This Service Terms and Agreement for Transportation Reservations (the “Agreement”) is by and between CharterUp LLC (“CharterUp”) and you (either individually or on behalf of any entity whom you are representing) (“Client” or “you”). This Agreement governs your procurement of bus charter services (the “Charter Services”) provided by an independent third-party company (the “Charter Company”).
BY CLICKING “I AGREE”, MAKING A RESERVATION, UTILIZING THE CHARTER SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT FOR AND ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT.
You agree that you are fully responsible for the actions of all of you, your passengers, guests and invitees (collectively, the “Passengers”) aboard the vehicles provided through CharterUp (the “Service Buses”).
1. RESERVATIONS AND DEPOSIT
Reservations for Charter Services may be made electronically through CharterUp’s website – www.CharterUp.com (the “Website”) or by phone. Until the reservation is confirmed by CharterUp in writing (including by email) and the full payment received from you, the reservation is subject to change by CharterUp, the Charter Company, or you. You understand and agree that payment for all charter services reserved through CharterUp shall be made payable to, and collected by, CharterUp LLC without regard to the name of the Charter Company.
You understand and agree that the rates shown on CharterUp’s website or otherwise provided to you by CharterUp for a particular Charter Company (defined below), may be different (e.g., higher or lower) than rates you may be offered when contacting the Charter Company directly as such rates may include revenue to CharterUp and/or discounts offered for trips arranged though the CharterUp portal. You further understand and agree that Charter Company options presented to you by CharterUp may not include all potential options available on the CharterUp platform or may be presented in an order/page ranking based on factors such as corporate affiliation with CharterUp or other factors within the sole discretion of CharterUp.
CharterUP depends on Charter Companies to update their availability on the Website as well as other software and methods to try to detect availability. CharterUP shall attempt when possible to source your Service Buses from the Charter Company you select. Notwithstanding the foregoing, CharterUP reserves the right, in its sole discretion, at any time to substitute any or all Charter Companies you select or are assigned for a different Charter Company. Among other things, any such changes may result in a change in pricing, services, and/or equipment. You understand and agree that such substitutions shall impose no obligation for CharterUP to notify you of such substitution at any time.
CharterUp is not responsible for any confirmation of your reservations that is lost or otherwise not received when booking via the internet. If your spam blocker is on, a confirmation may not get through. It is your responsibility to call and get a confirmation email when making a booking.
All reservations that are more than fourteen (14) days from the scheduled date of service (the “Date of Service”) require a deposit of at least ten (10) percent. CharterUp shall confirm the amount of the deposit at the time Client makes its reservation. A deposit of the full estimated cost of the Charter Services (the “Estimated Cost”) is required for all reservations made less than fourteen (14) days prior to the Date of Service.
Payment of the full Estimated Cost is due no later than fourteen (14) days prior to the Date of Service. If you fail to timely pay any deposits or Estimated Costs or any other amounts owed to CharterUp as and when required in accordance with this Section 1, (a) you hereby authorize CharterUp to, and CharterUp may in its sole discretion, initiate entries to your check/savings account and/or credit card at the financial institution provided by you at the time of reservation for the payment of any such deposits or Estimated Costs and/or (b) your reservation may be cancelled in the sole discretion of CharterUp. Client may change a reservation subject to (a) the availability of the requested Charter Services as proposed by the changed reservation, (b) payment of the applicable fee as determined by CharterUp in its sole discretion and (c) the approval by Charter Company in its sole discretion. Subject to the foregoing, all reservations are final and all payments and deposits are non-refundable.
2. CANCELLATIONS AND REFUND POLICY
(a) i) Any vehicle or reservation cancellation made at least thirty (30) days prior to the Date of Service will be 100% fully refundable and not subject to any charge or cancellation fee; ii) any vehicle or reservation cancellation made between twenty-nine (29) days and seventy-two (72) hours prior to the Date of Service will result in a cancellation fee and charge equal to 10% of the contracted amount that will be owed and collected; iii) any vehicle or reservation cancellation made within seventy-two (72) hours before the Date of Service or anytime afterward will result in a cancellation fee and charge equal to 100% of the contracted amount that will be owed and collected. In the event that you partially cancel a reservation by reducing the size or scope of vehicles reserved, cancellation fees will be applied pro-rata based on the percentage impact to the total Estimated Cost.
