TERMS OF SERVICE
Effective as of September 25, 2023
THESE TERMS OF SERVICE (THIS “AGREEMENT”) WILL GOVERN YOUR USE OF DENSITY SUBSCRIPTIONS AND USE OF EMBEDDED SOFTWARE IN THE DENSITY HARDWARE (AS SUCH TERMS ARE 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 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 THESE TERMS BY EITHER EXECUTING AN ORDER DOCUMENT OR OTHreER 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 “AAA” has the meaning set forth in Section 10.10.
1.2 “Claim” has the meaning set forth in Section 6.1.
1.3 “Confidential Information” has the meaning set forth in Section 8.1.
1.4 “Customer Data” has the meaning set forth in Section 4.3.
1.5 “Customer Indemnified Parties” has the meaning set forth in Section 6.1.
1.6 “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.
1.7 “Density Indemnified Parties” has the meaning set forth in Section 7.1.
1.8 “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.
1.9 “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.
1.10 “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.
1.11 “Embedded Software” means software and firmware running on the Density Hardware.
1.12 “ICC” has the meaning set forth in Section 10.10.
1.13 “Order Documents” means, collectively, the order form for the purchase of the Density Products, Density’s Terms of Purchase, this Agreement, 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.
1.14 “Subscription Term” means the term of Customer’s Density Subscription purchased from Density pursuant to the Density Terms of Purchase or purchased through an authorized reseller.
1.15 “Third Party Software” has the meaning set forth in Section 4.6.
1.16 “Warranty Period” has the meaning set forth in Section 5.2.
2. DENSITY SUBSCRIPTIONS
2.1 Subscriptions. Subject to the terms and conditions of the Order Documents, solely during the Subscription Term, Density grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Subscription Term to access and use the Density Products solely in connection with Customer’s internal business operations and to use the Embedded Software solely in connection with Customer’s authorized use of the Density Hardware.
2.2 API Access. Subject to the terms and conditions of the Order Documents, Density grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Subscription Term to access and use the Density API materials in accordance with the related documentation provided by Density, and the Order Documents, solely for the purposes of developing and operating an implementation of the Density API that permits Customer to access Customer Data and import it into other software applications. Customer must only use the Density API materials and documentation in accordance with applicable law.
2.3 Service Level Agreement. Density will use commercially reasonable efforts to provide Customer with the services during the Subscription Term and in accordance with the service levels set forth in the Density Service Level Agreement.
2.4 Support Policy. Density will use commercially reasonable efforts to provide Customer with the services during the Subscription Term and in accordance with the support levels set forth in the Density Support Policy.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement will start at the beginning of the Subscription Term and expire at the end of the Subscription Term, unless earlier terminated in accordance with the Order Documents.
3.2 Termination for Cause. If either party fails to perform any of its material obligations under the Order Documents, the other party may terminate the Order Documents by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
3.3 No Liability for Termination. Except as expressly required by law, if either party terminates the Order Documents in accordance with any of the provisions of the Order Documents, neither party will be liable to the other party because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Density or Customer. Notwithstanding the foregoing, termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination, and such termination shall not relieve Customer of any of its payment obligations set forth in the applicable Order Documents, including, without limitation, any fees due for the Density Products or incurred or to be incurred prior to the lapse of the then-current Subscription Term.
3.4 Effects of Termination. In addition, the following provisions will survive any expiration or termination of this Agreement: Sections 3.3, 3.4, 4, 5.4, and 6 through 10. The termination or expiration of this Agreement will not relieve Customer of the obligation to pay any amounts that are due to Density under the Order Documents.
4. PROPRIETARY RIGHTS, DATA AND NOTICES
4.1 Proprietary Rights. Density and its licensors, and not the Customer, own all right, title, and interest, including all intellectual property rights, in and to the Density Products. Customer will not act to jeopardize, limit, or interfere in any manner with Density’s ownership of any rights with respect to the Density Products. Customer will have only those rights in or to the Density Products and documentation expressly granted to it pursuant to this Agreement or contained in any other Order Document.
