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Gigamon Inc. 3300 Olcott Street Santa Clara, CA 95054
http://www.gigamon.com/
EC America Rider to Product Specific License Terms and
Conditions
(for U.S. Government End Users)
1. Scope. This Rider and the attached Gigamon Inc.
(“Manufacturer” or “Gigamon”) product specific license terms
establish the
terms and conditions under which EC America (“Contractor”) will
provide Manufacturer’s information technology products to
Ordering Activities under EC America’s GSA MAS IT70 contract
number GS-35F-0511T (the “Schedule Contract”). The
foregoing shall not be deemed .to limit Contractor’s obligations
under its other agreement(s) with Manufacturer or to limit the
applicability of the Gigamon Commercial Terms. Contractor shall
cause that installation and use of the information
technology shall be in accordance with this Rider and Gigamon
Commercial Terms, unless an Ordering Activity determines
that it requires different terms of use and Manufacturer
specifically agrees in writing to such terms in a signed amendment
to
this Rider.
2. Applicability. Whereas GSA and EC America agreed at the time
of Schedule Contract award upon a base set of terms and
conditions applicable to all manufacturers and items represented
on the Schedule Contract; and Whereas, the parties further
agreed that all product specific license, warranty and software
maintenance terms and conditions would be submitted at the time
each new manufacturer was to be added to the Schedule Contract;
Now, Therefore, the parties hereby agree that the
product specific license, warranty and software maintenance
terms shown in current form in Attachment A hereto (as updated
by
Gigamon) (the “Manufacturer Specific Terms” or the “Attachment A
Terms”) are incorporated into the Schedule Contract, but
only to the extent that they are consistent with federal law
(e.g., the Anti-Deficiency Act (31 U.S.C. § 1341), the
Contracts
Disputes Act of 1978 (41 U.S.C. §§ 7101 et seq.), the Prompt
Payment Act (31 U.S.C. §§ 3901 et. seq.), the Anti-Assignment
statutes (31 U.S.C. § 3727 and 41
U.S.C. § 6305), DOJ’s jurisdictional statute 28 U.S.C. § 516
(Conduct of Litigation Reserved to the Department of Justice
(DOJ), and 28 U.S.C. § 1498 (Patent and copyright cases)). Any
changes required to comply with Federal law are
incorporated into the Gigamon End User License Agreement,
Gigamon Product Support and Software Maintenance
Agreement, and Gigamon Limited Warranty – Hardware and Software
(together the “Gigamon Commercial Terms”).
a) Contracting Parties. The GSA Customer (“Licensee”) is the
“Ordering Activity”, defined as the entity authorized to order
under GSA MAS contracts as set forth in GSA ORDER OGP 4800.2I
(July 2016), as may be revised from time to time.
b) Changes to Work and Delays. Contractor’s Schedule Contract is
Subject to GSAR Clause 552.238-81 Modifications (Federal Supply
Schedule) (APR 2014) (ALTERNATE I- APR 2014), and 52.212-4(f)
Excusable Delays (MAY 2015) are regarding which the GSAR and the
FAR provisions take precedence as between Contractor and the GSA
Customer. However, these terms are not required flowdowns and are
not incorporated into the Gigamon Commercial Terms or the
Manufacturer Specific Terms.
c) Contract Formation. Subject to FAR 1.601(a) and FAR 43.102,
the GSA Customer Purchase Order must be signed by a duly warranted
Contracting Officer, in writing. The same requirement applies to
contract modifications affecting the rights of the parties. All
terms and conditions intended to bind the Government must be
included within the contract signed by the Government. Contractor
will not provide any Gigamon Products (as defined in the Gigamon
EULA) to any GSA Customer prior to the Gigamon Commercial Terms
(with any modifications expressly agreed to in writing by Gigamon)
being included in
Contractor’s GSA Contract.
d) Termination. Clauses in the Manufacturer Specific Terms
referencing termination are modified to be in accordance with the
requirements of the Contract Disputes Act when such disputes are
directly between Gigamon and the GSA Customer.
e) Choice of Law. Subject to the Contracts Disputes Act, the
validity, interpretation and enforcement of this Rider shall be
governed by and construed in accordance with the Federal laws of
the United States. In the event the Uniform Computer Information
Transactions Act (UCITA) or any similar federal laws or regulations
are enacted, to the extent allowed by federal law, they will not
apply to this Rider or the underlying Schedule Contract.
f) Equitable remedies. Equitable remedies are generally not
awarded against the Government absent a statute providing
therefore. If no statute allowing for equitable remedies is
available at the time such a remedy is sought, clauses in the
Manufacturer Specific Terms referencing unavailable equitable
remedies are superseded and not applicable to any GSA Customer
order.
g) Unilateral Termination. Termination is governed by the
Gigamon Commercial Terms, as revised by Gigamon to acknowledge
Federal procurement requirements.
h) Unreasonable Delay. Force Majeure is not a required flowdown
clause. Gigamon’s standard commercial force majeure term in the
Gigamon Commercial Terms govern
http://www.gigamon.com/
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i) Assignment. Gigamon’s standard commercial assignment clause
is revised to reflect Federal procurement requirements.
j) Waiver of Jury Trial. Waivers of Jury Trials are subject to
FAR 52.233-1 Disputes (MAY 2014). The Government will not agree to
waive any right that it may have under federal law. All clauses
governing a waiver of jury trial in the Manufacturer Specific Terms
are hereby superseded.
k) Government Indemnities. Government Indemnity is an obligation
in advance of an appropriation that violates anti-deficiency laws
(31 U.S.C. § 1341 and 41 U.S.C. § 6301), since the GSA Customer
commits to pay an unknown amount at an unknown future time. The
violation occurs when the commitment is made, i.e., when the
agreement featuring this clause is incorporated into a Government
contract, and not when the clause is triggered. FAR 52.212-4(u) the
Office of Legal Counsel opinion dated March 12, 2012 prohibit such
indemnifications. The Gigamon Commercial Terms are revised for
purposes of this Rider to reflect this prohibition.
l) Contractor Indemnities. All Manufacturer Specific Terms that
violate DOJ’s jurisdictional statute (28 U.S.C. § 516) by requiring
that the Government give sole control over the litigation and/or
settlement to the Contractor are modified to reflect the
requirement of the statute. Nothing contained in the Manufacturer’s
Specific terms shall be construed in derogation of the U.S.