In certain specific circumstances, CharterUp may in its sole discretion refund some or all of a deposit or the Estimated Costs that have been paid by you if the Charter Service Bus procured by you for Charter Services breaks down or breaches its obligations under this Agreement to provide the Charter Services (a “Performance Failure”). Any such Performance Failure shall not affect, and there shall be no refunds of any sort, in connection with any Service Buses not affected by a Performance Failure that you may have chartered for Charter Services under this Agreement. You shall remain fully responsible and liable for all deposits, the Estimated Costs and all other amounts due under this Agreement for any such other Service Buses and Charter Services in accordance with the terms of this Agreement.
(b) If you want to cancel or request a change to your reservation, you shall send written notice to: firstname.lastname@example.org
(c) You agree to pay any cancellation or change fees that you incur. Any charge associated with a cancellation is final and not transferable to future or alternative services.
(d) If the driver arrives at the scheduled pick-up location and Client is not there, and the Charter Company is unable to locate or contact the contact person within 60 minutes of the scheduled pick-up time, by the means provided in the reservation, then the ride will be considered a no-show and the reservation cancelled. You shall be fully liable for 100% of the Estimated Cost.
(e) If you would like to submit a complaint due to a Performance Failure or otherwise request for refund, you may do so by contacting CharterUp’s support team within forty-eight (48) hours after the completion of a confirmed reservation. Complaints received by CharterUP more than forty-eight (48) hours after a reservation’s completion shall be considered late and may not be considered for purposes of providing refunds or otherwise in CharterUp’s sole discretion.
(f) The cancellation policies outlined in this Section 2 apply to both (i) reservation cancellations and (ii) reservation changes that reduce the size or scope, including number, passenger count, and duration of use, of vehicles reserved.
(g) Notwithstanding the foregoing, CharterUP may, in its sole discretion, grant limited exceptions to this cancellation policy in the event of Force Majeure (defined below) events. To qualify for such an exception, you must: i) prove the existence of a Force Majeure event; ii) show in writing the existence of a mandatory order from a governmental authority, limiting activities (a “Mandatory Order”); iii) show that your pickup address, final destination or only available route is directly impacted by the Force Majeure event and the Mandatory Order; and iv) submit the cancellation request at least 24 hours prior to scheduled departure.
3. RATES AND PAYMENT
(a) All advertised rates are subject to change without notice and may be increased at any time prior to confirmation by CharterUp in its sole discretion.
(b) The rate quoted for the Charter Services is an estimate based on the information that you provided to CharterUp in connection with your reservation. There may be additional charges including for taxes, credit card processing fees, damage to the buses, injury to the driver, overtime (i.e., exceeding the time of your reservation), traveling further than originally requested and clean-up that requires a greater than normal amount of time and material necessary to clean the buses properly (“Excessive Cleaning”). The fee for Excessive Cleaning shall be determined by CharterUp in its sole discretion but the minimum fee is $250.
(c) CharterUP reserves the right to notify (by phone, text, email or other reasonable means) you at any time prior to the scheduled trip of any adjustments to quoted and confirmed prices or services (“Price/Service Adjustments”) up to the time of any booking’s time of departure to accommodate (i) any itinerary changes or services that you may request and /or (ii) changes to the Charter Company or equipment and/ or services selected to service your reservation. You recognise that any Price/Service Adjustments are legally binding changes for any previously provided quotes and/or confirmed prices, and CharterUP is under such circumstances under no obligation to honor previously-quoted or confirmed prices, equipment and/ or services or to send an updated quote or confirmed prices when there are Price/Service Adjustments.
