Service Provider Terms and Conditions
GOODYEAR
SERVICE PROVIDER TERMS AND CONDITIONS
ARTICLE 1. PREAMBLE; DEFINITIONS; INTERPRETATION
Section 1.1 Preamble. These Service Provider Terms and Conditions (“Terms”) supplement the order form signed by the Parties that incorporates these Terms by reference (“Order Form”). By executing the Order Form, the Provider identified in the Order Form and Goodyear agree to be bound by these Terms.
Section 1.2 Definitions. Capitalized terms used but not defined in these Terms have the meaning set out in the Order Form.
Section 1.3 Interpretation. In this Agreement, singular words include the plural and vice versa, where the context permits. In addition, the terms “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation.”
ARTICLE 2. SERVICES; ORDER PROCESS
Section 2.1 Supply of Services. During the Term, Provider agrees to provide the Services to Goodyear and any third party (each, an “End User”) that obtains services via the Goodyear platform available at www.andgoservice.com (the “Application”). Goodyear may issue requests for Services via the Application or otherwise (each such request, a “Service Order”). Provider agrees that Goodyear is not obligated to purchase any minimum volume of Services, that the relationship between the Parties is not exclusive, and that Goodyear retains the right to obtain similar or identical services from other providers. Unless the Order Form specifies that Goodyear will provide certain materials or equipment, Provider is solely responsible for providing safe, suitable equipment, tools and supplies as needed to perform the Services, at no additional cost to Goodyear or End Users.
Section 2.2 Delays; Non-Conforming Services. Time is of the essence in Provider’s delivery of the Services. If any Services are reasonably likely to be delayed for any reason, Provider will immediately notify Goodyear and Goodyear may revise the delivery timing or cancel the applicable Service Order or specific Services within the Service Order without charge. Provider acknowledges that End Users rely on Goodyear to ensure Services are delivered in a timely manner and in accordance with the applicable specifications and agrees that Provider may not be paid for Services that are delayed or materially non-conforming.
Section 2.3 Permits; Provider Facilities. Provider, at its expense, will procure, maintain and comply with all licenses, permits, consents and authorizations required by governmental authorities with respect to the Services (each, a “Permit”). If Provider will provide Services at a facility, lot or other premises selected by Provider (each, a “Provider Facility”), then Provider represents and warrants that it has lawful access to use the Provider Facility, and that it has obtained and will maintain any and all permissions and approvals from any lessor(s) or other third parties as are necessary for Goodyear, End Users and Goodyear personnel and subcontractors to access and use the Provider Facility for the purposes contemplated by the Agreement.
Section 2.4 Labor. Provider warrants that all employees, laborers and subcontractors (collectively, “Personnel”) engaged by Provider in connection with the Services will possess all legally required or industry standard licenses and certifications to perform the tasks assigned to them. Provider assumes full responsibility for the acts and omissions of Personnel and will have exclusive liability for the payment of payroll unemployment insurance, workers' compensation, retirement, pensions, social security, and related taxes and protections for Personnel. Provider will at all times direct and control Personnel and provide appropriate off- and on-site supervision of Personnel.
Section 2.5 Background Checks; Drug Testing. Unless otherwise agreed by Goodyear in writing, Provider will ensure that, within sixty (60) days prior to first entering any Provider Facility or other facility, lot or other premises to perform Services, each Personnel undergo a criminal background check and a drug test, in each case conducted in accordance with applicable state and federal law. To the extent permitted by applicable state and federal law, Provider will provide to Goodyear the results of all such checks and tests upon request. If such results are not, in Goodyear’s sole discretion, satisfactory to Goodyear, then Goodyear may request that any Personnel undergo an additional background check and/or drug test conducted by a Goodyear-approved vendor, and Provider will promptly comply with such request, and, to the extent permitted by applicable state and federal law, provide to Goodyear the results of such second check and/or test, as applicable.
