THESE TERMS AND CONDITIONS (T&Cs) OF SERVICE CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THESE T&Cs CAREFULLY. THESE T&Cs FURTHER REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN LITIGATION, TO THE EXTENT PERMITTED BY LAW (SEE THE SECTION ENTITLED “AGREEMENT TO ARBITRATION CLAIMS" BELOW).
These T&Cs are a legally binding agreement between you (you or Customer) and UPS Capital Canada Insurance Brokers, Limited (we or UPSCCIBL) and govern and control your rights with respect to any products or services provided to you by UPSCCIBL. UPSCCIBL, a licensed insurance broker, desires to help Customer obtain one or more insurance policies (each, a Policy, and together, the Policies) [issued by AIG Insurance Company of Canada (the Insurance Company)] to enable Customer to insure its shipments of goods. In furtherance thereof, you agree as follows:
1. POLICIES: You acknowledge and agree that the terms of each Policy will govern all matters related to such Policy, including your rights against the Insurance Company, if any, how the Policy may be terminated or modified and who may have any rights or interests thereunder. The availability of coverage under each Policy depends on the policy language, the facts of the claim and the law of the jurisdiction governing the interpretation of the Policy. In no event shall these T&Cs be deemed to modify any Policy. You further acknowledge and agree that UPSCCIBL is not an insurance company, and that UPSCCIBL is not responsible or liable for any loss or damage claimed under any Policy.
2. INSURANCE SERVICES: By choosing to use UPSCCIBL’s insurance services (Insurance Services), you agree to permit UPSCCIBL to receive any commission or other form of compensation that the Insurance Company or affinity partner agrees to pay to UPSCCIBL in connection with the provision of Insurance Services.
3. NO SPECIAL RELATIONSHIP: You acknowledge that in providing services to you, we may act as an insurance broker for purposes of facilitating the placement of the Policies. In connection with that relationship, you warrant that you have comprehensively reviewed and read these T&Cs, the Policies, and any other documents we may provide you. You further warrant that you will immediately contact us in writing in the event of any provisions thereof that you do not understand. Absent such inquiries, to the fullest extent permitted by law, you agree that we have no duty to interpret or explain insurance coverage applications, restrictions and/or limitations to you.
4. RESTRICTIONS ON USE; NO INDIRECT POLICY PARTICIPANTS: You agree to use the Insurance Services and Policies solely for your own personal use and benefit or for that of your organization. You may not use the Insurance Services or Policies for any commercial, financial or other similar purpose without the prior written consent of UPSCCIBL. Further, nothing herein constitutes authorization for you to offer participation or coverage under any Policy to any other person or entity. You will notify us in writing promptly if you become aware that anyone has offered (or intends to offer) participation or coverage under any Policy to any other person or entity. Any such purported participation or coverage in violation of this provision shall be null and void.
5. UPDATES TO THE T&Cs: UPSCCIBL may modify these T&Cs at any time with or without notice to you. Your continued use of UPSCCIBL products or services will be deemed as your acceptance of any such new terms and conditions. The T&Cs are published electronically on the UPSCCIBL website at https://www.insureshield.com/ca/en/legal/terms-of-service.html. Customer agrees to be bound by the version of these T&Cs in effect when services are provided. It is the Customer’s sole responsibility to keep apprised of any changes to the published T&Cs.
6. ELECTRONIC RECORDS: By purchasing an insurance product or service from UPSCCIBL, you agree to accept all records and documents, including any Policy, provided to you in electronic form. This consent, unless withdrawn, applies to all transactions between you and UPSCCIBL.
7. INDEMNIFICATION: Customer agrees to indemnify, defend, and hold harmless, at Customer’s sole cost and expense, UPSCCIBL and its affiliated companies, their officers, directors, employees, agents, and their successors and assigns, from and against any and all any losses, damages, demands, claims, liabilities, costs (including legal costs) and expenses of any kind, suffered or incurred by UPSCCIBL, arising from or relating to any breach or violation of these T&Cs or the Additional Terms (as defined herein) or Policy, or any violation of applicable law, rule or regulation or any rights of another, by Customer or its affiliates, or their officers, directors, employees or agents.
