GIGAMON RESELLER AGREEMENT
Clickthrough Updated 7-20-23
PLEASE READ CAREFULLY: THE INDIVIDUAL ASSENTING TO THESE TERMS AND CONDITIONS ON BEHALF OF A RESELLER ENTITY (THE “RESELLER”) REPRESENTS AND WARRANTS THAT HE OR SHE HAS FULL AUTHORITY TO BIND THE RESELLER TO THESE TERMS AND CONDITIONS (THE “AGREEMENT”). THIS AGREEMENT GOVERNS RESELLER’S RIGHT TO RESELL GIGAMON SOLUTIONS AND ACCESS THE GIGAMON PARTNER PORTAL. BY ASSENTING TO THIS AGREEMENT (EITHER BY CLICKING “ACCEPT”, CHECKING A BOX OR SUBMITTING A PURCHASE ORDER), THE RESELLER ASSENTS TO THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN RESELLER AND GIGAMON INC. WITH A PRINCIPAL PLACE OF BUSINESS AT 3300 OLCOTT ST., SANTA CLARA, CA 95054 (“GIGAMON”). IF THE RESELLER DOES NOT AGREE TO OR CANNOT COMPLY WITH
THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE RESELLER, THEN DO NOT ASSENT (AS DESCRIBED ABOVE) AND THE RESELLER WILL NOT BE AUTHORIZED TO RESELL GIGAMON SOLUTIONS OR ACCESS THE PARTNER PORTAL.
1. ELEMENTAL RESELLER. Unless you have been authorized in writing by Gigamon to participate at a higher level of channel partner relationship (i.e. Silver, Gold or Platinum level) under Gigamon’s Catalyst Partner Program available in the quick links menu at Partner Portal here: https://gigamoncp.force.com/partnercommunity in the Program Guide (as defined below), you are solely authorized to resell Solutions purchased from a Distributor to a particular Customer as authorized by Gigamon on a case-by-case basis and subject to all the other restrictions herein, including but not limited to those set forth in Section 4 and 13 (an “Elemental Reseller”).
2. SCOPE OF AGREEMENT. This Agreement covers Gigamon’s products purchased from either Gigamon or an authorized distributor (“Distributor”) and related documentation (collectively, “Products”) together with Gigamonprovided Professional Services (“Services”) and/or Support and Maintenance (“Support”). Products, Services and Support together are referred to as “Solutions.”
3. APPOINTMENT and TERRITORY. Subject to the terms and conditions of this Agreement and the requirements set forth in the Gigamon Partner Program Guide available in the quick links menu at the Partner Portal here: https://gigamoncp.force.com/partnercommunity (“Partner Portal”), as may be amended from time to time (“Program Guide”), Gigamon hereby appoints Reseller for the Term of this Agreement as a nonexclusive reseller of
Solutions solely to end user customers (“Customer(s)”) and solely within the countries set forth in Reseller’s profile in Partner Portal or, if none, the country in which Reseller is located as set forth in the address provided (“Territory”). Gigamon authorizes Reseller to resell Solutions directly to Customers in the Territory for Customer’s internal information security use only and not for further resale. Gigamon may appoint additional resellers in the Territory and otherwise sell Solutions either directly or indirectly to any customer.
4. RESELLER OBLIGATIONS. Reseller hereby represents, warrants and covenants that Reseller shall (i) require Customer to agree in a legally binding manner to the following (in a countersigned quote, written agreement or otherwise): “Customer’s access and use of the Gigamon products and services shall be governed by the terms of use set forth at https://www.gigamon.com/support/terms-and-conditions.html. Any pre-printed terms on any purchase order or Customer’s other purchasing documents are rejected and have no force or effect,” (ii) abide by the terms and conditions of, and perform its obligations and meet the requirements set forth in this Agreement and in the Program Guide; (iii) not disassemble, decompile or otherwise reverse engineer the Products or attempt to learn the source code, structure or algorithms underlying the Products; (iv) not copy or modify the Products; (v) not remove any names, designations or notices from any Product; (vi) not engage in any deceptive, misleading, illegal or unethical practices; and (vii) make no representations, warranties, or guarantees to Customers that are in addition to or in excess of the limited warranty set forth at https://www.gigamon.com/support/warranty.html (viii) if a Reseller other than an Elemental Reseller, discuss marketing plans and potential upcoming orders on a quarterly basis with Gigamon, (ix) upon Gigamon’s request, identify to Gigamon any third party products that it markets or sells to its customers that are competitive to the Solutions, provided Reseller is not obligated to disclose any Reseller Confidential Information or personal data, (x) not employ or authorize a competitor of Gigamon to use or view the Solutions or technical documentation or to provide management, hosting, support or similar services with regard to the Solutions without the prior written consent of Gigamon and (xi) comply with all applicable laws and regulations.
