OEM Terms and Conditions Agreement between NETGEAR, Inc. and Delta Electronics, Inc.
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This agreement, effective June 1, 1996, is between NETGEAR, Inc. and Delta Electronics, Inc. Delta will supply private-labeled and, if needed, customized products exclusively to NETGEAR for resale and internal use. NETGEAR agrees to purchase products under specified pricing, ordering, and delivery terms, with provisions for price adjustments and order cancellations. Delta must deliver products on time, and NETGEAR may cancel or postpone orders under certain conditions. The agreement also covers payment terms, taxes, and documentation requirements. Both parties have defined obligations to ensure timely supply and exclusivity.
EX-10.19 24 f88882orexv10w19.txt EXHIBIT 10.19 EXHIBIT 10.19 OEM TERMS AND CONDITIONS This Agreement is entered into as of this 1 day of June, 1996, ("Effective Date") by and between NETGEAR, Inc., a Delaware corporation and a wholly subsidiary of Bay Networks, Inc. and having its principal place of business at 4401 Great America Parkway, P.O. Box 58185, Santa Clara, California, 95052-8185 ("NETGEAR"), and Delta Electronics, Inc. ("Supplier") having its principal place of business at 9F, No. 144, Min Chuan E. Road, Sec. 3, Taipei, Taiwan, R.O.C.. 1. PURCHASE OF PRODUCTS: NETGEAR may purchase and license the products listed in Attachment 1 ("Products"), private-labeled for NETGEAR, and, if applicable customized in accordance with Attachment 2, for internal use and demonstration purposes and for resale and relicense, directly and indirectly, by placing written orders under this Agreement. Supplier agrees to sell the private-labeled and/or customized Products exclusively to NETGEAR and to any of the NETGEAR affiliates, subsidiaries or agents identified by NETGEAR under the terms of this Agreement. Supplier agrees not to sell the Products directly to any third party or agent or former agent of NETGEAR for any purpose other than resale on NETGEAR's behalf. Under no circumstances may an agent of NETGEAR make any alteration to the terms of this Agreement without NETGEAR's prior written consent. Any additional customization of the Products will be in accordance with the terms set forth in an Attachment to this Agreement. 2. PRODUCT PRICES: Product prices shall be in accordance with Attachment 1 and do not include cost of shipping or insurance, which will be borne by NETGEAR. All prices are exclusive of any taxes. Prices are based on the cost structure set forth in Attachment 1. Prices will be paid in U.S. dollars based on the "Established-Exchange Rate" which shall be one US dollar to $27.50 New Taiwan dollars or on an adjusted exchange rate as follows: at such time as the exchange rate fluctuates by more than 10% from the prevailing Established Exchange Rate, that higher or lower exchange rate shall become the Established Exchange Rate. Supplier shall not increase the Product price(s) during the term of the Agreement or any renewals. A costed Bill of Materials (BOM) shall be attached as an exhibit to Attachment 1 and an updated costed BOM shall be provided by Supplier to NETGEAR not less frequently than the beginning of each calendar quarter during the term of this Agreement. The unit pricing shall be reduced immediately at any time that the costed BOM decreases by more than 5% from the preceding quarter, provided that Delta has received the agreed to target margin. Material Cost, assembly cost, labor, overhead and margins will be reviewed at the beginning of each calendar quarter for reasonableness by NETGEAR. 3. ORDERS FOR PRODUCTS: Each order for Products shall be governed by the terms of this Agreement. Conflicting or additional terms provided in any order or acknowledgment of an order shall be of no effect unless specifically accepted in writing by an authorized representative of the parties. Each order shall specify (a) description and part number of Products, (b) purchase price; (c) quantity; (d) delivery schedule; and (e) "ship-to" and "invoice-to" addresses. 4. TIME FOR DELIVERY: Supplier will deliver Products in the quantities ordered (up to 125% of the quantities forecasted) by NETGEAR within 30 days of the date the order is received by Supplier (unless a later shipment date is specified in the order or a longer lead time is set out in Attachment 1), provided that the terms of the order comply with the requirements specified above. In order to meet the anticipated delivery schedules, it may be necessary for Supplier to maintain an inventory of certain parts for the NETGEAR Products which are unusable in other Supplier products and which are long-lead time parts or which must be procured in quantity to receive beneficial pricing. The parties will agree in writing from time to time as to a list of such parts. At the time of termination or expiration of this Agreement or product discontinuation, NETGEAR agrees to accept delivery of Supplier's entire inventory of such agreed parts, up to a total equal to the last 3 months forecast and to reimburse Supplier for its actual purchase price for such parts. The parties acknowledge that time is the essence of this Agreement. In the event that Supplier fails to deliver Products within the time period described in this subsection, NETGEAR shall be entitled to a credit against the corresponding order in the amount calculated from the table below applied against the quantity of Product which was not delivered within the specified time period, subject to adjustment as provided below:
NETGEAR may choose to cancel any order which remains unfulfilled by Supplier after 30 days from shipment date requested by NETGEAR and accepted and confirmed by Supplier in orders accepted by Supplier without penalty. Products which are delivered but which do not conform with the warranties and specifications described in this Agreement, where the non-conformance is not cured within five days notice from NETGEAR, shall not be deemed to have been delivered for purposes of this section. Supplier's obligations under this section shall be subject to the provisions of the Section entitled "Failure and Delay", except that failure of Supplier's suppliers to deliver component parts shall not be deemed to be excusable delay in Supplier's performance under this Agreement. 5. CANCELLATION OR POSTPONEMENT OF ORDERS. NETGEAR may cancel or reduce the quantity of any order without liability 60 days or more in advance of the ship date specified in NETGEAR's order. NETGEAR may cancel, or reduce the quantity of any order from 30 to 59 days in advance of the ship date specified in NETGEAR' order by paying Supplier a cancellation charge equal to the out-of-pocket cost incurred by Supplier for work in process, not including raw components usable in other applications, not to exceed the unit price. NETGEAR may postpone the delivery of any portion of an order for up to a total of 90 days without any liability by delivering written notice to Supplier 30 days or more in advance of the ship date specified in NETGEAR' order. 6. FORECASTS: NETGEAR agrees to provide Supplier with monthly 180 day rolling forecasts for its projected orders for Products. The provision of such forecast shall in no way bind NETGEAR to actually place orders for any such quantities nor otherwise expose NETGEAR to liability. 7. TERMS OF SALE: Products will be shipped F.O.B. point of shipment. Title to the Products (but not any Product software) shall pass to NETGEAR upon acceptance of the shipment of Products. Payment for the Products shall be due net 30 days of invoice date, which shall not precede the date of shipment of the Products. If payment is to be made by wire transfer, Supplier must provide the following information: bank name and location of branch, account name/number and Swift number. 8. INVOICING AND TAXES: NETGEAR shall pay all applicable sales and use taxes based on the purchase of the Products, other than income and franchise taxes based on Supplier's income or provide Supplier with a certificate of exemption acceptable to the appropriate taxing authority. 9. PRODUCT DOCUMENTATION: Supplier will provide a complete set of the applicable technical publications and illustrations and user documentation which Supplier ships with the corresponding Supplier products to NETGEAR in a mutually agreed electronic format. NETGEAR may modify such publications and may translate such publications into foreign languages and will deliver master copies of hardware documentation to Supplier for printing, packing and shipping with the Products. NETGEAR may also create additional usage/reference manuals (such as hardware installation and verification guides, and end user warranty cards) which will also be delivered to Supplier for printing, packing and shipping with the Products. 10. PRIVATE LABELING: All Products delivered by Supplier will bear the logos, trade names and trademarks of NETGEAR as specified by NETGEAR. NETGEAR will provide engineering drawings, camera-ready artwork film, and all other materials and instructions necessary to manufacture product labels and shipping boxes without supplemental documentation. No Supplier logos, trademarks and trade names will be externally visible on installed Products. NETGEAR agrees not to affix any labels containing Supplier logos, trademarks or trade names to the Products. Preprinted boxes with NETGEAR logos will be provided by Supplier and used for packaging the Products. These individual product boxes must be placed within larger protective shipping boxes for transit from Supplier to NETGEAR. 11. SOFTWARE LICENSE: If the Products include software, Supplier will, at NETGEAR's request, either provide software on media ready for shipment or master copies of any software associated with the Products and will grant NETGEAR the right to use, and to reproduce if necessary, and to sublicense all software associated with the Products, including all updates, "bug fixes" and enhancements created over time for such software, and associated documentation, for perpetual use solely in connection with Products. The terms of such sublicense shall conform generally to the provisions of NETGEAR standard form software license for its commercial products. The foregoing licenses may be exercised by NETGEAR without further charge beyond the prices for the Products described elsewhere in this Agreement. 