EXHIBIT 10.7
CONSULTING AGREEMENT SYMMETRICOM .
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This Consulting Agreement ("AGREEMENT") is made and entered into as of this
first day of June ,199 8 between:
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. CONSULTANT Richard W. Oliver
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having a principal place of business at
885 Curtiswood Lane
Nashville, TN 37204
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AND
. TELECOM SOLUTIONS, a division of SymmetriCom, Inc. having a principal place
of business at
2300 Orchard Parkway, San Jose, California 95131
INDEPENDENT CONTRACTOR STATUS
It is the express intention of the parties that Consultant is an independent
contractor and not an employee, agent, joint venturer or partner of SymmetriCom.
Nothing in the agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between Consultant and
SymmetriCom or any employee or agent of SymmetriCom. Both parties acknowledge
that Consultant is not an employee for state or federal tax purposes.
Consultant shall retain the right to perform services for others during the term
of this agreement.
SERVICES TO BE PERFORMED BY CONSULTANT
SPECIFIC SERVICES/SCOPE OF WORK
Consultant will provide to SymmetriCom the work, work product, and/or the
services, as described on Attachment A appended hereto and pursuant to the task
schedule, if any, also set forth Attachment A.
METHOD OF PERFORMING SERVICES
Consultant will determine the method, details, and means of performing the
above-described services. SymmetriCom shall have no right to, and shall not,
control the manner or determine the method of accomplishing Consultant's
services.
PROPERTY RIGHTS
With respect to designs of any type or description, drawings, specifications,
software development, and/or other copyrightable subject matter developed by
Consultant pursuant to any Specific Services, Consultant agrees that the
relationship of Consultant and SymmetriCom is and will be considered a "work
made for hire". As such, Consultant agrees that SymmetriCom will be deemed to
be the author and copyright owner of all copyrightable subject matter created
by Consultant pursuant to any Specific Services.
Consultant will promptly make full written disclosure to SymmetriCom, will hold
in trust for the sole right and benefit of SymmetriCom, and will assign to
SymmetriCom all of Consultant's right, title, and interest in and to any and
all inventions, original works of authorship, developments, improvements,
and/or trade secrets which Consultant conceives, develops, or reduces to
practice, or causes to be conceived, developed, or reduced to practice, in
connection with any Specific Services.
Consultant will assist SymmetriCom to obtain United States or foreign letters
patent, copyrights, or mask work rights covering inventions, original works or
authorship, developments, improvements, and/or trade secrets which are assigned
hereunder to SymmetriCom, and SymmetriCom will compensate Consultant at a
reasonable rate for time actually spent by Consultant at SymmetriCom's request
for such assistant.
NON-DISCLOSURE OF INFORMATION
For the purposes of this Agreement, the term "Confidential Information" refers
to information and/or materials which
1. SymmetriCom designates to Consultant as confidential or proprietary;
2. relate to customer lists, financial information, or other subject matter
pertaining to any business of SymmetriCom;
3. are provided to SymmetriCom by any one or more of its customers and which
relate to the business, business needs, requirements, and/or specification
of its customers; and
NON-DISCLOSURE OF INFORMATION - CONTINUED
4. directly or indirectly relate to
(a) the design and/or specifications of a systems which incorporates a
product that performs a complete transferal of a function (a
"System"),
(b) all aspects of software applicable to a System, including, without
limitation, the logic and coherence thereof,
(c) circuit board designs directly or indirectly related to a System, and
(d) logic designs for filters and/or circuit boards, that are directly or
indirectly related to a System, including, without limitation,
simulations thereof.
Consultant agrees that the Confidential Information is confidential and
proprietary to SymmetriCom, will be held in trust and confidence by Consultant,
and will be safeguarded by Consultant to the same extent that Consultant
safeguards information and material of similar confidential character in
Consultant's own business which in no event will be less than the safeguards
that a reasonably prudent businessperson would exercise under similar
circumstances. To those ends, Consultant will take all reasonable steps to
ensure that all those persons having access through Consultant to the
Confidential Information will observe and perform the provisions of this
paragraph.