Department of Justice’s right to defend any claim or action brought
against the U.S., pursuant to its jurisdictional statute.
m) Renewals. All Manufacturer Specific Terms that provide for
automatic renewals in a way that violates the Anti-
Deficiency Act and are modified in the Gigamon Commercial Terms,
if necessary.
n) Future Fees or Penalties. All Manufacturer Specific Terms
that require the Government to pay any future fees, charges or
penalties are modified in the Gigamon Commercial Terms if necessary
unless specifically authorized by existing statutes, such as the
Prompt Payment Act (31 U.S.C. § 3901 et seq.) or Equal Access To
Justice Act (5 U.S.C. § 504; 28 U.S.C. § 2412).
o) Taxes. Contractor shall state separately on its invoices,
taxes excluded from the fees, and the GSA Customer agrees to either
pay the amount of the taxes (based on the current value of the
equipment or services) to Contractor or provide it evidence
necessary to sustain an exemption.
p) Third Party Terms.
q) Dispute Resolution and Standing. Any disputes with the GSA
Customer relating to the Manufacturer Specific Terms or to this
Rider shall be resolved in accordance with the FAR, the underlying
GSA Schedule Contract, any applicable GSA Customer Purchase Orders,
and the Contract Disputes Act. The Ordering Activity expressly
acknowledges that EC America as contractor, on behalf of the
Manufacturer, shall have standing to bring such claim under the
Contract Disputes Act.
r) Advertisements and Endorsements. Pursuant to GSAR 552.203-71,
Gigamon may not refer to the GSA Customer in a way to state or
imply that the product or service is endorsed or preferred by the
White House, the Executive Office of the President, or any other
element of the Federal Government, or is considered by these
entities to be superior to other products or services. Any
advertisement by the Contractor, including price-off coupons, that
refers to a military resale
activity shall contain the following statement: “This
advertisement is neither paid for nor sponsored, in whole or in
part, by any element of the United States Government.”.
s) Public Access to Information. EC America agrees that the
attached Manufacturer Specific Terms and this Rider contain no
confidential or proprietary information and acknowledges the
Rider shall be available to the public.
t) Confidentiality. Any provisions in the attached Manufacturer
Specific Terms that require the Ordering Activity to keep certain
information confidential are subject to the Freedom of Information
Act (5 U.S.C. § 552) and the exemptions thereto, and any order by a
United States Federal Court. When the end user is an
instrumentality of the U.S. Government, neither this Rider, the
Manufacturer’s Specific Terms nor the Schedule Price List shall be
deemed “confidential information” notwithstanding marking to that
effect. Notwithstanding anything in this Rider, the Manufacturer’s
Specific Terms or the Schedule Contract to the contrary, the GSA
Customer may retain such Confidential Information as required by
law, regulation or its bonafide document retention procedures for
legal, regulatory or compliance purposes; provided however, that
such retained Confidential Information will continue to be subject
to the confidentiality obligations of this Rider, the
Manufacturer’s Specific Terms and the Schedule Contract.
u) Alternate Dispute Resolution. The GSA Customer cannot be
forced to mediate or arbitrate. Arbitration requires prior guidance
by the head of a federal agency promulgated via administrative
rulemaking according to 5 U.S.C. § 575(c). GSA has not issued any
because it considers the Board of Contract Appeals to be an
adequate, binding ADR alternative. Modification to the Gigamon
Commercial Terms reflects these limitations.
v) Ownership of Derivative Works. Provisions purporting to vest
exclusive ownership of all derivative works in the licensor of the
standard software on which such works may be based are superseded.
Ownership of derivative works should be as set forth in the
copyright statute, 17 U.S.C. § 103 but at a minimum, the GSA
Customer shall receive unlimited rights to use such derivative
works at no further cost.
3. Order of Precedence/Conflict. To the extent there is a
conflict between the terms of this Rider and the terms of the
underlying
Schedule Contract or a conflict between the terms of this Rider
and the terms of an applicable GSA Customer Purchase Order,
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then, as between Contractor and the GSA Customer, the terms of
the GSA Schedule Contract or any specific, negotiated terms on
the GSA Customer Purchase Order shall control over the terms of
this Rider, however, Gigamon does not agree to any conflicting
or additional terms included in the GSA Customer Purchase Order
or the underlying Schedule Contract, unless such terms have
been specifically identified to Gigamon and agreed to, in a
signed writing, in advance of the order being placed with Gigamon.
Any
capitalized terms used herein but not defined, shall have the
meaning assigned to them in the underlying Schedule Contract.
ATTACHMENT A
CONTRACTOR SUPPLEMENTAL PRICELIST INFORMATION AND TERMS
Gigamon End User License Agreement (EULA)
End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement
between the end-user Customer of Gigamon
hardware and software products (“Customer”) and Gigamon Inc.
(“Gigamon”) regarding Customer’s use of the
Software (as defined below). Gigamon is willing to license the
Software to Customer upon the condition that it
accepts and complies with the terms contained in this EULA plus
any additional terms in any supplemental license
accompanying Gigamon Software where Customer accepts such
supplemental license at the time of download (the
“Supplemental Terms”, together with the EULA, the “Agreement”).
To the extent of any conflict between the
terms of this EULA and any Supplemental Terms, the Supplemental
Terms will apply to the applicable Software.
Customer’s use, installation, or access of the Products
constitutes agreement with and acceptance of this Agreement.
1. Definitions.
a. “Certified White Box Hardware” means the third party,
non-Gigamon hardware products that Gigamon has certified to run
Software under Gigamon’s white box solution program.
b. “Gigamon Hardware” means the Gigamon-branded hardware
products, purchased from Gigamon directly or through an authorized
Gigamon channel partner (“Approved Source”) that may include
Software and
expressly excludes third party non-Gigamon branded hardware
products that may run Software.
c. “Products” means, the Software, the Gigamon Hardware, and/or
any combination thereof. d. “Software” means the object or binary
code or firmware, any accompanying documentation, and any
upgrades or updates therefor, that are provided by Gigamon or an
Approved Source on Gigamon’s behalf,
and either are (i) included with or embedded in the Gigamon
Hardware, or (ii) provided as a stand-alone
software product. For the avoidance of doubt, Software expressly
excludes third party software.
