This MASTER SERVICES AGREEMENT (this “Agreement”), dated as August 7, 2019 (the “Effective Date”),
sets forth the terms and conditions upon which CompassMSP, LLC, a Delaware limited liability company
with its principal place of business located at 100 N. Laura St, Jacksonville, FL, 32202 (“Compass”) shall
provide Client (“Client”) with certain professional services.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and
warranties set forth herein and of other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto covenant and agree as follows:
WHEREAS , Compass is a leading provider of comprehensive managed IT, private/public cloud, managed
VOIP, software development, and cyber security services; and
WHEREAS , Client desires to retain Compass for the performance of, and Compass desires to provide,
the services described hereunder and in one or more Statement of Work to be signed by the parties,
including without limitation certain managed services (each, a “Statement of Work”).
1. Services.
(a) General. Compass shall provide those services described in the Statement of Work (the
“Services”).Each Statement of Work executed by the parties is hereby incorporated herein by reference.
To the extent that any terms in this Agreement conflict with the relevant terms contained in any
Statement of Work, the terms of this Agreement shall control in all respects.
(b) Staffing. As more fully described in the Statement of Work, Compass shall be responsible for, and
control the day-to-day operation of, personnel assignments and management of Compass’s staff
consistent with Compass’s standard operating procedures (“SOPs”) for the Services.
(c) Changes to Statement of Work. Compass reserves the right, at any time, to modify or discontinue,
temporarily or permanently, the services in the Statement of Work, or any part thereof, with or without
notice and in its sole discretion. Client agrees that Compass will not be liable for any modification,
general suspension, discontinuance or removal of any services except to the extent that Compass
discontinues any service prior to the end of this Agreement. Compass will return to Client any prepaid,
but unused portion of the fees Client paid. Compass has the right, in its sole discretion, to refuse or
restrict access to any or all of the services in the Statement of Work by anyone at any time.
(d) Client Liaison. Client agrees to attend to and cooperate with Compass as reasonably required for the
performance of the Services hereunder. Client Representative and Compass Representative shall act as
liaison for the provision of the Services. Client agrees to maintain, where required, a full time, dedicated
Internet connection and to allow Compass access to the Client’s network via that Internet connection.
Client agrees to allow Compass employees or subcontractors access to its facilities in order to perform
services under this Agreement. Client agrees to allow Compass access to the equipment and to allow
Compass to load any necessary management software on their systems. Client agrees to furnish
Compass with Administrator-level password access, for all equipment and servers.
2. Compass Compensation and Costs.
(a) Fees. In consideration of the Services rendered under this Agreement, Client agrees to pay Compass
the fees provided in the Statement of Work.
(b) Expenses. Client shall bear any and all expenses, including but not limited to travel, food, and lodging
costs that are incurred by Compass in carrying out the Services; provided, however, that such expenses
must be pre-approved in writing (email acceptable) in advance, by Client, before any such expenses are
incurred. Such expenses shall be specified in invoices and reimbursed by Client.
(c) Payment. Client shall pay Compass in accordance with the fee and payment schedule set forth in the
Statement of Work. Any processing fees incurred by the client for making payments are the
responsibility of the client. All proposed pricing is based on the customer making payments using a
method in which Compass incurs no transaction fees (via ACH or check). Payments made via credit or
debit card will be assessed a 2.5% processing fee. Unless otherwise specified in a particular Statement of
Work, Compass shall submit monthly invoices for Services provided hereunder. Any sum due Compass
hereunder for which a time for payment is not otherwise specified will be due and payable within thirty
(30) days after the date of an invoice therefor from Compass. If Client fails to pay any amount due within
thirty (30) days from the date of the invoice, late charges of the lesser of one and one-half percent
(1.5%) per month or the maximum allowable under applicable law shall also become payable by Client
to Compass. In addition, failure of Client to fully pay any invoiced amount within sixty (60) days after the
date of the invoice shall be deemed a material breach of this Agreement, effecting suspension of the
performance of the Services, and shall be sufficient cause for immediate termination of this Agreement
by Compass. Compass may retain all coding and strategy that are part of any deliverables set forth in a
Statement of Work if such failure to pay occurs. If Client fails to pay, when due, any amount payable
hereunder or fails to fully perform its obligations hereunder, Client agrees to pay, in addition to any
amount past due, plus interest accrued thereon, all reasonable expenses incurred by Compass in
enforcing this Agreement, including, but not limited to, all expenses of any legal proceeding related
thereto and all reasonable attorneys’ fees incurred in connection therewith. No failure by Compass to
request any such payment or to demand any such performance shall be deemed a waiver by Compass of
Client’s obligations hereunder or a waiver of Compass’s right to terminate this Agreement.