4.2 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, create derivative works of, decompile, disassemble, reverse engineer, or attempt to discover the source code or underlying ideas or algorithms of any portion of any Density Products; (b) permit any third party to access the Density Products except as expressly permitted herein or in the applicable Order Document; (c) copy, frame or mirror any part or content of the Density Products, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes; (d) remove any copyright or proprietary notices on the Density Products and documentation; (e) remove software from equipment on which it is preloaded; (f) access the Density Products in order to build a competitive product or service, or copy any features, functions or graphics of the Density Products; (g) modify or attempt to service or repair the Density Hardware or use the Density Hardware for any purpose other than in connection with Density Subscriptions; nor (h) circumvent or disable any technological features or measures in the Density Products, including security features. Customer agrees not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any of the Density Products. Customer shall take reasonable measures to prevent the Density Products from being stolen, misappropriated or accessed without authorization and to prevent third parties from carrying out the restricted activities set forth in this Section 4.2.
4.3 Customer Data. Customer will own all right, title, and interest in and to any data collected by Density Hardware and made available to the Customer, in each case, in furtherance of the specific Services subscribed for by Customer, including any such data processed (whether by third party processors or otherwise) or developed for Customer in connection with Density Subscriptions and any renderings, floor scans or site maps (“Customer Data”). Customer hereby grants to Density a nonexclusive, worldwide, royalty-free, fully paid right and license to the Customer Data for the Subscription Term of any Density Subscriptions to the extent necessary, appropriate or advisable for Density to provide the services in connection with the Density Subscriptions. Customer further grants to Density a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid right and license to the Customer Data for Density’s internal research and development purposes and to improve Density’s products and services; provided, that (i) such Customer Data is presented only in either aggregate or anonymized format and (ii) Density does not disclose, and is not presented in a way that will otherwise reasonably identify, Customer as the source of the data.
4.4 Data Processing. Customer acknowledges and agrees that the engagement of data sub-processors may be reasonably necessary, advisable or appropriate in order to make available the products and services offered by Density from time to time. Unless otherwise agreed in writing, Customer provides authorization for the engagement of data sub-processors and consents to the transfer of Customer Data to such data sub-processors, subject to the terms set forth in this Agreement, the Order Documents and applicable data and privacy laws. Before engaging any data sub-processor, the Company shall ensure that the data sub-processor adheres to data protection and privacy obligations at least equivalent to those set forth in the Order Documents. Density shall implement appropriate contractual measures with each data sub-processor to ensure the protection of Customer Data in line with applicable data and privacy laws. In addition to any other indemnification obligations Density owes to Customer, Density shall be liable for the actions and omissions of its data sub-processors to the same extent as if those actions or omissions were performed by Density itself.
4.5 Proprietary Rights Notices. Customer and its officers, employees, directors, contractors, agents, and representatives will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Density Products or related documentation delivered by Density.
4.6 Third Party Copyright Notices. The Density Products include third-party code licensed to Density for use and redistribution under open-source licenses (“Third Party Software”). The terms of certain open-source licenses may be applicable to Customer’s use of the Density Products, as set forth in the applicable open-source license. A list of disclosures and disclaimers in connection with Density’s incorporation of certain open-source licensed software into the Density Products is provided upon request.
5. WARRANTIES; WARRANTY DISCLAIMER
(a) Hardware Purchase Warranty. This section applies only if Customer elects for a ‘Hardware Purchase’ and Section 5.1(b) (PaaS Warranty) shall have no force or effect. Subject to Section 5.2, Density warrants that the Density Hardware shall be and shall remain free from defects in design, material and workmanship (the “Hardware Warranty”) for a period ending five (5) years from the date of shipment if, and only if, Customer maintains an active and continuous subscription to the Density Subscriptions for the entirety of the period (the “Hardware Warranty Period”). If Customer’s subscription to the Density Subscriptions terminates, for any reason, prior to such five (5) year period from the date of shipment, then the Hardware Warranty will automatically, and without any further action required by Density, terminate as of the same date. This Hardware Warranty does not cover the Relocation Period (as defined in Section 5.2), defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; use in an improper environment or failure to follow installation, un-installation, relocation, maintenance or operating instructions. This Hardware Warranty will not apply to damage caused by unauthorized alteration, modification or repair of the Density Hardware in violation of or otherwise inconsistent with the terms and conditions of any applicable Order Document. This Hardware Warranty applies only to the original purchaser set forth in the applicable Order Document and is non-transferable and non-assignable. Any attempted transfer or assignment shall automatically and without any further action required by any party void the Hardware Warranty.
