KETOS Master Terms - Distribution Version
KETOS, INC. MASTER TERMS
LAST UPDATED: OCTOBER 1, 2022
These Master Terms and the relevant warranty, services, and other terms cited herein (or in the Sales Quote as defined below) at various embedded URLs (collectively with the relevant Sales Quote, the “Terms”) permit the end user of the Solution identified on any Sales Quote (“Customer”) to obtain Services for KETOS, Inc. (“KETOS:”) Products through a distributor . Most capitalized terms used herein are defined in Section 9 below.
- SERVICES AND PRODUCT TERMS
1.1 Access to Services. During any applicable Subscription Period, KETOS will provide Customer appropriate Client Software, and access to its Software Platform via an online user interface. KETOS hereby grants to Customer a non-exclusive, non-transferable license (a) to access, use, perform, and digitally display the Software Platform and Client Software in accordance with the Documentation; and (b) to use a reasonable number of copies of the Documentation solely to support Customer’s use of the Solution. On or as soon as reasonably practicable after the effective date of each applicable Subscription Period, KETOS shall provide to Customer the necessary passwords, security protocols, and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Services in accordance with the Access Protocols. Customer and its Authorized Users shall be responsible for the security of all passwords and other Access Protocols.
1.2 Responsibility for Software Platform and Hosting. KETOS shall, at its own expense, provide for the hosting of the Software Platform and the telecommunication network required for the Solution. Notwithstanding the foregoing, nothing herein shall be construed to require KETOS to provide for or bear any responsibility for any computer hardware or software required by Authorized Users to access the Internet.
1.3 Delivery, Installation, Support, and Title. Product will be shipped Ex Works (per Incoterms 2020) KETOS’s facility or KETOS-designated logistics partner (as applicable). If Customer is outside of the United States, Customer shall be considered the Importer of Record for all shipments. All shipping and delivery dates are estimated and assume prompt receipt of all necessary information from Customer. KETOS will not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays in delivery. Title to Product purchased by Customer will pass to Customer upon delivery; title to Product leased by Customer will remain with KETOS.
1.4 Limited Warranty. Product shall be warranted in accordance with KETOS Service Terms (located at http://www.ketos.co/ketos-service-terms), which may be amended from time to time by KETOS.
1.5 Solution Changes. KETOS reserves the right, at any time, to make any changes in the design or specification of Solution. KETOS represents that any such change will not diminish the functionality or features of the Solution. No such change will create any KETOS obligation to replace or make equivalent changes in Solution or other items previously provided by KETOS to Customer.
- CERTAIN SERVICE TERMS. All Service provided hereunder will be governed by the terms and conditions set forth in the KETOS Service Terms, which may be amended from time to time by KETOS.
2.1. Suspension of Service. If Customer is in material breach of its agreements with KETOS or distributor, KETOS may, without limiting its other rights and remedies, suspend Services to Customer. KETOS will not exercise its rights under this Section so long as Customer promptly notices KETOS of the disputed charges, the applicable charges are under good faith dispute, and Customer is cooperating diligently to resolve the dispute.
2.2. Lease Terms
2.2.1. This Section will only apply to Leased Devices.
2.2.2. Particular items of Leased Devices are leased to Customer for the relevant Subscription Period as set forth on the Sales Quote. Except as set forth in the relevant Sales Quote, Customer will not have an option to acquire title to the Leased Devices.
2.2.3. Except as may be set forth on the Sales Quote, Customer will use the Leased Devices solely in support of its operations within the United States and Canada (and will not sublease or transfer Leased Devices). Customer will not move Leased Devices to a different site without notifying KETOS.
2.2.4. Subscription Fees as set forth in the Sales Quote include the lease price and fees for Services as described in the KETOS Service Terms. Subscription Fees are due even if Leased Devices are lost or damaged.
2.2.5. Customer will not make any alterations, additions, or improvement to the Leased Devices.
2.2.6. Customer assumes and will bear the risk of loss and damage to the Leased Devices from any and every cause whatsoever, whether or not insured. The value of such loss and/or damaged Leased Devices will be equal to the current annual Subscription Fee.