5. ORDERS, SUPPLY OF SOLUTIONS
a. Purchases through Distributor. Reseller will purchase Products through a Distributor unless Gigamon has expressly authorized Reseller to purchase Products directly from Gigamon. No Product order may be placed without a Customer purchase order to support such purchase, and Reseller will provide Customer’s name, address and other details reasonably necessary for fulfillment on purchase orders.
b. Pricing. Pricing and discounts for Solutions in the Program Guide, if any, apply only if Reseller is purchasing directly from Gigamon.
c. Quotations. Quotations from Gigamon are valid for thirty (30) days unless otherwise agreed.
d. Distribution to Customers. To the extent Reseller is physically shipping Products to Customers, Reseller will distribute Solutions unmodified and with all packaging and End User License Agreements, Terms and Conditions, Services terms, Support documentation, and/or limited warranty statements intact.
e. Availability/Changes in Solutions. Gigamon may in its sole discretion discontinue or limit the manufacture and/or sale of any or all Solutions at any time, modify and/or redesign any Solutions without liability. Gigamon reserves the right to allocate, in its sole discretion, its available supply of Products among its resellers and Customers.
f. Payment. Payment to Gigamon for any authorized direct sales of Solutions to Reseller is net thirty (30) days from the invoice date, unless Gigamon at any time determines that Reseller’s credit is not satisfactory, in which case base payments terms will be C.O.D. All sums not paid when due will accrue interest daily at the lesser of an annual rate of ten percent (10%) or the highest rate permissible by law on the unpaid balance until paid in full. All prices are exclusive of any taxes, fees and duties. Reseller shall pay any and all taxes associated with its purchase and resale of Solutions (except for taxes based on Gigamon’s net income), including any applicable sales, VAT, use taxes, export, import, re-export and withholding taxes, customs or duties. In the event that any such taxes, customs or duties are required to be deducted from any payment under applicable law, then Reseller shall pay Gigamon such additional amount as shall cause the net amount of the aggregate payment to Gigamon, after giving effect to such deduction, to equal the amount of the payment that would have been due to Gigamon absent such deduction, and shall indemnify and hold harmless Gigamon against any additional such taxes, customs or duties that might be determined to be due in connection with the transactions contemplated herein. Reseller will not withhold payment of any amounts due and payable under this Agreement by reason of any set-off or any claim or dispute with Gigamon.
g. Product Orders and Shipment. Any and all purchase orders may be accepted or rejected by Gigamon in its sole discretion. Any delivery date on a quote or purchase order is a good faith estimate only, and there is no guaranteed delivery date. Gigamon will notify Reseller in writing if the delivery of any Products is expected to be delayed. Gigamon has the right, in its sole discretion, to make partial shipments of Products. Partial shipments will be treated as separate sales and will be invoiced upon shipping. If a purchase order is accepted by Gigamon, it may not be cancelled, changed or delayed. All Products are shipped EXWorks (Incoterms 2010) Gigamon’s applicable warehouse or place of production.
h. Support Partner or Professional Services Partner. A Reseller other than an Elemental Reseller may be eligible in certain circumstances to become a support partner (a “Support Partner”) under the Gigamon Support Partner Program (“GSPP”) or become a professional services partner (a “Professional Services Partner”) under the Gigamon Professional Services Partner (“GPSP”) program, in each case as referenced in the Program Guide. If Reseller is authorized by Gigamon to become a Support Partner or Professional Services Partner, Reseller shall adhere to all the requirements therefor set forth in the Program Guide.
