KETOS Service Terms

These Service Terms (“Terms”) are in addition to the Master Terms set forth at www.KETOS.co/ketos-master-terms (the “Master Terms”). Capitalized terms not defined herein will have the meanings set forth in the Master Terms. KETOS, Inc. (“KETOS”) provides these Terms solely to the original subscriber (“Customer”) of the Solution pursuant to a particular Sales Quote. 

The Solution provide continuous monitoring of water quality parameters and delivery of data through web or mobile applications and includes the components described below. Monitoring occurs 24/7 remotely for any anomalies and alerts thus allowing notification of any concerns to Customer in real-time.

A. COMPONENTS OF THE SOLUTION

1. The Software Platform.  The Software Platform is hosted by KETOS and provides cloud-based, Customer-accessible capabilities for a) cloud hosting and storage management of the Generated Data, b) role-based access for secure data control, c) cloud-based analytics available via web browser or mobile app, and d) real-time data visualization with predictive intelligence.  The Customer will access the Software Platform electronically through web-based dashboards and the like as provided by KETOS.
2. Client Software. The Customer will use software licensed to Customer for use at Customer’s sites(s) (“Client Software”) to enable Customer’s use of the Solution and to upload and access certain information. Customer will download, as instructed by KETOS, and use the Client Software solely for purposes of Customer’s permitted use of the Software Platform as set forth in the Documentation.
3. Leased Devices. The hardware components of the Solution, or Leased Devices, consist of the KETOS Shield device and other auxiliary hardware which is to be installed at the Customer’s site(s) to facilitate gathering and transmission of the Generated Data; The Leased Devices are provided on a lease basis during the Subscription Period.
4. Auxiliary Hardware. Hardware installed at Customer’s site(s) that is purchased by Customer for use in the Solution.
   

B. USE (AND RESTRICTIONS) OF THE SOLUTION

1. To gain access to and use the Software Platform, Customer, and its Authorized Users are required to use login IDs and passwords (“Login Information”). Customer is responsible for all activity occurring under Authorized Users’ Login Information and must keep all Login Information confidential and not share Login Information with third parties. KETOS has no obligation or responsibility with regard to use, distribution, disclosure, or management of Login Information.
2. Customer will (i) be responsible for Authorized Users’ compliance with these Terms and the Master Terms as applicable to the Solution, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Solution, and notify KETOS promptly of any such unauthorized access or use, (iii) use the Solution only in accordance with Documentation, instructions received from time to time from KETOS, and applicable laws and government regulations, and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Solution, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Although KETOS has no obligation to monitor Customer’s use of the Software Platform, KETOS may do so and may prohibit any use of the Software Platform it believes may be (or is alleged to be) in violation of the foregoing.
3. Customer will not upload, record, publish, post, link to, or otherwise transmit or distribute in connection with its use of the Solution (i) any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate the Software Platform or any system, data, information, or property of another; or (ii) in violation of any law, statute, ordinance, or regulation.
4. KETOS may deny use of the Software Platform, including by the use of disabling devices, without incurring any obligation or liability (i) if Customer’s right to use the Software Platform has ceased, (ii) to prevent unauthorized use of the Software Platform or (iii) to prevent damage to its computers and systems.
5. KETOS will notify Customer following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of the Software Platform. Written notification provided pursuant to this Section will include a brief summary of the available facts and the status of KETOS’ investigation. If required by applicable law, KETOS will notify persons affected by the security breach. Otherwise, KETOS agrees that it will not communicate with any third party, including, but not limited to the media, regarding any security breach without the express written consent of Customer.]
   

C. LIMITED WARRANTY

1. Express Limited Warranty. Subject to the balance of these Service Terms, KETOS warrants to Customer that the Solution will operate materially in accordance with KETOS-published Documentation during any relevant Subscription Period. In the event Customer notifies KETOS in writing of any breach of the foregoing warranty during the Subscription Period, KETOS, as its sole obligation and as Customer’s sole remedy (subject to Section C2), shall repair or replace defective Software Platform, Client Software, and/or Leased Device as set forth in Section D below. This warranty gives Customer specific legal rights. Customer may also have other rights which vary from jurisdiction to jurisdiction.
2. Exceptions to Warranty. Auxiliary Hardware will be covered by the original manufacturer’s warranty; and for clarity, failure of Auxiliary Hardware will not be the basis for a breach of warranty claim. The foregoing warranty will be null and void with respect to any part of the Solution that has been modified, altered, abused, or used other than in accordance with the Documentation therefor. Unless otherwise agreed by KETOS, the foregoing warranty does not cover damages or loss of functionality due to:
      (i) Significant changes in physical water quality parameters such as turbidity and color
      (ii) Unexpected changes in system pressure or lack of water availability to the Leased Device
      (iii) Unauthorized access/ tampering or moving of the Leased Device
      (iv) Lightning damage, power surge, accident, or act of nature
3. DISCLAIMER. THE LIMITED WARRANTY ABOVE IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED HEREIN.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SOLUTION, SERVICE, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND KETOS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. KETOS DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOLUTION SHALL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER SHALL NOT RELY ON THE SOLUTION OR THE RESULTS THEREOF, AND PERFORMANCE AND ACCURACY OF RESULTS ARE NOT GUARANTEED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

D. SUPPORT HOURS; WARRANTY REMEDIES

1. During each applicable Subscription Period, KETOS will provide Customer with support for the Solution, consisting of email assistance at [email protected] and telephone assistance at 1-408-320-8558 for technical assistance associated with use of the Solution and for reporting of issues (“Support”). Support hours are as follows:
      (a) Regular Business Hours: Mon-Fri, 06:00 to 17:00, Pacific Time Zone (Excluding holidays)
      (b) Online Web Support: Mon-Fri, 06:00 to 17:00, Pacific Time Zone (Excluding holidays)
   All Customer queries must be emailed to [email protected] where an initial response from a Technical Support Representative will be available within 2 hours (during business hours) for active resolution.
   