(d) Client shall reimburse CharterUP for any other expenses incurred, by Charter Company or otherwise, in connection with the provision of the Charter Services, including driver’s lodging, tolls, parking fees, additional stops, and any other expenses described in Section 4(b) (the “Customer Expenses”) and CharterUp shall have no responsibility or liability for any such Customer Expenses.
(e) You hereby authorize CharterUp to initiate entries to your check/savings account and/or credit card at the financial institution provided by you at the time of reservation, and, if necessary, initiate adjustments for any transactions credited or debited in error or additional charges. This authority remains in effect until CharterUp is notified in writing to cancel it. To cancel such authority, you shall provide written notice to CharterUp no less than thirty (30) days prior to the effective date of such cancellation. CharterUp may attempt multiple smaller transactions if your financial institution declines large transaction attempts.You agree that if any attempt to charge a credit or debit card is declined at any time, then CharterUp may terminate the option to pay by credit or debit card. If CharterUp terminates this option, then all remaining payments shall be made via check or electronic wire transfer. If you refuse to pay the remaining balance via check or wire then your reservation(s) will be cancelled and you will be subject to the cancellation charges set forth in Section 2. You agree that CharterUp shall ask, at its discretion, for all total payments exceeding $5,000 to be made via check or electronic wire transfer. Refusing to pay via check or electronic wire transfer does not nullify this agreement and shall not relieve you of cancellation charges as set forth in Section 2.
(f) You agree not to dispute any fees or charges in connection with the Charter Services that were otherwise made consistent with the terms of this Agreement, including cancellation fees, warranties, dispute resolution, the Waived Conditions and any other risks for which CharterUp has disclaimed responsibility or any claims that you have waived (the “Improperly Disputed Amounts”). If you dispute any such fees or charges, then CharterUp shall have the right to charge you, and you shall pay, any related fees charged by any financial institution involved with the dispute, any attorneys' fees and expenses and court or arbitration costs associated with enforcing and collecting payment of any such fees or charges, and any other damages suffered by CharterUp related to or arising from the Improperly Disputed Amounts.
(g) It is a violation of law to place a reservation in a false name or with an invalid credit card number with the intent to defraud. Please be aware that even if you do not give CharterUp your real name, your Web browser transmits a unique Internet
address to us that can be used by law enforcement officials to identify you. Fraudulent users will be prosecuted to the fullest extent of the law. Accordingly, if you knowingly input false information in a reservation form, including someone else’s name, e-mail, address, physical address, phone number, random or made up name, address, e-mail, or phone number, you agree to fully indemnify and be liable to CharterUp and its affiliate companies, for an amount of $10,000 to each company involved, plus any attorneys' fees and expenses and court or arbitration costs.
4. OVERTIME AND ADDITIONAL CHARGES
(a) Client shall be fully responsible for any overtime incurred by the Charter Company. Overtime will be charged at a rate determined by CharterUp in its sole discretion and is incurred in hourly increments (plus additional taxes and fees).CharterUp cannot guarantee the availability of overtime. It is of particular importance then that you make allowances for anticipated delays and adhere to the agreed time schedule. Time and charges begin when the Service Bus arrives at the pick-up location. If there is an error in the stated address, you shall be charged for the time needed to reroute the Service Bus to a different address.
(b) You agree to pay the following additional expenses incurred in connection with Charter Services directly to CharterUP: (i) driver's lodging, (ii) tolls, (iii) parking fees (iv) additional stops, (v) reasonable overtime charges incurred by Charter
Company, including overtime charges resulting from traffic delays, and (vi) any other expenses incurred directly by the Charter Company in connection with the provision of the Charter Services. You agree that if required, as determined by CharterUP in its sole discretion, you will arrange for appropriate lodging for drivers that meet or exceed the following minimum standards: 3.0 star or better hotel/motel, private room with private shower and bathroom. If you fail to provide the driver(s) with private lodging meeting the above listed requirements, you (i) authorize CharterUp or the Charter Company to procure such alternative lodging for the driver(s) and (ii) agree to reimburse CharterUp for the cost of any such alternative lodging.
