Terms and Conditions for Commercial-Recurring Agreements
This Master Services Agreement (the “Agreement”) is made between you (“Customer") and Charter Up, LLC, a Georgia limited liability company having its principal place of business at 3344 Peachtree Rd NE, Suite 800, Atlanta, GA, 30326, USA ("Charter Up"). Throughout this Agreement, the terms "you" and "your" refer to the Customer named below, the terms "we" and "our" refer to Charter Up, and the term "parties" refers to both Customer and Charter Up together.
1. This Agreement confirms the general business principles governing Charter Up’s involvement in chartered transportation services when engaged by Customer, as well as all software, maintenance and support products acquired or licensed from Charter Up by Customer. As part of each service or product, we will provide you with a written proposal, quote, order, arrangement letter, service level agreement, Confirmation, and/or written confirmation (the “Confirmation”) that will provide at a minimum the pickup and drop off locations, dates and times of service, and estimated pricing, and may include other pertinent information including terms of payment, details of the service or product, including deliverables, assumptions, staffing, time and fee estimates, and pricing. Once accepted by you and Charter Up, you agree to pay all amounts due by the due date, which shall be no later than prior to the date service is to commence, with any deposits applied first to any amount due before the return of any remainder to you. The terms and conditions of this Agreement are incorporated by reference into and made a part of each Confirmation. Unless expressly specified in the Confirmation, the provisions of this Agreement will prevail over any inconsistent Confirmation provision.
2. In connection with each Confirmation, each of us may have access to proprietary information, trade secrets, and/or other confidential information made available by the other, and each of us agrees to protect that confidential information in the same manner as we would protect our own confidential information of like kind, and in any case with no less than a commercially reasonable degree of care. Each party understands that confidential information of the other includes business plans, employee information, designs, creations, improvements, works of authorship, processes, know-how, techniques, ideas, discoveries, and/or developments previously created and utilized by such party, whether or not copyrightable, trademarkable or patentable, hereinafter referred to as intellectual property. Except as provided herein, all rights, title and interest in such intellectual property, including the right to reproduce copies, to prepare derivative works, and to distribute copies to the public by sale or other transfer of ownership shall remain with the originating party, and the other party shall not hold any right, title or interest in such intellectual property.
3. Customer acknowledges that Charter Up has developed computer software, ideas, designs, methods, specifications, inventions, concepts, information, know-how, experience, techniques, documentation which constitute pre-existing intellectual property (collectively, the “Utilities”). All rights in the Utilities made, developed, conceived or reduced to practice by Charter Up in connection with its performing services hereunder (collectively, “Generic Enhancements”) shall be owned solely by Charter Up, whether or not incorporated into the product or service to be delivered. Subject to the parties' mutual obligation of confidentiality, Charter Up will be free to use the concepts, techniques, and know-how used in connection with the services. In addition, Charter Up will continue to be free to perform similar services for our other clients using the knowledge, skills and experience obtained during the services.
4. Charter Up warrants that in providing transportation services, it will take commercially reasonable steps to ensure that the services provided by the contracted motor carrier:
a. Use vehicles that are not older (as measured from date of first use by any owner) than ten (10) years or have more than 1,000,000 miles of use;
b. Use vehicles that are in good working order, are clean at the time of dispatch to the pickup location, have fully working lavatories, as well as any terms and conditions specified at time of booking or subsequently agreed to;
c. Use vehicles that are operated in full compliance with applicable standards of the United States Department of Transportation (“USDOT”), including without limitation those standards of the FMCSA, and similar state agency in which the vehicle is operated;
d. Utilize only drivers who are properly licensed in compliance with FMCSA requirements and who are engaging in driving activities only as permitted by the FMCSA or applicable state law, including, without limitation, pursuant to a valid medical certificate, subject to a drug and alcohol testing program compliant with USDOT/FMCSA requirements, and within the permitted hours of service;
5. Except as provided in this Agreement or Confirmation, Charter Up does not warrant and shall not be responsible for the performance of any third-party vendor’s products or services. Except to the extent a Confirmation for Services provides for such support services, you understand and agree to look solely to the third-party vendor of the service or product for maintenance and support. Your sole and exclusive rights and remedies with respect to any third-party product or service, including rights and remedies in the event a third-party product or service gives rise to a claim by you or another party (e.g., passenger), will be against the third-party vendor and not against us. We do agree, however, to assign to you any assignable warranties or guarantees we may receive from any such third-party vendor. This provision in no way limits any remedies for breach of warranty Customer may have against Charter Up for services provided under this Agreement or Confirmation.
6. Except as expressly provided in this Agreement, to the maximum extent permitted by law, Charter Up disclaims all warranties and conditions, whether express, implied or statutory, relating to the services or products provided under this Agreement.