2. With respect to the Leased Devices, except as agreed between the parties in writing, KETOS is responsible for maintenance and repair or replacement (as expressly provided in these Terms), installation, de-installation, and packaging and freight (for return to KETOS of Leased Devices at the end of the relevant Subscription Period). KETOS is responsible for (and will bear the cost of) replenishing the consumable elements of the Leased Devices (as needed) including but not limited to any liquids or solids provided by KETOS as part of the Solution (“Consumables”).
3. KETOS from time to time in its discretion may modify or update the Software Platform or the Client Software (collectively “Software”), which modifications and updates will not materially decrease the functionality of the Solution. KETOS will use commercially reasonable efforts to correct a failure of the Software to perform materially in accordance with its Documentation (“Error”), as reported by Customer in writing to KETOS. KETOS will utilize remote diagnostic procedures whenever possible for Error diagnosis and Error correction. KETOS may not issue corrections for all Errors.
4. Customer will provide KETOS with reasonable access to malfunctioning Leased Devices for the purpose of repairing or replacing. In the event that KETOS determines that the Leased Device needs extraordinary refurbishment or is functionally inoperable as a result of Customer’s actions or the actions of any Authorized User (ordinary wear and tear excepted), Customer shall be responsible for a replacement fee in an amount equal to the costs incurred by KETOS for return, refurbishment (or replacement if refurbishment is not reasonably practicable) and recirculation. If any Leased Device is lost, stolen, or damaged, Customer will reimburse KETOS in accordance with Section 4.5.7 of the Master Terms, even if Customer is not at fault. Customer agrees that any such reimbursement is reasonable in light of the difficulty in determining the value of the Leased Device components and losses KETOS could suffer if a third party improperly gained access to the Solution using such lost, stolen, or damaged Leased Device.
5. In the case of loss of functionality of the Leased Device, at its sole option, KETOS will provide one of the following remedies:
      (a) Remote troubleshooting
      (b) Dispatch of a field service engineer or authorized representative to service the Lease Device for return to production
      (c) Replace the Leased Device with a similar or upgraded unit
   
6. For all support and maintenance requests not covered above (“Out-of-Scope Service”), KETOS shall invoice separately in accordance with its price list.

    

E. SOFTWARE PLATFORM AVAILABILITY: KETOS SOFTWARE PLATFORM SERVICE LEVEL AGREEMENT (“PSLA”)

1. KETOS leverages Amazon Web Services (“AWS”) for its cloud hosting and has developed custom software for all the management of Customer operations related to monitoring of water quality parameters. Based on the various services offerings from Amazon, KETOS will make commercially reasonable efforts to achieve a monthly Software Platform Availability of 98.0% (“Service Availability Objective”). “Software Platform Availability” is defined as the percentage of time during the month that the Software Platform is capable of receiving, processing, and responding to requests, excluding from the numerator and denominator of the calculation: (i) Scheduled Support, (ii) AWS disruption, (iii) unavailability due to force majeure events, (iv) unavailability resulting from actions by Customer or Users, and (v) emergency support (an example of which is given in Section 9.3 below). This PSLA applies separately to each account using the Solution. “Scheduled Support” is defined as any Support performed during KETOS’ standard Support windows (see Section D1, above) and any other Support of which KETOS gives at least seventy-two (72) hours advance notice by email to all Customers in all US locations only. KETOS will attempt to perform routine Scheduled Support such that the Solution remains available. Scheduled Support typically does not require Solution downtime. Customer will be advised when the Scheduled Maintenance is complete. Advance notice may not be available for emergency support. An example of emergency support would be an exploitable vulnerability that would result in a security compromise and hence would need to be fixed immediately. KETOS may perform Scheduled Support on the Software Platform in order to upgrade hardware or software that operates or supports the Solution, implement security measures, or address any other issues it deems appropriate for the continued operation of the Solution. Wherever possible, Scheduled Support will account for no more than four (4) hours of downtime per month, nor more than two (2) hours of downtime per occurrence.
2. At the request of Customer, KETOS will calculate specific Software Platform Availability during a given calendar month. In the event the Software Platform Availability Objective was not met in a given month, then for each day in such month that Solution unavailability exceeds four (4) continuous hours, Customer will receive a one (1) day free extension to the end of the Subscription Period, including any renewal periods, or, at KETOS’ sole discretion, an equivalent billing credit (each, a “Service Credit”). For purposes of calculating the Service Availability Objective, KETOS will only consider the Software Platform unavailable if Customer opened a trouble ticket relating to the Software Platform unavailability with the KETOS customer support department on the first day of such unavailability. To obtain a Service Credit for KETOS’ failure to meet the Service Availability Objective, Customer must request, at [email protected] such credit in writing no later than the calendar month following the month of the Software Platform unavailability giving rise to such request. Service Credits will be the sole and exclusive remedy for any failure to meet the Service Availability Objective.