Terms of Service

This Terms of Service Agreement (this “Agreement”) is between Compass Managed IT, Inc. (“Compass”), a Washington corporation, and the Person designated as “Client” in any Service Level Agreement between such Person and Compass (“Client”) (Compass and Client are each, a “Party” and collectively, the “Parties”), and is made a part of and incorporated into any Service Level Agreement between the Parties.

Section 1

Definitions

The following definitions apply unless otherwise specifically stated:

• “Business Day” means any day which is not a Saturday, Sunday, or a bank or public holiday.
• “Business Hours” means 9:00am-5:30pm PST.
• “Compass Equipment” means all equipment, software, hardware, systems, licensed material, and other property leased, loaned, licensed, or otherwise provided to Client by Compass, including, without limitation, those listed in any Service Level Agreement. Compass Equipment includes, without limitation, software or other property licensed to Compass by a third party and provided to Client for its use in Compass’ provision of the Services.
• “Confidential Information” means non-public confidential or proprietary information of Client that is marked or designated in writing as confidential or proprietary by Client.
• “Effective Date” means the effective date set forth in the Service Level Agreement.
• “Emergency Support” means Services in response to the failure of a critical system or systems which, if not serviced, may cause immediate and substantial harm to Client.
• “Excluded Services” means any effort, service, task, or assistance provided, performed, or supplied by Compass to Client, including, without limitation, any design, delivery, support, engineering, installation, repair, maintenance, technical, consulting, or professional services, excluding Included Services.
• “Facility Survey” is a comprehensive review to compare a Service Ticket to Client’s actual requirements.
• “Included Services” mean any Service performed or provided by Compass as part of a Service Plan, as set forth in the Service Level Agreement.
• “Person” means any natural person, corporation, limited liability company, partnership, trust, organization, association or other entity, including any government entity.
• “Representatives” means directors, officers, managers, employees, employers, partners, subcontractors, agents, principals, consultants, advisors, and other authorized representatives.
• “Service Plan” means ongoing and as-needed technology support, as set forth in the Service Level Agreement.
• “Service Level Agreement” means one or more certain Service Level Agreements that Client and Compass may enter into from time to time, which specifies, among other things, the applicable Term, fees, rates, and the Service Plan.
• “Service Ticket” refers to any service requested by Client via email, phone, or online submission, or in person.
• “Services” means collectively, Included Services and Excluded Services performed or provided by Compass under this Agreement and the Service Level Agreement.

Section 2

Term and Termination

2.1   Term. The term of any Service Level Agreement (the “Term”) shall begin on the Effective Date, and, unless otherwise set forth in the Service Level Agreement, end on the 1-year anniversary of the first day of the first calendar month following the Effective Date (unless the Effective Date is the first day of a calendar month, in which case the Term shall end on the 1-year anniversary of the Effective Date). Except as otherwise set forth in any Service Level Agreement, unless either Party provides written notice to the other Party at least 30 days, but not more than 90 days, before the end of any initial or renewal Term, stating that such Party is electing to not renew the Service Level Agreement, the Service Level Agreement shall automatically renew for successive 12-month terms.

2.2   Termination by Client. If the Service Level Agreement sets forth a Term that is longer than one month, Client may terminate the Service Level Agreement immediately at any time by providing written notice to Compass, but Client shall pay to Compass an amount equal to 80% of all Service Plan and other fees and payments still remaining for the remainder of the Term, as well as all fees for Excluded Services already performed or provided, within 10 days after Compass sends Client an invoice for such amount.

2.3   Termination by Compass. Unless and to the extent otherwise explicitly set forth in this Agreement or any Service Level Service, this Agreement and any Service Level Agreement may be terminated by Compass at any time with or without cause, with immediate effect; provided, however, that the termination of this Agreement and any Service Level Agreement shall not relieve Client of its payment obligations that have accrued before the effective date of such termination.