12. ACCEPTANCE; QUALITY ASSURANCE: The parties acknowledge the requirement that the Products be supplied with as close to a "zero defect rate" as is practically possible. The Products should be subjected to on-going reliability testing, including operating a rolling 20 to 30 units for 60 days to provide "infant mortality" data. The Products are subject to final inspection and acceptance at NETGEAR's facility within 30 days after delivery, to confirm that the Products conform to all criteria, specifications and warranties described in this Agreement. Supplier will provide NETGEAR with a complete set of top-level assembly drawings of the Products, which NETGEAR may use in incoming inspection and Supplier shall provide NETGEAR with a report of "first pass yields". If one or more Products in a shipment fails to successfully pass the acceptance tests, NETGEAR shall deliver a deficiency report to Supplier promptly before the end of the acceptance period. Supplier shall, in response to such report immediately accept the return for credit of the non-conforming Products so that they successfully pass all acceptance tests, all at Supplier's sole expense and the full lot shall be subject to re-inspection. Payment prior to acceptance shall not constitute acceptance. NETGEAR may conduct and observe tests and inspections at Supplier plant if NETGEAR notifies Supplier 24 hours in advance. In the event that NETGEAR does not notify Supplier in writing of deficiencies in the Products within 30 days of receipt thereof, the Products shall be deemed accepted. Supplier will follow good manufacturing practices (equivalent to IPC Class II for electrical assembly) utilizing materials, techniques, and procedures which conform to industry standards. Supplier will comply with the requirements of ISO 9000 and CE Mark standards. Supplier will make available to NETGEAR, upon request, information regarding Supplier's quality assurance procedures. The parties shall negotiate in good faith and mutually agree upon an ongoing program during the term of this Agreement to monitor and assure the quality of the Products provided by Supplier (the "Quality Assurance Program"). Such Quality Assurance Program will include, but not be limited to, criteria and procedures for ongoing audit of Supplier's manufacturing process, a definition of test procedures for confirmation of compliance with applicable quality and other specifications, definition of minimum quality specification acceptance levels, and an escalation procedure for resolving quality-related problems. Upon mutual agreement by the parties in writing as to the content of such Quality Assurance Program, the Quality Assurance Program shall without further action by the parties be deemed incorporated herein as an Attachment to this Agreement. At such time as defined in the Quality Assurance Program, Supplier will be authorized to provide Products on a "ship-to-stock" basis. 13. WARRANTY: Supplier warrants that the Products delivered under this Agreement will be free from all liens, encumbrances and restrictions, other than the restrictions relating to the software. Supplier warrants that each Products delivered to NETGEAR will be free from defects in material and workmanship for the period of time set forth in Attachment 1 (the "Warranty Period") and shall perform in accordance with the Product specifications. The parties acknowledge that by its nature, software is not error-free or free from interruption in operation because of "bugs" or defects. Supplier shall promptly and diligently correct any bug or software error in the Products software which it discovers or is reported to Supplier during the Warranty Period, and will immediately provide NETGEAR with a suitable patch, fix or work-around so that it continues to operate in accordance with the respective specifications, and, NETGEAR may deliver these to all valid licensees. If a defect or non-conformance is discovered during the Warranty Period, NETGEAR will promptly notify Supplier of any non-conforming material to obtain a Return Material's Authorization number ("RMA"). Upon NETGEAR' receipt of the RMA, NETGEAR will cause the return of the non-conforming Products to Supplier at the expense of NETGEAR. Upon its receipt, Supplier will promptly either repair or replace it, at Supplier's option and cost. Properly repaired or replaced Products will promptly be delivered to NETGEAR at Supplier's cost, and the Warranty Period therefor will continue for 90 days following delivery or the balance of the Warranty Period, whichever is longer. These remedies are in addition to any others which may be provided by this Agreement or by law. This warranty does not include damages due to inadequate operating environment, accident, disaster, neglect, abuse, misuse, or alterations made without approval by Supplier. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. 14. INDEMNIFICATION: Supplier will defend at its own expense any action brought against NETGEAR, to the extent that it is based on a claim by a third party (i) that any of the Products infringes a patent or copyright, or contains misappropriated trade secrets, or (ii) which is based upon the use, operation or performance of Products, and will pay any costs and damages finally awarded against NETGEAR in any such action which are attributable to any such claims. Supplier's obligations under the preceding sentence are subject to the conditions that: (i) NETGEAR promptly notifies Supplier in writing of any such claim, and (ii) Supplier will have sole control of such defense and all negotiations for any settlement or compromise, although NETGEAR may participate in the same at its expense. Supplier will have no liability to NETGEAR under this Section with respect to any claim of infringement to the extent that it is based upon (i) the combination of the Products with any machine, device, firmware or software not furnished by Supplier, or (ii) any product not developed, sold or licensed by Supplier, or (iii) any modification of the Products by a party other than Supplier or (iv) compliance with specifications supplied and required by NETGEAR. 15. END-OF-LIFE PURCHASES: In the event of termination or expiration of this Agreement, NETGEAR will be entitled to place a non-cancelable order for a "life cycle purchase" of the Products at least 15 days prior to the effective date of such termination or expiration, for delivery within 180 days after the effective date of Agreement termination or expiration. 16. AVAILABILITY OF PRODUCT AND SPARES: Supplier will make spare, replacement, and maintenance parts necessary to enable NETGEAR to support the Products available during the term of the agreement and for a period of at least five years after the last delivery of Products to NETGEAR, at prices that are at least as low as the prices being charged to Supplier's other customers for like quantities of corresponding Supplier products and under at least as favorable terms and conditions. 17. REQUIRED CHANGES: Supplier reserves the right to make engineering changes to the Products at any time, which do not adversely impact the operation of the Products, which are necessary to comply with specifications, changed safety standards and governmental regulations and to make the product non-infringing with respect to any patent, copyright or other proprietary interest or for the purpose of improving the quality, reliability or manufacturability of the products. Supplier will notify NETGEAR of all planned engineering change orders or emergency deviations which impact form, fit, function, safety or environmental compliance, or software compatibility of the products. If the proposed change requires any rework of the previously shipped Products units then Supplier will perform the modification on any units returned to Supplier at no charge. For each significant change, Supplier will maintain documentation including the date of the change and serial number of the first product incorporating the change. 18. TERM AND TERMINATION: This Agreement shall begin on the date of execution by both parties and continue for one year, with automatic one year renewals, unless terminated by either party in accordance with this section. After the initial one year term, this Agreement may be terminated by either party by providing 90 days written notice. If either party is in default of any material provisions of this Agreement and such default is not corrected within 30 days of receipt of written notice, this Agreement may be terminated immediately by the party not in default. If NETGEAR terminates due to default by Supplier all outstanding purchase orders shall be filled by Supplier unless NETGEAR notifies Supplier in its default notice of its desire to cancel any or all such orders, in which event such purchase orders shall be canceled without charge to NETGEAR. Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled and apply to respective successors and assigns. Termination of this Agreement will not effect the rights of end-users to use the Products. 19. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR (1) THE COST OF SUBSTITUTE PROCUREMENT, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES RESULTING FROM INACCURATE OR LOST DATA OR LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF PRODUCTS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. 