Terms And Conditions
This Service Terms and Agreement for Transportation Reservations (the “Agreement”) is by and between Top Transportation Service Inc. (“Top Transportation Service”) and you (“Client” or “you”).
This Agreement governs your procurement of bus charter services (the “Charter Services”) provided by Top Transportation Service Inc. or by an independent third party charter company (the “Charter Company”) arranged by Top Transportation Service.
BY CLICKING “I AGREE” OR SIGNING YOUR NAME ON THE SERVICE AGREEMENT(S), 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 THIS AGREEMENT FOR AND ON BEHALF OF YOURSELF AND 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 your passengers, guests and invitees (collectively, the “Passengers”) aboard the buses provided through Top Transportation Service and any independent third party charter company (the “Service Buses”).
1. QUOTES, RESERVATIONS, PAYMENTS, AND DEPOSITS
Quote voidable by Top Transportation Service due to availability of vehicles. Quotation is subject to availability of equipment at time of actual reservation. No guarantee of availability, express or implied, is made by virtue of providing your quotation. Fees and taxes (airport fees, PUC tax, surcharges, parking fees, etc.) are subject to change without advance notice. Request of quotes from Top Transportation Service allows Top Transportation Service to contact you with emails regarding sales, discounts, etc..
Reservations for Charter Services may be made electronically through DocuSign which is a third party platform utilized by Top Transportation (the “Service Agreement”). Until the reservation is confirmed by Top Transportation Service in writing (including by email), the reservation is not confirmed and is voidable by Top Transportation Service.
Top Transportation Service 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 booking via the internet.
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 fifty (50) percent. Top Transportation Service 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.
Full payment of Estimated Cost will be charged prior to service unless otherwise disclosed by Top Transportation Service. Top Transportation Service reserves the right to charge payments using cash, check, credit card, or bank transfer/ACH.
If you fail to timely pay any deposits or Estimated Costs or any other amounts owed to Top Transportation Service as and when required in accordance with this Section 1, (a) you hereby authorize Top Transportation Service to, and Top Transportation Service 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 (b) your reservation may be cancelled in the sole discretion of Top Transportation Service.
Client may change a reservation subject to (a) the availability of the required Charter Services as proposed by the changed reservation, (b) payment of the applicable fee as determined by Top Transportation Service in its sole discretion and (c) the approval by Top Transportation Service 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) SUBJECT TO THE FOREGOING, ALL DEPOSITS AND OTHER PAYMENTS ARE NON-REFUNDABLE EXCEPT TO THE EXTENT APPROVED BY TOP TRANSPORTATION SERVICE IN ITS SOLE DISCRETION.
Any cancellation made more than fourteen (14) days before the Date of Service will be subject to a charge equal to the amount of payments and deposits. Any cancellation made within fourteen (14) days will result in a charge equal to 100% of the contracted amount.
In certain specific circumstances, Top Transportation Service may in its sole discretion refund some or all of a deposit or the Estimated Costs that have been paid by you if a 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, there shall be no refunds of any sort, in connection with any Service Buses not affected by a Performance Failure that you may have charted 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 your reservation, you shall send written notice to:
(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 unless otherwise disclosed by Top Transportation Service. Cancelation charges include withholding payment amount of the credit card processing fee (4%) from the reimbursement. Reimbursement will be sent in the full discretion of Top Transportation Service using either a check or credit card.
(d) If the driver arrives at the scheduled pick-up location and Client is not there, and Top Transportation Service or 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.
3. RATES AND PAYMENT
(a) All advertised rates are subject to change without notice and may be increased at any time by Top Transportation Service in its sole discretion.
(b) The rate quoted for the Charter Services is an estimate based on the information that you provided to Top Transportation Service 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 Top Transportation Service in its sole discretion but the minimum fee is $250.
(c) Client shall reimburse Charter Company directly for any other expenses incurred in connection with the provision of the Charter Services, including driver’s lodging, tolls, parking fees and additional stops (the “Customer Expenses”) and Top Transportation Service shall have no responsibility or liability for any such Customer Expenses.
