EXHIBIT 10.28
SERVICES AGREEMENT
THIS SERVICES AGREEMENT is made between TRINET Employee Group. In ("TRINET"), a
California corporation, and NETGEAR, Inc. ("NETGEAR"), a Delaware corporation,
as of the Effective Date (hereinafter defined).
RECITALS
WHEREAS, NETGEAR is a subsidiary of Nortel Networks Corporation ("Nortel"),
which has been formed to operate a certain portion of Nortel's business after
Nortel's transfer of certain assets to NETGEAR in accordance with the terms of a
Contribution Agreement to be entered into between NETGEAR and Nortel;
WHEREAS, in connection with NETGEAR's operation of such business, NETGEAR shall
employ NETGEAR Employees (hereinafter defined);
WHEREAS, in connection with NETGEAR's employment of NETGEAR Employees, it wishes
to engage TRINET to provide the Services (hereinafter defined);
WHEREAS, NETGEAR is in the process of selling its securities to parties other
than Nortel (specifically excluding any issuance of securities in NETGEAR or any
right to acquire securities in NETGEAR granted to employees, vendors or
consultants, the "Private Placement"); and
WHEREAS, the parties' entry into this Agreement is conditioned upon the closing
of the aforementioned Private Placement and the effective time of this Agreement
shall be 12:00 a.m. on the day following the closing of the Private Placement;
NOW, THEREFORE, In consideration of the foregoing and the mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. SCOPE.
In consideration of NETGEAR's payment of Service Fees, TRINET agrees to provide
to NETGEAR the employment related services set forth in this Agreement and in
Exhibit A and the Schedule of Due Dates And Special Fees ("Services"), which are
incorporated herein by reference, as may be amended from time to time in writing
by both parties. During the Term, TRINET and NETGEAR may agree to additional
Services, and the Service Fees applicable thereto, or to change the Services or
the Service Fees. Such changes must be made in writing and signed by both TRINET
and NETGEAR.
II. DEFINITIONS.
A. "ADA" shall mean the Americans with Disabilities Act.
B. "Affiliate" shall mean, with respect to any entity, any other
entity, which directly or indirectly controls, or is under
common control with, or is controlled by, such entity. As used
in this definition, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of management or policies of the subject entity
(whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise).
C. "Agreement" shall mean this Services Agreement entered into by
NETGEAR and TRINET as of the Effective Date.
D. "Benefit Plans" shall mean (i) employee benefit plans (within
the meaning of Section 3(8) of Title I of ERISA) that are
written and covered or qualified under the Code, ERISA or
other applicable Regulation, whether funded or unfunded, which
are established, contributed to, sponsored or maintained by an
employer, including all welfare, pension, profit sharing,
retirement, stock purchase, stock option, stock bonus,
severance or deferred compensation plans and (ii) any other
plans, funds, programs, policies, arrangements, practices,
customs and understandings that provide benefits of economic
value to employees, other than Compensation.
E. "Claim" shall mean any arbitration, action, litigation, suit,
charge, investigation, audit, claim, demand, assessment or
other proceeding of or before any court, arbitrator or
governmental or regulatory official, body or authority.
F. "Claim Notice" shall mean a party's notice to the other of the
existence of a claim or demand, which is being asserted or
sought to be collected from an NETGEAR Indemnitee or TRINET
Indemnitee by a third party, and specifying the nature of such
claim or demand and the amount or the estimated amount thereof
to the extent then feasible (which estimate shall not be
conclusive of the final amount of such claim or demand).
G. "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985.
H. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
I. "Compensation" shall mean remuneration, such as wages, salary,
bonuses and commissions, paid relatively concurrent with and
in consideration for an employee's services.
J. "Confidential Information" shall have the meaning ascribed to
it in Section VII. A.
K. "Dispute" shall mean a claim, controversy or dispute of any
kind or nature whatsoever that arises between TRINET and
NETGEAR with respect to this Agreement.
L. "Effective Date" shall mean the effective date of this
Agreement, which shall be 12:00 a.m. on the day following the
closing of the Private Placement.
M. "NETGEAR" shall have the meaning ascribed to it in the
preamble of this Agreement.
N. "NETGEAR Benefit Plans" shall mean Benefit Plans adopted by
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NETGEAR for the benefit of NETGEAR Employees (excluding TRINET
Benefit Plans).
O. "NETGEAR Contract Coordinator" shall mean that individual
designated as such in Section XV. A. (or such other individual
as NETGEAR may specify in a notice duly given to TRINET
pursuant to Section XV. A.) to whom TRINET shall address all
questions regarding Services and submit all reports and
Invoices required under this Agreement.
P. "NETGEAR Employee" shall mean any individual jointly employed
by NETGEAR and TRINET with respect to whom Services are
supplied.
Q. "NETGEAR Employment Policies" shall mean NETGEAR
employment-related policies, programs, procedures or practices
applicable to NETGEAR Employees, such as, but not limited to,
policies related to holidays, attendance, performance
evaluation, and business expense and travel reimbursement
(excluding TRINET Employment Policies).
R. "NETGEAR Indemnitee" shall mean NETGEAR, its successors,
assigns and Affiliates, and their directors and officers,
individually and collectively.
S. "NETGEAR Managers" shall mean NETGEAR Employees designated as
managers by NETGEAR.
T. "NETGEAR's Knowledge" shall mean the knowledge of the NETGEAR
Contract Coordinator.
U. "Electronic Funds Transfer Agreement" shall mean that
agreement entered into by TRINET and NETGEAR as of the
Effective Date that is designated as such and is incorporated
herein by reference.
V. "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
W. "FAR" shall mean Federal Acquisition Regulation.
X. "HIPAA" shall mean the Health Insurance Portability and
Accountability Act of 1996.
Y. "Human Resources Manager" shall mean that qualified Human
Resources professional designated by TRINET to perform those
Services assigned to Human Resources Manager under this
Agreement and to serve as NETGEAR's primary contact with
respect to Services. NETGEAR shall submit all reports and
records required under this Agreement to the Human Resources
Manager or such Individual designated by the Human Resources
Manager.
Z. "Inventions" shall mean any and all inventions, including but
not limited to, improvements, designs, original works of
authorship, formulas, processes, compositions of matter,
computer software programs, databases, mask works and trade
secrets.
AA. "Losses" shall mean liabilities, losses, damages or costs
(including, without limitation, penalties, fines, costs,
attorney fees, liability to third parties and amounts agreed
upon in settlement).
BB. "Managers" shall mean the NETGEAR Contract Coordinator and the
Human Resources Manager.
CC. "Nortel" shall mean Nortel Networks Corporation.
DD. "Notice" shall mean a party's notice to the other of the
existence of a Dispute.
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EE. "Notice Period" shall mean the fifteen (15) calendar days from
a party's receipt of the Claim Notice.
FF. "Private Placement" shall have the meaning described to it in
the Recitals to this Agreement.
