Partner's Agreement
- Agreement terms and conditions.
1.1 Authority to bind Partners.
The individual that accepts and agrees to this Agreement, by doing so, represents and warrants that they have the authority and capacity to accept and agree to this Agreement on behalf of, and legally bind, the Partner, and its applicable legal entity(ies).
1.2 Acceptance of arbitration.
The “Disputes” section of this Agreement contains provisions which will govern any claims that the parties may have against each other, including a mandatory arbitration provision.
2. Fleet-Go Platform
The Partner may offer the Fleet-Go service to its own customers via the Fleet-Go Platform, subject to the terms of this section.
The Partner may accept payment for its own service and parts via the Fleet-Go Platform from Fleet-Go Customers.
2.1. The Partner agrees that:
2.1.1. Fleet-Go Platform will be solely responsible for determining the most effective, efficient and safe manner to perform each instance of car pick-up and delivery services; and
2.1.2. It is recommended that:
The Partner will not, and will ensure that Partner do not use any Fleet-Go Platform Customer Personal Information received from Fleet-Go Platform In relation to providing the delivery services for any reason other than for the purposes of fulfilling delivery services for that Customer’s particular order. The Partner will not retain Fleet-Go Platform Customer Personal Information or any of the Customer’s Personal Information for longer than it takes to fulfill the delivery services for that Customer’s particular order.
2.1.3. Partner relationship with Customers. Fleet-Go Drivers are not responsible or liable for the actions or inactions of a Customer in relation to any of the Partner's activities, any Fleet-Go Platform. The Partner agrees that Fleet-Go Platform will have the sole responsibility for any obligations or liabilities to the Partner, Customers or other third parties that arise from or relate to the Partner's or Fleet-Go’s provision of pick-up and delivery services. The Partner agrees that the Partner and Fleet-Go Platform is each solely responsible for:
2.1.4. any liability arising from or relating to a Customer or any other third-party in connection with the delivery services; and
2.1.5. taking such precautions as may be reasonable and proper, including, without limitation, maintaining insurance in accordance with applicable Laws and conducting thorough background check investigations in connection with the delivery services. Fleet-Go may release the contact and/or insurance information of Partner and/or Fleet-Go Driver to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident). The Partner will provide evidence of such precautions upon Fleet-Go’s request.
2.1.6. Pick-up and Delivery area and timing. The Fleet-Go is responsible for determining the Partner Pick-up and Delivery Area. Fleet-Go may limit the Partner Pick-up and Delivery Area to help ensure safe and reliable Partner managed car pick-up and delivery services. The Partner acknowledges that Fleet-Go will use the Partner Pick-up and Delivery Area to limit the Partner’s ability to provide service only to those potential Customers who request car pick-up and delivery within the Partner Pick-up and Delivery Area through the Partner's subscription program. The Partner acknowledges that Fleet-Go may require adjustments to the Partner Pick-up and Delivery Area.
2.1.7. Customer's Personal Information. To the extent that the Partner shares Customer's Personal Information, including Customer's's geolocation data with Fleet-Go Platform, the Partner represents and warrants that it has provided appropriate notices to, and collected all legally required consents from, the Customer to lawfully share their Personal Information with Fleet-Go Platform and to allow to lawfully share it with Fleet-Go Drivers for the purpose of facilitating car pick-up and delivery.
2.1.8. Documentation.To the extent required by applicable laws, the Partner must retain all copies of any Required Licenses prior to providing any delivery services through the Fleet-Go Platform.
2.1.9. Partner's relationship with Fleet-Go Platform. The Partner will have the sole responsibility for any obligations or liabilities to Fleet-Go Platform that arise from or relate to the Partner's relationship with Fleet-Go Platform (including in connection with the provision of car pick-up and delivery services). The Partner agrees that the Partner exercises sole control over the Fleet-Go Platform and will comply with:
2.1.10. all applicable Laws (including tax, gratuity, social security and employment Laws) and regulations applicable to the Partner's relationship with Fleet-Go Platform; and
2.1.11. industry best practice in respect of working conditions and compensation for Fleet-Go Platform, including the distribution of any gratuities.
The Partner agrees that the Partner will pay Fleet-Go Platform for their car pick-up and delivery services provided to the Partner Customers at the Partner's sole discretion (but at all times in compliance with applicable Laws), and the Partner is at all times solely responsible for providing payment to Fleet-Go Platform, including the distribution of any gratuities for provided car pick-up and delivery services to the Partner's Customers.
2.2. The Partner acknowledges and agrees that the Partner is required to:
2.2.1. complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of car pick-up and delivery services and receipt of the Fleet-Go Platform service as required by applicable Laws; and
2.2.2. provide Fleet-Go with all relevant tax information.
The Partner further acknowledges and agrees that the Partner and Fleet-Go are responsible for taxes on their own receipts arising from the performance of car pick-up and delivery services.
Fleet-Go Platform requirements. The Partner agrees that Fleet-Go Platform will, at all times hold and maintain:
2.2.3. a valid applicable Required License with the appropriate level of certification to operate the transportation method assigned to Fleet-Go Platform (e.g., a driver’s license); and
2.2.4. all Required Licenses applicable to the Partner and/or Fleet-Go Platform that are necessary to provide delivery services to third parties.
2.3. The Partner agrees that Fleet-Go reserves the right, at any time in sole discretion, to restrict the Partner from accessing or using the Fleet-Go Platform if the Partner fails to meet any applicable requirements.
2.4. Fleet-Go will provide the Partner with an access to place order(s) for car pick-up and delivery to the Partner's Customers on the Fleet-Go Platform that will allow Fleet-Go Drivers to browse and take order(s) for car pick-up and delivery service via Fleet-Go Platform.
2.5. The Partner may accept payment from the Customers for the service provided by the Partner or parts sold to the Customers via the Fleet-Go Platform, subject to the terms of this section.
3. Procedure.
For any car pick-up and delivery reservations via the Fleet-Go Platform, the Customer Transaction will occur between the Customer and the Fleet-Go, via the Fleet-Go Platform, at the Fleet-Go price.
4. Payment and Payment Instructions.
The Partner and Fleet-Go acknowledge and agree that:
4.1. Fleet-Go has entered into agreements with third parties to collect payments from Customers on the Partner’s behalf for Partner service and parts via the Fleet-Go Platform if applicable;
4.2. the Partner has control over the Customer Payments for all service and parts, that Customers paid to the Partner via the Fleet-Go Platform;
4.3. as an exercise of the Partner’s control over the Customer Payments, the Partner administer a Partner Connect Account link to Fleet-Go Platform;
4.4. the Partner has received the full amount of the Customer Payments upon transfer of the Customer Payments to the Partner Connect Account and maintains full control over the Customer Payments while held in the Partner Stripe Connect Account;
4.5 the Partner will determine further transfers from the Partner Connect Account and by providing instructions to Fleet-Go; and
4.6. consistent with the Partner's control over Customer Payments received by the Partner in its Partner Connect Account described above, the Partner provides standing and default instructions to Fleet-Go or its service provider (including the Affiliates of either for the purposes of this clause) to:
4.6.1. administer the Partner Connect Account on the Partner's behalf and pursuant to the Partner's instructions;
4.6.2. process Customer Payments into the Partner Connect Account upon the Partners's acceptance of orders via the Fleet-Go Platform;
4.6.3. after the Partner Connect Account has received the full amount of the Customer Payments, and after transfer:
4.6.4. to a separate account of the Partner's choosing, the total amount of the for the Partner’s service and parts in each order;
4.6.5. to Fleet-Go Platform, any fees or obligations owed to Fleet-Go; and
4.6.6. to the Fleet-Go Drivers, any fees or obligations owed to the Fleet-Go Drivers.
4.7. Alternate Instructions. The Partner retains discretion to provide alternative, substitute, or supplemental instructions to Fleet-Go at any time for how to further distribute the Partner’s funds. Subject to the limitations of this Agreement, to the extent required by payment card industry standards, and without limiting any of the Partner's own obligations under this Agreement, Fleet-Go will maintain the security of cardholder data to the extent and while it stores, processes, or transmits such data on behalf of the Partner.
4.8. Individual Accounts. Regulatory requirements may require that the Partner maintain an individual account with a service provider to collect Customer Payments. In such a case, the Partner will be subject to terms entered into directly with the service provider, which may be subject to change. The Partner may be required to provide, directly to Fleet-Go Platform’s service provider, client information, address, license and any additional information as may be further required. The Partner grants permission to Fleet-Go and its service provider to connect or otherwise set up the Partner’s account with Fleet-Go’s account with the same service provider so as to accept payments on the Fleet-Go Platform.
5. Prices.
Generally.
5.1.The Partner is responsible for determining and entering the Retail Prices for the Partner’s services and parts offered to Customers via the Fleet-Go Platform, which, unless otherwise agreed in writing between Fleet-Go and the Partner, will match the In-Store Price for such Items at the applicable Partner Location, or if the parties have agreed to a markup, such In-Store Price plus the markup.
5.2. Fleet-Go is responsible for determining and entering the prices for the car pick-up and delivery services offered to Customers via the Fleet-Go Platform, which, unless otherwise agreed in writing between Fleet-Go and the Partner, will match the Fleet-Go Platform price for such car pick-up and delivery service at the applicable Partner Location, or if the parties have agreed to a markup, such Fleet-Go Platform price plus the markup.
6. Gratuities.
For the car pick-up and delivery services via the Fleet-Go Platform, unless otherwise agreed in writing between Fleet-Go Platform and the Partner, the Partner agrees to allow Partner's Customers to provide gratuities through Fleet-Go Platform. Fleet-Go Platform must remit to the Fleet-Go Driver the full value of any gratuities provided by Customers. It is the Partner’s sole responsibility to comply with all applicable Laws (including tax, gratuity, social security and employment Laws where applicable) regarding the distribution of any gratuities for Partner's car pick-up and delivery orders.
