AWS Cutover EULA

AGREEMENT & STRUCTURE | By executing the statement of work (“SOW”) to which these Cutover Service Terms & Conditions (“Cutover Terms”) are attached or incorporated or by commencing use of any Cutover Services, you as the end customer (“Customer”) agree to be bound by these Cutover Terms. Cutover provides access to certain Cutover Services to Customer in accordance with these Cutover Terms which may be via AWS. Cutover does not “sell” the Cutover Services to Customer and Customer has no direct fee payment obligations to Cutover. No obligations in the agreement between Customer and AWS is binding on Cutover. 

Interpretation | In addition to terms otherwise defined in these Cutover Terms, capitalized terms have the following meanings:

“Agreement” means the AWS Customer Agreement (available at http://aws.amazon.com/agreement) or other written agreement, by and between Customer and the relevant AWS contracting party (identified as a party to the agreement), governing Customer’s use of the AWS services; 

"AWS”' means the AWS contracting entity that entered into the SOW with Customer; “In-Scope Data” means the data, text, information, content, notes and materials inputted by Customer or its Users for the purpose of using the Platform or facilitating Customer’s use of the Cutover Services, including the Users’ personal data; 

“Cutover” means Cutover Inc. (full contact and company details can be found at www.cutover.com); 

“Cutover Services” means, collectively, the Platform, any Cutover-provided application programming interface, all additional and related services provided by Cutover or its affiliates (including as may be provided via AWS), including original Cutover documentation (or that which was prepared by Cutover); 

“Party” means Cutover or Customer; '

“Platform” means Cutover’s web-based SaaS collaborative automation platform as maintained, updated and upgraded from time to time; 

“Security Incident” means any unauthorized or accidental access, disclosure, processing, loss or use of any of Customer’s In-Scope Data held by Cutover or Personal Data processed by Cutover on behalf of Customer;

“Sub-Processors” mean Cutover’s sub-processors set forth in the data protection provision below;

“Term” means the period from effective date of the SOW or the date on which Customer first commences use of the Cutover Services for the duration of the term of the SOW or until AWS or Cutover revoke Customer’s access to the Platform which may be done for Cutover and AWS’s convenience at any time for any reason (without notice); and

“Users” mean the employees, contractors or other authorised representatives of Customer with login access to the Platform.

 1.1 Access to Cutover Services | In consideration of Customer’s agreement to these Cutover Terms, Cutover will provide or otherwise make the Cutover Services available to Customer as directed by AWS for the Term. Cutover will make available the Cutover Services in relation to Customer’s specific circumstances and use case as outlined in the SOW between AWS and Customer. Where applicable, support services will be provided to Customer by AWS (as set out in the SOW) in the first instance but, where directed by AWS, additional technical support may be provided by Cutover. 

1.2 Usage Restrictions | Customer will receive access to the Platform in the form of a certain number of logins for its Users to use strictly as permitted under the Scope of Use. Customer agrees (and shall procure that its affiliates and Users agree): (a) that the Cutover Services may only be used for its internal business purposes subject to the terms of the Agreement, the SOW and these Cutover Terms (the “Scope of Use”), (b) to abide by the restrictions and requirements set forth in these Cutover Terms, and (c) that, in relation to use of the Cutover Services it will not (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make any of them available for access by third-parties, (ii) access them for the purpose of developing or operating products or services in competition with Cutover or the Cutover Services, (iii) disassemble, reverse engineer, or decompile any or part of the Cutover Services, or copy, create derivative works based on, or otherwise modify them, (iv) remove or modify any copyright or other proprietary rights notices in them, (v) use them in violation of applicable law, (vi) use them to reproduce, distribute, display, transmit, or use material protected by copyright or other intellectual property rights (including the rights of publicity) without first obtaining the owner’s permission, (vii) use them to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt their security, integrity, or operation, or (viii) use them to disable any Cutover Service or otherwise access or disable any third-party data, software, or network.

1.3 Customer Obligations | Customer warrants that it will: (a) promptly provide all necessary co-operation and information as required in connection with the Cutover Services, including but not limited to In-Scope Data and security access information; (b) comply with all applicable laws and regulations with respect to its use and receipt of the Cutover Services; (c) ensure that the Users use the Cutover Services in accordance with these Cutover Terms; (d) obtain and maintain all necessary licences, consents, and permissions necessary for Cutover (including its affiliates), AWS and the Sub-Processors, to provide the Cutover Services; and (e) be solely responsible for (i) procuring, maintaining and securing its network connections and telecommunications links to enable it to access the Cutover Services, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections, internet or telecommunications links.

1.4 Confidentiality | Customer agrees (and shall procure that its affiliates and Users agree) that any non-public information of Cutover or its affiliates, or in relation to the Cutover Services, that Customer receives or has access to in connection with these Cutover Terms or use of the Cutover Services shall be subject to the same treatment by Customer as “AWS Confidential Information” under the Cutover Terms.

1.5 Effect of Termination | On termination of the SOW, these Cutover Terms will terminate automatically. On termination of these Cutover Terms:  (a) all rights of access to the Cutover Services under these Cutover Terms shall immediately terminate and Customer shall immediately cease all use of the Cutover Services; (b) Cutover will allow Customer to retrieve In-Scope Data from the Cutover Services upon Customer’s request; (c) Cutover will destroy, delete or otherwise securely dispose of any In-Scope Data in its possession (to the extent reasonably technically possible) within thirty (30) days of the effective date of termination; and (d) any rights or remedies of Cutover that have accrued up to the date of termination shall not be affected or prejudiced.

