TECHSPACE, LLC
SERVICE AGREEMENT
This Agreement is entered into in New York, NY by and between TechSpace, LLC
(hereinafter "TS") and iParty Corporation (hereinafter "Client").
TS and Client agree that TS shall grant to Client for and in consideration of
the agreements and fee(s) set forth herein, a license to use a portion of the
TS premises (hereinafter referred to as Client's Area) as from time to time
designated by TS and, in common with TS's other clients, a license to use TS's
premises and services, in accordance with the terms hereof.
1. BASIC TERMS.
This Section I contains the basic terms of this Agreement and all
provisions of this Agreement are to be read in accord therewith:
Base Services: Use of Client's xxxxxxxxxx xxxx (Xxxxxx'x Xxxx)
complete with other inclusive services as are defined in Schedule "A".
Additional Services: Access to additional business services for
purchase as needed by Client, including secretarial, administrative,
telecommunications and such other services are as defined in Schedule
"B".
A. Building/Floor: 00 Xxxx 00xx Xxxxxx, 00xx xxxxx, Xxx Xxxx,
Xxx Xxxx
B. Area [number(s)]: 1 having a maximum occupancy capacity as
indicated in Schedule "C".
C. Commencement Date: November 1, 1998
D. Initial Term: Three (3) Months
E. End of Initial Term February 28, 1998
F. Total Monthly Base Services Fee: $ 4,200
G. Total Monthly Additional Services Fee: $ 635
H. Total One Time Set-up & Installation Charges: $ 1,500
I. Refundable Services Retainer: $ 9,670
J. Total Due On Signing of Agreement $16,005
(A description and calculation of all charges can be found in
Schedule "C".)
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2. CLIENT'S AREA.
Client shall, as part of the Base Services, be granted license to use
the Client's Area and shall have access to the Client's Area
twenty-four (24) hours a day, seven (7) days a week. TS agrees to
provide Client's Area cleaning, maintenance services, electric
heating and air conditioning to the Client's Area for normal office
use in such reasonable quantities between 8:00 a.m. and 8:00 p.m. In
addition, Client will have reasonable use of TS common area
facilities. Client shall use the Client's Area and common areas of
the TS premises solely for general office use in the conduct of the
Client's business.
If, for any reason whatsoever, TS in unable to provide use of the
Client's Area or a mutually agreed upon alternative area at the time
herein agreed, Client may either extend the Commencement Date until
the Client's Area becomes available or, as its sole remedy for such
failure, cancel and terminate this Agreement if the use of the
Client's Area is not available to the Client within five (5) business
days after written notice to TS by Client, in which case any prior
payments shall be fully refunded. No such failure to provide use of
the Client's Area shall subject TS to any liability for loss or
damage, nor affect the validity of this Agreement or the obligations
of the Client hereunder.
TS will have the right to relocate Client to another Client's Area
within the TS premises, and to substitute such other Client's Area
for the Client's Area licensed hereby, provided such other Client's
Area is substantially similar in area and configuration to Client's
contracted Client's Area and provided Client shall incur no increase
in the Monthly Base Services Fee or any relocation cost or expense.
3. SERVICES.
TS agrees, in consideration of the Monthly Base Services Fee, to
provide Base Services to Client as described in Schedule "A". From
time to time during the Term, TS may, at its option, make other
services available to Client of the nature described in Schedule "B",
at fees that are from time to time established by TS. TS shall be
under no obligation to provide Schedule "B" services if the monthly
cost thereof exceeds the Refundable Services Retainer. In the event
Client is in default of this Agreement, TS may, at its option, cease
furnishing any and all services including telephone services.
Client will not offer to any party in the TS premises or the
Building, any of the services that TS provides to its clients
including, but not limited to, the services described in Schedule "A"
or "B".
Client will use only telecommunications systems and services as
provided by TS. Client will pay to TS a monthly equipment rental and
service fee for the use of each telephone instrument and voice lines.
In the event TS discontinues the offering of long distance service,
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Client will provide its own long distance service through a locally
accessed long distance carrier.
Client acknowledges that due to the imperfect nature of verbal,
written and electronic communications, neither TS nor any of its
officers, directors, employees, shareholders, partners, agents or
representatives shall be responsible for damages, direct or
consequential, that may result from the failure of TS to furnish any
services, including but not limited to the service of conveying
messages, communications and other utility or services required under
this Agreement or agreed to by TS. Client's sole remedy and TS'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.