(b) Platform as a Service (“PaaS”) Warranty. This section applies only if Customer elects for a ‘PaaS’ purchase’ and Section 5.1(a) (Hardware Warranty) shall have no force or effect. Subject to Section 5.2, Density warrants that the Density Hardware shall be and shall perpetually remain free from defects in design, material and workmanship (the “PaaS Warranty”) if, and only if, Customer maintains an active and continuous subscription to the Density Subscriptions for the entirety of the period (the “PaaS Warranty Period”). If Customer’s subscription to the Density Subscriptions terminates, for any reason, then the PaaS Warranty will automatically, and without any further action required by Density, terminate as of the same date. This PaaS Warranty does not cover the Relocation Period (as defined in Section 5.2), defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; use in an improper environment or failure to follow installation, un-installation, relocation, maintenance or operating instructions. This PaaS Warranty will not apply to damage caused by unauthorized alteration, modification or repair of the Density Hardware in violation of or otherwise inconsistent with the terms and conditions of any applicable Order Document. This PaaS Warranty applies only to the original purchaser set forth in the applicable Order Document and is non-transferable and non-assignable. Any attempted transfer or assignment shall automatically and without any further action required by any party void the PaaS Warranty.
5.2 Relocation of Sensors. If, during the Hardware Warranty Period or the PaaS Warranty Period (as applicable, the “Warranty Period”), Customer elects to relocate, transfer, uninstall and/or reinstall Density Hardware (the “Relocation Period”), the Hardware Warranty or the PaaS Warranty (as applicable, the “Warranty”) shall cease to apply and no coverage shall be provided under the Warranty until such time that (i) the Density Hardware has been re-installed and calibrated (the “Relocated Density Hardware”) and (ii) Density confirms in writing that the Density Hardware is operational and functioning as intended. All costs and expenses associated with or arising from a relocation of Density Hardware shall be borne by Customer, including, without limitation, installation and calibration costs. For the avoidance of doubt, in the case of the Hardware Warranty, the Hardware Warranty Period shall not exceed five (5) years from the date of shipment and shall not be extended for any given Relocation Period.
5.3 Warranty Remedies. If, during the Warranty Period, any Density Hardware fails, is nonoperational or defective, or is otherwise found faulty, Customer may submit a request to Density for replacement of the faulty Density Hardware; provided that such request is received before the end of the Warranty Period. Density will evaluate any such request, and if Density determines, in its sole discretion, that the Density Hardware is covered by the terms of this Warranty, Density will replace the Density Hardware. Customer will promptly return any or otherwise defective faulty Density Hardware to Density, but in no event later than thirty (30) days after receipt of replacement Density Hardware. Replacement of the Density Hardware is Customer’s sole remedy, and Density’s sole liability, under this Warranty.
5.4 Warranty Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, DENSITY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DENSITY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. DENSITY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE DENSITY PRODUCTS OR AGAINST INFRINGEMENT. DENSITY DOES NOT WARRANT THAT THE DENSITY PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE DENSITY PRODUCTS WILL BE SECURE OR UNINTERRUPTED. DENSITY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON A CUSTOMER’S USE OF THE DENSITY PRODUCTS. DENSITY PRODUCTS ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE DENSITY PRODUCTS COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. DENSITY RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE DENSITY PRODUCTS IN ANY SUCH MANNER.