Section 3

Service Tickets and Support

3.1   General. As further set forth in the Service Level Agreement, Compass may provide support Services and vendor management of Client’s IT networks to Client through remote means. To request Services, Client shall open a Service Ticket with Compass. Whether such Services constitute Included Services or Excluded Services is determined by the applicable Service Level Agreement, according to Compass’ reasonable interpretation. Client grants Compass authorization to view any data as necessary within the regular routine of any applicable system repair or improvement. Client authorizes Compass to reasonably delete, change, or rewrite any necessary information to complete any applicable system repair or improvement that is consistent with the standards and practices in the industry.

3.2   Response. Compass will respond to Client’s Service Tickets requesting support and troubleshooting as set forth in Appendix A. The response times set forth in Appendix A apply to Service Tickets submitted on a Business Day during Business Hours. Compass shall use best efforts to promptly respond to any Service Ticket not submitted on a Business Day during Business Hours. Each Service Ticket will be assigned a number for tracking. Upon receiving a Service Ticket requiring Emergency Support, Compass will determine whether the failure can be resolved by phone or remote access, or if it mandates on-site support. Client shall not send Service Tickets requesting or requiring Emergency Support by email. Compass does not guarantee the availability of Emergency Support at all times. Whether a Service Ticket for Emergency Support is considered an Included Service or Excluded Service, and what fees may apply, shall be determined in accordance with the Service Level Agreement.

3.3   Acknowledgment. Client acknowledges that: (a) any network monitoring provided by Compass is not guaranteed to protect against all threats to Client’s computers, servers, equipment, and systems; (b) the quality of the network monitoring is dependent on the quality of Client’s then-current hardware and software; and (c) some errors, problems, or defects in the hardware, software, equipment, processes, or systems cannot be determined by the network monitoring.

Section 4

Equipment and Materials

4.1   Compass Equipment. Client agrees that, between Compass and Client, Compass Equipment is and shall remain sole property of Compass. Client will not attempt to sell, lease, encumber, assign, transfer, resell, tamper, troubleshoot, repair, modify, move, or add to any Compass Equipment without the prior written consent of Compass, which Compass may withhold in its sole discretion. Client shall employ commercially-reasonable means to keep Compass Equipment safe, secure, and protected while in Client’s possession. If any Compass Equipment is damaged while in Client’s possession, excluding normal wear and tear resulting from proper use, Client shall pay all costs for the repair or replacement of any such Compass Equipment.

4.2   Return. Upon the expiration or termination of any Service Level Agreement, Client shall return, at Client’s expense, all applicable Compass Equipment to Compass within 10 days after the effective date of expiration or termination. If Client fails to return such Compass Equipment within 10 days, Compass may take possession of such Compass Equipment after such period, and Client shall compensate Compass for all reasonable costs and expenses accrued by Compass pursuant to such recovery.

4.3   Tampering. Client shall not attempt, nor cause to be attempted, any maintenance, repair, or other servicing on or of any Compass Equipment. Any tampering, maintenance, repair, or servicing, except by Compass or a third party approved by Compass, on such Compass Equipment constitutes a breach of this Agreement, and Client shall be responsible for all costs and expenses resulting from such Client breach.

4.4   Insurance. Client shall maintain adequate insurance covering Compass Equipment while in Client’s possession and list Compass as an additional loss payee. Client shall promptly provide proof of such insurance to Compass upon request.

4.5   Breach. Should Client breach this Agreement, Compass may enter Client’s premises at any time during normal business hours and repossess all Compass Equipment. Client consents to and shall fully cooperate and shall not interfere in any way with such removal.

4.6   Materials. If any computers, servers, parts, cables, equipment, materials, or other items (collectively, “Materials”) are requested or required for the Services, and such Materials are not Compass Equipment, Client shall pay all expenses (including, but not limited to, the cost of purchase, shipping charges, and applicable taxes) related to the purchase of such Materials. Compass may, at its discretion, require (a) pre-payment from Client for such Materials, and/or (b) that Client be billed directly by the vendor.