(d) You hereby authorize Top Transportation Service 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 Top Transportation Service is notified in writing to cancel it. To cancel such authority, you shall provide written notice to Top Transportation Service no less than fourteen (14) days prior to the effective date of such cancellation. Top Transportation Service 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 Top Transportation Service may terminate the option to pay by credit or debit card. If Top Transportation Service terminates this option, then all remaining payments shall be made via check, electronic wire transfer, or cash. If you refuse or can not pay the remaining balance via check, wire transfer, or cash due to the interest of time, then your reservation(s) will be canceled and you will be subject to the cancellation charges set forth in Section 2. If the transportation services have already been provided and your payment is past due, Top Transportation Service has the right to levy a progressive late fee on the remaining balance. For payments that are late 14 days, 30 days, & 45 days or more, the following respective penalties will be added to the outstanding bill: 1.5%, 5%, & 10%.
You agree that Top Transportation Service shall ask, at it’s discretion, for all total payments exceeding $5,000 to be made via check, electronic wire transfer, or cash. Refusing to pay via check, electronic wire transfer, or cash does not nullify this agreement and shall not relieve you of cancellation charges as set forth in Section 2.
(e) 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 Top Transportation Service has disclaimed responsibility or any claims that you have waived (the “Improperly Disputed Amounts”). If you dispute any such fees or charges, then Top Transportation Service 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 any such fees or charges and any other damages suffered by Top Transportation Service related to or arising from the Improperly Disputed Amounts.
(f) 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 Top Transportation Service 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 Top Transportation Service 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/DEPOSITS
(a) Client shall be fully responsible for any overtime incurred by the Charter Company. Overtime will be charged at a rate determined by Top Transportation Service in its sole discretion and is incurred in hourly increments (plus additional taxes and fees). Top Transportation Service has the right to charge the credit card on file of the service agreement for any overtime or additional charges. Top Transportation Service 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 the Charter Company: (i) driver’s lodging, (ii) tolls, (iii) parking fees (iv) additional stops and (v) any other expenses incurred directly by the Charter Company in connection with the provision of the Charter Services.
You agree that if required, you will arrange for appropriate lodging for drivers that meet or exceed the following minimum standards: 2.5 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 Top Transportation Service or the Charter Company to procure such alternative lodging for the driver(s) and (ii) agree to reimburse Top Transportation Service or the Charter Company for the cost of any such alternative lodging.
(c) You agree to pay a hourly rate decided by Top Transportation Service (a “Quotable Rate”) for any transfer service that has a pick up delayed past 15 minutes, rate charge will be added to the total service.
(d) You agree to a minimum $150 cash deposit that must be given to the driver operating your Charter Service prior to the Charter Service for each bus in the case of drinking alcoholic beverages. If there are no signs of bodily fluids ie: vomit, urine, feces, or alcohol spilled/splattered on the bus, the cash deposit will be returned to you.
5. CHARTER SERVICES
(a) Top Transportation Service is a Charter Bus company that provides Charter Services to clients throughout California and other states. Top Transportation Service may provide the Charter Services through independent third party transportation carriers (the “Carriers”) that are directly responsible for providing the Charter Services to you. Top Transportation Service uses reasonable commercial efforts to ensure that all such Carriers are (i) DOT licensed, (ii) in compliance with all DOT and applicable laws, rules and regulations and (iii) qualified and able to provide the Charter Services. Notwithstanding the foregoing, Top Transportation Service 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) Due to availability, maintenance, or breakdowns images of buses and other vehicles presented on the Website or Email may differ from the actual Service Buses. Top Transportation Service may substitute smaller vehicles with larger ones.
(c) Top Transportation Service 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 to 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 drivers 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 Top Transportation Service cannot guarantee the Waived Conditions and you specifically waive any claims against Top Transportation Service or right to terminate this Agreement or any refund related to or in connection with the Waived Conditions. With respect to any Interference Event, Top Transportation Service’s sole obligation is to use commercially reasonable efforts to obtain a replacement bus as soon as possible from Top Transportation Service or another Charter Company or to get the Service Bus operating again.
