This Service Agreement (“Service Agreement”) between Agile Offices LLP (“Agile”) and the undersigned customer (“Customer”)(together with the Guarantor, if applicable, collectively the “Parties”) sets forth the terms and conditions applicable to the provision of Services by Agile to Customer at 250 Yonge Street, Suite 2201, Toronto and the associated parking lot (the “Site”). As used herein, the term “Services” means all services provided by Agile to Customer, including, if applicable, the provision on a temporary basis of fully equipped office space, meeting rooms, parking spaces, secretarial services, telephone answering services, and mail reception and mail forwarding services. Customer may not transfer or otherwise assign its rights under this Agreement without prior written authorization of Agile. THIS AGREEMENT IS NOT A LEASE FOR OFFICE SPACE AND DOES NOT GRANT ANY RIGHTS IN REAL ESTATE OR UNDER LANDLORD/TENANT LAW TO CUSTOMER. CUSTOMER AGREES THE RIGHTS GRANTED HEREIN MERELY CONSTITUTE A REVOCABLE RIGHT TO USE CERTAIN OFFICE FACILITIES AND ACQUIRE CERTAIN SERVICES, WHICH ARE CONDITIONED UPON CUSTOMER’S COMPLIANCE WITH THE ‘SITE RULES AND REGULATIONS’ ATTACHED HERETO AS SCHEDULE “A” (THE “SITE RULES”) AND, SUCH RIGHTS BEING REVOCABLE, ARE SUBJECT TO TERMINATION BY AGILE IF, IN THE SOLE DISCRETION OF AGILE, IT BE IN THE BEST INTERST OF AGILE TO REVOKE THEM.
1. Office Use Restrictions
1.1 Customer may use board room/office on temporary basis as agreed upon with Licensor. If any Board Room/Office is not available then any other Board Room/Office, smaller or bigger, will be provided at same price. If The right to use Board Room/Office at the Site granted pursuant to this Agreement is restricted to professional office uses only, and solely to the Licensee. In the event Customer has purchased Board Rooms or Office then as part of the Services, Customer may only use such office space(s) assigned to Customer by Agile and solely for the benefit of Customer. Non-standard office equipment must be approved by Agile in writing prior to installation at the Site. As used herein, “Non-standard office equipment” means any office equipment not customarily used in professional offices in Toronto.
1.2 Unless otherwise advised in writing by Agile, Customer and Customer’s guests must adhere to all Site Rules. Changes to Site Rules may be made at the discretion of Agile. Agile retains the right to immediately terminate Customer’s access to the Site, including parking, if, in Agile’s unfettered opinion, termination of Customer’s access is necessary to maintain a safe and productive work environment.
1.3 If Customer is purchasing Office Space or Board Rooms then customer improvements to office space must be pre-approved by Agile in writing and, once installed or completed, shall not be removed by Customer at the termination of this Agreement. Customer may not use any hard-wired telecommunications equipment or other wiring not installed by Agile and may not install or modify existing hard-wired telecommunications equipment or other wiring. Customer may also not change any locks or add additional locking mechanisms to secure any office space at the Site.
1.4 Upon any termination of this Agreement, Customer agrees to vacate the Site and cease all use of the Services. At the termination of this Agreement, Agile will not provide any further Services to Customer.
Customer will also be liable for any damages to Agile resulting from its failure to timely vacate the Site as set forth above.
2. Office Services
2.1 Services offered and hours of availability are determined by Agile and may be discontinued or modified by Agile without prior notice.
2.2 Customer assumes the responsibility for errors in any Services provided or performed by Agile and Agile-supplied personnel and equipment, including for errors in any secretarial services provided by Agile’s personnel. Customer hereby agrees to hold Agile harmless and to indemnify Agile for any damages incurred by third parties as a result of any such errors.
2.3 Customer agrees that in the event it receives mail services from Agile, it shall not arrange to forward its mail from the Site through any mail forwarding instruction or form provided to any postal service servicing the Site. Customer acknowledges that the filing of any such mail forwarding form can disrupt mail services to other Agile customers. The Customer further acknowledges that it is its sole responsibility to notify any third parties of its relocation from the Site.
3. Service Fees
3.1 The Customer shall pay the fees for Services (the “Service Fees”) and the deposit (the “Services Retainer”) specified in the Service Order Form ancillary to this Agreement.