GG. "Prospective NETGEAR Employee" shall mean those individuals
who accept and satisfy the conditions of those written offers
made by NETGEAR for employment with NETGEAR and TRINET during
the Term.
HH. "Qualifying Event" shall mean an event which triggers
continued health care coverage eligibility under COBRA for
NETGEAR Employees or their eligible dependents, including
death, termination or reduction of hours, divorce or legal
separation, Medicare entitlement, dependent child changing
statue, or bankruptcy of NETGEAR.
II. "Regulation" shall mean law, ordinance or governmental or
regulatory rule, regulation or requirement.
JJ. "Service Fees" shall mean those rates or fees for Services set
forth in Exhibit A and the Schedule of Due Dates and Special
Fees.
KK. "Services" shall have the meaning ascribed to it in Section I.
LL. "Term" shall have the meaning ascribed to it in Section IV.A.
MM. "TRINET" shall have the meaning ascribed to it in the preamble
to this Agreement.
NN. "TRINET Benefit Plans" shall mean those Benefit Plans included
in the Services.
OO. "TRINET Corporate Employee" shall mean a TRINET Worker who is
an employee solely of TRINET.
PP. "TRINET Employee" shall mean any TRINET Corporate Employee or
an employee of TRINET and an entity (other than NETGEAR) to
which TRINET supplies services similar to the Services.
QQ. "TRINET Employment Policies" shall mean those TRINET
employment related policies, programs, procedures or practices
applicable to NETGEAR Employees under this Agreement, such as,
but not limited to, policies related to disciplinary action,
termination, safety, hiring, and leaves of absence.
RR. "TRINET Indemnitee" shall mean TRINET, its successors, assigns
and Affiliates, and their directors and officers, individually
and collectively.
SS. "TRINET'S Knowledge" shall mean the knowledge of the Human
Resources Manager or TRINET'S General Counsel.
TT. "TRINET Systems" shall mean any software or systems used by
TRINET or TRINET Workers in the supply of Services or
performance of this Agreement in any way.
UU. "TRINET Workers" shall mean all employees, agents (including,
without limitation, employees of such agents) and
sub-contractors (including, without limitation, employees of
such sub-contractors) of TRINET who supply Services, but
excluding any NETGEAR Employees.
VV. "WARN" shall mean the Worker Adjustment and Retraining
Notification Act.
III. FEES AND PAYMENTS.
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A. In consideration of the Services, NETGEAR shall pay TRINET the
Service Fees. NETGEAR agrees to pay all Invoices for these
fees through electronic funds transfer pursuant to the
Electronic Funds Transfer Agreement. NETGEAR acknowledges its
obligation to sign the Electronic Funds Transfer Agreement as
a condition precedent to entering into this Agreement.
B. A late payment charge of one (1) percent of the unpaid balance
of the applicable invoice, plus any additional costs directly
incurred by TRINET, shall be applied if insufficient funds
are available in NETGEAR's designated account on the date of
the electronic funds transfer. The minimum late payment charge
is One Hundred Dollars ($100). Such unpaid balance shall also
be subject to a periodic charge of one and one half percent
(1 1/2%) percent per calendar month, beginning with the next
full calendar month, until paid. Such late payment charges
shall not be applicable to amounts in dispute until such time
as a final determination is made under Section VIII. that
NETGEAR owes such amount. If such fund insufficiency is ten
percent (10%) or more, and the amount or the default of the
payment is not in dispute, TRINET shall have the right, at its
option, to suspend performance of the Services on or after the
tenth business day Allowing its written notice to NETGEAR of
its intent to do so, and such suspension may, at TRINET's
discretion, remain in effect until full payment has been made
of any amount not in dispute and past due.
C. The Service Fees shall remain in effect for the Term. TRINET
shall give NETGEAR notice at least ninety (90) days before the
anniversary of the Effective Date of its intention to
increase these Service Fees. Any revised fees or rates
mutually agreed upon by the parties shall be set forth in an
amendment to this Agreement.
D. TRINET shall invoice NETGEAR on each regular or special
payroll for the applicable Service Fees.
E. Contribution rates for payroll taxes, workers compensation,
and TRINET Benefit Plans are subject to change retroactively
or without notice by regulators or Benefit Plan providers. In
such cases, TRINET shall notify NETGEAR as soon as TRINET
learns of such changes, and a commensurate change shall be
made in the Service Fees on the effective date of such
changes. Upon NETGEAR's request, TRINET shall provide
documentation substantiating such contribution rate changes.
IV. TERM AND TERMINATION OF AGREEMENT.
A. The term of this Agreement is effective on the Effective Date
and shall automatically renew on the anniversary date(s) of
the Effective Date unless (i) either party gives sixty (60)
calendar days written notice prior
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to such anniversary date of its intention to terminate on the
last day of the calendar month in which such anniversary data
occurs or (ii) either party has terminated in accordance with
Section IV. B., Section XIII or Section XIV ("Term").
B. Upon ninety (90) calendar days prior written notice, either
party may terminate this Agreement for its convenience as of
the last day of the calendar month in which the ninetieth day
following such notice occurs, without obligation or liability
of any nature arising out of such termination except, on the
part of NETGEAR, to pay TRINET applicable Service Fees for the
portion of Services supplied prior to the effective date of
termination specified in such notice. If so requested in such
written notice of termination, TRINET shall complete any
Services specified in the notice, and the terms of this
Agreement shall continue to govern such Services; otherwise,
TRINET shall use its beat efforts to conclude the Services and
minimize any Service Fees prior to the effective date of
termination, TRINET may charge a one time fee of One Hundred
Dollars ($100) per NETGEAR Employee if NETGEAR fails to give
ninety (90) days prior written notice of the termination of
thin Agreement for its convenience.
V. COVENANTS OF THE PARTIES.
A. TRINET covenants as follows:
1. In connection with the Services, TRINET shall obtain,
create and maintain such records with respect to
NETGEAR Employees as required by, and in accordance
with, applicable Regulations and/or as necessary to
satisfy TRINET's obligations under this Agreement.
Such records shall be deemed to be Confidential
Information and copies shall be provided to NETGEAR
as set forth in Section VII. A.
2. TRINET shall provide, within thirty (30) days
following the end of each calendar year, a
certification that the representations contained in
Section VI. A. hereof are true and correct in all
material respects as of the date of such annual
certification with the same effect as if such
representations were made on and as of such date.
3. TRINET shall provide to NETGEAR a minimum of thirty
(30) calendar days notice prior to the implementation
of any modification to or addition or elimination of
any TRINET Benefit Plans or TRINET Employment
Policies. Such notice shall include a copy of
relevant documents reflecting such changes.
4. Upon giving one business day's prior notice, NETGEAR
and any of its authorized representatives shall have
the right during ordinary
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business hours to visit and inspect TRINET'S
facilities and/or any systems or processes pertaining
to the Services, TRINET shall provide all reasonable
facilities and assistance for the safety and
convenience of such visitors and inspectors during
their visits, including making personnel engaged,
whether directly or indirectly, in the supply of
Services available for consultation at all reasonable
times. Every such visitor and inspector present at
any facility of TRINET or other relevant site shall
comply at all times with all applicable safety and
security rules and regulations established by TRINET.