Consultant agrees it will not, in any manner, divulge, disclose, communicate,
publish, reproduce, or use, directly or indirectly, any of the Confidential
Information either during the term of this Agreement or at any time thereafter,
except as required in the course of performing any Specific Services/Scope of
Work; provided, however, that the restrictions in this paragraph will not apply
to that portion of the Confidential Information which is or becomes a matter of
general public knowledge other than by a breach of this Agreement by
Consultant, or to information which Consultant lawfully receives from any third
party under circumstances which Consultant has a reason to believe rightfully
permits the independent disclosure thereof by such third party to others.
Consultant agrees to promptly notify SymmetriCom of circumstances known or
learned by Consultant surrounding any access, possession, or use of the
Confidential Information not authorized by this Agreement. Consultant will
send such notice in writing by overnight delivery service, communication
charges prepaid, to the address for SymmetriCom set forth herein.
EMPLOYMENT OF ASSISTANTS
Consultant may, at the Consultant's own expenses, employ such assistants as
Consultant deems necessary to perform the services required of Consultant by
this Agreement. SymmetriCom may not control, direct, or supervise Consultant's
assistants or employees in the performance of those services. Consultant
assumes full and sole responsibility for the payment of all compensation and
expenses of these assistants and for all state and federal income tax,
unemployment insurance, Social Security, disability insurance and other
applicable withholdings.
PLACE OF WORK
Consultant shall perform the services required by this Agreement at any place
or location and at such times as Consultant shall determine.
COMPENSATION
In consideration for the services to be performed by Consultant, SymmetriCom
agrees to pay Consultant as stated below or as stated on attached Purchase
Order.
$2,500 / day
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INVOICES
Consultant shall submit invoices for all services rendered.
EXPENSES
Consultant shall be responsible for all costs and expenses incident to the
performance of services for SymmetriCom, including but not limited to, all
costs of equipment provided by Consultant, all fees, fines, licenses, bonds or
taxes required of or imposed against Consultant and all other of Consultant's
costs of doing business. SymmetriCom shall be responsible for no expenses
incurred by Consultant in performing services for SymmetriCom.
OBLIGATIONS OF CONSULTANT
INDEMNIFICATION OF LIABILITY
Consultant warrants that it has the right to enter into and to fully meet all
of the requirements of this Agreement and to do so without conflicts or
liability to others. Consultant warrants that services performed is the sole
product of Consultant's own effort and that in performing such services
Consultant will not infringe upon nor violate any patent, copyright, trademark,
trade secret, nor other property rights of a third party.
Consultant has obligations to SymmetriCom and prior obligations to prior
employment or consultation engagements to protect all information and content
of trade secrets existing between the Consultant and these entities.
Therefore:
1. Consultant will obtain releases to consult with SymmetriCom from any
employers in the same industry in which Consultant is a Consultant for
SymmetriCom. These will be original copy statements and be labeled
Attachment B.
2. Consultant will obtain releases from any consulting engagements that
Consultant has completed in the prior three (3) years which are directly
competitive or the same equipment or software design technology as that of
SymmetriCom. These will be original copy statements and be labeled
Attachment C.
Consulting Agreement .
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INDEMNIFICATION OF LIABILITY - CONTINUED
Consultant shall indemnify and hold SymmetriCom harmless against any and all
liability imposed or claimed, including attorney's fees and other legal
expenses, arising directly or indirectly from any act or failure of Consultant
to Consultant's assistants, employees or agents, including all claims relating
to the injury or death of any person or damage to any property. Consultant
agrees to maintain a policy of insurance to cover any such claims.
TOOLS AND INSTRUMENTALITIES
Consultant will supply all tools and instrumentalities required to perform the
services under this Agreement. Consultant is not required to purchase or rent
any tools, equipment or services from SymmetriCom.
WORKERS' COMPENSATION
Contractor agrees to provide workers' compensation insurance for Consultant's
employees and agents and agrees to hold harmless and indemnify SymmetriCom for
any and all claims arising out of any injury, disability, or death of any of
Consultant's employees or agents.
ASSIGNMENT
Neither this Agreement nor any duties or obligations under this Agreement may
be assigned by Consultant without the prior consent of SymmetriCom.
