Terms of Service

These Terms of Service (the “Terms of Service”) constitute a legal agreement between Chamber Convoy, Inc., a Delaware corporation (“GroupUps”), and the party identified by you on the account registration page (“Participant”). GroupUps offers access to certain features of its website (the “Website”) and its proprietary marketplace software as a service offering (collectively with the Website, as updated and modified from time-to-time, the “Services”) to third parties on the terms and conditions set forth herein. GroupUps is willing to make the Services available to Participant only upon the condition that Participant accepts these Terms of Service in their entirety. Please read these Terms of Service carefully before creating an account with GroupUps, as providing GroupUps an email address or providing GroupUps with third-party sign-on credentials (such as “Continue with GoogleTM”) will indicate Participant’s agreement that these Terms of Service are legally binding upon Participant. If Participant does not agree to these Terms of Service, then do not provide an email address or credential and do not create an account. If Participant does not agree to these Terms of Service, GroupUps is unwilling to provide the Services.

IMPORTANT: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT, AS FURTHER SET FORTH IN SECTION 9.3 BELOW, REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT CUSTOMER IS GIVING UP THE RIGHT TO SUE IN COURT OR IN CLASS ACTIONS OF ANY KIND.

1. ACCESS RIGHTS; SUBSCRIPTION SERVICES; OWNERSHIP

1.1 Right to Access.

Subject to these Terms of Service and to any limitations set forth on the Website, GroupUps grants to Participant a nonexclusive, nontransferable, revocable, non-licensable limited right to access and use (the “Access Rights”) the Services through the Website, solely for the internal business purposes of Participant, and solely during the Subscription Term (as defined below in Section 8.1 of these Terms of Service). GroupUps may, in its sole discretion, change or delete any part of the Services, including without limitation the web address through which Participant may access the Services.

1.2 Registration.

In order to gain access to the Services, Participant must create an account with GroupUps by submitting all information requested by GroupUps on the Website. Participant represents that all information Participant provides to GroupUps in such submission and at any other time during or after the account creation process (the “Registration Information” and such process, the “Registration Process”) will be true, accurate, complete, and current and that Participant will promptly update its Registration Information as necessary such that it is, at all times, true, accurate, complete, and current. GroupUps may use all Registration Information, subject to confidentiality limitations set forth in these Terms of Service. If you yourself are not the Participant, you hereby represent and warrant that you have the legal right to open this account on behalf of Participant, and that you have the right and authority to agree to these Terms of Service on behalf of Participant. You represent that you are at least the age of majority in your jurisdiction of residence.

1.3 Documentation; Differentiated Services.

The Website contains textual and/or graphical materials that describe the features, functions, and uses of the Services made available to Participants from time-to-time (the “Documentation”). GroupUps may offer or limit certain features or functionality within the Services, and/or otherwise limit Participant’s Access Rights, on a differentiated basis among (i) various classes of Participant, including those who act as sellers, buyers, influencers, or otherwise and/or among (ii) various subscription plans, levels, or packages (each, a “Subscription Plan”), in each case as described on the Website from time to time.

1.4 Users.

The Services may be accessed and used only by Participant or individual employees and contractors authorized by Participant (each, an “Authorized User”), up to the maximum number of Authorized Users allowed as set forth within the Services. Participant will at all times be responsible for any breach of these Terms of Service by any Authorized User, whether such action was authorized by Participant, and any action taken by an Authorized User in connection with the Services shall be deemed to be an action taken by Participant for purposes of compliance with these Terms of Service. Participant shall not authorize access to or permit use of the Services by persons other than Authorized Users. GroupUps may, at any time and without any liability to Participant, suspend an Authorized User’s access to the Services in the event GroupUps reasonably believes that such Authorized User has violated any provision of these Terms of Service.

1.5 Hosting; Technical Requirements.

During the Subscription Term, GroupUps will host, operate, and maintain the infrastructure necessary to access and use the Services via the Website. Participant acknowledges and agrees that its access and use of the Subscription services is dependent upon access to internet services. Participant is responsible for procuring and operating all computer systems, internet and telecommunications services, and other hardware and software required to access and use the Website. GroupUps will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.

