NOGGIN TERMS OF SERVICES AGREEMENT

 

Definitions

For the purposes of this Agreement:

Acceptance Period means 3 working days, unless specified otherwise in the Order Form or SOW

Acceptance Request means a request in writing from Noggin to the Client, to accept a Deliverable

Acceptance Test Period means 10 working days, unless specified otherwise in the Order Form or SOW

Acknowledgement means a communication by Noggin to the Client acknowledging a request and that it is being investigated.

Acknowledgement Time means the maximum time from receipt of a logged issue.

Billing Period means the period of time that you have agreed to be charged fees for Noggin services as indicated on your Order Form (monthly or annually).

Billing Policy means a setting in your Noggin service that You control, that indicates whether you will be required to purchase additional services in advance, or whether you authorise Noggin to invoice you for additional services in arrears.

Client (also referred to as Customer or You) means the entity specified as the client in the Order Form who is the party making this agreement with Noggin.

Client Data means any and all Content as defined below or otherwise collected by Noggin or the Services pursuant to this Agreement including, but not limited to: (a) Confidential Information of Client; (b) Information provided by Client to Noggin specifically for the purposes of the Services; (c) Personal information, or any other information, on or about a customer or prospective customer of Client;

Confidential Information of a person or body means all the confidential information disclosed by that person or body to another person for the purposes of this Agreement; or of that person or body of which the other person becomes aware as a result of this Agreement and includes (without limitation) information relating to:  Client Data; the technology and design of a product or service; including trade secrets and confidential know-how; trading and financial details and any other information of commercial value; the personnel, policies, processes or strategies;  the terms and fees upon which a product or service has been supplied to the Client, but excludes any information which is public knowledge (otherwise than as a result of a breach of confidentiality by the other party).

Copyright means in Australia the Commonwealth Copyright Act 1968, in the USA the xxx, in New Zealand the Privacy Act 1993, in the UK the xxx

CPI means the Consumer Price Index in the jurisdiction of this agreement

Defect means a fault or error which prevents a system or product from functioning as described in the  Product Functionality, Order Form or Statement of Work, or causes a loss of specified functionality or service.

Deliverables means the documents, designs, configurations,

Document Review Period means 5 business days following delivery of a draft document, unless specified otherwise in the Order Form or SOW.

Force Majeure means fire, flood, meteorological event, strike, industrial action, war, civil disturbance, Act of God, or any other event outside the reasonable control of a party that causes the delay or failure by that party to perform its obligations under this Agreement;

GST means any applicable goods or services tax imposed in the jurisdiction of this agreement, together with any related interest, penalties, fines or other charges.

Impact  means a measure of the effect of an Incident or Problem on business processes. Impact is often based on how Service Levels will be affected, or how many users are affected.

Incident means a type of Support Request that is an issue that has resulted in a process or operating error or service degradation, or has resulted a function, module or service being rendered unstable, inaccessible or unusable.

Instance means a single copy of the Software for use with a single Network Address, or group of Network Addresses which when accessed generate the same output regardless of which Network Address within the group is used.

Noggin (also referred to as We or Us) means the Noggin entity that this agreement is with, as specified in the Order Form. In the USA or Canada this is Noggin IT Inc (USA), in Australia and the Asia-Pacific this is Noggin Pty Ltd (Australia), in New Zealand this is Noggin IT Limited (NZ), in the UK, Europe and the Middle East this is Noggin IT Limited (Ireland).

Permanent Fix means a permanent resolution to a problem.

Personnel of a party means employees, officers, project managers, agents, contractors and subcontractors of that party.

Priority means the priority of a Support Request based on its Impact and Urgency, used to identify required times for actions to be taken.

Privacy Laws means any legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to personal information, which the parties agree in writing will apply to this Agreement, based upon the jurisdiction that governs this agreement

Resolution Plan means a plan of action to resolve an issue or problem.

Response means a communication by Noggin to the Client in relation to a specific issue or request, which includes either a Temporary Fix, a Permanent Fix or a Resolution Plan

Response Time means the maximum time from acknowledgement of a logged issue.

Service Request means a type of Support Request that is repeatable, simple to execute, can be documented, is low cost and/or low risk, requires no more than one business days’ worth of effort to deliver, and is accepted as a part of business-as-usual activities. For example a simple configuration change, or an answer to a question.

