SERVICE LEVEL AGREEMENT
Effective as of August 3, 2023
THIS SERVICE LEVEL AGREEMENT (THIS “SLA”) WILL GOVERN YOUR USE OF DENSITY SUBSCRIPTIONS AND USE OF EMBEDDED SOFTWARE IN THE DENSITY HARDWARE AND IS ENTERED INTO BETWEEN DENSITY INC. (“DENSITY”) AND ANY PERSON OR ENTITY WHO EXECUTES AN ORDER DOCUMENT OR OTHER WRITTEN AGREEMENT IN ORDER TO ACCESS THE DENSITY PRODUCTS (TOGETHER WITH THEIR AFFILIATES, AGENTS, PERSONNEL AND REPRESENTATIVES, COLLECTIVELY, “CUSTOMER”, “YOU” OR “YOUR”). YOU WILL BE DETERMINED TO HAVE AGREED TO AND ACCEPTED THIS SLA BY EITHER EXECUTING AN ORDER DOCUMENT OR OTHER WRITTEN AGREEMENT REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, ACCESSING OR USING DENSITY PRODUCTS OR OTHERWISE ENTERING INTO A COMMITMENT TO PURCHASE DENSITY PRODUCTS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND DENSITY WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER DENSITY’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
(a) All capitalized terms used but not defined in this SLA shall have the meanings ascribed thereto the Terms of Purchase (or the applicable document referenced therein) located at https://www.density.io/legal/terms-of-purchase (the “Terms of Purchase”).
(b) “API Downtime” shall mean a period of ten (10) consecutive minutes where at least twenty (20) calls are made to the Density API and more than ten percent (10%) of such calls to the Density API do not receive a response.
(c) “API Uptime” shall mean an uptime percentage of the Density API equal to or exceeding ninety nine percent (99%) and shall be calculated as one hundred (100) minus the Monthly API Downtime Percentage, stated as a percentage.
(d) “Monthly API Downtime Percentage“ shall mean (i) (A) total API Downtime, denoted in minutes, for a given month divided by (B) total number of minutes in such given month multiplied by (i) one hundred.
(e) “Monthly Subscription Fees” shall mean the fees payable by Customer to Density for the Density Subscriptions for a given calendar month, as set forth in one or more order forms; provided, however, that, to the extent the fees for the Density Subscriptions are not invoiced on a monthly basis, the Monthly Subscription Fees shall instead be equal to the total fees for the Density Subscriptions divided by the number of whole calendar months provided for in the applicable order form.
2. SERVICE LEVELS; CREDIT EVENT EXCLUSIONS
(a) API Uptime; Credit. Subject to the remaining provisions of this SLA, Density will use commercially reasonable efforts to ensure the API Uptime meets or exceeds ninety nine percent (99%). If the Monthly API Downtime Percentage is greater than 1% (a “Credit Event”), Customer shall be eligible for a credit equal to the Monthly Service Fees multiplied by the Monthly API Downtime Percentage (the “Credit”). The issuance of the Credit shall be subject to the other provisions of this SLA, including Section 3 hereof.
(b) Scheduled Maintenance. The Service Level measurements detailed in Section 2(a) do not include any API Downtime caused by planned or scheduled maintenance. Density will use commercially reasonable efforts to conduct planned or scheduled maintenance during off-peak hours and provide Customer with at least 24-hour advance written notice (email sufficient) of any planned or scheduled maintenance. Scheduled maintenance will be conducted in a manner to minimize the adverse impact on Customer and its use and the availability of the Density Subscriptions.
(c) Credit Event Exclusions. No Credit Event shall be deemed to have occurred, and no Credit due to Customer, in the event any performance issues or failure to meet the API Uptime resulted from or caused by (i) any actions or inactions of Customer or any third parties; (ii) failure or inoperability of Customer's equipment or the equipment of any third party; or (iii) factors outside of Density’s reasonable control, including, without limitation: (1) resulted from acts of God, acts of government, flood, fire, earthquakes, civil wars, acts of terror, strikes; (2) computer, telecommunications, internet service provider, hosting facility, power systems unrest, denial of service attacks; (3) outages of third party connections, platforms, APIs, hardware/software or data integrations; (4) external network problems (including poor local networking configuration (e.g., DHCP, Static IP, DNS Servers, Subnets, VLANs); (5) updates or changes to local networking configuration that would affect the pre-set networking template or environment set up during initial installation process; (6) faulty cat5/6 cabling or wiring; (7) local power or utilities outages that result in loss of device power; (8) other problems inherent to the general use of the internet and other public networks or caused by Customer or third parties; (9) suspension of an account of Customer, as determined by Density in its sole discretion, or otherwise terminated; (10) Customer account having reached any limit defined in the Density Standard Terms & Conditions or applicable order form or (11) any events of force majeure.
3. SERVICE CREDITS
(a) Credits; Generally. In the event a Credit Event has occurred, Customer is eligible to receive the Credit unless, as determined by Density in its good faith discretion, (i) Customer has any amounts overdue or due and owing to Density at the time the Credit is requested in accordance with Section 3(c) or (ii) Customer is in breach of of the Terms of Purchase or other Order Documents.
