EXHIBIT 10.17
[GRAPHIC]
HQ GLOBAL
WORKPLACES
MASTER OFFICE SERVICE AGREEMENT
This Master Office Service Agreement ("Master Agreement") is dated and is
entered into in Seattle, Washington by and between HQ GLOBAL WORKPLACES, INC.
(hereinafter "HQ") and Shopping Sherlock, Inc. (hereinafter "Client").
1. OFFICE. Client shall execute an Office Service Agreement ("Office
Agreement") for each HQ Global Workplaces center location where Client licenses
an Office and is provided services by HQ. Furthermore, each Office Agreement
shall be attached as a schedule to this Master Agreement. Furthermore, all of
the terms and conditions of each Office Agreement shall be incorporated into and
become part of this Master Agreement.
Client shall, as part of the Base Services, be granted a license to use the
Office and shall have access to the Office twenty-four (24) hours a day, seven
(7) days a week. HQ agrees to provide office cleaning, maintenance services,
electric heating and air conditioning to the Office for normal office use in
such reasonable quantities and during such reasonable hours as shall be
determined by HQ or the Building. In addition, Client will have reasonable use
of HQ common area facilities during normal business hours. Client shall use the
Office and common areas of the HQ Global Workplaces center solely for general
office use in the conduct of the Client's business. HQ agrees, at its own cost
and expense, to furnish and to install furniture, fixtures and equipment that
are in HQ's sole opinion necessary to provide suitable office facilities for the
Client upon such terms and conditions routinely applicable to the facility;
provided that such furniture, fixtures and equipment shall remain HQ's property.
If, for any reason whatsoever, HQ is unable to provide use of the Office or
a mutually agreed upon alternative Office at the time herein agreed, Client may
either extend the Commencement Date until the Office becomes available or, as
its sole remedy for such failure, cancel and terminate this Agreement if the use
of the Office is not available to Client within five (5) business days after
written notice to HQ by Client, in which case any prior payments shall be fully
refunded. No such failure to provide use of the Office shall subject HQ to any
liability for loss or damage, nor affect the validity of this Agreement or the
obligations of the Client hereunder.
HQ will have the right to relocate Client to another office in the HQ
Global Workplaces center, and to substitute such other office for the Office
licensed hereby, provided such other office is substantially similar in area and
configuration to Client's contracted office and provided Client shall incur no
increase in the Monthly Base Office Fee or any relocation cost or expense.
2. SERVICES. HQ agrees, in consideration of the Monthly Base Office Fee, to
provide Base Services to Client as described in Schedule "A". From time to time
during the Term, HQ 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 HQ. Fees are subject to change at HQ's discretion, with thirty
(30) days written notice to the Client from the HQ Global Workplaces center. HQ
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, HQ may, at its option, cease furnishing any and all
services including telephone services.
Client will not offer to any party in the HQ Global Workplaces center or
the Building, any of the services that HQ provides to its clients including, but
not limited to, the services described in Schedule "A" or "B".
Client acknowledges that due to the imperfect nature of verbal, written and
electronic communications, neither HQ nor HQ's Landlord or 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 HQ to furnish any service, including but not limited to the service
of conveying messages, communications and other utility or services required
under this Master Agreement, Office Service Agreement or agreed to by HQ.
Client's sole remedy and HQ'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 OR
PROFITS, ARISING OUT OF ANY FAILURE TO FURNISH ANY SERVICE, ANY ERROR OR
OMISSION WITH RESPECT THERETO, OR ANY DELAY OR INTERRUPTION OF THE SAME.
3. DURATION OF AGREEMENT. This Master Agreement can be terminated by either
party upon thirty (30) days written notice provided such notice is in accordance
with section 8(G), if and only if all of the licenses for office space granted
in accordance with the attached schedules have expired or been terminated.
Upon any termination of this Master Agreement or any Office Agreement,
whether by lapse of time or otherwise, or upon any revocation of Client's
license herein granted, the Client shall cease all use of the Office, the HQ
Global Workplaces center and all services immediately. For each and every month
or portion thereof that Client continues use of the Office after the termination
of this Master Agreement or any Office Agreement by lapse of time or otherwise,
without the express written consent of HQ, Client shall pay HQ an amount equal
to two (2) times the Monthly Base Office Fee computed on a per-month basis for
each month or portion thereof that Client continues the use of the Office.
4. PAYMENTS AND ESCALATIONS. Client agrees to pay to HQ the Monthly Base
Office 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, fees for any such month shall be prorated.
