Distribution Agreement

Gigamon grants to Distributor and Distributor accepts the nonexclusive, nontransferable right to market, sell and distribute to its customers and Gigamon approved resellers the products listed on Exhibit A (the “Products”) within the Territory (as stated in Exhibit B.), subject to the terms and conditions contained herein. Distributor shall have no right to sublicense its rights hereunder.

All purchase orders for Products shall be communicated to Gigamon in writing only from designated representatives of Distributor. All orders shall be controlled by the terms and conditions of this Agreement. Any proposed variation from or addition to these terms and conditions appearing on any purchase order or other document submitted by Distributor shall be null and void unless specifically accepted in writing signed by an authorized officer of Gigamon. Purchase orders are not valid until confirmed in writing or electronically by Gigamon.

All Products shall be shipped F.O.B. Gigamon from a continental U.S. location only. Distributor is responsible for all shipping, insurance and related charges as if the shipment originated in a US location. All risk of damage or loss shall pass to Distributor at Gigamon’s facility upon tender by Gigamon to the carrier.

Distributor agrees to purchase and maintain at all times at least one Product for demonstration use.

Products delivered to Distributor shall be inspected, at Distributor’s expense, upon delivery to Distributor. Failure to inspect such Products within 5 days after delivery shall constitute waiver of any rights of inspection and shall be deemed an acceptance of such Products.

Distributor retains the right during the term of this Agreement to return standard products ordered from Gigamon. Product must be unaltered, un-opened and in condition for resale. Distributor shall be responsible for freight. Product returns shall only be made pursuant to the following conditions:

Distributors are allowed to adjust stocking levels and product mix once per quarter for standard products with Gigamon approval and at the time of rotation provide an offsetting order which is equal to or greater than the rotation amount. Notwithstanding the foregoing, software can only be returned pursuant to Gigamon’s warranty policy. If Gigamon is requested to make any upgrades to Distributor’s firmware, the cost of shipping and handling shall be the exclusive responsibility of Distributor.

Gigamon will only accept returns of discontinued products if it is returned during the quarter immediately following such discontinuance provided distributor received written notice of discontinuance. An order of equal or greater value must accompany the return.

Repairs/returns: During warranty period, for any DOA’s or equipment failures, manufacturer shall issue RMA directly to end customer for products to be repaired or replaced within two weeks from receipt of return.

Advance Replacement

Distributor shall pay to Gigamon the prices (in U.S. dollars) set forth on Gigamon’s then current Distributor price list for all Products, which prices do not include taxes, duties, transportation, insurance or handling, all of which are additional charges to be paid by Distributor, and are not subject to discount. Distributor’s Discounts to list pricing are shown on Exhibit C. Gigamon may change prices or Products at any time by providing Distributor with at least thirty (30) days advance written notice of such changes.

All orders, purchase orders and terms of payment will be made with Gigamon.

Payment shall be due net thirty (30) days after shipment with a 1% discount paid on all orders paid within 10 days of invoice date.

All outstanding amounts which are not paid when due shall bear a late charge of the lesser of 1.5% per month or the maximum allowable statutory rate at the time. In addition to all other rights available to Gigamon, Gigamon shall have the right to suspend shipments during any period when outstanding amounts are overdue.

Delivery dates as set forth in any purchase order or confirmation thereof shall be deemed to be estimated only. Gigamon shall not be liable for delays or defaults in the delivery of any Products due to acts beyond the control and without the fault or negligence of Gigamon.

Product price reductions made by Gigamon shall be communicated to distributor in writing. Distributor shall receive a credit for the difference in price between acquisition cost of current inventory affected by announced price reduction and the new price. This shall not apply to any orders shipped and invoiced to Distributor customers prior to any such price reductions.

Gigamon may upon thirty (30) days advance notice increase prices on any Products. Distributor may place an order for Products prior to the effective date of any such increase.

Gigamon may discontinue Products at any time on sixty (60) days’ written notice. In such event, Distributor may exchange discontinued Products in stock for the same value of replacement Product within the 60 day notice period.

Upon receipt of discontinuation notice, Distributor at its option may cancel all backlogged orders for the discontinued Product without penalty

If a Product is discontinued, the discontinued Products shipped to Gigamon need to meet the following conditions:

The discontinued Products are new, unused and in factory sealed-boxes;

The discontinued Products are in Distributors stock on the date of the notice; and

Repurchase Agreement:

Within thirty (30) days of termination of this Agreement by either party for convenience, bankruptcy, termination of operations, sale of business, change of ownership, Distributor will supply to Gigamon a list of all inventory of Products. Such list will constitute a notice to repurchase Product. Gigamon shall have thirty (30) days from receipt of such notice at Gigamon’s option, to repurchase Products upon terms mutually acceptable to both parties only when such Products are new, unused and in factory sealed-boxes and Distributor shall bear all shipping charges.