4.7   Equipment Failure. In the event any hardware or equipment (including any Materials) fails, such failed hardware or equipment may be tendered by Compass to the Original Equipment Manufacturer (“OEM”), the OEM’s designated repair facilities, or other competent repair technicians for repair. Client acknowledges that: (a) any such repair or replacement may be a time-consuming process; (b) such repair or replacement may be an Excluded Service, subject to Compass’ reasonable determination; and (c) Client will be responsible for all damages, losses, costs, and liability resulting from or arising out of such repair or replacement. If repair is not reasonable or practical, and/or the OEM has not provided a replacement within a reasonable period of time, Client may be required to purchase new hardware or equipment at Client’s sole cost.

Section 5

Excluded Services

5.1   Excluded Services. Compass and Client understand that this Agreement is ongoing, and, to the extent Client requests Compass provide or perform any Excluded Services, through a Service Ticket or otherwise, and Compass accepts such request for performance of Excluded Services, this Agreement will govern Compass’ performance of any such Excluded Services.

5.2   Facility Survey. Prior to the commencement of Compass’ performance or provision of any Excluded Service, Compass may require the performance of a Facility Survey, at Client’s sole cost and expense. Compass may perform Excluded Services for Client by any means Compass reasonably deems appropriate, including, but not limited to, telephone, electronic mail, remote, or on-site means.

5.3   Pricing and Billing. Client shall pay for all Excluded Services at the cost or rate set forth in the applicable Service Level Agreement. Client understands that Compass reserves the right to change the cost or rate for Excluded Services, effective upon written notice by Compass. Client understands that Excluded Services may be quoted and billed separately from Included Services. Compass is not obligated to provide a quote for such Excluded Services prior to performance or billing, but may do so as a courtesy to Client.

Section 6

Liability

6.1   Security Breach. Client acknowledges that absolute security against all information or computer related threats is not practically achievable, and Compass shall not be responsible for any breaches of security, including all resulting loss, damage, or liability, unless and only to the extent directly and solely caused by Compass’ gross negligence or intentional misconduct. In addition, Compass shall expressly not be liable for any breach of security and resulting damages, liabilities, and losses arising out of or related to vulnerabilities or gaps in security in Client’s system(s) that existed prior to Compass’ provision of Services under this Agreement. Compass makes no warranty or representation that it will discover any such pre-existing vulnerability or gaps in security, at all or in any specific timeframe, nor that it will be able to address and negate such vulnerability within any specific period of time.

6.2   Third-Party Servicing. Without limiting any other provision of this Section 6, Client acknowledges that any addition, alteration, or reconfiguration, not performed by Compass or its employees or subcontractors, of any hardware, software, system, virtual windows, equipment, or the like previously installed by Compass (collectively, “Installed Equipment”) is at Client’s own risk, and that Compass has advised Client to seek competent assistance in any such addition, alteration, or reconfiguration. If Client provides any administrative privileges to any of the Installed Equipment to any party other than Compass, Client is solely responsible for such Installed Equipment, and Compass may place such hardware, software, equipment, or the like outside of the Service Plan as a result. Client acknowledges that, with such administrative privileges, Compass no longer has sole control over such Installed Equipment, and may not be able to identify who has operated such Installed Equipment, or what such Persons may have done to such Installed Equipment. All repair or replacement of such Installed Equipment shall be at Client’s sole cost and expense, and will not be considered an Included Service or otherwise a part of any Service Plan.

6.3   Limitation of Liability. To the maximum extent permitted by applicable law, Compass will not be liable for any, and Client releases Compass and its Representatives, of and from any and all, indirect, special, incidental, collateral, exemplary, or consequential damages, under any legal theory, including, without limitation, loss of actual or anticipated profits, revenue, or other proceeds, loss of business or opportunity, business interruption, loss of use of programs or computers, and data loss or corruption, any failure of any hardware, software, system, or service, including, without limitation, firewall or email security breaches, arising out of or related to this Agreement or any Services provided to Client by Compass. Compass’ total cumulative liability to Client or to any other Person, arising out of or related to this Agreement or any Services provided to Client by Compass, regardless of the legal theories, is limited to the amount paid by Client to Compass for the Services provided subject to such claim(s) in the prior 6 months. Multiple claims will not expand this limitation.

