind hereunder, whether by implication, estoppel, or otherwise. The access and use rights set forth in Section 3.b. do not include any rights to and Customer shall not (i) reproduce, modify, translate or create any derivative work of all or any portion of the Offering or Documentation, (ii) sell, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Offering to any third party (except as expressly provided in Section 15.a. (Assignment)),(iii) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of an Offering, (iv) display or disclose the Offering  to any person other than Customer’s employees and Authorized Contractors; (v) use any Offering or Documentation for third-party training, commercial time-sharing or service bureau use; (vi) remove or alter any notice of proprietary right appearing on any Offering or Documentation; (vii) employ or authorize a Gigamon Competitor to use or view any Offering or Documentation or to provide management, hosting or support for an Offering,  (viii) use an Offering in a manner that interferes with, degrades, or disrupts the integrity or performance of the Offering or another party’s network, (ix) access or use or help other to use the Offering for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive, (x) use any feature of Gigamon APls for any purpose other than in the performance of this Agreement, (xi) conduct any benchmark or stress tests, competitive analysis on, or publish any performance data of, an Offering (provided that this does not prevent Customer from comparing the Product to other products for Customer's Internal Use); (xii) circumvent or disable any security features or functionality of an Offering or (xiii) cause, encourage or assist any third party to do any of the foregoing.  Customer agrees to use an Offering in accordance with laws, rules and regulations applicable to Customer and acknowledges that Customer is responsible for determining whether a particular use of an Offering is compliant with such laws.

iii. Usage Limits. If the Customer’s usage of an Offering constitutes excessive or abusive usage, affects other customers’ enjoyment of the Offering or exceeds reasonable usage typically expected on the Customer’s current purchased capacity then Gigamon reserves the right to charge for excessive usage, limit the Customer’s ability to access, use or process additional data through the Offering, and/or require the Customer to configure its network differently or do custom filtering.

iv. Installation and User Accounts. Gigamon is not responsible for installing Products unless Customer purchases professional services for installation from Gigamon. For those Products requiring user accounts, only the single individual user assigned to a user account may access or use the Product. Customer is liable and responsible for all actions and omissions occurring under Customer's and Customer's Authorized Contractor's user accounts for Offerings. Customer shall notify Gigamon if Customer learns of any unauthorized access or use of Customer's user accounts or passwords for an Offering.

c. Open Source Software. The Offerings may include components subject to the terms and conditions of open source software licenses (such components, the “Open Source Code”). To the extent applicable, Gigamon will identify Open Source Code included with Products in or through the applicable Product itself. Some of these licenses require Gigamon to provide the Open Source Code on the terms of the open source license instead of the terms of this Agreement. In that case, the terms of the open source license will apply, and Customer will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if Customer is using the Product in the form provided, in accordance with Customer’s permitted scope of use, with no distribution to third parties, then none of these open source licenses impose any obligations on Customer beyond what is stated in the Agreement. If, and to the extent required by the applicable open source license, Gigamon will make available the required source code for the Open Source Code in response to Customer’s request emailed to legal@gigamon.com.

4. Cooperation.  Customer authorizes Gigamon for purposes of the Computer Fraud and Abuse Act, 18 U.S.C. § 1 30 etseq., Title Ill, 18 U.S.C. 2510 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq. (and similar state, local and non-US laws) to access data and systems and process and transmit data through the Offerings.

5. Data Security and Privacy. See Exhibit A.

6. Ownership & Feedback. Products and Product-Related Services are made available or licensed, not sold. Gigamon owns and retains all right, title and interest (including all intellectual property rights) in and to the Offerings, except for any Deliverable. Any feedback or suggestions that Customer provides to Gigamon regarding its Offerings (e.g., bug fixes and features requests) is non-confidential and may be used by Gigamon for any purpose without acknowledgement or compensation; provided, Customer will not be identified publicly as the source of the feedback or suggestion.