2.2.7. Upon expiration of the relevant Subscription Period, Customer shall either, at KETOS’ discretion: (A) make the Leased Devices available for KETOS to pick up from the Site; or (B) ship the Leased Devices to the Site designated by KETOS (KETOS shall provide Customer with packaging for such purpose), both at Customer’s expense (including all shipping, insurance, travel, and handling costs). Customer shall ensure that Leased Devices are in the same condition as when first delivered to Customer, except for reasonable wear and tear. If Customer fails to make the Leased Devices available or ship the Leased Devices per the instructions above, KETOS shall invoice Customer for an amount equal to the current annual Subscription Fee.
2.2.8. Customer will not encumber or grant to any third party any lien, security interest or other interest in the Leased Devices. Customer will not remove or obscure any marking on Leased Devices that indicates KETOS’s ownership thereof.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE KETOS Service Terms, KETOS MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW. IF, FOR ANY REASON, ANY SUCH WARRANTIES CANNOT BE DISCLAIMED, THEY ARE LIMITED IN DURATION TO THE RELEVANT WARRANTY PERIOD AND IN SCOPE TO THE MAXIMUM EXTENT PERMITTED. ANY AND ALL WARRANTIES WILL APPLY ONLY TO CUSTOMER (AND NOT ANY SUCCESSOR).
- LIMITATION OF LIABILITY
4.1. Types of Damages. IN NO EVENT WILL KETOS OR ITS DISTRIBUTORS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, DAMAGE TO PROPERTY, BODILY INJURY, DEATH OR OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
4.2. Amount of Damages. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 5.1, THE MAXIMUM LIABILITY OF KETOS ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF (1) THE FEES PAID TO KETOS DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (2) AS SET FORTH IN THE APPLICABLE AGREEMENT BETWEEN CUSTOMER AND DISTRIBUTOR. IN NO EVENT SHALL KETOS’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE KETOS’ LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF KETOS OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
- INDEMNIFICATION
- CERTAIN INTELLECTUAL PROPERTY MATTERS AND CONFIDENTIALITY
6.1. Generated Data.
6.1.1 Customer is and shall remain the sole and exclusive owner of all data of any type generated by or captured through the use of the Solution (“Generated Data”). Customer will limit its use of any Generated Data to the support of its internal operations. Customer shall have the ability to download such data and is encouraged to make its own back-ups. Customer will not share the Generated Data with any competitor of KETOS or use such data for any purpose competitive with KETOS. Customer is solely responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data provided by Customer.
6.2. KETOS is expressly authorized to capture, record and store Generated Data and use the same for the purposes of providing Solution to Customer, for the purposes of improving the Solution that it offers from time to time, and for any other purposes on an anonymized basis in perpetuity. Notwithstanding the foregoing, KETOS will comply with the KETOS Data Privacy Policy referred to below and will not, without authorization from the Customer, disclose or use Generated Data in a manner that is identified or readily identifiable to Customer.
6.2 Intellectual Property Ownership and Rights. The Product and Services, and all worldwide Intellectual Property Rights in each of the foregoing (“KETOS IP”), are the exclusive property of KETOS and its suppliers. All rights in and to the KETOS IP not expressly granted to Customer in this Agreement are reserved by KETOS and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the KETOS IP or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the KETOS IP. Customer hereby covenants to keep the KETOS IP free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim. Customer agrees to sign any documents necessary to protect and preserve KETOS’ ownership interest in the KETOS IP. Should any intellectual property be developed by KETOS pursuant to this Agreement (e.g., software code for data integration or export), such shall be the sole property of KETOS and shall not be considered “work made for hire.” Should any intellectual property directly related to KETOS IP be developed independently by Customer (i.e., with no input or involvement by KETOS) pursuant to this Agreement (“Customer IP”), Customer will offer KETOS the right of first refusal to negotiate the right to use such Customer IP solely for KETOS to provide services to Customer or improve KETOS’ products and services.