6.4   Disclaimer of Warranties. Except for any warranty or remedy that cannot be excluded or limited under applicable law, and except for the express warranties made by Compass in this Agreement, the Services and any other services provided or performed by Compass are and have been provided without warranty of any kind, and Compass disclaims all representations, warranties, conditions, and terms, with respect to the Services, whether express, implied, statutory, or existing, or created by or under common law, custom, usage, or otherwise, including, without limitation, the warranties of fitness for a particular purpose, or any warranty that Client’s IT systems will operate uninterrupted, error free, or without delay. Further, Compass does not warrant the effectiveness of any hardware, software, system, or service.

Section 7

Billing and Payment

7.1   Payment. Services, costs, expenses, and travel time are billed on a regular billing cycle. Payment is due NET 10 of invoice date.

7.2   Late Payment. Interest will accrue on past due accounts at a rate of 2% per month (24% APR) from the date Services were provided until all overdue amounts (and interest) are paid in full. Dishonored checks will incur a service charge of $50.00. If payment on an invoice is not received within 30 days of invoice date, Compass reserves the right to suspend the Services until all overdue amounts (and interest) are paid in full. No suspension of Services will extend the Term of any Service Level Agreement, or obviate Client’s obligation to pay any monthly Services rates for the remainder of the Term.

7.3   Deposit. Compass reserves the right to require Client to deliver a deposit to Compass prior to the initiation or acceptance of the provision or performance of any Services. Such deposit may be kept commingled with Compass’ other funds (or funds of other clients) and will bear no interest for Client.

Section 8

Representations and Warranties

8.1   Client. Client makes the following representations and warranties: (a) if Client is not a natural person, Client is in good standing to transact business in its principal state of business; (b) Client has the requisite authority to enter into this Agreement; (c) if applicable, the individual signing this Agreement on behalf of Client is duly authorized to enter into this Agreement on behalf of Client; (d) to the best of Client’s knowledge, this Agreement, any Service Level Agreement, and any covenants, warranties, or representations under either agreement, will not cause Client or Compass to violate any law, code, ordinance, or court order; (e) nothing on Client’s premises will prevent, restrict, or interfere with Compass’ performance of the Services, or damage or injure Compass or its Representatives, or any Compass Equipment (including, but not limited to, construction defects, insect infestation, environmental hazards, fire code violations, mold, structural problems, or the existence of anything or anyone whatsoever that violates any law of Client’s principal state of business or the United States); (f) this Agreement will not violate any other agreement to which Client is a party; (g) this Agreement will not result in the termination of any license, franchise, lease, permit, or consent held by Client; (h) this Agreement will not conflict with or result in a breach of Client’s operating agreement, bylaws, or any other like agreement or instrument to which Client is party or by which Client or its property is bound; and (i) Client has not encumbered or otherwise granted a lien or security interest against any of the Collateral (defined below) to any other Person.

Section 9

Defaults and Disputes

9.1   Event of Compass Default. Compass may be in breach of this Agreement if Compass fails to substantially perform the Services that it agrees to perform for Client subject to the terms of this Agreement and any applicable Service Level Agreement (“Event of Compass Default”). Upon the occurrence of an Event of Compass Default, Client shall send Compass written notice of such default and Compass shall have 30 days from receipt of such notice to correct such default. If Compass fails to correct such default, Client may exercise any of the following remedies: (a) terminate any applicable Service Level Agreement; (b) receive a refund for sums paid for the Services that formed the basis of the Event of Compass Default; or (c) enforce any rights or remedies at law. Upon the occurrence of an Event of Compass Default, Client may not withhold payment for any Services performed under this Agreement and any Service Level Agreement except for those Services that formed the basis of the Event of Compass Default.

