NOMAD GO, INC.

MASTER SOFTWARE AND ANALYTICS SERVICES AGREEMENT

This Master Software and Analytics Services Agreement (“Agreement”) is entered into on the date the customer order form is signed (“Effective Date”) by and between Nomad Go, Inc., a Delaware corporation with offices at 6513 132nd Avenue NE, #143, Kirkland, Washington 98033 (“Nomad Go”), and the party executing the order form (“Customer”). Customer and Nomad Go are each referred to as a “Party” and, collectively, as the “Parties.”

Recitals

WHEREAS, Nomad Go provides its customers with various business solutions, each enabled by the NOMAD GO™ Sensor App, NOMAD GO Administrator App, and NOMAD GO Analytics, which comprise proprietary software applications, cloud-based software solutions, analytics services, devices and equipment supplied by Nomad Go, and other related services (collectively, the “Services”), which allow each customer to collect, measure, analyze, and/or act on facts, details, statistics, and other information and data about events, activities, movements, and/or transactions related to the customer’s business in order to assist the customer to better understand and improve its business insights, marketing, sales, services, operations, and more.

WHEREAS, Customer wishes to access and use the Services pursuant to the terms of this Agreement.

Agreement

NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the Parties, each intending to be legally bound hereby, do promise and agree as follow:

  1. SERVICES

    1. Provision of the Services; Order Forms. Nomad Go will provide to Customer the Services, as described in one or more Order Forms, during the set period of time described in each applicable Order Form (the “Service Period”). Order Form No. 1 is attached as Exhibit A, and Each Order Form will be substantially in the form thereof. Each Order Form will be mutually agreed upon, executed by both Parties, sequentially numbered, and attached to this Agreement. Once executed by both Parties, each Order Form will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Order Forms. If there is a conflict between the terms of this Agreement and the terms set forth in an Order Form, the terms of this Agreement will control, unless the Order Form expressly states that a specific provision of this Agreement is superseded by a specific provision of the Order Form.

    2. Access to and Use of the Services. Subject to the terms and conditions set forth in this Agreement and the applicable Order Form, Customer is granted access to and use of the Services, on a non-exclusive basis, for Customer’s own, internal business purposes for the Service Period set forth in each applicable Order Form.

    3. Technical Support; Updates. During the Service Period set forth in each applicable Order Form, Nomad Go will provide Customer with a telephone number and email address for technical support needed in order for Customer to access and use the Services. On-site technical support also may be provided by Nomad Go, subject to the Parties’ mutual consent. Nomad Go will provide Customer with access to and use of any modifications, updates, and/or upgrades to the Services that Nomad Go makes available, at no additional charge, to other customers (collectively, “Updates”). Updates that are made available during the Service Period set forth in any applicable Order Form will be deemed part of the Services to be provided to Customer by Nomad Go pursuant to that Order Form.

    4. Assignment of Credentials; Authorized Users. Customer shall ensure that only Authorized Users receive Credentials necessary to access the Services. Customer shall provide Credentials to individual, named persons. These Credentials shall not be shared between Customer’s employees, agents, Independent Contractors, or other persons. Customer shall ensure all such Credentials are kept confidential. Customer is solely responsible for all activities that occur using Credentials assigned to Customer. Customer agrees to notify Nomad Go promptly of any actual or suspected unauthorized use of Credentials. Nomad Go reserves the right to terminate any Credentials that it reasonably determines may have been used by an unauthorized third party.

    5. Reassignment of Credentials. Customer may reassign Credentials to new or different Authorized Users as necessary during the applicable Service Period to handle personnel changes as they occur, but Customer shall not reassign Credentials to enable sharing of a single subscription among multiple people.

