1. SCOPE OF SERVICE
SERVICE PROVIDER agrees to lease out a portion of the Leased Premises and provide the Services described above, subject to the general terms and conditions thereof.
2. SERVICE TERM
The term of this Agreement shall be for a period stated in the submitted form and any other documented timeline that is aligned with the submitted form under ARCH Event Request Form.
Maintenance of possession by CLIENT of the Leased Premises after expiry of Service Term or termination of the Agreement (“Hold-Over”) with written consent of SERVICE PROVIDER shall be construed as a supplemental Service Term that extends the Agreement monthly subject to the same terms and conditions of this Agreement. If the Hold-Over is without the written consent of SERVICE PROVIDER, the latter, without prejudice to the other remedies under this Agreement or prevailing laws, shall be entitled to charge CLIENT a penalty fee amounting to one hundred fifty percent (150%) of the most recent and adjusted rate of Service Fees (“Penalty Fee”) which shall accrue beginning from the unauthorized Hold-Over until full turn-over of the Leased Premises and full payment of the Penalty Fee.
3. FEES OTHER CHARGES
CLIENT shall pay SERVICE PROVIDER service fees aligned with the submitted form under ARCH Event Request Form.
All amounts due to SERVICE PROVIDER shall be paid by CLIENT in cash in Philippine currency via cash transfer through the agreed payment facility.
The creditable withholding taxes due on the Service Fees shall be for the account of SERVICE PROVIDER. The value added taxes (“VAT”) imposed on the Services shall be for the account of CLIENT. Documentary stamp tax and such other taxes or assessments as a result of the execution and performance of this Agreement shall be for the account of CLIENT. All real property taxes due on the Leased Premises shall be for the account of SERVICE PROVIDER.
6. LIMITED LIABILITY
Except for gross negligence or willful misconduct, SERVICE PROVIDER shall not be liable or responsible for any damage or disturbance suffered, whether directly or indirectly, in the form of business losses, damages, injuries sustained by CLIENT or any person due to any failure, fluctuation, interruption, malfunction, explosion or suspension of the internet, electricity, water, telephone, telex, facsimile, emergency power or other public utility services supplied by SERVICE PROVIDER or by BDO Towers Paseo Building. In cases of Force Majeure, SERVICE PROVIDER shall not be liable to CLIENT for any failure of, or delay in the performance of this Agreement.
CLIENT shall indemnify and hold SERVICE PROVIDER, its officers, directors, shareholders, employees, representatives, agents, and affiliates harmless, from any loss, liability, expense, including but not limited to attorneys’ fees, and claims for damages of any nature whatsoever, which SERVICE PROVIDER may incur, suffer or become liable for as a result of the acts, errors or omissions of CLIENT, its employees, associates, agents, representatives or any person gaining access to the Leased Premises.
CLIENT and SERVICE PROVIDER, their respective employees or any other person acting in their behalf or under their instruction, shall neither disclose in any way to any third party any Confidential Information (defined below) obtained from or by a Party, or any of its officers and representatives, nor use the said Confidential Information in any way directly or indirectly detrimental to the disclosing Party
“Confidential information” particularly includes, but is not limited to, any financial information, spreadsheets and/or reports, any proprietary tools, systems in the transmitted, soft or hard copy form and including any information that may be considered confidential including but not limited to any trade secrets but does not include any information: (a) which at the time of disclosure is in the public domain or which after such disclosure comes into the public domain through no fault of a Party; or (b) which was available on a non-confidential basis from a source other than the disclosing Party, provided that such source is not and was not bound by a confidentiality Agreement with said disclosing Party; or, (c) the disclosure of which is required by law.
9. REPRESENTATIONS AND WARRANTIES
CLIENT hereby represents and warrants to SERVICE PROVIDER the following:
a. That CLIENT is a corporation duly organized, existing and in good standing under the laws of the Philippines.
b. That the execution, delivery and performance of this Agreement has been duty authorized by all necessary action on the part of Lessee and this lease constitutes a valid and binding obligation of Lessee enforceable against Lessee.
c. That CLIENT does not foresee impending closure of its business, is not insolvent or is undergoing insolvency procedure and no petition for insolvency has been filed against it; and that CLIENT shall notify SERVICE PROVIDER of any potential business closures or employee lay-offs within thirty (30) calendar days of such business closure or employee lay-offs.
Should CLIENT breach its representations and warranties, CLIENT shall be liable for liquidated damages in the amount of 12% of the total Service Fees for the Service Term of this Agreement
In case of CLIENT’s default, the SERVICE PROVIDER may demand specific performance of this Agreement, or to consider this Agreement terminated. Upon termination, CLIENT shall vacate and deliver possession of the Leased Premises to the SERVICE PROVIDER in accordance with this Agreement. Moreover, the SERVICE PROVIDER shall forfeit the Security Deposit, without prejudice to any other rights and remedies available to it under the law. Termination of this Agreement shall not abate the payment of any outstanding balance nor subject the SERVICE PROVIDER to any kind of civil or criminal suit by the CLIENT or by any of the CLIENT’S employees, customers or third persons.