Services means the SaaS or consulting services that Noggin provides to you as specified in your Order Form and/or Statement of Work.

Software as a Service (SaaS) means a model of software deployment whereby Noggin licenses the software application to the Client for use as a service on demand and the Client pays an ongoing subscription fee for use of this service.

Software means any program, library, code, and/or documentation developed by or on behalf of Noggin and any addition, modification, upgrade or change to the Software provided by Noggin that replaces and/or supplements the original Product, unless such upgrades are accompanied by a separate license, in which case the terms of that license will apply.

Standard Hours means Noggin’s standard business hours which are

  • North America – 08:30 – 17:30 Mon-Fri (Pacific Standard Time)
  • United Kingdom – 08:30 – 17:30 Mon-Fri (GMT)
  • Asia-Pacific – 07:00 – 19:00 Mon-Fri (Australian Eastern Standard Time)

Subscription Fee means the amount you pay for the Subscription Service.

Subscription Service means all of our safety and security applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://nogginapp.io or another designated URL, and any ancillary products and services, that we provide to you.

Subscription Term means the initial term for the subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.

Support Hours means the total number of hours of Support in each Billing Period that is indicated on your Order Form.

Support means to provide advice, assistance and guidance regarding how to use and configure Noggin’s products.

Support Request means a request for assistance by You that may include a report of an Incident or a Service Request.

Temporary Fix means a temporary solution to a defect to overcome the immediate problem.

Urgency means a measure of business criticality of an Incident where there is an effect upon business deadlines. The urgency reflects the time available for repair or avoidance before the impact is felt by the business. Together with impact it is the major means of assigning a priority for dealing with Incidents.

General Terms of Service

1. Background:
1.1. Parties
1.1.1. Noggin provides software subscription and consulting services
1.1.2. These terms of service relate to engagement with a particular Noggin Entity - Noggin IT INC - United States, Noggin Pty Ltd - Australia., Noggin IT Limited – Ireland, Noggin IT Limited - New Zealand – variously known as “Noggin” or “We”.
1.1.3. Your terms of service will relate to the entity linked to your jurisdiction of sign up.
 
2. Use
2.1. Your use of the proprietary Noggin Software service offered at noggin.io and related websites (“The service”) is subject to these terms of service. In order to use the service, you must agree to be bound by these terms of service. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
2.2. If you do not accept these terms of service, you may not use the service
2.3. The Noggin Privacy Policy (available at https://www.noggin.io/privacy) is incorporated herein by reference. This Agreement governs your use of the Service however accessed, including via an Internet browser, smartphone, tablet, or other mobile device.
2.4. If you are signing up for the Service on behalf of a Customer, you warrant that you are duly authorized to represent the entity and accept the terms of this Agreement on behalf of such entity, and any references to “you” in this Agreement refer to such entity and all of its employees, consultants and agents. You are responsible for all activity on the Service that occurs under your account.
 
3. Scope
3.1. These terms govern Noggin’s provision of software product (“subscription services”) and consulting services “Consulting Services”) to the Customer, subject to one or more ordering documents (called an “Order Form”) describing the Services, each of which incorporates these terms by reference.
3.2. The Order Form may be contained electronically within the customer account section of the subscription services application or as a electronic or printed document.
3.3. The services that Noggin may provide in the Order Form include software subscription, software development, consulting services, software design, interface design, documentation, technical support, hosting and/or maintenance, or communications as requested by the Customer. The services may be delivered by Noggin or a third party, if the Customer accepts.
3.4. The Order Form (“Order Form”) must be signed by the customer and Noggin, either digitally or in writing.
3.5. The parties may add Order Forms from time to time during the duration of the engagement. These Order Forms will also be governed by the terms contained in this agreement.
3.6. Additional Features. The customer may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within the customer portal in the subscription services
 
4. Your Responsibilities as they relate to use of our products
4.1. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be and remain solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (iv) be responsible for maintaining the security of the User names and passwords of Your Users using the Service and notify Us promptly of any other breach of security known or suspected by You, (v) use the Services only in accordance with applicable laws and government regulations, and (vi) be responsible for all activity under Your Account, including the activity of other Users who have been added to Your Account by You or by another User of the Account
4.2. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (including any materials which are illegal, obscene, indecent, defamatory, incites racial or ethnic hatred, violates the rights of others, harms or threatens the safety of Users or others or may otherwise constitute a breach of any applicable law), (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
 