    6. Credentials for Affiliates and Independent Contractors. Customer may assign Credentials to Customer’s Affiliates, agents, and Independent Contractors; provided, that Customer shall ensure that any Affiliate, agent, or Independent Contractor to whom the Customer assigns Credentials complies with the terms, conditions, limitations, and restrictions set forth in this Agreement and the applicable Order Form, and Customer shall remain jointly and severally liable to Nomad Go for those Affiliate’s, agent’s, and Independent Contractor’s acts and omissions.

    7. No Reverse Engineering. Customer shall not attempt, nor shall it allow any third party to attempt, to reverse engineer the Services or any element thereof, including, but not limited to, copying, translating, decompiling, disassembling, or reverse engineering the Services or any element thereof or any clean-room development of any source code, application programming interfaces, underlying ideas or principals, algorithms, or file formats. Customer shall not attempt, nor shall it allow any third party to attempt, to use or access the Services or any element thereof in order to design or develop similar products or services.

    8. No Resale or Sublicense. Customer shall not distribute, redistribute, sell, resell, license, sublicense, rent, lease, assign, transfer, or otherwise transmit the Services or any element thereof to any third party, directly or indirectly, without the express written consent of Nomad Go, or otherwise use the Services or any element thereof in a timesharing, multiplexed, hosted, service provider, service bureau, or similar manner.

    9. Product and Service Identification. Customer shall not remove from the Service or any element thereof any product or service identification, copyright or other proprietary rights notice, confidential data notice, trademark, logo, service mark, trade name, or trade dress.

    10. Modifications and Derivative Works. Customer shall not, nor shall it allow any third party to, modify, adapt, or otherwise make any derivative work based on the Services or any element thereof or otherwise incorporate any of Nomad Go’s products or services into any other software or services, without regard to whether such software or services would compete with Nomad Go’s products or services or enhance Customer’s use of Nomad Go’s products and services, without the express written consent of Nomad Go.

    11. Benchmarks. Customer shall not benchmark or discuss or disclose any performance information related to the Services or any element thereof, without the express written consent of Nomad Go.

    12. No Access or Security Circumvention. Customer shall not, nor shall it allow any third party to, utilize any hardware or software, or combination of hardware and software, to circumvent Credentials or in any other manner attempt to gain unauthorized access to or use of the Services or any of its related systems or networks.

    13. Other Prohibited Conduct. Customer shall not itself, or through any Affiliate, agent, Independent Contractor, or other third party, (i) use the Services or any element thereof to send or store infringing, threatening, harassing, defamatory, libelous, obscene, pornographic, indecent, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights, (ii) use the Services or any element thereof to send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; or (iii) interfere with or disrupt, or attempt to interfere with or disrupt, the integrity or performance of the Services or any of its related systems or networks.

    14. Free and Open Source Software. The Services may contain elements that are licensed from third-parties under terms and conditions of a free or open source software license. To the extent Customer modifies, combines, redistributes, or contributes to such elements, whether authorized or unauthorized by Nomad Go, Customer acknowledges that the terms of the free or open source license may apply in place of certain terms of this Agreement, including, for example, Sections 1(g) (No Reverse Engineering), 1(h) (No Resale or Sublicense), and 1(j) (Modifications and Derivative Works).

  2. CUSTOMER COOPERATION

Customer agrees to provide Nomad Go with the cooperation, materials, information, data, access, and support that is reasonably necessary in order to allow Nomad Go to successfully provide the Services to Customer. Customer understands and agrees that successful implementation, deployment, and provision of the Services is contingent upon Customer providing such cooperation, materials, information, data, access, and support. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness, and consistency of any and all materials, information, and data supplied by Customer, including being responsible for any fees, expenses, or other costs incurred or accrued during any resulting delay, or delays. If Customer fails to provide the cooperation, materials, information, data, access, or support that is reasonably necessary in order to allow Nomad Go to successfully provide the Services, Nomad Go is discharged from any obligations affected by Customer’s delay until Customer provides the necessary assistance.

Customer, at no cost to Nomad Go, agrees to:

  • Allow Nomad Go to control/operate all equipment necessary to perform the services.

