Version Date: October 1, 2026
1. ACCEPTANCE OF TERMS AND CONDITIONS
(i) These terms and conditions constitute a legal agreement and are entered into between the customer identified in the applicable Order Form ("Customer", "you", "your") and Nomad Inc. ("Nomad", "we," "us," "our"). These terms and conditions, together with each Order Form, the Privacy Policy, any Additional Terms, and any other documents they expressly incorporate by reference (collectively, this "Agreement"), govern Customer's subscription to, and access to and use of, the Nomad Platform and the Subscription Services.
(ii) This Agreement is formed, and becomes binding on Customer, on the earlier of: (a) the date Customer signs or otherwise accepts an Order Form; and (b) the date Customer or any Authorized User first accesses or uses the Nomad Platform (the "Effective Date"). The individual accepting this Agreement or an Order Form on behalf of Customer represents and warrants that they have the authority to bind Customer. If you do not have such authority, or if you do not agree to these terms and conditions, you must not accept an Order Form or access or use the Nomad Platform.
(iii) Order of precedence. In the event of any conflict or inconsistency among the documents forming this Agreement, the following order of precedence applies (in descending order): (a) the Order Form, but only with respect to the specific commercial terms it sets out (including Subscription Services, Seats, Fees, Subscription Term and any special terms expressly identified as overriding these terms and conditions); (b) any Additional Terms, with respect to the applicable Subscription Service; (c) these terms and conditions; and (d) the Privacy Policy. No pre-printed or standard terms contained in any purchase order or other document issued by Customer will have any effect, even if Nomad acknowledges or accepts such document.
(iv) Changes to these terms. Nomad may revise these terms and conditions from time to time by posting the revised version on the Nomad Platform and giving Customer at least thirty (30) days' notice through the Nomad Platform or by email to Customer's notice contact. Revised terms take effect on the date stated in the notice, and Customer's continued use of the Nomad Platform after that date constitutes acceptance. If a revision materially reduces Customer's rights or materially increases Customer's obligations under this Agreement, Customer may terminate this Agreement by written notice given before the effective date of the revision, in which case Customer will be released from any Fees for the remainder of the then-current Subscription Term that relate to periods after the termination date. Changes to Fees are governed exclusively by Section 4.
(v) Authorized User terms. Each Authorized User must accept the Nomad Platform Terms and Conditions applicable to individual users when first accessing the Nomad Platform. Those user terms govern the individual's own use of the Nomad Platform and do not amend this Agreement. As between Customer and Nomad, this Agreement governs.
2. DEFINITIONS
As used in this Agreement, the following terms have the meanings set out below:
“Additional Terms” means any product-specific terms, guidelines, policies or instructions relating to a particular Subscription Service that are presented within the Nomad Platform, referenced in an Order Form, or otherwise made available by Nomad to Customer.
“Authorized User” means an individual employee, officer, contractor, agent, driver, dispatcher or other representative of Customer (or of Customer's affiliates identified in an Order Form) who is authorized by Customer to access and use the Nomad Platform on Customer's behalf and to whom Customer has assigned a Seat.
“Business Day” means any day other than a Saturday, Sunday or statutory holiday in Toronto, Ontario.
“Confidential Information” has the meaning set out in Section 9(i).
“Customer Data” means all data, content, documents, records and information submitted, uploaded or transmitted to the Nomad Platform by or on behalf of Customer or its Authorized Users, or generated on the Nomad Platform from such data specifically for Customer, including any Personal Information contained therein, but excluding Derived Data.
“Derived Data” has the meaning set out in Section 7(iii).
“Documentation” means the user guides, help content, specifications and other documentation for the Nomad Platform that Nomad makes generally available to its customers, as updated from time to time.
“Fees” means the subscription fees, per-Seat fees, implementation or onboarding fees, fees for Additional Products, and all other amounts payable by Customer under an Order Form or this Agreement.
“Initial Term” has the meaning set out in Section 5(i).
“Nomad Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Nomad.
“Nomad Platform” means the online platforms, web portals, mobile applications, application programming interfaces, dashboards, tools and related software, technology, content and functionality made available by Nomad or any Nomad Affiliate through which Customer accesses and uses the Subscription Services, as updated, enhanced or modified from time to time.
“Order Form” means an ordering document, quote, proposal or in-platform order, in the form provided by Nomad, that identifies Customer, the Subscription Services, the number of Seats, the Fees, the Subscription Term and any other commercial terms, and that is signed or otherwise accepted by Customer and Nomad. Each Order Form is incorporated into and forms part of this Agreement.
“Payment Method” means the valid credit card or other payment method that Customer designates and keeps on file with Nomad (or its payment processor) for the payment of Fees, as further described in Section 4(v).
“Personal Information” means any information about an identifiable individual, or that may directly or indirectly identify an individual.