7. Required Licenses.
The Partner must hold and maintain any and all Required Licenses. Upon Fleet-Go’s request, the Partner must provide copies of applicable Required Licenses to Fleet-Go. The Partner will immediately notify Fleet-Go of any change, expiration, revocation, renewal, or termination of any applicable Required Licenses and will, upon Fleet-Go’s request, provide copies of any new applicable Required Licenses to Fleet-Go. Failure to comply with the Partner’s obligations in this section may result, at the sole discretion of Fleet-Go, in the suspension and/or removal of the Partner from the Fleet-Go Platform.
8. Role of the parties.
Fleet-Go does not hold a Required License for the Partner's service, sale of parts, and only facilitates the payment and promotion and/or marketing of Partners, and the promotion, marketing, and/or provided services, sale of parts by third parties via the Fleet-Go Platform. The Partner, in its sole discretion, sets the price of service and/or parts that the Partner offers Customers via the Fleet-Go Platform. The Partner enters into contracts with Customers for the service and/or sale of parts directly or via the Fleet-Go Platform. Orders for service and/or parts solicited via the Fleet-Go Platform will be transmitted to the Partner. The Partner is responsible for and will control the service and/or sale of any parts, and including any decisions regarding accepting, fulfilling, and rejecting orders for such service and/or parts.
9. Fees.
9.1. Fleet-Go Platform Fees.
Fleet-Go will charge the Partner Fleet-Go Platform Fee on Partner’s orders for service and/or parts placed by the Partner and paid by Customers through the Fleet-Go Platform.
9.2. Pick-up and Delivery Fees.
Fleet-Go will charge Partner's Customers the Pick-up and Delivery Fee for car pick-up and delivery services according to Fleet-Go Platform price or Partner's price and discounts if applicable.
9.3. Fleet-Go reserves the right to assess and collect from the Partner any fines, dues, assessments and other out-of-pocket costs incurred by Fleet-Go or its Affiliates in providing order processing support and related services.
9.4. Notwithstanding the above, if preferred, the Partner may also authorize Fleet-Go to withdraw funds from the Partner Connect Account via Partner Connect Account transfer for any amounts owed by the Partner under this Agreement and, if necessary, initiate credit entries and adjustments in the event of any errors. The Partner understands and agrees that:
9.5. funds may be withdrawn to satisfy any payment obligation owed to Fleet-Go by the Partner;
9.6. Fleet-Go is not responsible for errors resulting from receipt of incorrect banking information or any charges incurred as a result of Partner Connect Account withdrawals.
9.7. Partner Connect Account transfers authorized under this Agreement comply with applicable law;
9.8. the Partner consents to the Partner Connect Account Operating Rules as they exist on the Effective Date, or as subsequently adopted, amended, or repealed; and
9.9. The Partner may terminate its authorization at any time in writing to Fleet-Go, effective 30 days after Fleet-Go’s receipt of such termination.
9.10. The Partner agrees that Fleet-Go may use the fees paid by the Partner under this Agreement to remit payment to the Fleet-Go Drivers who pick-up and deliver cars for orders and Partner must make such payment in accordance with the terms of such invoice
10. System implementation.
If this Agreement requires Fleet-Go to update its internal technology, accounting, or other systems, such updates may not occur immediately from the Effective Date. Instead, Fleet-Go may implement such updates within a reasonable period of the Effective Date and they will take effect from the date that the technology, accounting, or other system is updated rather than the Effective Date.
11. Limited payment collection agent.
The Partner appoints Fleet-Go as the Partner’s limited payment collection agent for the purposes of collecting the Retail Price and Sales Taxes from Customers through the Fleet-Go Platform, and with respect to any orders occurring through Fleet-Go Platform, remitting for services and/or parts revenue to the Partner. The Partner is responsible for providing accurate bank account information and any other identifying information necessary to Fleet-Go so that Fleet-Go can further remit Partner funds to an account connected to the Partner's business conducted through the Fleet-Go Platform. In certain situations, such as a violation of the Community Guidelines, including, but not limited to, fraud, misconduct, or Customer complaints, Fleet-Go reserves the right to adjust, cancel, or withhold payments entirely. The Partner’s only recourse for non-payment of services and/or parts revenue is against Fleet-Go. Fleet-Go has the right to disclose its status as Merchant’s limited payment collection agent as necessary.
12. Payment compliance.
Fleet-Go may request information from the Partner to confirm the Partner’s identity as may be necessary under any applicable Laws before remitting any amounts to the Partner, e.g., the Partner’s tax identification number. Fleet-Go may adjust, cancel, or withhold amounts owed to the Partner if:
12.1. the Partner fails to provide tax or employer identification information to Fleet-Go; and/or
12.2. there is a legal or regulatory risk or potential breach of law or regulation associated with such remittance to the Partner, including, but not limited to, in the event of fraud or misconduct.
12.3. The Partner agrees that Fleet-Go may describe or otherwise reflect the terms of this section, and any related portions of the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent.
13. Deductions from payments to the Partner.
Fleet-Go may deduct any amounts owed to Fleet-Go by the Partner from service and/or parts revenue before Fleet-Go pays that service and/or parts revenue to the Partner.
No fees for certain tools.
For clarity, Fleet-Go will not charge the Partner for access to the Fleet-Go Platform.
14. Taxes on Fees.
All fees charged by Fleet-Go to the Partner are exclusive of applicable Sales Taxes. Where applicable, Fleet-Go will charge Sales Taxes in addition to (and may collect Sales Taxes in the same manner as) the associated fee.
15. Taxes.
15.1. Partner as retailer.
The Partner is the “merchant”, “retailer”, or “seller” of all service and/or parts to be made available for pay through the Fleet-Go Platform. The Partner is responsible for determining and setting the Retail Price for each service and/or parts and for the collection and remittance of all applicable Sales Taxes, where required under applicable Laws.
15.2. Authorization to collect Sales Taxes.
The Partner authorizes Fleet-Go to collect Sales Taxes on the Partner's behalf based on the information provided by the Partner (including, without limitation, service and/or parts descriptions and additional information) to Fleet-Go through the Fleet-Go Platform or in a manner as otherwise agreed to by the parties.
15.3. Fleet-Go Platform and Sales Taxes.
The Fleet-Go Platform functionality may be based on interpretations of federal, state, and local Laws and information provided by taxing authorities. The Partner’s use of the Fleet-Go Platform, including any communications with Fleet-Go, in no way constitutes the provision of legal or tax advice.
15.4. Removal of Unsupported services and/or parts.
15.4.1. The Fleet-Go Platform may not currently support Sales Tax configurations applicable to certain service and/or parts for which the Partner desires to accept payment through the Fleet-Go Platform. In such cases, Fleet-Go retains sole discretion regarding whether the Partner may offer such Items for sale through the Fleet-Go Platform. Fleet-Go may give the Partner notice of certain Items or Item categories that are Unsupported services and/or parts.
15.4.2. The Partner agrees to comply with such notice, and if the Partner does not comply, the Partner will be solely responsible for all risk of loss associated with the continued sale of such Unsupported services and/or parts. The Partner must promptly notify Fleet-Go if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by the Partner are not in accordance with (or in violation of) any Laws, Fleet-Go expressly reserves the right to, upon prior notice to the Partner, deactivate the Partner on the Fleet-Go Platform.
15.5. Cooperation.
The parties agree to cooperate in good faith in response to any tax authority inquiry, audit, controversy, and/or examination for purposes of substantiating and documenting Sales Taxes collected and remitted pursuant to sales under this Agreement.
16. Services and/or parts.
16.1. Services and/or parts standards and accuracy.
The Partner must:
16.1.1. Provide, handle, store, label all services and/or parts in accordance with applicable Laws, Laws related to the services and/or parts;
16.1.2. when using the Fleet-Go Platform, or otherwise making services and/or parts available through the Fleet-Go Platform, identify services and/or parts correctly, particularly where the services and/or parts may be subject to restrictions or identification requirements;
16.1.3. determine any services and/or parts criteria, and is responsible for ensuring that all services and/or parts criteria meet the applicable services and/or parts criteria;
16.2. Services and/or parts responsibility.
The Partner is responsible for any reimbursement costs related to Customer refunds for substandard services and/or parts or other related issues within the Partner’s control (including any costs associated with retrieving substandard services and/or parts or otherwise unsatisfactory service(s) and/or part(s), if applicable)), including by way of example, services and/or parts not in accordance with the Partner’s internal standards.
16.3. Car and/or parts title.
The Partner agrees that neither Fleet-Go nor the Fleet-Go Driver takes title to any cars or parts at any time.
16.4. Car Compliance.
The Partner may not request pickup and/or delivery of any vehicles that do not meet internal vehicle requirements through the Fleet-Go Platform. Vehicle requirements are located at https://fleet-go.com/termofuse
16.5. Records required by Laws.
Where:
16.5.1. Laws require the Partner to collect and retain certain information in relation to the sale of parts (which may include Personal Information);
16.5.2. it is impossible for the Partner to directly collect that information; and
16.5.3. Fleet-Go Platform is reasonably able to collect and retain that information, then the Partner instructs Fleet-Go to, and Fleet-Go, pursuant to the Partner's instruction:
16.5.4. will collect and retain that information as required by the applicable Laws; and
16.5.5. may disclose that information directly to the applicable authorities instead of providing it to the Partner where the applicable Laws allow.