20. CONFIDENTIALITY: The parties anticipate that each may disclose to the other in connection with this Agreement, certain of its proprietary or confidential information. The party receiving the same will (i) maintain it in confidence and will not disclose it to others than its employees, or as otherwise permitted under this Agreement (ii) use at least the same degree of care to maintain its secrecy as it uses in maintaining the secrecy of its own proprietary, confidential and trade secret information, (iii) always use at least a reasonable degree of care in maintaining its secrecy, and (iv) use it only for the purpose of performing its obligations under this Agreement. Neither party will have any obligation concerning that part of the other's information which (i) was known to it before its receipt from the other party, (ii) is lawfully obtained from a third party under no obligation of confidentiality, (iii) is or becomes publicly available other than as a result of an act or failure to act of the receiving party, (iv) or is independently developed by a party without use of the other's confidential information. Except as permitted by this Agreement, neither party will disclose any part of such information to anyone except those of its employees or contractors having a need to know the same in order to accomplish the purposes of this Agreement and who have, before receiving access to the information, acknowledged its confidential, proprietary and trade secret nature and have agreed to be bound by the terms of this Section. 21. PRODUCT SUPPORT: NETGEAR shall provide Level 1 support (support necessary to process initial calls from an end-user) and Level 2 support (support required for problem determination and solution). Supplier shall provide Level 3 support which includes Product design changes based on Product form, fit or function and assist NETGEAR when a problem cannot be resolved at Level 1 or 2. Additional technical support can be made available under terms and conditions to be defined and negotiated mutually. 22. TRAINING: Supplier will provide, at no charge, one standard technical training class at Supplier facilities and training materials for the Products to selected NETGEAR technical support personnel and such other training as is mutually agreed upon. 23. TECHNOLOGY UPGRADES: During the term of this Agreement, Supplier will provide NETGEAR with upgrades to the Products, including all new features or enhancements within 30 days of when they are incorporated in the Supplier product or offered as upgrades by Supplier. If such upgrades or enhancements are provided to other customers at no additional charge, there will be no increase in the unit price for products under this Agreement. If Supplier charges its other customers for such upgrades, Supplier will only be required to provide such upgrades to NETGEAR upon agreement with NETGEAR regarding a revised unit price. 24. GENERAL PROVISIONS 24.1 FAILURE AND DELAY. Neither party will be liable for its failure or delay in performance of its obligations under this Agreement due to strikes, wars, revolutions, fires, floods, explosions, earthquakes, government regulations, or other causes beyond its control. 24.2 ASSIGNMENT. This Agreement may not be assigned by either party without prior written permission from the other. Any attempt by a party to assign any right, or delegate any duty or obligation which arises under this Agreement, without such permission, will be voidable. 24.3 WAIVER, AMENDMENT OR MODIFICATION. Any waiver, amendment or modification of any right, remedy or other term under this Agreement will not be effective unless in writing and signed by the party against whom enforcement is sought. 24.4 RELATIONSHIP OF THE PARTIES. The parties are each independent contractors. No agency relationship between NETGEAR and Supplier is created by this Agreement. Except as expressly provided in this Agreement, neither party will have any right or authority to act on behalf of the other and neither party will represent that it has such right or authority. 24.5 ENTIRE AGREEMENT; GOVERNING LAW. This Agreement, including its exhibits, constitutes the entire agreement between parties with respect to its subject matter and will be governed by the laws of the State of California. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. NETGEAR, INC. SUPPLIER DELTA ELECTRONICS, INC. By: _________________________________ By: Tommy Tsai ----------------------- Name: _______________________________ Name: /s/ Tommy Tsai 9/13/96 Title: ______________________________ Title: ODM Business Unit -------------------- Products Manager. Attachment 1 LIST OF PRODUCTS, PRICES AND LEAD TIMES Product pricing is based on the actual cost of materials plus Material Burden, Assembly cost, Labor cost, Overhead and Margin accordance with the terms of the Agreement and the costed Bill of Materials attached as Exhibit A to Attachment 1, as updated quarterly.
* pricing if NETGEAR provides National chips ** pricing if Delta provides National chips Exhibit A to Attachment 1 COSTED BILL OF MATERIALS Costed BOM for EN104NA
1 of 3 Costed BOM for EN104NA
2 of 3 Costed BOM for EN104NA
REMARKS: The costed BOM for EN104JP is the same as the above except for the following items.
