TERMS OF PURCHASE
Effective as of September 25, 2023
THESE TERMS OF PURCHASE (THIS “AGREEMENT”) WILL GOVERN YOUR PURCHASE OF DENSITY PRODUCTS (EACH AS DEFINED BELOW) 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 ACCESSES 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 THESE TERMS 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. ANY TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBED THERETO IN THE APPLICABLE ORDER DOCUMENT.
1.1 “Costs” has the meaning set forth in Section 3.3.
1.2 “Customer Delay” means (a) the Density Hardware is not shipped on or before the shipment date set forth in the Order Documents and/or (b) the commencement of the Density Subscriptions or rendering of Density Services, as applicable, is delayed from the date set forth in the Order Documents, in each case, due to the fault or request of Customer (including for reasons of change orders initiated by the Customer and not otherwise waived by Density therein in writing, delays, failures to promptly respond to any Density requests, including sign offs, or other actions or inactions of Customer). For the avoidance of doubt, any changes to the terms and conditions set forth in the initial order form in connection with, related to or arising from a Customer Delay shall require execution by the parties of a change order.
1.3 “Density Delay” means (a) the Density Hardware is not shipped on or before the shipment date set forth in the Order Documents and/or (b) the commencement of the Density Subscriptions or rendering of Density Services, as applicable, is delayed from the date set forth in the Order Documents, in each case, caused by or resulting solely from acts or omissions of Density in contravention of its obligations pursuant to the Order Documents, but excluding any delays arising out of, related to or occurring in connection with either a Customer Delay or a force majeure event as described in Section 4.9 hereof.
1.4 “Density Hardware” means all physical computer and other data processing hardware and sensors provided by Density from time to time, either directly to Customer or through an authorized reseller.
1.5 “Density Obligations” has the meaning set forth in Section 2.7.
1.6 “Density Products” means, collectively, the Density Hardware, the Density Subscriptions and such other hardware or software offerings made available by Density from time to time.
1.7 “Density Services” means Density’s provision of certain services, including, without limitation, MAPS scans and professional services, as made available to Customer from time to time.
1.8 “Density Subscriptions” means those subscriptions to Density software solutions and offerings ordered by Customer from Density or through an authorized reseller, including, without limitation, ATLAS.
1.9 “Order Documents” means, collectively, the order form for the purchase of the Density Products, this Agreement, Density’s Terms of Service, Density’s Data Processing Agreement, Density’s Service Level Agreement, Density’s Support Policy, and any other written agreement entered into by and between Density and Customer, in each case, as in effect from time to time.
1.10 “Payment Method” has the meaning set forth in Section 3.4.
1.11 “Payment Method Provider” has the meaning set forth in Section 3.4.
1.12 “Statement of Density Services” has the meaning set forth in Section 2.3.
1.13 “Subscription Term” has the meaning set forth in Section 2.2.
2.1 Sale of Density Hardware. Subject to the terms and conditions of the Order Documents, Density agrees to make available to Customer the Density Hardware detailed in the applicable order form. The Density Hardware is made available to Customer solely for use by Customer in connection with Density Subscriptions.
2.2 Sale of Density Subscriptions; Renewals. Density Subscriptions are sold on a three (3) year term or such other term or period as set forth in the applicable order form (each such period, a “Subscription Term”). Except in the event of a Density Delay, as detailed in Section 2.7 hereof, the initial Subscription Term shall commence on the date stated in the order form or other applicable Order Document. Unless otherwise agreed in writing, Density Subscriptions shall commence no later than sixty (60) days after the date of shipment. Upon expiry, the Subscription Term shall automatically renew for successive periods of the same length as the initial Subscription Term. If Customer has purchased the Density Subscriptions through an authorized reseller, upon expiry, the Subscription Term will automatically renew for successive periods of the same length as the initial Subscription Term or as otherwise provided in the applicable agreements between the Customer and the applicable reseller.