2. License Grant. Subject to and conditioned upon Customer’s
compliance with the restrictions and terms set forth in the
Agreement, (and, only where specifically agreed in a signed
amendment by Gigamon and
Customer, – the underlying GSA Schedule Contract, Schedule
Pricelist and Purchase Order(s))unless
otherwise set forth in the applicable Supplemental Terms:
a. Gigamon hereby grants Customer a non-exclusive,
non-sublicensable (except as expressly set forth in Section 2(b)
below), non-transferable (except as specified in Section 10 below)
worldwide license to (i) use
the Software in object code format solely with the Gigamon
Hardware or, if applicable, the Certified White
Box Hardware, for Customer’s internal business purposes only;
and (ii) transfer the Software solely as
incorporated in the Gigamon Hardware or Certified White Box
Hardware and solely in connection with the
sale of such Gigamon Hardware or Certified White Box Hardware,
as applicable; and
b. Gigamon further hereby grants to Customer the right to
sublicense Customer’s rights under Section 2(a)(i) to Customer’s
contractors and subcontractors without further sublicense rights;
provided that (i) such
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Government Reseller Amendment to the Gigamon Distribution
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sublicensed rights are for the sole purpose of providing
services to Customer and are subject to all of the
limitations set forth in the Agreement; and (ii) Customer will
be liable for any actions of, or failure to act
by, the contractors and subcontractors as if such actions or
inactions were Customer’s.
3. Restrictions. Customer will not, nor will it allow or
authorize any third party to: a. copy, duplicate, disclose,
distribute, modify, sublicense (except as expressly set forth in
sub-section 2(b)
above), license, transfer (except as expressly permitted herein
in connection with the sale to a third party of
Gigamon Hardware or a Certified White Box Hardware), or exploit
or create derivative works of the
Products or permit any third party to do so;
b. use, transfer, or distribute the Software in competition with
Gigamon; c. decompile, reverse translate, disassemble, or reverse
engineer the Software or cause the Software to be
subject to any open source obligations or release;
d. remove any proprietary markings or copyright notices from any
Gigamon Hardware or Software, or translate the Software into any
other format or language without Gigamon’s prior written
consent;
e. publicly display, transmit or use supporting documentation
for any other purpose other than to support Customer’s authorized
use of the Products within its internal organization; or
f. create, disclose, distribute, sublicense, license or
otherwise transfer any implementation of Gigamon’s application
programming interfaces (APIs) except to support Customer’s
authorized use of the Products
within its internal organization.
4. Ownership. The license granted in this Agreement is not a
transfer or sale of Gigamon’s or its licensors’ ownership rights in
the Software or its intellectual property. Except for the license
specifically granted in this
Agreement, Gigamon retains all right, title, and interest in and
to the Software, the related source code and
intellectual property, and any and all modifications or
derivatives. The Software is confidential to Gigamon and
protected by applicable trade secret and intellectual property
laws.
5. Open Source and Third Party Software. The Software may
contain or be distributed with third party software covered by an
open source software license that supersedes the licensing terms of
this Agreement to
the extent required by that open source license (“Open Source
Code”). All open source software is provided
WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE. Further,
notwithstanding any language contained in the Agreement, Gigamon
has no obligation to defend, indemnify or
hold Customer harmless from and against any claim that any Open
Source Code infringes any intellectual
property right, nor will Gigamon be liable for any damages,
costs, or expenses incurred in connection therewith.
If, and to the extent required by the applicable open source
license, Gigamon will make available the required
source code for the open source software in response to
Customer’s request emailed to [email protected].
6. Technical Support, Limited Warranty. For ninety (90) days
from the date the Software is downloaded by the Customer or shipped
to the Customer by Gigamon or an Approved Source, Customer is
entitled to all Gigamon-
provided software updates (bug fixes, maintenance releases, and
feature upgrades) for the purchased the
Software. In addition, Gigamon offers a Limited Hardware and
Software Warranty for its Products. Details and
current documentation for both are found at
http://www.gigamon.com/support-and-services/overview-and-
benefits.
All other Software maintenance and support is provided to
Customer separately and for a fee.
7. Customer Use of Products. Customer has the sole obligation to
manage, secure, and oversee its network and tools, and, provide
notices, as necessary, to its users that their use of Customer’s
computers, electronic
appliances, and devices (and those of users on Customer’s
network) may be monitored, inspected, or decrypted.
8. No Other Warranties. EXCEPT AS SET FORTH HEREIN, THE PRODUCTS
ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL
RESPONSIBILITIES FOR SELECTION OF THE
PRODUCTS TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE
INSTALLATION OF, USE OF,
AND RESULTS OBTAINED. GIGAMON MAKES NO REPRESENTATIONS AND
UNDERTAKES NO
INDEMNIFICATION OBLIGATIONS REGARDING, ARISING FROM, OR RELATED
TO THE
LEGALITY OF MONITORING OF NETWORKS OR INFORMATION IN A
PARTICULAR
JURISDICTION, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING
THAT
CUSTOMER’S PROPOSED OR ACTUAL USE OF THE PRODUCTS COMPLIES WITH
APPLICABLE
LAWS. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGAMON WILL HAVE NO
LIABILITY
WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR
PROCEEDINGS
RESULTING FROM: (A) THE USE OF THE PRODUCTS BY CUSTOMER OR THIRD
PARTIES; (B)
SECURITY BREACHES; (C) EAVESDROPPING, INTERCEPTION, FAILURE OF
DELIVERY OR LOSS
OF DATA SENT, STORED, OR RECEIVED USING THE PRODUCTS; OR (D) ANY
CERTIFIED WHITE
BOX HARDWARE. THESE LIMITATIONS APPLY EVEN IF GIGAMON HAS BEEN
ADVISED OF THE
mailto:[email protected]
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POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, TO THE MAXIMUM
EXTENT PERMITTED BY
APPLICABLE LAW, GIGAMON AND ITS LICENSORS DISCLAIM ALL
WARRANTIES RELATING TO
THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE,
NONINFRINGEMENT,
NON- INTERFERENCE WITH THE ENJOYMENT OF THE HARDWARE, AND
FITNESS FOR A
PARTICULAR PURPOSE.