(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 Top Transportation Service 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 their sole discretion. Notwithstanding the foregoing, Top Transportation Service shall use commercially reasonable efforts, within normal business hours to notify you of any potential delays.
(e) Unless agreed to in writing at the time of the reservation, Top Transportation Service is not obligated to provide 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 Top Transportation Service or 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) Top Transportation Service shall not be responsible for any lost or damaged items. Top Transportation Service reserves the right to charge a fee for returning any items found in the Service Buses.
(h) Top Transportation Service, 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(s). 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. Driving and duty time start and end at the garage. Unless agreed to in writing at the time of the reservation, Top Transportation Service 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. Top Transportation Service 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:
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) this Agreement does not contravene, violate or conflict with any other agreement of such party.
(b) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, TOP TRANSPORTATION SERVICE MAKES, AND TOP TRANSPORTATION SERVICE 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, TOP TRANSPORTATION SERVICE 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. TOP TRANSPORTATION SERVICE 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 TOP TRANSPORTATION SERVICE 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, TOP TRANSPORTATION SERVICE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. In no event will Top Transportation Service’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 Top Transportation Service 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 Top Transportation Service 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 Top Transportation Service is providing the Charter Services and other services, sets its 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 Top Transportation Service, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Top Transportation Service. Top Transportation Service would not be able to provide the Charter Services to you on an economically reasonable basis without these limitations.
(e) Neither Top Transportation Service 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, 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 Top Transportation Service to provide Charter Services to an event (each, an “Event”) You own or are directly hosting or sponsoring, You hereby grant to Top Transportation Service 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 Top Transportation Service to provide Charter Services to an Event that is owned, hosted or sponsored by a third party, You covenant, 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 Top Transportation Service’s use of the Marks or Third Party Marks, as the case may be, to advertise and promote Top Transportation Service’s Charter Services by publicizing the fact that Top Transportation Service has provided such Charter Services to or on behalf of such Event.
You shall indemnify and hold harmless Top Transportation Service, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “Top Transportation Service 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, (“Top Transportation Service 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 Top Transportation Service Claim is made or any action or proceeding is brought against Top Transportation Service Indemnitees, or any of them, any such Top Transportation Service Indemnitee may, by notice to you, require you, at your expense, to resist such Top Transportation Service 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 Top Transportation Service 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 Top Transportation Service Indemnitees.
You and Top Transportation Service 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 Top Transportation Service 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 California, 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 TOP TRANSPORTATION SERVICE (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 LOS ANGELES COUNTY, CALIFORNIA. YOU AND TOP TRANSPORTATION SERVICE 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 TOP TRANSPORTATION SERVICE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Neither you nor Top Transportation Service 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 TOP TRANSPORTATION SERVICE INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
You also agree not to participate in claims brought in by a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Top Transportation Service 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 Top Transportation Service 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.
(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 Top Transportation Service 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 Los Angeles County, California. Both you and Top Transportation Service consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Top Transportation Service 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 Top Transportation Service.
(c) Improperly Filed Claims. All claims you bring against Top Transportation Service must be resolved in accordance with Section 8. All claims filed or brought contrary to Section 8 shall be considered improperly filed. Should you file a claim contrary to Section 8, Top Transportation Service may recover attorneys’ fees and costs up to $15,000, provided that Top Transportation Service has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(e) 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.
Should you take action intended, or would reasonably be expected, to harm the reputation of Top Transportation Service, Top Transportation Service may 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 Top Transportation Service of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach.
(d) 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 Top Transportation Service:
Top Transportation Service Inc.
P.O. Box 34314
Los Angeles, CA 90034
Attn: Top Transportation Service Inc.
To Client: To such address as provided to Top Transportation Service
(e) 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.
(f) 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 charged.
(g) 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 Top Transportation Service without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
(h) No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
(i) 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.