Exhibit 10.7
SERVICE AGREEMENT
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Agreement Date (incl. Year): May 21,
Agreement No.: 05211 1999
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1a OPERATOR - REGISTERED ADDRESS 1b OPERATOR - LOCATION
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REGUS BUSINESS CENTRE CORP. REGUS REDWOOD SHORES
Harrison Executive Park, 3000 Suite 600 o 303 Twin Dolphin Drive
Westchester Ave., Suite 112 REDWOOD CITY, CA 94065
Purchase, NY 10577
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2a CLIENT - REGISTERED ADDRESS 2b CLIENT - INVOICING ADDRESS (if
different)
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COMPANY NAME: Avesta Technologies, Inc. COMPANY NAME:
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CONTACT/TITLE: Cameron Salfi, VP CONTACT/TITLE:
Operations
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ADDRESS: Two Rector Street ADDRESS:
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ZIP CODE: 10006 CITY: New York City ZIP CODE: CITY:
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STATE: NY COUNTRY: USA STATE: COUNTRY:
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TELEPHONE: 212-285-1500 TELEPHONE:
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FACSIMILE: 212-285-1551 TAX I.D.
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3 FOR COMPANY USE ONLY COMMENTS:
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Client's Office Additional Fixed Costs (Quantities
No.(s) 54 55 57 to be Determined later):
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Phones @ $125 ea. / mo.
or such other room within the --------------------------------------
accommodation as allocated by the FAX / Modem line @ $50 / mo.
Operator in substitution form time to --------------------------------------
time.
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Service Retainer $10,800.00 T-1 Internet access @ $150 ea. / mo.
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Beverages @ $20 ea. / mo.
In respect to the agreed accommodation --------------------------------------
on behalf of Regus Business Centre Corp. Initial Payment:
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Standard Facility Fee Service Retainer $ 10,800
$5,400.00 per calendar month
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TAX $ M M D D Y Y June Rent for Office No. 54 $ 1,700
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Term Commencement Date 0 6 0 1 9 9 June Rent for Office No. 55 $ 1,850
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M M D D Y Y June Rent for Office No. 57 Free
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Termination Date 1 1 3 0 9 9 Total Due $ 14,350
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This Service Agreement (hereafter SA) is made between the Client whose name
appears in 2 above (hereafter "Client") and the Operator whose registered name
and address appear in 1a (hereafter "Operator"). The Accommodation is the sixth
floor, 303 Twin Dolphin Drive, Redwood City, CA 94065 (hereafter
"Accommodation").
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The Client hereby confirms that The Client has read and understood the terms and
conditions on the reverse side and agrees to be bound thereby and The Operator
agrees to provide the services and facilities as mentioned on the reverse side.
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For and on behalf of The Operator For and on behalf of The Client
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Name (printed): Rob Scafe Name (printed): Cameron Salfi
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Title: Corporate Account Manager Title: VP, Operations & Administration
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Date: 5/25/99 Date: 5/25/99
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Signature: /s/ Rob Scafe Signature: /s/ Cameron Saifi
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Terms & Conditions
1. FACILITIES AND SERVICES PROVIDED UNDER THIS AGREEMENT
a) In consideration of the payment by the Client of the standard facility fee
specified in box 3 overleaf each month, the Operator provides the Client with
access to and use of a fully furnished office accommodation (the
"Accommodation") as specified overleaf in box 3 and public areas such as
reception, kitchen, sanitary facilities and photocopying areas during the normal
operating hours of 8:30 a.m. to 6:00 p.m., Monday through Friday. The standard
facility fee includes all rates (except where specifically agreed between Client
and Operator).
In addition, this standard facility fee includes: |_| 4 hours free use of a
conference room for every calendar month of this Agreement, subject to
availability |_| three days free office usage at any Regus centre world-wide,
subject to availability, for every complete calendar month of this Agreement.
|_| all service charges relating to normal use of heating, lighting, cleaning
and servicing of public areas such as reception, kitchen and sanitary
facilities.
|_| personalized telephone answering |_| receptionist to greet visitors
b) The following services and facilities are made available, for an additional
service charge, either directly or through third parties: |_| secretarial
services |_| photocopying |_| messaging |_| courier services |_| facsimile |_|
car parking* |_| travel arrangements |_| office supplies |_| translations |_|
meeting rooms |_| food and beverage services |_| mail handling |_| voicemail*
|_| Videoconferencing* (*subject to availability)
2. DURATION AND TERMINATION OF THIS AGREEMENT
a) This Agreement is concluded for the duration specified in section 3 overleaf.
