Please answer this question from a legal perspective. it was written by my company?
service level is for a “minimum average of 99.9%“. The calculated
measurement last month(using very precise and unrounded information)
was 99.8614%.
The vendor maintains that the 99.8614% should be "rounded-up" to conform
with the significant digits in the contract (nn.n%) and therfore the
service level was achieved. Unfortunately, the contract did not
address rounding, calculation precision, or significant digits.
Our position is that the word “minimum“ implies a floor threshold -where the measurement is either below it or above(equal). In this situation, 99.8614% is below the 99.9% floor.
Are we right or should it be rounded. This is for a signifcant amount of money for our company an legal links would be greatly appreciated.
Answers:
The issue on hand is the amount of downtime (not the amount of uptime). The contract guarantees 0.1% or less downtime (without rounding).
They claim rounding is allowed and the measured 0.1496% should be rounded down to 0.1%. Note that the measured amount of downtime is nearly 50% more than contractually agreed (without rounding), nearly 50% is substantial.
Significant digits are determined by (inter alia) on the amounts of digits used to measure. If you measure to 0.0001% precise then a difference of 0.04% is substantial.
Most judges would assume that unsignificant digits are less than what is regularly measured, which is not the situation here.
I wish i could help you out but i dont understand this **?
huh??i dont know what you are talking about sorry
well, if it was 99.9614, you wouldn't round up to 100.00, would you?
i don't understand this sorry
There is a rule in contract interpretation that an ambiguous contract will be construed against the drafter. So, if the vendor drafted the contract, and even if they could somehow argue that "minimum average of 99.9%" is ambigous, the 99.9% figure would not be construed in the vendor's favor.
Because a significant amount of money is involved, seek legal counsel right away. Make sure it is a firm that is experienced in dealing with commercial contracts. Good sources to find attorneys who handle particular areas of law in your region are: www.findlaw.com, and www.lawyers.com.
Good luck.
Unless your company has been harmed in someway (loss of revenue for example), it may be difficult to prove in court that the unrounded percentage is the correct measure.
Has your company been harmed or would this be seen by the court as an attempt by your company to avoid paying a legal debt?
Sorry - but I would have to side with the vendor. There is only 386 ten thousandths of a percent difference in the two numbers. Since they are mathematically correct to round that figure to 99.9 - I don't think you would get very far defending it in a court of law. Most companies would salivate at that level of network availability. Of course - that is from a math teacher's viewpoint , not a lawyer's.
99.8614% is equal to 99.9% when rounded and satisfies the definition in their contract. It would be another thing had they indicated 99.99% or even 99.91%.
This should have been defined in the contract. Since it was not defined if it goes to court, the judge or jury will end up deciding whether you should round up or not. I would guess that unless there you give some compellling reaons why you shouldn't round up that a judge or jury would be inclined to go ahead and accept 99.86414 should be rounded up, especially since the contract called for a one decimal calculation, not a four decimal calculation. If you ran the analysis and only ran it to the first decimal you would get 99.9. If you really want to fight over it you better talk to a lawyer who knows IT.
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