(b) Credit Cap and Other Limitations. The Credit for any given calendar month shall not exceed twenty percent (20%) of the Monthly Subscription Fees. Credits are neither redeemable for cash nor shall Customer be entitled to refund of any fees previously paid to Density. Credits can only be applied towards future payments due and owing by Customer to Density for Density Subscriptions or Density Hardware but not, for the avoidance of doubt, any other Services that may be made available to Customer from time to time. Customer will not be entitled to a credit under this SLA if Customer is in breach of the Density Standard Terms & Conditions or applicable order form, if Customer’s account has been suspended or closed, or if Customer has reached any limits as defined in the applicable order form. Credits awarded pursuant to this SLA are the exclusive remedy for the Service Levels falling below the performance standards set forth in this SLA.
(c) Submission of Credit Requests. Upon the occurrence of a Credit Event, Customer shall submit a written request for the corresponding Credit by contacting Density at firstname.lastname@example.org, the contact person listed in the applicable order form or other Density representative (“Credit Request”). Upon receipt, Density shall calculate the Credit due in accordance with the terms of this SLA and shall apply such amount to the subsequent payment due to Density for Density Hardware or Density Subscriptions or to such other charge as requested by Customer as agreed in writing by Density.
(d) Customer Obligation. Density has no obligation to monitor the API Uptime or API Downtime, provide any API Downtime reporting, or automatically issue any Credits without submission of the corresponding Credit Request by Customer. Customer shall have thirty days (30) from the date of occurrence of any given Credit Event (the “Credit Outside Date”). Any Credit Requests submitted after the Credit Outside Date shall be forfeited without any consideration or remuneration therefor.
(e) Cooperation. Customer will provide Density with reasonable access to all necessary personnel of Customer to assist in any fact finding regarding API Downtime reported by Customer related to the applicable Credit Request.
(a) Entire Agreement; Amendment. This SLA, together with the other Order Documents, constitute the sole and entire agreement of Density and Customer with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Order Documents. In the event of a conflict or inconsistency between the terms and conditions hereof and the terms and conditions of a written agreement executed by Density and the Customer, the terms and conditions of such executed written agreement shall govern and control. This SLA, and any other Order Document, may only be amended, modified, or supplemented by a change order in writing signed by a duly authorized representative of each party hereto.
(b) Assignability. Customer may not assign its right, duties, or obligations under this SLA or any Order Document without Density’s prior written consent, to granted or withheld in its sole discretion. As used in this Section 5(b), “assign” includes undergoing any direct or indirect change in control, whether via a merger, acquisition, or sale of all or substantially all of the assets of Customer. If consent is given to such assignment, the Order Documents will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under any Order Document except as expressly provided in this SLA shall be null and void.
(c) Notices. Any notice required or permitted to be given in accordance with the Order Documents will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the order form and with the appropriate postage affixed. Density may also contact or be contacted at the email address listed in the order form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 5(c).
(d) Governing Law. The Order Documents will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, U.S.A. without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
(e) Arbitration. The parties agree to resolve all disputes arising under or in connection with the Order Documents through binding arbitration. The arbitration will be held in San Francisco County, California, U.S.A. If Customer is an entity incorporated or formed under the state or federal laws of the U.S.A., the arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). If Customer is an entity incorporated or formed under the laws of a foreign jurisdiction, the arbitration will be conducted in accordance with the International Chamber of Commerce (“ICC”) Rules of Arbitration. If there is a dispute between the parties under the Order Documents, the parties will use good faith efforts to agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received from the other party. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA or ICC (as applicable) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA or ICC (as applicable) will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA or ICC (as applicable). The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section 5(e) will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
(f) Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by a duly authorized representative of the party so waiving. The waiver by either party of any breach of any provision of an Order Document does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with the Order Documents will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Order Documents.
(g) Force Majeure. Density will not be liable for, or be considered to be in breach of or default under any Order Document on account of, any delay or failure to perform as required by the Order Documents as a result of any cause or condition beyond Density’s reasonable control, so long as Density uses commercially reasonable efforts to avoid or remove such causes of non-performance.
(h) Updates to this SLA. From time to time, Density may change, modify, add, or remove portions of this SLAt (each an “Update”), and reserves the right to do so in its reasonable discretion. Subject to the terms of this Section 5(h), each Customer shall be bound by such Updates. If Density Updates this SLA, it will make the Update available here, and the Update will indicate the date of the latest revision. Customer has the obligation and is encouraged to review this SLA periodically for changes. All Updates take effect as of the date first written above, except that any disputes between Customer and Density which have been communicated in writing to the applicable party prior to the date that such Updates take effect will be governed by the version of this SLA that was in effect on the date the disputing party provided notice to the other of the dispute. For the avoidance of doubt and notwithstanding anything to the contrary contained herein, under no circumstances do the provisions of Section 5(h) make available to Customer any termination rights not otherwise expressly available to it under the applicable Order Documents and any terms that may otherwise apply including, without limitation, this SLA. In the event Customer continues to access or use the Density Products following an Update which has become effective, such continued access or use constitutes Customer’s acknowledgement and agreement to the SLA in effect containing such Updates.
Posted on August 3, 2023