5. Entire Terms
5.1. These terms, together with the Order Forms, embodies the entire understanding of the parties and supersedes all previous terms or contemporaneous communications, whether oral or written; proposals, representations and warranties relating thereto.
5.2. We periodically update these terms. If you have an active Noggin subscription, we will let you know when we do via an email or in-app notification. You can find archived versions of the terms in the accounts area of the application.
5.3. If you do not agree with a modification to the Noggin Terms of Service, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term
 
6. Changes to the Cloud Products.
6.1. You acknowledge that the Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.
 
7. Assignment.
7.1. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
 
8. No Third Party Beneficiaries.
8.1. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
9. Inconsistencies
9.1. If there is any inconsistency between any of the provisions of this Agreement and the provisions of any of the Incorporated Terms and Conditions, the provisions of this Agreement govern to the extent of the inconsistency, unless explicitly agreed in an incorporated customer agreement
 
10. Severability. 
10.1. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
 
11. Waiver. 
11.1. No waiver of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
 
12. Consulting Services.
12.1. You may purchase Consulting Services by placing an Order with Noggin. Unless Noggin otherwise agree, the Consulting Services we provide will be governed by the Consulting party terms and will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee.
12.2. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
 
13. Duty of Confidentiality
13.1. Each party to these Terms shall keep the terms of this Agreement confidential and hold in strict confidence all Confidential Information of the other party that it learns or is provided with and use such Confidential Information only for the purposes of this Agreement.
13.2. Upon termination of this Agreement for any reason, or upon the request of the other party, a party shall promptly deliver to the other party all Confidential Information of the other party.
13.3. Neither party to this agreement will make press nor other announcements nor releases relating to this Agreement without the other party’s written consent.
13.4. If an administrative body or a court under proceedings asks for such information, the parties shall contact each other in order to limit together possible adverse effects of such disclosure;
13.5. Each party shall return to the other all Confidential Information of the other in written or tangible form or in any other media on the termination of this Agreement.
13.6. The terms of this clause shall survive the expiry or earlier termination of this Agreement and any agreed renewal of this Agreement.
13.7. The duty of confidentiality referred to in this Agreement will not extend to such of the Confidential Information as;
13.7.1. was known to the party receiving the Confidential Information;
13.7.2. was in the public domain, but not known to the party receiving the Confidential Information, prior to the date of this Agreement;
13.7.3. comes into the public domain subsequent to the date of this Agreement otherwise than a result of a breach of this Agreement;
 
14. Intellectual Property
14.1. Each party maintains its pre-existing intellectual property going into the agreement
14.2. The Client retains copyright over any Content it inputs into the Noggin software. All ownership and Intellectual Property Rights in all Client Data remains vested in the Client.
14.3. Noggin retains the intellectual property of any solutions, libraries or processes that it provides as part of its software
14.4. Any bespoke configuration, process provided by Noggin for the customer as part of consulting services remains the property of the customer.
14.5. The Client will not for any purpose, re-use, reproduce, redistribute, duplicate, copy, sell, trade or resell the Services, any Noggin Intellectual Property Rights or any Software developed or applicable under this Agreement without consulting, informing, or paying any license fees or royalties to Noggin or the relevant licensor.
 
15. Termination
15.1. This terms shall be terminated where:
15.1.1. A party to this Agreement becomes insolvent or bankrupt;
15.1.2. A party to the Agreement undertakes activities or conducts itself in such a manner as to harm the reputation, standing and image of another party in a material manner;
15.1.3. A party to the Agreement behaves unethically, unprofessionally or dishonestly in a material manner;
15.1.4. Customer’s nominated payment method is refused or dishonored repeatedly
15.1.5. A party to this Agreement commits a material breach of this Agreement and does not seek to rectify the breach within 30 days of being notified in writing of the breach by the other party, then the other party shall be entitled to terminate this agreement immediately;
15.1.6. All outstanding fees and charges become payable immediately on giving of such notice and in no circumstances will Customer be entitled to any refund of payments made under this Agreement;
Noggin for whatever reason ceases to provide the Services specified herein
15.2. Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to Noggin, but, upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
15.3. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of Noggin in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request.
15.4. If this Agreement is terminated by you in accordance with clauses 15.1.2, 15.1.3, or 15.1.5 (Termination for Cause), Noggin will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by Noggin in accordance with clauses 15.1.2, 15.1.3, 15.1.4 or 15.1.5 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to Noggin for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
 