8. AGREEMENT TO ARBITRATE CLAIMS: (Not applicable to Quebec consumers) Customer and UPSCCIBL agree that, to the extent permitted by law, except for disputes that are within the jurisdiction of the applicable small claims court, any controversy or claim, whether at law or equity, arising out of or related to these T&Cs or the provision of services by UPSCCIBL, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration. Customer and UPSCCIBL expressly agree that the foregoing obligation to arbitrate disputes regardless of the date of accrual of such disputes includes, but is not limited to, preexisting disputes and disputes that arise from or relate to shipments made at the time of a previous version of these T&Cs.
Arbitration is the submission of a dispute to a neutral arbitrator, instead of a judge or jury, for a final and binding decision, known as an “award.” Arbitration generally provides for more limited discovery than court proceedings and is subject to limited review by courts. Each party has an opportunity to present evidence to the arbitrator in writing or through witnesses. An arbitrator can generally award the same damages and relief that a court can award under the law and must honor these T&Cs. Customer and UPSCCIBL agree that their sole relationship is a contractual one governed by the T&Cs and any applicable Policy or other written agreements with UPSCCIBL.
(a) Arbitration: The arbitration shall be commenced by one party delivering to the other party a notice to arbitrate which shall set out a brief description of the dispute, disagreement or difference to be arbitrated and a summary of the relief claimed. The arbitration shall be conducted under the arbitration laws of Ontario, and specifically the Arbitration Act, 1991 (Ontario). The arbitration shall be conducted in English in Toronto, Ontario, Canada at ADR Chambers pursuant to the general ADR Chambers Arbitration Rules located at www.adrchambers.com. The arbitration shall be conducted by a single arbitrator who shall be agreed upon by all Parties to the arbitration. In the event the Parties cannot agree on an arbitrator, the arbitrator shall be appointed by the ADR Institute of Canada. Any award of the arbitrator shall be final and binding on each of the parties and shall not be subject to appeal, and may be entered as a judgment in any court of competent jurisdiction. This agreement shall be governed by the substantive law of Ontario.
(b) Costs of Arbitration/Governing Law/Survival: The initial filing fee required of Customer by the ADR Chambers Arbitration Rules shall be paid by Customer to the extent such fee does not exceed the amount of the fee required to commence a similar action in a court that otherwise would have jurisdiction. For all non-frivolous complaints, UPSCCIBL will pay the amount of such fee in excess of that amount. The arbitrator will allocate the administrative costs and arbitral fees consistent with the applicable ADR Chambers Arbitration Rules. Reasonable legal fees and expenses will be allocated or awarded only to the extent such allocation or award is available under applicable law. You agree that the laws of the province of Ontario and the federal laws of Canada applying therein, without regard to principles of conflict of laws, will govern these T&Cs and any dispute of any sort that might arise between you and UPSCCIBL. This agreement to arbitrate shall survive termination of the Policies and/or Customer’s and UPSCCIBL’s agreement to be bound to these T&Cs. Where the dispute relates to a shipment, in order to commence arbitration, the arbitration demand must provide particularized information that identifies the shipment or shipments, such as by the date(s) of shipment and carrier’s tracking information.
(c) Severability: Notwithstanding anything to the contrary in the ADR Chambers Arbitration Rules, if any part of this arbitration provision is deemed invalid or ineffective for any reason, this shall not affect the validity or enforceability of the remainder of this arbitration provision, and the arbitrator shall have the authority to amend any provisions deemed invalid or ineffective to make the same valid and enforceable.
(d) Access to Small Claims Courts: Notwithstanding this arbitration agreement, all parties shall retain the right to seek adjudication in a small claims court, for individual disputes within the scope of such court’s jurisdiction. If the claims asserted in any request or demand for arbitration could have been brought in such small claims court, then either party may elect to require that the claims be heard in such court of limited jurisdiction, rather than in arbitration, by notifying the other party of that election in writing.