6. TERM AND TERMINATION. The initial term of this Agreement is for a period of twenty-four (24) months from the Effective Date unless terminated as specified herein. The Agreement will automatically renew for additional twelve (12) month terms unless one party gives written notice of non-renewal at any point (the initial and any renewal terms are collectively, the “Term”).
a. Termination for Convenience. Either party may terminate this Agreement upon written notice to the other party for any or no reason.
b. Termination for Cause. Either party may terminate this Agreement in the event of a breach by the other party of any of the terms and conditions in this Agreement if the breach is not cured within thirty (30) days after written notice to the breaching party (or five (5) days if the breach is for non-payment by Reseller). Either party may also terminate this Agreement effective immediately upon written notice to the other, if the other party: (i) makes an assignment for the benefit of creditors or files a voluntary petition in bankruptcy, or an involuntary petition is filed against a party and is not dismissed within one hundred twenty (120) days of its filing date; (ii) has a receiver appointed for it; (iii) admits in writing to its inability to meet its debts as they become due; (iv) ceases to conduct business; or (v) is adjudged bankrupt or insolvent under the laws of any jurisdiction.
c. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, all rights and licenses granted will cease and Reseller will (i) immediately pay all outstanding sums due to Gigamon; (ii) cease the marketing, advertising and distribution of the Solutions, and all use of trademarks and trade names associated with the Solutions; (iii) promptly deliver to Gigamon all Gigamon Confidential Information (as defined below) in its possession or control. In the event of a termination of this
Agreement for any reason , the following sections shall survive: 6 (Term and Termination); 7 (Intellectual Property); 8 (Limited Warranty and Disclaimer); 9 (Confidential Information); 10 (Limit of Liability); 11 (Publicity), 13 (Laws and Regulations), and 16 (Miscellaneous). .
7. INTELLECTUAL PROPERTY
a. Ownership. Software is licensed and not sold. Gigamon owns and retains (i) all right, title and interest (including all intellectual property rights) in and to the Products, the documentation accompanying Products and other documentation and related materials and any and all derivative works thereof (by whomever created) and all right, title and interest (including all intellectual property rights) in and to all Gigamon Marks (defined below), except for licenses expressly granted hereunder. There are no implied licenses granted by Gigamon under this Agreement.
b. Gigamon Trademarks. Subject to the terms and conditions of this Agreement and the Program Guide, Gigamon grants Reseller (other than an Elemental Reseller) the non-exclusive, royalty-free, limited license to use the name, logo and other marks owned, used or claimed now or in the future by Gigamon ("Gigamon Marks") solely pursuant to the Program Guide in order to promote and sell the Solutions during the Term. Reseller's use of the Gigamon Marks will be in accordance with Gigamon's usage policies in effect and communicated to Reseller from time to time (including as referenced in the Program Guide or partner portal). Reseller shall not make any claim to the Gigamon Marks, contest any Gigamon Mark’s validity, or make any filings for any marks or domain names with respect to the Gigamon Marks or marks confusingly similar to the Gigamon Marks for itself or any other person or entity. Reseller shall not use the Gigamon name or Gigamon Marks or any derivative thereof in its company name. All goodwill associated with the use of Gigamon Marks shall inure to the benefit of Gigamon. Except as set forth above, Reseller has no right or license to use, display or reproduce the Gigamon Marks. Elemental Resellers shall not have the right to use the Gigamon Marks or represent themselves as authorized resellers of Gigamon Solutions.
c. Suggestions and other Notices. Reseller shall promptly advise Gigamon of: (i) any feedback, suggestions or complaints (“Suggestions”) regarding the Solutions of which Reseller becomes aware, (ii) any excess usage of Products by a Customer or other breach of the Gigamon Terms by a Customer of which Reseller becomes aware, and (iii) any potential infringement of or by Gigamon Products or Gigamon intellectual property rights of which Reseller becomes aware. As between Reseller and Gigamon, Suggestions shall be Gigamon’s property and Confidential Information.
d. Reseller Trademarks. Subject to the terms and conditions of this Agreement, Reseller grants Gigamon the non-exclusive, royalty-free, limited license to use the name, logo and other marks owned, used or claimed now or in the future by Reseller ("Reseller Marks") solely to promote, market, advertise and sell Solutions and solely in accordance with Reseller’s usage guidelines and policies in effect and communicated to Gigamon from time to time.