5. TRINET, when in or upon the premises of NETGEAR,
shall obey all workplace health, safety and security
rules and regulations regarding the conduct of
NETGEAR Employees and any additional rules and
regulations for non-employees, including without
limitation, security rules and regulations.
6. Services supplied under this Agreement shall be
supplied in a professional and highly skilled manner
and to standards not less than those generally
accepted in the industry and shall conform to the
specifications or other requirements of this
Agreement.
7. If it is necessary for TRINET to have access (either
on-site or remotely) to, and use of, any NETGEAR
computer systems in supplying Services, TRINET shall
limit such access and use solely to the supply of
Services and shall not access or attempt to access
any computer systems, files, software or services
other than those required for the supply of Services.
TRINET shall limit such access to those TRINET
Workers with an express requirement to have such
access in connection with the supply of Services,
shall advise NETGEAR in writing of the name of each
such TRINET Worker who shall be granted such access
and shall strictly follow all security rules and
procedures of NETGEAR for restricting access to its
computer systems. All user identification numbers and
passwords disclosed to TRINET and any information
obtained by TRINET as a result of TRINET'S access to,
and use of, NETGEAR's computer systems shall be
deemed to be, and treated as, Confidential
Information. TRINET shall cooperate in the
investigation of any apparent unauthorized access to
any NETGEAR computer system. The requirements of this
Section V. A. 7. shall apply equally to any access
and use by TRINET of NETGEAR's electronic mail
system, NETGEAR's electronic switched network, either
directly or via a direct inward service access (DISA)
feature or of any other property, equipment or
service of NETGEAR. TRINET shall be liable for any
Losses arising from the failure of TRINET Workers to
comply with provisions of this Section.
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8. TRINET shall perform background checks on each TRINET
Corporate Employee prior to such TRINET Corporate
Employee's assignment to supply Services. Such
background checks shall be performed in accordance
with current industry standards, but in any event
shall include at a minimum verification of such
TRINET Corporate Employee's employment and
educational history and a felony criminal conviction
record check. TRINET shall not assign any TRINET
Corporate Employee to supply Services who has been
found to have a felony criminal conviction which is
relevant to the type of Services to be supplied
without the express written consent of NETGEAR.
TRINET shall provide information to NETGEAR upon
request regarding its procedure for performing such
background checks.
9. TRINET shall comply with all Regulations applicable
to Services, including, without limitation, to the
extent applicable, the following Regulations: Title
VII of the Civil Rights Act of 1964, the ADA, Family
and Medical Leave Act, Age Discrimination in
Employment Act, Fair Labor Standards Act, National
Labor Relations Act, Immigration Reform and Control
Act, the Uniformed Services Employment and
Reemployment Rights Act, ERISA, Fair Credit Reporting
Act, the Code, COBRA, Equal Pay Act, Personal
Responsibility and Work Opportunity Reconciliation
Act, HIPPA, Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, Toxic
Substances Control Act, Occupational Safety and
Health Act of 1970, Resource Conservation and
Recovery Act of 1976, Clean Air Act, Clean Water Act,
Vietnam Era Veterans Readjustment Assistance Act
(including, without limitation, the affirmative
action clause as set forth in 41 CFR 80-250.4),
Rehabilitation Act of 1973 (including, without
limitation, the equal opportunity clause a set forth
in 41 CFR 60-7415(a)), Executive Order 11246
(including, without limitation, the equal opportunity
clause as set forth in 41 CFR 60-1.4 (a)), and the
clauses set forth in FAR (subject to "Contractor,"
"Subcontractor" and "Contract" used in such clauses
meaning NETGEAR, TRINET and this Agreement,
respectively) 52.219-8, 52.219-9, 52.219-18,
52.220-8, 52.220-4, 52.222-1, 52.222-4, 52.222-20,
52.222-21, 52.222-26 (subparagraphs b(1)-b(11)),
52.222-35,52.222-36 and 52.222-37 (provided, however,
if Services are a "commercial item", as defined in
the clause set forth in FAR 52.202-1, then only the
clauses set forth in the following FARs shall be
deemed applicable: 52.222-26, 52.222-35 and
52.222-36), which clauses are incorporated by
reference, with the same force and effect as if they
were given in full text. TRINET shall be liable for
any Losses arising from the failure of TRINET Workers
to comply with provisions of this Section.
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10. Except as otherwise provided in this Section V.A.10.,
TRINET shall employ and commence supplying Services
with respect to Prospective Employee upon the
employment commencement date set forth in the
pre-hire worksheet provided by NETGEAR to TRINET;
provided, however, that, if TRINET receives such
pre-hire worksheet more than seventy-two (72) hours
after such employment commencement date, such
employment commencement date shall be the date TRINET
receives such worksheet. TRINET shall pay
Compensation to NETGEAR Employees at the rate
specified by NETGEAR, increased by any legally
required premium and reduced by any applicable tax
withholdings or authorized deductions, as determined
by TRINET as part of the Services. Notwithstanding
the foregoing, TRINET shall have the right to refuse
to employ a Prospective NETGEAR Employee upon
reasonable notice to, but without the consent of,
NETGEAR if such employment is not legally permitted,
or for other lawful reasons upon reasonable notice
to, and consent by, NETGEAR. TRINET shall not employ
or supply Services to any individual while such
individual is an independent contractor with NETGEAR
or supplies services to NETGEAR through a temporary
or contract staffing firm.
11. TRINET shall terminate the employment of any NETGEAR
Employee, upon receipt of notice from NETGEAR to take
such action for a reason that is not unlawful,
Notwithstanding the foregoing. TRINET shall have the
right to (i) terminate the employment of an NETGEAR
Employee upon reasonable notice to, but without the
consent of, NETGEAR if the continued employment of
such employee is not legally permitted, or for other
lawful reasons upon reasonable notice to, and consent
by, NETGEAR and (ii) remove any NETGEAR Employee from
an NETGEAR worksite upon reasonable notice to, but
without the consent of NETGEAR, if such NETGEAR
Employee is deemed by TRINET to be exposed to an
imminent safety hazard.
12. TRINET agrees to take all actions, or to refrain from
taking any action, as may be permitted hereunder, in
each case as may be deemed necessary or advisable by
NETGEAR, to ensure that NETGEAR Employees are
eligible to receive incentive stock options under an
incentive stock option plan adopted by NETGEAR, if
any, under the Code or other applicable Regulations.
As such, TRINET agrees that it shall not grant stock
options to any NETGEAR Employee and acknowledges that
any NETGEAR Employee shall be an employee of NETGEAR
for the purpose of determining such NETGEAR
Employee's eligibility for incentive stock options
under any incentive stock option plan adopted by
NETGEAR.
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13. TRINET shall notify NETGEAR of any Claim or union
organization activity, pending or threatened,
relating to NETGEAR Employees within three (3)
business days immediately following TRINET's
knowledge of such Claim or organizing activity.