(d) Taxes. Client will be responsible, and shall reimburse Compass, if necessary, for all sales, value added
use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or
local, however designated, which are levied or imposed by reason of the transactions contemplated
hereby; excluding, however, income taxes on profits which may be levied against Compass. Compass
shall include each such amount on the applicable invoice. Upon request by Client, Compass shall provide
sufficient documentation for such tax.
3. Confidentiality; Non-disclosure.
(a) “Confidential Information” means any and all technical or non-technical information disclosed by one
party (a “Disclosing Party”) to the other (a “Receiving Party”), in any medium (including visually or
orally), that the Disclosing Party designates as confidential, whether by marking, orally or by other
means, at the time of or promptly after disclosure, or, if not so designated, that the Receiving Party
would reasonably be expected to assume is confidential due to its nature. Confidential Information
includes, without limitation, the existence of this Agreement and its terms and conditions; computer
software and programs (including object code and source code), database technologies and systems
(and related information technology); and, all information concerning the operations, affairs, methods,
transactions and businesses of the Disclosing Party (including without limitation, financial and pricing
information, marketing plans, business plans or strategies, and other information that is competitively
sensitive). Confidential Information does not include any information that the Receiving Party is able to
prove by documents or other competent evidence: (i)is or becomes generally available to the public
other than through your breach of this Agreement; or (ii) is communicated to Receiving Party by a third
party that had no confidentiality obligations with respect to such information.
(b) The Receiving Party shall protect the Disclosing Party’s Confidential Information against unauthorized
use or disclosure using at least those measures that it takes to protect its own Confidential Information
of a similar nature, but no less than reasonable care. Except as expressly permitted by the terms of this
Agreement, the Receiving Party shall not, without the Disclosing Party’s prior written consent: (i) use or
disclose any of the Disclosing Party’s Confidential Information for any purpose except in connection with
this Agreement; or (ii) reverse engineer, disassemble or decompile any materials or software that
embody the Disclosing Party’s Confidential Information.
(c) Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential
Information to its directors, officers and employees who have a bona fide need to know such
information in connection with this Agreement; provided, however: (i) in each case the person to whom
such Confidential Information is disclosed is subject to confidentiality obligations no less restrictive than
the obligations set forth herein; (ii) the Receiving Party shall immediately notify the Disclosing Party in
the event of any unauthorized use or disclosure of the Confidential Information; and (iii) the Receiving
Party shall be liable to the Disclosing Party for any breach of confidentiality by any such person.
(d) Should the Receiving Party be compelled by court decree, subpoena or other legal or regulatory
requirement to disclose any of the Disclosing Party’s Confidential Information, it shall promptly notify
the Disclosing Party in writing of that requirement, unless prohibited from doing so, and use reasonable
good faith efforts to (i) disclose only the specific Confidential Information legally required to be
disclosed; and (ii) assist the Disclosing Party (to the extent requested by the Disclosing Party) in
obtaining a protective order or other appropriate assurances that the confidential nature of the
Confidential Information shall be protected and preserved.
(e) The confidentiality obligations of this Agreement shall be continuing and binding on both parties for
a period of five (5) years from the date of disclosure of the relevant Confidential Information; except
that protection of trade secrets shall extend for as long as the relevant information qualifies as a trade
secret under applicable law.
(f) In the event of actual or threatened breach of the provisions this Section 3, the non-breaching party
will have no adequate remedy at law and will be entitled, without bond and without the necessity of
showing actual money damages, to immediate injunctive and other equitable relief. The foregoing
remedy of equitable relief shall not be the sole or exclusive remedy available to the non-breaching
party, and the non-breaching party shall be entitled to damages occasioned by the unauthorized
disclosure or use to the extent determined by law.