Unless terminated in writing by either party giving thirty (30) days notice
(forty five (45) days if the Accommodation consists of five or more offices), it
will be automatically extended by further periods of two (2) months until three
months notice of termination is received prior to the end of an extension
period.
b) Extraordinary termination of this Agreement and of the right of access to the
business centre
The Operator may terminate this Agreement or refuse an extension of this
Agreement for just cause, including breach of any part of this Agreement.
Equally, if the Client, being a company, enters into liquidation whether
compulsory or voluntary (save for the purpose of reconstruction or amalgamation)
or, being an individual, has a receiving order made against hire or becomes
bankrupt, the Operator will have the right to terminate all of the Client's
rights under this Agreement or such other rights as the Operator designates with
a without notice to the Client and in addition to and not in lieu of other
remedies available. Upon any such action by the Operator, the Client will remain
liable for all obligations which have previously accrued and will have to pay an
indemnity equal to 3 months standard facility fee or the total facility fee of
the unexpired term whichever is greater, together with all damages it may incur
by reason thereof, including the cost of recovering and relating the
Accommodation and attorneys' fees and expenses. This Agreement may be terminated
at the option of the Operator upon the occurrence of any casualty or
condemnation affecting the Accommodation of the business centre.
In case of termination of the lease (the "Lease") between the Operator and
the building owner ("Landlord"), this Agreement shall immediately terminate,
unless Landlord requests that the Client agree upon the terms and conditions
hereof for the unexpired term of this Agreement.
c) Extension of stay beyond the normal period of this Agreement
Should the Client require the use of the Accommodation once this agreement
period has terminated and has not been renewed under the general provisions
of this Agreement. It is at the Operator's discretion to permit such an
extension and it is subject to a surcharge of 150% on the standard facility
fee, together with the service charges for any services used by the Client
during such period. The Client shall be responsible for any loss, claim or
liability incurred by the Operator pursuant to the terms of the Lease on
account of the Client's failure to timely surrender the Accommodation.
3. PAYMENT OF THE STANDARD FACILITY FEE AND SERVICE CHARGE
a) Standard facility fee
The standard facility fee plus applicable taxes as listed in section 3 overleaf
is payable in advance without any offset or deduction on the first working day
of each month.
b) Service charges
All service charges for services and facilities used plus applicable tax are
invoiced in arrears and are payable within seven days of receipt of invoice. The
Operator reserves the right to change the cost of any or all of the service
charges at any time during the term of this Agreement by giving 30 days notice
to the Client.
c) Service Retainer
Prior to being given access to the Accommodation, the Client will pay a retainer
specified overleaf against all obligations entered into by the Client in this
Agreement, including any damage to the Client's Accommodation and furnishings
and fittings therein. The retainer will be returned to the Client within 60 days
of the Client vacating the Accommodation, subject to the deduction of any
outstanding standard facility fee or service charges or other fees outstanding
and the cost of returning the Accommodation to the condition it was found in at
the commencement of the term, reasonable wear and tear excepted. The Client
shall immediately replenish any portion of the retainer applied or retained by
the Operator on account or any default by the Client hereunder. The Operator
reserves the right to increase the retainer should the Client's outstanding
facility fee and service charges exceed the retainer amount held or if the
Client is repeatedly in arrears with payment of invoices.
d) Penalties upon late payment
The Operator reserves the right to terminate this Agreement and ask the Client
to vacate the Accommodation immediately if the standard facility fee is not paid
or the service charges for the additional services are not paid by the end of
the day they are due. Any invoiced amounts left outstanding after their due date
will be subject to interest at the rate of 4% above the annual rate of interest
from time to time publicly announced by Citibank, N.A. as its prime commercial
lending rate and a late charge of 5%. The Operator may also suspend the delivery
of any services to the Client and/or the Accommodation if the Client is in
default of any of it obligations hereunder.
f) Payment of disputed invoiced items
Should part of an invoice issued by the Operator be in dispute, the Client will
be obliged to pay by the deadlines mentioned above the part of the invoice which
is not in dispute while the disputed amount is being settled between the
Operator and the Client without prejudice to paragraph 3(d) above.