Charges for any Schedule "B" service purchased by Client from HQ 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 an Office Agreement and each and
every anniversary date thereafter, the Monthly Base Office Fee will
automatically increase by an agreed upon percentage of the Monthly Base Office
Fee due for the month preceding such anniversary date. All Monthly Base Office
Fees and other sums payable hereunder shall be payable at the office of HQ or at
such other location or to any agent designated in writing by HQ. In addition to
any other sums due, Client shall pay monthly late charges equal to five percent
(5%) of all amounts that
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have not been paid to HQ within five (5) days of their respective due dates. The
parties agree that such late charges are fair and reasonable compensation for
costs incurred by HQ where there is default in any payment due under this Master
Agreement or an Office Agreement.
Upon the execution of an Office Agreement, Client shall pay HQ or its agent
the Refundable Services Retainer. The Refundable Services Retainer need not be
kept separate and apart from other funds of HQ, no interest shall be paid
thereon, and may be used by HQ to provide Schedule "A" and "B" services under
this Master Agreement. In addition to the Refundable Services Retainer, Client
will, upon execution of an Office Agreement, pay to HQ the Total Fixed Monthly
Charges for the first full month of the Initial Term.
Client agrees that the Refundable Services Retainer shall not be used by
Client as payment for the Monthly Base Office 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, HQ may terminate this Master 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 HQ may
spend by reason of Client's default. If Client shall, at the end of the term of
this Master Agreement, have fully and faithfully complied with all of the terms
and provisions of this Master 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
5. 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 Office or the common area facilities. Client will not cause damage to any
part of the Building or the property of HQ or disturb the quiet enjoyment of any
other licensee or occupant of the Building. At the termination of this Master
Agreement, the Office shall be in as good condition as when Client commenced the
use thereof, normal wear and tear excepted. Client agrees to pay for repainting
and cleaning fees for each Office occupied less than twelve (12) months by
Client, at a cost not to exceed Two Hundred Fifty Dollars ($250.00) per Office.
Client is responsible for costs of repairing any damage to office or furniture
and to return each office to HQ in good condition. HQ will have the right, at
any time and from time to time, to enter the Office to inspect the same, to make
such repairs and alterations as HQ reasonably deems necessary, and the cost of
any such repair resulting from the act or omission of Client shall be reimbursed
to HQ by Client upon demand. HQ shall have the right to show the Office to
prospective Clients, provided HQ will use reasonable efforts not to disrupt
Client's business.
HQ or Client and its respective directors, licensors, officers, agents,
servants and employees shall not, to the extent permitted by law, except upon
the affirmative showing of HQ's or Client's gross negligence or willful
misconduct, be liable for, and Client or HQ waives all right of recovery against
such entities and individuals for any damage or claim with respect to any injury
to person or damage to, or loss or destruction of any property of Client or HQ,
its employees, authorized persons and invitees due to any act, omission or
occurrence in or about the HQ Global Workplaces center or the Building. Without
limitation of any other provision hereof, each party hereto hereby 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 act or omission constituting gross negligence or willful
misconduct of Client or Client's officers, directors, employees, shareholders,
partners, agents, representatives, contractors, customers or invitees and, in
the case of HQ as an indemnifying party, any act or omission constituting gross
negligence or willful misconduct of HQ or HQ'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 HQ Global
Workplaces center or the Building. Client acknowledges that it is the Client's
responsibility to maintain insurance to cover the risks set forth in this
paragraph.
HQ and Client each hereby waive any and all rights of recovery against the
other, or against the directors, licensors, 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 HQ Global Workplaces center is made unusable, in whole or in part,
by fire or other casualty not due to negligence of Client, HQ may, at its
option, terminate the Master 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 HQ Global Workplaces center, without
expense to Client, within ninety (90) days or within such longer period of time
as may be required because of events beyond HQ's control. The Monthly Base
Office Fee shall be abated on a per diem basis for the portions of the Office
that are unusable.
6. DEFAULT. Client shall be deemed to be in default under this Master
Agreement and all executed Office Agreements: (a) if Client defaults in the
payment of the Monthly Base Office Fee or other sums due or (b) if Client
defaults in the prompt and full performance of any other provision of this
Master Agreement or any executed Office Agreements and any such default
continues in excess of ten (10) business days after written notice by HQ.
Should Client be in default hereunder, HQ 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 HQ in the exercise of any remedy:
(1) HQ may, if HQ 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 HQ Global Workplaces center, and may enter into the
Office 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, HQ may, at its option, declare the entire amount of
the Monthly Base Office Fee which would become due and 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 HQ. HQ's exercise
of any right or remedy shall not prevent it from exercising any other right or
remedy.
