Terms of Service
Nomad Terms of Service
1. Overview. The Nomad Terms of Service (these “Terms of Service”) set forth the terms on which Nomad eCommerce, Inc., an Illinois corporation (Nomad), makes available its Nomad Software, ERP connector, replication, design, hosting, support and other services (the “Services”). PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY PLACING AN ORDER FOR, ACCESSING OR OTHERWISE USING THE SERVICES, ON BEHALF OF YOURSELF AND YOUR COMPANY OR ORGANIZATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF SERVICE.
2. Subscription; Renewal. Nomad will provide you with the Services ordered by you and agreed to by Nomad. All orders are subject to acceptance or rejection by Nomad, in its sole discretion, and are further subject to these Terms of Service. The Services are provided on a subscription basis for the duration and at the subscription level ordered and paid for by you, for use only by and for the benefit of the customer identified on the order form, and subject to Nomad’s established policies and procedures, as updated from time to time. Orders once placed are non-cancelable, and your selected subscription level may not be reduced prior to the end of your contracted term. You are responsible for assigning qualified personnel to manage your responsibilities and coordinate with the Nomad team regarding the Services, and providing all information and assistance reasonably requested by Nomad in connection therewith. Unless otherwise stated in the order, your subscription will automatically renew on an annual basis at the conclusion of the initial and any renewal term unless you provide Nomad with at least sixty (60) days’ prior written notice of non-renewal.
3. Platform. Nomad will deliver the Services using the modules of its proprietary Nomad software and technology platform for which you have purchased a valid subscription, paid the applicable subscription fees and received a valid license key (the “Platform”). Your subscription includes a non-exclusive, non-transferable and non-sublicensable license to remotely access and synchronize with the Platform, solely for your internal business purposes consistent with the scope of your subscription, in accordance with Nomad’s guidelines and documentation, and in compliance with all applicable laws and regulations. Certain components of the Platform must be installed on your system. You agree to follow Nomad’s instructions for downloading and installing such client-side components and updates thereto, and to provide if applicable Nomad with a dedicated IP address and continuous remote connection to your system as required to provide the Services. The client-side components of the Platform are licensed to you on a non-exclusive, non-transferable and non-sublicensable basis, in object code only, solely for use with the Platform during the term of your corresponding subscription to the Services. You are responsible for purchasing and maintaining all third party hardware, software and connectivity necessary to access the Platform and use the Services, including a supported ERP and compatible Internet browser and network connectivity.
4. Fees and Charges. Services will be billed at the pricing and in accordance with the payment schedule set forth in the corresponding order, or if no pricing and payment terms are specified, at Nomad’s then-current rates with payment due upon receipt of invoice. Out-of-scope services will be billed at Nomad’s then-current hourly rates. All amounts are stated and payable in U.S. Dollars, and except as otherwise expressly stated herein, are non-refundable. Nomad reserves the right to increase its pricing and rates for any quarterly payment schedule and/or to reflect increases in third party costs or charges. The fees are exclusive of travel, lodging and other expenses for on-site services. You agree to reimburse Nomad for any such expenses as reasonably incurred. The fees are exclusive of any taxes or duties associated with your order, however designated or levied in any jurisdiction by any taxing authority. You are solely responsible for all such taxes, excluding taxes based on Nomad’s net income. If applicable, you will provide evidence of tax-exempt status at the time of order placement.
5. Payment. You authorize Nomad to initiate and collect one-time and recurring payments by initiating a transfer of funds using the credit card, checking or other account information supplied by you for payment. You represent that this information is true and accurate in all respects, and agree to promptly update such information if it is or becomes incorrect or outdated. You agree to pay any non-transferred amounts due and owing to Nomad, including bank penalties or charge-backs due to insufficient funds, within fifteen (15) days after the date of Nomad's invoice. Nomad reserves the right to charge interest on overdue amounts at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or the highest rate permitted by applicable law, whichever is lower, accruing from the due date until the date paid. In the event any overdue amount requires collection efforts, you agree to reimburse Nomad for all reasonable costs of collection, including attorneys’ fees.