9. Certified White Box Hardware. Customer acknowledges and
agrees that, if Customer obtains Certified White Box Hardware,
Gigamon makes no endorsements of and provides no warranties or
support with respect thereto.
Customer assumes all risk related to as well as all
responsibility for the selection and use of the Certified White
Box Hardware and should contact the applicable third party
hardware provider or such third party’s agent for
support and warranty related information.
10. Term and Termination. This Agreement is effective as of the
date of the beginning of the period of performance provided in the
applicable Gigamon accepted ordering document. Recourse against the
United States for
any disputed alleged breach of this agreement must be made under
the terms of the Federal Tort Claims Act or as a
dispute under the contract disputes clause (Contract Disputes
Act) as applicable. The Contractor shall proceed
diligently with performance of this contract, pending final
resolution of any disputed request for relief, claim, appeal,
or action arising under the contract, and comply with any
decision of the Contracting Officer. If any breach by
Customer is undisputed by Customer, Gigamon and Customer may
agree in writing to terminate this Agreement.
Customer may terminate the License Grant section of this EULA at
any time upon written notice to Gigamon
that it has transferred or sold to a third party the Gigamon
Hardware or the Certified White Box Hardware
containing the Software. Any such termination will not entitle
Customer to a refund for any Products or for
Support and Maintenance, which is not transferable. Gigamon’s
rights and Customer’s obligations survive the
termination of this Agreement. Upon termination of this
Agreement and upon Gigamon’s request, Customer
will certify in writing to Gigamon that all instances and copies
of the Software, or any portion thereof (other
than firmware), have either been returned to Gigamon or
otherwise destroyed or deleted from any of its
devices or storage devices.
11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL GIGAMON
BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR
PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF
PROFITS, DATA OR INFORMATION, OR BUSINESS INTERRUPTION) ARISING OUT
OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF GIGAMON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING
LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN EXCLUSIVE
REMEDY. IN NO EVENT WILL GIGAMON’S AGGREGATE LIABILITY ARISING OUT
OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC
PRODUCTS AT ISSUE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE LIMITATION SET FORTH IN THIS PARAGRAPH MAY
NOT APPLY. The foregoing limitation of liability shall not apply to
(1) personal injury or death resulting from Licensor’s gross
negligence; (2) for fraud; or (3) for
any other matter for which liability cannot be excluded by
law.
12. Audit. Customer will keep current, complete, and accurate
records regarding the installation and use of the Software.
Customer will provide such information to Gigamon and certify that
it has paid all related fees, if
applicable, within five business days of any written request, so
long as Gigamon does not make more than one
request during any 12-month period. Except to the extent
prohibited by applicable law, Customer will, after
reasonable prior notice from Gigamon and subject to Government
security requirements, provide Gigamon with
reasonable access to its premises, records, and personnel so
that Gigamon or its designee may audit and confirm
compliance with this Agreement. If an audit reveals any
non-permitted reproduction, installation, or use of the
Software, Customer will (i) promptly comply with this Agreement
and (ii) be invoiced for the additional fees
(at the underlying GSA Schedule Price List rate).
13. Indemnification. Except to the extent prohibited by the
Anti-Deficiency Act, Customer will defend, indemnify, and hold
harmless Gigamon (including its officers, employees, directors,
subsidiaries,
representatives, affiliates, agents, and licensors) from and
against any damages (including reasonable
attorney’s fees and expenses), claims, and lawsuits that arise
or result from Customer’s breach of any provision
of this Agreement.
14. Intellectual Property. Gigamon, its logo, and all other
names, logos, or icons identifying Gigamon and its
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programs, products, and services are proprietary, and any use of
identical or confusingly similar marks, including as
domain names, without Gigamon’s express written permission is
strictly prohibited. If Customer provides any
feedback to Gigamon concerning the functionality and performance
of the Products (including identifying potential
errors, enhancements, and improvements) (“Feedback”), Customer
hereby assigns to Gigamon all right, title, and
interest in and to the Feedback. Gigamon may use Feedback
without any payment or restriction.
15. Compliance with Laws and Export Restrictions. The Products
are subject to U.S. export control laws and regulations, including
the Export Administration Regulations maintained by the U.S.
Department of
Commerce, trade and economic sanctions maintained by the
Treasury Department’s Office of Foreign Assets
Control, and the International Traffic in Arms Regulations
maintained by the Department of State. Customer
will comply with all applicable laws and regulations regarding
use of the Products, including all U.S. export
control laws and regulations as well as those of any country of
import and/or export. Customer covenants that
it will not, directly or indirectly, sell, export, re-export,
transfer, divert, or otherwise dispose of any Products or
technology received from Gigamon to any destination, entity, or
person prohibited by the laws or regulations
of the United States. In addition, Customer may not use the
Products for any end-use prohibited by the laws or
regulations of the United States without obtaining prior
authorization from the competent government
authorities as legally required. Customer will indemnify, to the
fullest extent permitted by law, Gigamon from
and against any fines or penalties that may arise as a result of
its breach of this Section. This Section will
survive indefinitely.
16. US Government Rights. The Software is a “commercial item” as
that term is defined at FAR 2.101. If
Customer is the US Federal Government (Government) Executive
Agency (as defined in FAR 2.101), Gigamon
provides the Software, including any related technical data,
and/or professional services in accordance with the
following: If acquired by or on behalf of any Executive Agency
(other than an agency within the Department of
Defense (DoD), the Government acquires, in accordance with FAR
12.211 (Technical Data) and FAR 12.212
(Computer Software), only those rights in technical data and
software customarily provided to the public as
defined in this Agreement. If acquired by or on behalf of any
Executive Agency within the DoD and if the
DoD’s rights are subject to Subpart 227.72, then the Government
acquires, in accordance with DFARS
227.7202-3 (Rights in commercial computer software or commercial
computer software documentation), only
those rights in technical data and software customarily provided
in this Agreement. In addition, if the DoD’s
rights are subject to Subpart 227.72, then DFARS 252.227-7015
(Technical Data – Commercial Items) applies to
technical data acquired by DoD agencies. Any Federal Legislative
or Judicial Agency shall obtain only those
rights in technical data and software customarily provided to
the public as defined in this Agreement. If any
Federal Executive, Legislative, or Judicial Agency has a need
for rights not conveyed under the terms described
in this Section, it must negotiate with Gigamon to determine if
there are acceptable terms for transferring such
rights, and a mutually acceptable written addendum specifically
conveying such rights must be included in any
applicable contract or agreement to be effective. If this
Agreement fails to meet the Government’s needs or is
inconsistent in any way with Federal law, and the parties cannot
reach a mutual agreement on terms for the end
user license agreement for the Software, the Government agrees
to return the Software, unused, to Gigamon.