8. LIMITED WARRANTY AND DISCLAIMER.
a. Products are protected by Gigamon’s Limited Warranty found at https://www.gigamon.com/support/warranty.html. Reseller shall make no representations, warranties, or guarantees to Customers regarding the Products other than the limited warranty set forth at https://www.gigamon.com/support/warranty.html. Reseller shall make no commitment regarding the timing, availability or cost of any future Gigamon feature or functionality. No returns other than warrantyrelated returns are permitted. Reseller shall indemnify Gigamon against any third-party claims as a result of Reseller’s breach of this provision
b. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, AND GIGAMON AND ITS LICENSORS
DISCLAIM ALL WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A
PARTICULAR PURPOSE. THE PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE
PRODUCTS 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.
c. THESE LIMITATIONS APPLY EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. CONFIDENTIAL INFORMATION. In the course of performing its duties under this Agreement, each party may obtain or may have obtained information prior to the execution of this Agreement which is of a confidential and proprietary nature from the other party ("Confidential Information”). Confidential Information includes items which are designed as “Confidential” or “Proprietary” or that a reasonable person in the industry should know is confidential and includes the terms of this Agreement. Gigamon Solutions and Gigamon’s price list and discount information and all other materials posted on the partner portal or included in the Program Guide are all Gigamon Confidential Information. Confidential Information does not include information that (i) was publicly known and made generally available prior to the disclosing party’s disclosure; (ii) becomes publicly known and made generally available after disclosure by the disclosing party through no action or inaction of the receiving party; (iii) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. The receiving party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and, prior to any disclosure of the other party’s Confidential Information to its employees or contractors, will ensure that each has signed a non-use and nondisclosure agreement that is at least as protective as the terms herein. The receiving party may only use Confidential Information to further the purposes of this Agreement and not for competitive analysis or any other purpose. Neither party will remove or alter any of the proprietary rights notices on any Confidential Information it receives from the other. The receiving party may disclose the other party’s Confidential Information if required by law so long as it provides the disclosing party prompt written notice prior to disclosure and assistance in obtaining an order protecting the Confidential Information. Because of the unique and proprietary nature of the Confidential Information, each party acknowledges that any violation or threatened violation of this Section may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies. These obligations survive the expiration or termination of this Agreement.
10. INTELLECTUAL PROPERTY DEFENSE. Gigamon will, at its cost and expense, (i) defend or settle any claim brought against Reseller by an unaffiliated third party alleging that a Product infringes such third party’s registered copyright, registered trademark or patent rights and (ii) pay, indemnify and hold Reseller 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. Gigamon’s obligations above are condition on Reseller notifying Gigamon promptly in writing of the claim or threat thereof and giving Gigamon sole control and authority over, and reasonable information for and assistance with, the defense and settlement thereof. Gigamon will have no liability for any claim based upon (1) the combination, operation, use or sale of any Product supplied with equipment, devices or software not supplied by Gigamon; (2) alteration or modification of any Products; (3) the failure to install any update or revision made available by Gigamon; (4) Gigamon’s compliance with Reseller's or Customer’s specifications, designs, or instructions or (5) Reseller’s use, sale, offer for sale, importation or other disposition or exploitation of a product after Gigamon’s notice to Reseller that Reseller should cease any such disposition or exploitation. Reseller may participate in the defense or settlement of any claim at its cost. If any Products become, or in Gigamon’s reasonable opinion may become, the subject of an infringement claim, Gigamon may at its option, (x) procure for Reseller the right to continue selling such Products, (y) modify or replace such Products with substantially equivalent non-infringing products or (z) terminate this Agreement and repurchase all applicable Products that have not been resold by Reseller at the time of the termination. THE FOREGOING STATES THE ENTIRE OBLIGATION OF GIGAMON WITH RESPECT TO INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. GIGAMON DISCLAIMS ALL OTHER WARRANTIES OF NON-INFRINGEMENT.