7. Except for indemnification claims or claims arising from breach of confidentiality, intellectual property infringement, gross negligence OR willful misconduct, To the maximum extent permitted by law, neither party shall be liable to the other or any other person for any special, incidental, indirect, consequential, exemplary or punitive damages, whether in an action of contract, strict or statutory liability, tort (including negligence) or other theory of liability (including breach of warranty), arising out of or in any way connected with this Agreement or the use of or inability to use any products, services, information or results provided under this Agreement, even if such party has been advised of the possibility of such damages.
8. CHARTER UP SHALL NOT BE LIABLE TO YOU OR ANY OF YOUR PASSENGERS FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CHARTER SERVICES OR THE SERVICE BUSES HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, THE CHARTER SERVICES OR THE SERVICE BUSES, WHETHER OR NOT CHARTER UP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. IN SUCH CASES, CHARTER UP’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. In no event will Charter Up’s total liability to you for all damages, losses, and causes of action arising out of or relating to this Agreement or the Charter Services (whether in contract, tort including negligence, warranty, or otherwise), exceed the amount paid by you, if any, to Charter Up during the twelve (12) months immediately preceding the date of the claim, or five thousand dollars ($5,000.00), whichever is greater. The essential purpose of this provision is to limit the potential liability of Charter Up arising out of this Agreement or the Charter Services whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
9. Neither Charter Up nor its subcontractor(s) shall be liable for any delay or failure in its performance of any of the acts required by this Agreement or the Confirmation, when such delay or failure arises from circumstances beyond the control and without the fault or negligence of such party (“Force Majeure”). Such causes may include, without limitation, traffic, mechanical breakdowns, road conditions, acts of local, state or national governments or public agencies, acts of public enemies, acts of civil or military authority, labor disputes, utility or communication failures or delays, earthquakes, fire, flood, other natural disasters, epidemics, riots or strikes. The time for performance of any act delayed by any such event may be postponed for a period equal to the period of such delay.
10. Customer will pay to Charter Up all taxes (including without limitation sales, use and excise taxes) that are measured directly by the payments made by Customer to Charter Up under this Agreement and are required to be collected by Charter Up; provided, however, that in no event shall Customer be obligated to pay any of Charter Up’s franchise taxes, taxes based on Charter Up’s net income, business and license taxes, property taxes for which Customer is exempted by law, or any penalties associated with Charter Up’s failure to properly remit taxes. Customer reserves the right to reasonably contest any tax. In the event that Charter Up receives an assessment of Taxes from any taxing authority, Charter Up must notify Customer in writing in advance of the due date for contesting or protesting such assessment of Taxes to allow Customer sufficient time to contest or protest the Taxes. If Customer should pay any tax to Charter Up and it is later held that the tax was not due, Charter Up will promptly refund the amount of the tax to Customer.
11. Client acknowledges and agrees that Charter Up is not a motor carrier and will not directly provide transportation equipment or drivers in order to deliver services to customer. Charter Up provides such service through independent third party transportation carriers that are directly responsible for providing the services to you. Charter Up uses commercially-reasonable efforts to ensure that all such Carriers (i) have certificates of authority issued by the U.S. Department of Transportation (“USDOT”), (ii) are in compliance with all USDOT and applicable laws, rules and regulations, and (iii) are qualified and able to provide the services to be provided in the Confirmation. Notwithstanding the foregoing, except as provided herein or the applicable Confirmation, Charter Up shall not be responsible, and shall have no liability, for the acts or omissions of the vendor, including errors, late shows, the quality of the equipment, the performance of the drivers, any violations of applicable laws, rules or regulations or any failure to provide the services.
12. Charter Up represents and warrants that it is an independent contractor for all purposes, including with respect to federal, state and local employment taxes. Charter Up acknowledges and agrees that Charter Up is solely responsible to and shall collect, pay and withhold all federal, state or local employment taxes, including, but not limited to, income tax withholding, unemployment taxes and social security contributions for Charter Up’s personnel, and that Customer shall have no obligation or liability with respect thereto. Any and all such taxes, interest or penalties, including, but not limited to any federal, state or local withholding or employment taxes, imposed, assessed or levied as a result of this Agreement will be paid or withheld by Charter Up or, if assessed against and paid by Customer, will be reimbursed by Charter Up upon demand by Customer.