14. TRINET certifies that each invoice issued by it shall
be based solely on Services actually supplied by
TRINET or TRINET Workers and that no part or portion
of any invoice represents or is attributable to any
payment, gift, gratuity or other thing of value given
to any person, organization, entity or governmental
body (except for those payments required by
Regulation), other than as payments made to TRINET
Workers for Services or to NETGEAR Employees pursuant
to this Agreement. NETGEAR reserves the right to
audit all invoices submitted to it and TRINET shall
afford NETGEAR reasonable access to all supporting
documentation to enable NETGEAR to do so.
B. NETGEAR covenants as follows:
1. Upon request by TRINET, NETGEAR shall provide to
TRINET such records and/or reports as are necessary
for TRINET'S performance of Services. Such records
and/or reports shall (i) contain information as
specified by TRINET, (ii) be delivered in a format
and on a schedule to be agreed upon between TRINET
and NETGEAR, (iii) be accurate and (iv) be subject to
verification and audit by TRINET.
2. NETGEAR shall provide within thirty (30) days of the
end of each calendar year a certification that the
representations contained Section VI.B.1. and 2.
hereof are true and correct in all material respects
as of the date of such annual certification with the
same effect as if such representations were made on
and as of such date.
3. Upon giving one business day's prior notice, TRINET
and any of its authorized representatives shall have
the right during ordinary business hours to visit and
inspect NETGEAR's facilities and/or any systems or
processes pertaining to the Services, including, but
not limited to, for the purpose of conducting a
safety inspection of NETGEAR's premises and
equipment. NETGEAR shall provide all reasonable
facilities and assistance for the safety and
convenience of such visitors and inspectors during
their visits, including making NETGEAR Employees
available for consultation at all reasonable times.
Every visitor and inspector present at any facility
of NETGEAR or other relevant site shall comply at all
times with all applicable safety and security rules
and regulations.
4. NETGEAR, when in or upon the premises of TRINET,
shall obey
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all workplace health, safety and security rules and
regulations regarding the conduct of TRINET Corporate
Employees and any additional rules and regulations
for non-employees, including without limitation,
security rules and regulations, security rules and
regulations.
5. NETGEAR shall provide the daily supervision,
direction and control of NETGEAR Employees with
respect to the services which NETGEAR Employees
provide to NETGEAR. In providing such supervision,
direction and control, NETGEAR agrees to follow
TRINET Employment Policies, to the extent that
NETGEAR receives reasonable notice of such TRINET
Employment Policies, including the notice required in
Section V. A. 3., and such TRINET Employment Policies
are consistent with this Agreement.
6. Except with respect to those NETGEAR Employees
employed by an NETGEAR Affiliate immediately
preceding the commencement of Services to such
employees under this Agreement, NETGEAR shall verify
a Prospective NETGEAR Employee's eligibility for
employment by conducting an appropriate
Investigation, as determined by NETGEAR, of such
Prospective Employee's job related background,
including, without limitation! skills, education and
employment history; provided, however, that nothing
in this Section V, B. 6. shall require NETGEAR to
engage in any activity included in Services or
relieve TRINET of its obligations under this
Agreement.
7. NETGEAR shall identify licensing requirements
applicable to NETGEAR Employees in relation to the
services which they provide to NETGEAR and shall
ensure compliance with applicable licensing
requirements; provided, however, that nothing in this
Section V, B 7, shall require NETGEAR to engage in
any activity included in Services or relieve TRINET
of its obligations under this Agreement,
8. NETGEAR shall ensure that all NETGEAR Benefit Plans
comply with applicable provisions of ERISA, the Code
and any other applicable Regulations and are operated
in accordance with their terms and in compliance with
all applicable Regulations, and shall provide TRINET
with appropriate documentation supporting any NETGEAR
Employee's authorization for a wage deduction and the
amount of such wage deduction with respect to NETGEAR
Benefit Plans.
9. With respect to any NETGEAR Employee whose employment
is voluntarily terminated during the Term, and who
provides NETGEAR with at least seventy-two (72) hours
notice of such termination, NETGEAR agrees to inform
TRINET of, and provide TRINET with required forms
relating to, such termination no
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later than seventy-two (72) hours prior to its
occurrence. Additionally, with respect to any NETGEAR
Employee whose employment is terminated during the
Term, NETGEAR agrees to reimburse TRINET for its
payment of any accrued, but unused, vacation to such
employee and for employer premiums due for coverage
under TRINET Benefit Plans through the end of the
calendar month in which such employment termination
occurs.
10. NETGEAR shall ensure that the facilities to which it
assigns NETGEAR Employees comply with requirements
applicable to such facilities under the ADA. NETGEAR
shall provide those reasonable accommodations
required by the ADA to any NETGEAR Employee or
applicant for employment with NETGEAR; provided,
however, that nothing in this Section V. B. 10. shall
require NETGEAR to engage in any activity included in
Services or relieve TRINET of its obligations under
this Agreement.
11. NETGEAR shall comply with all applicable requirements
of the WARN Act with respect to NETGEAR Employees if
an event which triggers WARN occurs during the Term;
provided, however, that, nothing in this section
shall relieve TRINET of its indemnification
obligations, as specified in Section XI. A. 3. if an
event which triggers WARN arises from TRINET8 default
under this Agreement or bankruptcy.
12. NETGEAR shall notify TRINET within three (3)
business days immediately following NETGEAR's
Knowledge of union organizing activity, pending or
threatened, among NETGEAR Employees. NETGEAR shall be
responsible for the formulation and implementation of
a response, if any, to such union organizing
activity; provided however, that nothing in this
Section V. B. 12, relieves TRINET of its obligations
under this Agreement,
13. NETGEAR shall pay TRINET a placement fee of Twenty
Five Thousand Dollars ($25,000) if, during the Term,
NETGEAR hires any TRINET Corporate Employee who holds
a position in field service or sales or management in
TRINET's Information Systems, Payroll or Benefits
functions or TRINET'S satellite offices and directly
sells or supplies Services to NETGEAR, and such hire
occurs within the one hundred twenty (120) day period
immediately following the termination of such
individual's employment as a TRINET Corporate
Employee; provided. however, that TRINET shall not be
entitled to a placement fee if TRINET consents in
writing to such employment
14. NETGEAR shall train NETGEAR Employees regarding the
safe performance of their work, including the use of
required personal
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protective equipment and handling or use of hazardous
materials, as applicable, and shall comply with
TRINET Employment Policies with respect to workplace
health and safety including, without limitation,
supplying required personal protective equipment to
NETGEAR Employees, following requirements in the
safety plan provided by TRINET to NETGEAR, and
posting notices as directed by TRINET; provided,
however, that nothing in this section V.B. 14 shall
require NETGEAR to engage in any activity included in
the Services or relieve TRINET of its obligations
under this Agreement.
15. NETGEAR shall notify TRINET of any Claim, pending or
threatened, relating to NETGEAR Employees within
three (3) business days immediately following
NETGEAR's Knowledge of such Claim.
