Please answer this question from a legal perspective. it was written by my company?

Question

Our company has a service contract for network availabiity. The
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.

Answer 1

Since the precision of the measure is one decimal place of a percent, then any measure should be rounded to that precision - so yes, they'd meet the requirements.

It's not "rounding up", it's rounding to the closest digit.

This is a mathematical definition, and not one with any legal definition. Any decent mathematician would testify for the vendor. I have no idea what legal precedents might exist.

Answer 2

I have read your question and the three answers as at the time of my writing and I think we have all miss some important points.
1 This is a legal question and not an mathematical question. So the defination of "maximum", "minimum" "average" must be put into the perspective of legal constructions.
2 99.8614% is less then 99.9%. Court will not consider professional 's points of view which may see differently from an ordinary man, but will intrepret the contract in day-to-day, face value only - the court will not find the figure difficult to understnd and must ask the help of an expert.
3 Unless you have in your contract clearly defined you have the right to "round up" , "round down", or define what "significant figure" is, the court will take the term very plain and straight, that is , 99.8614% is less than 99.9%. If you could not find that kind of definations in the contract, the contract is badly written indeed.
4 However, the court will consider the "practise" of the industry, as long as it is in public domain (knowledge). I am sorry that I could not find those sources, but can only tell you some ideas and concepts. So you have to ask other people in the industry, how they will intrepret the 99.9% - (1) Is the figure denotated a "statistic" - or a "straght and factual measurement" - define "minimum average" this could be helpful. (2) is the industry always "round" to the the nearest fig. These information will help if both contact signing parties are not layman and know much about the industry.
4 Another point the court will consider is the mental position of both parties at the time of signing the contract. If both parties is under different concepts of how the x.xx%is defined (although it is not defined), the contract is "frustrated" becuase of the fact that both parties have mis-understand the basic element making up the contract.

The above are , as usual, not legal opinion. You have to consult your own legal advisors.

Answer 3

You can have a minimum.
You can have a maximum.
You can have an average.
You can have a median.

What in the world is a "Minimum Average"? Is that calculated hourly, daily, weekly, monthly, and in what units?

I think It should be rounded up, because they have you the terms as 99.9%, not 99.99%, but you could probably win such a case in court unless someone at your company or an act of God took the network out.

Answer 4

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.
.

Answer 5

Your correct. Even DNA testing has to be rounded at 99.99999% Anything less is questionable. It appears since you were not more specific in your specifications in your contract they are trying to pull a fast one on you. I would advise them if the measurement does not reach your desired outcome of 99.9% you will pursue legal action.