Upon receipt of returned inventory to Gigamon from Distributor, Gigamon shall issue a check for all returned Products to distributor within thirty (30) days.

Use its reasonable commercial efforts to market and sell the Products, to promote, display and demonstrate the Products in a manner which is consistent with the Product’s reputation for high quality.

Maintain one (1) staffed location which shall have an operational demonstration unit of the Product.

Provide pre- and post-sale support to Distributor’s customers by trained technical support personnel, trained by Gigamon in accordance with Section 5 below.

Maintain a sales force with competent personnel, who are expert in the specifications and features of the Product, sufficient to develop to Gigamon’s satisfaction the market potential for the sale of the Product in the Territory.

Maintain at all times minimum stocking levels of Products to meet current run rates.

Maintain complete and accurate records of the number of Products sold by Distributor, which shall be available for inspection by Gigamon upon 5 business days advance notice.

Provide complete and accurate Point of Sale (“POS”) reporting information on a monthly basis. Distributor shall provide POS reports to Gigamon no later than the 10th of each month for each prior month’s sales. Report shall contain products sold, quantity, location with address, serial number, end user information and date of sale.

Distributor shall invite Gigamon to sales and marketing activities and events that may become available to Distributor from time to time, such that Gigamon may participate in the sales and support of Products and provide information on Products to potential customers.

Distributor agrees that it will send, at its expense, personnel to Gigamon’s facility in Milpitas, CA or to a mutually agreed location to attend both initial and periodic update training regarding Marketing and Sales and Technical Support for Products as required by Gigamon.

Make available to Distributor certain new products and enhancements to existing products as may become available in a timely fashion.

Allow participation by Distributor in additional programs, such as sales and support opportunities, if and as they are made available by Gigamon.

Furnish sales, advertising, and promotional materials, specification sheets, and other collateral materials for Products, if any, in quantities and formats and at pricing to be determined by reasonable, mutual agreement of the parties under the circumstances.

Gigamon reserves the right at all times to vary, change or limit the amount or duration of credit to be allowed to Distributor. Distributor further agrees not to make any deduction of any kind from any payments to Gigamon except as may be preauthorized in writing by an authorized officer of Gigamon in his of her sole discretion for set-off for returned Product.

At Gigamon’s request and with reasonable notice, Gigamon may inspect, for quality control purposes, any products sold by Distributor which incorporate the Products. Distributor shall ensure that each Product shall bear the same trademarks, logos, copyright notices and proprietary legends as the Product which Distributor receives from Gigamon, and Distributor shall not remove such notice or alter or augment it.

Gigamon represents and warrants to Distributor that Gigamon is the exclusive owner of all and trademarks and trade names (the Trademarks”) relating to the Products “Trademarks” listed on Exhibit A. Subject to the terms and conditions of this Agreement, Gigamon grants Distributor a non-exclusive, non-transferable license to use the Trademarks in the Territory solely in the connection with the promotion and sale of Products. All sales and promotional materials that include the Trademarks shall be subject to advance review and approval by Gigamon. Distributor shall acquire no propriety or other rights with respect to such Trademarks. Distributor shall immediately cease use of the Trademarks upon termination of this Agreement. All goodwill associated with Distributor’s use of the Trademarks is assigned to Gigamon. Distributor shall not register the Trademark any jurisdiction. Distributor shall not register or use any company name, in any jurisdiction, which uses the Gigamon name or the Trademark.

Gigamon shall indemnify Distributor and/or any customer of Distributor against all damages, costs and expenses (including attorney’s fees) finally awarded as a result of the infringement of patents, trademarks or copyrights by Gigamon’s Products in the physical state in which they are sold and shipped by Gigamon. Distributor shall notify Gigamon of the commencement of any claim. Gigamon shall have the sole right to control the defense and negotiation of such claims, and Distributor shall fully cooperate with Gigamon in defense of such claims. Gigamon’s indemnification expressly excludes Products which have been altered, modified or repaired by other than a Gigamon-authorized representative, by Products operated in a manner other than as prescribed by Gigamon, or by combination, uses, methods or processes in which Products are used. Gigamon’s maximum liability under this indemnification shall not be greater than the amounts paid by Distributor to Gigamon for the Product units at issue.

Distributor shall defend, indemnify and hold Gigamon harmless from any claims, including reasonable costs and attorneys’ fees that arise from the act, neglect or omission of Distributor in the modification, use or distribution of the Products by Distributor, or Distributor’s breach of any provision of this Agreement, or any infringement by the resultant product or equipment when a Product is combined with, installed in, or operated in connection with any other product or equipment.

Gigamon warrants to Distributor that the Products will be free from defects in materials and workmanship under normal use for a period of 1 year. Warranty includes 1st year Maintenance. Warranty period to commence upon shipment from the Distributer. All ship dates by serial number reported each month in Point of Sale Report.