7. Third Party Agreements. Customer is responsible for obtaining and maintaining all telecommunications, broadband, computer equipment, and services needed to access and use the Offerings and for paying all charges related thereto.  Offerings may contain features designed to interface with applications or services provided or made available by third parties ("Third-Party Services"). In order to use a feature in connection with a Third-Party Service, Customer must have a license from the provider of the relevant Third-Party Service. If the Third-Party Services are no longer available or if the applicable third-party provider no longer allows the Third-Party Services to interface with an Offering, then such features will no longer be available or function with an Offering. Gigamon and the provider of the applicable Third-Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third-Party Service. Further, Gigamon disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third-Party Service.

8. Confidentiality.

a. Definition.  “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that is (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser's Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.

b. Restrictions on Use. Recipient shall (i) only use Discloser’s Confidential Information to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to Recipient’s employees and Authorized Contractors, limit access only to those employees and Authorized Contractors who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified herein.

c. Exceptions. Recipient may disclose Discloser’s Confidential Information to the extent required by any court, governmental or regulatory body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to Discloser of such disclosure.

d. Destruction.  Upon written request of Discloser, Recipient shall return or destroy Discloser’s Confidential Information, provided that Recipient may retain Discloser’s Confidential Information that (A) it is required to keep for compliance purposes under applicable law, professional standards, a court or regulatory agency, or (B) was created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures, provided that any such retained information shall remain subject to this Agreement.  Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.

9. Warranties & Disclaimer.

a. No Warranty for Pre-General Release Versions. Any pre-general release feature or version of an Offering provided is experimental and provided "AS IS" without warranty of any kind and will not create any obligation for Gigamon  to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or Offering. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Gigamon regarding future functionality or features.

b. Product Warranty. If Customer has purchased a Product, Gigamon warrants to Customer during the applicable License/Access Term that the Product will operate without Error and that Gigamon has used industry-standard techniques to prevent the Products at the time of delivery from injecting malicious software viruses into Customer's endpoints where the Products are installed. Customer must notify Gigamon of any warranty claim during the License/Access Term. Customer's sole and exclusive remedy and the entire liability of Gigamon for its breach of this warranty will be for Gigamon, at its own expense to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error; or (b) terminate Customer's license to access and use the applicable non-conforming Product and refund the prepaid fee prorated for the unused period of the License/Access Term. Gigamon shall have no obligation regarding Errors reported after the applicable License/Access Term.

c. Services Warranty. Gigamon warrants to Customer that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify Gigamon of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services. Customer's sole and exclusive remedy and the entire liability of Gigamon for  its  breach  of  this warranty  will be for Gigamon, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming Services .

d. Exclusions. The express warranties do not apply if the applicable Product or Service (a) has been modified, except by Gigamon, (b) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (c) is non-conforming due to a failure to use an applicable Update. If any part of a Product or Service references websites, hypertext links, network addresses, or other third-party locations, information, or activities, it is provided as a convenience only. Gigamon has no responsibility for third party services, products or content and does not endorse, authorize, approve, certify, maintain, or control them and does not guarantee the accuracy, completeness, efficacy, or timeliness of the information located within them.

e.  Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND GIGAMON AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  THERE IS NO WARRANTY THAT THE OFFERINGS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS. THE OFFERINGS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE OFFERINGS ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, CRITICAL COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY OTHER APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE SAFE USE OF AN OFFERING IN SUCH APPLICATIONS AND INSTALLATIONS.  GIGAMON DOES NOT GUARANTEE OR WARRANT THAT THE OFFERINGS WILL FIND, LOCATE OR DISCOVER ALL OF CUSTOMERS’ OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE OR OTHER HARMFUL SOFTWARE.  

10.  Indemnification.

a.  Gigamon’s Obligation. Gigamon shall at its cost and expense (a) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that an Offering infringes or violates that third party's intellectual property rights, and (b) pay, indemnify, and hold Customer harmless from any settlement of such claim or any damages finally awarded to  such third party by a court of competent jurisdiction  as a result of such claim; provided,  that Customer (x) gives Gigamon prompt written notice of such claim; (y) permits Gigamon to solely control and direct the defense or settlement of such claim (however, Gigamon will not settle any claim in a manner that requires Customer to admit liability or pay money without Customer's prior written consent}; and (z) provides Gigamon all  reasonable  assistance  in connection with the defense or settlement of such claim, at Gigamon's cost and expense. In addition, Customer may, at Customer's own expense, participate in defense of any claim.