16. Limitation of Liability
16.1. Both parties shall only be liable for direct loss or damage arising out of gross negligence or wilful misconduct.
16.2. In no event will either party’s liability arising out of or related to this agreement exceed fees paid by licensee to Noggin pursuant to this agreement.
16.3. In no event will either party have any liability for any indirect, incidental, special, or consequential damages, however caused and on any theory of liability, whether for breach of contract, tort (including negligence) or otherwise, arising out of or related to this agreement, including but not limited to loss of anticipated profits or loss or interruption of use of any files, data or equipment, even if advised of the possibility of such damages. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy. The parties agree that the foregoing limitations represent a reasonable allocation of risk under this agreement.
 
17. Indemnification
17.1. Each party (“Indemnifying Party”) will indemnify, defend and hold the other party (“Indemnified Party”) harmless from any claim, action, suit or proceeding made or brought against the Indemnified Party arising out of or related to the Indemnifying Party’s breach of any term of this Agreement.
 
18. Force Majeure
18.1. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
 
19. Compliance with Laws
19.1. We will comply with relevant. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
19.2. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws.
9.3. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording.
19.4. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
 
20. Notices. 
20.1. Notice will be sent to the contact address registered for the Noggin subscription account, and will be deemed delivered as of the date of actual receipt.
20.2. Notices from Customer to Noggin can be delivered by the in application webform
 
21. Dispute resolution
21.1. General
21.2. Any Dispute which arises must be dealt with in accordance with this clause. The parties must continue to perform their obligations under this agreement despite the existence of any Dispute
21.3. Nothing in this clause 20 prejudices either party’s right to commence legal proceedings to seek urgent injunctive or urgent declaratory relief in respect of a Dispute.
21.4. Negotiation
21.5. If a Dispute arises then either party may, by written notice to the other party, refer the Dispute to senior representatives of the parties for resolution. The notice must expressly state that it is a notice under this clause 28.2 and set out reasonable particulars of the Dispute.
21.6. The parties must ensure that their senior representatives confer with each other in person, by phone or video conference within 10 Business Days after a Dispute is referred to them (or such later date as the parties agree in writing) and, acting in good faith, seek to resolve the Dispute. Each party must ensure that its senior representative has authority to resolve the Dispute.
21.7. Litigation
21.7.1. If a Dispute is not wholly resolved within 20 Business Days after the Dispute is referred to the parties’ senior representatives under this clause (or such later date as the parties agree in writing), either party may commence legal proceedings to resolve the Dispute.
21.7.2. A party must not commence legal proceedings in relation to a Dispute unless the Dispute has been referred to their senior representatives under clause 20.6 and the party has complied with the procedure for resolving the Dispute under clause 20 (to the extent possible).
 
Software product and hosting terms
22. Software subscription services
22.1. Noggin’s software licensing model is subscription based, also known as ‘cloud’ or ‘software-as-a-service’ (SAAS). You subscribe to one or more instances of the Software hosted by Noggin, on a 22.2.monthly or annual fee basis.
These services are offered in packages that inclusive of hosting, storage, maintenance, new versions, and additional supporting services such as data, communications and geospatial information services as outlined in your Order Form.
22.3. Excess fees may apply if usage exceeds the limits set out in the Order Form
22.4. Customer acknowledges that the software is a Commercial Off The Shelf (COTS) product and can be used once provisioned. As such the subscription will commence from the date that the software service is provisioned for the Customer’s use.
 
23. Software products and functionality
23.1. Noggin software product functionality is listed from the noggin.io website
23.2. Noggin represents and warrants that the Software, as delivered, will be free from material defects.. The Customer’s sole remedy and Partner’s sole obligation with respect to a confirmed software defect shall be to undertake reasonable commercial efforts to repair or replace the Software in order to correct it.
 