Section 2.6 Safety Precautions; Personnel Removal. Provider will take reasonable precautions to prevent loss of or damage to property and injury to persons, and to ensure the safety of property and persons, located at or near sites at which Services are performed. Provider will, and will ensure that its Personnel, comply with all practices and procedures established for any facility, lot or other premises at which Services are performed. Provider agrees to promptly remove from the performance of Services, and/or from any facility, lot or other premises that is not a Provider Facility, any Personnel whom Goodyear requests be removed for any reason. Provider will keep sites at which Services are performed clean and free of debris and unsafe conditions resulting from its activities.
Section 2.7 Changes. Goodyear may at any time request reasonable changes to any Service Order. If any changes materially alter the cost or effort required for performance, then the changes will be subject to mutual agreement of the Parties.
Section 2.8 Vehicle Inspections, Access and Use. Provider acknowledges and agrees that certain Services may require Provider to access and use Goodyear or End User vehicles. Before performing any Services, Provider will inspect the suitability of the location at which the Services are to be performed and will also inspect the applicable vehicle(s) for any visible defects, damages or excessive soiling. Provider will promptly notify Goodyear if the designated location is unsuitable or if Provider identifies any known vehicle defects or damages, latent or otherwise, and provide supporting documentation and photographs. Provider will take possession of vehicles solely to perform the Services, including for the purposes of (1) driving the vehicle to and from a designated Services location if reasonably necessary in connection with the Services; (2) resetting sensors and warning lights; and (3) any other use or purpose incidental or reasonably related to the performance of the Services. Provider and its Personnel will access and use the vehicles at their own risk, will be responsible for all loss of or damage to vehicles in their possession or control, and will maintain the vehicles in the same condition as supplied, ordinary wear and tear excepted. Goodyear reserves the right in its sole discretion to terminate any use of or access to any Goodyear or End User vehicle by Provider or its Personnel at any time.
Section 2.9 Application Use. Provider acknowledges and agrees that, in connection with its provision of the Services, Provider may need to access and use the Application, and that such access and use will be subject to any terms and conditions made available in connection with the Application, as they may be updated from time to time.
Section 2.10 End User Technology. Certain End Users may require Provider to use a website, application, platform, or other media or technology in connection with the performance of the Services (“End User Technology”), such as “keyless entry” technology that enables Provider to access End User vehicles. Provider will comply any terms of service, terms of use, or other similar contractual requirements that apply to access to or use of such End User Technology in connection with the performance of the Services. GOODYEAR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY, AND MAKES NO REPRESENTATIONS OR WARRANTIES, WITH REGARD TO END USER TECHNOLOGY.
Section 2.11 Goodyear Supplier Code of Conduct. Provider will comply with the Goodyear Supplier Code of Conduct available at https://supplier.goodyear.com/code, as it may be updated from time to time.
ARTICLE 3. INSPECTION. Provider will maintain inspection and quality control systems acceptable to Goodyear and will inspect all Services prior to completion to ensure conformity with all specifications set out in the Order Form or the Service Order or otherwise reasonably requested by Goodyear from time to time (the “Requirements”). If any Services do not conform to the Requirements, Goodyear may, at its option: (a) reject such Services and receive a full refund, (b) require Provider to repair or correct such Services as necessary to render them in conformance and consistent with the Requirements, or (c) make any corrections required to cause such Services to conform to the Requirements. In each case, without limiting any other available remedy, Provider will be charged for costs and expenses incurred by Goodyear related to the non-conformity. In any such event, Provider will promptly implement appropriate corrective action plans to prevent similar non-conformities.
ARTICLE 4. SUPPORTING SERVICES
Section 4.1 Account Manager. Provider will designate an account manager as a single point of contact with reasonable authority to resolve issues arising under the Agreement and will designate an acting account manager with reasonable authority to resolve issues under the Agreement to act as a single point of contact during any periods when the account manager is unavailable. Provider will respond to each inquiry or other communication to the account manager within one (1) business day.
