Standard Terms & Conditions
Capitalized terms that are not defined in the following sections have the meanings assigned to them in Section 25.
1. Agreement for Services
Mister hereby contracts to for the Services set forth on the accompanying Service Level Agreement (“Agreement”) subject to and expressly made conditional on Service Provider’s acceptance of the terms of the Agreement. Mister objects to any different or additional terms. In the event of a conflict between the Service Provider’s form of agreement and this Agreement, the provisions of this Agreement shall control.
2. Service Provider’s Acceptance
Service Provider will be deemed to have accepted the terms of the Agreement: (i) even if Service Provider’s acceptance purports to make acceptance conditional on acceptance of terms inconsistent, additional or different to those set forth in the Agreement; (ii) when acknowledged by Service Provider in writing; or (iii) if Service Provider performs or provides Services in response to or in anticipation of an Agreement.
The Contract Price is set forth in the Agreement and unless otherwise stated in the Agreement includes all applicable taxes, duties, tariffs, surcharges, and other amounts assessable by any government authority with respect to the Services. The purchase price may not be modified or changed without the prior written agreement of Mister.
4. Description of Services
The description of any Services are set forth in the Agreement.
5. Payment Terms and Invoicing
Mister will have no obligation to pay for any Services until a correct invoice for the Services is received from Service Provider. Service Provider must send invoices individually with supporting documentation, in PDF form, to Invoices@mistercarwash.com . In addition, Service Provider must provide lien releases as necessary for itself and any subcontractor used. Lien releases must be sent to the applicable Mister Project Manager for that project. Payment terms are net forty-five (45) days from Mister’s receipt of a correct and undisputed invoice.
6.1. Mister reserves the right to terminate an Agreement by providing Service Provider with fifteen (15) days written notice. In addition, Mister may terminate an Agreement at any time if any of the following occurs: (i) Service Provider fails to comply with any requirements or obligations under the Agreement; (ii) Service Provider makes any assignment for the benefit of Service Provider’s creditors; or (iii) a receiver is appointed for Service Provider.
6.2. In the event that either party institutes voluntary proceedings relating to bankruptcy or insolvency or there is an appointment of a receiver or trustee for the benefit of creditors, or in the event that such proceedings are initiated against either party that is not dismissed within sixty (60) days’, or Service Provider is not able to perform its required functions hereunder, then the other party may cancel the Agreement by written notice.
7. Obligations upon Termination
In the event of the expiration or termination of an Agreement, then, unless otherwise provided in the applicable Agreement, the following will apply:
7.1. Service Provider will cease performance and cooperate with Mister to affect an orderly, efficient, effective, and expeditious winding-down of the parties’ respective activities.
7.2. Mister and Service Provider will make a fair and equitable modification of their rights and obligations under this Agreement; provided, however that Mister will not compensate Service Provider for any Services not performed and in no event will Service Provider be entitled to any termination fee, reallocation of cost, recovery of lost profit or overhead charges. Service Provider’s claim for an equitable adjustment under this paragraph must be submitted to Mister in writing within 30 days of receipt of notice of termination, otherwise all such claims of Service Provider shall be deemed to have been waived.
8. Representations and Warranties
Service Provider warrants that all materials and equipment provided as part of the Services shall be new unless otherwise specified, of good quality, in conformance with the Agreement, and free from defective workmanship and materials. Service Provider further warrants that the Services will be free from material defects not intrinsic in the design or materials required in the Agreement. Service Provider’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use for a purpose for which the Services was not intended, improper or insufficient maintenance, modifications performed by Mister or others retained by Mister, or abuse.
If, prior to the date of substantial completion and within one year after the date of substantial completion of the Services, any portion of the Services, including any material or equipment, is found to be not in conformance with the Agreement, Mister shall promptly notify Service Provider in writing. Unless Mister provides written acceptance of the condition, Service Provider shall promptly correct the Services at its own cost and time and bear the expense of additional services required for correction of any defective work for which it is responsible.
NO WARRANTY, LIABILITY OR INDEMNIFICATION OBLIGATION OF SERVICE PROVIDER HEREUNDER, NOR ANY OTHER EXPRESS OR IMPLIED WARRANTY BY SERVICE PROVIDER RELATING TO THE AGREEMENT WILL BE DEEMED TO BE DISCLAIMED, EXCLUDED, LIMITED OR WAIVED UNLESS EVIDENCE BY A SPECIFIC, WRITTEN AMENDMENT TO THE AGREEMENTSIGNED BY MISTER.