24. Users and license and permitted use
24.1. “Named Users” have unique, individual login credentials to the Noggin products and services
24.2. Noggin grants a license to the Customer for the number of Named Users specified in the Order Form to have access to the Software
24.3. Noggin grants to the Customer a non-exclusive, world-wide, royalty-free license to use the Software. The license granted is for use only, and not for reproduction, adaptation, modification, development, enhancement or distribution
 
25. Trial, Beta and Evaluation Licenses
25.1. From time to time Noggin may invite you to try, at no charge, our products or services that are not generally available to our customers on a trial, beta or evaluation basis
25.2. Noggin provides you with such licenses at its discretion and you may accept or decline any such trial at your discretion.
25.3. Any such services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.
25.4. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Beta services are not considered "services" hereunder and are provided "as is" with no express or implied warranty. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available
25.5. Suspension and Termination of Free Beta Services. We may suspend, limit, or terminate the Free Beta Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
 
26. Product Roadmap
26.1. Noggin may at its own discretion provide a product roadmap giving a guide as to when future functionality may be provided in its products. This information is provided as a guide only and is subject to change.
26.2. The Customer acknowledges that the Software and additional services referenced in the Order Form are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Software and Services are separate and not contingent on each other, even if listed on the same Order Form).
26.3. The Customer agrees that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
 
27. Upgrade process
27.1. From time to time Noggin may deploy changes to the Software that the customer is subscribed to, to implement new features, maintain or improve system performance or security, or correct defects. There are no additional fees for new versions provided the Customer has paid and/or continues to pay the software subscription fees.
27.2. Noggin will publish the details of the functionality features in the software upgrade as well as detailing any changes to existing functionality.
27.3. Without limiting any other terms herein contained, Noggin reserves the right in our sole discretion to add, change, discontinue or otherwise modify features of the Services at any time.
 
28. Upgrades to application packages
28.1. The Customer has the ability to purchase different solution and industry packages of configuration data, on top of your core software service
28.2. The Customer may upgrade the Services at any time via a request in writing (a revised or new Order Form).
 
29. Protection of your data
29.1. Without limiting the above, we shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data.
29.2. We shall not (a) modify your Data unless otherwise required in order to provide the Services, (b) disclose your Data except as compelled by law in accordance or as expressly permitted in writing by you, or (c) access your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
29.3. You consent to Noggin accessing anonymized data about how our services are used by you, for the purpose of usage data, for monitoring and optimizing our services.
 
30. Removal and Deletion of your Data. 
30.1. If you become aware that any portion of your Data or user activity violates this Agreement, you shall take all necessary action to prevent such activity and remove such Data from the Services.
30.2. To the extent we become aware that your Data, in our reasonable discretion, is in violation of this Agreement or any applicable law, we may immediately block access to the Services, suspend or terminate your use of the Services, delete or remove such Data from the Services, or take any other action We deem appropriate.
30.3. We reserve the right to terminate or suspend your use of the Services if the continued provision of Services would violate law or otherwise harm us or our Services.
30.4. We also reserve the right to cooperate with legal authorities and third parties in the investigation of alleged wrongdoing. We will endeavour to provide notice to you prior to suspension or termination of your use of the Services, but may immediately suspend or terminate them in instances where your continued use of the Services would have a material adverse effect on Us.
 
31. Data and transactions
31.1. Current limits on data storage, geospatial transactions, communications and any excess fees are defined in the Order Form
31.2. Once the Customer’s account with Noggin has been terminated for any reason (including voluntary closure) or is inactive for a period of 60 days or longer, Noggin may delete all of the Customer’s Data from any storage media. This data includes, but is not limited to, that contained in backup tapes, mail boxes and web space. Noggin will notify the customer before doing this to give it the opportunity to take a back up of the data.
 
32. Service Credits - Application Availability
32.1 If indicated on your Order Form, Noggin will provide to the Customer service credits related to its targets for the availability of the service, as described in these terms.
32.2. In the event that Noggin fails to achieve the Availability Service Level for a Service solely supported by Noggin, and for reasons solely within Noggin’s control, then Noggin shall provide You with Service Credits.
32.3. Service Credits for failure to meet the Availability Service Level shall be calculated as a percentage of the monthly associated service subscription fee according to the table below.
Service Availability Service Credit
99.90%+ Nil
99.50% 5%
99.00% 10%
98.50% 15%
98.00% or less 20%
32.4. To receive a Service Credit, you must submit a claim by emailing support@noggin.io. To be eligible, the credit request must be received by us by the end of the second Billing Period after which the incident occurred and must include:
32.4.1. The dates and times of each unavailability incident that you are claiming; and
32.4.2. The address of your site that was unavailable.
 