This U.S. Government Rights clause in this Section is in lieu
of, and supersedes, any other FAR, DFARS, or
other clause, provision, or supplemental regulation that
addresses Government rights in computer software or
technical data under this Agreement.
17. Reserved.
18. Equitable Relief. T h i s s e c t i o n i s a p p l i c a b
l e o n l y t o t h e e x t e n t p r o v i d e d i n t h e E C A m
e r i c a R i d e r t o P r o d u c t S p e c i f i c L i c e n s e
T e r m s a n d C o n d i t i o n s .
Customer acknowledges that (a) the Software is confidential and
proprietary to Gigamon and contains valuable
trade secrets; (b) any breach, threatened or actual, of this
Agreement will cause irreparable injury to Gigamon;
(c) such injury would not be quantifiable in monetary damages;
and (d) Gigamon would not have an adequate
remedy at law in the event of such a breach or threatened
breach. Customer therefore agrees that Gigamon will
be entitled, in addition to other available remedies, to seek
and be awarded an injunction or other appropriate
equitable relief from a court of competent jurisdiction
restraining any breach, threatened or actual, of
Customer’s obligations under any provision of this Agreement.
Accordingly, Customer hereby waives any
requirement that Gigamon post any bond or other security in the
event any injunctive or equitable relief is
sought by or awarded to Gigamon to enforce any provision of this
Agreement.
19. General. This Agreement is governed by the Federal Laws of
the United States, without reference to its conflict of laws
principles. Except as mandated by applicable Federal law, any
dispute regarding this Agreement will be
subject to the exclusive jurisdiction of the state and federal
courts located in Santa Clara County, California,
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U.S.A. This Agreement (and, only where specifically agreed in a
signed amendment by Gigamon and Customer,
–the Purchase Order, the underlying GSA Schedule Contract, and
Schedule Pricelist) constitutes the entire
agreement between Customer and Gigamon and supersedes any other
communications with respect to the
Software(but, if specifically agreed in a signed amendment by
Gigamon and Customer, – would then shall not
supersede the terms of the underlying GSA Schedule contract
negotiated purchase order or the Schedule
pricelist of Gigamon’s reseller)). Additional or conflicting
terms on any purchase order or other document issued
by Customer or any Approved Source will have no force or effect.
If any provision of this Agreement is held
invalid or unenforceable, the remainder of this Agreement will
continue in full. No waiver by either party of any
rights under the Agreement will be effective unless such waiver
is in a writing signed by the party against whom
enforcement is sought. Any notices relating to this Agreement
should be sent via receipted delivery to Gigamon
Inc., Attention: Legal Department, 3300 Olcott Street, Santa
Clara, CA 95054 or by email to
[email protected].
mailto:[email protected]
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 8 of 21
Agreement for optional Gigamon Product Support and Software
Maintenance
PRODUCT SUPPORT AND SOFTWARE MAINTENANCE AGREEMENT
This Product Support and Software Maintenance Agreement
(“Support Agreement”) is between Gigamon Inc.
(“Gigamon”) and customer (“Customer”) for the support and
maintenance of the Products (defined below) by Gigamon. This
Support Agreement is for the period specified in Attachment A to
this Support Agreement (the “Effective Period”). Attachment
A is hereby incorporated by this reference.
1. Definitions.
a. “ARU” means an advance replacement unit.
b. “Error” means any verifiable and reproducible failure of the
Product to materially conform to the Specifications unless such
failure is caused by (a) Customer’s failure to implement in a
timely manner Software updates,
improvements, or modifications to the Product provided to
Customer by Gigamon; (b) acts of God, (c) acts of
government; (d) misuse or abuse, (e) Customer instructions,
installation, or set up adjustments; (f) modifications of or
to any part of the Product by any party other than Gigamon; (g)
accident or damage; or (h) use of the Software other
than as permitted in Gigamon’s End User License Agreement.
c. “General Availability Releases” means Software issued
concurrently to all customers with an active Support Agreement at
regular pre-planned intervals. General Availability Releases are
identified by the first two digits. The
first digit (e.g. 3.x and 4.x) indicates a Major Release. The
second digit (e.g. 4.0 and 4.1) indicates a Minor Release.
d. “Hardware” means the Gigamon-branded hardware products,
purchased from Gigamon or its authorized distributors, and listed
in Attachment A.
e. “Hot Patch” means corrections provided to address defects or
Errors in existing Software.
f. “Major Release” means an upgrade, such as an architectural
change or new platform support, to existing Software.
g. “Minor Release” means an update providing a new feature that
builds upon the main upgrade trunk of existing Software.
h. “Maintenance Release” means Software issued to address a
known defect and/or to introduce minor feature additions.
i. “Product” means the Hardware, the Software, or any
combination thereof.
j. “Priority 1 Error” means any demonstrable Error in the
Product that, in a production environment, (a) causes the Product
to have a significant loss of utility of intended function; or (b)
prevents the Product from being installed or
operated when properly configured.
k. “Priority 2 Error” means any demonstrable Error in the
Product that (a) causes the Product to operate improperly in a
manner which negatively impacts the normal course of business for
Customer; or (b) produces results materially
different from those described in the Specifications but does
not rise to the level of a Priority 1 Error.
l. “Priority 3 Error” means any demonstrable Error in the
Product that (a) causes a function not to execute as documented in
the Specifications without a significant loss of utility or
intended functionality; or (b) disables one or
more nonessential functions.