4. Ownership Rights.
(a) Except as set forth in Section 4(c) and so long as Client has fulfilled its obligations under this
Agreement and each Statement of Work, including without limitation any payment obligations, Client is
and shall be, the sole and exclusive owner of all right, title and interest in and to all deliverables set forth
in a Statement of Work other than any portion of the deliverables set forth in a Statement of Work that
include Compass Property (as defined below) (collectively, the “Work Product”), including all patents,
copyrights, trademarks, trade secrets, know-how, moral rights, and other intellectual property rights
(collectively “Intellectual Property Rights”) incorporated therein. Compass agrees that all Work Product
is hereby deemed a “work made for hire” as defined in 17 U.S.C. § 101 for Client. If, for any reason, any
of the Work Product does not constitute a “work made for hire,” Compass hereby irrevocably assigns to
Client, in each case without additional consideration, all right, title and interest in and to the Work
Product, including all Intellectual Property Rights therein.
(b) Upon the request of Client, Compass shall promptly take such further actions, including execution
and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to
prosecute, register, perfect, record or enforce its rights in any Work Product. In the event Client is
unable, after reasonable effort, to obtain Compass’s signature on any such documents, Compass hereby
irrevocably designates and appoints Client as Compass’s agent and attorney-in-fact, to act for and on
Compass’s behalf solely to execute and file any such application or other document and do all other
lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other
intellectual property protected related to the Work Product with the same legal force and effect as if
Compass had executed them. Compass agrees that this power of attorney is coupled with an interest.
(c) Compass and its licensors are, and shall remain, the sole and exclusive owners of all right, title and
interest in and to all documents, data, know-how, methodologies, software, hardware, equipment and
other materials, including without limitation any platform solutions, computer programs, reports and
specifications provided by Compass in connection with performing the Services (“Compass Property”),
including all Intellectual Property Rights therein. Compass hereby grants Client a limited, non-
transferable and non-sublicenseable license to use Compass Property to the extent reasonably required
in connection with Client’s use of the Services. All other rights in and to Compass Property are expressly
reserved by Compass and its licensors. In addition, should Compass terminate this Agreement due to
Client’s breach of this Agreement or any Statement of Work, all deliverables set forth in a Statement of
Work shall be considered Compass Property in all respects.
(d) Client understands data may be collected and processed in order to perform the duties specified in
the STATEMENT OF WORK. Client data stored on Compass equipment, if any, including hosted
environments, shall remain property of Client. Compass reserves the right to unilaterally remove data
that is illegal, obscene, or harmful to the network environment. Client reserves the right to transfer their
data to another party. In the event of termination, Client must remove their data from Compass
equipment or hosted environment no later than fourteen (14) days after Termination. It will be Client’s
duty to retrieve its data prior to removal and deletion by Compass. Compass will apply commercially
reasonable efforts in assisting Client with transfer of its data. In the event there is a breach of data,
Compass will assist client in notifications.
(e) Any equipment or other hardware sold to Client under a STATEMENT OF WORK shall remain the
personal property of Compass until fully paid for by Client, and Client agrees, if requested by Compass,
to execute a security agreement covering the equipment sold and to perform all acts which may be
necessary to perfect and assure retention of title to such equipment by Compass. Notwithstanding any
agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage
shall pass to Client and delivery shall be deemed to be complete upon delivery of the equipment to
Client, either by Compass or by a private or common carrier. During the course or providing service to
client, Compass may supply hardware or software delivered “as a service” which shall remain the
property of Compass. Other than normal wear and tear, client is directly responsible for loss, repair,
replacement and other costs, damages, fees, and charges if client does not return the “as a service”
equipment at Client cost to Compass in an undamaged condition within seven (7) days of termination of
any statement of work or master service agreement. Compass retains ownership of all hardware owned
by Compass and deployed at Client’s site that is inherent in providing services under this agreement and
that which is provided for Client’s use within this agreement. Upon termination of this agreement, all
hardware owned by Compass and utilized by Client will be surrendered to Compass, and any and all use
of that hardware by Client discontinued. Client is responsible for safe return of that hardware to
Compass at Clients expense. Termination and return of hardware owned by Compass does not waive
client responsibility to fulfil the full term of the agreement. Client failure to return the hardware upon
termination of the agreement will result in Compass imposing a charge for the full original value of the
hardware with payment due immediately.