CLIENT EXPRESSLY WAIVES, AND AGREES NOT TO MAKE ANY CLAIM FOR
DAMAGES, DIRECT OR CONSEQUENTIAL, ARISING OUT OF ANY FAILURE TO
FURNISH ANY UTILITY, SERVICE OR FACILITY, ANY ERROR OR OMISSION WITH
RESPECT THERETO, OR ANY DELAY OR INTERRUPTION OF THE SAME.
4. DURATION OF AGREEMENT.
Upon the End of Initial Term, or any extension thereof, the term of
this Agreement and the license herein granted shall be automatically
extended for the same period of time as the Initial Term, upon the
same terms and conditions as contained herein, unless either party
gives notice to the other in writing to the contrary at least sixty
(60) days prior to the End of Initial Term (90 days if Client has
licensed the use of three or more offices).
5. PAYMENTS AND ESCALATIONS.
Client agrees to pay to TS the Monthly Base Services Fee plus
applicable sales or use taxes, in advance, on the first day of each
calendar month during the Initial Term and all extensions thereof,
without any deduction, offset, notice or demand. If the Commencement
Date shall be other than the first day of a month or end on the last
day of a month, fees for any such month shall be prorated. Charges
for any Schedule "B" service purchased by Client from TS shall be due
and payable on the 10th of the month following the order for any
such service.
One year after the Commencement Date of this Agreement and each and
every anniversary date thereafter, the Monthly Base Services Fee will
automatically increase by six percent (6%) of the Monthly Base
Services Fee due for the month preceding such anniversary date.
All Monthly Base Services Fees and other sums payable hereunder shall
be payable at the TS premises or at such other location or to any
agent designated in writing by TS. In addition to any other sums due,
Client shall pay monthly late charges equal to five percent (5%) of
all amounts that have not been paid to TS within five (5) days of
their respective due dates.
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The parties agree that such late charges are fair and reasonable
compensation for costs incurred by TS where there is default in any
payment due under this Agreement.
Upon execution of this Agreement, Client shall pay TS or its agent
the Refundable Services retainer. The Refundable Services Retainer
need not be kept separate and apart from other funds of TS, no
interest shall be paid thereon, and may be used by TS to provide
Schedule "A" and "B" services under this Agreement. In addition to
the Refundable Services Retainer, Client will, upon execution hereof,
pay to TS the Monthly Base Services Fee for the first full month of
the Initial Term and any applicable Set-Up and Installation Charges.
Client agrees that the Refundable Services Retainer shall not be used
by Client as payment of the Monthly Base Services Fee for the last
month of the Initial Term, or any extension thereof. In the event
Client defaults in the performance of any of the terms hereof, TS may
terminate this Agreement and the license herein granted and may also
use, apply or retain the whole, or any part, of the Refundable
Services Retainer for the payment of any service fee or any other
payment due hereunder, or for payment of any other sum that TS may
spend by reason of Client's default. If Client shall, at the end of
the term of this Agreement, have fully and faithfully complied with
all of the terms and provisions of this Agreement, and surrendered
all keys, access cards and building passes, the Refundable Services
Retainer, or any balance thereof, shall be returned to Client within
forty-five (45) days thereafter.
6. DAMAGES AND INSURANCE.
Client will not damage or deface the furnishings, walls, floors or
ceilings, nor make holes for the hanging of pictures or make or
suffer to be made any waste, obstruction or unlawful, improper or
offensive use of the Client's Area or the common area facilities.
Client will not cause damages to any part of the Building or the
property of TS or disturb the quiet enjoyment of any other licensee
or occupant of the Building. At the termination of this Agreement,
the Client's Area shall be in as good condition as when Client
commenced the use thereof, normal wear and tear excepted. TS will
have the right, at any time and from time to time, to enter the
Client's Area to inspect the same, to make such repairs and
alterations as XX xxxxx necessary, and the cost of any such repair
resulting from the act or omission of Client shall be reimbursed to
TS by Client upon demand. TS shall have the right to show the
Client's Area to prospective Clients, provided TS will use reasonable
efforts not to disrupt Client's business.