17. Devices.
If Fleet-Go supplies a Device to the Partner, the Partner agrees that:
17.1. Devices may only be used for the purpose of accepting orders via the Fleet-Go Platform;
17.2. Devices may not be transferred, loaned, sold or otherwise provided in any manner to any third party;
17.3. Devices will at all times remain the property of Fleet-Go or its Affiliates;
17.4. upon expiration or termination of this Agreement, or the absence of all of the Partner’s Locations from the Fleet-Go Platform for longer than 30 days, the Partner will return all applicable Devices to Fleet-Go within 10 days;
17.5. if the Partner receives a wireless data plan for a Device, Fleet-Go may charge a weekly reimbursement to the Partner for the costs associated with the wireless data plan of each applicable Device;
17.6. the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a damage fee; and
17.7. Fleet-Go may deduct the reimbursement or damage fee from payments due to the Partner.
18. Fleet-Go Drivers.
Fleet-Go is responsible for contracting terms with all Fleet-Go Drivers using the Fleet-Go Platform to provide transportation or other services. The following must apply:
18.1. Screening standards.
Fleet-Go must ensure that all prospective Fleet-Go Drivers are screened using a third-party service accredited by a nationally-recognized background screening organization, to the extent such organization exists. The screening standard applied must conform to Fleet-Go’s then-current background check practices on the Fleet-Go Platform and in the relevant jurisdiction.
18.2. Screening information.
During the course of the screening process the following information must be collected and maintained (unless such information should not be maintained due to privacy considerations or other applicable Laws) in accordance with Fleet-Go’s then-current practices:
- full name;
- date of birth; and
- driver’s license number or government identification number.
The Partner is solely responsible for providing all Customer support for service or parts paid through the Fleet-Go Platform. The Partner will provide Fleet-Go with a customer service phone number that will be displayed to Customers in the Fleet-Go Platform so that Customers may direct their support inquiries to the Partner. The Partner is solely responsible for resolving all complaints and issues raised for service or parts paid through the Fleet-Go Platform and will accept and respond to all related customer service inquiries from Customers.
20. Ratings, Customer Feedback, and In-Platform Communications.
20.1. Platforms' functionality.
The Partner acknowledges and agrees that:
20.1.1. after receiving service or parts, a Customer may be prompted by the Fleet-Go Platform's to provide Customer Feedback; and
20.1.2. Fleet-Go Platform's may allow for In-Platform's Communications.
20.2. Use of Customer Feedback and In-Platform Communications.
Fleet-Go reserves the right to use, share, and display Customer Feedback and In-Platform Communications in any manner in connection with the business of Fleet-Go without attribution or approval with the Partner.
20.3. Content restriction.
Partner agrees that Fleet-Go is online service providers and is not publishers of Customer Feedback or In-Platform Communications; nonetheless, Fleet-Go may, but will not be obligated to, review or monitor Customer Feedback or In-Platform Communications and may, in their sole discretion, remove, edit, or disable Customer Feedback or In-Platform Communications for any reason, including if Fleet-Go determine that Customer Feedback or In-Platform Communications violate this Agreement, Fleet-Go’s Personal data processing policy, the terms of any other agreement either located at fleet-go.com or that the Partner may have with Fleet-Go, any user generated content or other content creation guidelines and/or policies that may be provided to the Partner by Fleet-Go from time to time, and applicable Laws. Fleet-Go do not endorse or approve any Customer Feedback or In-Platform Communications available on the Fleet-Go Platform..
20.4. User Generated Content Terms.
All Customer Feedback and In-App Communications are subject to the User Generated Content Terms.
21. Term and termination.
21.1. Term.
This Agreement starts on the Effective Date, and continues for the Term.
21.2. Termination for convenience.
Either party may terminate the Agreement for any reason, or for no reason, by giving the other party 60 days’ prior written notice. However, the Partner acknowledges and agrees that the Partner will not be able to terminate this Agreement while a Promotion is live.
21.3. Termination for cause.
Either party may terminate the Agreement with immediate effect by giving the other party written notice, if that other party:
21.3.1. materially breaches the terms of this Agreement;
21.3.2. becomes insolvent or bankrupt, or makes an assignment for the benefit of creditors;
21.3.3. is involved in a Brand Matter or in any scandal or other significant negative publicity event(s), which in the terminating party’s reasonable judgment may damage the terminating party’s reputation; or
21.3.4. in the case of the Partner, assigns or transfers, either voluntarily or by operation of law, any or all of its rights and obligations under this Agreement without having obtained Fleet-Go’s prior consent.
21.4. Effect on Promotions.
Termination of this Agreement will not relieve either party of its obligations to fulfill any Promotion that has been redeemed by Customers in accordance with its terms.
22. Marketing and Promotions.
22.1. Marketing.
Fleet-Go may showcase the availability of the Partner’s service via the Fleet-Go Platform through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). All Promotions and Sponsored Listings remain subject to any and applicable Laws, including marketing and advertising Laws, consumer protection Laws.
22.2. Control of Fleet-Go Platform.
The parties acknowledge and agree that:
22.2.1. the Partner controls the Retail Price of service and/or parts paid through the Fleet-Go Platform;
22.2.2. the Fleet-Go Platform are a competitive online-service where the Partner, the Partner’s Brand may each be displayed together with, alongside with the Partner’s competitors and other third parties that may promote or sell service or parts through the Fleet-Go Platform;
22.2.3. nothing in this Agreement prevents Fleet-Go from presenting the Partner, the Partner’s Brand together with, alongside, with the Partner’s competitors and other third parties that may promote or sell service or parts through the Fleet-Go Platform;
22.2.4. the Partner is not entitled to any compensation for marketing on the Partner’s through the Fleet-Go Platform;
22.3. Publicity.
Except as expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
23. Privacy and security.
23.1. Passwords.
The Partner is responsible for maintaining the integrity of information related to the Partner’s access and use of the Fleet-Go Platform, including any password, login or key information. The Partner represents and warrants that the Partner will not share such information with any third party.
23.2. Personal data processing policy.
The terms and conditions of the Fleet-Go personal data processing policy , will apply to Fleet-Go’s collection, use and processing of personal Information. The current version is located at https://fleet-go.com/policy.
23.3. Data re-identification restriction.
Without limiting any other provision of this Agreement, the Partner will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any personal Information, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any personal Information, for the purpose of re-identification, targeted marketing, or any other similar purpose. For clarity, this section does not restrict the Partner in its use of personal Information, either on its own or in conjunction with data collected from sources other than the Fleet-Go Platform, that the Partner obtained directly from the data subjects in question, in accordance with the Partner’s own privacy policy.
23.4. Fleet-Go Personal Information.
In relation to Fleet-Go personal information, the Partner agrees to:
23.4.1. use, disclose, store, retain or otherwise process Fleet-Go personal information solely for the purpose of performing its obligations under this Agreement;
23.4.2. maintain the accuracy and integrity of any Fleet-Go personal information in Partner’s possession, custody or control;
23.4.3. access Fleet-Go personal Information solely by using the software and tools provided by Fleet-Go;
23.4.4. implement appropriate technical and organizational measures to protect Fleet-Go personal information against data security incidents. If Partners becomes aware of any data security incidents, Partner will immediately notify Fleet-Go and provide any information reasonably requested by Fleet-Go;
23.4.5. retain Fleet-Go personal information for only so long as necessary to perform its obligations under this Agreement, unless otherwise required under applicable laws; and
23.4.6. comply with all applicable privacy and data protection Laws with respect to all Fleet-Go personal information.
23.5. Personal Information sharing required by Laws.
Where Fleet-Go is required by Laws to share certain personal information with the Partner (other than Fleet-Go personal information), Fleet-Go will share only that personal information with the Partner as required by the applicable Laws. If the Partner receives any personal information from Fleet-Go pursuant to this section, the Partner agrees to use, disclose, store, retain or otherwise process that personal information solely for the purposes of complying with the applicable Laws and in compliance with applicable privacy and data protection Laws.
24. Multiple accounts.
If the Partner creates separate accounts in the Fleet-Go Platform, and agrees to separate agreements for each account in the Fleet-Go Platform, then the agreement associated with each account in the Fleet-Go Platform will apply to the Locations associated with that account.
25. Intellectual property.
25.1. Brand licensing.
Subject to this Agreement, the parties grant each other for the Term a fully paid, royalty-free, non-exclusive, non-sublicensable, revocable license to use each other’s Brands in marketing materials and in media releases. Other than as specifically set forth in this Agreement, neither party will use the other party’s Brand without the prior, express, written consent of the other party (email is sufficient). However, any use of the Partner’s brand by Fleet-Go in connection with making service or parts paid through the Fleet-Go Platform in the ordinary course of business will not require any such prior, express, written consent. The Partner agrees that Fleet-Go may remove the Partner’s Brand from the Fleet-Go Platform if Fleet-Go receives notice or otherwise reasonably believes that such Partner’s Trademarks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
25.2. Brand use.
Each party’s use of the other party’s Brand or Trademarks, and all goodwill generated from that use, will insure to the benefit of the owner of the applicable Brand or Trademarks.
25.3. License to Fleet-Go Platform.
Subject to the Partner’s compliance with the terms of this Agreement, Fleet-Go grants to the Partner, for the Term, a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Fleet-Go Platform.
25.4. Use restrictions.
In connection with the access to and use of the Fleet-Go Platform, the Partner must not (and must not allow any third party to):
25.4.1. remove any copyright, trademark or other proprietary notices from any portion of the Fleet-Go Platform;
25.4.2. reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Fleet-Go Platform except as expressly permitted by Fleet-Go;
25.4.3. decompile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Fleet-Go Platform (except to the extent applicable Laws prohibits reverse engineering restrictions);
25.4.4. link to, mirror or frame any portion of the Fleet-Go Platform;
25.4.5. cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Fleet-Go Platform;
25.4.6. attempt to gain unauthorized access to or impair any aspect of the Fleet-Go Platform or its related systems or networks; or
25.4.7. possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control Laws administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. The Partner must not (and will not allow any third party to) use the Fleet-Go Platform or any other Fleet-Go data to directly or indirectly compete with Fleet-Go or its Affiliates or the Fleet-Go Platform, including, without limitation, Fleet-Go data that the Partner receives from Fleet-Go by way of a third party access service.
25.5. Fleet-Go Platform ownership.
Fleet-Go owns all rights, title and interest, including without limitation all intellectual property rights and other rights, in and to Fleet-Go Platform.