7. RESTRICTION ON HIRING. Client agrees that during the term of this Master
Agreement and within one (1) year of the termination of this Master 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 HQ. In the event of a breach
of any obligation of Client contained in this paragraph, Client shall be liable
to HQ for, and shall pay to HQ, on demand, liquidated damages in the sum of
$25,000.00 for each employee with respect to whom such breach shall occur, it
being mutually agreed that the actual damage that would be sustained by HQ as
the result of any such breach would be, from the nature of the case, extremely
difficult to fix and that the aforesaid liquidated damage amount is fair and
reasonable.
8. MISCELLANEOUS.
A. 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. HQ's
failure to enforce any provision of this Agreement or its acceptance of fees
shall not be a waiver and shall not prevent HQ from enforcing any provision of
this Agreement in the future. No receipt of money by HQ shall be deemed to waive
any default of Client or to extend, reinstate or continue the term hereof.
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C. All Schedules and Addenda attached hereto are hereby incorporated herein
by this reference. The laws of the State in which the HQ Global Workplaces
center 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.
E. Neither Client nor anyone claiming by, through or under Client shall
assign this Master Agreement and Office Agreements or permit the use of any
portion of the HQ Global Workplaces center by any person other than Client;
provided, however, Client may assign this Master Agreement and Office Agreements
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 Master Agreement or any Office Agreement.
F. The Rules and Regulations of the Building and of HQ as defined on
Schedule "C" 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 HQ.
G. 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, overnight mail service or hand delivered with proof of delivery
addressed to Client at:
Contact: Mr. Xxxxxxx XxXxxxx
Client Name: Shopping Sherlock, Inc.
Client Address 1: Suite 1150
Client Address 2: 0000 Xxxx Xxxxxxx
Xxxxxx Xxxx/Xxxxx/Xxx: Xxxxxxxxx, XX Xxxxxx X0X 0X0
Phone #: 000-000-0000
Facsimile #: 604-687-7684
Notice to HQ shall be deemed to be duly given if mailed by registered or
certified mail, postage prepaid, overnight mail service or hand delivered with
proof of delivery addressed to HQ at the Building and as follows:
HQ Global Workplaces, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000X
Xxxxxxx, XX 00000
Attn: Legal Department
With copy to:
HQ Global Workplaces, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx XX, Xxxxx 000
Xxxxxx, XX 00000
Attn: Legal Department
H. THIS MASTER AGREEMENT AND THE OFFICE AGREEMENTS ARE 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
Master Agreement and an Office Agreement grant Client the license to use the HQ
Global Workplaces center and the Office for the specific purposes herein set
forth without diminution of the legal possession or control thereof by HQ and
shall be revocable at the option of HQ upon the destruction of the HQ Global
Workplaces center or the breach by Client of any term or condition herein set
forth. This Master Agreement and Office Agreement are subject and subordinate to
any underlying lease or contract of the Building or of the premises comprising
the Office or the HQ Global Workplaces center as such lease or contract may be
amended from time to time. (such underlying lease or contract together with any
amendments, is hereinafter referred to as the "Master Lease"). An Office
Agreement shall terminate simultaneously with the termination of the
corresponding HQ Global Workplaces center operation for any reason. Client is
not a party to nor shall Client have any rights under the Master Lease.
I. Client acknowledges that each HQ Global Workplaces center will comply
with U.S. 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
and facsimile numbers. For a period of thirty (30) days after the termination of
this Agreement, HQ 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, and facsimiles.
J. HQ may assign this Agreement and/or any fees hereunder and Client agrees
to attorn to any such assignee.
K. In the event any dispute arises between HQ and Client concerning this
Master Agreement or any Office Agreement and the rights and obligations
hereunder HQ shall have the option, but not the obligation, 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 Facility is located. The decision of the arbitrator shall be binding
on the parties. The non-prevailing party as determined by the arbitrator shall
pay the prevailing parties attorney's fees and costs of the arbitration.
Furthermore, if a court decision prevents or HQ elects not to submit this matter
to arbitration, then the non-prevailing party as determined by the court shall
pay the prevailing parties reasonable attorney's fees and costs.
L. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
HQ Global Workplaces, Inc.
By: "Xxxx Xxxxxxx"
----------------------------
Authorized Signature
Xxxx Xxxxxxx
----------------------------
Print Name
Its: Center Manager
Client: Shopping Sherlock, Inc.
