1. Types of Commercial Engagement

1.1. Noggin will provide consulting Services on either a Fixed-Price or Time-and-Materials (T&M) basis, as indicated on the Order Form.
1.2. Noggin will provide the Services at the rates and prices indicated on the Order Form.
2. T&M Engagements
Where the Order Form indicates that services will be provided on a T&M basis:
2.1. The Order Form will specify the maximum amount of hours of Services that Noggin may provide.
2.2. Noggin has no obligation to provide any Services beyond the maximum amount.
2.3. Noggin may not provide Services which exceed the maximum amount of hours without written authorisation from You in the form of a new or amended Order Form.
2.4. You shall not be liable to pay for any Services that exceed the maximum amount indicated on the authorised Order Form, or the cumulative total of maximum hours on multiple authorised Order Forms.
2.5. Noggin will maintain records in its online consulting management system regarding the time our personnel spend providing Services to You. These records will determine how much time Noggin has provided under a T&M engagement.
2.6. Noggin will provide a report to you each week detailing how much time used, and for which activities.
2.7. Noggin will invoice You each month for the total hours of Services provided in the prior month.
2.8. You acknowledge that Services provided by Noggin under a T&M engagement are performed under the direction of You or your agents or personnel, and that Noggin has no obligation to provide any specific deliverables beyond the availability of Noggin’s personnel to provide the time ordered.
2.9. The Order Form will specify and Expiry Period for each amount of hours that you purchase.
2.10. The Expiry Period will commence upon receipt of an authorised Order Form.
2.11. At the end of the Expiry Period, any remaining hours will be forfeited. Noggin may elect to provide Services entirely at our discretion after the end of the Expiry Period.
2.12. T&M engagements may be cancelled by written request from the Client at any time, however all fees for T&M Services are non-refundable.
3. Fixed-Price Engagements

Where the Order Form indicates that Services will be provided on a Fixed-Price basis:

3.1. The Order Form will specify and incorporate a Statement of Work (SOW) that provides further detail and will define the price, Services, Deliverables, acceptance criteria, scope of work, payment milestones and other assumptions regarding the engagement.
3.2. The SOW will specify the price that you agree to pay and the Deliverables that you agree that Noggin will provide for that price.
3.3. Noggin has no obligation to provide any Deliverables that are not specified in the Order Form or SOW.
3.4. In order to define the scope of the Services and Deliverables in sufficient detail to fix the price, Noggin may be required to make a number of assumptions about the extent and nature of the Deliverables, Noggin’s Services, and other aspects of the implementation or solution. These may include, but are not limited to, the methods and extent of collaboration with You, the extent of configuration necessary to produce the Deliverables, or approach to system integrations.
3.5. Noggin will document these assumptions in the SOW. You acknowledge that these assumptions are material to the scope of the Deliverables and the fixed price that Noggin provides.
3.6. You agree to provide the Client resources and other dependencies specified in the Order Form or SOW, and that Noggin’s price is based upon these assumptions. Variations to the Client resources or dependencies may result in delays or other costs to Noggin for which Noggin may be entitled to a Change Request.
3.7. If at any time You require changes to the scope of the Deliverables (including the assumptions), Noggin will assess the impact of the change and may raise a Change Request to cover any of its additional costs or Services required to implement the changes. The Change Request will be dealt with under section 7 below.
4. Delays

The following clauses apply to Fixed-Price Engagements only:

4.1. Noggin and the Client will establish an agreed baseline schedule in the project’s Inception phase. Noggin will allocate project resources in accordance with the established schedule.
4.2. Where there is a delay or extension to the baseline schedule caused by the Customer or otherwise outside of Noggin’s control:
4.2.1. Both parties will work collaboratively together to minimise the costs or impact of any delays, where practical.
4.2.2. A delay or extension that exceeds in duration 10% of the overall project duration, may incur material costs to Noggin and entitle Noggin to raise a Change Request, to be dealt with under clause 7.
4.2.3. In the event of a delay or extension as defined in 4.2.2 above, Noggin will endeavour to redeploy its resources to minimise its costs where possible and practical.
4.2.4. For longer delays, where practical and at Noggin’s discretion, Noggin may fully redeploy its resources in between a defined ramp-down and ramp-up period.
4.2.5. For resources that Noggin is unable to redeploy, Noggin will calculate its costs for a Change Request based on 80% of the price for those resources at the applicable rates in the Order Form for the duration of the delay, or the duration of the ramp-down and ramp-up periods should they be defined in accordance with 4.2.4.
5. Acceptance
The following clauses apply to Fixed-Price Engagements only: 
5.1. The Order Form and SOW will specify which Deliverables are subject to Acceptance Testing, and what the Acceptance Criteria are for each Deliverable.
5.2. Where Acceptance Testing applies to a Deliverable:
5.2.1.Noggin will provide the Deliverable,
5.2.2.. The Client will conduct Acceptance Testing during the Acceptance Testing Period,
5.2.3. Noggin will issue an Acceptance Request at the end of the Acceptance Testing Period or at the completion of Acceptance Testing, whichever comes first.
5.3. Where Acceptance Testing does not apply to a Deliverable, Noggin will issue an Acceptance Request in writing upon delivery.
5.4. The client must accept or reject the Deliverable within the Acceptance Period, by issuing an Acceptance or Rejection Notice in writing.
5.5. The Acceptance Period or Acceptance Testing Period may be extended via mutual agreement between the Client and Noggin.
5.6. The Client will not withhold or delay acceptance unreasonably or where it can be demonstrated that the Acceptance Criteria have been met.
5.7. The deliverable is deemed Accepted where:
5.7.1. The Client has provided an Acceptance Notice during the Acceptance Period
5.7.2. The Client waives their right to accept the deliverable for any reason
5.7.3. An Acceptance or Rejection Notice has not been provided and 2 business days have passed after the end of the Acceptance Period.
5.7.4. 2 business days following delivery, where the SOW specifies that Acceptance does not apply to a Deliverable
5.7.5. When the Client makes the Deliverable available for use in its production or 'live' environment.
5.8. If the client rejects the deliverable, the Rejection Notice will include the reasons for the rejection, which Acceptance Criteria have not been met, and a related list of issues where relevant.
5.8.1. Noggin will respond to the rejection notice within 5 business days.
5.8.2. The response will include either rectification of the reasons for rejection, or a remediation plan to rectify the issues, or a combination.
5.8.3. The Client may elect to perform additional Acceptance Testing to confirm the resolution of the rejection reasons or issues, in which case a new Acceptance Test Period and Acceptance Period will apply.
5.9. During the Acceptance Period, the Client may issue a Conditional Acceptance notice where the Deliverable is deemed accepted subject to Noggin providing a plan to rectify any outstanding issues.
6. Document Deliverables
6.1. Deliverables that are documents (“Documents”) are not subject to Acceptance Testing or Criteria, unless specified otherwise in the Order Form or SOW.
6.2. All Documents will be provided in standard Noggin formats, unless specified otherwise in the Order Form or SOW.
6.3. Noggin will provide an initial draft of each Document for the Client to review and provide feedback on, prior to finalising the Document.
6.4. The Client will provide one round of consolidated feedback to Noggin for each document, within the Document Review Period.
6.5. Noggin may then make further changes or additions to the Document in order to address or incorporate the Client’s feedback, before submitting a final document for acceptance.
7. Change Requests
7.1. The Client will, by giving written notice to Noggin, be entitled to request changes to the Services or Deliverables under this Agreement as part of a formal Draft Change Request.
7.2. The Draft Change Request must contain sufficient detail for Noggin to assess the impact of the change, including on the scope, price and schedule.
7.3. Upon receipt of a Draft Change Request, Noggin will, with 10 business days, respond to the Client describing the impact upon and/or adjustments required to the Services, Deliverables, Price or schedule in order to fulfil the Change Request.
7.4. If Noggin, acting reasonably, assesses that there is more than 1 day’s work involved in the evaluation of the Draft Change Request, then prior to commencing work on evaluating the Change Request Noggin may request that the customer pays for the work involved to estimate the requested change. The Client is under no obligation to accept this request.
7.5. Upon receipt of a Change Request from Noggin, the Client may then either approve or reject the Change Request by providing written notice.
7.6. Where the Client approves a Change Request the Order Form and/or SOW will be considered amended to incorporate the changes.
7.7. Noggin will not commence any work related to a Change Request until the Change Request is signed by both parties.
7.8. Unless otherwise stipulated, a Change Request will be valid for 14 days.
7.9. If there is any dispute over a Change Request this will be dealt with through the procedures for managing project issues in Section B, or the dispute resolution procedures under this agreement.
8. Warranties
8.1. Noggin will provide a 90 day warranty on any software configuration Deliverables that it has provided, commencing from when the Deliverable is made available for use in a Client’s production system.
8.2. Noggin’s warranty on configuration Deliverables is voided if the Client or its agents or personnel modify the Deliverable in any way.
8.3. Noggin will provide a 90 day warranty on any system integration Deliverables that it has provided, unless otherwise specified in the Order Form, the standard integration support fee will be 20% of the integration implementation cost. The warranty commencing from when the Deliverable is made available for use in a Client’s production system.
8.4. Noggin warranty on integration Deliverables does not apply to any defects or faults caused by changes to, or issues in, other Client or third party systems. The warranty is voided if the Client or its agents or personnel modify the Deliverable in any way.
8.5. The Client acknowledges that:
8.5.1. The performance of Noggin software Services can be influenced by many factors including the amount of data in the system, the complexity of any integrations and third party software, and the configuration of the software itself including the size of forms, complexity of analytics, queries and workflows.
8.5.2. Configuration of Noggin’s software performed by Noggin under this agreement is performed at the direction of the Client, in accordance with the Client’s requirements and designs, to meet the Customer’s specific needs regarding the data model, forms, dashboards, analytics and workflows. As such, the design of these configurations are not under Noggin’s control and may include complex data or business logic operations.
8.6. For the reasons described in 8.3, it is not possible for Noggin to warrant any specific performance of the loading or response times for configured forms, dashboards, charts, tables, analytics, or workflows, whether performed by the Client or by Noggin on behalf of the Client.
9. Subcontracting
9.1. These clauses regarding sub-contracting only apply to any consulting Services that Noggin provides under an Order Form or SOW. For clarity, they do not apply to the development, operation or maintenance of Noggin’s SAAS products.
9.2. Noggin must not subcontract or otherwise arrange for another party to perform any part of the Services without the prior written approval of the Client. The Client will not unreasonably delay or withhold such approval.
9.3. Where Noggin subcontracts part of the Services, Noggin will be liable to the Client for the acts, errors and omissions of its Subcontractors, their employees and agents as if they were the acts, errors or omissions of the Contractor.
9.. Noggin must only enter into subcontracts that provide that the Subcontractor will procure from each person involved in the performance of the services under the Subcontract, an unconditional, irrevocable written consent to Noggin and any person claiming through Noggin doing anything that would otherwise infringe any of their Moral Rights in the product of work performed by such person for the purpose of the subcontract.