25.6. Retention of rights.
Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. As between the parties, if applicable, Fleet-Go retains all right, title and interest in and to the Fleet-Go technology and software. Similarly, as between the parties, Fleet-Go retains all right, title and interest in and to the Fleet-Go Platform, including the technology and software Fleet-Go uses to provide them.
25.7. Feedback.
The Partner may, but is not obligated to, provide or otherwise make Feedback available to Fleet-Go. However, to the extent that the Partner provides or otherwise makes available Feedback to Fleet-Go, the Partner grants to Fleet-Go a worldwide, perpetual, irrevocable, transferable, sub-licenseable, royalty-free license to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Feedback in all formats and distribution channels now known or hereafter devised (including in connection with the Fleet-Go Platform, and on third-party sites and services), without further notice to or consent from the Partner, and without the requirement of payment to the Partner or any other person or entity.
26. Partner acknowledgements.
26.1. Lead generation, not delivery, services.
For the sake of clarity, neither Fleet-Go, nor its Affiliates in the United States of America, provide any delivery services. Rather, Fleet-Go provides on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services that both:
26.1.1. enable the Partner to connect with Customers who may get and pay service and parts from the Partner; and
26.1.2. enable Fleet-Go Drivers to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services.
26.2. Fleet-Go Drivers and service or parts.
The Partner expressly acknowledges and agrees that:
26.2.1. any and all delivery services to the Partner are provided not by Fleet-Go but by a Fleet-Go Drivers who provides independent third-party delivery services;
26.2.2. Fleet-Go Drivers perform their delivery services for (and are paid by) the Customers, and not the Partner;
26.2.3. Fleet-Go Drivers will not purchase any Partner's service or parts;
26.2.4. a Fleet-Go Drivers reserves the right to refuse to accept any car pick-up or delivery in their sole discretion;
26.2.5. a Fleet-Go Drivers must not be responsible for service or refuel Customer car's;
26.2.6. Fleet-Go is acting solely as an administrative agent to relay requests for car pick-up and delivery services by or on behalf of Customers seeking pick-up and delivery services;
26.2.7. neither Fleet-Go nor the Fleet-Go Drivers takes title to any cars or parts at any time;
26.2.8. no bailment is created by the Partner’s use of Fleet-Go Platform, and Fleet-Go is not a bailee of cars or parts; and
26.2.9. to the limited extent required by applicable Laws, service and parts are sold under the Partner’s retail and service license privileges.
27. Representations and warranties.
27.1. Mutual representations, warranties, and covenants.
Each party represents and warrants that:
27.1.1. it has full power and authority to enter into this Agreement and perform its obligations hereunder;
27.1.2. it is duly organized, validly existing and in good standing under the Laws of its origin jurisdiction;
27.1.3. it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing its obligations under this Agreement;
27.1.4. it will comply with all applicable Laws in its performance of this Agreement and activities hereunder (including, without limitation, all applicable consumer protection, data protection and privacy Laws); and
27.1.5. the Trademarks, content, media and other materials used or provided by one party to the other pursuant to this Agreement must not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.
27.2. Partner representations and warranties.
The Partner represents and warrants that:
27.2.1. the following information will be provided to Fleet-Go by the Partner, will be accurate and complete, and will remain accurate and complete at all times:
27.2.2. Additional Information for service and parts, including information transmitted through a Fleet-Go Platform, sufficient for accurate Sales Tax calculations; and
27.2.3. address and opening hour information for each Location;
27.2.4. any statements or claims contained within any Partner marketing materials, or any marketing or advertising by the Partner outside of the Fleet-Go Platform where such marketing or advertising refers to Fleet-Go, are not false, misleading, or deceptive, AND are supported by sufficient prior substantiation, and comply with applicable Laws;
27.2.5. it will comply with any applicable Federal Trade Commission (FTC) Used Car Rule, Truth in Lending Act, National Institute for Automotive Service Excellence (ASE) Certification, Magnuson-Moss Warranty Act, National Highway Traffic Safety Administration (NHTSA) Regulations, Federal Motor Vehicle Safety Standards or other Laws;
27.2.6. it will comply with all its obligations with respect to service or parts under this Agreement;
27.2.7. it will comply with all applicable privacy and data protection Laws with respect to all Personal Information it receives from Fleet-Go pursuant to this Agreement;
27.2.8. it will comply with all Laws related to the sale of car, service or parts applicable to the Partner, including without limitation, all Laws related to the promotion, pricing, sale, taxation; and
27.2.9 it has and will continue to have during the Term all Required Licenses, including without limitation, Required Licenses for the specific categories of service or parts that the Partner makes available via the Fleet-Go Platform and/or Required Licenses to sell and deliver car's, service or parts in a given state or local jurisdiction.
28. Covenants.
The above representations and warranties are true as of the Effective Date and the parties represent and warrant that they will continue to be true throughout the Term.
29. Indemnification.
29.1. Mutual indemnities.
An Indemnifying Party will, at its own expense, indemnify, defend and hold harmless the Indemnified Party from and against all Claims brought against the Indemnified Party by a third party arising from or in connection with:
29.1.1. the gross negligence or willful misconduct of the Indemnifying Party, or its employees, or agents in connection with the performance of this Agreement;
29.1.2. any breach of representations and warranties in this Agreement by the Indemnifying Party or its employees, or agents; or
29.1.3. any violation or claimed violation of a third party’s rights resulting in whole or in part from use of the Indemnifying Party’s Brand or Trademarks,
except to the extent that:
29.1.4. the Claim brought against the Indemnified Party by the third party was directly caused or contributed to by the gross negligence or willful misconduct of the Indemnified Party or its employees or agents; or
29.1.5. the Indemnified Party did not use the Indemnifying Party’s Brands or Trademarks in accordance with the manner approved by the Indemnifying Party.
29.2. Partner indemnities.
The Partner will, at its own expense, indemnify, defend and hold harmless Fleet-Go, from and against all Claims brought against Fleet-Go by a third party arising from or in connection with:
29.2.1. the Partner’s violation or alleged violation of Federal Trade Commission (FTC) Used Car Rule, Truth in Lending Act, National Institute for Automotive Service Excellence (ASE) Certification, Magnuson-Moss Warranty Act, National Highway Traffic Safety Administration (NHTSA) Regulations, Federal Motor Vehicle Safety Standards or other Laws;
29.2.2. Partner’s failure to provide accurate and complete descriptions or Additional Information for service or parts, including information transmitted through a Fleet-Go Platform, sufficient for accurate Sales Tax calculations;
29.2.3. Partner’s failure to comply with a notice with respect to Unsupported service or parts; and
29.2.4. the Partner’s violation or alleged violation of its obligations with respect to service or parts under this Agreement.
29.3. Indemnification process.
The Indemnified Party will provide the Indemnifying Party with:
29.3.1. prompt written notice of such Claim;
29.3.2. control over the defense and settlement of such Claim, provided that the Indemnifying Party must not enter into a settlement that involves a remedy other than the payment of money by the Indemnifying Party without the express written consent of the Indemnified Party, which must not be unreasonably withheld; and
29.3.3. proper and full information and assistance to settle or defend any such Claim, at the Indemnifying Party’s expense.
30. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS:
30.1. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF PARTNER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
30.2. EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $50,000.
THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES
.
31. DISCLAIMER.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
32. Insurance.
32.1. Insurance requirements.
During the Term each party will maintain:
32.1.1. commercial general liability insurance;
32.1.2. if required by Laws, worker’s compensation insurance; and
32.1.3. commercial automobile liability insurance.
32.2. Minimum insurance limitations.
32.2.1. Commercial general liability. The commercial general liability insurance policy limits will be one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and two million dollars ($2,000,000) in aggregate.
32.2.2. Commercial automobile liability. The commercial automobile liability insurance limits will be one million dollars ($1,000,000) combined single limit for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles.
32.3. Minimum insurance requirements.
All policies will be written by reputable insurance companies with an AM Best’s policyholder rating of not less than A-. Such insurance will not be canceled or materially reduced without 30 days’ prior written notice to the other party.
32.4. Certificates and additional insured.
Upon a party’s request, the other party will provide evidence of the insurance required herein. Each party must include the other as an additional insured on its commercial general liability and commercial automobile liability policies.
32.5. No limitation of liability.
In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
32.6. Insurance of Fleet-Go Platform.
If the Partner will use the Fleet-Go Platform as part of this Agreement, the Partner’s commercial general liability and commercial automobile liability insurance policies must cover the acts and omissions of Fleet-Go Platform.
33. Confidentiality.
33.1. Obligation to keep Confidential Information confidential.
Each recipient agrees that it will not disclose to any third parties other than representatives, or use in any way other than as necessary to perform this Agreement, the discloser’s confidential information.
33.2. Recipient’s responsibility for Representatives.
Recipients will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information.
33.3. Exclusions from obligations of confidentiality.
The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent:
33.3.1. the Discloser has authorized such use or disclosure; and
33.3.2. a Recipient is required to disclose certain Confidential Information of the Discloser pursuant to any Laws, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure.
33.4. Deletion of Confidential Information.
Upon expiration or termination of this Agreement and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
34. Disputes.
34.1. Scope of arbitration.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from arbitration.
34.2. Negotiation of disputes.
The parties will attempt to resolve all disputes between the parties arising out of or relating to this Agreement amicably through good faith negotiations upon the written request of any party.
34.3. Commencing arbitration.
In the event that any dispute cannot be resolved within a period of 45 days after notice of a dispute has been given, all such disputes will, at election of either party, be finally resolved by final and binding arbitration in the State of North Carolina administered by JAMS, and in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one arbitrator with substantial experience in the technology industry selected in accordance with JAMS rules.
34.4. No class actions.
All disputes will be resolved on an individual basis and neither party has the right to arbitrate on a class action basis any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including this arbitration clause.
