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 JURY TRIALS OR CLASS ACTIONS.
These T&Cs are a legally binding agreement between you (you or Customer) and UPS Capital Insurance Agency, Inc. (we or UPSCIA) and govern and control your rights with respect to any products or services provided to you by UPSCIA. UPSCIA, a licensed insurance producer, desires to help Customer obtain one or more insurance policies (Policies) 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, 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 UPSCIA is not an insurance company, and that UPSCIA is not responsible or liable for any loss or damage claimed under any Policy.
2. INSURANCE SERVICES: By choosing to use UPSCIA’s insurance services (Insurance Services), you agree to: (i) designate UPSCIA as your broker of record or agent of record (as applicable); (ii) authorize UPSCA to communicate such designation as broker or agent of record to any insurance carrier, your prior insurance producer, and any other person or entity UPSCIA determines should be advised; and (iii) permit UPSCIA to receive any commission or other form of compensation that any insurance carrier or affinity partner agrees to pay to UPSCIA in connection with the provision of Insurance Services.
3. NO SPECIAL RELATIONSHIP: You acknowledge that in providing the Insurance 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 use and benefit or for that of your organization. You may not use the Insurance Services or Policies on behalf of an affiliated or unaffiliated third party or for any other commercial, financial or other similar purpose without the prior written consent of UPSCIA. 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: UPSCIA may modify these T&Cs at any time with or without notice to you. Your continued use of the Insurance Services will be deemed as your acceptance of any such new terms and conditions. The T&Cs are also published electronically on the UPSCIA website at https://www.insureshield.com/us/en/legal/terms-and-conditions-upscia.html. Customer agrees to be bound by the version of these T&Cs in effect when Insurance Services are provided. It is the Customer’s sole responsibility to keep apprised of any changes to the published T&Cs.
6. INDEMNIFICATION: Customer agrees to indemnify, defend, and hold harmless, at Customer’s sole cost and expense, UPSCIA 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 UPSCIA, 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.
7. AGREEMENT TO ARBITRATE CLAIMS: Customer and UPSCIA agree that, except for disputes that qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits of less than $30,000 on their jurisdictions over civil disputes), any controversy or claim, whether at law or equity, arising out of or related to these T&Cs or the provision of Insurance Services by UPSCIA, 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 UPSCIA 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 provides for more limited discovery than in court 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 only award the same damages and relief that a court can award under the law and must honor these T&Cs. Customer and UPSCIA agree that their sole relationship is a contractual one governed by the T&Cs and any applicable Policy or other written agreements with UPSCIA.
(a) Institutional Arbitration: The arbitration shall be conducted by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules or, provided that Customer is an individual consumer and using UPSCIA’s Insurance Services for personal (not business) use, the Consumer Arbitration Rules (collectively referred to herein as the AAA Rules), and judgment on the award may be entered in any court of competent jurisdiction. The AAA Rules, including instructions for how to initiate arbitration, are available at http://www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall decide all issues of the case on the basis of the applicable law, not equity. If Customer initiates arbitration, Customer must serve UPSCIA’s registered agent for service of process, Corporation Service Company, which has locations in every state. Information also can be found on the website of your local Secretary of State.
Any arbitration under these T&Cs will take place on an individual basis; class, mass, consolidated or combined actions or arbitrations or proceeding as a private attorney general are not permitted. Customer and UPSCIA each waive their right to trial by jury. Customer and UPSCIA are further giving up their ability to participate in a class, mass, consolidated or combined action or arbitration.
(b) Place of Arbitration/Number of Arbitrators/Costs of Arbitration/Governing Law/Survival: Any arbitration will take place in the county where Customer resides and will be determined by a single arbitrator. The initial filing fee required of Customer by the AAA 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, UPSCIA 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 rules of the AAA. Reasonable attorney’s fees and expenses will be allocated or awarded only to the extent such allocation or award is available under applicable law.
All issues are for the arbitrator to decide, except that issues relating to the scope, application, and enforceability of the arbitration provision, issues relating to the interpretation or application of the provision guarantying access to state courts of limited jurisdiction for qualifying disputes, and issues relating to interpretation or application of the prohibition on participation in class, mass, consolidated or combined actions or arbitrations or proceedings as a private attorney general, are all issues for a court to decide. The Federal Arbitration Act governs the interpretation and enforcement of this provision. This agreement to arbitrate shall survive termination of the Policies and/or Customer’s and UPSCIA’s agreement to be bound to these T&Cs.
The arbitration demand must plead with particularity facts that demonstrate the dispute does not qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits of less than $30,000 on their jurisdictions over civil disputes). 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 UPS tracking number(s).