5. CHARTER SERVICES
(a) Client acknowledges and agrees that CharterUp is not a transportation carrier and will not directly provide the Charter Services. CharterUp merely provides a marketplace in which you may engage and pay for the services of independent third-party transportation carriers (the “Carriers”) that are directly responsible for providing the Charter Services to you. CharterUp uses reasonable commercial efforts to ensure that all such Carriers are (i) DOT licensed, and (ii) qualified and able to provide the Charter Services. Notwithstanding the foregoing, CharterUp shall not be responsible, and shall have no liability, for the acts or omissions of the Charter Company, including errors, late shows, the quality of the Service Bus, the performance of the drivers, any violations of applicable laws, rules or regulations or any failure to provide the Charter Services.
(b) Images of, and information regarding, buses and other vehicles presented on the Website are provided by the Charter Companies and may differ from the actual Service Buses. While Carriers are required to provide accurate images and information, CharterUp does not independently verify the accuracy of any images or information provided by Carriers; therefore, you agree that you are not relying on CharterUp for any damages arising from any such inaccurate information. You agree that it is your sole obligation to investigate independently the suitability of any Charter Company selected by you through CharterUp or based on any
information provided by or through CharterUp.
(c) CharterUp cannot guarantee any of the following (collectively, the “Waived Conditions”): • the specific make, model, year, or specific bus appearance of the Service Bus • the functionality of the hvac, air-conditioning or plumbing (including on-board restrooms) on the Service Bus • the availability or working condition of requested amenities including, but not limited to, seat type, on-board restrooms, wheel-chair lifts, WI-FI internet, DVD/TV equipment, USB charging, or electric plugs • the behavior of the drivers and how they treat the Passengers • the driver’s use of a cell phone • the provision of the Charter Services if any of the Service Buses are affected by weather, mechanical breakdown, blown tires, motor vehicle accident or other similar events (collectively, the “Interference Events”). You acknowledge and agree that CharterUp does not guarantee the Waived Conditions and you specifically waive any claims against CharterUp or right to terminate this Agreement or demand any refund from CharterUp related to or in connection with the Waived Conditions. At CharterUp’s sole discretion, CharterUp may provide limited assistance in resolving claims against a Carrier when such claims are presented before trip end. With respect to any Interference Event,
CharterUp shall use commercially reasonable efforts to encourage the Charter Company to get the Service Bus operating again or to obtain a replacement bus as soon as possible.
(d) You acknowledge and agree that Service Buses and their drivers may not arrive on time for pickup, and may deliver Passengers later than their original scheduled arrival time. You specifically waive any claims against CharterUp and the Charter Company or to terminate this Agreement or any sort of refund if the Service Bus is delayed due to events of Force Majeure, including GPS malfunctions, GPS signal problems incorrect route information on the GPS, road closures, or traffic delays. In addition, you acknowledge and agree that certain road and vehicle conditions may require the Service Bus to travel slower than usual. The speed at which to travel, the route and any other trip related decisions shall be solely determined by the driver in his sole discretion.
(e) Unless agreed to in writing at the time of the reservation, CharterUp is not obligated to provide options for buses or drivers that are SPAB certified / school certified, DOD certified, or require special permits or certificates. Cancellation for
such reasons shall not relieve you of cancellation charges as set forth in Section 2.(f) You agree that Charter Company may reserve a reasonable number of seats on the Service Bus to allow any required additional drivers or support staff to travel
on the Service Bus.
(g) CharterUp shall not be responsible for any lost or damaged items. CharterUp reserves the right to charge a fee for returning any items found in the Service Buses.
(h) CharterUp, the Charter Company or the driver may terminate any trip without refund in its sole discretion, if (i) the driver or the dispatcher on duty feels that you or any of the Passengers are putting the driver, the Service Bus or any of the Passengers in danger or harm or (ii) you and/or any of the Passengers are in possession of any illegal material and/or substance. This is without exception.