6. Out-of-Scope Services. From time to time, subject to Nomad’s reasonable scheduling and availability, you may request and Nomad may agree to provide advanced design, development and/or other professional services not included within the scope of your subscription. Unless otherwise expressly stated, all Services are provided on a time and materials basis, and will be billed at Nomad’s then-current rates unless an alternative fee arrangement is agreed to in writing. Any estimates, timeframes or quotes provided by Nomad are subject to adjustment based on changes in scope or the required level of effort, delays in you making available personnel or performing its responsibilities, the testing and validation process, and other circumstances outside of Nomad’s reasonable control.
7. Channel Partners. Nomad works with a number of local and regional channel partners. Any quotations issued by a channel partner for Nomad’s offerings are for informational purposes only, and are expressly superseded by these Terms of Service and the corresponding order you place with Nomad. Certain channel partners may be authorized by Nomad to bill and collect amounts owed to Nomad; you acknowledge that in the absence of prompt remittance by the channel partner, you will remain directly responsible for payment. Certain channel partners may be approved by Nomad to provide project management, training, localized support or other value-added services. You acknowledge that all arrangements for value-added services are directly between you and the channel partner. Channel partners are independent contractors, not employees or agents of Nomad. Nomad is not and will not be responsible or liable in any way for the value-added services, acts or omissions of channel partners or other third parties.
8. Your Data. As between Nomad and you, you retain ownership of and all right, title and interest in and to your data submitted or processed using the Services. You agree to submit data in a format approved by Nomad as compatible for use with the Services. You are solely responsible for the quality, accuracy, and verification of your data, including securing all necessary licenses and permissions therefor, and will use reasonable efforts to update your data in a timely manner to correct typographical errors, truncation of data, out-of-date information and other inaccuracies. You authorize Nomad to access, process, store, transmit and disclose your data for purposes of operating the Platform and providing the Services, and as otherwise required under applicable law, including in response to any subpoena, court order or governmental, regulatory or law enforcement request. You acknowledge that Nomad is not and will not be deemed to be the original record keeper or primary custodian of your data, and that you are responsible for timely back-up and retention thereof.
9. Your Website. You are solely responsible for, and represent and warrant that you have full right, power and authority and all necessary third party licenses and authorizations for: (a) all activities taking place on or through your website, including without limitation all products and services advertised, marketed, sold and/or offered for sale; (b) all domain names, email addresses, logos and/or other trademarks or branding used in connection with your website; (c) all content, graphics, specifications, third party add-ons, extensions, plug-ins and other services supplied, selected or approved by you for use on your website or in connection with the Services; and (d) complying with all applicable laws pertaining to your website, including without limitation all applicable privacy, information security, merchant and unsolicited communications laws and regulations.
10. Your Domain. You will retain ownership of your domain used to host your website (excluding domain(s) used by Nomad to host the e-commerce portion of your website and operate the Platform). In some circumstances, Nomad may assist you in registering one or more domains or obtaining SSL certificates or other e-commerce credentials. Any such Services are provided at Nomad’s then-current rates, and subject to any price increases imposed by third party providers. You acknowledge and agree that Nomad is not responsible for informing you of domain, certificate or credential expirations, acting to prevent expirations, or recovery costs in the event that any domain, certificate or credential expires.
11. Third Party Products and Services. If you purchase payment processing or other third party add-ons, extensions, plug-ins or other products and services through Nomad, you acknowledge that such products and services are provided by a third party supplier. You agree to comply with the licensing and other terms of service imposed by the third party service supplier, and to pay all fees and charges incurred in connection therewith. You acknowledge that Nomad does not operate or manage payment processing or other third party products or services. Although Nomad will use reasonable efforts to coordinate with you and the supplier regarding any availability or quality of service issues, Nomad cannot and does not assume any responsibility or liability for third party products or services, even if Nomad assists with the selection, configuration, procurement or resale thereof.
12. Termination. Either party may terminate an order for Services: (a) if the other party materially breaches these Terms of Service or the order and fails to cure the breach within thirty (30) days (fifteen (15) days for non-payment) after receiving written notice thereof; (b) if the other party becomes or is declared insolvent, makes a general assignment for the benefit of creditors, suffers a receiver to be appointed for it, enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, files a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it, which petition is not dismissed with prejudice within sixty (60) days after the filing thereof; (c) for convenience at the conclusion of the initial term or any renewal term, upon not less than sixty (60) days’ prior written notice to the other party; or (d) as otherwise mutually agreed to and set forth in the applicable order.