9.2   Event of Client Default. Client will be in breach of this Agreement if any of the following has occurred: (a) Client fails to perform or comply with, or otherwise breaches, any term, condition, requirement, obligation, or covenant under this Agreement; (b) any of the warranties and representations made in this Agreement by Client are or later become false; or (c) Client prohibits or prevents Compass from completing or performing any Services, or causes Compass to fail to complete such Services (each, an “Event of Client Default”). Client shall immediately notify Compass if it becomes aware of any Event of Client Default, and Compass shall notify Client upon becoming aware of an Event of Client Default. Upon the occurrence of, or becoming aware of, an Event of Client Default, Compass may send Client notice of such Event of Client Default and Client shall correct such Event of Client Default within 15 days from the date such notice is sent. If Client fails to correct such Event of Client Default, Compass may exercise any of the following remedies: (i) terminate any applicable Service Level Agreement; (ii) cease performance of any of any or all of the Services under any applicable Service Level Agreement; (iii) enforce its contractual security agreement under this Agreement; or (iv) enforce any rights or remedies under this Agreement, at law or in equity. These remedies are cumulative, and any exercise of such remedies does not constitute an election of remedies. If this Agreement is placed in the hands of an attorney for the purposes of discussing or taking steps toward collection or enforcement, Client shall pay to Compass any such attorney’s fees and expenses. Client acknowledges that, by ceasing performance of the Included Services, Client’s email services and email security services, security software included and installed under a Service Level Agreement, such as antivirus or other network security software, and other “as-a-service” services may be impacted, which may cause disruption to Client’s network, email system, and access to data, and reduce Client’s security posture. Client agrees that Client will be solely responsible for any damages, losses, liabilities, or other costs or expenses which may arise from, or relate to, Compass’ ceasing performance of the Included Services as a result of an Event of Client Default.

9.3   Security Interest. To secure all sums owed by Client to Compass under any agreement between Compass and Client, whether existing previously, currently, or in the future, Client irrevocably assigns, transfers, pledges, and grants to Compass a security interest (“Security Interest”) in any of the following of Client, whether presently owned or after acquired, and any proceeds thereto, that have been delivered, installed, repaired, modified, or sold by Compass: (a) fixtures, (b) equipment, (c) inventory, and (d) consumer goods (collectively, “Collateral”). To the extent any sums owed by Client were for the purchase of any Collateral, Client acknowledges that Compass has a purchase money security interest in such Collateral, and Compass may exercise its rights hereunder against such purchase money security interest Collateral after all other Collateral has been exhausted. Upon the occurrence of an Event of Client Default that Client does not cure within 15 days, Compass may enter upon Client’s property and take possession of all Collateral, without liability for trespass or conversion, and keep, or sell at public or private sale, the same in accordance with applicable law of Client’s principal state of business. Client waives all rights to notice of default, notice of intent to accelerate, notice of acceleration, notice of sale, or any other notice whatsoever. The proceeds from any such sale, less any and all expenses connected with the taking of possession, holding, and selling of the Collateral (including attorneys’ fees), will be credited against the indebtedness secured by the Security Interest. Any surplus will be paid to Client or as otherwise required by law; and Client shall promptly pay any deficiencies. This Agreement constitutes a security agreement under the Uniform Commercial Code. Compass may file this Agreement, a Uniform Commercial Code Financing Statement, and a fixture filing, as necessary, to perfect the Security Interest.

9.4   Dispute. If any dispute arises out of this Agreement, the Parties agree that, prior to the filing of any suit, the Parties shall promptly mediate the dispute in a good faith effort. The mediation will be conducted by a mediator mutually agreed upon by the Parties, but if both Parties cannot agree, either Party may petition a court of competent jurisdiction for appointment of a mediator. Each Party shall pay one half of such mediator’s fees and expenses, regardless of outcome.

Section 10

Indemnity

10.1   Indemnity. Client agrees to and shall indemnify, defend, and hold harmless Compass, its affiliates, successors, assigns, providers, and licensors, and its and their respective past, present, and future Representatives (the “Compass Indemnitees”) for, from, and against any and all claims, actions, proceedings, judgments, demands, damages, liabilities, losses, costs, expenses, fees, and penalties (including, without limitation, all attorneys’ fees, court costs, and other costs of litigation) of every kind, whether known or unknown, direct or with another Person (collectively, “Claims”), arising out of, resulting from, in connection with, or otherwise related to: (a) any Event of Client Default; (b) Client’s negligent, grossly negligent, reckless, or intentional act, omission, or misconduct; (c) Client’s failure to comply with all applicable law; or (d) any breach or alleged breach of Client’s obligations under this Agreement or any Service Level Agreement, including all representations, warranties, and covenants made by Client in this Agreement, or any third-party license agreement. For clarity, the use of “Client” in Section 10.1(b)-(d) shall include Client, its affiliates and subsidiaries, and its and their respective Representatives.