5. Term And Termination.
(a) Term. This Agreement will take effect on the Effective Date and will remain in full force and effect for
three (3) years unless otherwise specified in a Statement of Work, and will thereafter automatically
renew for additional twelve (12) month periods. With respect to specific Services to be rendered, the
term of the Services shall be as set forth in the applicable Statement of Work describing such Services. If
this Agreement expires or is not renewed during the term of a then currently effective Statement of
Work, the term of this Agreement shall be extended to the expiration or termination of such Statement
of Work.
(b) Termination. This Agreement may be terminated (“Termination”) as follows:
(i) by either party, provided that such party provides the other party a written notice of termination at
least ninety (90) days prior to the end of the then current term, with termination effective at the end of
the then current term;
(ii) by Client, upon written notice to Compass, if Compass is in material breach of any term, condition or
provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days
after Client gives Compass written notice of such breach; or
(iii) by Compass, upon written notice to Client, if any of the following events occur:
A. Client fails to pay any amount due to Compass, pursuant to Section 2(c) or a Statement of Work;
B. Client is in material breach of any non-monetary term, condition or provision of this Agreement,
which breach, if capable of being cured, is not cured within thirty (30) days after Compass gives Client
written notice of such breach; or
C. Client (I) terminates its business activities, (II) becomes insolvent, admits in writing its inability to pay
its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct
control of a trustee, receiver or similar authority, or (III) becomes subject to any bankruptcy or
insolvency proceeding under federal or state statutes.
(c) Rights Upon Termination. Unless otherwise agreed by the Parties, on Termination, Compass shall
cease providing the Services. Client shall remain obligated to pay all outstanding amounts, including
unused agreement term monthly payments, immediately upon termination regardless of previous
payment arrangements.
6. Warranties.
(a) Compass Warranties. Compass warrants as follows: (i) it holds the necessary rights to provide the
Services set forth in this Agreement; (ii) Compass is free of any obligation that would prevent it from
entering into this Agreement; (iii) the Services provided hereunder will substantially conform to the
specifications, descriptions and other requirements of any applicable Statement of Work; and (iv) the
Services will be performed in a manner consistent with customary practice in the industry. Should a
failure to comply with the warranties set forth in subsection (iii) or subsection (iv) above appear within
thirty (30) days after the date of completion of such Services, Compass shall, if promptly notified in
writing, at its sole option, either provide the Services anew or refund to Client the price charged for such
non-conforming services. Such re-performance or refund shall be Client’s exclusive remedy and shall
constitute fulfillment of all liabilities of Compass with respect to any nonconformity of or defect or
deficiency in the Services furnished to Client.
(b) Assignment of Warranties. Compass assigns to Client any licenses or manufacturers warranties for
hardware or third-party software purchased by Compass on behalf of Client that the manufacturer may
offer, to the extent said licenses or warranties are transferable.
(c) Client Warranties. Client warrants that it is free of any obligation that would prevent it from entering
into this Agreement Client acknowledges that Compass may utilize third party software and services to
provide a comprehensive solution. To the extent any third parties have their own separate terms and
conditions, Client agrees to abide by the terms and conditions as they apply to Compass. Any third party
terms and conditions will be made available to Client upon request.
(d) Disclaimer of Warranty. EXCEPT AS SET FORTH IN THIS SECTION 6, COMPASS EXPRESSLY DISCLAIMS
ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO (A)
ANY WARRANTY THAT THE SERVICES, ARE OR WILL BE ERROR-FREE, UNINTERRUPTED OR COMPATIBLE
WITH ALL EQUIPMENT AND (B) IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT,
AND FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.ALL OF THE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. COMPASS DOES NOT
WARRANTY THAT AS A RESULT OF MONITORING OR LIMITED INSPECTION, IT WILL IDENTIFY ALL OF THE
POTENTIAL PROBLEMS OR ISSUES WITH CLIENT’S SYSTEM, NOR DOES IT WARRANT THAT ITS
RECOMMENDATIONS WILL REMEDY ALL PROBLEMS OR ISSUES THAT THE CLIENT MAY ENCOUNTER.
COMPASS WILL NOT BE LIABLE FOR DATA WHICH WAS NEVER SENT TO THE OPERATIONS CENTER BY
THE SOFTWARE. COMPASS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE
AND/OR SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE
AND/OR THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE
CORRECTED, OR THAT THE SOFTWARE OR THE SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS.
