KETOS Terms and Conditions

These Terms and Conditions (including any exhibits or order forms, “Terms”) govern all products and services (the “Services”) provided by KETOS, Inc. (“KETOS”) to the customer identified in an applicable order, statement of work, or other document describing services (the “Customer”(each, a “Party” and collectively, “Parties”).

1. KETOS shall perform the Services set forth in an applicable order/statement of work in accordance with industry standards.
2. Pricing is based on Customer’s acceptance of these Terms and KETOS’s review of Customer’s creditworthiness. Customer shall pay fees thirty (30) days from the date of invoice. KETOS may charge interest on overdue balances at the maximum rate allowed by law. If KETOS invoices a third party at Customer’s written request, Customer remains liable for any unpaid invoices. KETOS may, at its sole discretion, suspend the Services until all unpaid invoices of Customer are paid in full. Failure of Customer to pay undisputed amounts within sixty (60) days constitutes a material breach. Customer shall be responsible for collection costs incurred by KETOS, including reasonable attorneys’ fees. KETOS may apply a surcharge of up to three percent (3%) to credit card payments.
3. Customer represents and warrants that all the Customer Materials provided to KETOS in connection with the Services are true, accurate, and complete. Customer will: (a) timely provide complete and accurate information related to the Project and any additional information KETOS reasonably requires; (b) provide KETOS personnel and subcontractors access to relevant sites, systems, and Customer personnel; (c) obtain any third-party licenses, rights, or consents needed for KETOS to perform; (d) give KETOS at least ten (10) business days’ notice of known or later-learned delays that may affect Project start or completion; and (e) reimburse KETOS’s reasonable costs for out-of-scope services (e.g., compliance audits, subpoena responses), including actual expenses and any demonstrable lost profits directly attributable to Customer’s failure to meet its responsibilities. KETOS will rely on Customer Materials and has no duty to verify their accuracy or completeness. KETOS will use reasonable efforts to meet agreed timelines, but will not be liable for delays due to Customer acts or omissions.
4. Unless otherwise agreed, KETOS may dispose of non-hazardous Customer Materials thirty (30) days after completion of the Services. If Customer requests longer retention, KETOS may, at its sole discretion, store such Customer Materials for certain additional fees. Upon request, KETOS may, at Customer’s cost, return to Customer any highly hazardous, acutely toxic, radioactive, or otherwise non-disposable materials, containers, and residues.
5. KETOS does not guarantee any results and does not provide warranties of any kind. Customer remains responsible for loss or damage to Customer Materials not directly caused by KETOS’s gross negligence or willful misconduct.
6. KETOS SHALL NOT BE LIABLE WHATSOEVER TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH CUSTOMER MATERIALS, THE AGREEMENT, OR THE SERVICES PROVIDED HEREUNDER, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KETOS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY OF RESULTS.
8. Customer acknowledges the inherent risks in scientific, analytical, monitoring, and related services, and that KETOS cannot guarantee outcomes. KETOS’s maximum aggregate liability for any direct loss or damages resulting from the Services shall not exceed the fees actually paid by Customer to KETOS during the twelve (12) months preceding the event giving rise to liability.
9. Customer shall defend, indemnify and hold harmless KETOS, its directors, officers, employees, affiliates, contractors, investors, and agents from and against any and all losses, damages, liabilities, debts, and expenses arising out of any claim, demand, suit or cause of action, including reasonable attorneys’ fees that may be incurred by KETOS, which arises out of or in connection with (a) Customer Materials, (b) breach of the Agreement by Customer, (c) a violation of laws by Customer, (d) misuse, unauthorized use, or misrepresentation of any Reports; or (e) infringement of third-party intellectual property.
10. KETOS retains all rights, title, and interest in and to its pre-existing and independently developed methodologies, software, hardware, know-how, analytics, workflows, including any improvements developed in connection with the Service (the “KETOS Materials”).
11. KETOS may provide Customer reports, data, memoranda, certificates, or communications in connection with the Services (collectively, “Reports”). Such Reports and any materials and deliverables prepared by KETOS during its performance of the Services (including, but not limited to, notes, memos, electronic messages, computer code, charts, files, folders, labels, presentations, letters, drawings, art work, forms, tables, reports, summaries), whether tangible or intangible shall constitute KETOS Materials and the sole and exclusive property of KETOS. Notwithstanding the foregoing, KETOS grants Customer a worldwide, irrevocable license in the Reports for commercial use.
12. Each Party will maintain insurance customary and reasonable for its obligations as set forth in this Agreement, including, without limitation, general and product liability insurance.
13. Either Party may terminate for material breach not cured within thirty (30) days after written notice, or upon insolvency, bankruptcy, or assignment for the benefit of creditors of the other Party.
14. Customers who have entered into an annual contract with Ketos may cancel the Agreement with thirty (30) days prior written notice to Ketos. Any modification, supplement, or change to these Terms or the Services must be in a signed writing by authorized representatives of both Parties and may result in changes to fees and timelines.
15. Each party (a “Receiving Party”) shall (a) use reasonable care to maintain the confidentiality of any proprietary or confidential information provided to it by the other party (a “Disclosing Party”) in connection with this Agreement, (b) not disclose any such confidential information of the Disclosing Party to any unaffiliated third party without the consent of the Disclosing Party, not to be unreasonably withheld, and (c) only use such Disclosing Party’s proprietary or confidential information in connection with the Receiving Party’s performance under this Agreement or as expressly permitted under this Agreement.
16. Neither Party will be liable for any failure to perform its obligations under this Agreement to the extent caused by any act of God, fire or explosion, flood, war, terrorism, riot, or act of governmental authority (“Force Majeure Event”) and the impacted delivery and performance dates will be extended by the period of the Force Majeure Event; provided, that the Party prevented from performing its obligations: (a) has promptly notified the other Party upon becoming aware that any Force Majeure Event has occurred or is likely to occur, (b) has used commercially reasonable efforts to implement a workaround and to minimize any delay in or interference with the performance of its obligations under this Agreement and (c) did not cause or contribute to the cause of the Force Majeure Event. Notwithstanding the foregoing, Customer shall continue to be responsible for all payments unpaid but due for Services completed before such Force Majeure Event.
17. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of law principles. Any action instituted by either Party arising out of this Agreement shall only be brought, tried, and resolved in the state and federal courts of the State of Texas.
18. KETOS is an independent contractor of Customer, and this Agreement shall not be construed to create a partnership, joint venture or employment relationship between the Parties.
19. This Agreement may be modified only by a written amendment signed by both Parties. These Terms bind and benefit the Parties and their permitted successors and assigns. If any provision is held invalid, the remaining provisions remain in full force. No waiver is effective unless in writing, and no waiver of any breach is a waiver of any other or subsequent breach. The Parties may rely on electronic signatures and records for execution and delivery of these Terms, notices, and related documents. This Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes any prior or contemporaneous agreements concerning the subject matter hereof.