4. THE CLIENT'S RIGHTS AND RESPONSIBILITIES
a) The Client will be entitled to carry on his business in the Accommodation
specified in box 3 overleaf. The Operator reserves the right to relocate the
Client to another office of similar size and equipment within the business
centre should this become necessary for business reasons
b) During the term of this Agreement and subject to timely payment of the
standard facility fee, the Client is entitled to use the address of the business
centre as his business address. Upon termination of this Agreement for whatever
reason, it is the Client's responsibility to notify all parties of the change of
address. Subsequent mail sent to the address will be returned to sender.
c) The Client may only conduct business from the Accommodation in the name of
the Client specified overleaf or such other business name as may be agreed in
writing with the Operator.
d) Upon being given access to the Accommodation and office(s), an inventory list
will be drawn up in which the Client confirms receipt of keys or entry cards,
the condition of the Accommodation and furniture and fittings at the start of
this Agreement.
e) The keys and entry cards remain the property of the Operator and shall not be
duplicated or transferred to third parties without the express written
permission of the Operator. The loss of keys must be reported to the Operator
immediately. The cost of lost keys or cards, as well as the coat of changing
locks will be borne by the Client. Should the Client use the Accommodation
outside normal working hours he is responsible for locking all doors used.
f) The Client may not alter the Accommodation allocated to him in any way or
install any furniture, equipment or telecommunication connections without me
prior written consent of the Operator. The granting of this consent is entirely
at the discretion of the Operator.
g) The Client will conduct business in a way which does not interfere with the
Operator or any other client of the business centre and will comply with (and
pay, as the case may be) all laws, permits, licensing laws, and state, city or
other local taxes (including any rent and occupancy taxes) and any other
requirements regulating the conduct of his business.
h) The Client may not bring animals into the centre or play loud music or use
amplification equipment.
i) The Accommodation is in a non-smoking building.
j) The Client may not mount name signs or any type of advertising boards visible
from outside his immediate Accommodation. Subject to the terms of the Lease and
to availability, the Client will be included in any house directory. Any costs
incurred in doing so will be paid for by the Client.
k) The Client may not use the Accommodation for any activities or actions which
could be damaging to the Operator or Landlord or which could lead to an increase
in insurance premiums paid by the Operator.
l) The Client may not offer employment to or hire any of the employees of the
Operator. This applies to the entire duration of this Agreement and six months
following its termination. If the Client contravenes provision, the Operator
will be entitled to compensation in the sum of the total annual remuneration of
the employee(s) in question.
m) The Client will remain solely responsible for the safety of its property and
personnel and is responsible for actions and the actions of his employees. The
Client shall maintain (a) all-risk property insurance covering property and (b)
comprehensive general liability insurance, with the Operator and Landlord named
as additional insureds, of no less than $2,000,000. The Client shall deliver to
the Operator certificates of Insurance evidencing] such coverage. All such
policies shall contain a provision whereby the same cannot be cancelled or
modified unless the Operator is given at least thirty (30) days' prior written
notice thereof. The Client shall defend and indemnify and hold the Operator
harmless from any and all claims, liability or loss arising out of or incident
to any injury to or death of persons occurring on or about the Accommodation and
(ii) the provision of, or use by the Client of any facilities (including
occupancy of the Accommodation) or services hereunder. The Client hereby
releases the Operator from any liability which the Operator might have to the
Client for any damage caused by casualty. The Client agrees to include in its
casualty insurance a waiver of the insurer's right of subrogation against the
Operator.
n) The Client shall take such steps as are necessary to comply with its health
and safety obligations and shall comply with such reasonable requirements of the
Operator to this regard or in the management of the business centre generally as
are necessary from time to time.
o) The Client will use the Accommodation for general office purposes only and
for no other purposes (i.e. retail or service open to the general public), and
will not use the Accommodation to provide to others services provided by Regus
to Regus Clients and will not in any way whatsoever use or combine the Regus
name whole or in part, for the purpose of trading activities.
p) The Client shall vacate the Accommodation on the day of expiration of this
Agreement leaving Accommodation in the same condition as it was found save for
wear and tear. The Client shall be required to repair any damage to the
building, the business centre or the Accommodation caused by the Client. The
Operator does not accept responsibility for any belongings of the Client left in
the Accommodation and has the right to dispose of such property.
q) Joint and several liability
Should the Client be more than one person or party, all parties to this
Agreement are liable jointly and severally for all obligations arising from this
Agreement.
r) Notwithstanding any other terms of this Agreement, Client shall have ten (10)
business days in which to cure any alleged breach of this Agreement after
receipt of written notice from the Operator.