TS and its respective directors, licensers, officers, agents,
servants and employees shall not, to the extent permitted by the law,
except upon the affirmative showing of TS's gross negligence or
willful misconduct, be liable for, and Client waives all right of
recovery against such entities and individuals for any damage or
claim with respect to any injury to person or any damage to, or loss
or destruction of any property of Client, its employees, authorized
persons and invitees due to any act, omission or occurrence in or
about the TS premises or the Building. Without limitation of any
other provision hereof, each party hereto hereby
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agrees to indemnify, defend and hold harmless the other party hereto,
and such other party's officers, directors, employees, shareholders,
partners, agents and representatives from and against any liability
to third parties arising out of, in the case of Client as an
indemnifying party, Client's use and occupancy of the Office or any
negligent act or omission of Client or Client's officers, directors,
employees, shareholders, partners, agents, representatives,
contractors, customers or invitees and, in the case of TS as an
indemnifying party, any act or omission constituting gross negligence
or willful misconduct of TS or TS's officers, directors, employees,
shareholders, partners, agents or representatives. Subject to the
foregoing, Client assumes all risk of loss with respect to all
personal property of Client, its agents, employees, contractors, and
invitees, within or about the TS premises or the Building. Client
acknowledges that it is the Client's responsibility to maintain
insurance to cover the risks set forth in this paragraph.
TS and Client each hereby waive any and all rights of recovery
against the other, or against the directors, licensers, officers,
agents, servants and employees of the other, for loss of or damage to
its property or the property of others under its control, to the
extent such loss or damage is covered by any insurance policy.
If the TS premises is made unusable, in whole or in part, by fire or
other casualty not due to negligence of Client, TS may, at its
option, terminate the Agreement upon notice to Client, effective upon
such casualty, or may elect to repair, restore or rehabilitate, or
cause to be repaired, restored or rehabilitated, the TS premises,
without expense to Client, within ninety (90) days or within such
longer period of time as may be required because of events beyond
TS's control. The Monthly Base Services Fee shall be abated on a per
diem basis for the portions of the Client's Area that are unusable.
7. DEFAULT.
Client shall be deemed to be in default under this Agreement if: (a)
Client defaults in the payment of the Monthly Base Services Fee or
other sums due hereunder or (b) Client defaults in the prompt and
full performance of any other provision of this Agreement and any
such default continues in excess of five (5) business days after
written notice by TS.
Should Client be in default hereunder, TS shall have the option to
pursue any one or more of the following remedies without any
additional notice or demand whatsoever and without limitation to TS
in the exercise of any remedy:
(1) TS may, if TS so elects, without any additional notice
of such election or demand to Client, either forthwith
terminate this Agreement and the license to use any portion
of the TS premises, and may enter into the Client's Area and
take and hold possession of the contents thereof, without
releasing Client, in whole or in part, from the Client's
obligations hereunder. In the event of such termination, TS
may, at its option, declare the entire amount of the Monthly
Base Services Fee which would become due and
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payable during the remainder of the term, to be due and
payable immediately, in which event Client agrees to pay the
same at once.
(2) Pursue any other remedy now or hereafter available to
TS. TS's exercise of any right or remedy shall not prevent
it from exercising any other right or remedy.
Client agrees to pay all costs and expenses, including reasonable
attorney's fees, expended or incurred by TS in connection with the
enforcement of this Agreement, the collection of any sums due
hereunder, any action for declamatory relief in any way related to
this Agreement, or the protection or preservation of any rights of TS
hereunder.
8. RESTRICTION ON HIRING.
Client agrees that during the term of this Agreement and within one
(1) year of the termination of this Agreement, neither Client nor any
of its principals, employees or affiliates will hire directly or as
an independent contractor, any person who is at that time, or was
during the term of this Agreement, an employee of TS. In the event of
a breach of any obligation of Client contained in this paragraph,
Client shall be liable to TS for, and shall pay to TS, on demand,
liquidated damages in the sum of $10,000.00 for each employee with
respect to whom such breach shall occur.
9. MISCELLANEOUS.
A. This is the only Agreement between the parties. No other
agreements are effective. All amendments to this Agreement
shall be in writing and signed by all parties. Any other
attempted amendment shall be void. The invalidity or
unenforceability of any provision hereof shall not affect
the remainder hereof.
B. All waivers must be in writing and signed by the waiving
party. TS's failure to enforce any provision of this
Agreement or its acceptance of fees shall not be a waiver
and shall not prevent TS from enforcing any provision of
this Agreement in the future. No receipt of money by TS
shall be deemed to waive any default of Client or to extend,
reinstate or continue the term hereof.
C. All Schedules and Addenda attached hereto are hereby
incorporated herein by this reference. The laws of the State
in which the TS premises is located shall govern this
Agreement.