PS: The cost for EN104GE's power adapter, P/N 0990033700, is $3.52. 3 of 3 Costed BOM for EN108NA
1 of 2 Costed BOM for EN108NA
2 of 3 Costed BOM for EN108NA
REMARKS: The costed BOM for EN108JP is the same as the above except for the following items.
PS: The cost of EN108GE's power adapter, P/N 0990034100, is $3.30. 3 of 3 Costed BOM for EN116NA
1 of 3 Costed BOM for EN116NA
2 of 3 Costed BOM for EN116NA
REMARKS: The costed BOM for EN116JP is the same as the above except for the following items.
PS: The cost of EN108GE's power adapter, P/N 0990034100, is $3.30. 3 of 3 FE508NA Costed BOM
1 of 3 FE508NA Costed BOM - -------------------------------------------------------------------------
2 of 3 FE508NA Costed BOM - ---------------------------------------------------------------------------
3 of 3 FE516NA Costed BOM
1 of 4 FE516NA Costed BOM - ---------------------------------------------------------------------------
2 of 4 FE516NA Costed BOM - ----------------------------------------------------------------------------
3 of 4 FE516NA Costed BOM - ----------------------------------------------------------------------------
4 of 4 Attachment 2 CUSTOMIZATION OF PRODUCTS 1. DEVELOPMENT EFFORT. Supplier will provide certain services and/or technology for the development, test and manufacture of a custom version of the Supplier Products in return for payment of Non-Recurring Engineering cost so that it operates with the respective features, functions and specifications all as described in Exhibit A (the "Development Effort"). NETGEAR shall assist Supplier in the Development Effort by providing full technical details of the requirements for modifying the Products and reviewing the design, as well as assisting in testing of the customized Products and other assistance as may be specifically described in the Exhibit A. 2. PROTOTYPES, TESTING AND ACCEPTANCE BY NETGEAR. Supplier shall deliver 5 working prototype units at no additional charge for use in alpha, beta and other testing. As the Development Effort proceeds, Supplier shall conduct the prototype testing as described in Exhibit A. Upon completion of the Development Effort, Supplier and NETGEAR shall perform quality control and acceptance tests (the "Acceptance Tests") and Supplier shall demonstrate that the customized Products operate and perform in accordance with respective Specifications. If a customized Product fails to satisfactorily complete the Acceptance Tests, Supplier shall promptly and diligently correct any defects and complete any uncompleted portion of the Development Effort so that the customized Product satisfactorily operates and performs in accordance with specifications. 3. SAFEGUARD OF THIRD PARTY SOFTWARE AND RELATED INFORMATION. The parties acknowledge the customized Products may incorporate software technology to be licensed from certain third parties (collectively the "Third Party Software"). Supplier agrees that all information delivered by NETGEAR with respect to the Third Party Software shall be used by Supplier only for the purpose contemplated by this Agreement, and shall safeguard and treat such information in the manner required by Section 18 of the Agreement. In addition, NETGEAR may deliver to Supplier certain software source code which Supplier shall use only for the purposes referenced in Exhibit A, and shall safeguard and treat such information in the manner required by Section 18 of the Agreement. Supplier acknowledges and agrees that it will procure from the providers of the Third Party Software all license rights necessary to enable Supplier to incorporate the Third Party Software technology within the customized Products and to grant to NETGEAR the rights to distribute such technology as part of the customized Products as contemplated by this Agreement for no additional cost. 4. OWNERSHIP IN TECHNOLOGY. Except for the rights granted expressly in this Agreement, (i) Supplier, or its licensors, will own all right, title and interest in the customized Products and associated documentation, including, but not limited to, all copyright, patent, trade secret and other intellectual property rights, and (ii) NETGEAR or its licensors, will own all right, title and interest in all software source and object code provided by NETGEAR, and all associated documentation, including, but not limited to, all copyright, patent, trade secret and other intellectual property rights. Notwithstanding the above, all right, title and interest in any modifications, enhancements or additional software or documentation developed by NETGEAR without assistance by Supplier, or by a third party acting on NETGEAR behalf without assistance by Supplier, will be the exclusive property of NETGEAR. In addition all right, title and interest in the layout of the circuit boards, will be the exclusive property of NETGEAR.] Nothing in this Section will preclude either party from independent development of any technology without use of the other party's confidential or proprietary information. 