“Privacy Policy” means Nomad's privacy policy available at www.nomad.io/privacy, as amended from time to time.
“Renewal Term” has the meaning set out in Section 5(ii).
“Seat” means a licence for one named Authorized User to access and use the Subscription Services during the Subscription Term. A Seat may be reassigned from one Authorized User to another where the original Authorized User no longer requires access, but may not be shared by, or used concurrently by, more than one individual.
“Subscription Services” means the products, modules, services, features and functionality of the Nomad Platform that Customer subscribes to under an Order Form, as described in the Order Form and the Documentation, including any Additional Products subsequently added.
“Subscription Term” means the Initial Term together with all Renewal Terms.
“Third-Party Services” has the meaning set out in Section 8(v).
3. SUBSCRIPTION AND ACCESS
(i) Subscription licence. Subject to Customer's compliance with this Agreement (including timely payment of Fees), Nomad grants Customer, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to permit Authorized Users, up to the number of Seats set out in the applicable Order Form, to access and use the Subscription Services solely for Customer's internal business purposes and in accordance with the Documentation. No rights or licences are granted except as expressly set forth in this Agreement. All other rights are reserved.
(ii) Authorized Users. Customer is responsible for: (a) designating its Authorized Users and assigning and managing Seats through the Nomad Platform; (b) ensuring that each Authorized User complies with this Agreement and the user terms referred to in Section 1(v); (c) all activity that occurs under its Authorized Users' accounts, whether or not authorized by Customer; (d) maintaining the confidentiality of all credentials; and (e) promptly notifying Nomad of any unauthorized access or use. Customer shall promptly remove Seat assignments from individuals who cease to be Authorized Users.
(iii) Administrators and instructions. Customer shall designate one or more Authorized Users as administrators with authority to manage Seats, permissions, billing details and settings on Customer's behalf. Nomad may rely on and act upon any instruction, request, order, approval or other communication made through an administrator's or Authorized User's account as having been duly authorized by Customer, without any obligation to verify it.
(iv) Customer responsibilities. Customer shall: (a) provide accurate, current and complete account, billing and contact information and keep it updated; (b) obtain and maintain, at its own cost, all devices, software and connectivity required to access the Nomad Platform; (c) use the Nomad Platform in compliance with applicable law, including privacy, transportation, and financial services laws applicable to Customer's business; and (d) adopt reasonable internal policies and controls to prevent unauthorized or fraudulent use of the Nomad Platform.
(v) Additional Products. Customer may subscribe to additional modules, products, Seats or services ("Additional Products") by executing or accepting an additional Order Form or by ordering them through the Nomad Platform, in each case at the Fees set out in the applicable Order Form or, if none, at Nomad's then-current list price as made available on the Nomad Platform. Unless the applicable Order Form provides otherwise, Additional Products are co-terminous with the then-current Subscription Term.
(vi) Nomad Affiliates and separate programs. Certain products or services accessible through the Nomad Platform may be offered by a Nomad Affiliate (including any fuel, payment, financing or similar program) under a separate written agreement between Customer and that Nomad Affiliate. Such products or services are not Subscription Services, and any credit, payment or program terms are governed exclusively by the applicable separate agreement. Nomad may perform any of its obligations under this Agreement through Nomad Affiliates or subcontractors, and remains responsible for their performance.
(vii) Changes to the Nomad Platform. Nomad may modify, update, add or remove features and functionality of the Nomad Platform from time to time, provided that Nomad will not, during a paid Subscription Term, materially reduce the core functionality of the Subscription Services described in the applicable Order Form without Customer's consent, other than to comply with applicable law or address a security risk.
4. FEES AND PAYMENT
(i) Fees. Customer shall pay the Fees set out in each Order Form. Except as otherwise stated in the Order Form, Fees for the Subscription Services are charged per Seat, for the number of Seats stated in the Order Form, for the full Subscription Term. Fees are quoted and payable in the currency stated in the Order Form (and, if none is stated, in Canadian dollars) and are exclusive of taxes.
(ii) Annual commitment; monthly billing. Unless the Order Form provides otherwise, Customer commits to the Subscription Services and the number of Seats stated in the Order Form for the full Initial Term and each Renewal Term. For Customer's convenience, the annual Fees for each Subscription Term are billed in equal monthly instalments in advance, on the Effective Date and on each monthly anniversary thereafter (each, a "Billing Date"). Monthly billing does not convert the subscription into a month-to-month arrangement: except as expressly provided in this Agreement, all instalments for the then-current Subscription Term remain payable notwithstanding any early termination or reduction in use.