  • Provide access to all areas of the facility as necessary to complete the Work.

  • Provide suitable electrical service as required by Nomad Go.

  • Take immediate action in the event of a system failure to reasonably and safely protect life and property

  • Designate a contact person with authority to make decisions for Customer and provide sufficient information for Nomad Go to contact such person in an emergency. If such person cannot be reached, any request for Service or any decision made from a person at

Customer’s premises will be deemed authorized by Customer, and Nomad Go will, at its discretion, act accordingly.

 

  1. FEES

    1. Compensation. In consideration for Nomad Go’s agreement to provide to Customer the Services described in an applicable Order Form, Customer will pay the fee, or fees, mutually agreed upon by the Parties and set forth in such Order Form.

    2. Payment Terms. Unless otherwise specified in an applicable Order Form, any up-front or one-time payments or charges set forth in an applicable Order Form are due at the time of execution of the Order Form by the Parties. Unless otherwise specified in an applicable Order Form, any recurring or periodic payments or charges set forth in an applicable Order Form are due within 30 days after Customer’s receipt of an invoice from Nomad Go issued no more than once per calendar month. Except as otherwise set forth in Section 7(d) below, all fees are non-refundable. All payments will be invoiced and made in U.S. dollars, unless otherwise set forth in the applicable Order Form.

    3. Taxes. Nomad Go will invoice Customer for, and Customer shall pay to Nomad Go, any taxes, fees, assessments, or surcharges that any governmental tax authority requires Nomad Go to collect and remit as a result of providing the Services to Customer pursuant to this Agreement, other than taxes and assessments on Nomad Go’s net income, gross receipts, or personal property or based on Nomad Go’s payment of wages, salaries, or other remuneration to its personnel.

    4. Suspension for Non-Payment. If Customer’s account is 30 days or more overdue, in addition to any other rights or remedies available to Nomad Go, including, but not limited to, termination of this Agreement, Nomad Go shall be entitled to suspend Customer’s access to and use of the Services without any liability to Customer, until such amounts are paid in full.

    5. Device and Equipment Loss or Damage. Under certain circumstances, Customer may wish to rent, not purchase, Devices or Equipment from Nomad Go, and Nomad Go may agree to lend such Devices and Equipment to Customer. In that event, if Customer does not return the loaned Devices or Equipment to Nomad Go in good working condition, routine wear and tear excepted, Nomad Go shall be entitled to invoice Customer, and Customer shall pay Nomad Go, the then-current cost to replace such lost or damaged Devices and Equipment.

  2. TERM; TERMINATION

    1. Term. This Agreement shall commence on the Effective Date and, unless terminated by the Parties pursuant to their mutual agreement or the terms and conditions set forth herein, shall continue until the day that is 90 days after the last day on which the Service Period, or Service Periods, set forth in all Order Forms entered into by the Parties have expired.

    2. Termination. Either Party may terminate this Agreement or an Order Form, as the case may be, if the other Party is in material breach thereof and fails to cure such breach within 30 days after receiving notice of the breach from the non-defaulting Party. The Parties also shall be entitled to terminate an Order Form pursuant to any mutually agreed upon termination provisions set forth therein. Further, either Party may terminate this Agreement, in its entirety, (i) for convenience during any period in which all Order Forms entered into by the Parties have expired; or (ii) if the other Party declares bankruptcy, insolvency, reorganization, liquidation, or receivership or has bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings instigated against it and such proceedings are not dismissed within 90 days thereafter.

    3. Transition Period. Notwithstanding anything to the contrary set forth in this Agreement or an applicable Order Form, upon expiration or termination of this Agreement or any Order Form, at Customer’s request, for up to 90 days after expiration or termination thereof (the “Transition Period”), Nomad Go shall extend Customer’s access to and use of the Services in order to allow Customer to extract, for its own internal use, a copy of any Event Data (as defined in Section 7(a) below), including any available Results (as defined in Section 7(a) below). The duties and obligations of each Party that, by their nature, would reasonably be expected to apply during the Transition Period will continue to apply.

