Managed Services Agreement


Managed Services Agreement

This Managed Services Agreement (“Agreement”) between Client and Affinio Inc. (“Affinio”) specifies the terms under which Affinio will provide to Client the services described as Managed Services in an Order Form (“Managed Services”).  Any terms not defined in this Agreement shall have the definitions given to them in the Terms of Service as defined in Section 8 below.

1. If Affinio is providing Managed Services as part of a trial (designated as “trial” or similar in the applicable Order Form), the following provisions shall apply:  in the event of a breach of the warranty in Section 7, Affinio shall not re-perform any deficient Managed Services.

2. Where charged separately, fees for the Managed Services will be as provided in the Order Form.

3. Managed Services are provided remotely.  Client and Affinio may agree to provide some Managed Services onsite at Client’s location.  Client shall reimburse Affinio, for actual, reasonable, travel and related expenses which have been pre-approved by the Client.

4. If any charge owing by Customer under the applicable Order Form is 30 days or more overdue, Affinio may, without limiting its other rights and remedies, refuse to perform or suspend its performance of the Managed Services until such amounts are paid in full.

5. Deliverables expressly defined as such in an Order Form will be submitted as stated on the Order Form.  Deliverables are works made for hire and, upon payment of the Fees, Affinio will transfer and assign to Client all right, title and interest, in and to the deliverables and waives all moral rights in and to the deliverables.   For clarity, Reports and Content are not deliverables and are not warranted.

6. Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Managed Services.  Each party is wholly responsible for the actions and performance of its employees and their compliance with the party’s respective responsibilities under this Agreement and any Order Form. Client will provide Affinio  with a contact name who will co-ordinate the Managed Services with Affinio.

7. Affinio warrants that the Managed Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards.  If Affinio breaches this warranty, Affinio shall re-perform the Managed Services or, if Affinio is unable to re-perform the Managed Services as warranted, Client shall be entitled to recover the fees paid to Affinio for the deficient Managed Services, if such fees have been listed and charged separately under an Order Form.  Client must report any deficiencies in the Managed Services to Affinio in writing within 30 days of performance of such Managed Services in order to receive warranty remedies. This warranty is exclusive and in lieu of all other warranties, whether express or implied, and these remedies are Client’s exclusive remedies and Affinio’s sole liability for any warranty breach.

8. Managed Services are provided only in support of Affinio’s services (the “Online Services”) as defined in the agreement located at or under an agreement in writing and signed by the parties (either, the “Terms of Service”). Client’s right to access and use the Online Services is governed solely by the Terms of Service.  This Agreement does not grant Client any subscription or rights to use the Online Services. Managed Services do not include advisory, training or professional services in support of any other application or platform or any advisory, training or professional services that do not directly support Client’s access to, and use of, the Online Services.

9. Client authorizes Affinio employees to access the Online Services, the Client Data and any Third Party Services authorized by Client to interact with the Online Services, on behalf of Client, in order to provide the Managed Services.  Affinio employees shall access Client Data, the Client’s instance of the Online Services and any Third Party Services only in accordance with this Agreement in order to provide the Managed Services or as otherwise instructed by Client.  Affinio employees who require such access for purposes consistent with this Agreement have signed confidentiality agreements with Affinio.

10. In no event shall either party be liable for any indirect, incidental, special, consequential, reliance or cover damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages.  Except for Managed Services being provided as part of a trial, for which Client’s aggregate liability shall not exceed $10,000, neither party’s aggregate liability for direct damages hereunder shall exceed the total amount of fees paid and/or due by Client under an Order Form

11. Managed Services are provided only to the Client and shall not be reassigned or shared with an Affiliate of the Client or any other corporate entity, including any of Client’s end customers.

12. This Agreement constitutes the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter thereof.  Neither this Agreement nor an Order Form may be modified or amended except in a writing signed by a duly authorized representative of each party. Any terms and conditions that may be attached to Client’s purchase order shall be null and void and superseded in full by the terms of this Agreement and an Order Form. In the event of any discrepancy or conflict between the Agreement and an Order Form, then the Order Form shall govern.