Service Provider shall indemnify, defend, and hold harmless Mister and its and their directors, officers, managers, employees, representatives, agents, successors and assigns from against any and all third party actions, demands, allegations, claims, liability, investigations, suits, loss or expense, including, without limitation, reasonable attorneys’ fees and cost of litigation (“Claims”), arising out of or related to ( (iii) any claims of personal injury, death, or property damage caused by Service Provider’s performance (or non-performance) of the Services; (iv) Service Provider’s negligence or willful misconduct; or (v) any disputes between Service Provider and any supplier or subcontractor of Service Provider. In addition, Service Provider shall indemnify, defend, and hold harmless Mister against any and all claims resulting from Service Provider’s breach of the Agreement, Service Provider’s violation of laws, or Service Provider’s negligence or willful misconduct. Mister reserves the right to require from Service Provider, at any time, satisfactory assurance of performance of Service Provider’s indemnity and other obligations to Mister, including evidence of appropriate insurance coverage. Service Provider’s refusal or failure to promptly furnish such assurance will be a breach by Service Provider entitling Mister to suspend or cancel further Services hereunder. The obligation to pay attorneys’ fees in this indemnity provision includes all attorneys’ fees incurred in defending any claim or establishing the right to indemnity under the Agreement. All indemnification obligations survive the termination of any Agreement.
Service Provider shall hold and maintain the Proprietary Information in strict confidence and take all reasonable precautions to protect the Proprietary Information, including, without limitation, all precautions Service Provider employs with respect to its most confidential information. Service Provider shall not (a) divulge any Proprietary Information or any information derived therefrom to any third person, other than those employees or agents of Service Provider to whom disclosure of Proprietary Information is necessary; (b) remove or export any Proprietary Information from the United States; and (c) copy or reverse engineer, reverse compile or attempt to derive the composition or underlying information of any Proprietary Information. Service Provider shall be liable to Mister for any breach of any employee, or agent of Service Provider of this Section 14.Mister does not hereby grant or license any of the Proprietary Information or any patent rights, trademarks, or trade secret rights related thereto which Mister owns now or may hereafter own Service Provider may make disclosures of Proprietary Information required by court order provided Service Provider uses diligent efforts to limit disclosure and has allowed Mister to participate in the proceeding. Proprietary Information furnished pursuant to this Agreement by Mister shall remain the property of Mister and shall, at Mister’s request and option, immediately either be: (i) returned to Mister, together with all copies made by Service Provider (in whatever form, electronic or otherwise) and by anyone to whom such Proprietary Information has been made available by Service Provider; or (ii) certified in writing by an officer of Service Provider as having been destroyed by.
Service Provider understands and acknowledges that any disclosure or misappropriation of any of the Proprietary Information in violation of this Section 14 may cause Mister irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that Mister shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as Mister shall deem appropriate. Such right of Mister is to be in addition to the remedies otherwise available to Mister at law or in equity. Service Provider shall notify Mister in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. In the event Mister and Service Provider have entered into a stand-alone confidentiality or non-disclosure agreement, the terms of, the terms of such confidentiality agreement or non-disclosure agreement will prevail over any conflicting terms in this Section 14.
11. No Publicity
Service Provider may not refer to Mister, the Agreement or the terms thereof, or the existence of a business relationship between Service Provider and Mister for any marketing or promotional purposes, without the prior written consent of an Authorized Representative. Service Provider may not use Mister’s name or the Marks in any manner, promotional or otherwise, without the prior written consent of an Authorized Representative. In the event Mister consents to Service Provider’s use of Mister’s name or the Marks, such use is contingent upon Service Provider’s compliance with Mister guidelines, requirements and other instructions for such use and such consent may be revoked at any time, in Mister’s sole discretion. All goodwill arising out of Service Provider’s use of the Marks will inure solely to the benefit of Mister.
Service Provider may not subcontract all or any portion of its obligations or duties under the Agreement without the prior written consent of an Authorized Representative, which consent may be withheld in Mister’s sole discretion. To the extent Mister consents to the use of subcontractors or agents, any acts or omissions of a service provider or subcontractor of Service Provider will be deemed to be the acts and omissions of Service Provider.