(iii) Adding Seats. Customer may add Seats at any time through the Nomad Platform or by an additional Order Form. Added Seats are charged at the per-Seat rate in the applicable Order Form (or, if none, at Nomad's then-current list price), prorated from the date they are added to the next Billing Date, and thereafter included in each monthly instalment for the remainder of the then-current Subscription Term. Added Seats are co-terminous with the then-current Subscription Term.
(iv) Reducing Seats; true-up. Customer may reduce its number of Seats only with effect from the start of a Renewal Term, by written notice given at least sixty (60) days before the end of the then-current Subscription Term. If at any time the number of individuals accessing the Subscription Services exceeds the number of Seats then subscribed, Customer shall promptly subscribe to additional Seats, and Nomad may, on notice to Customer, invoice the excess Seats at the applicable per-Seat rate retroactively to the date on which the excess first occurred. Nomad may monitor Seat usage through the Nomad Platform for this purpose.
(v) Payment Method. Customer shall provide, and keep current, a valid credit card (or such other Payment Method as Nomad may agree in writing or in the Order Form) and hereby authorizes Nomad and its third-party payment processor to charge the Payment Method for all Fees, taxes and other amounts payable under this Agreement on or after each Billing Date and as they otherwise become due, without further authorization. Customer represents that it is authorized to use the Payment Method. If a charge is declined or reversed, Nomad may retry the charge, and Customer shall provide an alternative Payment Method within five (5) Business Days of notice. Customer remains responsible for all Fees regardless of any failure of the Payment Method. Nomad may, but is not obligated to, accept payment by electronic funds transfer, pre-authorized debit or other method on terms it specifies.
(vi) Late payment. Any amount not paid when due bears interest at the rate of 1.5% per month (18% per annum), or the maximum rate permitted by applicable law, whichever is less, calculated daily and compounded monthly from the due date until paid in full. Customer shall also pay a fee of $50 for each declined, returned or reversed payment, and shall reimburse Nomad for all reasonable costs of collection, including legal fees on a solicitor-client basis. If any amount remains unpaid ten (10) days after Nomad gives notice of non-payment, Nomad may suspend Customer's access to the Nomad Platform in accordance with Section 14(i) and, without limiting Section 4(ii), may declare all remaining instalments for the then-current Subscription Term immediately due and payable.
(vii) Taxes. Fees are exclusive of all applicable sales, goods and services, harmonized, value-added, use, excise and similar taxes, duties and charges ("Taxes"), other than taxes on Nomad's net income. Customer is responsible for all Taxes and Nomad will add applicable Taxes to each charge. If Customer is required by law to withhold any amount from a payment, Customer shall gross up the payment so that Nomad receives the full amount it would have received absent the withholding.
(viii) Fee changes. Fees are fixed for the Initial Term. Nomad may change the Fees for any Renewal Term by giving Customer written notice at least sixty (60) days before the start of that Renewal Term. If Nomad does not give such notice, the Fees for the Renewal Term will not increase by more than five percent (5%) over the Fees in effect for the immediately preceding Subscription Term. Where notice of a Fee change is given, Customer may elect not to renew in accordance with Section 5(ii).
(ix) Invoices and disputes. Nomad will make invoices or receipts available through the Nomad Platform or by email. Customer must notify Nomad in writing of any disputed charge, with reasonable detail, within thirty (30) days after the applicable Billing Date, failing which the charge is deemed accepted. The parties will work in good faith to resolve any disputed charge promptly, and Customer shall pay all undisputed amounts when due. Nomad will promptly credit or refund any amount it determines was charged in error.
(x) No refunds. Except as expressly provided in this Agreement, all Fees are non-cancellable and non-refundable, and Nomad does not provide refunds or credits for partial months, unused Seats, or periods during which Customer does not use the Subscription Services.
(xi) Interest limitation. If any provision of this Agreement would oblige Customer to pay interest or any other amount construed as interest at a rate that would be prohibited by applicable law or result in Nomad receiving interest at a criminal rate under section 347 of the *Criminal Code* (Canada), the rate or amount shall be deemed adjusted to the maximum permitted by applicable law, and any excess received by Nomad shall be applied to reduce other amounts owing or refunded to Customer.
5. TERM AND RENEWAL
(i) Initial Term. This Agreement commences on the Effective Date and, unless the Order Form provides otherwise, the initial subscription term is twelve (12) months from the Effective Date (the "Initial Term").
(ii) Automatic renewal. On expiry of the Initial Term and each Renewal Term, the subscription automatically renews for a further period of twelve (12) months (each, a "Renewal Term") on the same terms (including the same number of Seats, subject to Section 4(iv)) and at the Fees then in effect (subject to Section 4(viii)), unless either party gives the other written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term. Where multiple Order Forms are in effect, each renews independently unless the Order Forms provide that they are co-terminous.
(iii) Term of Agreement. This Agreement remains in effect for so long as any Order Form or Subscription Term is in effect, and thereafter until all Fees have been paid and all obligations that survive under Section 14(v) have been performed.
