This Operator Agreement for Bus Charter Services (the “Agreement”) is by and between Shofur LLC (“Shofur”) and you (“Charter Company”)
From time to time, Shofur needs to procure certain bus charter services (the “Charter Services”) including the provision of one or more buses, drivers, the transportation of passengers and other related services. This Agreement sets the terms and conditions for the provision of any such Charter Services.
IMPORTANT! THIS AGREEMENT GOVERNS THE PROVISION OF THE CHARTER SERVICES. BY CLICKING “I AGREE”, PROVIDING THE CHARTER SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTERT 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.
1. TRIP REQUEST.
When a need for Charter Bus Services arises, Shofur may request that Charter Company provide such Charter Services (a “Trip Request”). The Trip Request shall contain the relevant trip information including (a) the size and number of buses, (b) the day or days that the services are required, (c) the Charter Fees (as defined below) to be paid for such Charter Bus Services, (d) the pick-up and drop-off locations, (e) any amenities or other special needs that are required (the “Special Requirements”) and (f) such other information as Shofur believes is necessary for Charter Company to provide such Charter Bus Services. Charter Company shall promptly respond to any such Trip Request and shall (a) identify the make, model, age and condition of the bus(es), (b) identify any exceptions to the Special Requirements and (c) provide any such other information as may be reasonably relevant in connection with the Trip Request.
If Charter Company is selected by Shofur to provide such Charter Services, then Charter Company shall provide such Charter Services in accordance with the terms of this Agreement. Charter Company shall ensure that the bus drivers shall have all necessary equipment and information in order to provide the Charter Services, including the itinerary and necessary routing information.
2. FEES AND PAYMENTS.
The fees for the provision of the Charter Services shall be determined by Shofur in its sole discretion (the “Charter Fees”). Any fees, including any referral fee, to be paid to Shofur (the “Shofur Fees” and together with the Charter Fees, the “Fees”) shall be determined solely by Shofur and Charter Company shall not be entitled to any part of the Shofur Fees. Compensation for any overtime shall be mutually agreed in writing by the parties. All Fees shall be paid directly by the customer to Shofur and Operator shall not receive any payments from Shofur’s customers.
Unless otherwise agreed by the parties, payment of the Charter Fees shall be (a) subject to (i) receipt by Shofur of the applicable Charter Fees from the customer and (ii) compliance by Charter Company with the terms of this Agreement and the applicable Trip Request and (b) paid to Charter Company no later than [thirty (30) days] after receipt of the applicable payment. Notwithstanding the foregoing, if after the provision of the Charter Services Shofur reduces or refunds any part of the Charter Fees to the customer for any reason (the “Charter Fee Reduction”), then (a) the Charter Fees shall be reduced by the Charter Fee Reduction or (b) if the Charter Fees have already been paid to Charter Company, then Charter Company shall refund to Shofur an amount equal to the Charter Fee Reduction no later than ten (10) days after written notice from Shofur (together with reasonable evidence of any such Charter Fee Reduction).
Shofur shall also reimburse Charter Company for the following expenses incurred directly in connection with the provision of the Charter Services: driver’s lodging, tolls, parking fees, additional stops and clean-up (the “Expenses”) (i) subject to (A) submission of a reimbursement request together with reasonable evidence of any such Expenses and (B) receipt by Shofur of payment of the applicable Expenses by the customer and (ii) no later than [thirty (30) days] after receipt of the applicable payment.
Shofur may cancel any Trip Request at any time without payment, penalty or liability of any sort by providing prior written notice to Charter Company.
4. OPERATOR REPRENSATIONS AND WARRANTIES.
Charter Company represents and warrants to Shofur that:
(a) it has all necessary corporate power and has received all necessary corporate approvals to execute, deliver and perform its obligations under this Agreement;
(b) all buses and equipment necessary to fulfill any Trip Request are clean, well maintained, in good working order and conform with proper standards of the industry, and no bus is older than fourteen (14) years old;
(c) all of the Charter Services to be performed by the Charter Company under this Agreement shall be of the standard and quality that prevail for similar businesses and organizations of superior knowledge and skill engaged in providing similar services under the same or similar circumstances;
(d) it shall comply with all applicable Federal, state and local laws, including the US Department of Transportation (“USDOT”) and if operating in California, all rules and regulations promulgated by the California Public Utilities Commission. At the request of Shofur, Charter Company shall provide to Shofur proof of compliance with the USDOT the rules and regulations;
(e) all drivers shall be (i) properly certified and licensed under all applicable laws, rules and regulations, (ii) have been drug tested in accordance with any applicable laws, rules and regulations and (iii) conform to all applicable requirements for motor carrier drivers;
(f) during the term of this Agreement and for a period of two (2) years thereafter, Charter Company shall not solicit or book customers referred to Charter Company by Shofur. All such customers referred to Charter Company shall be booked through Shofur; and
(g) it shall provide the Charter Services consistent with the requirements set forth in the Trip Notice (and such other requirements as directed by Shofur), including the types and sizes of buses, departure and arrival times and satisfaction of the Special Requirements.