10. Project methodology and governance
10.1. The methodology that will be used for managing the project is specified in the SOW.
10.2. Unless specified otherwise in the Order Form or SOW, Noggin’s standard methodology, documentation templates, reporting and other procedures will apply.
10.3. Both parties will respect each other’s working environment policies: security, use of ICT, workplace health and safety – as reasonably instructed and required.
10.4. Both parties will appoint a Project Lead who is the primary and operational contact person for all matters related to the project. The Project Leads will meet routinely (no less frequently than fortnightly), as specified in the SOW, in order to coordinate project activities, status and issues.
10.5. Both parties will appoint a Senior Contact who will provide oversight of the project.
10.5.1. In the case of Noggin this will be a senior manager from our Solution Delivery or Customer Success areas.
10.5.2. In the case of the Client this will be a senior manager from the business area that will ultimately use and gain the benefits from the solution (i.e. not a temporary project or ICT/procurement manager).
10.5.3. The Senior Contacts will meet regularly (no less frequently than monthly) to coordinate, supervise and communicate openly regarding progress, issues and other matters relevant to the success of the engagement.
10.6. Both parties will appoint an Executive Contact who is authorised to act on behalf of their organisation with respect to this agreement, and who is appropriate for handling and resolving any issues that cannot be resolved by the Project Leads or Senior Contacts. The Executive Contacts will meet as required to address escalated issues, provide direction, or resolve any potential disputes in good faith.
10.7. In order to effectively resolve an issue or risk that has emerged during the engagement, either party may request a meeting at the Senior Contact or Executive Contact level at any time. Such requests are not to be unreasonably denied.
11. Location
11.1. All Consulting Services are performed away from the customer site, unless both parties otherwise agree and this is specified in the Order Form or SOW.
11.2. Noggin utilises third-party software-as-a-service (‘cloud’) providers for a range of our internal systems. Many of these are global providers based in the USA and other countries, including but not limited to: Google for email and calendar services, Box for file storage, and Atlassian and Clarizen for project management and knowledge sharing. You agree that in the routine operation of Noggin’s business, correspondence, information and documents that you provide to our consulting personnel may be transmitted or stored in these cloud services.


12. Issues and escalation
12.1. Where required under the methodology as specified in the SOW, Noggin’s project manager will maintain a list of issues to be addressed throughout the project, including actions required, in progress or completed in order to resolve those issues.
12.2. The Client will report any issues or concerns promptly to the Noggin project manager, so that they can be registered and tracked and agreed resolution actions applied.
12.3. Where the Client or Noggin considers that an issue will not be resolved satisfactorily by the Noggin project team, the parties agree to first meet at the Senior Contact level to discuss and resolve the issue.
12.4. Where the Client or Noggin considers that an issue will not be resolved satisfactorily by the Senior Contacts, the parties agree to meet without prejudice at the Executive Contact level to discuss and resolve the issue.
12.5. Both parties agree to first pursue the resolution of issues, disputes, alleged breaches or conflicts in accordance with these clauses 13.2, 13.3 and 13.4 before enacting the dispute resolution procedures under this agreement or any other legal remedy.


13. Audit
13.1. The Client has a right to audit Noggin’s processes regarding its delivery of consulting Services, including the recording of time and activities or invoicing related to a T&M engagement, no more frequently than annually.
13.2. The Client may request an audit by providing at least 14 days’ written notice, including the scope of the audit, objectives and terms of reference.
13.3. The Client will bear any costs arising from the performance of the audit.
13.4. If Noggin personnel are required to respond to any audit, where there is no breach or related issues found, then you agree that Noggin will provide a quote and charge you for our time spent.


14. Expenses
14.1. Out of pocket expenses and reimbursements
14.1.1. For Consulting Services performed on-site, you agree to reimburse Noggin for our reasonable costs for all travel expenses incurred in order to provide the Consulting Services, including air, road or rail travel, per diems, meals, and any reasonable out of pocket expenses related to the delivery of the service at your site.
14.1.2. If you are government agency, we will do so in accordance with the travel guidance provided by your relevant government services agreement as it pertains to travel allowances
14.1.3. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.