6. CUSTOMER DATA, PRIVACY AND SECURITY
(i) Ownership and licence. As between the parties, Customer owns all right, title and interest in and to the Customer Data. Customer grants Nomad and the Nomad Affiliates a non-exclusive, worldwide, royalty-free licence during the Subscription Term (and thereafter for the retention periods described in Section 6(vi)) to host, store, copy, process, transmit, display and otherwise use the Customer Data as necessary to provide the Subscription Services, to perform Nomad's obligations and exercise its rights under this Agreement, to comply with applicable law, and as otherwise instructed by Customer.
(ii) Customer responsibility for Customer Data. Customer is solely responsible for the accuracy, quality, legality and content of the Customer Data and for the means by which it was obtained. Customer represents and warrants that it has, and will maintain, all rights, authority and consents required under applicable law (including privacy law) to submit the Customer Data to the Nomad Platform and to permit its use as contemplated by this Agreement, including with respect to Personal Information about its Authorized Users, drivers, employees, customers, account debtors and other individuals.
(iii) Privacy. Each party shall comply with all applicable privacy and data protection laws in connection with the Customer Data, including the *Personal Information Protection and Electronic Documents Act* (Canada), applicable provincial privacy legislation and, where applicable, United States federal and state privacy laws. Nomad will process Personal Information contained in Customer Data only on behalf of and in accordance with the instructions of Customer as set out in this Agreement, and in accordance with the Privacy Policy. Nomad will reasonably assist Customer, at Customer's expense where the assistance is material, in responding to access, correction or deletion requests from individuals relating to Personal Information in the Customer Data. If required by applicable law, the parties will enter into a data processing agreement on Nomad's standard form.
(iv) Security. Nomad will maintain commercially reasonable administrative, physical and technical safeguards, consistent with generally accepted industry standards, designed to protect the security, confidentiality and integrity of the Customer Data. Nomad may use Nomad Affiliates and third-party service providers (including cloud hosting providers and payment processors) to process Customer Data, provided that they are bound by obligations of confidentiality and data protection no less protective than those in this Agreement, and Nomad remains responsible for their compliance.
(v) Security incidents. Nomad will notify Customer without undue delay, and in any event within seventy-two (72) hours after confirming, any unauthorized access to, or acquisition, use, disclosure or loss of, Customer Data in Nomad's possession or control (a "Security Incident"), will provide Customer with information reasonably available to Nomad regarding the Security Incident, and will take commercially reasonable steps to contain and remediate it. Customer is responsible for any notifications to individuals or regulators that are required of Customer under applicable law, and Nomad will reasonably cooperate.
(vi) Export and deletion. During the Subscription Term, Customer may export Customer Data using the export functionality of the Nomad Platform. For thirty (30) days following the expiry or termination of the Subscription Term, and provided all Fees have been paid, Nomad will make the Customer Data available for export in a commonly used electronic format. Thereafter, Nomad will delete or de-identify the Customer Data within ninety (90) days, except to the extent that Nomad is required by applicable law to retain it, that it is retained in routine backups (which will be deleted in the ordinary course), or that it constitutes Derived Data.
(vii) Usage data. Nomad may collect and use information about Authorized Users' use of the Nomad Platform (including log, device, and technical information) to operate, secure, support and improve the Nomad Platform, in accordance with the Privacy Policy.
7. INTELLECTUAL PROPERTY RIGHTS
(i) Customer understands and agrees that the Nomad Platform, the Subscription Services, the Documentation and their entire contents, features, and functionality, including, but not limited to, all information, software, code, algorithms, models, data (other than Customer Data), text, displays, graphics, images, design, presentation, layout, selection, and arrangement, are owned by Nomad, the Nomad Affiliates, their licensors, or other providers of such material and are protected in all forms by intellectual property laws including, without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
(ii) As between the parties, Nomad and the Nomad Affiliates own and retain all worldwide right, title and interest in and to (a) the Nomad Platform and the Subscription Services and all improvements, enhancements or modifications thereto, whether or not developed in connection with Customer's use or at Customer's request, (b) any software, applications, inventions, Derived Data, or other technology developed in connection with the Nomad Platform or the Subscription Services, and (c) all intellectual property rights in or related to any of the foregoing. Nothing in this Agreement transfers any ownership of intellectual property from one party to the other.
(iii) Notwithstanding anything to the contrary, Nomad and the Nomad Affiliates shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Nomad Platform and the Subscription Services, and related systems and technologies, and to derive aggregated, anonymized and de-identified data from the Customer Data (collectively, "Derived Data"), and Nomad and the Nomad Affiliates will be free (during and after the Subscription Term) to use such Derived Data to improve and enhance the Nomad Platform and the Subscription Services and related systems and technologies, to develop new products and services, to generate industry benchmarks and analytics, to train and improve models, and for other development, analysis, statistical, diagnostic and corrective purposes in connection with Nomad's business, provided that Nomad will not disclose Derived Data in a form that identifies Customer or any individual.