34.5. Arbitration costs.
The arbitrator will have the authority to allocate between the parties the costs of arbitration (including service fees, arbitrator fees, reasonable attorneys’ fees, expert witness fees and all other fees and expenses related to the arbitration) in such an equitable manner as the arbitrator may determine. Judgment on the arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction.
34.6. Court action.
Notwithstanding the foregoing provisions of this “disputes” section, each party may seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute related to the actual or threatened infringement, misappropriation of a party’s intellectual property rights or breach of confidentiality obligations.
35. Notices.
35.1. Receipt of notices.
Any and all notices permitted or required to be given under this Agreement will be sent and deemed duly given:
35.1.1. upon actual delivery, if delivery is by hand;
35.1.2. one day after being sent by overnight courier, charges prepaid; or
35.1.3. by electronic mail to the designated recipient.
35.2. Notices to the Partner.
The parties agree that all legal documents (including complaints and subpoenas) directed to the Merchant will be served on the Merchant at the details provided in the Fleet-Go Platform.
35.3. Notices to Fleet-Go.
The parties agree that all legal documents (including complaints and subpoenas) directed to Fleet-Go served on the Fleet-Go at the details provided in the Fleet-Go Platform available online at https://www.fleet-go.com.
36. Supplemental terms.
Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. Fleet-Go will use good faith efforts to provide the Partner with written notice of any material updates to the Supplemental Terms, and, if the Partner does not agree to comply with the terms of any such update, the Partner may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Fleet-Go Platform. By continuing to use the Fleet-Go Platform, the Partner will be deemed to accept the Supplemental Terms.
37. Diversity and inclusion.
The Partner will not, in its use of the Fleet-Go Platform, discriminate against any customer, employee, contractor, Fleet-Go Driver or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Fleet-Go and the Partner. The Partner acknowledges and agrees that upon Fleet-Go’s receipt of evidence of the Partner’s discrimination under any of these categories, Fleet-Go will have the right to immediately terminate this Agreement following notice to the Partner.
38. General terms.
38.1. Amendments.
This Agreement may be amended, modified, or updated by Fleet-Go, in its sole discretion, from time to time, effective upon posting an updated version of this Agreement. The Partner is responsible for updating contact information and regularly reviewing the Agreement updates and information from Fleet-Go. Continued use of the Fleet-Go Platform after any such modifications or updates constitutes the Partner’s consent to such changes.
38.2. Assignment and novation.
This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party:
38.2.1. to an affiliate of such party; or
38.2.2. in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates, provided that in the event of any such transfer by the Partner, the Partner explicitly consents that any such transferee will have access to and control of all the Partner accounts related to such transfer, including its accounts with Fleet-Go, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. If there is a change of ownership of a Location, the parties must execute a change of ownership form and the Partner acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the Fleet-Go Platform until the change of ownership form is executed. Any purported assignment, transfer, delegation or subcontract in violation of this section will be null and void.
38.3 Counterparts.
If the Partner is agreeing to this Agreement through an order form or other signed instrument, such order form or written instrument may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.
38.4. Entire agreement.
This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to the Agreement’s subject matter.
38.5. Force majeure.
Nonperformance by either party due to a Force Majeure Event is excused. If either party is unable to perform pursuant to this section, such party will timely deliver written notice with sufficient information detailing the nature of the applicable Force Majeure Event. Such impacted parties will exercise all commercially reasonable efforts to minimize any Force Majeure Event and resume full performance as soon as reasonably practicable. If the Partner is unable to perform for more than thirty days, Fleet-Go may elect to terminate this Agreement without liability.
38.6. Governing law.
This Agreement is governed by the law of the State of North Caroline, except that the mutual arbitration provision is governed by both the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the law of the State of North Caroline. The parties agree that all disputes outside of the arbitration provisions will be heard in federal or state courts of the State of North Caroline.
38.7. Relationship.
The parties to this Agreement are independent contractors. The parties are not partners, agents, parties to a joint venture, nor do the parties have an employee and employer relationship. Except as set forth in this Agreement, each party is responsible for its own costs of conducting business and performing its obligations under the Agreement.
38.8. Severability.
If any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions) will remain in full force and effect.
38.9. Survival.
The terms and conditions of this Agreement which, by their nature, are intended to still apply, even if the Agreement is terminated, or expired, (e.g., confidentiality terms, or indemnification terms), will continue to apply even if the Agreement is terminated or expires.
38.10. Territory.
This Agreement applies in the United States of America (excluding Puerto Rico) and does not apply to the Partner’s use of the Fleet-Go Platform outside of the United States of America.
38.11. Waiver.
If a party waives a breach of this Agreement by the other party, it will not by that waiver be deemed to have waived any other breaches of this or any other agreement between the parties.
39. Definitions.
Capitalized words not otherwise defined in these Agreement Terms and Conditions will have the meanings assigned to those words in the rest of this Agreement, or in any exhibits, schedules, or attachments to this document, and documents incorporated by reference or by hyperlink. If there is a conflict between these Agreement Terms and Conditions and any of the other terms and conditions of this Agreement, the Agreement Details (if applicable), and then these Agreement Terms and Conditions will control, to the extent of the conflict. Capitalized words in this Agreement otherwise have the meanings set out below:
39.1. Additional Information means additional information pertaining to the Partner’s Location, Partner establishment type (e.g., dealership vs. service station, body shop), particular service or particular sales of parts, which Fleet-Go may, from time to time, require Partner to provide for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable Laws. Additional Information may include, without limitation, Global Trade Item Numbers (GTINs), Stock Keeping Units (SKUs), quantities.
39.2. Adverse Delivery Events means events such as inclement weather, high traffic, or poor driving conditions.
39.3. Affiliate means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party.
39.4. Agreement means the Agreement Terms and Conditions, plus any exhibits, schedules, or attachments, documents incorporated by reference or by hyperlink, and any documents that incorporate the Agreement Terms and Conditions by reference or hyperlink, such as an order form or similar written instrument.
39.5. Agreement Terms and Conditions means the part of this Agreement titled “Fleet-Go Partner Terms and Conditions”.
39.6. Fleet-Go Platform means the proprietary technology known as the “Fleet-Go Platform”, or similar proprietary technology of Fleet-Go that enables Customers to request car pick-up and delivery services for Customers vehicles from Fleet-Go Drivers and pay service and parts to the Partner.
39.7. Brand means the collection of a party’s brand identifiers which are generally used together, including but not limited to a combination of Trademarks, slogans, and color schemes. To the extent that a party is a licensee of a third party’s Brand, that Brand is deemed to be the licensee’s Brand for the purposes of this Agreement. For clarity, a party may hold, own, or license more than one Brand.
39.8. Claim means taxes, losses, liabilities, damages, claims, suits, liabilities, costs and expenses including reasonable attorney’s fees and other legal costs.
39.9. Confidential Information means any confidential, proprietary or other non-public information disclosed by one party to the other party whether disclosed verbally, in writing, in electronic form, or by inspection of tangible objects, including but not limited to any Personal Information. Confidential Information does not include information that:
39.9.1. was previously known to the Recipient without an obligation of confidentiality;
39.9.2. was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or
39.9.3. is or becomes publicly available through no fault of the Recipient.
39.10. Customer means an individual that purchases a car pickup and delivery service and/or pays Partner’s service or parts through the Fleet-Go Platform.
39.11. Customer Feedback means a rating of Fleet-Go Driver, Partner and comments or feedback related to the Customer’s experience with the Fleet-Go Driver, Partners or Fleet-Go Platform.
39.12. Customer Payments means payments from a Customer for car pick-up and delivery service, that the Customer purchases and Partner's service or parts that the Customer pays to the Partner via the Fleet-Go Platform.
39.13. Customer Transaction means the payment of car pick-up and delivery service to a Fleet-Go Driver and/or one or more service or parts by the Customer to a Partner via the Fleet-Go Platform.
39.14. Damage Fee means the reasonable cost of repairing or replacing a Device.
39.15. Data Security Incident means an actual or suspected unauthorized access to, acquisition or disclosure of Personal Information, or other actual or suspected breach of security or confidentiality with respect to Personal Information in the Partner’s or its Representatives’ control or possession.
39.16. Fleet-Go Driver means an independent contractor who uses the Fleet-Go Platform to car pick up and deliver from or/and to a Client Location.
39.17. Device means an electronic tablet or other electronic mobile device capable of receiving order information, and may also include a printer for receipts, and other associated electronic devices provided to the Partner by Fleet-Go.
39.18. Device Fee means the fee Fleet-Go charges for a Device, which may be changed by Fleet-Go.
39.19. Discloser means a party that provides Confidential Information to the other party.
39.20. Effective Date means the date that the Partner agreed to this Agreement.
39.21. Feedback means feedback, suggestions, comments, ideas, or other concepts relating to Fleet-Go’s and its Affiliate’s products and services.
39.22. Fees or Services Fee means the Damage Fees, Device Fees, Pickup and Delivery Fee,, but does not include, if applicable, the Delivery Fee, the Return Fee, or the Partner Managed Return Fee.
39.23. Force Majeure Event means any circumstance beyond the reasonable control of the affected party, which occurs on or after the Effective Date, which may include, but are not limited to, acts of God, fire, flood, explosion, war, terrorism, epidemics, pandemics, quarantine, unusually severe weather, embargo, action or request of governmental or judicial authority, strikes, labor stoppages or other industrial disturbances, civil commotion, civil riot or insurrection. For the avoidance of doubt, known Covid-19 variants at the time of execution of this Agreement should be construed as a known risk and will not constitute a Force Majeure Event; however, new variants of Covid-19 or any new variants of known diseases or new epidemic or pandemic events after the execution of the Agreement, may in fact, constitute a Force Majeure Event if such event triggers events beyond control of the affected party.
39.24. In-Platform Communications means communications within the Fleet-Go Platform between:
39.24.1. the Partner and Customers;
39.24.2. the Partner and Fleet-Go;
39.24.3. the Partner and Fleet-Go Driver;
39.24.4. Customers and Fleet-Go; or
39.24.5. Customers and Fleet-Go Drivers.
39.25. Indemnified Party means a party to this Agreement that has received or is subject to a Claim, and includes that party’s subsidiaries, Affiliates, officers, directors, agents, or employees, individually and collectively.