7. Limitation Of Liability.
(a) Limitation of Liability. IN NO EVENT WILL COMPASS OR ITS AFFILIATES, AGENTS OR
SUBCONTRACTORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS
OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING,
PERFORMANCE OR USE OF THE SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR
TORTIOUS CONDUCT, EVEN IF COMPASS OR ITS AFFILIATES, AGENTS OR SUBCONTRACTORS HAD BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF COMPASS ITS
AFFILIATES, AGENTS AND SUBCONTRACTORS FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR
CLAIM IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR
PAYABLE TO COMPASS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE
CAUSE OF ACTION OR CLAIM.THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE
AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, MISREPRESENTATION, CLAIMS FOR
FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF THE SERVICES, AND OTHER TORTS.BOTH
PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN
ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES.THE FEES
HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
8. Insurance.
Compass shall maintain adequate levels and types of insurance coverage appropriate to its business
and/or activities and to cover its obligations hereunder as required by applicable laws, evidence of
which shall be provided to Client upon written request, and Compass shall provide prompt notice to
Client of any cancellation in its coverage.
9. Indemnification.
Client acknowledges and agrees that the use of any technology entails certain unavoidable risks, and
that no technology is 100% foolproof or immune from attack. Client agrees to indemnify, defend and
hold harmless Compass from and against all claims, causes of action, costs, fines or fees, demands,
liabilities, damages, losses, expenses, including attorneys’ fees and lawsuits which may be asserted
against or incurred by Compass by or due to any person not a party to this Agreement for any expense,
unintentional or accidental disclosure, misuse, or erasure of data, or any breach of security, loss or
damage including, but not limited to, statutory civil damage, personal injury, death and/or property
damage, real or personal, arising out of the design, sale, lease, installation, repair, service, dispatch,
maintenance, monitoring, recording of communications, operation or no operation of the equipment,
whether due to the sole, joint, or several negligence of Compass or its agents, servants, employees
suppliers, or subcontractors, breach of contract, express or implied, breach of warranty express or
implied, product or strict liability, and/or any claim for contribution or indemnification, whether in
contract, tort or equity.
Notwithstanding anything contained herein to the contrary, this paragraph shall not apply to claims for
loss of damage caused directly and solely by the negligence of an employee of Compass while at Client’s
premises, provided, however, that this exception shall be limited to the amount of proceeds received
from Compass’ insurance policy applicable to the claim or action.
10. General Provisions.
(a) Force Majeure. In the event either party is unable to carry out its material obligations under this
Agreement by reason of Force Majeure (as defined below) those obligations will be suspended during
the continuance of the Force Majeure, provided the cause of the Force Majeure is remedied as quickly
as practicable. The term “Force Majeure” means any event caused by occurrences beyond a party’s
reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, governmental
regulations, policies or actions enacted or taken subsequent to execution of the Agreement, or any
labor, telecommunications or other utility shortage, outage or curtailment, provided, however, that the
inability to meet financial obligations is expressly excluded.
(b) Assignments. Neither party may assign this Agreement, or any rights or duties hereunder, to anyone
without the prior written consent of the other party, such consent shall not be unreasonably withheld or
delayed, except that, this Agreement shall be assignable by either party if such party is merged,
consolidated, reincorporated, reorganized or if all or substantially all of its assets are sold to a third
party.
(c) Entire Agreement. This Agreement together with the schedules and exhibits hereto (which schedules
and exhibits are deemed a part of this Agreement), (i) contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and (ii) supersede all prior negotiations,
discussions, correspondence, communications, understandings, drafts and agreements between the
parties relating to the subject matter hereof, all of which are merged into this Agreement.
(d) Standard terms of Client. No terms, provisions or conditions of any purchase order, acknowledgment
or other business form that Client may use in connection with the Services will have any effect on the
rights, duties or obligations of the parties under, or otherwise modify this Agreement regardless of any
failure of Compass to object to such terms, provisions or conditions.
(e) Applicable Law. This Agreement including its formation, performance, termination or enforcement,
and the parties’ relationship in connection therewith, together with any related claims whether
sounding in contract, tort or otherwise, shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to any conflicts of law rules that might apply the
laws of any other jurisdiction.