By: "Xxxxxxx XxXxxxx"
-------------------------------
Authorized Signature
Xxxxxxx XxXxxxx
-------------------------------
Print Name
Its: Chief Financial Officer
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SCHEDULE "A"
Base Services
o Furnished Executive Office
o Furnished and Decorated Reception Area
o Professional Receptionist, Message Center, and Office Manager
o Use of Furnished, and Audio-Visual Equipped Conference Rooms, 8 hours per
month at no charge
o Prestigious Business Address
o Building Lobby Directory Listing*
o Facsimile Number for Client's Use
o Mail and Package Receipt
o Utilities and Janitorial Service
o Building Operating Expenses
*Where available
SCHEDULE "B"
Additional Services
Word Processing Services
Secretarial Services
Facsimile Services
Copy and Binding Services
Outgoing Mail & Express Delivery Services
Additional Office Furniture
Specialized Equipment
Printing & Office Supplies
Miscellaneous Purchasing Services
Catering & Beverage Services
Paging Services
Telephone Equipment
Specialized Telephone Services
Local & Long Distance Telephone Service
Excess Conference Room Usage Other
Client Requested Services*
*Where available
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SCHEDULE "C"
RULES AND REGULATIONS
1. Client's employees and guests will conduct themselves in a businesslike
manner; proper business 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 clients and Client
will abide by HQ's directives regarding security, keys, parking and other such
matters common to all occupants.
2. Client agrees to use chair mats and desk pads in the Office(s) and any
damage from failure to use the same will be the responsibility of Client. Client
will not affix anything to the windows, walls or any other part of the Office(s)
or the HQ Global Workplaces center or make alterations or additions to the
Office(s) or the HQ Global Workplaces center without the prior written consent
of HQ.
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 HQ and 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 HQ, or
other notices shall be inscribed, painted, or affixed on any part of the
corridors, doors or public areas.
7. Client shall not, without HQ's prior written consent, store or operate
in the Office(s) or the HQ Global Workplaces center any computer (excepting 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 a 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 HQ Global
Workplaces center. No offensive gases, odors or liquids will be permitted. No
fire arms will be permitted.
8. The electrical current shall be used for ordinary lighting purposes only
unless written permission to do otherwise shall first have been obtained from HQ
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 HQ.
10. Client may not conduct business in the hallways, reception area or any
other area except in its designated Office(s) without the prior written consent
of HQ.
11. Client will bring no animals other than seeing-eye dogs in the company
of blind persons into the Building.
12. Client shall not remove furniture, fixtures or decorative material from
the Office(s) without the written consent of HQ and such removal shall be under
the supervision and regulations of the HQ Global Workplaces center.
13. Client will not use the HQ Global Workplaces center for manufacturing
or storage of merchandise except as such storage may be incidental to general
office purposes.
14. Client will not occupy or permit any portion of the HQ Global
Workplaces center to be occupied or used for the manufacture, sale, gift or use
of liquor, narcotics or tobacco in any form.
15. Client will not use the Office(s) for lodging or sleeping or for any
immoral or illegal purposes.
16. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows of the HQ Global Workplaces center by Client nor shall any
changes be made on existing locks or the mechanisms thereof.
17. Client shall, before leaving the Office(s) unattended for an extended
period of time, close and securely lock all doors and shut off all lights and
other electrical apparatus. Any damage resulting from failure to do so shall be
paid by Client.
18. 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 HQ.
19. All property belonging to Client or any employee, agent or invitee of
Client shall be at the risk of such person only and HQ shall not be liable for
damages thereto or for theft or misappropriation thereof.
20. If Client does not remove any property belonging to Client from the HQ
Global Workplaces center by the end of the term, at the option of HQ, Client
shall be conclusively presumed to have conveyed such property to HQ under this
Agreement as a xxxx of sale without further payment or credit by HQ to Client
and HQ may remove the same and Client shall pay HQ all costs of such removal
upon demand.
21. 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
HQ Global Workplaces center (including open offices and workstations); provided,
however, with the prior written consent of HQ, smoking shall be permitted in
Client's Office(s), but only with the door closed, and then only cigarette
smoking will be permitted so long as client provides an air filter device
acceptable to HQ, unless the entire Building has been designated non-smoking, in
which case smoking is not permitted in the Office(s). Cigar and pipe smoking are
prohibited in all areas of the HQ Global Workplaces center.
22. Client will use only telecommunications systems and services as
provided by HQ. Client will pay to HQ a monthly equipment rental fee for the use
of each telephone instrument and voice lines. In the event HQ discontinues the
offering of long distance service, Client will provide its own long distance
service through a locally accessed long distance carrier.
23. Client or Client's officers, directors, employees, shareholders,
partners, agents, representatives, contractors, customers, or invitees shall be
prohibited from participating in any type of harassment, verbal or physical in
the HQ Global Workplaces center for any reason.
HQ reserves the right to make such other rules and regulations as in its
judgement may from time to time be needed for the safety, care and cleanliness
of the offices. HQ shall have no responsibility to Client for the violation or
non-performance by any other HQ clients of any of the Rules and Regulations but
shall use reasonable efforts to uniformly enforce all Rules and Regulations.
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