1.6 Proprietary Rights | Customer owns all right title and interest in and to its In-Scope Data, and is liable for the legality, reliability, integrity, accuracy and quality of all such In-Scope Data.  For the Term plus thirty (30) days thereafter, Customer grants Cutover a non-exclusive, sub-licensable, royalty-free, worldwide right and license to collect, process, store, host, copy, transmit, display, distribute, disseminate, modify, and create derivative works of the In-Scope Data strictly for the purposes of: (a) providing the Cutover Services, and (b) performing anonymised and aggregated analytics on In-Scope Data and the Customer’s Users’ use of the Platform (i) to display and report the results of such anonymous analysis to the Customer, and (ii) to develop, test, improve and evolve the functionality of the Platform and other Cutover Services generally. Cutover, its affiliates and/or their licensors remain the sole owner of all intellectual property rights and other right, title, and interest in all Cutover Services. These Cutover Terms do not grant Customer any rights to, under or in, any intellectual property or other proprietary rights (whether registered or unregistered), or any other rights or licenses in or to the Cutover Services.

1.7 LIMITATION OF LIABILITY | TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUTOVER AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF THESE CUTOVER TERMS, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF THE CUTOVER SERVICES, REGARDLESS OF THE FORM OF CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE (INCLUDING ANY LEGAL OR EQUITABLE THEORY) WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED TEN THOUSAND DOLLARS (US$10,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE CUTOVER TERMS, OR THE AGREEMENT, IN NO EVENT WILL CUTOVER, AWS AND EACH OF THEIR RESPECTIVE AFFILIATES BE LIABLE TO CUSTOMER, ITS AFFILIATES OR USERS FOR: (A) ANY CLAIM BASED UPON A THIRD PARTY CLAIM; (B) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR (C) FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF CUTOVER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUTOVER IS AWS’S LICENSOR AS REFERRED TO IN THE LIMITATION OF LIABILITY PROVISION OF THE AGREEMENT AND SHALL BE SUBJECT TO THE APPLICATION LIMITATIONS (WHETHER SUCH PROVISION USES THE TERM “LICENSOR”, “SUPPLIER” OR A SUBSTANTIALLY SIMILAR TERM).

1.8 REPRESENTATIONS AND WARRANTIES | CUTOVER REPRESENTS AND WARRANTS THAT, TO ITS KNOWLEDGE, THE PLATFORM DOES NOT INTENTIONALLY INCLUDE ANY MALICIOUS OR HIDDEN MECHANISMS OR CODE FOR THE PURPOSE OF DAMAGING OR DEGRADING THE PLATFORM OR IN-SCOPE DATA. CUTOVER DOES NOT WARRANT THAT THE OPERATION OF THE PLATFORM OR OTHER CUTOVER SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS OR THAT THEY ARE COMPATIBLE WITH CUSTOMER’S SYSTEMS, NOR THAT THE PLATFORM WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM ITS USE OF THE CUTOVER SERVICES, AND FOR CONCLUSIONS DRAWN FROM ALL SUCH USE. CUTOVER SHALL HAVE NO LIABILITY FOR ANY LOSS, LIABILITY OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR TEMPLATES (INCLUDING RUNBOOKS) PROVIDED BY CUTOVER OR AWS TO CUSTOMER OR DERIVED BY CUSTOMER IN CONNECTION WITH THE CUTOVER SERVICES, OR ANY ACTIONS TAKEN BY CUTOVER OR AWS AT CUSTOMER’S DIRECTION. CUSTOMER ACKNOWLEDGES THAT COMPLETE ACCURACY CANNOT BE GUARANTEED AND THAT ERRORS AND DELAYS ARE INHERENT IN THE PROVISION OF SOFTWARE, DATA PROCESSING AND TELECOMMUNICATIONS SERVICES. CUTOVER SHALL NOT BE RESPONSIBLE OR LIABLE FOR VERIFICATION OF, OR ANY ERRORS (FACTUAL OR OTHERWISE) CONTAINED IN, ANY IN-SCOPE DATA OR OTHER INFORMATION PROVIDED TO CUTOVER BY CUSTOMER, ITS AFFILIATES, USERS OR ANY THIRD PARTY ACTING ON BEHALF OF CUSTOMER. 

1.9 FAIL-SAFE PERFORMANCE | CUTOVER DOES NOT WARRANT THAT THE CUTOVER SERVICES ARE DESIGNED FOR ANY PURPOSE REQUIRING FAIL-SAFE PERFORMANCE FOR WHICH FAILURE COULD RESULT IN DEATH, PERSONAL INJURY OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE (INCLUDING, WITHOUT LIMITATION, MEDICAL EQUIPMENT, DEVICES OR PROCEDURES, AVIATION, VEHICULAR OPERATION OR HEAVY INDUSTRY).

1.10 Governing Law | These Cutover Terms and any dispute or controversy arising in connection herewith shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Cutover and Customer irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction in New York City, New York to adjudicate any dispute arising out of or relating to these Cutover Terms (including any non-contractual disputes or claims). 

1.11 Notices | All notices under these Cutover Terms: (a) to Cutover must be sent by email to contract.notices@cutover.com, and (b) to Customer will be sent to the main email address then associated with Customer’s AWS account. 

1.12 Miscellaneous | Except for Cutover’s affiliates, no one other than a Party has the right to enforce any of these Cutover Terms. These Cutover Terms supersede all prior discussions and agreements, and constitute the entire agreement between the Parties. Neither Party has relied on any statement or representation by any person in entering into these Cutover Terms. Any amendments to these Cutover Terms must be agreed in writing. If a Party fails to enforce a right under this agreement, that is not a waiver of that right at any time. 1.13 Data Protection | In relation to the processing of any personal data of the Customer or its Users under these Cutover Terms, Cutover’s privacy terms shall apply: https://www.cutover.com/privacy-policy-dpa.