Section 4.2 Business Continuity. Provider will implement and maintain a business continuity process to minimize the potential for loss, to effectively respond to incidents, and to restore operations effectively in the event Provider is subject to a major incident adversely affecting continuity of operations.
ARTICLE 5. PRICING; INVOICING AND PAYMENT TERMS
Section 5.1 Pricing. Pricing for all Services will be as specified in the Order Form. Pricing will not be increased for any reason during the Term without a written amendment to the Agreement signed by the Parties. Other than as set forth in the Order Form, no additional charges will be invoiced to Goodyear. Prices are inclusive of all overhead, costs and applicable taxes, provided that Goodyear may provide Provider with a tax exemption certificate, in which case any applicable taxes will be deducted from the price to be paid by Goodyear.
Section 5.2 Invoices. Unless otherwise set forth in the Order Form, Provider will invoice Goodyear on a monthly basis, within ten (10) business days of the close of the applicable calendar month. Each invoice will be itemized in such manner as Goodyear may require from time to time and will include any applicable taxes as a separate line item.
Section 5.3 Payment Terms. Goodyear will pay undisputed invoiced amounts within forty-five (45) days of receipt of a proper and correct invoice.
ARTICLE 6. WARRANTIES
Section 6.1 General Warranties. Without limiting any other representations, warranties or covenants in the Agreement, Provider represents, warrants and covenants that (a) it and each of the Personnel is duly qualified and authorized to lawfully operate its business and to provide the Services in the location(s) identified in the Order Form in accordance with the terms, provisions, and conditions of the Agreement, (b) Provider will, and will ensure that all Personnel, comply with all applicable laws in the performance of the Services and otherwise in connection with the Agreement, (c) all Services will conform to applicable law, will materially conform to all Requirements, and will be performed in a good and workmanlike manner, (d) any and all materials, tools and equipment supplied by Provider or its Personnel will be of good quality and suitable for the purposes intended, and (e) neither the Services nor their use or receipt will infringe or otherwise violate any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party.
Section 6.2 Pass Through Warranties. If third-party materials or equipment are provided in connection with the Services, Provider acknowledges that Goodyear and End Users are intended to be the beneficiaries of and have bargained for all applicable manufacturer warranties and related benefits for such materials and equipment. Provider hereby assigns all applicable manufacturers’ warranties in such materials and equipment to the applicable End User, and, to the extent feasible, to Goodyear (End User and/or Goodyear, in such context, the “Assignee(s)”), and agrees to provide the Assignee(s) with all necessary assistance and documentation to enforce any and all warranty rights and remedies available to the Assignee(s), as and when requested by the Assignee(s), at no additional charge. Merchandise that is the subject of warranty claims made by an Assignee in compliance with this Section 6.2 will be returned to Provider at no charge to such Assignee.
ARTICLE 7. INDEMNIFICATION; INSURANCE
Section 7.1 Indemnification Obligations. Provider will indemnify and hold harmless Goodyear and its affiliates and their respective officers, directors, employees, contractors, and agents (each, an “Indemnitee”) from and against any and all third-party claims, fines, penalties, losses, liabilities, damages, judgments, costs, and expenses, including, as applicable, transportation, storage, administrative and other expenses, reasonable expenses of investigation, and reasonable attorneys' fees and expenses (each, a “Loss”) arising out of or resulting from any actual or alleged: (a) breach of any representation or warranty provided by Provider, (b) act or omission of Provider or its Personnel, (c) violation of applicable law or regulation by Provider or its Personnel, including, without limitation, applicable data privacy regulations, (d) property damage, injury or death in connection with the Services, or (e) tax liability of Provider or its Personnel. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THESE INDEMNIFICATION OBLIGATIONS WILL APPLY BY THIER TERMS EVEN IF, AS A RESULT THEREOF, ANY INDEMNITEE WOULD BE INDEMNIFIED AGAINST THE CONSEQUENCES OF ITS OWN NEGLIGENCE OR FAULT.