(i) Drivers must follow FMCSA Hours of Service Regulations and other applicable regulations and shall not agree to any request to exceed the regulated FMCSA Hours of Service or to violate any other regulations. These regulations restrict driving time to ten (10) hours and duty time to fifteen (15) hours. Unless agreed to in writing at the time of the reservation, Charter Company is not obligated to arrange buses with more than one driver on each bus. Drivers are entitled to a hotel room in accordance with Section 4(b) no later than when they reach these restrictions on driving and/or duty times. Charter Company may terminate any trip without refund in its sole discretion if you or any of the Passengers attempt to force the driver to exceed regulated FMCSA Hours of Service or to violate any other applicable regulations. Additional detail can be found on the FMCSA website: https://www.fmcsa.dot.gov/regulations/hours-service/summary-hours-service-regulations.
(j) You, or such representative designated by you, agree that as requested by the Driver, you will input such requested information into the CharterUp application utilized by the Driver on a mobile device for the purpose of confirming the trip
and the completion thereof.
6. WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY
(a) Warranties. Each party represents and warrants to the other that (a) it has the full power to enter into this Agreement and to perform its obligations hereunder,
(b) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, and (c) thisAgreement does not contravene, violate or conflict with any other agreement of such party.
(b) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, CHARTERUP MAKES, AND CHARTERUP EXPRESSLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THIS AGREEMENT, THE CHARTER SERVICES, THE SERVICE BUSES OR THE CHARTER CARRIER,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. WITHOUT LIMITATION TO THE FOREGOING, CHARTERUP DOES NOT PROVIDE ANY WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT WITH RESPECT TO THE CHARTER SERVICES OR THE SERVICE BUSES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.
YOU EXPRESSLY AGREE THAT THE CHARTER SERVICES AND THE SERVICE BUSES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
(c) Limitation of Liability. CHARTERUP 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 CHARTERUP 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, CHARTERUP’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. In no event will CharterUp’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, ortherwise), exceed the amount paid by you, if any, to CharterUpduring 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 CharterUp 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.
(d) You acknowledge and agree that CharterUp and Charter Company are, jointly are severally, providing the CharterUp portal and services and Charter Services, respectively, and other services, sets prices, and entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and CharterUp, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and CharterUp. CharterUp would not be able to provide the Charter Services to you on an economically reasonable basis without these limitations.
(e) Neither CharterUp nor Charter Company shall be liable for any delay or failure in its performance of any of the acts required by this Agreement or the Charter Services, 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, pandemics, 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.
(a) In situations where You engage CharterUp to provide Charter Services to an event (each, an “Event”) You own or are directly hosting or sponsoring, You hereby grant to CharterUp a perpetual, fully paid, non-exclusive, and royalty-free license to utilize Your trade names, trademarks, service marks, logos, domain names, marks or other business identifiers related to such Event (collectively, the “Marks”) within the scope of license (the “Scope”) defined in Section 7(c) below.
(b) In situations where You engage CharterUp to reserve and/or pay for Charter Services to an Event that is owned, hosted or sponsored by a third party, Youcovenant, warrant and agree to obtain from such third party a perpetual, fully paid, non-exclusive, and royalty-free license to utilize such third party’s trade names, trademarks, service marks, logos, domain names, marks or other business identifiers related to such Event (collectively, the “Third Party Marks”) within the
scope of license (the “Scope”) defined below.
(c) For the purposes of this Agreement, the “Scope” shall mean CharterUp’s use of the Marks or Third Party Marks, as the case may be, to advertise and promote CharterUp’s Charter Services by publicizing the fact that CharterUp has provided such Charter Services to or on behalf of such Event.
