EXHIBIT 10.6
OPTIMA SERVICES AGREEMENT (MEMBER)
THIS SERVICES AGREEMENT, (this "Agreement") is made this April 23, 1999
by and between OMNI OFFICES INC. ("Optima")and the undersigned ("Client") C3D,
Inc. for the short term use of certain services and facilities offered by Optima
at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000 (the "Facility"). In
consideration of the mutual covenants and conditions contained herein, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. TERM. The term of this Agreement shall begin on July 1, 1999 and end on July
30, 1999 (the "Initial Term"). Upon the expiration of the Initial Term, this
Agreement shall be automatically renewed each month thereafter upon the same
terms and conditions, except as may be otherwise provided herein, for successive
one-month terms (each, a "Renewal Term") unless earlier terminated by either
party upon thirty (30) days advance written notice received by Optima no later
than the first day of any month during the term of this Agreement. The Initial
Term, together with all Renewal Terms, is referred to herein as the "Term" of
this Agreement.
2. BASIC FEE. Client shall pay $1,534.47 (the "Fee") per month during the Term,
which shall entitle the Client to the services listed in Schedule "A". The Fee
may be subject to escalation on the first day of each calendar year if, and in
the same percentage increment that, the rent paid by Optima on the Facility is
escalated pursuant to Optima's lease for the Facility (the "Optima Lease").
3. SERVICES AND FEES. Optima hereby grants to Client the nonexclusive privilege
and right, subject to the terms and conditions contained herein, to use in
common with other customers, tenants, licensees, occupants and other parties
with whom Optima may contract, certain office services (the "Services") provided
by Optima between the hours of 9:00 A.M. and 5:00 P.M. Monday through Friday
(except on public holidays) as described on Schedule "B". Charges for the
Services shall be billed separately from the Fee at the rates indicated on
Schedule "B". Client shall pay all such charges promptly upon receipt of each
invoice for such charges. At any time the charges incurred by Client for the
Services exceed the amount of the Expense Deposit stated below, Optima shall not
be obligated to provide any further Services under this Agreement until the
balance due is reduced below the amount of the Expense Deposit.
4. USE OF SERVICES. Client shall use the Services only for the following
business purposes: computer peripherals and for no other use without Optima's
prior written consent. The following individual shall be entitled to the
Services and the use of the Facility, on behalf of Client: Xxxxxx Xxxxxxx. In
addition for so long as they are employees of Client, shall be entitled to the
Services, and the use of the Facility, on behalf of Client, except that Optima
shall not be obligated to take or receive telephone messages for or on behalf of
such individuals. Client shall be responsible for prompt payment of all invoices
for Services provided to any of the individuals identified in this Paragraph 4.
Furthermore, Client shall use the Services in compliance with all applicable
laws and Client shall not use the Services for any purpose that may be dangerous
to life, limb or property, or that may invalidate or increase the premium of any
insurance policy carried on the Facility or the building containing the Facility
or covering its operation. Client shall not suffer or permit the Facility to be
used in any manner or anything to be brought into or kept therein that, in the
judgment of Optima, shall in any way impair or tend to impair the character,
reputation or appearance of the Facility, or that will impair or interfere with
or tend to impair or interfere with any of the Services provided by Optima for
the Facility. Client shall not be entitled to transfer, assign or sublease its
rights to the Services or under this Agreement to any other person or entity. In
addition, Client acknowledges receipt of a copy of Optima's Rules and
Regulations, which are incorporated herein by reference, and agrees to strictly
comply with them. Any unauthorized use of the Services by Client or any
violation of the Rules and Regulations shall be deemed a default hereunder and
in addition to any other remedies available to Optima hereunder and both at law
and in equity, Optima shall be entitled to retain the Expense Deposit as partial
liquidated damages and Client acknowledges that this provision is fair and
reasonable under the circumstances and is not a penalty.
5. EXPENSE DEPOSIT. Client shall deposit in advance with Optima a deposit of
$1,900.00 (the "Expense Deposit"). In the event of any default by Client
hereunder, Optima may, cumulative to all other remedies found at law or in
equity, apply or retain all or any part of the Expense Deposit to cure such
default or to reimburse Optima for any damages, losses, claims or expenses
Optima may have incurred by reason of the default. If at the end of the Term
Client shall not be in default under this Agreement, the Expense Deposit, or any
balance thereof, shall be returned to Client without interest. The Expense
Deposit is not to be considered the final payment due under this Agreement.