(iv) If Customer or any Authorized User provides Nomad with any suggestions, comments, ideas or other feedback relating to the Nomad Platform or the Subscription Services ("Feedback"), Nomad and the Nomad Affiliates may use and exploit such Feedback for any purpose without restriction or any obligation to Customer.
(v) The Nomad name, the Nomad logo, and all related names, logos, product and service names, designs and slogans are trademarks of Nomad or the Nomad Affiliates. Customer must not use such marks without the prior written permission of Nomad. Customer retains all rights in its own names, logos and trademarks.
8. CONDITIONS OF USE
(i) Customer shall, and shall ensure that its Authorized Users, use the Nomad Platform only for lawful purposes, only for Customer's internal business purposes, and in accordance with this Agreement and the Documentation.
(ii) Without limiting the foregoing, Customer shall not, and shall not permit any Authorized User or third party to:
(a) sell, resell, rent, lease, sublicense, distribute, or otherwise make the Nomad Platform or the Subscription Services available to any third party, or use them to provide services to third parties on a service bureau or similar basis;
(b) share Seats or credentials, or permit more than one individual to use a Seat concurrently;
(c) use the Nomad Platform in any manner that violates any applicable federal, provincial, state, local or international law or regulation, or submit any Customer Data that is unlawful, infringing, false or fraudulent;
(d) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
(e) attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Nomad Platform, the server on which the Nomad Platform is stored, or any server, computer, database or user account connected to the Nomad Platform;
(f) copy, modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of any portion of the Nomad Platform, or create derivative works based on the Nomad Platform;
(g) use any robot, spider, scraper, or other automated device, process, or means to access the Nomad Platform or to extract data from it, other than through interfaces expressly made available by Nomad for that purpose;
(h) access the Nomad Platform in order to build a competitive product or service, or copy any features, functions or graphics of the Nomad Platform;
(i) remove, obscure or alter any copyright, trademark or other proprietary rights notices on the Nomad Platform; or
(j) otherwise attempt to interfere with the proper working of the Nomad Platform.
(iii) Nomad may monitor use of the Nomad Platform to ensure compliance with this Agreement and applicable law, and may investigate any suspected breach.
(iv) Integrations. Where Customer connects the Nomad Platform to its own systems or to third-party systems (including telematics, accounting, transportation management, or banking systems) through APIs or other integrations, Customer is responsible for those systems, for the data they exchange with the Nomad Platform, and for any fees charged by their providers.
(v) Third-Party Services. The Nomad Platform may contain links to, or integrations with, websites, applications, content or services operated by third parties, including suppliers, payment networks, financial institutions and other service providers (collectively, "Third-Party Services"). Nomad does not control, endorse, or assume responsibility for any Third-Party Services, and Customer's use of any Third-Party Services is at its own risk and subject to the terms and privacy policies of the applicable third party.
9. CONFIDENTIALITY
(i) "Confidential Information" means all non-public information disclosed by or on behalf of a party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with this Agreement, whether orally, in writing or through the Nomad Platform, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Nomad's Confidential Information includes the Nomad Platform, the Documentation, pricing, and product roadmaps. Customer's Confidential Information includes the Customer Data. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was known to the Receiving Party before disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information; or (d) is rightfully received from a third party without restriction.
(ii) The Receiving Party shall: (a) hold the Disclosing Party's Confidential Information in confidence using at least the same degree of care it uses for its own confidential information, and no less than reasonable care; (b) use it only to exercise its rights and perform its obligations under this Agreement; and (c) not disclose it to any third party other than its and its affiliates' employees, contractors, advisors and service providers who need to know it for the purposes of this Agreement and who are bound by confidentiality obligations no less protective than those in this Section.
(iii) The Receiving Party may disclose Confidential Information to the extent required by applicable law or by order of a court or governmental authority, provided that it gives the Disclosing Party prompt notice (where legally permitted) and reasonable assistance in seeking a protective order or limiting the disclosure.
(iv) The obligations in this Section 9 continue for five (5) years after the expiry or termination of this Agreement, and indefinitely with respect to trade secrets and Personal Information.
10.AVAILABILITY AND SUPPORT
(i) Nomad will use commercially reasonable efforts to make the Nomad Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) scheduled maintenance, of which Nomad will endeavour to give reasonable advance notice through the Nomad Platform; (b) emergency maintenance; and (c) unavailability caused by events beyond Nomad's reasonable control, Third-Party Services, or Customer's or its Authorized Users' acts, omissions, systems or connectivity. Any specific service level commitments and remedies apply only if set out in the Order Form.