    4. Effects of Termination. Upon expiration or earlier termination of this Agreement, (i) all licenses and permissions granted pursuant to this Agreement shall immediately terminate; (ii) Customer shall promptly discontinue accessing and/or using the Services, except as otherwise set forth in Section 7(c) above; (iii) except as otherwise set forth in this Section 7(d), each Party shall return to the other Party (or, if directed by the other Party, destroy) all Confidential Information belonging to the other Party that is in such Party’s possession or control; (iv) Customer shall promptly return to Nomad Go any Devices and Equipment rented from Nomad Go (not purchased); and (v) within 30 days after the effective date of such termination, Customer shall pay to Nomad Go any amounts due and payable as of the effective date of termination, including, for the avoidance of doubt, any amounts owed, pursuant to Section 3(e) above, for lost or damaged Devices and Equipment loaned by Nomad Go to Customer. Further, if Customer terminates this Agreement or an Order Form for material breach pursuant to Section 4(b) above, Nomad Go will refund to Customer all fees prepaid for Services not yet performed by Nomad Go pursuant to this Agreement or the applicable Order Form, as the case may be, within 30 days after the effective date of termination of this Agreement or the applicable Order Form. Notwithstanding anything to the contrary set forth in this Section 4(d), Nomad Go will destroy Event Data and Results within 30 days after the later of the effective date of termination of this Agreement or expiration of the Transition Period. Customer acknowledges that, except as extracted by Customer prior to or during the Transition Period, Customer will not have access to Event Data or Results following the day that is 30 days after the later of the effective date of termination of this Agreement or expiration of the Transition Period. All provisions of this Agreement that, by their nature, would reasonably be expected to survive termination of this Agreement shall so survive, including Sections 1(d), 1(g)-(m), 3, 4(c)-(d), 5, 6, 7(b)-(c), and 8-13.

  3. CONFIDENTIALITY

    1. Confidential Information. As used in this Agreement, the term “Confidential Information” means any non-public information, technology, materials, and know-how of either Party or its Affiliates disclosed or acquired by the other Party pursuant to or in connection with this Agreement that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential, which may include, without limitation, computer programs, software code, documentation, technical designs, manufacturing and application information, customer information, training information, financial information, personnel information, new product developments, advertising, business and marketing plans, Event Data, and all elements of the Services that are not generally available to or known by the public. Information related to the pricing for the Services and the detailed terms of this Agreement shall be deemed Nomad Go’s Confidential Information. Confidential Information shall not include information that a receiving Party can demonstrate by tangible evidence (i) was known to the receiving Party before receipt thereof from the disclosing Party, (ii) is disclosed to the receiving Party by a third party who has a right to make such disclosure without any obligation of confidentiality to the disclosing Party, (iii) is or becomes generally known to the public or in the trade without violation of either this Agreement by the receiving Party or any confidentiality obligation owed to the disclosing Party by any third party, (iv) is furnished by the disclosing Party to a third party without restriction on subsequent disclosure or (v) is independently developed by the receiving Party or its personnel without use of or reference to the Confidential Information.

    2. Non-Use and Non-Disclosure. The receiving Party shall (i) not disclose Confidential Information to third parties (except to its directors, employees, agents, suppliers, and subcontractors to the extent such disclosure is necessary in order for the receiving Party to perform its duties and obligations pursuant to this Agreement and who have agreed to restrictions similar to those set forth in this Section 5 or except as may be required by law), (ii) not use Confidential Information except for the purposes contemplated by this Agreement; and (iii) use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances.

    3. No Additional Rights. Each Party acknowledges that it will not obtain any right, title, or interest in or to the Confidential Information of the other Party as a result of disclosure pursuant to this Agreement, except for the licenses and permissions expressly set forth herein.