39.26. Indemnifying Party means the party to this Agreement that is not the Indemnified Party.
39.27. In-Store Price means, with respect to any service or parts paid via the Fleet-Go Platform, the actual price of such service or parts at Partners’s Location at the moment of checkout by a Customer.
39.28. Service or parts Revenue means the Retail Price plus Sales Tax collected on the Partner’s behalf for service or parts payed through the Fleet-Go Platform, less the Fees and, if applicable, any refunds given to Customers on behalf of Partner, which in the case of any service or parts sold via the Fleet-Go Platform, is disbursed to the Partner’s bank account, in accordance with the Partner’s instructions herein.
39.29. JAMS means Judicial Arbitration and Mediation Service, Inc.
39.30. Laws means codes, laws, legislation, licenses, orders (including court orders), ordinances, rules, regulations, or any other requirement imposed by a government authority.
39.31. Location means a location owned and operated by the Partner.
39.32. Fleet-Go Platform Fee means 0%, unless varied by agreement between the parties, which may be done through an order form, selection of a specific pricing package during an online sign-up process, or similar process incorporating this Agreement.
39.33. Platform Payment Channel, means the Payment Channel where the Partner’s service or parts are paid Customers in the Fleet-Go Platform who access and request car pick-up and delivery services provided by Fleet-Go Drivers.
39.34. Partner means the non-Fleet-Go legal entity that has agreed to this Agreement, and includes that entity’s, or those entities’, subsidiaries, Affiliates, directors, employees, agents, successors and assignees, as applicable.
39.35. Partner Brand means the Brand(s) used by the Partner pursuant to this Agreement. Partner’s Brand means the same as Partner Brand.
39.36. Partner Delivery Area means the geographic area in which Partner will be able to provide the Customers, who paid Partner's subscription the car pick-up and delivery services through the Fleet-Go Platform.
39.37. Partner Connected Account means a “for the benefit of” account into which Customer Payments would be held once collected from Customers on the Partner’s behalf, administered by Fleet-Go on behalf of, pursuant to the instructions of, and for the benefit of the Partner.
39.38. Platform Customer Personal Information means information about a Customer or that Customer’s Personal Information made available to the Partner in connection with a request for and use of delivery devices, which may include pick-up or/and delivery drop-off location, a Customer’s name or company name, a Customer’s contact information, a Customer’s signature, and a Customer’s photo, as well as any other relevant details specific to the items to be delivered.
39.39. Personal Information means any information obtained in connection with this Agreement:
39.39.1. relating to an identified or identifiable natural person;
39.39.2. that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and
39.39.3. any information that may otherwise be considered “personal data” or “personal information” under applicable Laws.
39.40. Fleet-Go means Fleet-Go, LLC.
39.41. Fleet-Go Personal Information means any Personal Information Fleet-Go provides to the Partner in connection with this Agreement, including but not limited to, Fleet-Go Customer Personal Information, name, contact information and car vin number, license plate number, and Fleet-Go Driver’ photo, name, contact information. For the avoidance of doubt, Portier Personal Information include Customer Personal Information.
39.42. Promotions means short-term offers that are available through the Fleet-Go Platform to stimulate Customer demand.
39.43. Recipient means a party that receives Confidential Information of the other party.
39.44. Partner Subscription means the various subscription membership programs of Partner that are made available to customers through the Fleet-Go Platform from time to time, and includes those subscription programs that were agreed with Fleet-Go.
39.45. Representatives means Recipient’s Affiliates, officers, directors, employees and agents who:
39.45.1. for the purposes of the “confidentiality” section of this Agreement, have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement; and
39.45.2. for any other section of this Agreement, are acting on the Partner’s behalf.
39.46. Required Licenses means licenses, permits, approvals, authority, registrations, certifications, or similar authorizations that may be required to provide service or sell parts , or to otherwise conduct business pursuant to the terms of this Agreement.
39.47. Retail Price means the price of a service or parts paid on the Fleet-Go Platform exclusive of separately stated Sales Taxes.
39.48. Sales Channel means a method through which Customers may place orders for the car pick-up and delivery service and pay Partner’s service and parts.
39.49. Sales Tax means any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes.
39.50. Supplemental Terms means the Community Guidelines and any supplemental terms that may apply to the Partner’s use of the Fleet-Go Platform, such as use policies or terms related to certain features and functionality, which may be modified from time to time.
39.51. Switchover Date means the date specified by Fleet-Go where Fleet-Go will begin to collect and remit Sales Tax to the taxing authority based on Service and parts descriptions and Additional Information provided by the Partner.
39.52. Term means the time period from the Effective Date until the date that this Agreement is terminated or expires.
39.53. Trademarks or Marks means trademarks, trade names, service marks, copyrights (such as product photography), logos, slogans and other identifying symbols and indicia of the applicable party.
39.54. Fleet-Go Platform means Fleet-Go’s software applications and other proprietary technology, including any underlying data or data structures therein, accompanying documentation, and any updates or revisions to the foregoing.
39.55. Fleet-Go Competitor means any and all third parties engaged in similar facilitation of on-demand car pick-up and delivery services.
39.56. Fleet-Go Data means transactional, operational, performance or other data or information that is related to the sale of service and parts to Customers through the Fleet-Go Platform.
39.57. Fleet-Go Platform means the online car pick-up and delivery service, as made available through the Fleet-Go website, mobile application or other technology interface for the Customers, Partners and Fleet-Go Drivers to access and use the Fleet-Go Platform, which may include Fleet-Go's and its Affiliates' proprietary technology platform referred to as “Fleet-Go” as may change from time to time, through which the Customers, Partners and Fleet-Go Drivers may, among other things, receive, accept and fulfill requests from Customers as well as the Partner Payment Channel.
39.58. Fleet-Go Personal data processing policy means Fleet-Go’s then-current Personal data processing policy, currently available at:.https://fleet-go.com/policy
40. Interpretation.
The following also applies to the interpretation of this Agreement:
40.1. To the extent of any inconsistency between the terms and conditions or Fees set out in the Agreement Details (if applicable), or the terms and conditions included in the Agreement Terms and Conditions, the information in the Agreement Details prevails.
40.2. Terms used as plurals may also be interpreted as singular, and vice-versa.
40.3. Any references to dollars or currency means US dollars unless otherwise indicated.
40.4. If the words “including”, “such as”, “for example”,”e.g.”, or similar terms, are used in any section, the words “without limitation” are implied.
40.5. Any reference to a “party” or “parties” means a party to this Agreement.
40.6. Any references to the Partner, if the Partner includes multiple legal entities, means each of those entities jointly and severally.
40.7. Any hyperlinks included in this Agreement also refer to the future updated versions of those links, and if a hyperlink becomes inactive, or the hyperlinked location of a document in this Agreement is amended, the new hyperlink location of the same or updated version of that document applies instead of the incorrect or superseded hyperlink in this document.
40.8. Headings, notes, and captions used in this Agreement are for reference purposes only and should not have any effect on the interpretation of this Agreement.
Publication date 07.16.2023 г.
© All Rights Reserved. Fleet-Go, LLC, 2022
The above representations and warranties are true as of the Effective Date and the parties represent and warrant that they will continue to be true throughout the Term.
29. Indemnification.
29.1. Mutual indemnities.
An Indemnifying Party will, at its own expense, indemnify, defend and hold harmless the Indemnified Party from and against all Claims brought against the Indemnified Party by a third party arising from or in connection with:
29.1.1. the gross negligence or willful misconduct of the Indemnifying Party, or its employees, or agents in connection with the performance of this Agreement;
29.1.2. any breach of representations and warranties in this Agreement by the Indemnifying Party or its employees, or agents; or
29.1.3. any violation or claimed violation of a third party’s rights resulting in whole or in part from use of the Indemnifying Party’s Brand or Trademarks,
except to the extent that:
29.1.4. the Claim brought against the Indemnified Party by the third party was directly caused or contributed to by the gross negligence or willful misconduct of the Indemnified Party or its employees or agents; or
29.1.5. the Indemnified Party did not use the Indemnifying Party’s Brands or Trademarks in accordance with the manner approved by the Indemnifying Party.
29.2. Partner indemnities.
The Partner will, at its own expense, indemnify, defend and hold harmless Fleet-Go, from and against all Claims brought against Fleet-Go by a third party arising from or in connection with:
29.2.1. the Partner’s violation or alleged violation of Federal Trade Commission (FTC) Used Car Rule, Truth in Lending Act, National Institute for Automotive Service Excellence (ASE) Certification, Magnuson-Moss Warranty Act, National Highway Traffic Safety Administration (NHTSA) Regulations, Federal Motor Vehicle Safety Standards or other Laws;
29.2.2. Partner’s failure to provide accurate and complete descriptions or Additional Information for service or parts, including information transmitted through a Fleet-Go Platform, sufficient for accurate Sales Tax calculations;
29.2.3. Partner’s failure to comply with a notice with respect to Unsupported service or parts; and
29.2.4. the Partner’s violation or alleged violation of its obligations with respect to service or parts under this Agreement.
29.3. Indemnification process.
The Indemnified Party will provide the Indemnifying Party with:
29.3.1. prompt written notice of such Claim;
29.3.2. control over the defense and settlement of such Claim, provided that the Indemnifying Party must not enter into a settlement that involves a remedy other than the payment of money by the Indemnifying Party without the express written consent of the Indemnified Party, which must not be unreasonably withheld; and
29.3.3. proper and full information and assistance to settle or defend any such Claim, at the Indemnifying Party’s expense.
30. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS:
30.1. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF PARTNER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
30.2. EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $50,000.
THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES
.