11. LIMIT OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY
BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 4 (RESELLER OBLIGATIONS), MISUSE OR
MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, PAYMENT OBLIGATIONS FOR PRODUCTS, OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF FOR: (A) ANY
CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOVER (INCLUDING WITHOUT
LIMITATION, LOSS OF PROFITS, DATA OR INFORMATION OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED
TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) AN AMOUNT THAT EXCEEDS THE FEES PAID BY RESELLER FOR PRODUCTS 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 ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION.
12. PUBLICITY. Reseller will not disclose terms, conditions or pricing in this Agreement without Gigamon’s prior written consent. During the Term, Reseller (except for Elemental Resellers) may represent that it is an Authorized Reseller of Gigamon, and Gigamon may list Reseller as an Authorized Reseller. Gigamon will have no duty to refer any customers to Reseller.
13. LAWS AND REGULATIONS. Each of Reseller and Gigamon shall comply with all U.S. state and federal and non-U.S. laws and regulations applicable to the marketing and resale of the Products, including but not limited to import/export laws, anti-bribery laws and data privacy laws. Products and documentation may be subject to U.S. and non-U.S. import and export control laws and regulations. Reseller agrees to comply with all such import and export regulations applicable to Reseller and shall require that Customer complies with all such regulations applicable to Customer, including but not limited to, obtaining applicable import licenses. In addition, each party acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act of 2010 (the “UKBA”) and agrees to comply with those laws as well as any local laws regarding antibribery applicable to it in the performance of this Agreement. Each party further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything value, including not only cash, gifts, travel and entertainment, but also sharing discounts or entering into consulting agreements with certain persons for the purpose of influencing the purchase of Products. Each party agrees not to violate or knowingly allow any other person or entity to violate these laws in connection with the marketing and sale of Products outside the United States, and Reseller will report any suspected violation of law by third parties of which it becomes aware to Gigamon.
Reseller acknowledges that Gigamon products are subject to U.S. export 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. Reseller will comply with all U.S. export control laws and regulations as well as those of the Territory and the country of export and/or import. Specifically, Reseller covenants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Gigamon under this Agreement to any prohibited or restricted destination, entity, or person or use any Product for any end-use prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Reseller will indemnify Gigamon, to the fullest extent permitted by law, from and against any claims, damages, fines or penalties that may arise as a result of Reseller’s breach of this Section. To assist Reseller with its compliance, Gigamon will provide a list of Products with the available Export Control Classification Number (ECCN) and relevant Commodity Classification Automated Tracking System (CCATS) upon Reseller’s request to [email protected].
14. PRIVACY. Gigamon’s Privacy Notice here: https://www.gigamon.com/privacy-policy.html shall apply. Gigamon and Reseller shall comply with all applicable privacy and data protection laws and regulations, including, but not limited to, the European General Data Protection Regulation of April 27, 2016 (Regulation (EU) 2016/679 or “GDPR”), California Consumer Privacy Act or (“CCPA”), and the CAN SPAM Act, as amended from time to time (the
"Privacy Laws"). “Personal Data” or “Personal Information” shall have the meaning set forth under the applicable Privacy Laws. Reseller acknowledges that it is not receiving Personal Information as consideration for services provided to Gigamon and shall not sell any Personal Information and shall not collect, share or use any Personal Information except as necessary to act as a Reseller hereunder and in compliance with all applicable Privacy Laws and the terms hereof.
15. AUDIT. Reseller will maintain complete and accurate records regarding sales to Customers and outreach to prospective customers, as well as compliance with this Agreement and the Program Guide. Gigamon may, during the Term and for six (6) months after expiration or termination of this Agreement, upon at least one (1) weeks’ notice, inspect or have an independent accountant or auditor inspect, Reseller’s books and records relating hereto and Reseller’s compliance with the terms and conditions of the Program Guide. Any audit will be conducted in a manner that does not interfere with Reseller’s normal business operations.