    4. Injunctive Relief. Each Party acknowledges that the Confidential Information of the other Party is unique and valuable and that the disclosing Party will have no adequate remedy at law if the receiving Party does not comply with its obligations pursuant to this Section 5. Therefore, the disclosing Party shall have the right, in addition to any other rights or remedies it may have pursuant to applicable law, to seek in any court of competent jurisdiction temporary or preliminary injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any obligations of a receiving Party pursuant to this Section 5, without the obligation to post a bond or other security.

  4. OWNERSHIP

    1. Intellectual Property in the Services. As between Nomad Go and Customer, Nomad Go owns all right, title, and interest in and to the Services and all elements thereof, including any and all authorized and unauthorized modifications, adaptations, or improvements thereto and derivative works based thereon and any and all intellectual property therein and related thereto. All rights not expressly granted herein are retained by Nomad Go.

    2. Event Data and Results. Nomad Go agrees that, as between it and Customer, Event Data and Results are the exclusive property of Customer.

    3. Devices and Equipment. Devices and Equipment purchased from Nomad Go by Customer pursuant to the terms set forth in the applicable Order Form, upon Nomad Go’s receipt of the applicable purchase price, will be owned by Customer. If Nomad Go agrees to loan Devices or Equipment to Customer, its Affiliates, its agents, or its Independent Contractors pursuant to the terms of an applicable Order Form or otherwise, such Devices and Equipment are loaned, not sold.

    4. Feedback. Customer is not obligated to provide Nomad Go with any feedback on the Services. However, if Customer, its Affiliates, agents, or Independent Contractors provide Nomad Go with any comments, suggestions, ideas, or feedback regarding the Services, including any elements thereof (collectively, “Feedback”), Customer hereby grants Nomad Go a perpetual, irrevocable, non-exclusive, transferable, fully sublicensable, royalty-free, fully paid, worldwide right to use that Feedback for any lawful purpose. Nothing in this Agreement, an Order Form, or in the Parties’ dealings arising out of or related thereto will restrict Nomad Go’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to Customer or any third party, or provide Customer or any third party with any rights in or to any of Nomad Go’s products or services. Customer hereby represents and warrant to Nomad Go that any Feedback is original with Customer, its Affiliates, its agents, or its Independent Contractors, as the case may be, and that each has the right to provide such Feedback to Nomad Go. Customer acknowledges and agrees that there will be no recourse against Nomad Go for any alleged or actual infringement of any intellectual property rights or misappropriation of any intellectual property in Feedback.

  5. EVENT DATA

    1. License to Event Data. Customer hereby grants Nomad Go, its Affiliates, and their respective suppliers a non-exclusive, non-transferable (except as otherwise provided in Section 12(c) below), royalty-free license, during the Service Period set forth in each applicable Order Form, to collect, record, measure, analyze, process, use, and reproduce the facts, details, statistics, and other information and data about events, activities, movements, and transactions collected as part of providing the Services to Customer (collectively, “Event Data”) for the sole purpose of providing the Services to Customer, including, for the avoidance of doubt, producing and displaying to Customer and its Authorized Users those reports, analyses, analytics, and results derived by the Services (the “Results”). During the Service Period set forth in each applicable Order Form, Nomad Go also is permitted to use Event Data to correct, calibrate, and improve the Services for Customer and others.

    2. Customer Event Data Responsibilities. Customer, as a data controller, is responsible as follows for all Event Data made available to Nomad Go in connection with the Services being provided to Customer at its facilities and locations:

      1. Notice and Consent; Compliance with Applicable Laws. Customer shall comply with all applicable privacy laws as they related to providing notice and/or obtaining consent from individuals whose likenesses, movements, and/or activities may be captured, recorded, and processed in connection with the Services being provided to Customer at its facilities and locations (each, a “Data Subject”). Customer shall be solely responsible for obtaining any and all consents, permissions, licenses, waivers, and releases from Data Subjects required by law or otherwise necessary in order to allow Nomad Go to provide the Services. In the case of Data Subjects who are members of the public, Customer will ensure that each receives adequate and conspicuous notice before entering Customer facilities or locations where the Services are being provided.