D. All parties signing this Agreement as a partnership or
co-signing individuals shall be jointly and severally liable
for all obligations of Client.
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E. Client represents and warrants to TS that there are no
agents, brokers, finders or other parties with whom Client
has dealt who are or may be entitled to any commission or
fee with respect to this Agreement.
F. Neither Client nor anyone claiming by, through or under
Client shall assign this Agreement or permit the use of any
portion of the TS premises by any person other than Client;
provided, however, Client may assign this Agreement to an
affiliated corporation of Client. In the event of any such
permitted assignment, Client shall not thereby be relieved
of any of its obligations under this Agreement.
G. The Rules and Regulations of the Building and of TS as
defined on Schedule "D" hereto and any additional schedules
that may be attached hereto are expressly made a part of
this Agreement and Client expressly covenants and agrees to
abide by all of such Rules and Regulations and such
additional terms, as well as such reasonable modifications
to such Rules and Regulations as may be hereafter adopted by
TS.
H. All notices hereunder shall be in writing. Notices to Client
shall be deemed to be duly given if mailed by registered or
certified mail, postage prepaid, addressed to Client at:
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Notice to TS shall be deemed to be duly given if mailed by
registered or certified mail, postage prepaid, to TS at the
Building and as follows:
Xx. Xxxx Xxxxxxx
Chief Financial Officer
TechSpace, LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
I. THIS AGREEMENT IS NOT INTENDED TO CREATE A LEASE OR ANY
OTHER INTEREST IN REAL PROPERTY IN FAVOR OF THE CLIENT, BUT
MERELY CREATES A REVOCABLE LICENSE IN ACCORDANCE WITH THE
TERMS HEREOF. This Agreement grants Client the license to
use the TS premises and the Client's Area for the specific
purposes herein set forth without diminution of the legal
possession or control thereof by TS and shall be revocable
at the option of TS upon the destruction of the TS premises
or the breach by Client of any term or condition herein set
forth. This Agreement is subject and subordinate to any
underlying lease or contract of the Building or of the
premises comprising the Client's Area or the TS premises as
such lease or contract may be amended from time to time
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(such underlying lease or contract together with any
amendments, is hereinafter referred to as the "Master
Lease"). This Agreement shall terminate simultaneously with
the termination of the TS premises operation for any reason.
Client is not a party to nor shall Client have any rights
under the Master Lease.
J. Client acknowledges that TS will comply with US Postal
Service regulations regarding Client mail and, upon
termination of this Agreement, it will be Client's
responsibility to notify all parties of termination of the
use of the above described address, assigned telephone
number, telex and facsimile numbers. For a period of thirty
(30) days after the termination of this Agreement, TS will,
at Client's written request and cost, provide Client's new
telephone number and address to all incoming callers and will
hold or forward to Client once a week all mail, packages,
facsimiles and telexes.
K. TS may assign this Agreement and/or any fees hereunder and
Client agrees to attorn to any such assignee.
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TECHSPACE, LLC
A Delaware Corporation
By:
-------------------------------
Its:
-------------------------------
CLIENT
Corporation:
A(n) corporation
-------------------------------
By:
-------------------------------
Its:
-------------------------------
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SCHEDULE "A"
Base Services
o Furnished Client Area
o Furnished and Decorated Reception Area
o Professional Receptionist
o Use of Furnished and Audio-Visually Equipped
Conference Rooms (8)
o Hours Per Month at No Charge
o Business Address
o Business Identity on Building Lobby Directory
o Facsimile Number for Client's Use
o Mail and Package Receipt
o Utilities
o Janitorial Service
o Building Operating Expenses
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SCHEDULE "B"
Additional Services
o Telephone Equipment
o Local and Long Distance Telephone Service
o Internet Connection Via T1
o Voice Messaging Services
o Secretarial Services
o Word Processing Services
o Excess Filing and Storage
o Facsimile Services
o Copying and Business Machines and Binding Services
o Outgoing Mail and Express Mail
o Printing and Office Supplies
o Miscellaneous Purchasing Services
o Catering, Food and Beverage Services
o Excess Conference Room Service
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SCHEDULE "C"
Breakdown of Total Monthly Base Service Fee:
Client Area Number Maximum Occupancy Monthly Fee
1 10 $4,200
TOTAL $4,200
Breakdown of Monthly Additional Services Fee:
Additional Service Number of Units Monthly Fee Per Unit Total Monthly Fee
Phone Equip. & Service 4 $100 $400
Facsimile Installation 1 $ 35 $ 35
Internet Service 4 $ 50 $200
TOTAL $635
Breakdown of One Time Set-Up and Installation Charges:
Additional Service Number of Units Fee Per Unit Total Fee
Phone Installation 4 $100 $400
Facsimile Installation 1 $100 $100
Internet Service 4 $100 $400
Card Key/Codes Set-Up 4 $150 $600
Signage 1 $100 Waived
TOTAL $1,500
Total Monthly Fee for Base and Additional Services: $4,835
Total Set-Up and Installation Charges: $1,500
Refundable Service Retainer (2 Times Monthly Total): $9,670
TOTAL DUE UPON EXECUTION OF AGREEMENT: $16,005
(1st Month's Rent, Set-Up & Installation Charges and Retainer)
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SCHEDULE "D"
Rules and Regulations
1. Client's employees and guests will conduct themselves in a
businesslike manner; the noise level will be kept to a level so as
not to interfere with or annoy other clients and Client will abide by
TS's directives regarding security, keys, and other such matters
common to all occupants.