16. NETGEAR shall provide continued health care coverage
for NETGEAR Employees and their eligible dependents
as required under COBRA only if such COBRA
requirement arises as a result of the termination of
this Agreement for a reason other than TRINET's
default under this Agreement or bankruptcy. If
NETGEAR fails to provide such continued health
coverage, NETGEAR shall pay TRINET a one-time fee of
Five Hundred Dollars ($500) per NETGEAR Employee who
elects to continue such coverage under COBRA in
consideration for TRINET providing such COBRA
coverage. Additionally, NETGEAR shall notify TRINET
of the occurrence of a Qualifying Event within ten
(10) calendar days immediately following NETGEAR's
receipt of notice of the occurrence of such
Qualifying Event so that TRINET can provide required
Services related to COBRA. NETGEAR shall provide any
continued coverage required under COBRA with respect
to NETGEAR Employees that arises from a Qualifying
Event which occurred prior to the Effective Date and
while such employee was employed by NETGEAR or an
NETGEAR Affiliate.
17. With respect to fulfillment of NETGEAR's obligations
under this Agreement, NETGEAR shall comply with all
applicable Regulations, including, without
limitation, to the extent applicable, the following:
Title VII of the Civil Rights Act of 1964, the ADA,
Family and Medical Leave Act, Age Discrimination in
Employment Act, Fair Labor Standards Act, National
Labor Relations Act, Immigration Reform and Control
Act, the Uniformed Services Employment and
Reemployment Rights Act, ERISA, Fair Credit Reporting
Act, the Code, COBRA, Equal Pay Act, Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980, Toxic Substances Control Act,
Occupational Safety and Health Act of 1970, Resource
Conservation and Recovery Act of 1976, Clean Air Act,
Clean Water Act, Vietnam
13
Era Veterans Readjustment Assistance Act (including,
without limitation, the affirmative action clause as
set forth in 41 CFR 60-250.4), Rehabilitation Act of
1978 (including, without limitation, the equal
opportunity clause opportunity clause as set forth in
41 CFR 60-741.5 (a)), and Executive Order 11246
(including, without limitation, the equal opportunity
clause as set forth in 41 CFR 60-1.4 (a)).
18. NETGEAR shall ensure that NETGEAR Employment Policies
comply with applicable Regulations, are operated in
accordance with their terms and in compliance with
all applicable Regulations and are not inconsistent
with TRINET Employment Policies. NETGEAR shall
provide TRINET with true and complete copies of
documents setting forth NETGEAR Employment Policies
in advance of their implementation and shall only
implement such NETGEAR Employment Policies upon
TRINET's consent which consent shall not be
unreasonably withheld.
VI. GENERAL WARRANTIES AND REPRESENTATIONS.
A. TRINET represents and warrants to NETGEAR that:
1. TRINET is duly authorized to enter into this
Agreement and able to perform its obligations under
this Agreement.
2. TRINET shall maintain in full force and effect such
insurance as required by applicable Regulations or
the term or this Agreement.
3. Any TRINET Systems shall (i) process date and time
related data without causing any processing
interruptions, abnormal terminations, or changes in
performance characteristics, and (ii) shall process
and manipulate all date and time related functions
correctly. Without limiting the generality of the
foregoing, such TRINET Systems Shall;
(a) correctly handle date and time related data
before, during and after January 1, 2000,
including but not limited to accepting date
and time input, providing date and time
output, and performing ongoing operations on
dates and times and portions of dates and
times including, but not limited to,
calculating, comparing and sequencing of
dates and times (in both forward and
backward operations spanning century
boundaries);
(b) correctly handle leap year calculations
including, but not limited to,
identification of leap years, interval
calculations (in both forward and backward
operations spanning century boundaries),
day-in-year calculations day-of-the-week
calculations, and week-of-the-year
calculations);
(c) correctly handle all two digit date and time
related input in a manner that resolves
ambiguity as to century in a
14
disclosed, defined and predetermined manner;
and
(d) correctly store, retrieve and provide output
of all date and time data in a manner that
is unambiguous as to century.
TRINET shall correct any failure of TRINET Systems or
Services to conform to the above warranties on an
emergency basis.
Any provisions of this Agreement that tend to limit
or eliminate the liability of TRINET shall have no
application with respect to the year 2000 compliance
warranty set out above.
4. With respect to TRINET Benefit Plans, (i) to TRINET's
Knowledge, no material written Claim is pending or
threatened that relates to any TRINET Benefit Plans,
(ii) TRINET has delivered to NETGEAR prior to the
Effective Date true, accurate and complete copies of
all plan documents, summary plan descriptions, and
other written materials providing the terms of all
TRINET Benefit Plans and (iii) the operation of
TRINET Benefit Plan is (and has been at all times
shall be) in compliance and conforms with their terms
and applicable provisions of ERISA, the code, HIPPA
and any other applicable Regulations. TRINET further
warrants and represent that the Services do not
include the participation of NETGEAR Employees in
TRINET Benefit Plans which are intended to be
qualified under Section 401(a) of the Code and exempt
from tax under Section 501(a) of the Code.
5. With respect to TRINET Employment Policies, (i)
TRINET has delivered to NETGEAR prior to Effective
Date true, accurate and complete copies of all TRINET
Employment Policies which are in effect as of the
Effective Date; (ii) all TRINET Employment Policies
are and shall be operated in accordance with their
terms and in compliance with all applicable
Regulations; and (iii) to TRINET's Knowledge no
material written Claim is pending or threatened which
relates to any TRINET Employment Policy.
6. TRINET is not a party to any collective bargaining
agreement with respect to, and no such agreement
determines the terms and conditions of employment of,
any TRINET Employee. Additionally, no collective
bargaining agent is certified as representative of
any TRINET Employee and no representation campaign is
now or is anticipated to be in progress with respect
to any TRINET Employee.
7. To TRINET's Knowledge, there are no pending or
threatened material Claims in writing relating to
TRINET's employment relationship or termination of
employment relationship with any TRINET Employee or
former TRINET Employee under
15
employment related Regulations, such as, without
limitation, Regulations governing wages and hours,
payment of Compensation, payment or withholding of
employment taxes, fair employment, labor relations,
health, safety or leave, or under the common law
with respect to wrongful termination, breach of
implied contract, negligent or intentional infliction
of emotional distress or causes of action of a
similar nature.
B. NETGEAR represents and warrants to TRINET that:
1. NETGEAR is duly authorized to enter into this
Agreement and able to perform its obligations under
this Agreement.
2. NETGEAR or its Affiliates shall maintain in full
force and effect such insurance as required under the
terms of this Agreement or by applicable Regulations,
except with respect to any required workers
compensation insurance for NETGEAR Employees, such
insurance being included in the services.
3. With respect to NETGEAR Employees, NETGEAR or its
Affiliates has paid in full, or shall pay in full
when due, all compensation, employment taxes,
benefits under Benefit plans of NETGEAR or its
Affiliates or other obligations which are owed to or
for such employees arising out of such employees'
employment or termination of employment with NETGEAR
or its Affiliates on or prior to the Effective Date.