b. Remedies. If a claim covered under this Section occurs or in Gigamon’s opinion is reasonably likely to occur, Gigamon may at its expense and sole discretion (and if Customer's access and use of an Offering is enjoined, Gigamon shall, at its expense): (a) procure the right to allow Customer to continue using the applicable Offering; (b) modify or replace the applicable Offering to become non-infringing; or (c) if neither (a} nor (b) is commercially practicable, terminate Customer's license or access to the affected portion of the applicable Offering and refund a portion of the pre-paid, unused fees paid by Customer corresponding to the unused period of the License/Access Term.

c. Exclusions. Gigamon shall have no obligations under this Section if the claim is based upon or arises out of: (a) any modification to the applicable Offering not made by Gigamon; (b) any combination or use of the applicable Offering with or in any Customer or third party software, hardware, process, firmware or data; (c) Customer's continued use of the allegedly infringing Offering after being notified of the infringement claim and being provided a modified version intended to address such alleged infringement; (d) Customer's failure to use the Offering in accordance with the applicable Documentation; and/or (e) Customer's use of the Offering outside the scope of the rights granted under this Agreement.

d. Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, AND GIGAMON'S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

11.  Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR: (A) PERSONAL INJURY, DEATH OR TANGIBLE PROPERTY DAMAGE; (B) MISUSE OR VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY; (C) PAYMENT OBLIGATIONS FOR OFFERINGS; (D) GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD BY A PARTY, ITS EMPLOYEES OR AGENTS AND/OR (E) AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 10 (INTELLECTUAL PROPERTY INDEMNIFICATION): (A) UNDER NO CIRCUMSTANCES WILL GIGAMON OR ITS LICENSORS OR CUSTOMER 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 OR RELATED TO THE USE OR INABILITY TO USE THE OFFERINGS, EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR OFFERINGS IN THE TWELVE (12) MONTHS PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.

12.  Compliance with Laws. The Offerings and Documentation may be subject to U.S. and foreign import and export control laws and regulations, and each party agrees to comply with all such laws that are applicable to such party in the performance of this Agreement. Customer acknowledges and agrees the Product shall not be used, transferred, or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, "Embargoed Countries" ), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or Entity List or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.

13.  U.S. Government End Users. The Products and Documentation are "commercial items," as that term is defined in FAR (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in FAR 12.211and 12.212. Consistent with FAR 12.211 and 12.212 and DFARS (48 C.F.R.) 227.7202 -1 through 227.7202-4, the Products and Documentation are being licensed to U.S. government end users under the license(s) customarily provided to the public as forth in this Agreement. 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 this Agreement, the Government agrees to terminate its use of the Products and Services and return the Products and Services and any other software or technical data delivered as part of the Products and Services, unused, to Gigamon. In addition, DFARS 252.227-7015 {Technical Data - Commercial Items) applies to technical data acquired by Department of Defense agencies. 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.

14. Termination. This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein. If Customer materially breaches Section 3 (Access and Use Rights) of this Agreement or fails to pay Gigamon (or reseller) on time (and fails to cure such material breach in accordance herewith), in addition to all other rights and remedies that Gigamon may have at law or in equity, Gigamon may, without terminating this Agreement, and in its sole discretion and without further notice to Customer, suspend Customer's access or use of the Offerings. Either party may terminate this Agreement: (a) upon 30 days' written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period; or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. Upon termination of this Agreement of this Agreement or expiration of Customer’s License/Access Term: (i) all Customer's access and use rights granted in this Agreement will immediately terminate; and (ii) Customer must promptly cease all use of Offerings and de-install all Software Components installed on Customer's endpoints (or in the case of Software installed on hardware appliances, return such appliances to Gigamon if requested by Gigamon).  All defined terms and Sections 1, 6, 8, 10, 11, 14, 15, Exhibit A and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.