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 9 of 21
m. “RMA” means a Gigamon-authorized return material
authorization.
n. “Select Countries” means the countries listed at
www.gigamon.com/support-and-services/rma-sd.
o. “Software” means the object or binary code included in the
Hardware or ordered separately from Gigamon or its authorized
distributors for use in connection with the Hardware and listed in
Attachment A.
p. “Specifications” means the applicable Gigamon-published
Product specifications.
2. Technical Support Response, Restore, and Communication
Levels.
a. Generally. If Customer believes a Product is experiencing an
Error, Customer may contact Gigamon Technical Support team
(“Support Team”) as specified in
https://www.gigamon.com/support-and-services/contact-support.
Once Tech Support has confirmed that the Product is covered by
an active Support Agreement, they will assist the
Customer in addressing the Error in accordance with Gigamon’s
Support Response Time Policy, which is attached as
Attachment B, and incorporated by reference. Gigamon and the
Customer will jointly agree on the priority level
assigned to an Error.
b. Hardware. If a Support Team Engineer confirms the
Customer-reported Error, in Hardware, and the RMA is approved
before the local cut-off time, Gigamon will arrange for (a) next
day delivery of the ARU to Customer locations in the
U.S. and Select Countries; and (b) same-day shipment of the ARU
to Customer for Customer locations in all other
countries. For all ARU shipments, Gigamon will pay for freight
to Customer’s location; however for Customers
outside of the U.S. and Select Countries, Gigamon shall invoice
Customer for any other customs, taxes, duties or
related fees.. Gigamon may ship ARUs with a minimum shipping
version of Software and Customer will be
responsible for upgrading to the then-current version of the
Software for the ARU or as recommended by the Support
Team. Customer must return the suspect Hardware to Gigamon’s
specified location (“Return Location”) within thirty
(30) days of receiving the ARU unless Gigamon agrees in advance
in writing. Regarding the return shipment to the
Return Location: (a) for Customers in the US and Select
Countries, Gigamon will provide a pre-paid return label; and
(b) for Customers outside these countries, Gigamon shall invoice
Customer for the return freight as well as any other
customs, taxes, duties or related fees. Customer agrees either
to pay the amount of the taxes or to provide evidence
necessary to sustain an exemption, in accordance with FAR
52.229-1 and FAR 52.229-3. Suspect Hardware must be
returned in the same packaging in which the ARU was provided,
unless otherwise agreed to between the parties,
with the RMA number prominently displayed. Gigamon will not be
responsible for any damage to the suspect
Hardware that occurs during return shipment to Gigamon. Customer
will be invoiced for the then-current
published GSA Schedule list price of the ARU if it fails to
return the suspect Hardware to Gigamon within the
requested time frame, or if Gigamon reasonably determines, after
receipt of the Hardware, that the Customer-
reported Error is not covered under this Support Agreement.
c. Software. Subject to Gigamon’s Software Release Policy (at
https://www.gigamon.com/support-and-
services/policies?sstarget=srp), Customers will be entitled to
receive General Availability Releases, Maintenance
Releases and Hot Patches during the Effective Period of this
Support Agreement. Customers registered on Gigamon’s
Customer Portal website as the email contact for updates will
receive email notification of Software releases. Both the
Customer Portal and Gigamon website (www.gigamon.com), have
information on the latest released Software
versions.
If a Support Team Engineer confirms a Customer-reported Error in
Software, Gigamon will provide the Customer a
workaround or instructions for downloading a Software
correction. If the issue is new and has not been previously
resolved by Gigamon, the Support Team will escalate the problem
and provide a correction as set forth in Attachment
B.
d. Exclusions. Gigamon has no obligation under this Support
Agreement to provide support or troubleshooting services, and will
have no liability, for any hardware or software purchased from
Gigamon or its authorized channel partners
but not listed on Attachment A. Gigamon will have no obligation
to provide:
(i) design, staging, or configuration validation unless directly
associated to addressing an Error; (ii) support, troubleshooting or
configuration assistance for third party (non-Gigamon) hardware
and/or software
products
(iii) support or troubleshooting services in connection with use
of the Product or for any failure or error in the Product caused
by: (A) the improper use, alteration, or damage of the Product by
Customer or any third party; (B)
modifications to the Product; or (C) third party hardware or
software.
http://www.gigamon.com/support-and-services/rma-sdhttps://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/policies?sstarget=srphttps://www.gigamon.com/support-and-services/policies?sstarget=srphttps://www.gigamon.com/support-and-services/policies?sstarget=srphttp://www.gigamon.com/
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 10 of 21
e. Additional Services. If Gigamon performs services at
Customer’s request beyond the scope of the services set forth in in
this Section (Technical Support Response, Restore, and
Communication Levels), (the “Support Services”),
Customer will order them (and be invoiced) separately and they
are not part of the GSA Schedule Contract. Gigamon
will be under no obligation to provide any such services.
3. Fees. Gaps in coverage of a Support Agreement are not
allowed. Therefore, Customers that purchase a Support Agreement
after the initial Product purchase or an expiration of prior
coverage may be required to purchase additional Support to cover
all gaps in coverage, in addition
to any new Support Agreement purchased. Support Service fees for
coverage gaps will be calculated starting as of the later of (a)
the date of
initial Product purchase; or (b) for renewals, the date the
previous Support Agreement expired. All Software Support and
Maintenance
fees are non-refundable.
Force Majeure. Notwithstanding any other provision of this
Support Agreement, Gigamon will have no liability for any
cessation, interruption, or delay in the performance of its
obligations hereunder due to causes beyond its reasonable
control
including, but not limited to: earthquake, flood, fire, storm,
or other natural disaster, act of God, act of government, labor
controversy or threat thereof, civil disturbance or commotion,
acts or threats of terrorism, war, or armed conflict.
4. No Warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN THE SUPPORT
SERVICES AND ARUs ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS
OR WARRANTIES, WHETHER EXPRESSED,
IMPLIED, OR STATUTORY. TO THE EXTENT PERMITTED BY LAW, GIGAMON
EXPRESSLY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND
NONINFRINGEMENT. TO THE EXTENT
AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED
IN DURATION TO THE
APPLICABLE COVERAGE PERIOD.