31. DISCLAIMER.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
32. Insurance.
32.1. Insurance requirements.
During the Term each party will maintain:
32.1.1. commercial general liability insurance;
32.1.2. if required by Laws, worker’s compensation insurance; and
32.1.3. commercial automobile liability insurance.
32.2. Minimum insurance limitations.
32.2.1. Commercial general liability. The commercial general liability insurance policy limits will be one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and two million dollars ($2,000,000) in aggregate.
32.2.2. Commercial automobile liability. The commercial automobile liability insurance limits will be one million dollars ($1,000,000) combined single limit for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles.
32.3. Minimum insurance requirements.
All policies will be written by reputable insurance companies with an AM Best’s policyholder rating of not less than A-. Such insurance will not be canceled or materially reduced without 30 days’ prior written notice to the other party.
32.4. Certificates and additional insured.
Upon a party’s request, the other party will provide evidence of the insurance required herein. Each party must include the other as an additional insured on its commercial general liability and commercial automobile liability policies.
32.5. No limitation of liability.
In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
32.6. Insurance of Fleet-Go Platform.
If the Partner will use the Fleet-Go Platform as part of this Agreement, the Partner’s commercial general liability and commercial automobile liability insurance policies must cover the acts and omissions of Fleet-Go Platform.
33. Confidentiality.
33.1. Obligation to keep Confidential Information confidential.
Each recipient agrees that it will not disclose to any third parties other than representatives, or use in any way other than as necessary to perform this Agreement, the discloser’s confidential information.
33.2. Recipient’s responsibility for Representatives.
Recipients will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information.
33.3. Exclusions from obligations of confidentiality.
The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent:
33.3.1. the Discloser has authorized such use or disclosure; and
33.3.2. a Recipient is required to disclose certain Confidential Information of the Discloser pursuant to any Laws, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure.
33.4. Deletion of Confidential Information.
Upon expiration or termination of this Agreement and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
34. Disputes.
34.1. Scope of arbitration.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from arbitration.
34.2. Negotiation of disputes.
The parties will attempt to resolve all disputes between the parties arising out of or relating to this Agreement amicably through good faith negotiations upon the written request of any party.
34.3. Commencing arbitration.
In the event that any dispute cannot be resolved within a period of 45 days after notice of a dispute has been given, all such disputes will, at election of either party, be finally resolved by final and binding arbitration in the State of North Carolina administered by JAMS, and in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one arbitrator with substantial experience in the technology industry selected in accordance with JAMS rules.
34.4. No class actions.
All disputes will be resolved on an individual basis and neither party has the right to arbitrate on a class action basis any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including this arbitration clause.
34.5. Arbitration costs.
The arbitrator will have the authority to allocate between the parties the costs of arbitration (including service fees, arbitrator fees, reasonable attorneys’ fees, expert witness fees and all other fees and expenses related to the arbitration) in such an equitable manner as the arbitrator may determine. Judgment on the arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction.
34.6. Court action.
Notwithstanding the foregoing provisions of this “disputes” section, each party may seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute related to the actual or threatened infringement, misappropriation of a party’s intellectual property rights or breach of confidentiality obligations.
35. Notices.
35.1. Receipt of notices.
Any and all notices permitted or required to be given under this Agreement will be sent and deemed duly given:
35.1.1. upon actual delivery, if delivery is by hand;
35.1.2. one day after being sent by overnight courier, charges prepaid; or
35.1.3. by electronic mail to the designated recipient.
35.2. Notices to the Partner.
The parties agree that all legal documents (including complaints and subpoenas) directed to the Merchant will be served on the Merchant at the details provided in the Fleet-Go Platform.
35.3. Notices to Fleet-Go.
The parties agree that all legal documents (including complaints and subpoenas) directed to Fleet-Go served on the Fleet-Go at the details provided in the Fleet-Go Platform available online at https://www.fleet-go.com.
36. Supplemental terms.
Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. Fleet-Go will use good faith efforts to provide the Partner with written notice of any material updates to the Supplemental Terms, and, if the Partner does not agree to comply with the terms of any such update, the Partner may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Fleet-Go Platform. By continuing to use the Fleet-Go Platform, the Partner will be deemed to accept the Supplemental Terms.
37. Diversity and inclusion.
The Partner will not, in its use of the Fleet-Go Platform, discriminate against any customer, employee, contractor, Fleet-Go Driver or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Fleet-Go and the Partner. The Partner acknowledges and agrees that upon Fleet-Go’s receipt of evidence of the Partner’s discrimination under any of these categories, Fleet-Go will have the right to immediately terminate this Agreement following notice to the Partner.
38. General terms.
38.1. Amendments.
This Agreement may be amended, modified, or updated by Fleet-Go, in its sole discretion, from time to time, effective upon posting an updated version of this Agreement. The Partner is responsible for updating contact information and regularly reviewing the Agreement updates and information from Fleet-Go. Continued use of the Fleet-Go Platform after any such modifications or updates constitutes the Partner’s consent to such changes.
38.2. Assignment and novation.
This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party:
38.2.1. to an affiliate of such party; or
38.2.2. in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates, provided that in the event of any such transfer by the Partner, the Partner explicitly consents that any such transferee will have access to and control of all the Partner accounts related to such transfer, including its accounts with Fleet-Go, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. If there is a change of ownership of a Location, the parties must execute a change of ownership form and the Partner acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the Fleet-Go Platform until the change of ownership form is executed. Any purported assignment, transfer, delegation or subcontract in violation of this section will be null and void.
38.3 Counterparts.
If the Partner is agreeing to this Agreement through an order form or other signed instrument, such order form or written instrument may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.
38.4. Entire agreement.
This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to the Agreement’s subject matter.
38.5. Force majeure.
Nonperformance by either party due to a Force Majeure Event is excused. If either party is unable to perform pursuant to this section, such party will timely deliver written notice with sufficient information detailing the nature of the applicable Force Majeure Event. Such impacted parties will exercise all commercially reasonable efforts to minimize any Force Majeure Event and resume full performance as soon as reasonably practicable. If the Partner is unable to perform for more than thirty days, Fleet-Go may elect to terminate this Agreement without liability.
38.6. Governing law.
This Agreement is governed by the law of the State of North Caroline, except that the mutual arbitration provision is governed by both the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the law of the State of North Caroline. The parties agree that all disputes outside of the arbitration provisions will be heard in federal or state courts of the State of North Caroline.
38.7. Relationship.
The parties to this Agreement are independent contractors. The parties are not partners, agents, parties to a joint venture, nor do the parties have an employee and employer relationship. Except as set forth in this Agreement, each party is responsible for its own costs of conducting business and performing its obligations under the Agreement.
38.8. Severability.
If any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions) will remain in full force and effect.
38.9. Survival.
The terms and conditions of this Agreement which, by their nature, are intended to still apply, even if the Agreement is terminated, or expired, (e.g., confidentiality terms, or indemnification terms), will continue to apply even if the Agreement is terminated or expires.
38.10. Territory.
This Agreement applies in the United States of America (excluding Puerto Rico) and does not apply to the Partner’s use of the Fleet-Go Platform outside of the United States of America.
38.11. Waiver.
If a party waives a breach of this Agreement by the other party, it will not by that waiver be deemed to have waived any other breaches of this or any other agreement between the parties.
39. Definitions.
Capitalized words not otherwise defined in these Agreement Terms and Conditions will have the meanings assigned to those words in the rest of this Agreement, or in any exhibits, schedules, or attachments to this document, and documents incorporated by reference or by hyperlink. If there is a conflict between these Agreement Terms and Conditions and any of the other terms and conditions of this Agreement, the Agreement Details (if applicable), and then these Agreement Terms and Conditions will control, to the extent of the conflict. Capitalized words in this Agreement otherwise have the meanings set out below:
39.1. Additional Information means additional information pertaining to the Partner’s Location, Partner establishment type (e.g., dealership vs. service station, body shop), particular service or particular sales of parts, which Fleet-Go may, from time to time, require Partner to provide for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable Laws. Additional Information may include, without limitation, Global Trade Item Numbers (GTINs), Stock Keeping Units (SKUs), quantities.
39.2. Adverse Delivery Events means events such as inclement weather, high traffic, or poor driving conditions.
39.3. Affiliate means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party.
39.4. Agreement means the Agreement Terms and Conditions, plus any exhibits, schedules, or attachments, documents incorporated by reference or by hyperlink, and any documents that incorporate the Agreement Terms and Conditions by reference or hyperlink, such as an order form or similar written instrument.
39.5. Agreement Terms and Conditions means the part of this Agreement titled “Fleet-Go Partner Terms and Conditions”.
39.6. Fleet-Go Platform means the proprietary technology known as the “Fleet-Go Platform”, or similar proprietary technology of Fleet-Go that enables Customers to request car pick-up and delivery services for Customers vehicles from Fleet-Go Drivers and pay service and parts to the Partner.
39.7. Brand means the collection of a party’s brand identifiers which are generally used together, including but not limited to a combination of Trademarks, slogans, and color schemes. To the extent that a party is a licensee of a third party’s Brand, that Brand is deemed to be the licensee’s Brand for the purposes of this Agreement. For clarity, a party may hold, own, or license more than one Brand.
39.8. Claim means taxes, losses, liabilities, damages, claims, suits, liabilities, costs and expenses including reasonable attorney’s fees and other legal costs.
39.9. Confidential Information means any confidential, proprietary or other non-public information disclosed by one party to the other party whether disclosed verbally, in writing, in electronic form, or by inspection of tangible objects, including but not limited to any Personal Information. Confidential Information does not include information that:
39.9.1. was previously known to the Recipient without an obligation of confidentiality;
39.9.2. was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or
39.9.3. is or becomes publicly available through no fault of the Recipient.
39.10. Customer means an individual that purchases a car pickup and delivery service and/or pays Partner’s service or parts through the Fleet-Go Platform.
39.11. Customer Feedback means a rating of Fleet-Go Driver, Partner and comments or feedback related to the Customer’s experience with the Fleet-Go Driver, Partners or Fleet-Go Platform.