2.3 Sale of Density Services. Subject to the terms and conditions of the Order Documents, Density agrees to render the Density Services to Customer as detailed in the applicable order form. The scope of Density Services as well as pricing information and other relevant details (collectively, the “Statement of Density Services”) may be made available to Customer upon request. The Statement of Density Services, if any, shall be considered part and parcel of the applicable order form and the DensityServices rendered to Customer shall be subject to the terms of the Order Documents and the applicable Statement of Density Services. Density shall perform the DensityServices in a manner consistent with industry standards by individuals with the requisite training, background, experience, technical knowledge and skills to perform the same.
2.4 Acceptance. Density reserves the right to accept or reject any orders placed by a Customer, in whole or in part, in its sole discretion, or to cancel any order previously accepted if Density determines that Customer is in default of any of its obligations or Customer is in a country or territory where Density does not or cannot provide the Density Products or otherwise.
2.5 Fulfillment of Orders and Invoicing. Density will use commercially reasonable efforts to fill orders by Customer promptly and in accordance with the terms contained in an order form accepted by Density. Density retains the right to fulfill orders, in whole or in part, based upon a Density-approved schedule. For the avoidance of doubt, Density may, in its sole discretion, without liability or penalty, make partial shipments of the Density Hardware to Customer. Any Customer requests for partial fulfillment are subject to approval by Density. Notwithstanding anything herein to the contrary, Customer shall have no recourse, and holds Density harmless, for and from any delay in delivery of the Density Products by any particular date set forth in the Order Documents; provided that Density utilized commercially reasonable efforts and such delay does not otherwise constitute a Density Delay.
2.6 Shipment Terms. All Density Hardware delivered pursuant to an order form will be suitably packed for shipment in Density’s standard shipping cartons, marked for shipment, and shipped to Customer or its carrier agent to the address set forth in the order form, at which time title and risk of loss will pass to Customer; provided, however, that, in the event of a Customer Delay (unless otherwise expressly agreed by Density in writing in any change order), (a) risk of loss to the Density Hardware shall pass to Customer upon the original shipment date set forth in the applicable order form, (b) the Density Hardware shall be deemed to have been delivered in accordance with the terms of the applicable order form, and (c) Density, at its option, may store the Density Hardware in its own or third party storage solutions, whereupon Customer shall be liable for all related costs, fees and expenses, including, without limitation, storage and associated insurance premiums. Density will select the carrier, unless the carrier chosen by Density will not fulfill the delivery, in which case Customer’s choice of substitute carrier is subject to Density approval. Customer shall pay all freight, insurance and all shipping costs expenses, as well as any special packing expenses, incurred by Density in connection with the shipment and/or transport of ordered Density Products.
2.7 Delays. Notwithstanding the occurrence of a Customer Delay of any type or nature and irrespective of the Density Product subject of the applicable order form, Density shall charge and bill and invoice Customer (i) all fees, costs and expenses as set forth in the initial order form, including for the Density Subscriptions or Density Services, as applicable, as of the commencement date set forth therein and (ii) all fees, costs and expenses incurred by Density in connection with, arising from or otherwise related to the Customer Delay (including, for example, additional storage fees). In the event of a delay of commencement of the Density Subscriptions and Density Services are due to a Density Delay, Density shall (A) not charge and bill or invoice Customer for provision of the Density Subscriptions and Density Services until shipment of the Density Products in accordance with the terms set forth in the initial Order Documents and (B) provide prompt written notice to the representative(s) of Customer designated in the initial order form setting forth the revised shipment date of the Density Hardware and commencement of Density Subscriptions or Density Services; which such revised date(s) set forth in the written notice shall be binding on the parties and shall be deemed to amend and supersede any dates set forth in the Order Documents (collectively, the “Density Obligations”). In the event a delay of commencement of any Density Services are due to a Density Delay, Density shall (A) not charge and bill or invoice Customer for provision of the Density Services until their commencement in accordance with the terms set forth in the initial Order Documents. Other than the Density Obligations, and provided that Density utilize commercially reasonable efforts to remedy the circumstances resulting in the Density Delay, Density shall have no liability to Customer for any for any damages, claims, penalties, or liabilities, fees, costs or expenses, and Customer waives any rights or remedies not expressly set forth herein.