You shall indemnify and hold harmless CharterUp, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “CharterUp Indemnitees”), and each of them, against and from any and all third party allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatever nature (including reasonable
attorneys’ fees), and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise, (“CharterUp Claims”), arising out of or in any way connected with (a) any actual or alleged violation or breach by you (including any of your employees. contractors or passengers) of any of the terms and conditions of this Agreement, (b) violation of any law, rule or regulation,
(c) use of the Website by you (including any of your employees or contractors) on behalf of yourself or any third party,
(d) any failure to procure the license rights contemplated under Section 7(b) above, and
(e) the acts or omissions of you (including any of your employees and contractors). If any CharterUp Claim is made or any action or proceeding is brought against CharterUp Indemnitees, or any of them, any such CharterUp Indemnitee may, by notice to you, require you, at your expense, to resist such CharterUp Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of such CharterUp Indemnitee. Your reimbursement,
indemnity and contribution obligations under this Section 7 shall be in addition to any liability that you may otherwise have, and shall extend upon the same terms and conditions to CharterUp Indemnitees.
You and CharterUp agree that any dispute, claim or controversy at law or equity that arises out of this Agreement or the Charter Services (a “Claim”) will be resolved in accordance with this Section 8 or as CharterUp and you otherwise agree in writing.
9. GOVERNING LAW AND DISPUTE RESOLUTION.
(a) Choice of Law. This Agreement shall be governed in all respects by the laws of the State of Georgia, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE CHARTER SERVICES.
(b) Arbitration and Class Action Waiver. PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) Arbitration. YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND CHARTERUP (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THIS AGREEMENT OR THE CHARTER SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN
ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES IN FULTON COUNTY, GEORGIA. YOU AND CHARTERUP
HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND CHARTERUP WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Neither you nor CharterUp will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST CHARTERUP INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if
CharterUp is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. 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 CharterUp 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 beentered 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.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under this Section 8(b) is found not to apply to you or your claim, you and CharterUp agree that any judicial proceeding (other than small claims actions) must be brought, solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts of Fulton County, Georgia. Both you and CharterUp consent to venue and personal jurisdiction there. Notwithstanding the foregoing, CharterUp may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) This arbitration agreement will survive the termination of this Agreement or your relationship with CharterUp.
(c) Improperly Filed Claims. All claims you bring against CharterUp must be resolved in accordance with this Section 8. All claims filed or brought contrary to this Section 8 shall be considered improperly filed. Should you file a claim contrary to this Section 8, CharterUp may recover attorneys’ fees and costs up to $15,000, provided that CharterUp has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(d) Limitation on Time to File Claims. 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.
You agree to take no action which is intended, or would reasonably be expected, to harm the Company or its or their reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company provided, however, that in connection with any review of the Company’s services, your actions will be only actionable when it is defamatory, libelous, slanderous, harassing, abusive, obscene, vulgar, sexually explicit, and/or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristics. Should you take such action, CharterUp, in addition to any damages it incurs, may also recover attorneys’ fees and costs up to $20,000.
(a) In the event that any provision of this Agreement shall be adjudged illegal or otherwise unenforceable, such provision shall be severed and the balance of this Agreement shall continue in full force and effect.
(b) The waiver by CharterUp of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach.
(c) All notices pursuant to this Agreement to either party shall be in writing and shall be personally delivered or mailed by overnight courier, or transmitted electronically, fees prepaid. Notice shall be deemed given and effective on receipt by the party to whom such notice is directed. To: CharterUP LLC 3344 Peachtree Rd NE Suite 800 Atlanta, GA 30326 Email:
legal@CharterUp.com Attn: CharterUp LLC. To Client: To such address as provided to CharterUp
(d) Except as provided in Section 8, the rights and remedies of the parties hereunder shall not be exclusive, and are in addition to any of other rights provided by this Agreement or by law.
(e) This Agreement is the entire agreement of the parties with respect to the Charter Services. Any additional terms or any modification to this Agreement shall not be binding on either party unless in a writing duly signed by the party to be
(f) This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you (by operation of law or otherwise), but may be assigned by CharterUp without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
(g) No agency, partnership, joint venture, employee-employer or franchiser- franchisee relationship is intended or created by these Terms.
(h) Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration including, but not limited to, Sections 2(a) and 3- 9.