13. Upon written request, Charter Up shall provide Customer with a current Internal Revenue Service form W-9.
a. IP Indemnity. The Parties shall indemnify, defend and hold harmless each other and their respective affiliates, customers, employees, successors and assigns (collectively hereafter “Parties”) from and against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) that relate to, arise out of or result from any third party claim that: in the case of Charter Up, any materials, deliverables, goods or Services furnished hereunder by Charter Up (excluding third-party vendor products or services); in the case of Customer, any Confidential Information provided to Charter Up by Customer, infringes any intellectual property rights held by any third party, including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights (“IP Claim”).
b. General Indemnity. The Parties shall indemnify, defend and hold harmless each other from and against any and all liability under any claim, demand, suit or cause of action of any kind brought by a third party (“Claim”), including, but not limited to, warranty, negligence, strict liability, and any other cause of action, for any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) relating to, arising out of, connected with, or resulting from the gross negligence or willful misconduct in the performance of their respective obligations under this Agreement. Provided, however, that Charter Up shall not be required to indemnify Customer for any claims by Customer or third parties arising from a third-party vendor’s products or services.
c. Indemnification Procedures. The procedures set forth in this Section shall apply to any indemnification sought by either party under this Agreement. The indemnified party will provide the non-indemnified party with prompt, written notice of any Claim or IP Claim and will cooperate appropriately with the non-indemnified party in connection with the non-indemnified party's evaluation of such Claim or IP Claim. At the indemnified party's request, the non-indemnified party shall assume the defense of such Claim or IP Claim with counsel reasonably satisfactory to the indemnified party, at the non-indemnified party's sole cost. The non-indemnified party shall not settle or compromise any Claim or IP Claim or consent to the entry of any judgment without the prior written consent of the indemnified party and without an unconditional release (but specifically excluding a release conditioned upon the indemnified party’s ceasing use of any infringing product subject to such IP Claim) of all claims by each claimant or plaintiff in favor of the indemnified party. If the non-indemnified party fails to satisfy its indemnification obligations under this Agreement, the indemnified party shall have the right, but not the obligation, to adjust, settle or defend the Claim or IP Claim without affecting the indemnified party's entitlement to indemnity by the non-indemnified party. In the defense or settlement of an IP Claim related to 17a. above, if Charter Up is required under this Agreement to indemnify Customer, Charter Up shall obtain for Customer the right to continue using the deliverable at issue or, if such remedies are not reasonably available, modify the deliverable so that it is no longer infringing, replace the deliverable, or accept the return of the deliverable and give Customer an immediate refund of the fees paid to Charter Up by Customer for the infringing product.
15. Neither party will be liable for any delays or failures to perform due to causes beyond such party’s commercially-reasonable control. Such delays and failures for which a party shall not be liable include, without limitation, delays (or degradation) in service due to traffic, weather, mechanical issues, flat tires, accidents, Hours of Service and safety limitations under state or federal law, passenger disruptions, functionality of equipment or amenities (e.g., air conditioning, toilets, wifi, electrical outlets, etc.), public disorder, police or governmental action, strikes or other labor action, and so forth.
16. To allow us to be able to manage our services most effectively, Charter Up reserves the right, in our sole discretion, to determine which transportation providers (e.g., licensed transportation companies) will provide services, although we will attempt to honor your requests for specific third-party vendors or classes, models, or looks of vehicles. For the duration of this Agreement and for a period of one year after the services are completed, Customer agrees not to solicit the services of any vendor introduced by Charter Up; provided, however, that this provision will not apply to vendors who respond to a general advertisement or other broad solicitation not directly or indirectly targeting such vendor. The parties agree that a breach of this covenant would result in significant damages that would be difficult to precisely ascertain or quantify. Therefore, if Customer breaches this covenant by engaging or soliciting the services of a vendor in contravention of this Paragraph, then the Customer agrees to pay Charter Up an amount equal to the aggregate compensation paid to such vendor by Charter Up during the twelve months preceding the earlier of the solicitation or engagement of such vendor, as liquidated damages, for each and every such occurrence of such breach. These provisions shall not be construed so as to give either party any right to interfere with the contractual relationships of the other party. The parties expressly acknowledge that any provisions of this Agreement governing assignability or assignment apply to the covenants and understanding set forth in this section.
17. Charter Up may terminate this Agreement upon thirty (30) days prior written notice to Customer in the event of a material failure by Customer to perform in accordance with the terms of this Agreement through no fault of Charter Up. This Agreement or any part of the Confirmation may be terminated by Customer without cause upon sixty (60) days prior written notice to Charter Up. Charter Up shall be paid for undisputed fee and expenses through the date of termination. After receipt of a termination notice and except as otherwise directed by Customer, Charter Up shall: (i) Stop work on the date and to the extent specified; (ii) Transfer all work in process, completed work, and other material related to the terminated work to Customer or such other person or entity as directed by Customer; and (iii) Continue and complete any parts of the Confirmation that have not been terminated.