3.2 Agile shall issue an invoice monthly for any recurring service fees at the start of the month in which such services fees apply. Agile shall issue an invoice monthly at the end of the month for any non- recurring services delivered in that month. Customer agrees to pay all such monthly invoices on or before the 10th day of the month following the date of the invoice (“Due Date”).
3.3 Customer further agrees to pay late fees of 3.99% per month compounding (59.92% per annum) of the balance of the amount invoiced that remains owing past the applicable Due Date, or such lower maximum rate as permitted by law, if not paid by the Due Date, payable with or without any written notice by Agile. Customer agrees to pay all cost and expenses including reasonable attorneys’ fees associated with the collection of any delinquent debt owed by Customer to Agile.
3.4 In the event Customer defaults in the performance of any of the terms of this Agreement, Agile may immediately and without prior notice, use, apply or retain the whole, or any part, of the Services Retainer toward the payment of any Service Fees due, or for payment of any other sums due by reason of the default by Customer.
3.5 Customer will need to give 30 day notice before cancelling service even if month to month service has been taken.
4. Damage to Premises by Customer
4.1 Customer agrees to pay all costs associated with the repair of damage caused to the Site by Customer’s activities or any act or omission of Customer or Customer’s guests that does not, in the opinion of the Agile, constitute normal wear and tear. Customer further agrees to compensate Agile for any costs incurred as a result of loss of use of any office space, parking space, common space, or equipment or related supplies associated with any damage caused by the Customer or its guests.
4.2 Customer assumes all risk to any loss of personal property of Customer and Customer’s agents, employees, contractors, permitted assigns, and guests on the Site and agrees to maintain insurance to cover the risk of such loss. Customer agrees to hold Agile harmless from all such losses and to indemnify Agile from any claims against Agile for such losses by Customer’s employees, agents, contractors, permitted assigns and guests.
4.3 If, upon termination of this Agreement, Customer has fully and faithfully complied with all the terms and provisions of this Agreement, remitted all amounts due and payable, and surrendered all keys, access cards, building passes and all other property provided to it by Agile for use during the term of this Agreement, the Services Retainer or any remaining balance thereof, will be returned within 45 days to the Licensee; provided.
5. Liability and Indemnification
5.1 CUSTOMER SHALL INDEMNIFY AND HOLD AGILE AND AGILE’S AFFILIATES, AGENTS, ASSIGNS, DIRECTORS, EMPLOYEES, MEMBERS, OFFICERS, PARTNERS, AND SHAREHOLDERS HARMLESS FOR ANY ACT OR OMISSION RESULTING IN DIRECT OR INDIRECT DAMAGES WHETHER ACTUAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL THAT ARISE FROM THE USE OF THE ‘SERVICES’ BY CUSTOMER OR CUSTOMER’S AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, GUESTS, MEMBERS, OFFICERS, PARTNERS, AND SHAREHOLDERS.
5.2 CUSTOMER AGREES THAT NEITHER AGILE NOR AGILE’S AFFILIATES, AGENTS, ASSIGNS, DIRECTORS, EMPLOYEES, MEMBERS, OFFICERS, PARTNERS, OR SHAREHOLDERS SHALL BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES WHETHER ACTUAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL THAT ARISE OUT OF AGILE’S FAILURE TO PROVIDE ANY SERVICES INCLUDING ANY DAMAGES RESULTING FROM THE INTERRUPTION TO THE BUSINESS OF CUSTOMER OR ANY THIRD PARTY INCLUDING ANY DAMAGES RESULTING FROM BODILY OR MENTAL INJURY TO CUSTOMER OR CUSTOMER’S AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, GUESTS, MEMBERS, OFFICERS, PARTNERS, AND SHAREHOLDERS; OR DAMAGE TO PERSONAL PROPERTY OF CUSTOMER OR CUSTOMER’S AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, GUESTS, MEMBERS, OFFICERS, PARTNERS,
AND SHAREHOLDERS UNLESS SUCH DAMAGE IS PROXIMATELY CAUSED BY AGILE’S GROSS NEGLIGENCE AND WILLFUL MISCONDUCT.
6.1 Upon termination of this Agreement for any reason, Customer shall remit all amounts due and payable, and surrender all keys, access cards, building passes and all other property provided by Agile to Customer.
