This Professional Services Agreement between Client and Affinio Inc. (“Affinio”) specifies the terms under which Affinio will provide to Client the Professional Services (the “Professional Services”) described in a Statement of Work (the “Statement of Work”) or Order Form for Managed Services (the “Order Form”).  

 

  1. Fees for the Professional Services, if quoted separately from other services, will be as provided in the Statement of Work or Order Form.  Unless otherwise expressly specified in the Statement of Work or Order Form, the Professional Services will be provided on a time and materials basis.  Any estimated total amount specified in the Statement of Work or Order Form is solely a good faith estimate for Client’s budgeting and Affinio’s resource scheduling purposes and not a guarantee that the work will be completed for that amount.    Affinio shall invoice the Client monthly and such charges are due and payable 30 days from the invoice date.
  2. Professional Services are provided remotely.  Client and Affinio may agree to provide some Professional Services onsite at Client’s location.  Client shall reimburse Affinio, for actual, reasonable, travel and related expenses. Affinio shall invoice the Client monthly and such charges are due and payable 30 days from the invoice date.
  3. If any charge owing by Customer is 30 days or more overdue, Affinio may, without limiting its other rights and remedies, suspend its performance of Professional Services until such amounts are paid in full.
  4. If the Statement of Work or Order Form requires deliverables (such deliverables to be expressly defined in the Statement of Work or Order Form), and Client in its reasonable and good faith judgment determines that any submitted deliverable does not meet the requirements set out in the Statement of Work or Order Form, Client shall so notify Affinio in writing within 5 business days after Affinio’s submission of the deliverable, specifying the deficiencies in detail.  Affinio shall use commercially reasonable efforts to promptly cure any such deficiencies and resubmit the deliverable to Client. If Client rejects any deliverable in accordance with the above process after the second resubmission to Client, Client may again reject the deliverable and return it to Affinio for further cure and resubmission, or terminate the Statement of Work immediately upon written notice and recover all Professional Services fees associated with such deficient deliverable, except that Client may not terminate an Order Form for Professional Services being provided as part of the Managed Services nor may Client recover any Professional Services fees for such Professional Services.  Client shall provide Affinio a written acceptance of each deliverable promptly upon acceptance. Failure to reject a deliverable within the applicable acceptance period shall be deemed acceptance of such deliverable.
  5. Affinio warrants that the Professional 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 Professional Services or, if Affinio is unable to re-perform the Professional Services as warranted, Client shall be entitled to recover the fees paid to Affinio for the deficient Professional Services except that Client may not recover any fees for Professional Services being provided as part of Managed Services.  Client must report any deficiencies in the Professional Services to Affinio in writing within 30 days of performance of such Professional 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.
  6. 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 Professional Services being provided as part of Managed Services for which a party’s aggregate liability shall not exceed $25,000, neither party’s aggregate liability for damages hereunder shall exceed the total amount of fees paid and/or due by Client under a Statement of Work.
  7. Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services.
  8. Professional Services are provided only in support of the Services and Client’s right to access and use such Services under the agreement located at https://www.affinio.com/tos/ (the “Terms of Service”) or a separate agreement agreed upon between Affinio and Client.  Neither this Agreement nor any Statement of Work grants Client any subscription or rights to use the Services.  Professional 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 Services.
  9. Client authorizes Affinio employees to access the Services, the Client Data and any Third Party Services authorized by Client to interact with the Services on behalf of Client, in order to provide the Professional Services.  
  10. Professional Services are provided only to the Client and must not be reassigned or shared with an Affiliate of the Client or any other corporate entity, including any of Client’s end customers.
  11. 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 the Statement of Work or 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 the Statement of Work or Order Form. In the event of any discrepancy or conflict between the Letter Agreement and the Statement of Work or Order Form, then the Statement of Work or Order Form shall govern.  Any terms not defined in this Agreement shall have the definitions given to them in the Terms of Service located at https://www.affinio.com/tos/.