(f) Consent to Jurisdiction. The parties hereby consent to the exclusive jurisdiction of any state or federal
court located within the State of Florida, County of Duval, with respect to any legal action, dispute or
otherwise, arising out of, related to, or in connection with this Agreement. The parties hereby waive any
objection in any such action or proceeding based on forum non-conveniens, and any objection to venue
with respect to any such legal action, which may be instituted in any of the aforementioned courts.
Process in any action or proceeding referred to in the preceding sentences may be served on the parties
anywhere in the world.
(g) No Agency. Compass will, in all matters relating to this Agreement, act as an independent contractor.
Except to the extent expressly authorized by this Agreement, neither party hereto is an agent, legal
representative, partner, joint venturer, franchisee, employee, or servant of the other party hereto for
any purpose. Neither party hereto will represent that it has any authority to assume or create any
obligation, express or implied, on behalf of the other party hereto, or to represent the other party
hereto in any capacity. Unless otherwise noted, both parties shall be responsible for all expenses
incurred by them in the course of exercising any rights or responsibilities accepted by them under this
Agreement.
(h) No Waiver. No failure or delay of either party hereto in exercising any right, power, or privilege
hereunder (and no course of dealing between the Parties) shall operate as a waiver or any such right,
power of privilege. No waiver of any default on any one occasion shall constitute a waiver of any
subsequent default. No single or partial exercise of any such right, power, or privilege shall preclude the
further or full exercise thereof.
(i) Surviving Provisions. Sections 3, 4, 5, 6(c), 7, 9 and 10 shall survive termination of this Agreement.
(j) All notifications shall be sent to the address specified on the first page of this Agreement, unless
modified by notice hereunder directed to the other party.
(k) Exclusivity. Nothing in this Agreement shall be read to prevent Compass from entering into similar
arrangements with other entities.
(l) Client Identification. Client agrees that Compass may use the name of and identify Client as a
customer and the Services provided to Client, in advertising, publicity, or similar materials distributed to
prospective customers.
(m) Non-Solicitation. Compass and Client agree that during the term that any Service is provided under
any applicable STATEMENT OF WORK and for a period of twelve (12) months thereafter, neither shall
solicit for employment or retention as an independent contractor any employee of the other who
provided any Services pursuant to this Agreement. “Solicit” shall not be deemed to include advertising in
newspapers, web sites or trade publications available to the public.
(n) Severability. Any provision hereof which is held by any court of competent jurisdiction in any
jurisdiction to be illegal, void or unenforceable shall, as to such jurisdiction, be ineffective to the extent
of such illegality or unenforceability without invalidating the remaining provisions hereof, and any such
illegality or unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the fullest extent permitted by applicable Law, the parties hereby
waive any provision of Law which may render any provision hereof prohibited or unenforceable in any
respect.
(o) Third-Party Interests. Client’s interests in and obligations with respect to any programming,
materials, or data to be obtained from third-party vendors, whether or not obtained with the assistance
of Compass, shall be determined in accordance with the agreements and policies of such vendors.
(p) Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such counterparts shall together
constitute one and the same agreement, and all signatures need not appear on any one counterpart.
Executed copies of the signature pages of this Agreement sent by facsimile or transmitted electronically
in Portable Document Format or any similar format, shall be treated as originals, fully binding and with
full legal force and effect, and the parties waive any rights they may have to object to such treatment.
(q) Section Headings. Section headings are for reference purposes only and shall not affect the
interpretation or meaning of this Agreement.
(r) Electronic Execution. The words “execution,” “signed,” “signature,” and words of similar import in
this Agreement shall be deemed to include electronic or digital signatures or the keeping of records in
electronic form, each of which shall be of the same effect, validity and enforceability as manually
executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as
provided for under applicable law.
11. Emergency Services.
EMERGENCY SERVICES 911 DIALING. All of our VOIP customers have access to either basic 911 or
Enhanced 911 (E911) service. With E911, when you dial 911, your telephone number and registered
address may be sent to the local emergency center assigned to your location. Emergency operators may
have access to the information they need to send help and call you back if necessary. We do not have
control over emergency operators nor can we guarantee that a 911 call will be routed to the correct
operator. Customers in locations where the emergency center is not equipped to receive their
telephone number and address may have basic 911. With basic 911, the local emergency operator
answering the call will not have you call back number or your exact location, so you must be prepared to
give them this information. Until you give the operator your phone number, he/she may not be able to
call you back or dispatch help if the call is not completed or is not forwarded, is dropped or
disconnected, or if you are unable to speak. You authorize us to disclose your name and address to
third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call
centers and local emergency centers.