5. Limitations of Liability: GIGAMON WILL NOT BE LIABLE FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING
WITHOUT LIMITATION ANY LOST PROFITS OR LOST DATA, IN
CONNECTION WITH THE PRODUCTS. IF A PRODUCT CONTAINS AN ERROR,
CUSTOMER’S SOLE AND
EXCLUSIVE REMEDY SHALL BE REPAIR OR REPLACEMENT OF THE PRODUCT.
GIGAMON’S MAXIMUM
LIABILITY UNDER THIS SUPPORT AGREEMENT IS EXPRESSLY LIMITED TO
THE LESSER OF THE PRICE
PAID FOR THE PRODUCT OR THE COST OF REPAIR OR REPLACEMENT OF THE
PRODUCT. THESE
LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE NATURE OR
THEORY OF THE CLAIM
AND WILL BE EFFECTIVE EVEN IF GIGAMON HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY
DAMAGES. THE LIMITATIONS IN THIS SECTION WILL APPLY
NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS SUPPORT
AGREEMENT. The foregoing limitation
of liability shall not apply to (1) personal injury or death
resulting from Licensor’s gross negligence; (2) for fraud; or
(3)
for any other matter for which liability cannot be excluded by
law.
6. General. Gigamon’s entire liability and Customer’s exclusive
remedy under this Support Agreement will be the repair or
replacement, at Gigamon’s sole discretion, of the Hardware and/or
Software which do not meet the applicable
Specifications. This Support Agreement is governed by the
Federal Laws of the United States, without reference to its
conflict of laws principles. This Support Agreement is
non-transferrable and non- refundable. The Support
Agreement, constitutes the entire Support Agreement between
Customer and Gigamon and supersedes any other
communications with respect to the Products. Additional or
conflicting terms on any purchase order or other document
issued by Customer or any third party will have no force or
effect, unless accepted, in a signed writing, by Gigamon and
Customer. These terms and conditions may not be amended, waived
or modified, except in a writing signed by a duly
authorized representative of each party and no course of dealing
or usage of trade may be invoked to amend, waive or
modify any term of this Support Agreement. If any provision of
the Support Agreement is held invalid or unenforceable,
the remainder of the Support Agreement will continue in full
force and effect. No waiver by either party of any rights
under the Support Agreement will be effective unless such waiver
is in a writing signed by the party against whom
enforcement is sought. Any notices relating to this Support
Agreement should be sent via receipted delivery to
Gigamon Inc., Attention: Legal Department, 3300 Olcott Street,
Santa Clara, CA 95054 or by email to
[email protected].
mailto:[email protected]
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 11 of 21
Attachment A PRODUCTS COVERED BY A
GIGAMON® PRODUCT SUPPORT AND SOFTWARE MAINTENANCE SUPPORT
AGREEMENT
Customer Name:
Customer Account #:
End Customer PO#:
Reseller PO#:
SO#:
Premium Support Contact Number(s):
Your primary Technical Support contact is provided by:
If Applicable your Gigamon Support Partner Program Level is: The
Products with the Serial Number(s) below are covered under this
Product Support and Software Maintenance
Support Agreement for the applicable time period(s) indicated
below:
Product Product Description Serial Number(s) Coverage Start Date
Coverage
End Date
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 13 of 21
Attachment B Support Response Time Policy
Type Priority 1 Priority 2 Priority 3
S T A N D A R D
Initial Response 2 Hour 4 Hours 2 Days
Status* Live on phone until Daily Twice Weekly
Restore Times SW: 24 hours SW: 48 Hours N/A
Resolution Time SW: 5 Days SW: 10 Days As agreed / Next MNT
Communication
Method Phone Only Phone/Email Phone/Email
P R E M I U M
Initial Response 1 Hour 2 Hours 8 Hours
Status* Live on phone until Daily Daily
Restore Times SW: 24 hours SW: 48 Hours N/A
Resolution Time SW: 5 Days SW: 10 Days As agreed / Next MNT
Communication
Method Phone Only
Phone/Email
After Hours: Phone only
Phone/Email
After hours: Phone only
* Status update time may be renegotiated as agreed by Gigamon
and Customer on a case by case basis.
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 14 of 21
Gigamon Limited Warranty for Hardware and Software
Limited Warranty – Hardware and Software
Effective July 1, 2015
This Limited Warranty for Hardware and Software (this “Limited
Warranty”) sets forth the terms by which
Gigamon Inc. (“Gigamon”) will repair or replace
Gigamon-manufactured Products that contain defects in material
and workmanship that cause the Products to fail to conform with
the applicable Gigamon-published specifications
(collectively, the “Defects”). This Limited Warranty covers
Gigamon-manufactured software (the “Software”) and
Gigamon-manufactured hardware (the “Hardware”) and the Software
and Hardware are sometimes referred to in
this Limited Warranty together as the “Products”. This Limited
Warranty is available only to the original end user
customer (the “Customer”) and solely covers Products purchased
from Gigamon or its authorized channel partners.
Hardware
For five years from the initial date that the Hardware is
shipped by Gigamon or its designee (“Hardware Coverage
Period”), Gigamon will, at its option, repair or replace such
Hardware determined by Gigamon to have a Defect
provided that: (a) the Hardware has been used within normal
operating conditions; (b) the Customer notifies the
Gigamon technical support team (“Technical Support”) of the
suspected Defect during the Hardware Coverage
Period; (c) Technical Support reproduces and validates the
Defect; and (d) Customer complies with this Limited
Warranty. Gigamon may, at its option, repair or replace any such
Hardware with validated Defects with new or
equivalent-to-new components or hardware with equivalent fit,
form, and function. Any Hardware without validated
Defects will be repaired at Customer’s expense and at Gigamon’s
then-current professional service rates.
Process: Customer must first contact Technical Support to obtain
approval to return Hardware that Customers
suspects has a Defect. Following Customer’s receipt of Technical
Support’s approval of Customer’s return of such
Hardware, Technical Support will use commercially reasonable
efforts to same-day ship an advanced replacement
unit (“ARU”) to Customer. Each ARU will include a Gigamon Return
Materials Approval (“RMA”) number that
Customer must include when shipping the suspect Hardware back to
the location designated by Technical Support.
Upon ARU receipt, Customer is responsible for shipping the
suspect Hardware, in either its original packaging or
packaging affording an equal degree of protection, to the
designated location. Customer shall return the suspect
Hardware within 30 calendar days of Customer’s receipt of the
ARU. Customer shall return the suspect Hardware
within 30 calendar days. If Customer fails to do so, Customer
will be invoiced for the price of the ARU.