STATE AND FEDERAL TAXES
As Consultant is not SymmetriCom's employee, Consultant is responsible for
paying all required state and federal taxes.
OBLIGATIONS OF SYMMETRICOM
COOPERATION OF SYMMETRICOM
SymmetriCom agrees to comply with all reasonable requests of Consultant and
provide access to all documents reasonably necessary to the performance of
Consultant's duties under this Agreement.
ASSIGNMENT
Neither this Agreement nor any duties or obligations under this Agreement may
be assigned by SymmetriCom without the prior written consent of Consultant.
TERMINATION OF AGREEMENT
TERMINATION FOR CONVENIENCE
Either party may terminate this agreement for its convenience upon thirty (30)
days' advance written notice to the other party.
TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
1. bankruptcy or insolvency of either party;
2. sale of the business of either party; or
3. death of either party.
TERMINATION BY SYMMETRICOM FOR DEFAULT OF CONSULTANT
Should Consultant default in the performance of this Agreement or materially
breach any of its provisions, SymmetriCom, at SymmetriCom's option, may
terminate this Agreement by giving twenty-four (24) hour written notification
to Consultant. For the purposes of this section, material breach of this
Agreement shall include, but not be limited to the breach by Consultant of any
of its obligations in section "Services to be Performed by Consultant, Non-
Disclosure of Information, and Indemnification of Liability" above.
TERMINATION BY CONSULTANT FOR DEFAULT OF SYMMETRICOM
Should SymmetriCom default in the performance of this Agreement or materially
breach any of its provisions, Consultant, at the Consultant's option, may
terminate this Agreement by giving twenty-four (24) hour written notice to
SymmetriCom.
TERMINATION FOR FAILURE TO MAKE AGREED-UPON PAYMENTS
Should SymmetriCom fail to pay Consultant all or any part of the compensation
set forth in COMPENSATION section of this Agreement on the date due,
Consultant, at the Consultant's option, may terminate this Agreement if the
failure is not remedied by SymmetriCom within sixty (60) days from the date
payment is due.
GENERAL PROVISIONS
NOTICES
Any notices to be given hereunder by either party to the other may be effected
either by personal delivery in writing or by mail, registered or certified,
postage prepared with return receipt requested. Mailed notices shall be
addressed to the parties at the addresses appearing in the introductory
paragraph of this Agreement, but each party may change the address by written
notice in accordance with this paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
Consulting Agreement .
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ENTIRE AGREEMENT OF THE PARTIES
This Agreement supersedes any and all Agreements, either oral or written,
between the parties hereto with respect to the rendering of services by
Consultant for SymmetriCom and contains all the covenants and Agreements
between the parties with respect to the rendering of such services in any
manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. Any modification of
this Agreement will be effective only if it is in writing signed by the party
to be charged.
PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provisions will
nevertheless continue in full force without being impaired or invalidated in
any way.
ATTORNEYS' FEES
If any action at law or in equity, including an action for declaratory relief,
is brought to enforce or interpret the provisions of this Agreement, the
prevailing party will be entitled to reasonable attorneys' fees, which may be
set by the court in the same action or in a separate action brought for that
purpose, in addition to any other relief to which that party may be entitled.
GOVERNING LAW
The validity, interpretation, and performance of this Agreement will be
controlled by and construed under the laws of the State of California.
The parties hereto acknowledge that each has read this Agreement, understands
it, and agrees to be bound by its terms. Executed to be effective as of the day
and year first above written.
CONSULTANT SYMMETRICOM,INC.
/s/ Roger A. Strauch
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Company Name Name of Functional Area Manager or VP
/s/ Rick Oliver
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Signature of Consultant Signature of Functional Area Manager or VP
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Business License Number Date
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Date
Return completed Agreement form with Attachments to:
. SYMMETRICOM, INC.
2300 Orchard Parkway, San Jose, CA 95131 attn: Human Resources
. ATTACHMENTS
Attachment A (Description of work, work product, and/or services to be
performed)
Attachment B (Releases to consult with SymmetriCom from employers in same
industry, refer to Indemnification of Liabilities)
Attachment C (Releases from previous consulting engagements; refer to
Indemnification of Liabilities)
Approved Purchase Order to be attached
Consulting Agreement .
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