4. To NETGEAR's Knowledge, with respect to NETGEAR
Employees, there are no material pending or
threatened Claims in writing relating to the
employment relationship or termination of employment
relationship between any NETGEAR Employee and NETGEAR
or its Affiliates under employment related
Regulations, such as, without limitation, Regulations
governing wages and hours, payment of Compensation,
payment or withholding of employment taxes, fair
employment, labor relations, health, safety, workers'
compensation or leave, or under the common law with
respect to wrongful termination, breach of implied
contract, negligent or intentional infliction of
emotional distress or causes of action of a similar
nature.
5. Neither NETGEAR nor NETGEAR's Affiliates are a party
to any collective bargaining agreement with respect
to, and no such agreement determines the terms and
conditions of employment of, any NETGEAR Employee
and no representation campaign is now or is
anticipated to be in progress with respect to any
NETGEAR Employee.
16
VII. CONFIDENTIAL INFORMATION, PUBLICITY AND INTELLECTUAL PROPERTY.
A. NETGEAR considers the following categories of information to
be confidential ("Confidential Information");
1. information relating to NETGEAR Employees including,
without limitation, such employees' Compensation,
perquisites, other terms and conditions of employment
and any personal information, which is disclosed to
or obtained or maintained by TRINET for any purpose
under this Agreement, including the negotiation,
execution or performance thereof; and
2. any financial and other proprietary information of
NETGEAR disclosed to TRINET in the course of its
performance of duties and obligations under this
Agreement.
TRINET agrees to utilize the same degree of care as TRINET
uses with respect to its own information of a similar nature
to not disclose Confidential Information to parties other than
TRINET Workers having a need to know in order to provide
Services. In the event that TRINET discloses such Confidential
Information to TRINET Workers, TRINET shall advise such TRINET
Workers of the confidential nature of such information and
direct them not to disclose such Confidential Information to
any other person.
Any Confidential Information shall be held in confidence by
TRINET and TRINET Workers and, if in written form, such
Confidential Information shall be returned to NETGEAR upon
NETGEAR's request and/or the termination of this Agreement;
provided, however, that the return of copies of such records
shall be permitted with respect to NETGEAR Employees. TRINET
shall not (i) use the Confidential Information for any purpose
other than the satisfaction of TRINET's obligations under this
Agreement or (ii) divulge the Confidential Information other
than to TRINET Workers with a bona fide need to know or as
otherwise required by Regulation. TRINET acknowledges that
monetary damages may not be adequate in the event of a default
of this Section by TRINET, and NETGEAR shall be entitled to
injunctive or other affirmative relief and/or to give notice
of default pursuant to section XIII. TRINET shall be liable
for any Losses arising from the failure of TRINET Workers, for
whatever reason, to comply with provisions of this Section.
Notwithstanding the above, TRINET shall not be bound by the
obligations of confidence set forth in this section with
respect to Confidential Information, or any part thereof,
which (a) was lawfully known or received by TRINET prior to
disclosure, as evidenced by its business records (b) was
lawfully in the public domain prior to its disclosure, or
becomes publicly available other than through a breach of
17
this Agreement or a breach of any confidentiality obligation
to NETGEAR in respect of such information (c) was rightfully
obtained by TRINET from third parties, provided that TRINET
had no reason to believe such third party, or any other party
from whom such third party receives information is in breach
of any confidentiality obligation to NETGEAR in respect of
such information (d) is independently developed by TRINET, as
evidenced by its business records or (e) is disclosed as
required by Regulation following TRINET's reasonable efforts
to provide notice to NETGEAR to allow it to seek protective or
other court orders.
B. TRINET shall not in any advertising, sales promotion
materials, press releases or any other publicity matters use
the name "NETGEAR Networks Inc.", "Northern Telecom", or
"NORTEL NETWORKS" or any variation thereof or language from
which the connection of such names may be implied, nor shall
TRINET disclose or advertise in any manner the nature of
Services supplied or the fact that it has entered into this
Agreement, unless NETGEAR, in its sole discretion, grants
TRINET prior written permission to do so.
C. TRINET acknowledges that NETGEAR may enter into an Employee
Invention Assignment and Confidentiality Agreement or a
similar type agreement with any NETGEAR Employee. Furthermore,
the parties acknowledge that any NETGEAR Employee shall be an
employee of NETGEAR for the purpose of establishing rights to
any and all Inventions made of conceived by such NETGEAR
Employee. NETGEAR and TRINET further acknowledge and agree
that all rights to any patent, patent application, copyright,
mask works, trade secrets, or intellectual property or any
interest in any Invention shall be unaffected by this
Agreement. Nothing about this Agreement shall create in TRINET
any such rights or interests in any Invention now or in the
future and, to the extent that such rights or interests are
otherwise created in TRINET, TRINET irrevocably assigns and
conveys any and all such rights and interests to NETGEAR.
D. NETGEAR agrees that the terms and conditions of this Agreement
are confidential and shall not be disclosed to a third party
without the written permission of TRINET unless such
disclosure is required by Regulation or legal process or
proceeding; provided, however, that NETGEAR shall not be
required to obtain the written permission of TRINET prior to
such disclosure to NETGEAR's Affiliates or, on a reasonable
need to know basis, to the external auditors, accountants,
legal counsel, tax advisors or investors of NETGEAR or its
Affiliates. Additionally, nothing in this Agreement shall
prevent NETGEAR from using any language included in this
Agreement in agreements between NETGEAR and other third
parties, whether or not such agreements relate to services
similar to the Services; provided, however, that NETGEAR shall
not disclose to such third parties an original or copy of this
Agreement and the Service Fees under this Agreement.
18
VIII. DISPUTE RESOLUTION.
In the event of a Dispute, the Managers shall try to resolve the Dispute
amicably and promptly. In the event that the Managers are unable to resolve the
Dispute within fifteen (15) business days of Notice, the parties shall use best
efforts to reconcile the Dispute through escalation of the Dispute to each
party's senior management. In the event that the Dispute is not resolved through
those escalation procedures within sixty (60) business days of the date of the
Notice, then the Dispute shall be referred to arbitration. If an arbitrator is
appointed pursuant to this Agreement, the parties shall confer in good faith
through their counsel, to attempt to agree upon a single arbitrator. If the
parties are unable to agree upon a person to act as an arbitrator or an
organization to appoint an arbitrator, then the parties shall each appoint an
arbitrator. Those two arbitrators shall each be charged with the responsibility
of selecting a third person. If the third person so selected is acceptable to
both parties, then the arbitration shall proceed as an arbitration before a
single arbitrator, with the person so selected acting as the arbitrator. His or
her decision on the issues shall be final and binding. In the event that the
parties are not satisfied with the single arbitrator so selected, then the
arbitration shall proceed before an arbitration panel of three arbitrators with
the person so selected acting as the Chair. The arbitrator or the arbitration
panel shall not be precluded by any applicable Regulation, to the extent legally
permissible, from attempting to mediate this dispute.