6.3 Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) access Product or use Services, other than the Authorized Users; (b) modify, adapt, alter or translate the Product or Services, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer, or sell access to, Product, Services, or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Product or Services; (e) access or use the Solution to develop competitive functionality or copy any ideas, features, functions or graphics of the Solution; (f) attempt to gain unauthorized access to KETOS’ computers or services; (g) use any high-volume, automated or electronic means to access the Solution (including without limitation, robots, spiders, or scripts). (h) use or copy the Services or Documentation except as expressly allowed under this Agreement; (i) disclose or transmit any data contained in the Services to any individual other than an Authorized User, except as expressly allowed herein; (j) interfere with, disrupt, alter, translate, or modify the Services or any part thereof, interfere with or disrupt the integrity or performance of KETOS’ computers and services, or create an undue burden on the Services or the networks or services connected to the Services, including without limitation, any external websites that are linked to the Services; (k) without KETOS’ express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated replies, or to strip or mine data from the Services; (l) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof; or (m) alter, obscure or remove any proprietary notices of KETOS or its suppliers on the Services or Product. Notwithstanding the foregoing, where decompiling the Services may be permitted by the laws of Customer’s jurisdiction in order to render such Services interoperable with other software, Customer must notify KETOS and request the necessary software. KETOS may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the software for interoperability needs to ensure that KETOS’ and its suppliers’ proprietary rights in any such software are protected. Customer acknowledges and agrees that the Product and/or Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Product and/or Services or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Product and/or Services.
6.4 Feedback. If Customer provides any suggestions or other feedback to KETOS with respect to the Solution or any other aspect of KETOS’s business (“Feedback”), KETOS will be free to act on such suggestions or feedback with no obligation or liability to Customer. Customer hereby agrees that KETOS shall have a royalty-free right to use such Feedback and related information to improve the Solution, provided Feedback is not used in a manner that publicly discloses information identifying the Customer.
6.5 Confidential Information of KETOS. If Customer previously entered into a non-disclosure agreement with KETOS or a non-disclosure agreement with the distributor that protects KETOS’ Confidential Information (“NDA”), such NDA terms will apply to these Terms. Otherwise, Customer agrees to keep confidential and use only for the purposes of use of the Product and Services in support of its internal operations all confidential information of KETOS to the extent that such information is identified by KETOS as confidential or should reasonably be understood by Customer to be confidential information of KETOS (“Confidential Information”). The Sales Quote and algorithms forming part of the Services, without limitation, are deemed to be Confidential Information. KETOS will not share or sell any information it collects from Customer during the course of providing Services hereunder except as expressly set forth in Section 8.1. Customer’s obligations under this Section will not apply to information (i) which Customer can document was rightfully in its possession or known to it prior to its receipt of same; (ii) from and after the date it has become public knowledge through no fault of Customer; (iii) from and after the date obtained by Customer from a third party without breach of any confidentiality obligation; or (iv) from and after the date independently developed by Customer without the use of Confidential Information, as demonstrated by tangible evidence. The foregoing will not prevent disclosure to the extent required pursuant to applicable regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with reasonable advance notice to KETOS). Customer acknowledges that disclosure or use of Confidential Information in violation of this Section will cause substantial harm to KETOS for which damages alone will not be a sufficient remedy, and that KETOS will be entitled to seek appropriate equitable relief (without being required to post a bond or other security) in addition to whatever other remedies it might have at law.
6.6 Return of Materials. Upon reasonable request by KETOS, Customer will promptly destroy or (if specifically requested) return to KETOS all documents or materials (and all copies thereof) of any nature in Customer’s possession, custody or control that contain Confidential Information.
6.7 Marketing. Notwithstanding the Confidentiality provisions of this Agreement, Customer agrees that KETOS may refer to Customer by trade name and trademark and may briefly describe Customer’s business in KETOS marketing materials and web site, subject to prior consent of the Customer, which consent shall not be unreasonably withheld. Customer hereby grants KETOS a right to use any Customer trade names, trademarks or service marks solely in connection with the rights granted to KETOS pursuant to this Section.
- TERMS AND TERMINATION
7.1. Agreement Duration.This Agreement commences upon execution by both parties and remains in effect unless earlier terminated in accordance with the terms herein.
7.2 Termination for Cause. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach is curable and remains uncured more than thirty (30) days after receipt of written notice of such breach.
7.3 Subscription Period. The Subscription Period will be as set forth in the Sales Quote. If any Subscription Period extends beyond the termination date of this Agreement, the terms of this Agreement shall continue to govern until such Subscription Period has terminated.