33. Hosting of application 
33.1. Noggin will host the application as part of its standard SAAS offering.
33.2. The application hosting will be delivered via AWS (Amazon Web Services) standard hosting offering zones, in the customer’s designated country/region, as described at https://aws.amazon.com/about-aws/global-infrastructure/ 
 
34. Performance
34.1. You acknowledge that the performance of the Noggin application 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.
34.2. Noggin warrants that its software will perform in a commercially reasonable manner in material conformance with the applicable application documentation (the “Performance Warranty”). Where the parties have agreed upon Service Levels for any aspect of the application performance, such Service Levels shall apply in lieu of the Performance Warranty.
34.3. The Customer acknowledges that Noggin’s software can be configured by Customer or by other parties at its direction, via the application user interface, to meet the Customer’s specific needs regarding the data model, forms, dashboards, analytics and workflows. Such configurations are outside of Noggin’s control and may include complex data or business logic operations. As such 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.
34.4. The Performance Warranty is subject to the following exclusions. Except as may be expressly agreed in writing by Noggin, Noggin’s Performance Warranty does not apply to:
34.4.1. defects, problems, or failures caused by the Customer’s non performance of obligations essential to Noggin’s performance of its obligations; and/or
34.4.2. defects, problems, or failures caused by an event of force majeure.
34.4.3. performance related to the configuration of the software (including forms, workflows, analytics and queries), whether configured by Noggin, the customer or a third party.
 
35. Incorporated Software
35.1. Open Source Licenses. The product to which these terms apply contains certain Open Source Software ("Open Source Software"). All use of the Open Source Software is subject to and governed by the respective licences, which are either contained in the 3rd party software programs or available at: http://www.fsf.org/licensing/licenses/
35.2. Mapping. Where the Software includes map viewing functionality, the Customer agrees to use, provide, and make available to End Users the Software only in accordance with the Terms of Service for Google Maps set forth at the following URL, or such URL as may be updated by Google from time to time (the "Maps Terms of Use"): http://maps.google.com/help/terms_maps.html or ESRI http://www.esri.com/legal/licensing/termsofuse
 
Support Terms
36. How Noggin will provide support
36.1. Noggin will provide Support through online help content and email communications with our help desk
36.2. If indicated on your Order Form, Noggin will also provide Support via telephone and access to our online support system.
36.3. Contact details for Support Requests are as specified in your Order Form. You acknowledge that Noggin is not responsible for a Support Request if it is provided via any other means.
36.4. You agree to specify your personnel who are authorised by You to request support from Noggin, and the identity of your authorised system administrator(s). Noggin will not provide Support to someone who is not specified as authorised by You.
 
37. What Noggin will not provide in relation to support. 
As part of our Support, Noggin will not:
37.1. provide services related to any other systems or services that are not provided by Noggin. This includes your network connection or environment, desktop or device hardware or operating system, internet browser, or any other third-party application or system.
37.2. perform configuration of your system that require more than 1 day of effort. These should be raised with your customer success manager as a request for professional services.
37.3. perform data migration work
37.4. conduct testing of your configuration or system
37.5. provide formal training or develop training materials
37.6. consult, analyse or provide advice regarding your business processes
37.7. provide project or change management services
 
38. When Noggin will provide support
Noggin will provide support during its business hours which are: 
North America - 08:30 - 17:30 Mon - Fri Pacific Standard Time
United Kingdom - 08:30 - 17:30 Mon - Fri GMT
Asia-Pacific 0:700 - 19:00 Mon-Fri Australian Eastern Standard Time

If indicated on your Order Form, Noggin will also provide a fault reporting and Incident response service 24 hours per day, 7 days per week.

39. How much support Noggin will provide
39.1. Each Billing Period, Noggin will provide Support up to the total amount of Support Hours.
39.2. Noggin creates and updates records in its online support system, each time you request Support and in the course of providing Support to You. In that system we will also record the time our personnel spend providing Support to You. You agree that these records will determine how much Support time Noggin has provided each Billing Period.
39.3. Noggin will provide a report to you upon request detailing how much of your Support Hours have been used, and for which requests. We will also provide warnings as your Support Hours reaches its total in any given Billing Period.