13. Effects of Termination. Upon the expiration or termination of an order for any reason: (a) Nomad will cease providing the Services; (b) you will immediately discontinue access to and use of the Services and Platform, and all rights and licenses granted to you will automatically terminate; (c) you will promptly (within five (5) days) uninstall the client-side components of the Platform, erase and destroy (or return to Nomad) all copies in your possession, and remove any remnants (such as cached computer code, images, data) from your computers, network and systems; and (d) you will pay, and hereby authorize Nomad to charge your account on file for, all fees and charges due and owing under the order. In the event of improper termination by you or termination for cause by Nomad, the foregoing will include, without limitation, the fees and charges that would have been due for the remainder of the then-current or most recently renewed term of the applicable order.
14. Survival. Sections 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of these Terms of Service, and any other provisions which by their terms or nature are intended to survive, will survive the expiration or termination of an order for Services for any reason, and will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. These Terms of Service will continue in their entirety and remain in full force and effect with respect to all orders that have not terminated or expired.
15. Proprietary Rights. The Services and Platform are made available to you on a subscription basis, and are not sold. Nomad and its suppliers will retain exclusive right, title and interest in and to the Services and Platform (in both binary executable code and source code form), including the program architecture, design, coding methodology, documentation, screen shots, and “look and feel” therefor, all modifications, updates, enhancements and improvements thereto (even if requested or paid for by you), all goodwill associated therewith, and all present and future copyrights, trademarks, trade secrets, patent rights, and other proprietary and intellectual property rights of any nature throughout the world embodied therein and appurtenant thereto. All rights and licenses not expressly granted to you are reserved by Nomad and its suppliers. From time to time, you may provide suggestions, comments, ideas or other feedback regarding the products or services of Nomad, including in connection with customizations, enhancements, and interfaces. Nomad will exclusively own all such customizations, enhancements and interfaces and will be free to use, disclose and otherwise commercialize and exploit such feedback, free of any claims, payment obligations, or proprietary, confidentiality or other restrictions of any kind.
16. Prohibited Activities. You may not, and agree that in connection with your use of the Platform and Services you will not, nor will you authorize or permit any other person or entity to: (a) deactivate, bypass, or otherwise circumvent any access controls or other security measures for the Platform or Services; (b) access the Platform or Services through interfaces or other automated means (such as test tools, screen capture technology, scripted browsers, or other programmatic methods) not expressly approved by Nomad; (c) disseminate viruses, Trojan horses, spyware or other malicious code through the Platform or Services; (d) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or otherwise impairs the Platform or Services; (e) infringe, misappropriate, or violate any intellectual property or proprietary rights, rights of privacy or publicity, or other rights; (f) reproduce, distribute, publicly display, sublicense, lease, rent, loan, transfer, or otherwise make available the Platform or Services; (g) modify, adapt, alter, translate, or create derivative works of the Platform or Services; (h) use the Platform or Services in or as part of a service bureau, timesharing or outsourcing capacity; (i) develop an alternative to the Platform or Services based on or derived from, in whole or in part, the Platform, Services or other information or materials of Nomad; (j) violate any import, export, re-export or other applicable laws or regulations; (k) remove or obscure any copyright or other proprietary rights notices, trademarks, logos or trade designations for the Platform or Services, or on screens or documentation; or (l) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform or Services.
17. You Are Responsible for Your Website. You are solely responsible for your website and your use of the Services in connection therewith. You agree to indemnify and hold Nomad, its directors, officers, employees, agents, affiliates and suppliers harmless from and against any and all claims, demands, suits, actions, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or resulting in whole or in part from your website, domain and data, your e-commerce transactions, merchandise and advertising, any third party products and services used on your website, your misuse of the Platform or Services, and/or your violation of these Terms of Service of applicable law.
18. DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Nomad HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Nomad DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE, MEET YOUR PARTICULAR REQUIREMENTS, OR ACHIEVE ANY PARTICULAR RESULTS. Nomad DOES NOT VALIDATE DATA AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION THEREWITH. THE PLATFORM AND SERVICES MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES, DELAYS AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR NETWORK, SYSTEMS, AND DATA. NO EMPLOYEE OR AGENT HAS AUTHORITY TO BIND Nomad TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE.
19. LIMITATIONS ON LIABILITY. IN NO EVENT WILL Nomad BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE PLATFORM, THE SERVICES OR THESE TERMS OF SERVICE, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, LOSS OR DESTRUCTION OF DATA, OR BUSINESS INTERRUPTION OR DOWNTIME. THE TOTAL CUMULATIVE LIABILITY OF Nomad ARISING OUT OF AND RELATED TO THE PLATFORM, THE SERVICES AND THESE TERMS OF SERVICE WILL NOT, IN RESPECT OF ANY ORDER, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE TOTAL FEES PAID BY YOU TO Nomad FOR USE OF THE PLATFORM AND RECEIPT OF THE SERVICES UNDER SUCH ORDER IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR ONE THOUSAND DOLLARS ($1,000), WHICHEVER IS GREATER. THE LIMITATIONS ON LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THESE TERMS OF SERVICE AND WILL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
20. Binding Arbitration. Any dispute, claim or controversy arising out of or related to the Platform, the Services or these Terms of Service, or the validity, construction, breach or enforcement hereof, including the application or enforcement of this arbitration provision, whether in contract, tort or otherwise (a “Dispute”), whether between Nomad and you and/or either party’s heirs, successors or permitted assigns, upon written demand of either party, will be submitted to and resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, if you reside in the United States, or the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, if you reside outside of the United States; provided, however, this arbitration requirement will not limit either party’s right to seek injunctive or other non-monetary equitable relief for a violation of its intellectual property rights or to compel the other party’s express indemnification obligations under these Terms of Service for third party claims in any court of competent jurisdiction. The arbitration will be conducted in English in accordance with the substantive laws of the State of Illinois, U.S.A. before a single, neutral arbitrator with experience conducting arbitrations in the field of Internet and technology contracts, pursuant to a protective order issued by the arbitrator that requires the parties to maintain the confidentiality of the arbitration proceeding and all activities occurring and documents exchanged in connection therewith. In order to reduce costs, the arbitration will be conducted by telephonic and/or video conference between and among the arbitrator, the parties and their counsel. Any required in-person hearings will be conducted in St. Louis, Missouri, U.S.A. The award of the arbitrator will be accompanied by a statement of the reasons upon which the award is based, and will be final and non-appealable. No award may provide a remedy beyond those permitted under these Terms of Service. Judgment upon the arbitration award may be entered in any court of competent jurisdiction. The Federal Arbitration Act (Title 9 of the United States Code) will apply to the construction, interpretation and enforcement of this arbitration provision.
21. Miscellaneous
(a)Governing Law. These Terms of Service will be governed and interpreted for all purposes by the laws of the State of Illinois, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any jurisdiction) do not and will not apply to these Terms of Service, and are hereby specifically excluded.
(b)Notices. All notices under these Terms of Service will be in the English language and in writing and delivered personally or by postage prepaid certified mail or express courier service, return receipt requested, to the attention of Nomad’s President at its corporate headquarters address or to your most current address on file. Notwithstanding the foregoing, where you have provided Nomad with an email address, you consent to Nomad’s delivery of notices by email.
(c)Assignment. Neither party may assign or otherwise transfer these Terms of Service, in whole or in part, without the prior written consent of the other party, not to be unreasonably withheld. Any attempted assignment in violation of the foregoing will be null and void from the beginning and without effect. Notwithstanding the foregoing, Nomad may delegate its obligations to affiliates and subcontractors, and may assign these Terms of Service in its entirety to a successor in interest in connection with Nomad’s merger, acquisition, corporate reorganization, or sale of all or substantially all of its business to which these Terms of Service relate.
(d)Relationship; Third Party Beneficiaries. Nomad is an independent contractor. Nothing in these Terms of Service will be deemed to create any agency, employment, partnership, franchise, fiduciary or joint venture relationship between the parties, or to give any third party any rights or remedies under or by reason of these Terms of Service; provided, however, the disclaimers, limitations on liability and indemnification protections under these Terms of Service will extend to Nomad’s directors, officers, shareholders, employees, agents and affiliates.