Section 7.2 Indemnification Procedure. In the event of any claim covered by Provider’s indemnification obligations, the Indemnitee may, at its option, require Provider to defend the Indemnitee at Provider’s sole expense. Provider may not settle any such claim without the Indemnitee’s express prior written consent. The indemnification obligation shall apply, without limitation, to all matters involving injured Personnel, regardless of any provisions of applicable Workers’ Compensation laws, and in particular regardless of the exclusive remedy and immunity provisions of those laws, all of which are hereby expressly waived between Provider and Goodyear. Provider's obligations and liabilities under this Section 7 shall survive the termination of the Agreement.
Section 7.3 Insurance. Unless stated otherwise in the Order Form:
(a) Provider will furnish to Goodyear certificates of insurance evidencing the issuance of the policies and coverages set forth in the Order Form on or before the Effective Date, and, thereafter, whenever Provider’s policies are renewed or replaced or when requested by Goodyear. Provider will cause Goodyear to be named in such policies as Additional Insureds on a direct and primary, non-contributory basis. The limits of coverage required can be met through a combination of primary and umbrella policies. All certificates will evidence the foregoing status and will bear notations that the underlying policies will not be amended or cancelled without thirty (30) days’ prior written notice to Goodyear. All policies will include a waiver of subrogation as respects Goodyear. All deductibles on the above policies will be no more than $50,000 and will be borne by Provider. Nothing in this Section 7.3 will be construed to in any way limit Provider’s indemnification or defense obligations or other liability under the Agreement.
(b) The insurance listed in the Order Form will be issued by an insurance company (i) licensed to do business in the United States, (ii) having an A.M. Best Company “Financial Strength Rating” of A- or better and “Financial Size Category” of VII or higher, and (iii) satisfactory to Goodyear.
ARTICLE 8. INCIDENT REPORTING; RECORD RETENTION; AND INSPECTIONS
Section 8.1 Incidents. Provider will immediately notify Goodyear of any incident involving the breach of any law or Goodyear requirement by Provider or its Personnel, any damage to or loss of property in connection with the Services, or any physical injury or death in connection with the Services (each, an “Incident”). The Parties will reasonably assist each other in the conduct of investigations of Incidents, including by making their respective personnel available for interviews and by granting access to their respective facilities and applicable documentation.
Section 8.2 Record Retention. During the Term and for at least five (5) years after the expiration or termination of the Agreement, Provider will maintain in accordance with good business practices and retain all records, information, source data and transaction documentation relating to the Agreement (“Records”), including all Records relied on in preparing required reports and invoices.
Section 8.3 Inspections. Goodyear has the right to inspect the Records upon at least two (2) business days’ notice to Provider. Any discrepancy discovered during an inspection will be promptly corrected by Provider. If an inspection reveals an overcharge on the part of Provider of more than five percent (5%) of the fees paid or payable by Goodyear during any six (6) month period, Provider will promptly reimburse Goodyear for the cost of the inspection.
ARTICLE 9. TERM AND TERMINATION
Section 9.1 Term. The Term will be as set forth in the Order Form.
Section 9.2 Suspension. The Agreement may be suspended by Goodyear, in whole or in part, effective immediately, if Goodyear reasonably believes that Supplier has materially breached or is likely to materially breach any representation, warranty, covenant, condition, or other obligation in the Agreement.
Section 9.3 Termination. In addition to termination rights specified elsewhere in this Agreement, this Agreement may be terminated prior to the expiration of the Term (a) by written agreement of Goodyear and Provider at any time, (b) by Goodyear, in whole or in part and for any or no reason, with at least thirty (30) days’ prior written notice, (c) by either Goodyear or Provider, effective immediately upon notice, if a material breach of this Agreement by the other occurs and is incapable of being cured, or, if curable, remains uncured for thirty (30) days following notice of breach by the non-breaching Party, and (d) by Goodyear, effective immediately upon notice, if Goodyear has concerns, based on credible information, regarding Service Provider’s longevity, financial stability or solvency.