      2. Respect for Reasonable Expectation of Privacy. Customer shall ensure Data Subjects’ reasonable expectations of privacy in non-public areas, including, but not limited to, restrooms, changing areas, and other places where a person would reasonably expect to not have image capture or recording.

      3. No Sharing or Sale of Event Data or Results. Customer shall only use the Services, the Event Data, and Results for legitimate business purposes associated with improving its products and services, increasing levels of customer satisfaction, improving its operations, gaining business insights, or otherwise improving its business. Event Data and Results, in any form, will not be shared, given, or sold to a third party by Customer, under any circumstances other than in connection with an authorized assignment pursuant to and in accordance with Section 12(c) below.

    3. Nomad Go Event Data Responsibilities. Nomad Go, as a data processor processing data on Customer’s behalf, is responsible as follows for processing Event Data made available to Nomad Go in connection with providing the Services to Customer:

      1. Event Data Security. Nomad Go shall ensure that Event Data processed by it as part of providing the Services are secured using standard encryption technologies, both at rest and in transit, and monitor the Services and the systems and networks related to the Services for security breaches. Even the best security is subject to attack and potential breach, so Nomad Go will notify Customer within 72 hours of any verified data breach, unless Nomad Go is legally prohibited from doing so or is expressly directed otherwise by law enforcement.

      2. Event Data Processing; Compliance with Applicable Laws. Nomad Go shall ensure that Event Data are processed in accordance with the license granted in Section 7(a) above and all privacy laws applicable to the processing of Event Data on Customer’s behalf pursuant to this Agreement.

      3. Event Data Retention. Nomad Go, at its option, may elect to anonymize Event Data in a manner that, although it may still be able to provide useful information (e.g., for correcting, calibrating, and improving the Services for Customer and others), can no longer be used to uniquely identify Customer or any Data Subject. In any event, after termination of this Agreement or expiration of the Transition Period, whichever is later, only anonymized former Event Data will be retained by Nomad Go. For the avoidance of doubt, former Event Data that has been anonymized in the manner described in this Section 7(c)(iii) is not Event Data as that term is used in this Agreement.

      4. No Sharing or Sale of Event Data or Results. Nomad Go shall only use the Event Data and Results for legitimate business purposes consistent with the license granted in Section 7(a) above. Event Data and Results, in any form, including, for this purpose, former Event Data that has been anonymized, will not be shared, given, or sold to a third party by Nomad Go, under any circumstances other than in connection with an authorized assignment pursuant to and in accordance with Section 12(c) below.

  6. REPRESENTATIONS AND WARRANTIES

    1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (i) such Party has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights under this Agreement; and (ii) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its term.

    2. Nomad Go Representations and Warranties. Nomad Go represents and warrants that (i) it will perform the Services in a professional and workmanlike manner; (ii) the Services, when accessed and used by Customer in the manner contemplated by this Agreement, will conform in all material respects to the technical and design specifications set forth in the applicable Order Form; and (iii) access to and use of the Services by Customer in the manner contemplated by this Agreement will not cause Customer to infringe, directly or indirectly, the intellectual property rights of any third party.

    3. Disclaimer. Except for the express representations and warranties stated in this Section 8, neither Party makes any additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), statutory, or otherwise as to any matter whatsoever. Each Party expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement. Nomad Go makes no performance warranties of any kind to Customer concerning the Services, the Event Data, or the Results. If Customer identifies a non-conformity that does not comply with the limited performance warranties set forth in Section 8(b) above, it will notify Nomad Go, and its sole obligation, and Customer’s sole remedy, will be for Nomad Go to use commercially reasonable efforts to correct the non-conformity.