1.6 Proprietary Rights; No Implied Licenses.

The Website, the Services, including without limitation all software code thereto, GroupUps Content (as defined below), Documentation, Analytics (as defined below), and all content and materials that are not Participant Content (as defined below) that appear on the Website and in the Services, and all improvements, modifications, derivative works or innovations made thereto and all Intellectual Property Rights therein (collectively, “Materials of GroupUps”), are, as between the parties, the exclusive property of GroupUps, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by Participant. Except for the Access Rights expressly granted herein, all rights in and to all of the foregoing are reserved by GroupUps. These Terms of Service do not convey to Participant any rights of ownership or other Intellectual Property Right in, to, or under any Materials of GroupUps. No right is granted to distribute, publish, modify, adapt, translate or create derivative works of Materials of GroupUps. Participant shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices, or confidentiality notices that are contained within Materials of GroupUps. Nothing in these Terms of Service will be deemed to grant to Participant any right to receive a copy of any software underlying the Website or Services, in either object or source code form. GroupUps shall own all Intellectual Property Rights related to any feedback, comments, or suggestions Participant or its Authorized Users provide to GroupUps with respect to the Materials of GroupUps, and Participant hereby assigns all such Intellectual Property Rights to GroupUps. As used herein “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including: (a) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (b) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods; (c) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (d) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law. Participant agrees that if Participant or any Authorized User infringes GroupUps’s Intellectual Property Rights or exceeds the scope of permitted use under these Terms of Service, GroupUps will be irreparably injured and may terminate these Terms of Service.

1.7 Analytics.

As used herein, “Analytics” means information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by or from the Services, or regarding Participant’s or its Authorized Users’ use of the Services. GroupUps may create, collect, use and disclose Analytics for industry analysis, benchmarking, analytics, marketing, and other business purposes in support of the provision and improvement of the Services. We improve our products by using Microsoft Clarity to see how you use our website. By using our site, you agree that we and Microsoft can collect and use this data. Analytics will be in aggregate or anonymous form only and will not contain Participant Content. Our privacy policy has more details.

1.8 Privacy.

GroupUps’s collection and use of Participant’s personal information, and of any data or Analytics relating to Participant’s use of the Website or Services, is governed by GroupUps Privacy Policy, as it may be updated from time-to-time in GroupUps’s sole discretion. A current copy of GroupUps Privacy Policy can be accessed on the Website.

2. CUSTOMER RESPONSIBILITIES

2.1 Access Credentials.

Participant will safeguard, and ensure that all Authorized Users safeguard, the devices, computers, and networks used to access the Services and safeguard all login information, passwords, security protocols and policies through which Authorized Users access and use the Services (“Access Credentials”). Participant agrees to: (a) keep its Authorized Users’ Access Credentials secure and confidential; and (b) no more than one individual person will have access to or will use each Authorized User’s Access Credentials. Sharing Access Credentials (including frequent reassignment so as to enable the sharing) is expressly prohibited. Participant will notify GroupUps by immediately sending notice to AccessCredentialsIssues@theconvoy.co if Participant learns of or suspects any unauthorized use of any Access Credentials, known or suspected breach of security, or any other actions undertaken by its Authorized Users that may result in an adverse impact on GroupUps or Participant’s computing environment. GroupUps reserves the right, in its sole discretion and without liability to Participant or its Authorized Users, to take any action GroupUps deems necessary or reasonable to ensure the security of the Services and Participant’s Access Credentials and account, including terminating Participant’s access or the access of any of Participant’s Authorized Users, changing passwords, or requesting additional information to authorize activities related to Participant’s account.

2.2 Representations.

Participant represents and warrants that: (a) it has full power and authority to agree to these Terms of Service and to perform the requirements and obligations as set forth herein; (b) the person agreeing to these Terms of Service on Participant’s behalf has been duly authorized and empowered; and (c) that it will perform its obligations and exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security. Participant represents that all information Participant provides to GroupUps through the Website as part of its account registration, and at any other time during or after account registration, will be true, accurate, complete, and current and that Participant will promptly update all such information as necessary such that it is, at all times, true, accurate, complete, and current.