If Service Provider is providing Services, Mister will have no obligation to reimburse Service Provider for travel and related expenses, unless an Authorized Representative authorizes such expenses in advance and in writing. In such event, Mister shall reimburse Service Provider only for travel and other expenses preapproved in writing.
Service Provider shall maintain Commercial General Liability insurance with a minimum of $1,000,000 per occurrence and a general aggregate limit of not less than $2,000,000. In addition to Commercial General Liability insurance, Service Provider may need to maintain Workers Compensation insurance, Employers’ Liability insurance and Business Automobile Liability insurance. Service Provider shall name Mister as an additional insured under Service Provider’s Commercial General Liability insurance policy and such insurance will be primary and non-contributing with any insurance otherwise available to Mister. In addition, Service Provider will provide Mister with evidence of such insurance in the form of an insurance certificate upon request. Service Provider will provide Mister with written notice of the scheduled expiration or termination of its Commercial General Liability policy no later than thirty (30) days prior to the effective date of any expiration or termination.
15. Governing Law and Dispute Resolution
The Agreement, these Terms & Conditions and all disputes between Service Provider and Mister are governed by and must be construed in accordance with the laws of the state in which the Service is being provided, without reference to conflicts of law principles. The parties agree to the exclusive jurisdiction and venue of the state and federal courts located in the state in which the Service is being provided for any legal proceeding involving the Agreement or any dispute between Service Provider and Mister; provided, however that in Mister’s discretion such an action may be heard in some other place designated by Mister if necessary, to acquire jurisdiction over third persons so that the dispute can be resolved in one action. Service Provider hereby agrees to appear in any such action, consents to the jurisdiction of such courts and waives any objections it might have as to venue in any such court. In the event of any dispute regarding the interpretation or enforcement of the Agreement, the substantially prevailing party will be entitled to recover its reasonable attorneys’ fees and cost of litigation.
16. Rights and Remedies
In addition to any remedy identified in the Agreement, if Service Provider breaches any term of the Agreement, Mister will have the right to (i) terminate the Agreement; (ii) demand the immediate return of all confidential information; (iii) recover its damages incurred by reason of such breach, including, without limitation, incidental and consequential damages, and its attorneys’ fees and costs of litigation; (iv) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of the Agreement; and (v) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of the Agreement will not constitute a waiver of Mister’s rights or remedies. All rights and remedies of either party hereto are cumulative of each other, and the exercise of one or more rights or remedies will not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.
No waiver of any term or condition is valid unless it is in writing and signed by a duly authorized person of Service Provider and an Authorized Representative. Mister’s inspection, acceptance of a nonconforming delivery, test, payment, delay, or failure to inspect or test, or failure to discover any defect will not be deemed to be a waiver of any of Mister rights or remedies.
Service Provider may not assign the Agreement or any of its rights, interests, duties, or obligations with respect to the Agreement, whether by operation of law, contract or otherwise, without the prior written consent of an Authorized Representative of Mister.
19. Independent Contractor
Service Provider represents and warrants that it is an independent contractor and not an employee, agent, joint venturer or representative of Mister. Nothing in the Agreement will be construed as creating an employer-employee or a principal-agent relationship. Service Provider has no authority to bind or otherwise obligate Mister in any manner.
20. Safety Rules
Service Provider will: comply with all applicable federal, state, and local laws and regulations (including but not limited to all applicable requirements of OSHA 29 CFR parts 1900-1910 and 1926), provide all necessary equipment for its employees to complete the work safely, will not be issued or allowed to use Mister equipment, perform a Personal Protective Equipment (“PPE”) Assessment for each task its employees will perform, provide its employees with the correct PPE, and ensure it is used consistently and appropriately, be responsible for developing and implementing specific lockout/tagout procedures, training its employees, and providing its employees with adequate lockout equipment, complete an approved hot work permit for all hot work activities involving open flames or producing heat and/or sparks, police the work area and keep the area clean, neat, and free of any slip/trip/fall hazards at all times, be responsible for the security of its equipment, designated storage areas will be provided, and equipment is to be secured in this area at the end of the work period.
Contract work will be stopped immediately if unsafe work practices put Service Provider personnel, Mister personnel or customers, or Mister property at risk. Chemicals used by Service Provider on Mister premises shall be controlled to ensure that the health and safety of Service Provider personnel, Mister personnel and customers are protected and that all applicable environmental regulations and statutes are followed. A Safety Data Sheet for each chemical must be readily available to Mister upon request.