(ii) Nomad will provide Customer with technical support for the Subscription Services during Nomad's normal business hours on Business Days, through the support channels made available in the Nomad Platform, and in accordance with any support terms set out in the Order Form or the Documentation. Support does not include training, customization, professional services or the correction of issues caused by Customer's systems, data or misuse, which Nomad may provide at its then-current rates under a separate Order Form.
11. WARRANTIES AND DISCLAIMER
(i) Mutual warranties. Each party represents and warrants that it is duly organized and validly existing, that it has full power and authority to enter into and perform this Agreement, and that this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms.
(ii) Nomad warranties. Nomad warrants that, during the Subscription Term: (a) the Subscription Services will perform substantially in accordance with the Documentation; and (b) Nomad will provide the Subscription Services in a professional and workmanlike manner consistent with generally accepted industry standards. Customer's sole and exclusive remedy, and Nomad's entire liability, for a breach of this Section 11(ii) is for Nomad to use commercially reasonable efforts to correct the non-conformity and, if Nomad is unable to do so within a reasonable period after receiving written notice from Customer, for Customer to terminate the affected Order Form and receive a refund of any Fees prepaid for the period after the effective date of termination. This warranty does not apply to non-conformities caused by Customer Data, Third-Party Services, Customer's systems or integrations, or use of the Nomad Platform other than in accordance with this Agreement and the Documentation.
(iii) Customer warranties. Customer represents and warrants that: (a) it will use the Nomad Platform in compliance with applicable law; (b) it has all rights and consents required to provide the Customer Data as contemplated by this Agreement; and (c) it is not, and none of its owners or principals are, subject to any sanctions or listed on any government list that would prohibit Nomad from doing business with it.
(iv) EXCEPT AS EXPRESSLY SET OUT IN THIS SECTION 11, THE NOMAD PLATFORM, THE SUBSCRIPTION SERVICES, THE DOCUMENTATION AND ANY OTHER SERVICES OR ITEMS PROVIDED BY NOMAD ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NOMAD AND THE NOMAD AFFILIATES DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NOMAD DOES NOT WARRANT THAT THE NOMAD PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY INFORMATION, REPORT, ANALYTIC, RECOMMENDATION OR OUTPUT GENERATED BY THE NOMAD PLATFORM (INCLUDING ANY OUTPUT OF AUTOMATED OR ARTIFICIAL-INTELLIGENCE FEATURES) WILL BE ACCURATE, COMPLETE OR SUITABLE FOR ANY DECISION. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS BUSINESS, OPERATIONAL, CREDIT AND FINANCIAL DECISIONS, WHETHER OR NOT MADE IN RELIANCE ON THE NOMAD PLATFORM. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12. LIMITATION ON LIABILITY
(i) EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, SUPPLIERS, OR SUCCESSORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL THEORY (INCLUDING CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA, EVEN IF THE PARTY WAS ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES.
(ii) EXCEPT WHERE SUCH LIMITATIONS ARE PROHIBITED BY LAW, THE TOTAL AGGREGATE LIABILITY OF NOMAD AND THE NOMAD AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, SUPPLIERS, AND SUCCESSORS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE NOMAD PLATFORM OR THE SUBSCRIPTION SERVICES, SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO NOMAD UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(iii) Exceptions. The exclusions and limitations in Sections 12(i) and 12(ii) do not apply to: (a) Customer's obligation to pay Fees; (b) a party's indemnification obligations under Section 13; (c) a party's breach of Section 9 (Confidentiality) or, in the case of Customer, Section 8 (Conditions of Use); or (d) a party's gross negligence, fraud or wilful misconduct; provided that, in the case of clause (c) as it applies to Nomad, Nomad's total aggregate liability shall not exceed two (2) times the amount described in Section 12(ii).
(iv) Third-Party Services and separate programs. Without limiting the foregoing, neither Nomad nor any Nomad Affiliate is liable under this Agreement for any Third-Party Services, or for any product, service or program provided by a Nomad Affiliate to Customer under a separate agreement, which is governed exclusively by that agreement.
13. INDEMNIFICATION
(i) By Nomad. Nomad shall defend Customer against any claim, demand, suit or proceeding brought by a third party alleging that the Nomad Platform, as provided by Nomad and used by Customer in accordance with this Agreement, infringes or misappropriates that third party's Canadian or United States patent, copyright, trademark or trade secret (an "Infringement Claim"), and shall pay any damages finally awarded against Customer, or agreed by Nomad in settlement, in respect of the Infringement Claim. If the Nomad Platform becomes, or Nomad reasonably believes it may become, the subject of an Infringement Claim, Nomad may, at its option and expense: (a) procure the right for Customer to continue using it; (b) modify or replace it so that it is non-infringing without materially reducing functionality; or (c) if neither of the foregoing is commercially reasonable, terminate the affected Order Form and refund any Fees prepaid for the period after the effective date of termination. Nomad has no obligation under this Section for any claim arising from Customer Data, Third-Party Services, Customer's systems or integrations, modifications not made by Nomad, combination of the Nomad Platform with items not provided by Nomad, use in breach of this Agreement, or continued use after Nomad has provided a non-infringing alternative. This Section states Nomad's sole liability, and Customer's exclusive remedy, for any Infringement Claim.