5. LIMITATIONS ON USE OF TECHNOLOGY, TOOLING, TRADEDRESS, TRADEMARKS. NETGEAR and Supplier agree, except as otherwise expressly and unambiguously authorized hereunder, (a) not to make any copies or duplicates of any software provided by the other party pursuant to this Agreement, (b) not to create or attempt to create, by reverse engineering or otherwise, the source code or internal structure or design of any software or hardware or any part thereof or any other works based thereon from the object code or from the confidential information or hardware made available in connection with this Agreement, and (c) not to remove any product identification or notices of any proprietary or copyright restriction from hardware or software or any support material provided by the other party pursuant to this Agreement. The parties intend that NETGEAR will be entitled to reproduce and/or distribute the software to the extent specifically set forth in this Agreement. Any tooling procured for use in manufacture of the customized products will be used exclusively for the benefit of NETGEAR. Supplier shall use the tradedress and trademarks of NETGEAR exclusively on products manufactured for NETGEAR. Supplier shall not manufacture any product with a tradedress similar to that of NETGEAR which could cause confusion in the marketplace. 6. INDEMNIFICATION BY NETGEAR. NETGEAR will defend at its own expense any action brought against Supplier, to the extent that it is based on a claim by a third party (i) that any NETGEAR products or documentation infringes a patent or copyright, or contains misappropriated trade secrets, or (ii) which is based upon the use, operation or performance of NETGEAR products, or (iii) which is based upon any specification provided by NETGEAR to Supplier for development of customized Products and will pay any costs and damages finally awarded against Supplier in any such action which are attributable to any such claims. NETGEAR's obligations under the preceding sentence are subject to the conditions that: (i) Supplier promptly notifies NETGEAR in writing of any such claim, and (ii) NETGEAR will have sole control of such defense and all negotiations for any settlement or compromise, although Supplier may participate in the same at its expense. NETGEAR will have no liability to Supplier under this Section with respect to any claim of infringement to the extent that it is based upon (i) the combination of any NETGEAR products with any machine, device, firmware or software not furnished by NETGEAR, or (ii) any product not sold or licensed by NETGEAR, or (iii) any modification of any NETGEAR product by a party other than NETGEAR. Exhibit A to Attachment 2 STATEMENT OF WORK AND NRE For the EN104, EN108, EN116 Slimline hubs. FEATURES EN104 4 port; EN108 8 port; EN116 16 port 10Base-T hubs Built in LED indicators BNC/AUI Backbone support Uplink port for network expansion FUNCTIONS SPECIFICATIONS Packaged contents - AC power adapter, Installation manual, warranty registration card, BNC "T" connector and terminator, wall mounting anchors and screws. Physical Specifications Custom metal housing and color NETGEAR logo and silkscreen Localized versions for North America, Japan, and Germany with Manual, Warranty Registration card, and packaging to be to NETGEAR specifications Master carton to be customized for NETGEAR Serial number to be serialized on unit, giftbox, and master carton Safety and Power Adapter labels to NETGEAR specifications
STATEMENT OF WORK AND NRE For the FE508 and FE516 Fast Ethernet Hubs. FEATURES FE508 8 port 100Base-TX hubs; FE516 16 port 100Base-TX hubs Built in LED indicators Uplink port for network expansion FUNCTIONS SPECIFICATIONS Package contents - FE508 or FE516 hub, AC power cord, Cascade Cable, Installation manual, warranty registration card, and Rack Mount Kit. Physical Specifications Custom metal housing and color NETGEAR labeling and silkscreening Localized versions for North America, Japan, and Germany with Manual, Warranty Registration card, and packaging to be to NETGEAR specifications Master carton to be customized for NETGEAR Serial number to be serialized on unit, giftbox, and master carton Safety labels to NETGEAR specifications