2.3 General Restrictions on Use.

Participant shall comply with all applicable laws in its use of the Services and agrees not to act outside the scope of the rights that are expressly granted by these Terms of Service. Participant will not, and shall ensure that its Authorized Users will not, (a) make the Services available to anyone other than its Authorized Users; (b) commercially exploit, sell, resell, license, sublicense, rent, lease, or distribute the Services or include any Services or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify, or make derivative works based upon the Services; (d) create internet “links” to the Services or “frame” or “mirror” any reports contained in, or accessible from, the Services on any other website, server, wireless or Internet-based device; (e) access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; (f) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component underlying the Services are compiled or interpreted; (g) interfere with or disrupt the integrity or performance of the Services, the Website, or the data contained therein or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or (h) utilize the Services in order to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material, including material harmful to children or violative of third-party privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs or plant malware on GroupUps’s computer systems, those systems of GroupUps’s third-party service providers or vendors, or otherwise use the Services to attempt to upload and/or distribute malware. Nothing in these Terms of Service shall be construed to grant Participant any right to obtain or use such source code. Compliance with the restrictions set forth in this Section 2.3 is an essential basis of these Terms of Service, and Participant agrees to reimburse GroupUps for attorneys’ fees and court costs incurred in connection with any lawsuit brought by GroupUps in which a court or arbitrator finds that Participant or its Authorized Users have breached any provisions of this Section 2.3.

3. CONTENT

3.1 Platform Content.

GroupUps may provide certain information, data, and other content on or through the Website or Services (“GroupUps Content”). The Services may from time to time include, feature, or link-to information, data, and other content or websites from third parties (collectively, the “Third Party Content” and together with GroupUps Content, the “Platform Content”). The Platform Content is not intended to make any product recommendation, including with respect to quality, price, or usability. Convoy does not approve or endorse, is not responsible or liable for, and makes no representations as to any Third Party Content or third parties, products, or services included within GroupUps Content. The inclusion of any such link or such content does not and shall not be interpreted to imply any association, sponsorship, endorsement, or affiliation with any third party, unless expressly stated within the Services. GroupUps shall have no liability whatsoever in connection with any Third Party Content. Use of any third party website shall be governed by terms of use or other applicable legal conditions such website. GroupUps is not an agent, distributor, re-seller, or broker or otherwise responsible for the activities or policies of any third party websites or their products, services, or operators, including those included in or referenced by any Platform Content. Product details, pricing, and information included within the Platform Content are subject to final confirmation by the applicable third party provider. User acknowledges and agrees that the arrangement, order, priority, and availability of any and all Platform Content may be influenced by the payment of advertising or promotional fees from third parties to GroupUps.

3.2 Platform Content Disclaimer.

ALL PLATFORM CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE," AND GROUPUPS MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PLATFORM CONTENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ITS COMPLETENESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

3.3 Participant Content.

Any content that is uploaded, posted, transmitted, or made available by Participant or any Authorized User to or through the Services is “Participant Content”. Participant hereby grants to GroupUps a non-exclusive, royalty-free license, to access, use, copy, distribute, and publicly display the Participant Content as set forth and described in the Documentation and as otherwise necessary or useful in connection with its provision of the Services to Participant and other Platform Participants. PARTICIPANT SHOULD NOT EXPECT ANY PRIVACY OR CONFIDENTIALITY WITH RESPECT TO ANY PARTICIPANT CONTENT.