Either Parties may terminate the Agreement, with or without cause, during the Service Term, by serving a written notice of pre-termination to the other Party, either through personal delivery or by registered mail, at least thirty (30) calendar days prior to the intended effective date of termination. Should CLIENT Pre-terminate the Agreement within the Service Term beginning __________ to _________, CLIENT shall still be liable for service fees and related charges for the unexpired portion of the term of the guaranteed service period plus forfeiture of the Security Deposit. Notwithstanding the termination of this Agreement, the Parties agree that the clauses on confidentiality and non-piracy shall survive and shall be effective for a period of two (2) years after the effective date of termination.
11. BREACH OF CONTRACT
Failure by CLIENT to comply with its obligations in this Agreement shall constitute a breach of this Agreement. Failure by CLIENT to pay any Service Fees, including applicable surcharges, penalties, and/or other financial obligations in this Agreement, even without prior demand, shall constitute breach of this Agreement. CLIENT shall be liable for liquidated damages in the amount of 12% of the outstanding obligation of CLIENT. All attorney’s fees, regardless of whether a case has been filed in court, and costs of litigation incurred by SERVICE PROVIDER arising from breach of this Agreement by CLIENT, including fees and costs incurred from non-contractual disputes arising out of or relating to the said breach, shall be borne exclusively by CLIENT.
a. Return of Leased Premises - CLIENT shall return the Leased Premises to SERVICE PROVIDER upon expiration or early termination 6 of this Agreement devoid of occupants, furniture, articles and effects of any kind. In the event that the Leased Premises are not in good and tenantable condition upon the return of the Leased Premises to SERVICE PROVIDER, SERVICE PROVIDER shall have the right to deduct from the Security Deposit an amount equal to the cost of repair and/or replacement necessary to restore the condition of the Leased Premises to its condition, without prejudice to any other action available to SERVICE PROVIDER.
b. Extraordinary Remedy - In case of default, CLIENT hereby appoints SERVICE PROVIDER, its authorized agents and/or representatives, as its duly authorized attorneyin-fact, with full power and authority to take over, open, enter, occupy, padlock, secure, enclose, discontinue utilities, and/or take full and complete physical possession and control of the Leased Premises without resorting to judicial action. CLIENT authorizes SERVICE PROVIDER, its authorized agents and/or representatives, to possess and inventory whatever equipment, furniture, merchandise or personal property that may be found in the Leased Premises, and to transfer the same for safekeeping, charging storage fees and other incidental expenses to the sole account of CLIENT. CLIENT agrees that in case it fails to claim such equipment, furniture, merchandise or personal property within thirty (30) calendar days from written notice thereof, sent either through personal delivery or by registered mail, CLIENT authorizes SERVICE PROVIDER to dispose of the same at public auction through a Notary Public, and the proceeds of said sale shall be turned over to CLIENT, less reasonable expenses incurred for the sale, storage fees, and any indebtedness owing to SERVICE PROVIDER.
c. Lien Over Personal Property - The outstanding balance payable by CLIENT to SERVICE PROVIDER under this Agreement shall constitute a preferred lien over the personal properties of CLIENT located within the Leased Premises in accordance with Articles 2241 and 2243 of the Civil Code of the Philippines.
d. Assignment and Subletting - Without the prior written consent of SERVICE PROVIDER, neither this Service Agreement, nor any of the rights of CLIENT herein shall be assigned, subleased, or otherwise transferred by CLIENT in whole or in part.
e. Waiver of Rights - No failure by either Party to pursue any remedy resulting from a breach of any provision of this Agreement by the other Party shall be construed as a waiver of that breach or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by an authorized representative of the non-breaching Party.
f. Entire Agreement - This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings of any kind with respect to the specific subject matter hereof.
g. Separability - In the event that any provision or part of this Agreement shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full force and effect.
h. Modification - Any modification to this Agreement must be in writing and signed by the Parties. Otherwise, it shall have no effect and shall be void.
i. Assignment - The rights which accrue to SERVICE PROVIDER under this Agreement shall inure to the benefit of and shall be binding upon SERVICE PROVIDER’S successors or assigns. The rights of CLIENT under this Agreement are not assignable or transferable in any manner.
j. Independent Contractor - SERVICE PROVIDER shall perform all the Services as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent, or master and servant, or employer and employee between the Parties hereto, or any affiliates or subsidiaries thereof, or to provide either Party with the right, power or authority, whether expressed or implied, to create any such duty or obligation on behalf of the other Party.
k. Data Privacy - Each Party undertakes to comply with the provisions of Republic Act No. 10173 or the Philippine Data Privacy Act of 2012, as applicable. The Parties agree that there shall be absolute segregation and security of data of CLIENT from that of SERVICE PROVIDER. There shall likewise be segregation of data by SERVICE PROVIDER as to data of CLIENT as well as those pertaining to data of other clients of SERVICE PROVIDER.
l. Venue - Any and all actions arising out of or in connection with this Agreement shall be exclusively filed in the proper courts of Makati City, Philippines. The Parties hereby waive any other venue.
m. Attorney’s Fees - If any lawsuit or court action between SERVICE PROVIDER and CLIENT arise out of or under this Agreement, the prevailing Party in such lawsuit or court action shall be entitled to and shall collect from the nonprevailing Party the reasonable attorney’s fees and court costs actually incurred by the prevailing Party with respect to said lawsuit or court action.