Section 9.4 Cancellation. Goodyear may, by notice to Provider, from time to time cancel a particular Service Order, in whole or in part, for convenience. Upon cancelation, Provider will immediately stop performance to the extent required by the cancelation but will continue performance to the extent not canceled. Provider’s sole remedy as to the canceled portion of the Order Form or Service Order will be payment of the applicable price for the Services duly provided as of the time of cancelation, less amounts previously paid.
Section 9.5 Survival of Certain Obligations. The respective rights and obligations of Goodyear and Provider hereunder pertaining to payment, reimbursement, warranty, indemnity, confidentiality, intellectual property rights, and otherwise which, in accordance with the terms of this Agreement, have arisen before or arise at or after expiration or termination, will survive the expiration or termination of this Agreement, as applicable.
ARTICLE 10. CONFIDENTIALITY; PROTECTION AND OWNERSHIP OF INTELLECTUAL PROPERTY
Section 10.1 Confidential Information Defined. The term “Confidential Information” means all information and data furnished or made available by or on behalf of Goodyear to Provider or its Personnel, including information and data relating to End Users or the Services set out in any Service Order or otherwise made available in connection with the Services. Confidential Information does not include information: (a) that Provider’s files and records establish as having been in its possession at the time the information was disclosed to Provider, (b) that is publicly available at the time it is disclosed to Provider, or (c) that becomes known to Provider from a third party that has the lawful right to disclose such information.
Section 10.2 Use and Care of Confidential Information. Provider will use the Confidential Information only to perform its obligations under the Agreement and will exercise reasonable care to prevent its unauthorized disclosure. Provider is permitted to disclose Confidential Information only to those Personnel with a need to know the specific Confidential Information disclosed and will ensure the recipients are bound by confidentiality obligations at least as protective of the Confidential Information as Provider’s confidentiality obligations in this Article. Provider will be responsible for all use or disclosure of Confidential Information by any Personnel. The obligations set forth in this Article will continue during the Term and for a period of five (5) years following the expiration or termination of this Agreement.
Section 10.3 Equitable Relief. Provider acknowledges that Goodyear may be irreparably harmed in the event of any breach or threatened breach of the provisions of this Article, and that Goodyear would not have an adequate remedy at law in that case. Therefore, Provider agrees that Goodyear will be entitled to seek an injunction or any appropriate decree of specific performance to ensure Provider and its Personnel comply with this Article, without Goodyear showing actual damages or that monetary damages would not afford an adequate remedy.
Section 10.4 Application Data. Provider acknowledges and agrees that, as between Goodyear and Provider, Goodyear owns all right, title and interest, including all intellectual property rights, in and to all data generated through Provider’s access to and use of the Application (“Application Data”), and Goodyear and its affiliates may use the Application Data for any purpose, including, without limitation, development and improvement of Goodyear products and services, and may reproduce, distribute and otherwise use and display the Application Data and any derivates thereof for their own commercial purposes in their sole discretion.
ARTICLE 11. GENERAL PROVISIONS
Section 11.1 Notices. All notices, demands and other communications related to the Agreement (excluding Service Orders and ordinary course business correspondence) will be in writing and will be deemed to have been duly given or made: (a) if sent by registered or certified mail, three (3) business days after the posting thereof with first class postage attached; and (b) if sent by hand or overnight courier, upon the first business day following delivery thereof. Notices will be sent to the applicable Party’s address as set out in the Order Form. Either Party may change its designated address and addressee by notice given in accordance with this Section.
Section 11.2 Assignment; Subcontracting. Provider will not assign the Agreement or delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of Goodyear. The Agreement may be assigned by Goodyear, in whole or in part, without restriction. Regardless of any Goodyear consent to Provider’s use of any subcontractors, Provider will remain directly liable to Goodyear for the full and timely performance of each and every obligation of Provider under the Agreement and will be deemed the guarantor of each subcontractor’s performance.
Section 11.3 AndGo Information Security Requirements. Provider will comply with the AndGo Information Security Requirements available at https://www.andgonow.com/information-security, as they may be updated from time to time.