IX. INDEPENDENT CONTRACTOR.
TRINET and TRINET Workers shall supply Services as an independent contractor,
and nothing contained in this Agreement shall be construed to create or imply a
joint venture, partnership, principal-agent or employer/employee relationship
between the parties or between NETGEAR and TRINET Workers. TRINET and TRINET
Workers shall not take any action or permit any action to be taken on their
behalf which purports to be done in the name of or on behalf of NETGEAR except
as is required in their performance of Services.
X. INSURANCE.
A. TRINET shall have the following obligations:
1. TRINET shall keep in full force and effect at all
times during the Term, a comprehensive general
liability insurance policy with a minimum combined
single limit of One Million Dollars ($1,000,000)
including bodily injury, property damage, completed
operations, products liability, contractual
liability, and personal injury liability. TRINET
agrees to cause its insurance carrier to name NETGEAR
as an additional insured, consistent with the
indemnifications herein, on the policy providing such
coverage. TRINET shall provide NETGEAR with
certificate(s) of insurance evidencing such coverage
and providing for thirty (30) days' notice to NETGEAR
in the event of cancellation.
19
2. TRINET shall obtain and maintain in effect such
workers, compensation insurance and other employee
insurance coverages with respect to NETGEAR Employees
that employers are required by applicable Regulation
to provide to their employees. TRINET agrees to cause
its workers' compensation carrier to name NETGEAR as
an additional insured on TRINET's workers'
compensation insurance policy and to include in such
policy an endorsement which shall provide payment of
workers' compensation benefits on behalf of NETGEAR
if applicable Regulation requires that NETGEAR,
rather than or in addition to TRINET, pays such
workers' compensation benfits to NETGEAR Employees.
B. NETGEAR shall have the following obligations:
1. NETGEAR shall keep in full force and effect at all
times during the Term, comprehensive automobile
liability insurance covering all NETGEAR owned or
hired (and non-owned) vehicles with a minimum limit
of One Million Dollars ($1,000,000) per occurrence,
and providing uninsured motorist insurance with a
minimum combined single limit of Sixty Thousand
Dollars ($60,000). NETGEAR agrees to cause its
insurance carrier to name TRINET as an additional
insured on the policy providing such coverage.
NETGEAR shall provide TRINET with certificate(s) of
insurance evidencing such coverage and providing for
thirty (30) days notice to TRINET in the event of
cancellation.
2. NETGEAR shall keep in full force and effect at all
times during the Term, a comprehensive general
liability insurance policy with a minimum combined
single limit of one Million Dollars ($1,000,000)
including bodily injury, property damage, completed
operations, products liability, contractual
liability, and personal injury liability. NETGEAR
agrees to cause its insurance carrier to name TRINET
as an additional insured on the policy providing such
coverage with respect only to NETGEAR's operations.
NETGEAR shall provide TRINET with certificate(s) of
insurance evidencing such coverage and providing for
thirty (30) days' notice to TRINET in the event of
cancellation.
XI. INDEMNIFICATIONS.
A. From and after the Effective Date, TRINET shall indemnify and
hold harmless any NETGEAR Indemnitee from Losses suffered by
such NETGEAR Indemnitee resulting from, relating to or arising
out of:
1. Any Claim with respect to work-related injuries,
illnesses or disabilities of NETGEAR Employees during
the Term arising from
20
an allegation that NETGEAR is a third party
tortfeasor not entitled to the special immunity
afforded employers, whether special or general, under
applicable workers' compensation Regulations;
2. Any Claim alleging that an employment relationship
exists between NETGEAR and any TRINET Worker except
where NETGEAR has affirmatively entered into such
employment relationship as evidenced by a written
offer of employment, employment agreement or similar
written document;
3. Any misrepresentation, breach of warranty or
non-fulfillment of any agreement, obligation or
covenant of TRINET under this Agreement, or from any
misrepresentation in or omission from any written
statement, document or instrument furnished by TRINET
pursuant hereto or in connection with the
negotiation, execution or performance of this
Agreement, provided, however, that notwithstanding
the fact that TRINET may have disclosed certain
matters with respect to the representations and
warranties made in Section VI. A., TRINET shall
indemnify the NETGEAR Indemnitee, as required by this
Agreement, for any and any Losses incurred or
suffered by such NETGEAR Indemnitee that result from,
relate to or arise out of such disclosed matters;
4. Any services provided by TRINET to any entity other
than NETGEAR; and
5. Any negligent acts or omissions or willful misconduct
by TRINET or TRINET Workers related to this
Agreement.
B. NETGEAR's Indemnification Obligations
From and after the Effective Date, NETGEAR shall Indemnify and
hold harmless any TRINET Indemnitee from Losses suffered by
such TRINET Indemnitee resulting from, relating to or arising
out of:
1. Any Claim alleging that an employment relationship
exists between TRINET and any independent contractor
or personnel from a temporary or contract staffing
firm supplying services to NETGEAR which are
unrelated to this Agreement;
2. Any misrepresentation, breach of warranty or
nonfulfilment of any agreement, obligation or
covenant or NETGEAR under this Agreement, or from any
misrepresentation in or omission from any written
statement, document or instrument furnished by
NETGEAR pursuant hereto or in connection with the
negotiation, execution or performance of this
Agreement, provided, however, that notwithstanding
the fact that NETGEAR may have disclosed certain
matters with respect to the representations and
warranties made in Section VI. B., NETGEAR shall
indemnify the TRINET Indemnitee, as required by this
Agreement, for any and all Losses incurred or
suffered by such TRINET Indemnitee that result from,
relate to or arise out of such disclosed matters;
21
3. Any Claim relating to the employment or termination
of employment of an NETGEAR Employee By NETGEAR or an
NETGEAR Affiliate which exists or arose on or prior
to the Effective Date; and
4. Any negligent acts or omission or willful misconduct
by NETGEAR related to this Agreement.
C. If any claim or demand for which TRINET would be liable to an
NETGEAR Indemnitee is asserted against or sought to be
collected from an NETGEAR Indemnitee by a third party, NETGEAR
shall promptly deliver to TRINET a Claim Notice. The Claim
Notice may by be revised to include subsequent or additional
information or detail on the bases for the claim or demand.
TRINET shall have the Notice Period to deliver to NETGEAR a
notice stating (i) whether to not it disputes TRINET'S
liability to the NETGEAR Indemnitee with respect to such claim
or demand or the amount of such liability and (ii)
notwithstanding any such dispute, whether or not TRINET
desires, at the sole cost and expense of TRINET, to defend the
NETGEAR Indemnitee against such claim or demand.
1. If TRINET disputes liability with respect to such
claim or demand or the amount thereof (whether or not
TRINET desires to defend the NETGEAR Indemnitee
against such claim or demand), such dispute shall be
resolved in accordance with Section VIII. Pending the
resolution of any dispute of TRINET's liability with
respect to any claim or demand, such claim or demand
shall not be settled without the prior written
consent of NETGEAR.