Service Provider employees must: sign in and out with the Receptionist at the Corporate Office and as directed at other locations, park in designated area(s) determined by Mister, when required, temporary parking is allowed for unloading equipment and materials only. Mister is not responsible for lost or damaged property.
Service Provider and its employees are expected to treat all Mister employees, customers, and vendors with dignity and respect.
The use, possession, distribution, or sale of any controlled substance or alcoholic beverage as well as smoking is prohibited on Mister property.
Any legal notice hereunder must be in writing and served either personally or sent by United States mail, certified, postage prepaid, addressed at the addresses set forth below or at such address that Mister may from time to time. Legal notices will be deemed delivered upon receipt. Legal notices to Mister must be sent to the following addresses: General Counsel, 222 E. 5th St., Tucson, AZ 85705. Notice to Service Provider will be sent to the address on the face of the Agreement.
Sections 7, 8, 9, 10, 11, 14, 15, 16, 17, 21, 22 and 24 will survive the termination, expiration, completion or fulfillment of any Order, and shall be binding upon each party, its successors and assigns. In addition, any provision of the Agreement (including these Terms & Conditions) which imposes upon Service Provider an obligation after termination, expiration, completion, or fulfillment of an Agreement shall survive and be binding upon Service Provider, its Affiliates, their successors, and assigns.
23. Effective Date and Amendments
Mister shall have the right to amend, revise, and update these Terms & Conditions at any time, which shall be effective upon publication at https://mister2019.wpengine.com/service-terms-and-conditions/.
24. Complete Agreement
Except as set forth in Section 23 above, the Agreement constitutes the complete understanding and agreement between the parties with respect to the subject matter thereof and may not be altered or modified except in writing duly executed by an Authorized Representative. Mister objects to any inconsistent, additional, or different terms in any prior or subsequent invoice, acknowledgment, confirmation or other document. Trade custom, trade usage and past performance are superseded by the Agreement and may not be used to interpret the Agreement. If any provision of the Agreement becomes void or unenforceable by law, the remaining provisions are still valid and enforceable.
“Affiliate” means, with respect to either party to the Agreement, any entity that controls, is controlled by, or is under common control with the applicable party through the exercise of voting power or otherwise.
“Agreement” means the agreement between Mister and Service Provider for the contracting of Services, together with any Specifications relating thereto, and these Standard Terms & Conditions, which are expressly incorporated into the Agreement.
“Authorized Representative” means an officer of Mister holding the title of Vice President or a title more senior than Vice President.
“Intellectual Property” means domestic and international rights in any (i) trademarks, (ii) patents, (iii) copyrights, (iv) trade secrets and confidential information, (v) other intellectual proprietary property (of every kind and nature and however designated), whether arising by operation of law, contract, license, or otherwise, (vi) derivatives, improvements, and modifications of the foregoing, and (vii) all registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing now or hereafter in force or hereafter acquired or adopted.
“Marks” means the name or any trademark, service mark, trade dress or logo of Mister.
“Mister” means Mister Car Wash, Inc. and its operating subsidiaries doing business as Mister Car Wash.
“Mister Intellectual Property” means Intellectual Property that is owned or licensed by Mister, including without limitation the Marks.
“Proprietary Information” means any proprietary information disclosed by Mister to Service Provider, whether verbally, in writing or otherwise, including, without limitation, trade secrets, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions, ideas, and techniques (whether copyrighted or patentable or not), or any other information of any type relating to design, configurations, tooling, documentation, recorded data, schematics, source code, object code, manufacture, improvements, assembly, installation, intellectual property including patents and patent applications, written policies and procedures, manuals, books, guides, forms, reports, processes, customer or client lists, business plans, past or future financings, marketing plans and strategies, sales and financial reports and forecasts, compensation of employees, or cost or other financial data concerning any of the foregoing of Mister and its business operations generally and other data and information that is not generally available to the public, which to the extent previously, presently or subsequently disclosed to Service Provider.
“Service Provider” means the entity listed in the Agreement as Service Provider, including Service Provider’s Affiliates, agents, representatives, and service providers.
“Services” means the services described in the Agreement or otherwise provided by Service Provider to Mister.
“Specifications” means, as applicable (i) the written specifications, requirements, guidelines and/or standards with respect to the Services that have been provided or approved by Mister.