3.4 Participant Responsibility for Participant Content.

Participant is solely responsible for the Participant Content, including with respect to its accuracy and quality. Participant represents, warrants, and covenants that, during the Subscription Term, it has, and will have, the legal right and authority to provide GroupUps with access to, use of, and license to the Participant Content and such access, use and license will not a cause a breach of any third-party agreement, violate any right of a third party, or any applicable law. Without limiting the generality of the foregoing, Participant represents, warrants and covenants that at all times during the Subscription Term, it will have obtained all consents reasonably necessary for GroupUps to access and use the Participant Content and that the Participant Content:

a) is provided to GroupUps in accordance with all applicable laws, does not otherwise violate any applicable law, and could not give rise to any civil liability;

b) will not and does not infringe any Intellectual Property Rights;

c) will not and does not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;

d) will not include sensitive information of any kind, which includes but is not limited to information regarding a minor, sensitive financial information, sensitive medical or health information, race or ethnicity, religious beliefs, sexual orientation, or precise geographic location;

e) will not and does not include any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household other than an Authorized User;

f) is and will be truthful or factual as applicable;

g) will not and does not misrepresent the source of the Participant Content;

h) will not and does not misrepresent Participant’s or any Authorized User’s identity in any way;

i) will not and does not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

j) will not and does not advocate or encourage any illegal activity; and

k) will not violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability.

3.5 Monitoring.

GroupUps has no obligation to monitor any Participant Content. GroupUps does, however, reserve the right to monitor Participant Content and further reserves the rights to remove or refuse to post any Participant Content; to disclose Participant’s name, contact information, and other information to any third party who claims that material posted by Participant violates any rights of a third party; and to terminate or suspend Participant’s or any Authorized User’s access to all or part of the Services.

3.6 Infringement Reporting and Digital Millennium Copyright Act (DMCA) Procedures.

Any Participant or third party that owns copyright, trademark, patent, or other intellectual property rights (“IP Rights” and such owner, an “IP Rights Owner”), or if you are an agent authorized to act on the IP Rights Owner's behalf, and you have a good faith belief that any Platform Content, Participant Content, or other content on the Website infringes IP Rights Owner's IP Rights, and you would like to bring it to GroupUps's attention, you can report your concern(s) by sending notice to: dmca@philnicolosilaw.com, with subject line “Notice of Infringement”. GroupUps reserves the right to terminate any Participant’s Access Rights or other rights to use the Website if such use infringes the IP Rights of another or if GroupUps determines that such party is a repeat infringer. If any Participant or third party believes that any material on the Website or within the Services constitutes copyright infringement, and such party would like to bring it to GroupUps's attention, such party must provide GroupUps's DMCA Agent identified below with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Site of the allegedly infringing work; (c) a written statement that such party has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) the submitting party’s name and contact information, including, without limitation, telephone number and email address; and (e) a statement by the submitting party that the above information in the notice is accurate and, under penalty of perjury, that the submitting party is the copyright owner or authorized to act on the copyright owner's behalf. The contact information for GroupUps's DMCA Agent for notice of claims of copyright infringement is:

Philip A. Nicolosi

Phil Nicolosi Law, P.C.

7210 E. State Street, Suite 208

Rockford, IL 61108

dmca@philnicolosilaw.com

4. FEES AND PAYMENT

4.1 Fees.

Participant will pay to GroupUps any and all fees for the Access Rights, the applicable Subscription Plan, and for any other services as set forth on the Website (the “Fees”). All Fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all Taxes (as defined below). Participant represents and warrants that it has the right to use any payment card or other means of payment that provided to GroupUps for payment of the Fees. By providing payment card information, Participant authorizes GroupUps and its third-party service providers to use and store the card as a payment method for all purchases made through the Website. Participant’s purchase, including the entry of billing information and payment card details, may be subject to additional terms of service of our third-party service providers. Participant agrees to provide current, complete and accurate purchase and billing information for all purchases. Participant agrees to promptly update billing information, including email address and payment card numbers and expiration dates. Providing any untruthful or inaccurate information is a breach of these Terms of Service and may result in cancellation of the Access Rights. Prior to accepting any payment, we may also request additional information from Participant. Verification of information may be required prior to the acknowledgment or completion of any purchase.

