TERMS OF PURCHASE
Effective as of February 13, 2023
THESE TERMS OF PURCHASE (THIS “AGREEMENT”) WILL GOVERN YOUR PURCHASE OF DENSITY HARDWARE AND DENSITY SUBSCRIPTIONS (AS SUCH TERMS ARE DEFINED BELOW) AND IS ENTERED INTO BETWEEN DENSITY INC. (“DENSITY”) AND ANY PERSON OR ENTITY WHO ACCESSES THE DENSITY PRODUCTS (TOGETHER WITH THEIR AFFILIATES, AGENTS AND REPRESENTATIVES, (“CUSTOMER”, “YOU” OR “YOUR”). THIS AGREEMENT TAKES EFFECT WHEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU will be determined to HAVE agreeD TO AND ACCEPTED THESE TERMS BY EITHER EXECUTING AN ORDER FORM OR STATEMENT OF WORK REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, ACCESSING OR USING THE SERVICES OR DENSITY PRODUCTS, Or otherwise entering into a commitment to purchase density PRODUCTS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND 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 3.2.
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 Professional 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 Professional 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 Professional Services, in each case, as may be provided by Density from time to time.
1.7 “Density Subscriptions” means those subscriptions to Density services ordered by Customer from Density or through an authorized reseller, including, without limitation, any one or more Services.
1.8 “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.
1.9 “Payment Method” has the meaning set forth in Section 3.3.
1.10 “Payment Method Provider” has the meaning set forth in Section 3.3.
1.11 “Professional Services” has the meaning set forth in Section 2.3.
1.12 “Services” means the offerings and services, including Professional Services, provided directly by Density or indirectly through an authorized reseller from time to time.
1.13 “Statement of Professional Services” has the meaning set forth in Section 2.3.
1.14 “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 sell to Customer the Density Hardware detailed in the applicable order form. The Density Hardware is sold to Customer solely for use by Customer in connection with Density Subscriptions.
2.2 Sale of Density Subscriptions. Density Subscriptions are sold on an annual or other specified period, as set forth in the applicable order form (each such period, a “Subscription Term”). The initial Subscription Term shall commence on the date stated in the order form or other applicable Order Document except to the extent a delay constitutes a Density Delay. If Customer and Density have signed an order form for Density Subscriptions, the Subscription Term will renew according to the terms of such order form. 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 Professional Services. Subject to the terms and conditions of the Order Documents, Density agrees to render certain professional services (the “Professional Services”) to Customer as detailed in the applicable order form. The scope of Professional Services as well as pricing information and other relevant details (collectively, the “Statement of Professional Services”) may be made available to Customer upon request. The Statement of Professional Services, if any, shall be considered part and parcel of the applicable order form and the Professional Services rendered to Customer shall be subject to the terms of the Order Documents and the applicable Statement of Professional Services. Density shall perform the Professional Services 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, 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 the Order Documents 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 Documents, 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 applicable 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 Document, (b) the Density Hardware shall be deemed to have been delivered in accordance with the terms of the Order Documents, 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 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 will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses.
2.7 Delays. Notwithstanding the occurrence of a Customer Delay of any type or nature irrespective of the Density Product subject of the applicable order form, Density shall charge and bill or invoice Customer (i) all fees, costs and expenses as set forth in the initial order form, including for the Density Subscriptions or Professional 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 a delay of commencement of the Density Subscriptions and Services are due to a Density Delay, Density shall (A) not charge and bill or invoice Customer for provision of the Density Subscriptions and 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; 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 Professional Services are due to a Density Delay, Density shall (A) not charge and bill or invoice Customer for provision of the Professional 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 Prices and Fees. The price and fees of the Density Products are set forth on the signed order form or on the order confirmation page prior to finalizing the purchase, as applicable. Unless otherwise agreed to by Density and Customer in an Order Document, Customer agrees to pay Density the amounts indicated for the Density Products Customer selects. Unless otherwise agreed to by Density and Customer in an Order Document, twenty percent (20%) of the price of the Density Hardware ordered pursuant to the applicable Order Document shall become due and payable and will be charged to the Payment Method (defined below) upon Customer’s acceptance and agreement to the applicable order form. 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. The fees for the Density Subscriptions or Professional Services, as applicable, will be charged to the Payment Method upon commencement, as set forth in the Order Document and/or the applicable Density or authorized reseller order form. In the case of Density Subscriptions, the initial payment will cover fees for the initial Subscription Term. If the Subscription Term renews, the fees for any renewal Subscription Terms will be the then-current fee applicable to the Density Subscriptions and will be charged to the Payment Method upon renewal, unless otherwise agreed in writing between Customer and Density. Customer authorizes Density to charge the Payment Method for the prices and fees described herein. 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 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 prior rate, unless otherwise provided in the Order Documents or as otherwise agreed upon by Density and Customer in writing. 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. 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. Customer shall be responsible for any costs and expenses associated with (i) a request by Customer to change locations 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, and Customer hereby authorizes Density, in each case, to charge such expenses to the Payment Method.
3.2 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 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.
3.3 Payment Method. 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 selected by Customer when purchasing the Density Products (the “Payment Method”). Density may, from time to time, receive and use updated payment method information provided by Customer or that financial institutions or payment processors may provide to Density to update information related to the Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between Customer and the financial institution, credit card issuer or other provider of the chosen Payment Methods (the “Payment Method Provider”). If Density does not receive payment from the Payment Method Provider, Customer agrees to directly pay all amounts due upon written demand from Density (e-mail sufficient). Customer’s non-termination or continued use of the Density Subscriptions reaffirms that Density is authorized to charge the Payment Method for each renewal Subscription Term.
3.4 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. 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.
3.5 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 Professional Services. Customer agrees to submit any 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. 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 or any partial Subscription Terms or rendering of Professional Service except (a) as expressly set forth in this Agreement or a separate written agreement between Density and Customer, including any executed order form; (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. 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. Sections 8, 9, and 10.1-10.13 of the Density Terms of Service apply to this Agreement as if set forth herein.
4.3 Entire Agreement; Amendment. This Agreement, together with the Order Documents, constitutes 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 an Order Document, the terms and conditions of the order form 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. 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 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 sole discretion. If Density Updates this Agreement, it will make the Update available here, and the Update will indicate the date of the latest revision. Customer is encouraged to review this Agreement periodically for changes. All Updates automatically take effect 3 days after they are posted, except that (i) disputes between Customer and Density which have been communicated 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 and (ii) unless specifically agreed otherwise, if Customer does not agree with any changes to this Agreement, Customer may cease such Customer’s use of the Density Subscriptions, Professional Services and any related Services, as applicable. In the event Customer continues to access or use the Density Products following an Update which has become effective, such continued access or use shall be deemed Customer’s acknowledgement and agreement to the Agreement in effect containing those Updates.
Posted on February 10, 2023