6.2 It shall be considered a default under this Agreement if: (a) Customer fails to timely pay any invoice issued by Agile in connection with this Agreement; (b) Customer is in breach of any other obligation in this Agreement and such breach is not cured within five (5) days after written notice of such breach is mailed to the Customer or otherwise delivered to Customer; (c) Customer makes an assignment of its assets for the benefit of its creditors; or (d) Customer appears likely, in the opinion of Agile acting reasonably, to be unable to meet its pending financial obligations under this Agreement. Agile’s failure to declare a default for any of the conditions set forth herein shall not be deemed a waiver of Agile’s right to declare future defaults.
6.3 In event of default, Agile may immediately terminate this Agreement without advance notice to Customer, upon issuing a letter of termination to the Customer. In such event, all amounts then owing by Customer to Agile shall become immediately due and payable. In the event of default, Customer hereby grants to Agile a lien on any personal property of Customer remaining at the Site at such termination which personal property may, at Agile’s discretion and subject to applicable laws and court authorization, be deemed abandoned and be sold with the distribution of proceeds applied against amounts owing to Agile by the Customer.
6.4 Customer agrees to pay all costs and expenses, including reasonable attorneys’ fees incurred in connection with the enforcement of this Agreement or the collection of any amounts owed hereunder, for any declaratory relief sought by Agile, or for any action to preserve Agile’s rights under this Agreement.
7. Solicitation of Agile’s Employees Prohibited
7.1 Customer agrees to not, without Agile’s prior written authorization, directly or indirectly, individually or on behalf of any other person, entice or induce any employee or agent of the Agile to leave the employment of Agile.
8. Other Provisions
8.1 This Service Agreement, the Site Regulations, and the Service Order accompanying this Agreement and hereby incorporated by reference herein, represent the entire agreement between the Parties and supersedes all prior agreements. This Agreement may not be amended except by a writing evidencing the Parties’ approval of the amendment and bearing the authorized signatures of Customer and Agile. All waivers must be in writing, identify with particularity the rights being waived, and signed by the party waiving rights. Failure of the Agile to enforce any right under law or this Agreement shall not be deemed a waiver of rights by the Agile. The correction of any act or omission by Customer shall not be deemed to cure any default by Customer. Customer agrees that the venue for the adjudication of disputes shall be Toronto, Ontario. Customer further agrees that the laws of Ontario and the laws of Canada applicable therein shall govern this Agreement and all disputes between the Parties. The Parties agree that if any provision herein is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or parts of this Agreement shall remain in effect unless the striking of the provision frustrates the purpose of this Agreement.
8.2 This Agreement shall terminate immediately should Agile’s operations cease at the Site. Customer has sufficient financial resources to perform its contractual obligations to Agile under this Agreement. Customer agrees to maintain and protect all security measures in use at or applicable to the Site, including keys, magnetic cards, and access codes. Customer shall immediately report to Agile the loss or compromise of any such security measures.
8.3 The Customer agrees to operate its business at the Site in compliance with all applicable laws. Customer further agrees to not bring hazardous waste or materials onto the Site and to immediately report any office space contamination from hazardous substances to Agile the Customer becomes aware of.
8.4 Agile does not warrant the accuracy of the dimensions of any office space published or reported to Customer.
8.5 Agile reserves the right, in its sole discretion, to require the Customer to have its obligations guaranteed by the Guarantor. In such event, the Guarantor hereby unconditionally guarantees, whether as principal or surety, the payment to the Agile of all indebtedness, obligations and liabilities of any kind, now or hereafter existing, direct or indirect, absolute or contingent, joint or several, of the Customer to Agile under this Agreement, which guarantee is further detailed in the declaration of Guarantee by the Guarantor ancillary hereto.
8.6 Written notices required under this Agreement shall be delivered to Customer at the Customer’s address specified in the Services Order. Changes to the Customer’s address of record must be immediately reported to the Agile. Notices delivered to an old address due to Customer’s failure to notify Agile of a change of address shall be deemed delivered under this Agreement.
8.7 With 90 days notice the Licensor has the right to change the office # due to change in floor.
8.7 Agile also has the right to restrict the number and type of vehicles Customer and Customer’s agents, guests and employees may park in the parking lot of the Site. Large commercial vans and trucks may only be parked in the parking lot of the Site with prior written approval of Agile.
8.8 Terms not otherwise defined in this Agreement shall have their ordinary and customary meaning unless defined in a supplemental writing attached hereto. This Agreement is assignable by Agile without notice to the Customer and at the will of the Agile.
8.9 After expiry of Initial contract it is not renewed for any term the Customer will be moved to a month to month plan unless notice has been received from client for cancellation