4.2 Taxes.

Unless otherwise stated, the Fees do not include any applicable sales, use, value add or similar taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Participant is responsible, and GroupUps shall have no liability, for all Taxes applicable to Participant’s purchases hereunder. Notwithstanding, GroupUps may, in its sole reasonable determination, conclude it is legally required to collect and remit such Taxes to a taxing jurisdiction on behalf of Participant. In such an event, even if GroupUps has already charged or invoiced Participant for the applicable Services, GroupUps may charge or invoice Participant for such Taxes, and Participant shall pay GroupUps the amount of Taxes, unless Participant provides GroupUps with a valid tax exemption certificate authorized by the appropriate taxing authority. GroupUps will utilize the billing address provided by Participant to determine the appropriate taxing jurisdiction. Participant will make all payments to GroupUps free and clear of, and without reduction for, any Taxes.

5. DISCLAIMER; INDEMNIFICATION

5.1 Disclaimer of Warranties.

GROUPUPS MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SERVICES, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. GROUPUPS DOES NOT WARRANT THAT DEFECTS WILL BE CORRECTED OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GroupUps shall not be responsible for ensuring and does not represent or warrant that: (a) the Services will meet Participant's business requirements; (b) the Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (c) all deficiencies in the Services can be found or corrected. GroupUps will not be responsible for loss or corruption of data, in each case caused by acts within the control of Participant or any Authorized User.

6. INDEMNIFICATION

6.1 Participant shall defend or settle any claim, suit or proceeding that is brought by a third party (each, a “Claim”) against GroupUps or its affiliates, employees, officers, and directors arising from: (a) an allegation that the Participant Content infringes the Intellectual Property Rights of, or have otherwise damaged, a third party; (b) a breach by Participant of these Terms of Service; or (c) based on any failure or alleged failure of Participant to comply with any applicable law, rule, or regulation in connection with its use of the Services.

7. LIMITATION OF LIABILITY

7.1 Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GROUPUPS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, OR PROVIDING THE SERVICES, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO GROUPUPS DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

7.2 Exclusion of Consequential and Related Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GROUPUPS HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

8. TERM; SUSPENSION; TERMINATION

8.1 Subscription Term.

These Terms of Service become effective upon the date on which Participant accepts these Terms of Service (the “Effective Date”) and shall remain in effect until the Termination Date (as defined below) (the “Subscription Term”).

8.2 Termination.

Participant’s access rights to the Services will expire and terminate upon the earliest of the following (the “Termination Date”): (a) such date as set forth on the Website during the Registration Process; (b) such date as GroupUps provides notice to Participant of such termination, for any or no reason, including without limitation its cessation of providing the Services on a commercial basis; or (c) such date as Participant provides notice to GroupUps of such termination, for any or no reason, including through GroupUps website or by failing to timely pay the Fees.

8.3 Effect of Termination; Survival.

Participant’s right to access and use the Services shall terminate immediately upon the expiration or termination of the Subscription Term, and GroupUps may destroy any Participant Content in its possession or control at any time thereafter. Any provisions of these Terms of Service that by their nature should continue after the Subscription Term, will continue to apply even after the Termination Date, including without limitation, Sections 1.6 (Proprietary Rights; No Implied Licenses), 3.2 (Platform Content Disclaimer), 5.2 (Disclaimer of Warranties), 6 (Indemnification), 7 (Limitation of Liability), 8 (Term; Suspension; Termination), and 9 (General).

9. GENERAL

9.1 Marketing.

GroupUps may issue a press release after the Effective Date regarding Participant’s use of the Services, and GroupUps may publicly refer to Participant as a customer of GroupUps, including on the Website or any other GroupUps website and in sales presentations, and may use Participant’s logo, trademarks, trade names, and similar identifying material for such purposes.

9.2 Governing Law.

The Terms of Service shall be governed and construed in accordance with the laws of the United States and the State of North Carolina, without giving effect to conflicts-of-law principles thereof. With respect to any disputes or claims not subject to arbitration, Participant agrees to submit to the personal jurisdiction of the state and federal courts located in Raleigh, North Carolina with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.