39.12. Customer Payments means payments from a Customer for car pick-up and delivery service, that the Customer purchases and Partner's service or parts that the Customer pays to the Partner via the Fleet-Go Platform.
39.13. Customer Transaction means the payment of car pick-up and delivery service to a Fleet-Go Driver and/or one or more service or parts by the Customer to a Partner via the Fleet-Go Platform.
39.14. Damage Fee means the reasonable cost of repairing or replacing a Device.
39.15. Data Security Incident means an actual or suspected unauthorized access to, acquisition or disclosure of Personal Information, or other actual or suspected breach of security or confidentiality with respect to Personal Information in the Partner’s or its Representatives’ control or possession.
39.16. Fleet-Go Driver means an independent contractor who uses the Fleet-Go Platform to car pick up and deliver from or/and to a Client Location.
39.17. Device means an electronic tablet or other electronic mobile device capable of receiving order information, and may also include a printer for receipts, and other associated electronic devices provided to the Partner by Fleet-Go.
39.18. Device Fee means the fee Fleet-Go charges for a Device, which may be changed by Fleet-Go.
39.19. Discloser means a party that provides Confidential Information to the other party.
39.20. Effective Date means the date that the Partner agreed to this Agreement.
39.21. Feedback means feedback, suggestions, comments, ideas, or other concepts relating to Fleet-Go’s and its Affiliate’s products and services.
39.22. Fees or Services Fee means the Damage Fees, Device Fees, Pickup and Delivery Fee,, but does not include, if applicable, the Delivery Fee, the Return Fee, or the Partner Managed Return Fee.
39.23. Force Majeure Event means any circumstance beyond the reasonable control of the affected party, which occurs on or after the Effective Date, which may include, but are not limited to, acts of God, fire, flood, explosion, war, terrorism, epidemics, pandemics, quarantine, unusually severe weather, embargo, action or request of governmental or judicial authority, strikes, labor stoppages or other industrial disturbances, civil commotion, civil riot or insurrection. For the avoidance of doubt, known Covid-19 variants at the time of execution of this Agreement should be construed as a known risk and will not constitute a Force Majeure Event; however, new variants of Covid-19 or any new variants of known diseases or new epidemic or pandemic events after the execution of the Agreement, may in fact, constitute a Force Majeure Event if such event triggers events beyond control of the affected party.
39.24. In-Platform Communications means communications within the Fleet-Go Platform between:
39.24.1. the Partner and Customers;
39.24.2. the Partner and Fleet-Go;
39.24.3. the Partner and Fleet-Go Driver;
39.24.4. Customers and Fleet-Go; or
39.24.5. Customers and Fleet-Go Drivers.
39.25. Indemnified Party means a party to this Agreement that has received or is subject to a Claim, and includes that party’s subsidiaries, Affiliates, officers, directors, agents, or employees, individually and collectively.
39.26. Indemnifying Party means the party to this Agreement that is not the Indemnified Party.
39.27. In-Store Price means, with respect to any service or parts paid via the Fleet-Go Platform, the actual price of such service or parts at Partners’s Location at the moment of checkout by a Customer.
39.28. Service or parts Revenue means the Retail Price plus Sales Tax collected on the Partner’s behalf for service or parts payed through the Fleet-Go Platform, less the Fees and, if applicable, any refunds given to Customers on behalf of Partner, which in the case of any service or parts sold via the Fleet-Go Platform, is disbursed to the Partner’s bank account, in accordance with the Partner’s instructions herein.
39.29. JAMS means Judicial Arbitration and Mediation Service, Inc.
39.30. Laws means codes, laws, legislation, licenses, orders (including court orders), ordinances, rules, regulations, or any other requirement imposed by a government authority.
39.31. Location means a location owned and operated by the Partner.
39.32. Fleet-Go Platform Fee means 0%, unless varied by agreement between the parties, which may be done through an order form, selection of a specific pricing package during an online sign-up process, or similar process incorporating this Agreement.
39.33. Platform Payment Channel, means the Payment Channel where the Partner’s service or parts are paid Customers in the Fleet-Go Platform who access and request car pick-up and delivery services provided by Fleet-Go Drivers.
39.34. Partner means the non-Fleet-Go legal entity that has agreed to this Agreement, and includes that entity’s, or those entities’, subsidiaries, Affiliates, directors, employees, agents, successors and assignees, as applicable.
39.35. Partner Brand means the Brand(s) used by the Partner pursuant to this Agreement. Partner’s Brand means the same as Partner Brand.
39.36. Partner Delivery Area means the geographic area in which Partner will be able to provide the Customers, who paid Partner's subscription the car pick-up and delivery services through the Fleet-Go Platform.
39.37. Partner Connected Account means a “for the benefit of” account into which Customer Payments would be held once collected from Customers on the Partner’s behalf, administered by Fleet-Go on behalf of, pursuant to the instructions of, and for the benefit of the Partner.
39.38. Platform Customer Personal Information means information about a Customer or that Customer’s Personal Information made available to the Partner in connection with a request for and use of delivery devices, which may include pick-up or/and delivery drop-off location, a Customer’s name or company name, a Customer’s contact information, a Customer’s signature, and a Customer’s photo, as well as any other relevant details specific to the items to be delivered.
39.39. Personal Information means any information obtained in connection with this Agreement:
39.39.1. relating to an identified or identifiable natural person;
39.39.2. that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and
39.39.3. any information that may otherwise be considered “personal data” or “personal information” under applicable Laws.
39.40. Fleet-Go means Fleet-Go, LLC.
39.41. Fleet-Go Personal Information means any Personal Information Fleet-Go provides to the Partner in connection with this Agreement, including but not limited to, Fleet-Go Customer Personal Information, name, contact information and car vin number, license plate number, and Fleet-Go Driver’ photo, name, contact information. For the avoidance of doubt, Portier Personal Information include Customer Personal Information.
39.42. Promotions means short-term offers that are available through the Fleet-Go Platform to stimulate Customer demand.
39.43. Recipient means a party that receives Confidential Information of the other party.
39.44. Partner Subscription means the various subscription membership programs of Partner that are made available to customers through the Fleet-Go Platform from time to time, and includes those subscription programs that were agreed with Fleet-Go.
39.45. Representatives means Recipient’s Affiliates, officers, directors, employees and agents who:
39.45.1. for the purposes of the “confidentiality” section of this Agreement, have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement; and
39.45.2. for any other section of this Agreement, are acting on the Partner’s behalf.
39.46. Required Licenses means licenses, permits, approvals, authority, registrations, certifications, or similar authorizations that may be required to provide service or sell parts , or to otherwise conduct business pursuant to the terms of this Agreement.
39.47. Retail Price means the price of a service or parts paid on the Fleet-Go Platform exclusive of separately stated Sales Taxes.
39.48. Sales Channel means a method through which Customers may place orders for the car pick-up and delivery service and pay Partner’s service and parts.
39.49. Sales Tax means any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes.
39.50. Supplemental Terms means the Community Guidelines and any supplemental terms that may apply to the Partner’s use of the Fleet-Go Platform, such as use policies or terms related to certain features and functionality, which may be modified from time to time.
39.51. Switchover Date means the date specified by Fleet-Go where Fleet-Go will begin to collect and remit Sales Tax to the taxing authority based on Service and parts descriptions and Additional Information provided by the Partner.
39.52. Term means the time period from the Effective Date until the date that this Agreement is terminated or expires.
39.53. Trademarks or Marks means trademarks, trade names, service marks, copyrights (such as product photography), logos, slogans and other identifying symbols and indicia of the applicable party.
39.54. Fleet-Go Platform means Fleet-Go’s software applications and other proprietary technology, including any underlying data or data structures therein, accompanying documentation, and any updates or revisions to the foregoing.
39.55. Fleet-Go Competitor means any and all third parties engaged in similar facilitation of on-demand car pick-up and delivery services.
39.56. Fleet-Go Data means transactional, operational, performance or other data or information that is related to the sale of service and parts to Customers through the Fleet-Go Platform.
39.57. Fleet-Go Platform means the online car pick-up and delivery service, as made available through the Fleet-Go website, mobile application or other technology interface for the Customers, Partners and Fleet-Go Drivers to access and use the Fleet-Go Platform, which may include Fleet-Go's and its Affiliates' proprietary technology platform referred to as “Fleet-Go” as may change from time to time, through which the Customers, Partners and Fleet-Go Drivers may, among other things, receive, accept and fulfill requests from Customers as well as the Partner Payment Channel.
39.58. Fleet-Go Personal data processing policy means Fleet-Go’s then-current Personal data processing policy, currently available at:.https://fleet-go.com/policy
40. Interpretation.
The following also applies to the interpretation of this Agreement:
40.1. To the extent of any inconsistency between the terms and conditions or Fees set out in the Agreement Details (if applicable), or the terms and conditions included in the Agreement Terms and Conditions, the information in the Agreement Details prevails.
40.2. Terms used as plurals may also be interpreted as singular, and vice-versa.
40.3. Any references to dollars or currency means US dollars unless otherwise indicated.
40.4. If the words “including”, “such as”, “for example”,”e.g.”, or similar terms, are used in any section, the words “without limitation” are implied.
40.5. Any reference to a “party” or “parties” means a party to this Agreement.
40.6. Any references to the Partner, if the Partner includes multiple legal entities, means each of those entities jointly and severally.
40.7. Any hyperlinks included in this Agreement also refer to the future updated versions of those links, and if a hyperlink becomes inactive, or the hyperlinked location of a document in this Agreement is amended, the new hyperlink location of the same or updated version of that document applies instead of the incorrect or superseded hyperlink in this document.
40.8. Headings, notes, and captions used in this Agreement are for reference purposes only and should not have any effect on the interpretation of this Agreement.
Publication date 07.16.2023 г.
© All Rights Reserved. Fleet-Go, LLC, 2022