 

40. Excess Support Hours
40.1. You may purchase additional Support Hours in advance at any time. If additional Support Hours are purchased by You we will increase the Support Hours by that amount, effective immediately.
40.2. If your Billing Policy for Support Hours is set by You to pre-paid, Noggin will not provide additional Support beyond the total Support Hours in any given Billing Period.
40.3. If your Billing Policy for Support Hours is set by You to post-paid, Noggin may provide additional Support beyond the total Support Hours in any given Billing Period. You agree that Noggin may charge fees for additional Support in excess of your Support Hours, at the rate indicated in the Order Form. Excess Support Hours will be invoiced in the month following the month in which the Support Hours amount was exceeded.
 
41. Prioritisation of Support requests
41.1. Noggin will assign a Priority to each request for Support based on Urgency and Impact, in line with industry best practices and the ITIL standard.
41.2. There are four levels of Priority categorisations that may be assigned to Support Requests. These are detailed below with descriptions, along with the contact methods You are required to utilise for each priority.
 
Priority Description Contact Method
1 A complete system failure or outage. Most or all users unable to access the service or many of its key functionalities, or there are immediate business critical impacts (e.g. financial loss, health/life risks, legal/compliance impacts, negative impact to your reputation or customers). No workaround is available. Telephone
2 A critical part of system functionality is unstable or unusable. Many users are affected. A workaround may or may not be available. Telephone
3

An intermittent issue, or the issue has a workaround, or the issue has minimal impact to your business operations, or cannot be replicated under normal circumstances.

Noggin Support Portal or Email
4 Minor cosmetic defects, or a Service Request, request for information, administrative task, feature requests, sales enquiry, or a question. Noggin Support Portal or Email
 
42. Service Levels

Noggin has the following benchmarks for the levels of support service that we provide:

    • 100% of Priority 1 Incidents responded to within the target
    • 100% of Priority 1 Incidents resolved within the target
    • 95% of Priority 2 Incidents responded to within the target
    • 90% of Priority 2 Incidents resolved within the target
    • 90% of Priority 3 Incidents responded to within the target
    • 90% of Priority 3 Incidents resolved within the target
Priority Acknowledgement Response Target Resolution Target
1 15 minutes** 45 minutes 6 hours
2 2 hours 2 business days
3 1 business day 5 business days
4 2 business days 10 business days

**Via automated email alert (where a Priority 1 has been reported on the phone, this will be captured as a new Support Request during (or immediately after) the phone conversation, resulting in an email acknowledgement.

Pricing and Payment Terms
43. Pricing
43.1 The Order Form may contain some or all of the following pricing terms
43.1.1. Fees for products and subscription services
43.1.2. Fees for Noggin consulting services
43.1.3. Fees for any third party transactional services – namely, communication, infrastructure and geospatial or any other transactional services that may become available through the platform
43.1.4. Fees for any third party product or services
43.1.5. Excess fees for products and third party transactional services
 
44. Terms and milestones
44.1. The term of the agreement and any fees will be outlined in the Order Form, and you agree to pay all fees or milestones in accordance with the payment terms therein
44.2. Fees for products and subscription services are based on the products and subscription services You purchase, as specified in the Order Form
44.3. Fees for consulting services are specified in the Order Form or accompanying Statement of Work (SOW). Where the SOW specifies payment milestones, You agree to pay the fees at the times specified therein, based upon Noggin delivering to You and satisfying the acceptance criteria for each Deliverable.
44.4.3 Fees for software subscription services are payable from the date specified in the Order form, based on when the product is first provisioned for You to use or customise.
 
45. Renewals
45.1. The payment term of the Order Form shall renew on the same basis and shall continue for a corresponding term unless the subscription services are cancelled by the Customer at the end of the term, unless a new agreement between the Customer and Noggin supersedes the order form.
45.2. Except as otherwise specified in your Order Form, unless You cancel your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term.
45.3. You will provide any notice of non-renewal in writing through the means we designate, which may include account settings in the Subscription Product or contact with our support team. Cancelling your subscription means that you will not be charged for the next Billing Period, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Subscription Product continuing to be offered by Noggin and will be charged at then-current rates.
 