6. NO LIABILITY. Client acknowledges and agrees that the Services provided are
subject to human, electrical and mechanical error or other failure, which may
result in the delay, omission or discontinuance of the Services. Client further
acknowledges that the Services are without any warranty of any kind or
character. Client's sole remedy, and Optima's sole obligation for any failure to
render any Service, any error or omission, or any delay or interruption with
respect thereto, is limited to an adjustment to Client's billing in an amount
equal to the charge for such Service, for the period during which the failure,
delay or interruption continues. WITH THE SOLE EXCEPTION OF THE REMEDY SET FORTH
IN THIS PARAGRAPH, CLIENT EXPRESSLY AND SPECIFICALLY AGREES TO WAIVE, AND AGREES
NOT TO MAKE, ANY CLAIM FOR DAMAGES, DIRECT OR CONSEQUENTIAL, INCLUDING WITH
RESPECT TO LOST BUSINESS, ARISING OUT OF ANY FAILURE TO FURNISH ANY SERVICE, ANY
ERROR OR OMISSION WITH RESPECT THERETO, OR ANY DELAY OR INTERRUPTION OF THE
SAME. Notwithstanding anything in this Agreement to the contrary, there shall be
no such billing adjustment if Client is in default hereunder. All personal
property of Client located from to time at the Facility shall be at the sole
risk of Client and Optima shall not be liable for and is hereby released from
all liability with respect to damage thereto or theft thereof to the full extent
allowed by law.
7. INDEMNITY. As part of the consideration hereunder, Client expressly
indemnifies and holds Optima harmless from any and all claims, demands, losses,
expenses, injury to either person or property, and any other damage or loss,
including reasonable attorney's fees, which Optima may incur as a result of this
Agreement. Client acknowledges that Optima shall have no liability to Client as
to any claim for damages of any kind or character except such damages resulting
directly from Optima's gross negligence. In no event shall Optima be liable for
the conduct of any other client, tenant, occupant, licensee or invitee of the
Facility, and such conduct shall not give Client the right to terminate this
Agreement.
8. EMPLOYEES. Client recognizes that Optima has expended considerable time,
effort and expense in training Optima's employees so as to provide high quality
service to Client, and that the hiring by Client of Optima's present employees
or any employee employed by Optima within a six (6) month period prior to the
employment offer by Client to such employee would save Client, and cause Optima
to expend, considerable time and expense in training and procurement, the amount
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of which cannot be determined with certainty. Should Client, during the Term of
this Agreement or a period of twelve (12) months thereafter, offer employment to
or subsequently employ any employee of Optima who is or was an employee of
Optima at any time during the six (6) month period immediately preceding such
offer of employment by Client, Client shall pay to Optima, as a procurement fee
and not as a penalty, a sum equal to forty percent (40%) of the annual salary
last payable by Optima to such employee or $8,000.00, whichever is greater. The
payment of said procurement fee shall be cumulative to any other rights and
remedies available at law and in equity.
9. DEFAULT. In the event that Fee or charges for the Services are not paid
within five (5) calendar days after receipt of an invoice for Services, or of
written notice from Optima that same have not been paid when due, or if Client
shall fail to comply with any of the terms and provisions of this Agreement,
Optima may discontinue providing any Service to Client without further notice,
including, without limitation, disconnecting telephone services, and Optima may
exercise any and all other rights and remedies Optima may have under this
Agreement or at law or in equity, Client agrees to pay reasonable attorneys fees
and other disbursements incurred by Optima in enforcing any of Client's
obligations under this Agreement.
10. SUBORDINATION. This Agreement and all rights of Client hereunder are and
shall be subordinate to the Optima Leases, as modified or amended, any and all
future leases of the Facility or mortgages, deeds to secure debt or other
instruments encumbering the Facility. This Agreement shall terminate and be of
no further force or affect upon termination of the Optima Lease.
11. NO INTEREST IN PROPERTY. Client expressly acknowledges and agrees that no
easement, usufruct, lease or other estate or interest in real or personal
property is granted by this Agreement.
12. NOTICES. All notices required by this Agreement shall be in writing and
shall be deemed to have been given when hand-delivered or three (3) days after
deposited, postage prepaid, with the United States Postal Service, certified,
return receipt requested, and properly addressed as follows:
If to Optima:
OPTIMA OFFICES/Atlanta
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
if to Client: (other than facility address)
C3D, Inc.
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
13. INSURANCE. Client acknowledges that it shall be responsible for maintaining
such insurance as Client deems necessary to protect against risk of injury or
damage to person or property, including Client's property. Any fire and extended
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risk casualty insurance that Client maintains shall include a waiver of
subrogation in favor of Optima and the landlord under the Optima Lease, and any
fire and extended risk insurance carried on the Facility by Optima shall
likewise contain a waiver of subrogation in favor of Client. In the event the
Facility is damaged, destroyed or taken by eminent domain or acquired by private
purchase in lieu of eminent domain so as to render the Facility untenantable or
unrestorable in Optima's judgment, then within thirty (30) days thereafter by
written notice to the other party, either party shall be entitled to terminate
this Agreement, but otherwise it shall remain in full force and effect.
14. ARBITRATION. In the event Client alleges any claim against Lessor, Lessor
shall have the option of submitting the matter to arbitration on an expedited
basis, pursuant to the procedure established by the American Arbitration
Association in the metropolitan area in which the Premises are located in lieu
of the institution of legal proceedings by Client; Client hereby waiving such
right. The decision of the arbitrator shall be binding on the parties. The costs
of arbitration shall be paid for by the non-prevailing party, as determined by
the arbitrator.