Each ARU is covered by this Limited Warranty for the longer of
(a) the remainder of the original Hardware
Coverage Period; or (b) ninety days from the ARU shipment date.
Any Hardware returned to Gigamon will become
Gigamon’s property.
For Customers in Select Countries with a Local Service Depot:
Gigamon will pay the freight and all other costs
associated with the ARU shipment and the return shipment of the
suspect Hardware via a Gigamon-provided pre-
paid return label referencing the RMA number. Please see
www.gigamon.com/support-and-services/rma-sd for a list
of countries with a local service depot.
For Customers in all other Geographic Locations: Gigamon will
pay the freight associated with the ARU shipment,
but Gigamon shall invoice Customer for any other customs, taxes,
duties or related fees. Customer will be
responsible for the costs related to returning the suspect
Hardware to Gigamon’s designated location.
http://www.gigamon.com/support-and-services/rma-sd
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Government Reseller Amendment to the Gigamon Distribution
Agreement Page 15 of 21
Software
For one year from the date the Software is initially shipped to
or downloaded by the Customer (“Software Coverage
Period”), as applicable, Gigamon will use commercially
reasonable efforts to provide the Customer a correction or
workaround for any Defects in the Software provided that: (a)
the suspected Defect occurs when the Software is
used within normal operating conditions and as permitted in
Gigamon’s End User License Agreement; (b) the
Customer notifies Technical Support of the suspected Defect
during the Software Coverage Period; (c) Technical
Support reproduces and validates the Defect; and (d) Customer
complies with this Limited Warranty. For Software
shipped to or downloaded by Customers located outside of North
America and Latin America, the Software
Coverage Period is thirteen months, instead of one year, from
the original date of shipment.
Hardware and Software
Technical Support Contact Information: For contact details,
please visit https://www.gigamon.com/support-and-
services/contact-support.
Limitations: This Limited Warranty is non-transferable and only
covers Defects. This Limited Warranty does not
cover issues caused by (a) Customer’s failure to implement
Software updates; (b) acts of God, (c) acts of
government; (d) misuse or abuse, (e) Customer instructions,
installation, or set up adjustments; (f) modifications of
or to any part of the Products; (g) accident or damage; or (h)
use of the Software other than as permitted in
Gigamon’s End User License Agreement. This Limited Warranty does
not apply to Products sold AS IS or WITH
ALL FAULTS, nor does it apply to open source software, which is
provided subject to the terms and conditions of
the applicable open source license. Further, this Limited
Warranty is invalid if the factory-applied serial number has
been altered or removed from the Product. Gigamon may require
Customer to provide proof of purchase by
Customer and of the applicable shipment date.
Disclaimer of Warranties: EXCEPT AS EXPRESSLY SET FORTH HEREIN
THE PRODUCTS ARE PROVIDED
WITHOUT ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED,
IMPLIED OR
STATUTORY. TO THE EXTENT PERMITTED BY LAW, GIGAMON EXPRESSLY
DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND
NONINFRINGEMENT. TO THE
EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS
LIMITED IN
DURATION TO THE APPLICABLE COVERAGE PERIOD. THIS LIMITED
WARRANTY SUPERSEDES
ANY PRIOR AGREEMENTS OR REPRESENTATIONS—INCLUDING
REPRESENTATIONS MADE IN
GIGAMON SALES LITERATURE OR ADVICE GIVEN BY GIGAMON, ANY GIGAMON
AUTHORIZED
CHANNEL PARTNER, OR AN AGENT OR EMPLOYEE THEREOF—THAT MAY HAVE
BEEN MADE IN
CONNECTION WITH THE PURCHASE OF A PRODUCT. NO CHANGE TO THIS
LIMITED WARRANTY IS
VALID UNLESS IT IS MADE IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF
GIGAMON.
Limitations of Liability: GIGAMON WILL NOT BE LIABLE FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST
PROFITS OR LOST
DATA, IN CONNECTION WITH THE PRODUCTS. IF A PRODUCT CONTAINS A
DEFECT, CUSTOMER’S
SOLE AND EXCLUSIVE REMEDY SHALL BE REPAIR OR REPLACEMENT OF THE
PRODUCT.
GIGAMON’S MAXIMUM LIABILITY UNDER THIS LIMITED WARRANTY IS
EXPRESSLY LIMITED TO
THE LESSER OF THE PRICE PAID FOR THE PRODUCT OR THE COST OF
REPAIR OR REPLACEMENT
OF ANY PRODUCT. THESE LIMITATIONS OF LIABILITY WILL APPLY
REGARDLESS OF THE NATURE
OR THEORY OF THE CLAIM AND WILL BE EFFECTIVE EVEN IF GIGAMON HAS
BEEN ADVISED OF
THE POSSIBILITY OF ANY DAMAGES. THE LIMITATIONS IN THIS LIMITED
WARRANTY WILL
APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY IN
THIS AGREEMENT. The foregoing limitation of liability shall not
apply to (1) personal injury or death resulting
from Licensor’s gross negligence; (2) for fraud; or (3) for any
other matter for which liability cannot be excluded
by law.
Force Majeure: Notwithstanding any other provision of this
Agreement, Gigamon will have no liability for any
cessation, interruption, or delay in the performance of its
obligations under this Limited Warranty due to causes beyond
its reasonable control including: natural disaster, act of God,
act of government, labor controversy or threat thereof,
civil disturbance or commotion, acts or threats of terrorism,
war, or armed conflict.
https://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/contact-supporthttps://www.gigamon.com/support-and-services/contact-support
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Government Reseller Amendment to the Gigamon Distribution
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Choice of Law; Venue: This Agreement is governed by the Federal
laws of the United States, without reference to its
conflict of laws principles. V e n u e a n d j u r i s d i c t i
o n a r e g o v e r n e d b y a p p l i c a b l e U n i t e d
S t a t e s F e d e r a l l a w .
Except as mandated by applicable Federal law, any dispute
regarding this Limited Warranty will be subject to the
exclusive jurisdiction of the state and federal courts located
in Santa Clara County, California, U.S.A. v061815