46. Variable Services and Excess Fees
46.1. Some Services that Noggin provides include a purchased quantity for you to use each Billing Period (Variable Services), such as email messages, SMS messages, voice messages, file storage or geo-spatial services.
46.2. The quantity included, and fees for, Variable Services is specified in the Order Form. If additional Variable Services are purchased by You we will increase the quantity by the amount in the new or revised Order Form, effective immediately.
46.3. Variable Services can be increased at any time via an authorised Order Form from You.
46.4. Some Variable Services have a Billing Policy defined that You may specify at any time, that indicates whether you will be required to purchase additional services in advance, or whether you authorise Noggin to invoice you for additional services in arrears.
46.5. If your Billing Policy for Variable Services is set by You to pre-paid, Noggin will not provide additional Variable Services beyond the total quantity purchased in any given Billing Period.
46.6. If your Billing Policy for Variable Services is set by You to post-paid:
46.6.1. Noggin may provide additional Variable Services beyond the total quantity purchased in any given Billing Period.
46.6.2. You agree that Noggin may charge fees (Excess Fees) for additional quantity of Variable Services that you use in excess of the quantity specified in your Order Form, at the prices indicated in the Order Form.
46.6.3. Excess Fees will be invoiced in the month following the month in which the Variable Services quantity was exceeded.
 
47. Currency
47.1. Unless otherwise specified in the Order Form, fees are quoted and payable in United States Dollars (USD)
 
48. Payment against invoice
48.1. If you are paying by invoice, we will invoice you no more than forty five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
 
49. Your billing information
49.1. You are responsible for maintaining compete and accurate contact information, billing information and credit card information (where applicable) up to date, and notifying us of any changes to the information. Changes may be made to this information your Billing Page within your Noggin application customer portal or in writing to your Noggin representative
 
50. Changes to subscriptions
50.1. The Subscription Services Fees will remain fixed during the Subscription Term unless you purchase additional services via an authorized Order Form.
50.2. You purchase additional products or services by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
 
51. Payment by credit card or direct debit
51.1. If you are paying by credit card or electronic direct debit, you authorize us to debit your credit card or bank account for all fees payable during the Subscription Term.
51.2. You authorize us to charge your credit card or bank account for all fees payable after the subscription term in accordance with the subscription renewal
51.3. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Such charges shall be made in advance, in accordance with the billing frequency stated in the applicable Order Form
 
52. No cancellations or refunds
52.1. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
 
53. Sales Tax
53.1. Unless otherwise stated, all fees are exclusive of taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes")
53.2. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services.
53.3. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
53.4. We are solely responsible for taxes assessable against us based on our gross revenues or net income, property and employees
53.5. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state.
53.6. If you are subject to GST, all fees are exclusive of GST.
53.7. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding, until the tax benefit becomes available and we will reimburse you if necessary.
 
54. Overdue Charges. 
54.1. If any fees that are payable are not received from You by the due date, then at Noggin’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
 
55. Collection Fee. 
55.1. In the event you fail to pay overdue charges, we may refer your account(s) to a third party for collection. You agree that if it becomes necessary for us to refer your invoices to a third party for collection, We will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover the internal collection-related costs we have incurred on such invoices through and including the date on which We refer the invoices to such third party. To the extent permitted by law, you agree to pay us any additional costs and fees we reasonably incur to collect amounts outstanding on your invoices.
55.2. You expressly authorize, and specifically consent to allowing, Us and/or our outside collection agencies, outside counsel, or other agents to contact You in connection with any and all matters relating to unpaid past due charges billed by Us to You
 
56.Suspension of Service and Accelleration. 
56.1. If any amount owed by You under this or any other Agreement for Our Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate Your unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend your access to the Services until such amounts are paid in full.
56.2. We will give you at least 7 days' prior notice that your account is overdue before suspending your access to the Services
 
57. Payment Disputes
57.1. At our discretion, we may not exercise Our rights under suspension of service with respect to those charges that are under reasonable and good-faith dispute and you are cooperating diligently to resolve the disputes
 
58. Discounts
58.1. Discounts may be offered for upfront payment for longer subscription terms, or apply across bundling for different products and solutions at the sole discretion of Noggin.