Terms of Service

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CUTLIST STANDARD TERMS

Parties

1) Cutr B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) with its statutory seat in Amsterdam, the Netherlands and its registered office at 542 Singel, 1017 AZ, Amsterdam, the Netherlands (Cutr or the Company); and

2) Customer;

each a Party and together the Parties.

Recitals

1) The Company operates the Cutr platform as available through www.cutr.ai (the Platform).

2) The Company has developed a cloud-based software solution which allows Customer’s end customers to automate Cutlist Platform requests on a white-label basis (the Tool). From the information provided by Customer’s end customers, the Tool generates the necessary information for order processing and production by Customer.

3) The Company and the Customer wish to enter into a commercial partnership agreement to enable the Customer to provide Tool access to its end customers (access to the Platform and operation of the Tool, the Services) on the terms and conditions as laid down in this agreement (the Agreement).

It is therefore agreed as follows:

1. Interpretation
   1. Any capitalised terms in this Agreement will have the meaning as set out immediately before the respective capitalised, italicised, bold term. Highlighted words have the meanings or descriptions given on the Cover Page.
   2. This Agreement constitutes an agreement for the provision of services.
   3. The recitals will form an integrable part of this Agreement.
2. Cutlist Services and Development
   1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.
   2. In an effort to further develop and promote the Tool and the Services, Parties will be working together in multiple phases as described in Annex 1 (Statement of Work). The Parties will jointly draft Annex 1. In order to form a part of this Agreement, Annex 1 must be signed by both Parties. This Annex 1 may be amended in writing from time to time.
   3. The Customer will pay for access to the Services as follows in accordance with the Cutlist Fee Structure.
   4. Customer will be invoiced and payment will be made according to the Payment Period and Invoice Period.

1. Use and Promotion by Customer of the Services and the Tool
   1. Customer will, from the Subscription Start Date and for the Subscription Period, use the Tool as the exclusive means for its end customers to generate eligible online orders.
   2. Customer will promote the Services on the Customer’s website, through any and all marketing collateral and will make available a related marketing budget. Customer will at all times make best efforts to promote the Tool.
   3. Without limiting the generality of the foregoing, Customer will in any event upon first request by Cutr include a statement or reference “Powered by Cutr” on its platform and/or website.

1. Restrictions on Use and Responsibilities
   1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (Software); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices of the Company.
   2. The Customer understands that the Company has disclosed or may disclose business, technical or financial information relating to the Company’s business (hereinafter referred to as Proprietary Information of the Company). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service, and the terms of this Agreement. Customer agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
   3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the Policy) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
   4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

1. Customer Penalties
2. Customer shall pay a recurring Penalty Fee to Cutr in any of the following circumstances, for as long as these circumstances occur:

1) Customer fails to use the Tool as the exclusive means for its end customers to generate eligible online orders from Subscription Start Date through Subscription Period.
2) Subscription Start Date is later than the Target Subscription Start Date, where the delay is caused by Customer.

1. Data Processing Agreement.
2. Before submitting personal data as defined by GDPR (Personal Data) to Cutr, Customer must enter into a data processing agreement (DPA) with Cutr. If the parties have a DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data and the terms of the DPA will control in the event of any conflict with this Agreement.

1. Warranty and Disclaimer
2. Company will use commercially reasonable efforts to make the service available with the Targeted Uptime and to provide notice of scheduled maintenance in accordance with the Maintenance Notice Time. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation of Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Notwithstanding the foregoing sentence, the Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this Clause, the services and implementation services are provided “as is” and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

1. Limitation of Liability
2. Notwithstanding anything to the contrary, except for gross negligence or malice, the Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
3. Intellectual Property
   1. This Agreement (including any related collaboration between the Parties) will not in whatever way result in a transfer of intellectual property rights (of whatever nature) held by the Company to the Customer.
   2. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the implementation of the Services or support, and (c) all intellectual property rights related to any of the foregoing. Upon first request by the Company, the Customer will assign any intellectual property rights in relation to the Platform or the Tool to the Company.
   3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer’s data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services as well as the Platform and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings (including the Platform), and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
   4. Subject to the terms of this Agreement, the Customer hereby grants and agrees to grant to the Company, solely to provide the applicable Services, a non-exclusive, paid-up and royalty-free license to use the intellectual property rights (if any) owned by the Customer as required for the Company to provide the Services. Upon the expiration or termination of this Agreement, the Company’s license shall terminate and be of no further force or effect.
4. Term and Termination
   1. Each subscription will start on the Subscription Start Date, continue for the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date.
   2. This Agreement will start on the Effective Date and continue for the longer of one year or until all Subscription Periods have ended.
   3. Either Party may terminate this Agreement if the other party (a) fails to cure a material breach of the Agreement within 30 days after receiving notice of the breach; (b) materially breaches the Agreement in a manner that cannot be cured; (c) dissolves or stops conducting business without a successor; (d) makes an assignment for the benefit of creditors; or (e) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days. A Party must notify the other of its reason for termination.
   4. In the event of termination, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. Miscellaneous
   1. Any changes in this Agreement or supplements to it are only valid in so far as these have been agreed in writing.
   2. The invalidity of any clause or part of a clause of this Agreement will not affect the validity of the other clauses or parts thereof.
   3. The Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument.
   4. This Agreement, including the Order Form, these Terms, and the Annexes, embodies the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, relative to said subject matter between the Parties, its subsidiaries and/or affiliated companies.
6. Applicable Law and Choice of Court Agreement
   1. This Agreement is governed exclusively by Dutch Law.
   2. All disputes that may arise in connection with this Agreement or any agreements resulting from this Agreement will be submitted to the competent court Amsterdam, the Netherlands.

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