9.3 Arbitration and CLASS ACTION WAIVER.

Participant and GroupUps agree that any dispute, claim, or controversy that relates to or arises from these Terms of Service or the Services other than any claim or demand that relates to the Intellectual Property Rights of GroupUps or arising under Section 6 will be determined by mandatory binding individual (not class) arbitration. Participant and GroupUps further agree that the arbitrator shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of any provision of these Terms of Service or to the arbitrability of any claim or counterclaim. Notwithstanding the above, Participant and GroupUps both agree that neither of us waive or limit our rights to (a) bring an individual action in a U.S. small claims court or (b) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES, CLAIMS, AND CONTROVERSIES THAT RELATE TO THESE TERMS OR OUR SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND CUSTOMER AGREES THAT GROUPUPS AND CUSTOMER ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. CUSTOMER AGREES THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND CUSTOMER HEREBY AGREE THAT YOU MAY NOT AND WILL NOT PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION, AS A PLAINTIFF OR CLASS MEMBER IN ANY SUCH ACTION. Unless both Participant and GroupUps agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Either Participant or GroupUps may start arbitration proceedings. Any arbitration between Participant and GroupUps will take place under the Consumer Arbitration Rules of the American Arbitration Association ("AAA") then in force (the "AAA Rules"), as modified by these Terms. Participant and GroupUps agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in Raleigh, North Carolina. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for Participant, by email ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, Participant or GroupUps may commence an arbitration proceeding. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator's decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

9.4 Severability.

If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

9.5 Waiver; Remedies.

Any waiver or failure to enforce these Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

9.6 Notices.

All notices by GroupUps to Participant under these Terms of Service shall be made by email to the email address provided by Participant during account registration when accepting these Terms of Service. All notices to GroupUps by Participant under these Terms of Service shall be made by email to termsofservice@theconvoy.co. All notices shall be effective upon receipt by the party to which notice is given. Participant may change their address for receipt of notice by updating their account contact information on the Website.

9.7 Entire Agreement.

To the maximum extent permitted by applicable law, these Terms of Service and the information submitted by Participant during the Registration Process constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms of Service. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to Participant’s acceptance of these Terms of Service. Participant acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private comments made by GroupUps with respect to future functionality or features for the Services. No terms or conditions stated in any other Participant order documentation, including for the avoidance of doubt any terms or documentation GroupUps is required to execute or agree to, shall be incorporated into or form any part of these Terms of Service, and all such terms or conditions shall be null and void.

9.8 Amendment.

GroupUps may, in its sole discretion, amend or modify these Terms of Service from time-to-time and continued use of the Services shall be evidence of Participant’s consent to any such amended or modified Terms of Service.

9.9 Subcontractors.

GroupUps may engage subcontractors to act on GroupUps’s behalf in connection with its provision of Services, including processing Participant Content, provided that: (a) such subcontractors are subject to applicable confidentiality and data security obligations that are substantially as protective as those set forth in these Terms of Service; and (b) GroupUps is responsible for such subcontractors’ acts and omissions in relation to its obligations under these Terms of Service.

9.10 No Assignment.

Participant may not assign, delegate, or otherwise transfer these Terms of Service, or such party’s rights and obligations herein or therein, without obtaining the prior written consent of GroupUps, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service will be binding upon the parties and their respective successors and permitted assigns.

9.11 Force Majeure.

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms of Service if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

9.12 Independent Contractors.

GroupUps's relationship to Participant is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

9.13 Construction.

The titles of the sections of these Terms of Service are for convenience of reference only and are not to be considered in construing these Terms of Service. Unless the context of these Terms of Service clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) "or" has the inclusive meaning frequently identified with the phrase "and/or;" (c) "including" has the inclusive meaning frequently identified with the phrase "including but not limited to" or "including without limitation;" and (d) references to "hereunder," "herein" or "hereof" relate to these Terms of Service as a whole. Any reference in these Terms of Service to any statute, rule, regulation or agreement, including these Terms of Service, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time-to-time. The parties agree that these Terms of Service shall be fairly interpreted in accordance with their terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.