Charter Company hereby indemnifies and holds harmless Shofur, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “Shofur 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, (“Shofur Claims”), arising out of or in any way connected with (a) any actual or alleged violation or breach by Charter Company (including its employees and contractors) of any of the terms and conditions of this Agreement or the Trip Notice and (b) the acts or omissions of Charter Company (including its employees and contractors). If any Shofur Claim is made or any action or proceeding is brought against Shofur Indemnitees, or any of them, any such Shofur Indemnitee may, by notice to Charter Company, require Charter Company, at Charter Company's expense, to resist such Shofur 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 Shofur Indemnitee. The reimbursement, indemnity and contribution obligations of Charter Company under this Section 5 shall be in addition to any liability that Charter Company may otherwise have, and shall extend upon the same terms and conditions to Shofur Indemnitees.
Charter Company shall obtain and at all times during the term of the Agreement maintain at its own expense, with insurance companies rated “b+” or better by AM Best or similar local rating agency if not subject to AM Best, the following minimum insurance coverage set forth below or other written agreement between the parties:
(a) Charter Company shall maintain statutory workers’ compensation insurance in the state(s) or jurisdiction(s) in which Charter Company’s employees perform services for Shofur, and employer’s liability insurance with limits as required by applicable law.
(b) Charter Company shall maintain Commercial General Liability insurance with limits for bodily injury and property damage liability of not less than $1,000,000 each occurrence, $2,000,000 general aggregate and products/completed operations coverage, which shall include: (i) premises/operations liability; (ii) independent contractors liability; and (iii) broad form contractual liability. This policy shall (iv) include a waiver of subrogation in favor of Shofur; (v) include Shofur as “Additional Insured;” and (vi) contain cross-liability and severability of interest coverage unless prohibited by local law.
(c) Charter Company shall maintain commercial automobile liability insurance with a limit of not less than $5,000,000 per occurrence for bodily injury and property damage liability written to cover all owned, hired and non-owned buses, automobiles and other vehicles arising out of the use thereof by or on behalf of Charter Company and Charter Company employees, contractors and agents. The coverage shall not exclude passengers. This policy shall (i) include a waiver of subrogation in favor of Shofur; (ii) include Shofur as “Additional Insured;” and (iii) contain cross-liability and severability of interest coverage unless prohibited by local law.
(d) Charter Company shall maintain all such other insurance as required by applicable laws, rules and regulation including USDOT rules and regulations.
Prior to the provision of any Charter Services as provided for herein and at any other time requested by Shofur, Charter Company shall furnish to Shofur insurance certificates on standard Acord form, endorsements, or evidence of coverage signed by authorized representatives of the companies providing the coverage required under the terms of this Agreement.
Failure to secure the insurance coverage required by this Agreement or failure to comply fully with any of the insurance provisions of the Agreement as may be necessary to carry out the terms and provisions of the Agreement shall be deemed to be a material breach of the Agreement. A lack of insurance coverage does not reduce or limit Charter Company’s responsibility to indemnify Shofur as set forth in the Agreement. Any and all deductibles and premiums associated with the insurance coverage required by the Agreement shall be assumed by, for the account of, and at the sole risk of, Charter Company.
Shofur reserves the right to review the insurance coverage requirements of the Agreement and, to: (i) make reasonable adjustments to such requirements; and/or (ii) require other types of coverage, in either case, as reasonably appropriate given the nature, volume and/or value of the Charter Services provided from time to time pursuant to the Agreement.
7. NO WAIVER OR MODIFICATION.
The terms of this Agreement shall not be modified except by an agreement in writing signed by both parties hereto. No waiver by either party of a prior breach or default hereunder shall be deemed a waiver by such party of a subsequent breach or default of a like or similar nature.
8. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SHOFUR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE CHARTER SERVCES, OR ANY OTHER INTERACTIONS WITH SHOFUR, EVEN IF SHOFUR OR A SHOFUR AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 TO CHARTER COMPANY. IN SUCH CASES, SHOFUR’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. The essential purpose of this provision is to limit the potential liability of Shofur 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. LIMITATION OF DAMAGES.
IN NO EVENT WILL SHOFUR’S TOTAL LIABILITY TO CHARTER COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRIP NOTICE OR THE CHARTER SERVICES (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID TO CHARTER COMPANY BY SHOFUR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
Under no circumstance shall this Agreement be construed as creating any sort of exclusive relationship between the parties. Shofur may contract for Charter Services with any other charter company, or to perform the Charter Services itself.
11. GOVERNING LAW AND DISPUTE RESOLUTION.
(a) This Agreement shall be construed and interpreted pursuant to the laws of the State of Georgia, excluding any conflict of law principles, applicable to agreements executed and to be wholly performed therein.
(b) If any controversy, claim or dispute arising out of or relating to this Agreement, the Trip Notice or the Charter Services including the breach or interpretation of this Agreement or the Charter Services (collectively, a “Dispute”) is not resolved within thirty (30) days from the date that either party provides the other party with written notice of the existence thereof, then each party shall designate an executive who is authorized to investigate, negotiate and settle the Dispute. The executives shall exercise good faith efforts to settle the Dispute. If the executives do not resolve the Dispute within thirty (30) days (or an extended period if they so agree), then the parties shall resolve the Dispute in accordance with this Section 11. No court or other action pertaining to a Dispute shall be pursued unless this dispute resolution procedure has been exhausted. Nonetheless, either party at any time may pursue equitable relief before any court of competent jurisdiction in order to protect its intellectual property rights or Confidential Information.
(c) Any Dispute that is not resolved in accordance with Section 11(b) shall be determined by, and subject to the exclusive jurisdiction of, the federal and state courts in Fulton County, Georgia, and the parties agree to the personal and exclusive jurisdiction of these courts. The parties hereby irrevocably and unconditionally agree that (i) any such courts shall be a proper forum for the determination of any Dispute and waive any defenses based upon inconvenient forum or jurisdiction (and agrees not to plead or claim the same), and (ii) agree that service of process in any such Dispute may be effected by mailing a copy of such process by certified mail, postage prepaid, to such party at its address set forth on the books and records of the Company. The party prevailing in any Dispute shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and the cost of litigation. 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, THE TRIP NOTICE OR THE CHARTER SERVICES.
(d) All Disputes must be resolved in accordance with this Section 11. All Disputes filed or brought contrary to this Section 11 shall be considered improperly filed. Should a party file a claim contrary to this Section 11, the other party may recover attorneys’ fees and costs up to $25,000, provided that the other party has notified the filing-party in writing of the improperly filed claim, and the filing-party failed to promptly withdraw the claim.
12. Independent Contractor.
The parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. Charter Company is and will remain an independent Charter Company in its relationship to Shofur. Shofur shall not be responsible for withholding taxes with respect to Charter Company’s compensation hereunder. Charter Company shall have no claim against Shofur hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee or other benefits of any kind. Nothing in this Agreement shall create any obligation between either party and a third party.
Charter Company shall be solely responsible and liable for all compensation, taxes, benefits, charges, license fees, expenses and any other costs arising from or relating to the Charter Services and/or this Agreement.
(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 Shofur of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach.
(c) Charter Company shall not assign, by operation of law or otherwise, this Agreement, and shall not assign or subcontract the performance of any of the Charter Services without the prior written consent of Shofur. Consent for the subcontracting of the performance of any of the Charter Services will be given only if such subcontractor and its buses meet the requirements set forth under the terms of this Agreement and any other individual service contracts guidelines and requirements as determined by Shofur in its reasonable discretion, and Shofur is added as an “additional insured” under such subcontractor’s insurance.
(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.
3340 Peachtree Road
Atlanta, GA 30326
To Charter Company: To such address as provided to Shofur
(e) Except as provided in Section 11(c), 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, together with the Trip Notices, is the entire agreement of the parties with respect to the performance of professional services by Charter Company for and on behalf of Shofur. 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) Sections 5, 8, 9, 11, 13 and 14 shall survive the termination of this Agreement.