3.1 Pricing, Fees, Costs and Expenses.
(a) Generally. The prices and fees charged to the Customer for the Density Products are set forth on the applicable order form. Unless otherwise agreed to by Density and Customer in an order form or other written agreement, Customer agrees to pay Density the amounts indicated for the Density Products Customer orders in accordance with the provisions of this Agreement.
(b) Purchase Models. Density Products are accessible through two pricing models; ‘Platform as a Service’ (“PaaS”) and ‘Hardware Purchase’ (each, a “Purchase Model”), each as described below. The ‘Hardware Purchase’ model is made available to customers only in limited and under exceptional circumstances. Section 3.1(b)(i) and Section 3.1(b)(ii) are applicable to any given order form in the alternative and are mutually exclusive of one another.
(i) Platform as a Service (“Paas”). This section applies only if Customer elects for a ‘PaaS’ purchase model and Section 3.1(b)(ii) shall have no force or effect. Density shall make available to Customer the Density Hardware at no charge; provided that Customer pay cost of freight, insurance, and other shipping expenses, as well as any special packing expense which will, in each case, be charged to the Payment Method (as defined below) upon shipment. All right, title and interest to the Density Hardware shall pass to Customer upon shipment and Customer shall own all right, title and interest in such Density Hardware as of the date of shipment. Customer shall be responsible for any fees, costs and expenses associated with (i) a change of location of previously installed Density Hardware during the term of the Density Subscriptions and (ii) removing, dissembling and/or uninstalling Density Hardware upon expiration or termination of the Density Subscriptions, in each case, subject to the terms of the Density Warranty (as defined below). Customer hereby authorizes Density to charge such expenses to the Payment Method.
(ii) Hardware Purchase. This section applies only if Customer elects for a ‘Hardware Purchase’ purchase model and Section 3.1(b)(i) shall have no force or effect. Unless otherwise agreed in an order form or other written agreement (i) twenty percent (20%) of the price of the Density Hardware ordered pursuant to the applicable order form shall become due and payable and will be charged to the Payment Method upon Customer’s execution of the applicable order form and (ii) the remaining eighty percent (80%) shall become due and payable upon shipment of the Density Hardware, subject, in each case, to any ‘acceptance’ terms agreed to in writing, if any. The cost of freight, insurance, and other shipping expenses, as well as any special packing expense, will be charged to the Payment Method upon shipment. Customer shall be responsible for any costs and expenses associated with (i) a change of location of previously installed Density Hardware during the term of the Density Subscriptions and (ii) removing, dissembling and/or uninstalling Density Hardware upon expiration or termination of the Density Subscriptions, in each case, subject to the terms of the Density Warranty (as defined below). Customer hereby authorizes Density, in each case, to charge such expenses to the Payment Method.
(c) Density Subscriptions. The fees for the Density Subscriptions will be charged to the Payment Method upon commencement of the Density Subscriptions, as set forth in the order form and/or an authorized reseller order form (or similar document). Upon renewal of a Subscription Term, the fees for any renewal Subscription Terms will be assessed at the then-current fee applicable to the Density Subscriptions and will be charged to the Payment Method upon renewal, unless otherwise agreed in writing. Customer may submit a request for upgrade, downgrade or cancellation of the selected Density Subscription plan at any time. Plan downgrades or cancellations will take effect only at the end of the then-current Subscription Term and must be made at least thirty (30) days prior to the next renewal of the Subscription Term (if any) in order to avoid billing of the next renewal Subscription Term’s fees at the then-current rate. Customer will not receive a refund or credit for the remainder of the Subscription Term in the event of any downgrade or cancellation during a Subscription Term. If accepted by Density, Density Subscription upgrades will take effect immediately and Customer will be charged a prorated fee for the remainder of the then-current term based on the difference in price between the current plan and the upgraded plan.
(d) Density Services. Subject to the terms set forth in an applicable order form, the aggregate fees for any Density Services will be charged to the Payment Method upon commencement of such Density Services.
(e) Taxes and Other Costs. Stated fees do not include any related taxes, duties and similar charges (including without limitation sales and use taxes, duties or other governmental taxes or fees), all of which are Customer’s responsibility and will be charged to Customer’s Payment Method in addition to the fees for the Density Products.