5. THE OPERATOR'S RIGHTS AND RESPONSIBILITIES
a) The Operator is responsible for: |_| general maintenance of the business
centre and the Client's Accommodation |_| cleaning of the entire business centre
|_| adequate lighting during normal opening hours |_| maintenance checks and
renewals of equipment in the business centre.
b) The Operator has the right to enter the Client's Accommodation, upon giving
reasonable notice, to inspect them, undertake repairs, maintenance work and to
show the Accommodation to prospective clients.
c) The Operator will not be liable for any loss (real or consequential)
sustained as a result of the Operator failing to provide any of the services as
set forth in this Agreement as a result of any mechanical breakdown, strike,
delay or failure of any staff, manager or caretaker to perform their duties
unless acting with negligence and intent.
d) If the Client cannot be given access to the Accommodation or services, the
Operator's liability is limited to forfeiting the standard facility fee
chargeable for that period.
e) If the Operator is unable to deliver possession of any part of the
Accommodation to be provided at the commencement of the term, the Operator will
not be liable for any resulting damage nor will he have any liability except
that the Client will not have to pay the standard facility fee for the period
concerned and may withdraw from this Agreement.
f) The Operator shall be entitled to a reasonable period to cure any default by
the Operator hereunder prior to the exercise of any remedies that the Client may
have on account thereof.
g) Upon any assignment of the Operator's interest in the Lease, the Operator
shall be automatically and entirely discharged from all liability in respect of
the obligations to be performed by the Operator
6. OTHER PROVISIONS
a) This Agreement represents a contractual agreement between the Client and the
Operator for the provision of services by the Operator to the Client. The
Operator and the Client acknowledge by their execution hereof that no tenancy or
lease rights are created in favor of the Client.
b) This Agreement may not be assigned, nor may any portion of the Accommodation
be sublet, by the Client without the express written permission of the Operator,
and any much purported assignment or sublet without such consent shall be void.
c) This Agreement may be transferred to another Regus centre worldwide with 60
day notice.
d) All notices by the Client or the Operator to the other must be in writing and
delivered to an officer or authorized representative of the party concerned or
sent by certified or registered mail, return receipt requested to the respective
address shown overleaf.
e) The invalidity or unenforceability of any provision herein will not affect or
impair the validity of a provision. No waiver of any default of the Client will
be implied from any failure by the Operator to take action with respect to such
default.
f) This Agreement supersedes any prior agreement and embodies all the
contractual stipulations between the Client and the Operator relative to its
subject matter.
g) This Agreement is interpreted and enforced with the laws of the state in
which the centre in question is located.
h) The Client shall pay any costs (including attorneys' fees) incurred by the
Operator in enforcing the terms of this Agreement.
i) This Agreement is subordinate to the Lease and to any agreements to which the
Lease is subordinate
j) The Client shall indemnify the Operator for any loss, claim or liability
incurred by the Operator pursuant to the terms of the Lease on account of any
default by the Client hereunder.
k) The Client and the Operator hereby agree that without the consent of the
other, they will not during the term or at any time thereafter disclose or use
any of the terms this Agreement unless such disclosure is required by law. This
provision shall survive the expiration or sooner termination hereof.
l) The Client waives, to the full extent permitted by law, any claim for
consequential damages against the Operator in connection with this Agreement.
m) To the extent permitted by applicable law, the Client hereby waives trial by
jury in connection with any dispute arising out of this Agreement.
n) The Client represents that it dealt with no broker In connection with this
Agreement other than identified below. The Client shall indemnify the Operator
from any loss or liability that the Operator may incur arising out of any
inaccuracy or alleged inaccuracy of such representation. This provision shall
survive the expiration or sooner termination hereof. Broker used in connection
with this Agreement:
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Brokers: Clint VanOstrand -- Cornish & Carey Commercial
David Churton -- Insignia / ESG