(c) Severability: Notwithstanding anything to the contrary in the AAA 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) Desk Arbitration: For all disputes concerning an amount less than fifteen thousand dollars ($15,000.00), the parties shall submit their arguments and evidence to the arbitrator in writing and the arbitrator shall make an award based only on the documents; no hearing will be held unless the arbitrator in his or her discretion, and upon request of a party, decides it is a necessity to require an in-person hearing. For a dispute governed by the AAA Consumer Arbitration Rules where the arbitrator issues an award in favor of Claimant, and concerning an award between fifteen thousand dollars ($15,000.00) and fifty thousand dollars ($50,000.00), inclusive, UPSCIA shall refund Customer’s filing fee under the AAA Rules following conclusion of the arbitration, provided that Customer agrees that both parties shall submit their arguments and evidence to the arbitrator in writing and that the arbitrator shall make an award based only on the documents, without a hearing being held. Notwithstanding this provision, the parties may agree to proceed with desk arbitration at any time.
(e) Access to Small Claims Courts: All parties shall retain the right to seek adjudication in a state court of limited jurisdiction, such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits of less than $30,000 on their jurisdiction over civil disputes, 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 a court of limited jurisdiction, 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.
(f) Acknowledgements: Pursuant to these T&Cs, Customer and UPSCIA acknowledge and agree that each party is hereby:
a. WAIVING THE RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST CUSTOMER, UPSCIA, OR ANY PERSON OR ENTITY IN CONNECTION WITH THESE T&Cs, ANY POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER;
b. WAIVING THE RIGHT TO HAVE A COURT, OTHER THAN A STATE COURT OF LIMITED JURISDICTION AS DEFINED ABOVE, RESOLVE ANY DISPUTE ALLEGED AGAINST CUSTOMER, UPSCIA, OR ANY PERSON OR ENTITY IN CONNECTION WITH THESE T&Cs, ANY POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER;
c. WAIVING THE RIGHT TO HAVE A COURT REVIEW ANY DECISION OR AWARD OF AN ARBITRATOR, WHETHER INTERIM OR FINAL, EXCEPT FOR APPEALS BASED ON THOSE GROUNDS FOR VACATUR EXPRESSLY SET FORTH IN SECTION 10 OF THE FEDERAL ARBITRATION ACT; AND
d. WAIVING THE RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, JOIN AS A CLASS MEMBER, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CUSTOMERS IN ANY CLASS, MASS, CONSOLIDATED OR COMBINED ACTION OR ARBITRATION FILED AGAINST CUSTOMER, UPSCIA, OR ANY PERSON OR ENTITY IN CONNECTION WITH THESE T&Cs, ANY POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER.
(g) 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 the arbitration award apply only to that specific case; the judgment 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 the award unless a brief explanation of the reasons is requested by one of the parties. Unless both Customer and UPSCIA agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, private attorney general or class proceeding.
(h) Confidentiality of Arbitration: Notwithstanding anything to the contrary in the AAA Rules, Customer and UPSCIA 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. This confidentiality provision does not foreclose the AAA from reporting certain consumer arbitration case information as required by state law.
8. 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 UPSCIA 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 UPSCIA); 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 UPSCIA WILL NOT BE 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 UPSCIA 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, UPSCIA 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, UPSCIA 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 the U.S.: If Customer accesses UPSCIA’s Insurance Services from outside the United States, Customer shall be responsible for compliance with all foreign and local laws. UPSCIA does not provide Insurance Services (or other services) to governments, governmental agencies, businesses, individuals, other groups, or any of their agents that are subject to U.S. trade sanctions. By using the Insurance Services, Customer represents and warrants that Customer is not subject to any U.S. trade sanctions.
9. EFFECTIVENESS; GOVERNING LAW: These T&Cs shall become effective when accepted (or deemed to have been accepted) by you and shall be governed by and construed in accordance with the internal laws of the State of Georgia, without regard to conflict of laws principles.
10. JURY TRIAL AND CLASS ACTION WAIVER: CUSTOMER and UPSCIA acknowledge that the right to trial by jury is a constitutional right but may be waived in certain circumstances. To the extent permitted by law, CUSTOMER and UPSCIA knowingly and voluntarily waive any right to trial by jury in the event of litigation arising out of or related to these T&Cs. In addition, CUSTOMER waives its right to join a class of other CUSTOMERs to bring a claim against UPSCIA, or to bring or be a class member in any class action or class arbitration proceeding. This jury trial and class action waiver will not affect or be interpreted as modifying in any fashion the Agreement to Arbitrate set forth ABOVE, which contains its own jury trial and class action waiver. If a court or arbitrator determines that the Agreement to Arbitrate is invalid or unenforceable, the jury trial and class action waiver will continue to apply.
(a) the UPS Capital Group Technology Agreement (the current version of which is available at https://upscapital.com/technology-agreement/), and
(b) the UPS Capital Privacy Notice (the current version of which is available at https://upscapital.com/privacy-notice/).
The T&CS and Additional Terms comprise the complete and exclusive agreement of the parties, including any of UPSCIA’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.
12. 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 UPSCIA at firstname.lastname@example.org.