NOTIFY ALL USERS. You agree to assume the obligation to inform any employees, guests, and other third
persons who may be present at the physical location where you utilize the services and/or products we
provide under this Agreement of the important differences in and limitations of your phone service as
compared with basic 911 or E911.
LOCATION OF SERVICE. This service is provided at a specific permanent address and not available as a
nomadic offering. Before you move the telephone device(s) to another location, you must notify us to
determine if service can be provided at your new permanent address. Service will only be provided at
locations where E911 or basic 911 connectivity are available.
CONFIRMATION OF ACTIVATION REQUIRED. Your 911 Dialing feature will not be activated for any phone
line that you are using with our service, UNLESS AND UNTIL YOU RECEIVE AN EMAIL FROM US
CONFIRMING THAT THE 911 DIALING FEATURE HAS BEEN ACTIVATED FOR THAT PHONE LINE.
SERVICE OUTAGES.
(a) Service Outages Due to Power Failure or Disruption. In the event of a power failure, network backup
power systems are in place. Failure of network power backup systems during a power failure or
disruption will prevent all service, including 911 dialing from functioning.
(b) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband service or ISP
service. Service outages, suspensions or disconnections of your broadband service will prevent all
service, including 911 Dialing, from functioning.
(c) Service Outage Due to Disconnection of Your Account. Service outages due to disconnection of your
account will prevent all service, including 911 Dialing from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Other third party
transport providers may intentionally or inadvertently block the ports over which the service is provided
or otherwise impede the usage of the service. In that event, provided that you alert us to the situation,
we will attempt to work with you to resolve the issue. During the period that the ports are being blocked
or your service is impeded, and unless and until the blocking or impediment is removed or the blocking
or impediment is otherwise resolved, your service, including the 911 Dialing feature, may not function.
You acknowledge that we are not responsible for the blocking of ports or any other impediment to your
usage of the service, and any loss of service, including 911 Dialing, which may result. In the event you
lose service as a result of blocking of ports or any other impediment to your usage of the service, you
will continue to be responsible for payment of the service charges unless and until you disconnect the
service in accordance with this Agreement.
(e) Other service Outages. If there is a service outage for any reason, such outage will prevent all service,
including 911 Dialing, from functioning, SUCH OUTAGES MAY OCCUR FOR A VARIETY OF REASONS,
INCLUDING, BUT NOT LIMITED TO, THOSE REASON DESCRIBED ELSEWHERE IN THIS AGREEMENT.
Network Congestion: Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater
possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing
the service as compared to traditional 911 dialing over traditional public telephone networks.
Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service,
you should consider having an alternate means of accessing traditional 911 or E911 services or
disconnecting the service.
Directory Listings. We will bill all charges, applicable taxes and surcharges monthly in advance (except
for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide
to bill in arrears), including but not limited to: activation fees; monthly service fees; usage charges
international usage charges; advanced feature charges; advanced features/add-ons; subscriber line
charge, universal service fund; 911 fees; federal, state and/or local taxes; disconnection fees; and
shipping and handling charges.
Theft of Service. You agree to notify us immediately, in writing or by calling our customer care
department, if the phone device used to access our service is stolen or if you become aware at any time
that your service is being stolen or fraudulently used. When you notify us, you must provide your
account number and a detailed description of the circumstances of the phone device theft of fraudulent
use of service. Failure to do so in a timely manner may result in the termination of you service and
additional charges to you. Until such time as you notify us as described herein of the theft or fraudulent
use, you will be liable for all of the use of the service and/or the phone device stolen from you. You
acknowledge and agree that you shall be responsible for any and all charges attributable to you, even if
incurred as a result of fraudulent or unauthorized use of service by third parties. Although we will
endeavor to contact you pursuant to the notice provisions prior to discontinuing the service or portions
thereof explaining the reasons for such action, you acknowledge and agree that we shall have no liability
to you for terminating the service for our failure to have so notified you. We may, but are not obligated
to detect or report unauthorized or fraudulent use of the service.