15. CONSTRUCTION. This instrument contains the entire agreement between the
parties relative to the subject matter hereof and may not be modified or waived
except in a writing signed by Optima and Client. This Agreement shall be
construed and enforced in accordance with Georgia law. In the event that any
part of this Agreement shall be held to be unenforceable or invalid, the
remaining parts of this Agreement shall nevertheless continue to be a valid and
enforceable as though the invalid portions had not been a part hereof. Time is
of the essence as to the performance of all covenants, terms and provisions of
this Agreement by Client.
IN WITNESS WHEREOF, Optima and Client have executed this Agreement as of the
date first written above.
OPTIMA:
OMNI OFFICES INC.
By: /s/ X. Xxxxxx
---------------------------
X. Xxxxxx
Title: ___________________________
CLIENT:
C3D, Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Title: CEO
Schedule "A"
------------
Mail Receipt
Telephone Set and Maintenance
Voice Mail
Office #31
8 Hours Small Conference Room Use
Schedule "B"
------------
Services Fees
-------- ----
Secretarial $17.00 per 1/2 hour
Training Room $85.00 per hour
Copies $0.20 per page
Faxes $1.00 per page
Modem (out only) $5.00 per day
Modem (two-way) $10.00 per day
IBM PC/OMNINET $12.50 per hour
MacIntosh/OMNINET $12.50 per hour
Laser printer $0.20 per page
Storage (container) $15.00 per month
Binding $2.50 (soft cover)
Shipping UPS - $2.00 per shipment + carrier costs
Fed-Ex - $2.00 per package + carrier costs
Express Mail - actual time +
Messenger time
AT&T Language Lines $3.29 per minute
Office Supplies Cost + Secretarial time
In House Travel
Agency Included
Call Announce $50.00 per month
Additional Voice
Mailboxes $25.00 per month
Use of the other OPTIMA locations (based on availability and subject to the
current rate charged at the destination OPTIMA location)
*****RATES SUBJECT TO CHANGE WITH 30 DAY NOTICE*****
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RULES AND REGULATIONS
(1) Lessees will conduct themselves in a businesslike manner; proper
attire will be worn at all times; the noise level will be kept to a level so as
not to interfere with or annoy other lessees.
(2) Lessee will not affix anything to the walls of the Premises without
the prior written consent of the Lessor.
(3) Lessee will not prop open any corridor doors, exit doors or doors
connecting corridors during or after business hours.
(4) Lessees using public areas may only do so with the consent of the
Lessor, and those areas must be kept neat and attractive at all times.
(5) All corridors, halls, elevators and stairways shall not be
obstructed by Lessee or used for any purpose other than egress and ingress.
(6) No advertisement or identifying signs or other notices shall be
inscribed, painted or affixed on any part of the corridors, doors or public
areas.
(7) Lessee shall not, without Lessor's written consent, store or
operate any computer (except a desk top computer) or any other large business
machines, reproduction equipment, heating equipment, stove, speaker phones,
radios, stereo equipment or other mechanical amplification equipment,
refrigerator or coffee equipment, or conduct a mechanical business, do any
cooking, or use or allow to be used on the Premises oil, burning fluids,
gasoline, kerosene for heating, warming or lighting. No article deemed extra
hazardous on account of fire or any explosives shall be brought into said
Premises or Facility. No offensive gases, odors or liquids will be permitted.
(8) If Lessee requires any special wiring for business machines or
otherwise, such wiring shall be done by an electrician designated by Lessor at
Lessee's cost. The electrical current shall be used for ordinary lighting
purposes only, unless written permission to do otherwise shall first have been
obtained from Lessor at an agreed cost to Lessee.
(9) If Lessee requires any special wiring for telephone equipment or
otherwise, such wiring shall be done by personnel designated by Lessor at
Lessee's cost. Lessor reserves the right to limit the number and type of lines
Lessee can install in Lessee's premises.
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(10) Lessor and its agents shall have the right to enter the Premises
at all reasonable hours for the purpose of making any repairs, alterations or
additions which it shall deem necessary for the preservation, safety or
improvements of said Premises. In addition, Lessor may enter the Premises to
show same at any time within sixty (60) days prior to the end of the term.
(11) Lessee shall give Lessor immediate access to the Premises to show
said Premises on Lessee or Lessor giving notice of intent to vacate in
accordance with the provisions of the Agreement. The Lessee shall in no way
hinder the Lessor from showing said Premises. In addition, Lessor may enter the
Premises to show same at any time within sixty (60) days prior to the end of the
term.
(12) Lessee may not conduct business in the hallways or corridors or
any other areas except in its designated offices without written consent of
Lessor.
(13) Lessee will bring no animals into the Premises or Facility.
(14) Lessee shall not remove furniture, fixtures or decorative material
from offices without written consent of Lessor.
(15) Lessor reserves the right to make such other reasonable rules and
regulations as in its judgement may from time to time be needed for the safety,
care and cleanliness of the Facility.
(16) Lessee shall not smoke nor allow smoking in any area of the
Facility and shall comply with all governmental regulations and ordinances
concerning smoking.
(17) Lessee shall not allow more than three (3) visitors in the
reception lobby of the Premises at any one time.
(18) Lessee shall cooperate and be courteous with all other occupants
of the Facility and Lessor's staff and personnel.
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