3.2 Invoicing Terms. Unless otherwise specified in an executed order form and, in respect of Density Hardware subject to the second sentence of Section 3.1(b)(ii), Customer shall pay Density all amounts set forth in the invoice(s) on net thirty (30) terms following Customer’s receipt of such invoice, subject to any ‘acceptance’ terms agreed to in writing, if any. Customer shall not be entitled to any right of set off and all disputes shall be addressed in accordance with Section 3.6. All late payments for amounts not disputed in good faith with reasonable documentation shall be assessed a ten percent (10%) late fee surcharge, compounding monthly until paid in full.
3.3 Costs and Expenses. Customer shall be responsible for reasonable, documented out-of-pocket expenses incurred by Density or its agents, contractors, representatives and personnel in connection with making available the Density Products to Customer, including, without limitation, the reasonably documented costs and expenses incurred in connection with project management and related travel (“Costs”). Costs shall be included as a separate and distinct line item in any applicable invoice issued to Customer and documentation for such expenses shall be made available to Customer upon request.
3.4 Payment Method; Third Party Payment Processors. Density may, from time to time, offer various payment methods, including, by way of illustration, direction to make payment by wire transfers or ACH, by credit card, by debit card, by certain mobile payment providers or by PayPal. Customer (i) authorizes Density to charge Customer for Density Products or (ii) agrees to make payment to Density, in each case, through the payment method determined at the time of purchase of the Density Products (the “Payment Method”). Customer agrees to directly pay all amounts due upon written demand from Density (e-mail sufficient) in the event that Customer’s preferred third party payment provider does not timely effect payment. Customer’s non-termination or continued access to the Density Subscriptions reaffirms that Density is authorized to charge the Payment Method for each renewal Subscription Term.
3.5 Current Information Required. Customer agrees to provide current, complete and accurate billing information and agrees to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to Density per the Order Documents. Customer agrees to promptly notify Density if the selected Payment Method is canceled (for example, due to loss or theft) or if Customer becomes aware of a potential breach of security related to any Payment Method. If Customer fails to provide any of the foregoing information, Customer acknowledges that its current Payment Method may continue to be charged for Density Products and it remains responsible for all such charges.
3.6 Payment Matters. If the Payment Method fails or Customer’s account is past due, Density reserves the right to withhold shipment of Density Hardware and to either suspend or terminate Customer’s use of the Density Subscriptions and the rendering of any Density Services. Customer agrees to submit any good faith disputes regarding any charge to its account in writing to Density within 60 days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. If applicable, Customer agrees to reimburse Density for all collection costs. Density reserves the right to charge Customer interest at the maximum rate permitted by applicable law. All fees and charges are nonrefundable and there are no refunds or credits for shipped Density Hardware, any partial Subscription Terms or rendering of Density Services except (a) as expressly set forth in this Agreement or a separate written agreement between Density and Customer, including any executed Order Document; (b) as otherwise required by applicable law; or (c) at Density’s sole and absolute discretion. All prices for Density Products are subject to change without notice.
4.1 Subscription Term. Subscription Term will start, renew and end according to the terms outlined above. The Subscription Term is also subject to termination according to the Density Terms of Service.
4.2 Terms of Service; Density Warranty. The Density Products are further subject to the terms of the Density Terms of Service, which is incorporated into and made a part of this Agreement. Density Hardware is sold with the warranty set forth in the Density Terms of Service (the “Density Warranty”).
4.3 Entire Agreement; Amendment. This Agreement, 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 Agreement, 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.
4.4 Assignability. Customer may not assign its right, duties, or obligations under this Agreement or any Order Document without Density’s prior written consent, to granted or withheld in its sole discretion. As used in this Section 4.3, “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 Agreement shall be null and void.
4.5 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.
4.6 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.
4.7 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 4.7 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
4.8 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.
4.9 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.
4.10 Updates to this Agreement. From time to time, Density may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its reasonable discretion. Subject to the terms of this Section, each Customer shall be bound by such Updates. If Density Updates this Agreement, 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 Agreement 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 Agreement 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 4.10 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 Agreement. 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 Agreement in effect containing such Updates.
Posted on September 25, 2023