2. If TRINET notifies NETGEAR within the Notice Period
that it desires to defend the NETGEAR Indemnitee
against such claim or demand then, except as
hereinafter provided, TRINET shall have the right to
defend the NETGEAR Indemnitee to a final conclusion
or prosecute to a final conclusion in such a manner
as to avoid any risk of the NETGEAR Indemnitee
becoming subject to liability for any other matter,
provided, however, TRINET, shall not, without the
prior written consent of NETGEAR, consent to the
entry of any judgment against the NETGEAR Indemnitee
or enter into any settlement that does not include,
as an unconditional term thereof, the giving by the
claimant or plaintiff to the NETGEAR Indemnitee of a
release, in form and substance satisfactory to
NETGEAR, from all liability in respect of such claim
or demand. If NETGEAR desires to participate in, but
not control, any such defense or settlement, it may
do so at its sole cost and expense. If, in the
reasonable opinion of NETGEAR, any such claim or
demand or resolution of any such claim or demand
involves an issue or matter that could have a
materially adverse effect on the business, assets or
other operations, properties or prospects of an
NETGEAR Indemnitee, then NETGEAR shall have the right
to
22
control the defense or settlement of any such claim
or demand and its reasonable costs and expenses shall
be included as part of the indemnification obligation
of TRINET; provided, however, that NETGEAR shall not
settle any such claim or demand without the prior
written consent of TRINET, which consent shall not be
unreasonably withheld. If NETGEAR should elect to
exercise such right, TRINET shall have the right to
participate in, but not control, the defense or
settlement of such claim or demands at the sole cost
and expense of TRINET.
3. If NETGEAR does not receive a notice within the
Notice Period from TRINET disputing TRINET'S
liability and/or the amount of the liability for a
claim or demand set forth in a Claim Notice, then the
following amount shall be conclusively deemed to be a
liability of TRINET; (a) if TRINET has not properly
elected to defend the NETGEAR Indemnitee against such
claim or demand and the NETGEAR Indemnitee (but none
of the NETGEAR Indemnitees shall have any obligation
to defend any such claim or demand) does not elect to
defend itself against such claim or demand, the
amount of such claim or demand, (b) if the NETGEAR
Indemnitee does elect to defend itself against such
claim or demand, that portion thereof as to which
such defense is unsuccessful or (c) if TRINET has
properly elected to defend the NETGEAR Indemnitee
against such claim or demand, that portion thereof as
to which such defense is unsuccessful. If NETGEAR
receives a notice within the Notice Period from
TRINET disputing TRINET'S liability and/or the amount
of the liability for a claim or demand set forth in a
Claim Notice and such dispute is not subsequently
withdrawn, then such dispute shall be resolved as
provided in Section VIII.
4. All claims or demands for indemnification by a TRINET
Indemnitee under this Agreement shall be asserted and
resolved under the procedures set forth above
substituting in the appropriate place "TRINET
Indemnitee" for "NETGEAR Indemnitee" and, "TRINET for
"NETGEAR" and "NETGEAR" for "TRINET".
5. The duty of parties to indemnify and hold harmless as
set forth in this Agreement shall extend beyond the
term of this Agreement for events occurring within
the Term.
XII. LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY PARTY (INCLUDING EITHER PARTY'S AFFILIATES, CONTRACTORS,
DIRECTORS, EMPLOYEES AND AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST
BUSINESS, LOST SAVINGS,
23
LOST DATA, AND LOST PROFITS, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN
CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
XIII. DEFAULT.
If either party defaults in performance of a material obligation under this
Agreement and such default shall continue for more than thirty (30) days after
written notice thereof is given to the party in default by the non-breaching
party, the non-breaching party shall be entitled to terminate this Agreement
immediately upon written notice.
XIV. BANKRUPTCY.
If TRINET shall be declared insolvent or bankrupt, or if any assignment of its
property shall be made for the benefit of creditors or otherwise, or if its
interest herein shall be levied upon under execution or seized by virtue of any
writ of any court, or if a petition is filed in any court to declare TRINET
bankrupt and not dismissed within sixty (60) days, or if a trustee in
bankruptcy, receiver or receiver-manager or similar officer is appointed for
TRINET or for any of TRINET's assets, then NETGEAR may, at its option, terminate
the Agreement without charge and shall thereupon be free from all liability
thereunder. The ability of NETGEAR to terminate in such instances shall be
subject to the applicable bankruptcy and insolvency statutes.
XV. GENERAL PROVISIONS.
A. All notices and consents required to be given or made by the
parties under this Agreement shall be sent to the addresses
set forth below or such other address as may be established by
notice hereunder, and shall be deemed received on the fourth
business day after deposit or when actually received,
whichever is sooner. Such notices or consents shall be
directed to:
For NETGEAR: NETGEAR, Inc.
4401 Great America Parkway
Santa Clara, CA 95052-8185
Attn: Rick Fabiano
For TRINET: Grag Hammond
TRINET
101 Callan Avenue
San Leandro, Ca 94577
B. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and permitted
assigns.
24
C. If any term, warranty, covenant, condition, or provision of
this Agreement is held to be invalid or unenforceable, the
balance of this Agreement shall remain in force and shall
stand as if the unenforceable part did not exist unless such
invalidity materially impairs the rights, benefits or
obligations of the parties under this Agreement
D. Neither party may assign this Agreement or its rights and
duties hereunder, without the prior written consent of the
other party.
E. All obligations and liabilities which, by their nature, are
intended to survive the Term shall remain in effect beyond the
Term.
F. The failure of a party to enforce any provision of this
Agreement shall not constitute a waiver of such provision or
the right of such party to enforce such provision and every
other provision.
G. This Agreement shall be governed by the laws of the State of
California, notwithstanding its rules regarding the conflict
of laws.
H. All Section headings contained in this Agreement are inserted
solely for convenience of reference, and in no way define,
limit, extend, or aid in the construction of the scope, extent
or intent of this Agreement or any term or provision thereof.
I. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and such counterparts
shall together constitute but one and the same Agreement,
binding upon all the parties hereto, notwithstanding that all
the parties are not signatories to the original of the same
counterpart.
J. This Agreement, including Exhibit A, Exhibit B, the Schedule
of Due Dates and Special Fees, and the Electronic Funds
Transfer Agreement, constitutes the entire agreement between
the parties with respect to the subject matter hereof and
supersedes all prior agreements and communications, written or
oral, with respect thereto. This Agreement may not be modified
or any right of a party waived, except by means of an
amendment, which expressly references this Agreement and is
duly executed by each of the parties.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
by its duly authorized representative.
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NETGEAR, INC. TRINET EMPLOYER GROUP, INC.
By: /s/ Patrick Lo By: /s/ Craig A. McGannon
-------------- ---------------------
Print Name: PATRICK LO Print Name: CRAIG A. MCGANNON
Title: CEO Title: Division President Venture Group
Date: 2/8/2000 Date: 2/9/00
26