10.2   Defense. Compass may elect to control the defense of any Claim; provided, however, that if Compass does not elect to control the defense of a Claim, Client shall diligently defend the Claim, with counsel reasonably satisfactory to Compass, and may settle the Claim only with the prior written consent of Compass, which if such settlement does not prejudice any rights or remedies of Compass, will not be unreasonably withheld.

Section 11

Server Hosting/Co-Location

11.1 If Client requests that Compass host Client’s data, equipment, or servers, or Client requests the use of Compass’ server, the following shall apply:

11.1.1 Compass may use a third-party server provider to provide hosting and server use services;

11.1.2 Compass may limit Client’s use of storage space, bandwidth, and processor and memory usage in its sole and complete discretion, and it may change such limits from time to time and at any time;

11.1.3 Client acknowledges that (a) from time to time, servers and their component parts fail, (b) data may be lost or become inaccessible as a result of such failure, (c) Compass is not responsible for any loss resulting from such failure, and (d) Compass has advised Client to additionally utilize a back-up server provided by Compass (the option to utilize such Compass back-up server may or may not be included in any Service Plan); and

11.1.4 Client shall pay all fees shown on any Service Level Agreement or other related agreement pertaining to such hosting or server use. Compass may terminate the hosting and server use services at any time by giving Client 10 days’ prior written notice.

Section 12

Confidential Information and Intellectual Property

12.1   Confidentiality. Compass will employ commercially-reasonable efforts to assure that no Client Confidential Information is disclosed or released to anyone outside Compass (and its counsel and Representatives) without the consent of Client. Notwithstanding the foregoing, Compass may disclose Confidential Information in accordance with a judicial or other governmental order (or the like) requiring such disclosure. In such an event, if and to the extent permitted or not prohibited by such order, Compass will notify Client of the order with a view to allow Client to seek a protective order or other appropriate remedy to prevent such disclosure.

12.2   Records and Reports. All records generated by Compass related to this Agreement or any Service Level Agreement, including, without limitation, hand notes, prints, computations, software, charts, reports, and other information and documentation, whether or not related to the Services, are and will remain the sole and exclusive property of Compass unless Compass expressly states otherwise in writing. Nothing in this Agreement is intended to transfer any intellectual property or proprietary right; unless otherwise set forth in writing by the Parties, all rights and title to any ideas, works of authorship, or inventions created, developed, conceived, or reduced to practice by a Party, or its agents or employees, whether or not related to the Services, are and will remain the property of such Party.

12.3   Software. Client shall use all software in compliance with applicable U.S. copyright laws. Compass reserves the right to refuse to install unlicensed copies of any software. Client represents and warrants that all software it uses, and all uses thereof, are in compliance with all applicable intellectual property laws.

Section 13

Performance of Services

13.1   Security and Cooperation. Client shall provide Compass with sufficient workspace to perform the Services. Client will provide Compass, and authorizes Compass to possess and use for the performance of the Services, both on or off Client premises, authentication and access keys, codes, means, and devices, including, without limitation, passwords, keys, codes, and electronic imprints for user logins, device access, and facility access. Additionally, Client agrees to provide Compass with all other information and access necessary for or incidental to the performance of the Services. Client authorizes Compass to perform Services in any manner, means, and location that Compass deems necessary or advisable, and further authorizes Compass to contact third parties, including, without limitation, Client’s vendors and service providers, for the proper performance of the Services and the resolution of job-related problems. Compass shall not be liable for the nonperformance of any Services to the extent related to Client’s (including Client’s vendors, service providers, contractors, employees, agents, and other related parties) failure to comply with this Section 13.1.