15.  General.

a.  Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

b. Governing Law; Venue. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Santa Clara County, California, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in Gigamon's case, to recoup any payments due.

c.  Permission to List as a Customer. Unless Customer directs otherwise by sending an email to Gigamon at legal@gigamon.com, which direction may be given at any time, Customer agrees that Gigamon may display Customer's company name and logo (in accordance with any trademark guidelines Customer provides) as a Gigamon customer in a manner that does not suggest Customer's endorsement of any specific Gigamon product or service.

d. Independent Contractors; No Third-Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.

e. Waiver & Severability; Amendments; Order of Precedence. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.

f. Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military , civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care.

g. Notices. All legal notices will be given in writing to the addresses below and will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier, or (c) five business days after being sent by registered or certified mail (·or ten days for international mail). For clarity, Orders, POs, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party's standard ordering procedures.

 

Exhibit A Data Security and Privacy Schedule

1.  Definitions

a. “Event/Usage Data” means, collectively, (a) any metadata collected or produced during the course of providing the Offerings; (b) any statistical data about the functioning of the Offerings or Customer’s use of the Offerings that does not identify Customer, and (c) any file, code or data that is potentially malicious or harmful or that is potentially related to unauthorized third parties, in each case as collected or identified during the course of providing the Offerings, which may include without limitation, malware, spyware, viruses, worms, Trojan horses, URLs, DNS data, network telemetry, and network packet data. Customer understands and acknowledges that it, not Gigamon, determines what information and data is processed by its network and systems and, through the configuration and settings of the Offerings, determines what information and data is processed by the Offerings.  The metadata will contain source and destination IP addresses and to the extent that Customer’s network environment has unique naming conventions or configurations, the Event/Usage Data could potentially include Personal Data.

b. “INSIGHT Systems” means those computer systems hosting the Gigamon INSIGHT platform.

c. "Personal Data" means information used to distinguish or trace a natural person's identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific natural person. Personal Data also includes such other information about a specific natural person to the extent that the data protection laws applicable in the jurisdictions in which such person resides define such information as Personal Data.

d. "Privacy and Security Laws" means U.S. federal, state and local and non-U.S. laws that regulate the privacy or security of Personal Data and that are applicable to Gigamon in its performance of this Agreement.

e. “Security Incident” means unauthorized access to, or unauthorized acquisition of, Personal Data stored on INSIGHT Systems that results in the compromise of Personal Data for which Customer is responsible.

2. Gigamon INSIGHT Platform. The Gigamon INSIGHT platform includes sensors (Software Components) that are deployed within the Customer’s network and generate Event/Usage Data.   Event/Usage Data is utilized by Gigamon to deliver and improve the Offerings, to develop products and services, and to improve the security for Customer and other customers of Gigamon’s products and services. Event/Usage Data is not Customer's Confidential Information.

3. Processing Personal Data.  Personal Data may be collected during the provisioning and use of the Offerings and is used to deliver, support and improve the Offerings, administer the Agreement and further the business relationship between Customer and Gigamon, comply with law, act in accordance with Customer's  written  instructions,  or  otherwise in  accordance  with  this  Agreement.  Customer authorizes Gigamon to collect, use, store, and transfer the Personal Data that Customer provides to Gigamon as contemplated in this Agreement.

4.  Data Protection Agreement. To the extent necessary to comply with Privacy and Security Laws, including but not limited to when Customer is a controller of Personal Data processed by Gigamon originating in the European Union, Switzerland, or the United Kingdom, the Data Protection Agreement set forth here: https://www.gigamon.com/data-protection-agreement.html shall apply to Gigamon’s processing of such Personal Data.

5.  Compliance with Privacy and Information Security Requirements

a. Compliance with Laws. Gigamon shall comply with all applicable Privacy and Security Laws.

b. Safeguards. Gigamon shall maintain appropriate technical and organizational safeguards commensurate with the sensitivity of the Personal Data processed by it on Customer's behalf, which are designed to protect the security, confidentiality, and integrity of such Personal Data and protect such Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

c. Customer Obligations. Customer confirms that it has a lawful basis in having Gigamon process the Personal Data and/or that Customer has made such disclosures and obtained such consents and authorizations for the lawful processing of Personal Data by Gigamon.