Section 11.4 Reserved.
Section 11.5 Relationship of Parties. Provider is and will remain at all times an independent contractor of Goodyear, and no provision of this Agreement creates or contemplates any partnership, joint venture, agency, employment relationship, fiduciary relationship, or other similar relationship between the Parties or any of their respective employees.
Section 11.6 No Bailment. Goodyear is not a bailee of any tools, equipment or other property owned by, or under the possession or control of, Provider and Goodyear assumes no responsibility or liability for any such property except as specifically agreed in writing by the Parties. Goodyear expressly disclaims any responsibility for Provider tools, equipment and property, and Goodyear will not be liable for any related loss or damage.
Section 11.7 Restrictions on Publicity. Nothing in this Agreement grants Provider any right or license to use the name of Goodyear, any End User, or any of their respective affiliates, or any logo or mark belonging to any such entity without the prior written consent of Goodyear or the applicable End User or affiliate. Provider will not publicize its relationship with Goodyear as a client or customer, or the existence of the Agreement, without first receiving the written consent of an authorized Goodyear representative. Provider hereby grants to Goodyear a worldwide, perpetual, non-exclusive, sublicensable, transferable, royalty-free and fully paid-up right and license to use Provider’s name, trademarks, logos, domain names, URLs and other business identifiers on its website(s) and in marketing materials.
Section 11.8 Severability. In the event any term of this Agreement is declared invalid or unenforceable in any respect, the validity of the remaining terms will in no way be affected by that declaration and the Parties will undertake to substitute in language that most closely approximates the commercial purpose of the original text.
Section 11.9 Governing Law; Waiver of Jury Trial.
(a) This Agreement will be governed by the laws of the State of Ohio, without regard to its choice of law principles or conflicts of law principles. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement must be exclusively brought in the courts of Summit County, Ohio or the United States District Court for the Northern District of Ohio Eastern Division, and each of the Parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. The Parties hereby consent to submit themselves to the jurisdiction of such courts and agree that service of process on them in any such dispute may be affected by the means by which notices are to be given to them under this Agreement. The Parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods.
(b) THE PARTIES FURTHER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR OTHER THEORY), AND AGREE THAT SUCH WAIVER IS A MATERIAL INDUCEMENT TO EACH PARTY IN ENTERING INTO THIS AGREEMENT. THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. PROVIDER AGREES NOT TO INCLUDE ANY EMPLOYEE, OFFICER, DIRECTOR OR TRUSTEE OF GOODYEAR AS A PARTY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM RELATING TO ANY DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 11.10 Order of Precedence. To the extent the various writings that comprise the Agreement conflict, the order of precedence will be as follows: the Terms; the Attachments, Schedules, and Exhibits; the Order Form; the Service Order(s); and Goodyear’s specifications, manuals, policies, and procedures.
Section 11.11 Joint Drafting Presumed. The Parties agree that the Agreement will, for all purposes, be presumed to have been jointly prepared and drafted and will not be construed against either Party as the primary drafter.
Section 11.12 Entire Agreement; Amendment. The Agreement, together will all terms, policies, and codes referenced herein (collectively, “Goodyear Terms”), constitutes the full understanding and the entire agreement between the Parties pertaining to its subject matter, and supersedes all prior agreements, understandings, negotiations, and discussions of the Parties on the subject, whether oral or written. In the event of any inconsistency among the Agreement, the Goodyear Terms and any separate terms that are not Goodyear Terms and that govern any website, application, platform, or other media used by a Party in order to perform its obligations or exercise its rights hereunder, the following order of precedence governs: (a) first, the Agreement; (b) the Goodyear Terms; and (c) such separate terms. No amendment, modification, or waiver of any provision will be binding unless executed in writing by authorized representatives of both Parties.
Section 11.13 Parties in Interest. This Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective permitted successors and assigns, and except for the rights granted to the Indemnitees, nothing in the Agreement is intended to or will confer any right, remedy, or benefit on any other party.