16. MISCELLANEOUS. If any term or provision of this Agreement is determined to be invalid, illegal or unenforceable under any applicable law, it will be deemed omitted, with the remaining provisions of this Agreement continuing in full force and effect. No waiver or failure to exercise any option, right or privilege under the terms of this Agreement will be construed to be a waiver of the same or any other option, right, or privilege on any other occasion. This Agreement may not be assigned or otherwise transferred or delegated in whole or in part by Reseller without Gigamon’s prior written consent. This Agreement, together with its Exhibit(s), if any, constitutes the entire and final agreement between Gigamon and Reseller relating to the subject matter hereof. All prior discussions, representations, negotiations, and agreements relating to the subject matter hereof, whether oral or written, are superseded by this Agreement. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Reseller's terms and conditions contained in any purchase order or other document issued by Reseller, except for terms required hereunder in Section 4. Except as otherwise provided in Exhibit A (if applicable), this Agreement will be governed by the laws of the State of California, without regard to conflicts of laws principles, and the parties agree to exclusive venue for any legal proceedings with regard to breach of this Agreement to be the state or federal court located in Santa Clara County, State of California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. The obligations that by their nature have continuing effect will survive termination or expiration of this Agreement. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same Agreement. Reseller and Gigamon are independent contractors. Reseller is not an agent, employee or legal representative of Gigamon. Reseller has no authority to bind Gigamon, and will take no action which has the effect of creating an appearance of its having such authority. Neither party will be liable for delay or failure to perform its obligations under this Agreement due to events beyond the party’s reasonable control, including fire, flood, explosion, war, strike, embargo, acts of government, civil or military authority, or act of God ("Condition"). Upon the occurrence of a Condition, the affected party will immediately notify the other party, and will immediately resume compliance with its obligations upon the removal of the Condition. All notices and other communications which are required or permitted under this Agreement will be in writing, and delivered by certified mail or express courier delivered (traceable) or sent by facsimile, email or other electronic means (in which case it shall be deemed given when transmitted) if to Gigamon, to attn: General Counsel, Gigamon Inc., 3300 Olcott Street, Santa Clara, CA 95054, along with an email transmission of such notice to [email protected].
EXHIBIT A DISPUTE RESOLUTION OUTSIDE THE UNITED STATES
If Reseller’s principal office is located outside the United States as indicated in the Agreement, the terms and conditions of this Exhibit will apply to all disputes arising out of or relating to this Agreement (excluding disputes regarding the actual or alleged violation of Gigamon’s intellectual property rights or the collection of overdue invoices, which shall be governed by California law and which may be brought in the state or federal courts located in California).
1. For all principal offices outside the United States:
a. Choice of Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed and enforced with the laws of the State of New York, excluding its conflicts-of-law principles. The Uniform Computer Information Transactions Act and the United Nations convention on the International Sale of Goods will not apply.
b. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination, enforcement, interpretation or validity of the Agreement, including the termination of the scope or applicability of arbitration hereunder (each a “Dispute”) shall be referred to and finally resolved by arbitration under the rules and at the location identified below. The arbitral panel shall consist of three (3) arbitrators, selected as follows: each party shall appoint one (1) arbitrator, and those two (2) arbitrators shall discuss and select a third arbitrator. If the two party-appointed arbitrators do not agree on a third arbitrator, the third arbitrator shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties and shall have suitable experience and knowledge in the subject matter of the Dispute. The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, either party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
2. Additional terms only for principal offices within Europe, the Middle East or Africa: Any Dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules in force on the date when the notice of arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is as follows: (a) if Reseller brings an action against Gigamon, the governing law is the State of New York, USA, and (b) if Gigamon brings an action against Reseller, then the governing law is the laws of England and Wales. The seat, or legal place, of arbitration shall be London, England.
3. Additional terms only for principal offices within Asia Pacific (including India), Australia and New Zealand: Any Dispute shall be referred to and finally resolved by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in force on the date when the notice of arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is as follows: (a) if Reseller brings an action against Gigamon, the governing law is the State of New York, USA, and (b) if Gigamon brings an action against Reseller, then the governing law is as follows: (A) for Resellers with principal offices in (1) Asia Pacific (including India): the laws of England and Wales, or (B) for Resellers with principal offices in Australia or New Zealand: the laws of the State of New South Wales, Australia. In all cases, the seat, or legal place, of arbitration shall be Singapore.
4. Additional terms only for principal offices within the Americas, excluding the United States: Any Dispute shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association in force on the date when the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be New York, NY, USA.