(ii) By Customer. To the maximum extent permitted by applicable law, Customer shall defend, indemnify, and hold harmless Nomad and the Nomad Affiliates, and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable legal fees) arising out of or relating to: (a) the Customer Data, including any claim that the Customer Data, or Nomad's processing of it in accordance with this Agreement, infringes or violates the rights of any person or applicable law; (b) Customer's or any Authorized User's breach of this Agreement or use of the Nomad Platform in violation of applicable law; (c) Customer's business, including any claim by Customer's customers, drivers, carriers, account debtors, or other third parties relating to Customer's operations or any decision made by Customer in reliance on the Nomad Platform; or (d) any Third-Party Services or Customer systems connected to the Nomad Platform by or for Customer.
(iii) Procedure. The indemnified party shall give the indemnifying party prompt written notice of the claim (provided that delay only relieves the indemnifying party to the extent it is prejudiced), sole control of the defence and settlement of the claim (provided that no settlement may impose any liability or obligation on the indemnified party without its consent, not to be unreasonably withheld), and reasonable cooperation at the indemnifying party's expense.
14. SUSPENSION AND TERMINATION
(i) Suspension. Nomad may suspend Customer's or any Authorized User's access to all or part of the Nomad Platform, on notice to Customer (which may be given through the Nomad Platform), if: (a) any Fees remain unpaid ten (10) days after Nomad gives notice of non-payment; (b) Customer or an Authorized User breaches Section 8 or Nomad reasonably believes that Customer's use poses a security risk to the Nomad Platform or any other person; (c) Nomad reasonably believes that a user account has been compromised or is being used fraudulently; or (d) Nomad is required to do so by applicable law or a governmental authority. Nomad will limit any suspension to the extent reasonably necessary and will restore access promptly once the cause has been resolved. Fees continue to accrue during any suspension caused by Customer.
(ii) Termination for cause. Either party may terminate this Agreement or any Order Form by written notice if the other party: (a) materially breaches this Agreement and fails to cure the breach within thirty (30) days after receiving written notice describing it in reasonable detail (or within ten (10) days in the case of non-payment); (b) becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed over a substantial part of its assets, or becomes the subject of any bankruptcy, insolvency or similar proceeding; or (c) ceases to carry on business in the ordinary course.
(iii) Termination for convenience. Customer may not terminate an Order Form for convenience during a Subscription Term; Customer's right to end the subscription is by non-renewal under Section 5(ii). If Customer nonetheless ceases use or purports to terminate before the end of the Subscription Term (other than under Section 1(iv), Section 11(ii), Section 13(i) or Section 14(ii)), all remaining instalments of Fees for the then-current Subscription Term become immediately due and payable as liquidated damages and not as a penalty, the parties agreeing that this is a genuine pre-estimate of Nomad's loss. Nomad may terminate this Agreement or any Order Form for convenience on at least sixty (60) days' written notice, in which case Nomad will refund any Fees prepaid for the period after the effective date of termination and Customer will be released from any further instalments.
(iv) Effect of termination. Upon expiry or termination of this Agreement or an Order Form for any reason: (a) all rights and licences granted to Customer under it terminate and Customer and its Authorized Users shall cease using the affected Subscription Services; (b) Customer shall pay all Fees and other amounts accrued or payable up to the effective date of termination, and any amounts that become payable under Section 14(iii); (c) Customer may export Customer Data in accordance with Section 6(vi); and (d) each party shall, on request, return or destroy the other party's Confidential Information, subject to Section 6(vi) and applicable law.
(v) Survival. Sections 4 (to the extent of accrued or payable Fees), 6(vi), 7, 9, 11(iv), 12, 13, 14(iv), 14(v), 15, 16 and 17, and any other provisions of this Agreement that by their nature are intended to survive, will survive the expiry or termination of this Agreement.
15. NOTICES AND ELECTRONIC COMMUNICATIONS
(i) Notices under this Agreement must be in writing. Notices to Customer may be given through the Nomad Platform, or by email to the notice contact set out in the Order Form (or as updated by Customer in the Nomad Platform), and are deemed received on the Business Day sent (or the next Business Day if sent after 5:00 p.m. Toronto time or on a non-Business Day). Notices to Nomad must be sent by email to privacy@nomad.io (with a copy by registered mail or courier to Nomad Inc., 149 East Liberty Street, Suite 606, Toronto, Ontario M6K 3K4, Attention: Legal, for notices of breach, termination or claims) and are deemed received on the Business Day following confirmed transmission or delivery.