6. INFRINGEMENT INDEMNIFICATION
6.1 Defense of Claims. Density may, at its option and expense, defend Customer and its officers, employees, directors, agents, and representatives (“Customer Indemnified Parties”) from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against a Customer Indemnified Party alleging that Customer’s use of the Density Product (excluding Third Party Software) infringes or misappropriates any United States patent, copyright, trade secret, trademark, or other intellectual property right if: (a) the Customer Indemnified Party gives Density prompt written notice of the Claim; (b) Density has full and complete control over the defense and settlement of such Claim; (c) the Customer Indemnified Parties provide assistance, at Density’s expense as specified in Section 6.2, in connection with the defense and settlement of such Claim as Density may reasonably request; and (d) the Customer Indemnified Parties comply with any settlement or court order made in connection with such Claim (e.g., relating to the future use, sale, or distribution of any infringing Density Products). The Customer Indemnified Parties will not defend or settle any such Claim without Density’s prior written consent. The applicable Customer Indemnified Party shall have the right to participate in the defense of such Claim at its own expense and with counsel of its own choosing, but Density will have sole control over the defense and settlement of the Claim.
6.2 Indemnification. Density will indemnify the Customer Indemnified Parties against and pay (a) all damages, costs, and attorneys’ fees finally awarded against a Customer Indemnified Party in any Claim under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such Claim, including assistance provided under Section 6.1(c) (other than attorneys’ fees and costs incurred without Density’s consent after Density has accepted defense of such claim); and (c) if any Claim arising under Section 6.1 is settled, all amounts to be paid to any third party in settlement of any such Claim (as agreed to by Density).
6.3 Mitigation. If Customer’s or their respective agents’ use, sale, or distribution of a Density Product is, or in Density’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 6.1, then Density will either: (a) procure the continuing right of Customer to use the Density Product; (b) replace or modify the Density Product in a functionally equivalent manner while maintaining the same form, fit, and function so that it no longer infringes; or if, despite its commercially reasonable efforts, Density is unable to do either (a) or (b), Density will (c) terminate Customer’s rights to the Density Products under this Agreement and Customer will return all Density Hardware for a prorated refund by Density of prepaid fees covering the remainder of the term of this Agreement.
6.4 Exceptions. Density will have no obligation under this Section 6 for any alleged infringement or misappropriation to the extent that it arises out of or is based upon (a) use of a Density Product in combination with other products, including other Density Products, if such alleged infringement or misappropriation would not have arisen but for such combination; (b) a Density Product that is provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of a Density Product for purposes not intended; (c) use of Density Products after Customer has been notified of any termination of its right to use the Density Products pursuant to Section 6.3(c); (e) Customer’s failure to use a Density Product in accordance with instructions provided by Density, if the alleged infringement or misappropriation would not have occurred but for such failure; or (f) any modification of a Density Product not made or authorized in writing by Density where such alleged infringement or misappropriation would not have occurred absent such modification. Customer is responsible for any costs or damages that result from these actions.
6.5 Exclusive Remedy. This Section 6 states Density’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by a Density Product.
7. CUSTOMER INDEMNIFICATION
7.1 Defense of Claims. Customer will defend Density and its affiliates and their employees, directors, agents, and representatives (“Density Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Customer’s performance or failure to perform under this Agreement, its negligence or willful misconduct, or its breach or alleged breach of this Agreement. The Density Indemnified Parties will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; and (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request.
7.2 Indemnification. Customer will indemnify each of the Density Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and, (c) if any proceeding arising under Section 7.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
8. CONFIDENTIAL INFORMATION
8.1 Confidential Information. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement. The Density Products and related information shall also be considered the Confidential Information of Density. Any products, renderings, data, floor scans or site maps or other information developed for Customer in connection with this Agreement shall be considered the Confidential Information of Customer. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party (for the avoidance of doubt, this subsection (b) shall not apply to any products, renderings, data, floor scans or site maps or other information developed by Density for Customer in connection with this Agreement); (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
8.2 Nondisclosure. During and after the term of this Agreement, each party will: (a) not disclose the other party’s Confidential Information to a third party unless such disclosure is reasonably necessary or appropriate in order for a party to perform its obligations under this Agreement; provided that any such third party is bound by confidentiality obligations comparable to the terms contained in this Section 8; and (b) protect the other party’s Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. For the avoidance of doubt, Density may use and disclose to one or more subcontractor(s) any products, renderings, data, floor scans or site maps or other information as it deems necessary, advisable or appropriate for the purposes of providing the Density Products, as well as all services ancillary, supplemental or incidental thereto. Density will process personal data according to the Density Data Processing Agreement.