EXCEPT AS STATED ABOVE, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER RIGHTS OR REMEDIES. IN NO EVENT WILL GIGAMON or DISTRIBUTOR BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES AND DAMAGES FOR LOST DATA OR PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GIGAMON’S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE AMOUNTS PAID BY DISTRIBUTOR FOR THE PRODUCTS.

ALL CLAIMS OF ANY TYPE BY PURCHASER AGAINST GIGAMON MUST BE BROUGHT WITHIN THE APPLICABLE STATUTE OF LIMITATIONS OR BE FOREVER BARRED.

Restrictive Covenants Except as required in the performance of its duties, Distributor shall never use or disclose any of Gigamon’s confidential information, and upon termination of this Agreement, Distributor shall return to Gigamon all documents, copies, electronic media, and any other repositories containing confidential information. As used herein, confidential information shall include all such items provided that are clearly and conspicuously marked as “CONFIDENTIAL” when first received by Distributor and provided further that their substance (a) was not in the public domain at the time of receipt (b) was not known to Distributor at the time of receipt and (c) is not under a court order (or similar process) not to be disclosed. The parties agree that monetary damages shall be insufficient to fully compensate Gigamon for its losses if Distributor violates the covenants of this section. In addition to seeking monetary damages, Gigamon shall be entitled to enjoin Distributor from violating these covenants.

This Agreement shall commence on the Effective Date and continue for a period of one year. Contract will auto renew each one year period after initial term unless cancelled by either party in writing sixty (60) days prior to any contract anniversary.

Gigamon grants to Distributor non-exclusive distribution rights for all territories stated in Exhibit B (the “Territory”). The terms and conditions of each country or territory will be negotiated and agreed to by both parties and stated within Exhibits and/or Addendums to this Agreement.

Either party may terminate this Agreement upon a breach of any terms or conditions of this Agreement if the breaching party fails to cure such breach within thirty (30) days after receipt of written notice from non-breaching party of its intent to terminate this Agreement.

Termination of this Agreement for any reason shall not relieve Distributor of its obligations to make full payment to Gigamon for any and all amounts that are owed by Distributor to Gigamon. Termination shall be in addition to any other remedies available under law or equity.

All provisions of this Agreement which by their sense and context are intended to survive termination shall so survive.

All notices, including notices of address changes, required or permitted to be given by either party under this Agreement shall be sent by registered or certified mail or by reputable overnight commercial delivery to the address specified herein by each party.

Nothing herein shall be construed as constituting a partnership, joint venture or employer-employee relationship between the parties hereto and Distributor shall not hold itself out as such. Distributor shall have no authority to act on behalf of Gigamon.

This Agreement merges all prior written and oral communications regarding the Products and sets forth the entire agreement of the parties. This Agreement may not be modified except by a written instrument duly executed by all parties hereto.

This Agreement shall be governed and interpreted in accordance with the laws of the State of California.

If any provision of this Agreement is ruled invalid under any law, it shall be deemed modified or omitted to the extent necessary, and the remainder of this Agreement shall be enforced to the maximum extent permitted by applicable law.

Distributor may not assign its rights or obligations under this Agreement without the prior written consent of Gigamon.

Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision.

Neither party shall be deemed in default or otherwise liable for delay in or failure of it’s performance under this Agreement (other than payment obligations) by reason of any active of God, fire, natural disaster, accident, riot, act of government, strike or labor dispute, failure of transportation or communication, or any other cause beyond the reasonable control of such party.

If either party fails to pay the other party any amount which is owed hereunder, such party shall pay to the other party all reasonable costs and expenses incurred by such other party in enforcing its rights under this Agreement, including without limitation, costs and attorneys’ fees.

Distributor acknowledges and understands that the Products contain technical data and is therefore subject to United States export control regulations. In the event the Territory includes geographic areas outside the United States, Distributor shall be responsible for complying with applicable laws and regulations regarding export, and shall obtain at its expense any and all necessary licenses, permits and regulatory approvals required by any and all governmental authorities and agencies having jurisdiction over export and re-export of technical data.

North America: Distributor will receive [***] it sells to its reseller customers in North America.

Latin America: Distributor will be eligible to receive [***] it sells to its reseller customers in Latin America.

Rebate: Gigamon will pay Distributor a rebate equal to [***] (For the avoidance of doubt, no rebate is payable on Authorized Products sold by Distributor to its reseller customers outside of North America.)

Break Even Amount: If Distributor sells Authorized Products (exclusive of Maintenance and Support) to a reseller customer in the Territory and the Reseller Price is less than the Distributor Price, then Gigamon will pay Distributor [***].

Distributor will receive [***] it sells to its reseller customers in the Territory.

When Distributor receives purchase orders for renewals of Support and Maintenance, Distributor will forward such purchase orders to Gigamon.