13.2   Authorized Representatives. If Client so chooses, it may appoint in writing an authorized representative to handle all official correspondence with Compass regarding this Agreement, and Service Level Agreement, or any Services (an “Authorized Representative”). Client’s Representatives that request changes outside of the initial Service Plan set forth in any Service Level Agreement must direct these to the Authorized Representative. If Client has appointed an Authorized Representative, no direction for such tasks to be conducted will be accepted from Client’s Representatives by Compass personnel unless Client’s Authorized Representative signs an additional formal Service Ticket.

13.3   Third-Party License Agreements. By executing a Service Level Agreement, Client consents and agrees that Compass may enter into license agreements with third parties on Client’s behalf for the use of hardware and software in conjunction with the Services, and Client agrees to be bound by and adhere to such license agreements, regardless of whether Client actually executes such license agreements or actually reviews such license agreements. Client shall not reverse engineer, copy, share, transmit, or modify any licensed intellectual property, or otherwise violate any such copyrights or licenses. Client shall at all times comply with any applicable copyright, patent, and intellectual property laws, codes, rules, and regulations related to any such license agreement.

Section 14

Miscellaneous

This Agreement contains the entire understanding of the Parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the Parties with respect to the subject matter of this Agreement. The Service Level Agreement and all Service Tickets are incorporated into this Agreement by reference. Client acknowledges and agrees that, from time to time, some or all of the Services may be done by independent subcontractors of Compass, and all rights of Compass under this Agreement shall be afforded to such independent contractors by Client, as applicable. No waiver will be binding on a Party unless it is in writing and signed by the Party making the waiver. A Party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision. The paragraph headings contained in this Agreement are for convenience only and are not a part of this Agreement. Any and all notices required to be given under this Agreement or any Service Level Agreement shall be in writing and delivered to the Party to whom such notice is directed, either in person or deposited in the United States mail, certified and return receipt requested, postage prepaid, and delivered to such Party at that Party’s address set forth in the Service Level Agreement. Any address may be changed by delivery of notice in accordance with these notice provisions. If Client fails to make any payment due under this Agreement by its due date, Client will pay to Compass, and Compass will be entitled to recover, upon demand, all reasonable costs and expenses, including, but not limited to, attorney’s fees and collection fees, incurred by Client in attempting to collect any payment due under this Agreement, whether or not any action is filed. This Agreement and any Service Level Agreement are governed by, and are to be enforced and interpreted according to, the laws of the State of Washington, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. Any action or proceeding arising out of this Agreement shall be litigated in courts located in Clark County, Washington. Each Party consents and submits to the jurisdiction of any local, state, or federal court located in Clark County, Washington. If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including, but not limited to, any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim shall be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney’s fees and other fees, costs, and expenses of every kind, including, but not limited to, the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, action, suit, or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court, as applicable. If any of the provisions in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision thereof; and this Agreement will be construed as if such provision had never been contained herein. Compass shall not be responsible for a delay or default in the performance of its obligations under this Agreement if and to the extent such default or delay is cause, directly or indirectly, by events beyond its reasonable control. This Agreement shall be binding on the Parties and their respective heirs, personal representatives, successors, and permitted assigns, and shall inure to their benefit. Client has no right to assign this Agreement or any Service Level Agreement. All provisions of this Agreement that would reasonably be expected to survive the termination or expiration of this Agreement and any Service Level Agreement shall do so, including, without limitation, Section 4, Section 6, Section 7, Section 8, Section 9, Section 10, Section 12, Section 13, and this Section 14. If this Agreement is posted online, (a) this Agreement may change, and Client should review this Agreement regularly; (b) Compass may modify this Agreement at any time, for any reason, and without prior notice or liability to Client or any other Person, by posting amended terms on this website; and (c) Client’s continued use of the Services following any amendment of this Agreement is Client’s acceptance of this Agreement, as amended. If this Agreement is not posted online, the terms of this Agreement may be amended, changed, or modified by Compass and shall be effective upon written notice by Compass and Client will be deemed to have consented to any amendment, change, or modification so noticed, if Client does not make written objections within 3 days of receipt of such notice.

Appendix A

Response and Resolution Times

The following table shows the targets of response and resolution times for each priority level.