7.4 Subscription Renewal. Unless KETOS is informed in writing of Customer’s intent not to renew at least sixty (60) days prior to the end of the then-current Subscription Period, the Subscription Period shall automatically renew annually. No response from Customer with respect to the notice of renewal given above shall constitute Customer’s consent to renew. Any automatic renewals will reflect discounts and/or promotions applicable to Customer. The Subscription Fees may be increased annually by an amount equal to seven percent (7%) plus CPI; provided, however, such fees will not exceed KETOS’ then-current list price.
7.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses and warranties granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, (i) each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 6.6; and (ii) Customer will surrender Leased Devices as set forth in Section 2.5. Sections 1.4, and 3 through 9 hereof will survive expiration or termination of this Agreement for any reason. In the event of termination without cause by Customer of this Agreement and/or a Subscription Period, or termination thereof for cause by KETOS, Customer will (a) remain responsible for all fees and expenses incurred prior to the date of termination; and (b) not receive a refund of any deposits or pre-paid fees. - GENERAL
8.1. Assignment..The Terms will bind and inure to the benefit of each of Customer’s and KETOS’s permitted successors and assigns. Neither party will assign the Terms (or any part thereof or rights therein) without the prior written consent of the other party, except that either party may assign the Terms in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets and/or voting securities. Any attempt to transfer or assign the Terms except as expressly authorized under this Section will be null and void.
8.2. Severability. If any provision of the Terms is adjudged by an arbitrator or any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Terms will otherwise remain in effect.
8.3. Governing Law; Attorneys’ Fees. The Terms and all related actions and proceedings will be governed by and interpreted in accordance with the substantive laws of the State of California without regard to conflict of laws principles, and without regard to the United Nations Convention on the International Sale of Goods. KETOS or the Customer may seek preliminary equitable relief exclusively in a federal or state court of appropriate subject matter jurisdiction located in the City and County of San Francisco, California, and each party consents to the jurisdiction and proper venue thereof for such purposes. If a party institutes any action or proceeding to enforce the Terms, the prevailing party will be entitled to receive, as an additional item of damages, its attorneys’ fees, experts’ fees and other costs reasonably incurred in connection with same.
8.4. Notices. Any notice hereunder by a party will be in writing to the notice address provided by the other party or otherwise reasonably in the records of such party(with a copy sent to the email address of the other party as set forth in the Sales Quote) and will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) one (1) business day after it is sent if by next day delivery by a major commercial delivery service.
8.5 Amendments; Waivers. No supplement, modification, or amendment of the Terms will be binding unless executed in writing or electronically by a duly authorized representative of each party to the Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under the Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
8.6 Entire Agreement. The Terms represent the final and complete understanding and agreement of KETOS and Customer with respect to the relevant Product and Services, superseding all other agreements, understandings, representations, and negotiations concerning such subject matter. Customer will be deemed to have agreed to the Terms when Customer acknowledges its agreement to the Sales Quote or when Customer accepts or commences use of any relevant Product or Services. KETOS may amend the Terms, prospectively, from time to time upon notice to Customer. There are no third-party beneficiaries of the Terms.
8.7 Force Majeure. KETOS’s performance or delay in performance of the Terms will be excused without liability of KETOS to the extent that it is unable to perform or its performance is delayed due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action, material labor strikes or disputes, pandemic, disease, quarantine, adverse weather, civil commotion, accident, supply shortages, governmental action or any other cause which is beyond the reasonable control of KETOS(a “Force Majeure Event”). Following the occurrence of a Force Majeure Event, KETOS will promptly notify Customer, including an estimate of its expected duration and probable impact on performance by KETOS.
8.8 Order of Precedence. If a provision of the Sales Quote conflicts with a provision of the Terms, the Sales Quote will prevail but only to the extent such overridden provision is expressly cited in the Sales Quote. Otherwise, the order of precedence is as follows: (i) these Master Terms, and (ii) the KETOS Service Terms.
- DEFINATIONS. Capitalized terms shall have the meanings set forth in this Section, or, if use is restricted to a single section only, in that section when first used.
“Access Protocols“ means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
“Authorized User“ means any individual who is an employee of Customer, or such other person or entity as may be authorized by the Customer, to access the Solution pursuant to Customer’s rights under this Agreement.