(e)Equitable Relief. The Platform and Services comprise the confidential and proprietary information of Nomad and its suppliers, and constitute a valuable trade secret. You acknowledge that your breach of the license or ownership provisions of these Terms of Service would cause irreparable harm to Nomad, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law or in equity, Nomad will be entitled to seek temporary or permanent injunctive and other equitable relief in any court of competent jurisdiction.
(f)Force Majeure. From time to time the Platform or Services may be unavailable for scheduled or emergency maintenance or events beyond Nomad’s reasonable and direct control. In the event of a critical failure, Nomad will implement its established policies and procedures for disaster recovery and availability of the Platform and Services will be restored as soon as commercially practicable. You are responsible for operating and conducting your business through other means during any period of unavailability. Notwithstanding anything to the contrary, under no circumstances will Nomad be liable for any outage, interruption or unavailability of the Platform or Services or for any delay or failure to perform arising out of or caused directly or indirectly by Internet or power outages, telecommunications, network or equipment failures, negligent or malicious acts of third parties or other users of the Services, or other events beyond Nomad’s reasonable and direct control.
(g)Export Control. You may not access, use, export or re-export the Services or Platform except as authorized by United States and other applicable laws and regulations, and further subject to your compliance with these Terms of Service. Without limiting the foregoing, the Services and Platform may not be access, used, exported or re-exported from or into any U.S. embargoed countries, or by or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You represent that you are not located in, under the control of, or a national or resident of any country or on any such list, and warrant that you will not access or use the Services or Platform for any purpose prohibited by United States law.
(h)U.S. Government Restricted Rights. The Platform, Services and related documentation are licensed with RESTRICTED RIGHTS as "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation is licensed (if at all) to U.S. Government end users only as Commercial Items, and with only those rights as are granted to other subscribers pursuant to these Terms of Service.
(i)Amendment; Waiver. Nomad reserves the right to amend these Terms of Service from time to time by posting the updated terms or providing email or other written notice to you of the change. Your access to or use of the Platform or Services after Nomad has amended these Terms of Service will signify your acceptance of the amended terms. Except as stated in this paragraph, these Terms of Service may be amended only by a written instrument executed by you and a duly authorized representative of Nomad. No right or obligation will be waived by any act, omission or knowledge of a party, except by an instrument in writing expressly waiving such right or obligation and signed by an authorized representative of the waiving party. Any waiver on one occasion will not constitute a waiver on subsequent occasions.
(j)Severability; Construction. If any provision of these Terms of Service is determined to be unenforceable under applicable law, such provision will be interpreted or reformed by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from these Terms of Service if such interpretation or reformation is not possible, and the remaining provisions of these Terms of Service will continue in full force and effect. The headings in these Terms of Service are for reference purposes only, and will not affect the meaning or interpretation of these Terms of Service. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereto” and “hereof” refer to these Terms of Service as a whole, not any particular section.
(k)Entire Agreement. These Terms of Service set forth the entire agreement of the parties, and supersede all prior proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof. To the extent of any conflict between these Terms of Service and any other document contained in your binding proposal or order, these Terms of Service will control. Where you require a purchase order as part of your procurement process, such purchase order may be issued for administrative purposes only. Any additional or conflicting terms proposed by you in any purchase order, acknowledgement, or other writing will not be binding on Nomad, and are hereby objected to and expressly rejected.
22. PCI DSS Acknowledgment
Nomad acknowledges that it is responsible for the security of account data that it stores, processes, or transmits on behalf of its customers, or to the extent Nomad could impact the security of the customer’s cardholder data environment (CDE), in accordance with applicable requirements of the PCI Data Security Standard (PCI DSS), including but not limited to PCI DSS v4.0 Requirement 12.9.1.
23. Updates to Terms of Service
Nomad reserves the right to amend these Terms of Service at any time. Updated Terms of Service will be posted at www.nomadecommerce.com/tos, and it is your responsibility to regularly review that page for any changes. Continued use of the Platform or Services following any such update will constitute your acceptance of the revised Terms of Service.