  7. LIMITATIONS OF LIABILITY

    1. Disclaimer of Consequential Damages. Notwithstanding anything to the contrary contained in this Agreement, except with respect to each Party’s confidentiality obligations in Section 5 above and indemnification obligations in Section 10 below, neither Party will, under any circumstances, be liable to the other Party for consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including, but not limited to, lost profits, loss due to inability to obtain data, loss of business, or loss of anticipated profits, revenue, data, or use, even if apprised of the likelihood of such damages occurring.

    2. Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement, except with respect to a Party’s gross negligence or intentional misconduct and each Party’s indemnification obligations in Section 10 below, under no circumstances will either Party’s total liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid and/or payable by Customer to Nomad Go pursuant to this Agreement during the period preceding the date on which such liability first arises.

    3. Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Nomad Go to Customer and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 9 will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.

  8. INSURANCE

Nomad Go shall provide the following insurance coverages during the term of this agreement:

  • Commercial General Liability                                   $1M/occurrence & $2M aggregate

  • Automobile Liability                                                       $1M combined single limit

  • Worker’s Comp & Employer’s Liability                Statutory Limits

  • Excess Liability                                                                    $5M/occurrence & $5M aggregate

  • Professional Liability                                                                        $1M per claim

  • Employer’s Liability                                                         $500k each accident policy limit

  1. INDEMNIFICATION

Each Party will indemnify, defend, and hold the other Party, its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns (each, an “Indemnified Party”) harmless from and against any losses, damages, liabilities, costs, fines, penalties, and expenses, including reasonable attorneys’ fees and other legal expenses actually incurred, related to any third-party claims (“Claims”) to the extent such Claims arise, directly or indirectly, from or in connection with such Party’s (the “Indemnifying Party”) breach of its representations or warranties hereunder, violation of applicable law, gross negligence, or intentional misconduct. As a condition to being indemnified under this Section 10, an Indemnified Party will promptly notify in writing the Indemnifying Party of a Claim; allow the Indemnifying Party 15 days to respond to such written notice and maintain sole control of the defense and settlement of such suit, action, or proceeding; and provide the Indemnifying Party with reasonable assistance, at the Indemnified Party’s expense, in connection with the Indemnifying Party’s defense and settlement of such action, suit, or proceeding (provided any final settlement or compromise is not made without prior written consent of both Parties hereunder, such consent not to be unreasonably withheld, delayed, or conditioned). The Indemnifying Party agrees to pay any final award of damages assessed against the Indemnified Parties resulting from such Claim, including any awarded costs and attorneys’ fees, or any settlement amount agreed to by the Indemnifying Party in writing.

  1. TRADE CONTROL LAWS

Customer shall comply with all export control and economic sanctions laws and regulations (collectively, “Trade Control Laws”) applicable to Customer in the performance of this Agreement. Nomad Go shall not be required under this Agreement to be directly or indirectly involved in the provision of any goods, software, services, or technical data that may be prohibited by applicable Trade Control Laws. Likewise, Customer will not provide to Nomad Go any goods, software, services, or technical data that may be subject to any Trade Control Laws. Customer represents and covenants that it (a) is not identified on, or owned or Controlled by, or acting on behalf of, any individuals or entities identified on, any applicable government restricted party lists (“Restricted Parties”); (b) is not located in, organized under the laws of, or ordinarily resident in any country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country (“Restricted Countries”); or (c) will not, directly or indirectly, export, re-export, or otherwise transfer any goods, software, services, or technology data covered by this Agreement to or for use in or from Restricted Countries or Restricted Parties. Nomad Go reserves the right to cancel or suspend, temporarily or permanently, Customer’s access to and use of the Services, if Customer fails to comply with any of the limitations or restrictions set forth in this Section 11.

  1. MISCELLANEOUS

    1. Relationship of the Parties. It is the express intention of the Parties that Nomad Go provide the Services as an independent contractor. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties hereto. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

    2. Entire Agreement; Amendment. This Agreement, together with each Order Form, and the exhibits attached hereto, contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving Party to object to these terms, provisions, or conditions. This Agreement may not be amended, except by a writing signed by both Parties.