“Client Software“ is defined in the KETOS Service Terms.
“Consumables“ is defined in the KETOS Service Terms.
“Documentation“ means the technical materials provided by KETOS to Customer in hard copy or electronic form describing the use and operation of the Software Platform.
“Generated Data“ means any data of any type provided by Customer to KETOS or generated by or captured through the use of KETOS’ Solution.
“Intellectual Property Rights“ means any and all now known or hereafter existing (a) rights, title, and interest in and associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Leased Devices“ are KETOS’ Shield water quality analytics devices (leased only) and auxiliary hardware elements leased as part of Services.
“Product“ means KETOS’ Shield and Wave water quality/quantity analytics devices and communication gateways (which may include ethernet or cellular network equipment) together with related hardware parts and embedded software together with any auxiliary hardware (such as pumps or filters) that may be required to optimize the performance of the KETOS’ Solution. Product may be purchased or lease, as identified on the Sales Quote.
“Sales Quote“ is a distributor-generated document executed by Customer and accepted by KETOS (in each case in writing or electronically incorporating these Terms into Customer’s purchase and/or lease of Product and/or Services.
“Services“ means the hosting, installation, data integration, monitoring, warranty maintenance, remote support provided by KETOS for use of its Solution. The term Services includes the Software Platform, Client Software, and Support.
“Sites“ means the physical Customer location(s) where the Product will be installed and used for the purposes set forth in this agreement.
“Software Platform“ means KETOS’ cloud-based platform hosting its platform for data management, reporting (including monitoring and alerting) and analytics, and any associated user interfaces and related technology that KETOS makes available pursuant to this Agreement as part of the Services.
“Solution“ means KETOS’ customer offerings that consist of groupings of Product and Services for water grid management, water storage management, and water safety management.
“Subscription Fee“ means the fee Customer pays to use Services and lease Product. The Subscription Fee also includes the limited warranty and services provided in accordance with the KETOS Service Terms.
“Subscription Period“ means the period for which Customer contracts to use the Solution, commencing upon the installation date of Leased Devices.
“Support“ is defined in the KETOS Service Terms.
5.1 Indemnification by KETOS
5.1.1 By KETOS. KETOS will indemnify, defend and hold harmless Customer from any damages, judgments, liabilities, losses, penalties, costs and expenses (including reasonable attorneys’ fees) (“Damages”) incurred by Customer in connection with any third-party claim (each, a “Claim”) arising out of or relating to (i) any claim that the Product or Services infringe upon third-party copyrights or patents, or misappropriate any trade secrets; or (ii) any claim of bodily injury or damage to tangible property caused directly by a material defect in any Product or the gross negligence or willful misconduct of KETOS. If any portion of the Product or Services becomes, or in KETOS’ opinion is likely to become, the subject of a claim of infringement, KETOS may, at KETOS’ option: (a) procure for Customer the right to continue using the Product and/or Services; (b) replace the Product or Services with non-infringing software, hardware, or services which do not materially impair the functionality of the Product or Services; (c) modify the Product or Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid to KETOS for (i) the remainder of the Subscription Period then in effect or (ii) the purchase price of the affected Product amortized over a period of five (5) years from the purchase date. Upon such termination, Customer will immediately cease all use of Products, Services, and Documentation. Notwithstanding the foregoing, KETOS shall have no obligation under this Section or otherwise with respect to any indemnity claim based upon (w) any use of the Product or Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Product or Services in combination with other products, equipment, software or data not supplied or approved by KETOS; (y) any modification of the Product or the Services by any person other than KETOS or its authorized agents; or (z) failure of the Product or Services to perform or deliver accurate or timely results.
5.1.2 Section 5.1 states the sole and exclusive remedy of Customer and the entire liability of KETOS, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
5.2 Indemnification by Customer. Except as set forth in Section 5.1, Customer will indemnify, defend and hold harmless KETOS from any Damages incurred by KETOS in connection with any Claim arising out of or related to any act or omission of Customer or any Authorized User, including any claim of bodily injury or damage to tangible property caused by the negligence or willful misconduct of Customer or any Authorized Users.
5.3 Procedure The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