18. Except as provided in the applicable Confirmation, you agree to reimburse us for reasonable expenses incurred in performing under this Agreement, including the Confirmation. Expenses may include, but are not limited to: tolls, taxes, credit card or similar processing fees, fuel or similar surcharges by third-party vendors, damage and/or charges for cleaning beyond normal use, parking fees, lodging fees for drivers, additional stops or mileage, overtime charges, and so forth by the third-party vendor.
19. Based on the scope outlined in each Confirmation, appropriate service retainers and service billings for fees and out-of-pocket expenses will be agreed upon. Following any upfront retainer payments, billings are typically performed weekly. Except as otherwise provided in a Confirmation, retainers or down payments will be applied to services invoices only after fifty percent (50%) of the anticipated fees under the applicable Confirmation have been billed and collected. Payment of all billing amounts becomes due and payable within thirty (30) days of the invoice date (Net 30). Any unpaid amount after thirty (30) days will bear and accrue interest at the rate of two percent (2.0%) per month (or such lesser rate as is required to comply with applicable law) until paid in full. Charter Up reserves the right, following notice, to suspend or discontinue its performance or provision of products and services hereunder for your lack or delinquency of payment of any amounts due, or for any other material failure or material breach of this Agreement including your performance under all significant assumptions.
20. Although Charter Up may have provided recommendations, you acknowledge that you have independently selected the products or services to be acquired based on your own due diligence. You understand and agree that all sales and other transactions are final. Charter Up has no obligation to return or refund all or any portion of any payments made by you hereunder for delivered products or services. This provision in no way limits any remedies for breach of warranty Customer may have against Charter Up hereunder.
21. The parties, at their own expense, shall comply with any laws or regulations, including trade restrictions and embargos, relating to products acquired and shall procure all licenses and pay all fees and other charges required thereby. The parties shall limit their actions to conform to applicable laws and regulations regarding the use, licensing, import, export or re-export of the products, including regulations of the U.S. Department of Commerce and/or the U.S. State Department, to the extent applicable.
22. This Agreement shall be construed and governed by the internal laws of the State of Georgia (except that any law that would cause the application of the substantive or procedural law of any other state shall not apply). Each party irrevocably agrees that, except for those claims that must be brought in arbitration as specified elsewhere in this Agreement, any legal action, suit, or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the appropriate state or federal district court sitting in or otherwise with jurisdiction over Fulton County, Georgia.
23. Prior to initiating any legal action, including arbitration, the initiating party shall give the other party thirty (30) days written notice of its intent to file an action. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement, shall finally be settled in a court of competent jurisdiction as set forth herein. Should either of us institute legal action concerning this Agreement, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.
24. YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND CHARTER UP (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THIS AGREEMENT, INCLUDING CONFIRMATION, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF COMMERCIAL DISPUTES IN FULTON COUNTY, GEORGIA. YOU AND CHARTER UP HEREBY EXPRESSLY WAIVE TRIAL BY JURY. This arbitration agreement will survive the termination of this Agreement or your relationship with Charter Up. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Charter Up or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
25. Neither you nor Charter Up will participate in a class action, including class-wide arbitration or any other representative capacity, for any claims covered by this agreement to arbitrate.
26. Any cause of action or claim you may have arising out of or relating to this Agreement or the Charter Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred
27. Neither party shall take any action or publish any statement (oral, written, video, etc.) which is intended, or would reasonably be expected, to harm the other party or its or their reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to Charter Up or the Customer.
28. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that, other than the engagement by Charter Up of a transportation vendor on behalf of Customer, neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other, and any purported assignment shall be void. Notwithstanding the foregoing, either party may assign or delegate this Agreement, its rights and obligations hereunder, without the written consent of the other party (but with notice to the non-assigning party) in the event of a merger or a sale of all or substantially all of the assets of the assigning party.
29. This Agreement and the Confirmation set forth the complete agreement between us and supersede all prior agreements or understandings relating to any service or product. No amendment, alteration, or modification of this Agreement will be valid or binding upon either party except by an instrument in writing signed by both of us. Provided, however, Charter Up may in its discretion, revise or update the terms of this Agreement from time to time for its own commercial purposes. Upon such amendment, Charter Up shall make the amended agreement available to you on Charter Up's website, and you are responsible for monitoring for amendments to the Agreement. Charter Up may, but is not obligated to, inform you of such amendments. Unless required by law, no amendment will become effective with any Confirmation issued after the amendment and will not apply to any Confirmation issued prior to the amendment. Upon acceptance of a Confirmation, you agree to the then-effective terms.
30. The parties may electronically sign this Agreement and any Confirmation, including by means of facsimile signature pages, in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.