    3. Assignment. Neither this Agreement nor any rights, duties, or obligations under this Agreement may be assigned or otherwise transferred by either Party, in whole or in part, without obtaining the express prior written consent of an authorized officer of the other Party, except in connection with a merger, acquisition, or sale of all or substantially all of the assignor’s assets and/or capital stock or ownership interests (“Transfer Event”); provided that, in connection with any Transfer Event, the assignor will provide advanced written notice of such Transfer Event to the other Party as early as reasonably possible. The Parties acknowledge that an assignment effected in accordance with this Section 12(c) will not entitle the assignor, the assignee, or their respective successors and assigns to terminate this Agreement and that this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.

    4. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay, omission, or failure to perform an obligation set forth herein that results from acts of war, strike, riot, fire, flood, pandemic or epidemic, natural disaster, or other similar cause or condition beyond such Party’s reasonable control, so long as such Party gives prompt written notice of such cause or condition to the other Party and uses all commercially reasonable efforts to avoid or remove such causes of non-performance. Notwithstanding anything to the contrary in this Section 12(d), if the delay, omission, or failure to perform has not been cured after 30 days, the non-defaulting Party may terminate this Agreement by providing written notice to the defaulting Party.

    5. Choice of Law. This Agreement and all disputes, claims, or controversies arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

    6. Jurisdiction and Venue. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., in connection with any action arising out of or in connection with this Agreement and agrees that service of process to the Party’s address set forth above (as may be updated from time-to-time by written notice to the other Party in accordance with Section 12(g) below) will constitute effective service within the State of Washington. In the event of any litigation between the Parties hereto, the prevailing Party will be entitled to recover reasonable attorneys’ fees and costs in addition to such other relief as the court may award.

    7. Notices. Except as otherwise noted in this Agreement, any notice given pursuant to this Agreement or required by law must be in writing and must be delivered in person; sent by first class mail or air mail, as appropriate; or sent by overnight air courier, in each case, properly posted and fully prepaid to the appropriate address as set above. Either Party may change its address for notices by notice to the other Party given in accordance with this Section 12(g). Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

    8. Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies pursuant to this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.

    9. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.

    10. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. This Agreement may also be executed and delivered by facsimile or other electronic means and such execution and delivery will have the same force and effect of an original document with original signatures.

  2. DEFINED TERMS

    1. Affiliate. The term “Affiliate,” as used in this Agreement, means a legal entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party.

    2. Authorized Users. The term “Authorized Users,” as used in this Agreement, means any employee or other agent of Customer, including any Independent Contractor, who is authorized by Customer by the provision of Credentials to access and use the Services.

    3. Control. The terms “Control” or “Controlled,” as used in this Agreement, means the ownership, or the power to vote, directly or indirectly, a majority of shares or voting interests of a corporation or limited liability corporation, or the ownership of any general partnership interest in a general or limited partnership.

    4. Credentials. The term “Credentials,” as used in this Agreement, means user identifications and passwords necessary to authenticate and provide access by an Authorized User to the Services.

    5. Device. The term “Device,” as used in this Agreement, means a smartphone, tablet, or other mobile computing device with a sensor that may be purchased by Customer from Nomad Go, or, upon agreement of the Parties, rented by Customer from Nomad Go, in each case, for the principle purpose of enabling Nomad Go to provide the Services to Customer at Customer’s facilities and locations.

    6. Equipment. The term “Equipment,” as used in this Agreement, means a casing, mounting, or other equipment for use with Devices that may be purchased by Customer from Nomad Go, or, upon agreement of the Parties, rented by Customer from Nomad Go.

    7. Independent Contractor. The term “Independent Contractor,” as used in this Agreement, means any third party performing services for Customer in support of Customer’s business management or operation.