2. Client will not affix anything to the windows, walls or any other
part of the Client's Area or the TS premises or make alterations to
the Area or TS premises without the prior written consent of TS.
3. Client will not prop open any corridor doors, exit doors or door
connecting corridors during or after business hours.
4. Client can only use public areas with the consent of TS those areas
must be kept neat and attractive at all times.
5. All corridors, halls, elevators and stairways shall not be obstructed
by Client or used for any purpose other than egress and ingress.
6. No advertisement or identifying signs, other than provided by TS, or
other notices shall be inscribed, painted, or affixed on any part of
the corridors, doors or public areas.
7. Client shall not, without TS's prior written consent store or operate
in the Client's Area or the TS premises any computer (except a
personal computer) or any other large business machine, reproduction
equipment, heating equipment, stove, radio, stereo equipment or other
mechanical amplification equipment, vending or coin operated machine,
refrigerator or coffee equipment, or conduct mechanical business
therein, do any cooking therein, or use or allow to be used in the
Building, oil burning fluids, gasoline, kerosene for heating, warming
or lighting. No article deemed hazardous on account of fire or any
explosives shall be brought into the TS premises. No offensive gases,
odors or liquids will be permitted.
8. The electrical current shall be used for ordinary lighting purposed
only unless written permission to do otherwise shall first have been
obtained from TS at an agreed cost to Client.
9. If Client requires any special installation or wiring for electrical
use, telephone equipment or otherwise, such wiring shall be done at
Client's expense by the personnel designated by TS.
10. Client will bring no animals other than seeing-eye dogs in the
company of blind persons into the Building.
11. Client shall not remove furniture, fixtures or decorative material from
the Client's Area or the TS premises.
12. Client will not use TS premises for manufacturing or storage of
merchandise except as such storage may be incidental to general
office purposes.
13. Client will not occupy or permit any portion of the TS premises to be
occupied or used for the manufacture, sale, gift or use of liquor,
narcotics or tobacco in any form.
14. Client will not use the Client's Area for lodging or sleeping or for
any immoral or illegal purposes.
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15. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows of the TS premises by Client nor shall any
changes be made on existing locks or the mechanisms thereof.
16. Client, shall before leaving the Client's Area for an extended period
of time, shall shut off all lights and other electrical apparatus.
Any damage resulting from failure to do so shall be paid by the
Client.
17. Canvassing, soliciting and peddling in the Building are prohibited
and Client shall not solicit other clients for any business or other
purpose without the prior written approval of TS.
18. All property belonging to Client or any employee, agent or invitee of
Client shall be at the risk of such person only and TS shall not be
liable for damages thereto or for theft or misappropriation thereof.
19. If Client does not remove any property belonging to Client from the
TS premises by the end of the term, at the option of TS, Client shall
be conclusively presumed to have conveyed such property to TS under
this Agreement as a xxxx of sale without further payment or credit by
TS to Client and TS may remove the same and Client shall pay TS all
costs of such removal upon demand.
20. Smoking shall be prohibited in all public areas, including conference
and training rooms. No smoking shall be permitted at any time in any
area of the TS premises.
TS shall have no responsibility to Client for the violation or non-performance
and shall use reasonable efforts to uniformly enforce all Rules and Regulations.
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