(ii) Customer consents to receive all agreements, notices, disclosures, invoices, receipts and other communications from Nomad and the Nomad Affiliates electronically, including through the Nomad Platform, by email, by text message or by mobile push notification, and agrees that electronic communications satisfy any legal requirement that such communications be in writing. Order Forms and other documents may be executed and delivered electronically, and electronic signatures and click-through acceptances are binding.
16. GOVERNING LAW AND JURISDICTION
(i) This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles. The *United Nations Convention on Contracts for the International Sale of Goods* does not apply.
(ii) Each party irrevocably consents to the exclusive jurisdiction of the courts of the Province of Ontario for all matters arising out of or in connection with this Agreement, and waives any objection to the venue of any such proceeding in such courts. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information, and Nomad may bring proceedings to collect unpaid Fees in any jurisdiction in which Customer has assets.
17. GENERAL
(i) Entire Agreement. This Agreement (including each Order Form, the Privacy Policy and any Additional Terms) constitutes the entire agreement between Customer and Nomad with respect to its subject matter and supersedes all prior or contemporaneous proposals, quotations, understandings and agreements, whether written or oral, with respect to that subject matter. For certainty, this Agreement does not govern any product, service or program provided by a Nomad Affiliate to Customer under a separate written agreement.
(ii) Amendment and waiver. Except as provided in Section 1(iv) and Section 4(viii), this Agreement and any Order Form may be amended only by a written instrument signed or electronically accepted by both parties. No failure or delay by either party in exercising any right or power under this Agreement shall operate as a waiver thereof, and no waiver shall be effective unless in writing and signed by the waiving party.
(iii) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and the affected provision shall be modified to the minimum extent necessary to make it enforceable.
(iv) Assignment. Customer may not assign or transfer this Agreement or any Order Form, or any of its rights or obligations under them, without the prior written consent of Nomad, not to be unreasonably withheld, except to a successor in connection with a merger, acquisition or sale of all or substantially all of its assets that assumes this Agreement in writing and is not a competitor of Nomad. Nomad may assign or transfer this Agreement, or any of its rights or obligations under it, to any Nomad Affiliate or to any successor to all or substantially all of its business or assets, on notice to Customer. Any purported assignment in violation of this Section is void.
(v) Independent contractors; third-party beneficiaries. The parties are independent contractors, and nothing in this Agreement creates a partnership, joint venture, agency, fiduciary or employment relationship between them. Each Nomad Affiliate is an intended third-party beneficiary of this Agreement and is entitled to enforce the provisions of this Agreement that are expressed to be for its benefit. Except as expressly provided in this Section, this Agreement does not confer any rights or remedies on any person other than the parties.
(vi) Force Majeure. Neither party shall be liable for any delay or failure in performance (other than payment obligations) when and to the extent such failure or delay is caused by or results from events beyond its reasonable control, including acts of God, flood, fire, earthquake, epidemic, war, terrorism, civil unrest, labour stoppages, strikes, government order or law, failures of telecommunications, internet, banking or payment systems, cyberattacks, or failures of Third-Party Services, provided that the affected party gives prompt notice and uses commercially reasonable efforts to mitigate.
(vii) Publicity. Nomad may identify Customer as a customer of Nomad, including by using Customer's name and logo on Nomad's website and in marketing materials, in accordance with any branding guidelines Customer provides, unless Customer notifies Nomad in writing that it does not consent. Any press release or case study will require Customer's prior written approval.
(viii) Language. The parties have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce contrat et tous les documents qui s'y rapportent soient rédigés en anglais.
(ix) Headings; interpretation. Section headings are for convenience of reference only and do not affect the interpretation of this Agreement. The words "including" and "includes" mean "including without limitation". No rule of strict construction applies against the party that drafted this Agreement.
(x) Counterparts. An Order Form may be executed in counterparts and delivered electronically, each of which is deemed an original and all of which together constitute one instrument.
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS REVIEWED THIS AGREEMENT, INCLUDING EACH ORDER FORM, THE PRIVACY POLICY AND ANY ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN, THAT IT HAS HAD AN OPPORTUNITY TO SEEK THE ADVICE OF LEGAL AND OTHER COUNSEL IN RESPECT OF THIS AGREEMENT, AND THAT IT HAS AVAILED ITSELF OF SUCH OPPORTUNITY AND OBTAINED WHATEVER ADVICE NECESSARY TO ENSURE THAT IT FULLY UNDERSTANDS AND APPRECIATES ITS RIGHTS AND OBLIGATIONS HEREUNDER.