(e) Acknowledgements: Pursuant to these T&Cs, Customer and UPSCCIBL acknowledge and agree that, to the extent permitted by law, each party is hereby:
a. WAIVING THE RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS COURT, RESOLVE ANY DISPUTE ALLEGED AGAINST CUSTOMER, UPSCCIBL, OR ANY PERSON OR ENTITY IN CONNECTION WITH THESE T&Cs, ANY POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER; AND
b. WAIVING THE RIGHT TO HAVE A COURT REVIEW ANY DECISION OR AWARD OF AN ARBITRATOR, WHETHER INTERIM OR FINAL.
(f) Award: The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Similarly, an arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless a brief explanation of the reasons is requested by one of the parties. Unless both Customer and UPSCCIBL agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
(g) Confidentiality of Arbitration: Notwithstanding anything to the contrary in the ADR Chambers Arbitration Rules, Customer and UPSCCIBL agree that the filing of arbitration, the arbitration proceeding, any documents exchanged or produced during the arbitration proceeding, any briefs or other documents prepared for the arbitration, and the arbitral award shall all be kept fully confidential and shall not be disclosed to any other person or entity, except to the extent necessary to enforce this arbitration provision, any arbitral award or other rights of the parties, or as required by law or court order.
9. LIMITATION OF LIABILITY, DISCLAIMER OF Damages, and DISCLAIMER OF Warranties:
(a) Limitation of Liability for Direct Damages; Disclaimer of Indirect Damages: Customer agrees that the cumulative aggregate liability of UPSCCIBL and its affiliates for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (Loss) and regardless of the form of action or legal theory (including negligence) shall be limited to: (i) if the Loss relates to a shipment, the total insured value amount declared during the shipment booking process for the shipment at issue in the Loss or, if there is no such declared value, the fair market value of such shipment (as reasonably determined by UPSCCIBL); or (ii) if the Loss does not relate to a shipment, one hundred dollars ($100.00), in each case less any amount(s) recovered or recoverable from any other source, including, but not limited to, any insurance proceeds that reduce the amount of the Loss under the applicable Policy or any other policy of insurance. NOTWITHSTANDING THE FOREGOING LIMITATION, EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, CUSTOMER AGREES THAT UPSCCIBL WILL NOT LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY (INCLUDING NEGLIGENCE OR RECKLESSNESS), AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER UPSCCIBL OR ANY PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Disclaimer of Warranties: EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE T&Cs AND THE APPLICABLE POLICY, UPSCCIBL MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE T&Cs AND THE APPLICABLE POLICY, UPSCCIBL EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ANY AND ALL WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THESE T&Cs AND THE APPLICABLE POLICY, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
(c) Access from Outside Canada: If Customer accesses UPSCCIBL’s Services from outside Canada, Customer shall be responsible for compliance with all foreign and local laws. UPSCCIBL does not provide Services (or other services) to governments, governmental agencies, businesses, individuals, other groups, or any of their agents that are subject to Canadian or other applicable economic or trade sanctions. By using the Services, Customer represents and warrants that Customer is not subject to any Canadian or other applicable economic or trade sanctions.
10. INCORPORATION OF ADDITIONAL TERMS; FUTURE CHANGES: Customer agrees to accept and be bound by the additional agreements, terms of use, notices and disclosures available at https://www.insureshield.com/ca/en/home.html (collectively, the “Additional Terms”). By using or continuing to use UPSCCIBL’s digital portal, Customer acknowledges that Customer has read and understands these Additional Terms and agrees to be bound by them, including, without limitation:
(a) the UPS Capital Group Technology Agreement (the current version of which is available at https://www.insureshield.com/ca/en/legal/technology-agreement.html), and
(b) the UPS Capital Privacy Notice (the current version of which is available at https://www.insureshield.com/ca/en/legal/privacy-notice.html).
The T&CS and Additional Terms comprise the complete and exclusive agreement of the parties, including any of UPSCCIBL’s affiliates, except as modified by any existing or future written agreement between the parties, and may not be contradicted, modified or supplemented by any oral agreement or by any implied-by-law covenant.
11. CONTACT US: If you have questions or want more information about the Policies, insurance coverage, pricing, the claims process and documents or any issues discussed in these T&Cs, email UPSCCIBL at insureshieldca@ups.com.