8.3 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of the Order Documents to any third party without the consent of the other party, except as required by applicable law, rule, regulation or order issued by a court or governmental agency of competent jurisdiction. Notwithstanding the above provisions, (a) each party may disclose the terms of the Order Documents (i) as required by applicable law, rule, regulation or order issued by a court or governmental agency of competent jurisdiction; (ii) in confidence, to its affiliates or its or their respective accountants, banks, and financing sources and advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like; and (b) Density may disclose the terms of this Agreement to its subcontractors pursuant to Section 10.5.
8.4 Return of Materials. Upon the termination or expiration of the Order Documents, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
8.5 Existing Obligations. The obligations in this Section 8 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
9. LIMITATION OF LIABILITY
9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE ORDER DOCUMENTS, DENSITY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THE ORDER DOCUMENTS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF DENSITY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL DENSITY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE ORDER DOCUMENTS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (OR PAID BY THE APPLICABLE RESELLER FOR CUSTOMER’S PURCHASES) TO DENSITY UNDER THE ORDER DOCUMENTS WITHIN THE PAST TWELVE (12) MONTHS.
9.3 Independent Allocations of Risk. EACH PROVISION OF THE ORDER DOCUMENTS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE ORDER DOCUMENTS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN DENSITY’S PRICING AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE ORDER DOCUMENTS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THE ORDER DOCUMENTS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10.1 Marketing. Customer agrees Density may publicly use Customer’s logo and name solely as to identify Customer as a customer of Density and Customer hereby grants to Density a revocable, non-exclusive, limited, worldwide, royalty-free license to the same.
10.2 Export Restrictions. Customer will not resell or otherwise distribute the Density Products in any foreign territory where applicable laws would not provide the protections to Density and the Density Products intended under or as otherwise stated in the Order Documents, or where there is a significant risk that the Density Products would fall into the public domain. Customer will not directly or indirectly import, export, or re-export the Density Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
10.3 Independent Contractors. The relationship of the parties established by the Order Documents is that of independent contractors, and nothing contained in the Order Documents should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
10.4 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 10.4, “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.
10.5 Subcontractors. Notwithstanding anything to the contrary, Density may utilize the services of one or more subcontractor(s), including data processors, as it deems necessary, advisable or appropriate for the purposes of providing the Density Products, as well as all services ancillary, supplemental or incidental thereto or in furtherance thereof; provided, however, that Density’s use of a subcontractor shall not release Density from any of its duties, liabilities and obligations hereunder. For the avoidance of doubt, any such sub-contractors shall constitute a “Density Indemnified Party” for purposes of Section 6 of this Agreement.
10.6 Notices. Any notice required or permitted to be given in accordance with the Order Document 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. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.7 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 or otherwise mitigate the impact thereof.
10.9 Governing Law. The Order Documents will be interpreted, construed, and enforced in all respects in accordance with the local 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.
10.10 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 10.10 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
10.11 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 this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement 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 this Agreement.
10.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of an Order Document will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Customer under the Order Documents is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
10.13 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
10.14 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. If Customer acquired the Density Products from a Density reseller, then this Agreement is not exclusive of any rights Customer obtains under its agreement with the reseller; however, if there is any conflict between the provisions of this Agreement and the reseller agreement, then the provisions of this Agreement prevail, and if the reseller has granted Customer any rights that Density does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the reseller. 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.
10.15 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 10.15 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