TERMS AND CONDITIONS OF SERVICE AND EXPLANATION OF COVERAGE
Last Updated as of May 31, 2022
Please read these Terms and Conditions of Service and Explanation of Coverage (these “T&Cs”) carefully. By using the “Services” of “Broker”, the Shopify account holder on whose behalf these T&Cs have been accepted (such account holder, whether a natural person, corporation, limited liability company or other legal entity, being referred to herein as “You” or “you”) acknowledges that You have read and understand these T&Cs and agree to be bound by them. If You do not accept or understand all of these T&Cs, do not use the Services, or permit any of your customers (“Customers”) to use the Services, until such time as You accept and understand all of these T&Cs. Adherence to these T&Cs is a condition precedent for shipments to be protected under any insurance policy issued to You through Broker.
- 1. REVIEW AND ACCEPTANCE: You should fully review and understand these T&Cs before you request insurance coverage (or permit any Customers to request insurance coverage) for any shipment of goods. In particular, you should ensure that your shipments are eligible for coverage and that you understand the terms of protection offered under the Policy or Policies (defined below). Your acceptance of these T&Cs is a condition precedent for goods to be insured under a Policy, whether at your request or at the request of a Customer. In addition, you should fully review and understand each of the following before you request (or permit a Customer to request) insurance coverage for any shipment of goods: the UPS Capital Group Technology Agreement (the current version of which is available at https://upscapital.com/technology-agreement/), and the UPS Capital Privacy Notice (the current version of which is available at https://upscapital.com/privacy-notice/) (together with these T&Cs, collectively, the “Acceptance Documents”). We may update or otherwise modify these T&Cs and the other Acceptance Documents from time to time in our discretion (without notice to you). Each time that you (a) insure a shipment of goods (whether in the form of a specific election to insure specific goods or a general election to insure all or a designated portion of the goods) or (b) purchase or book a shipment for goods that are sold on the condition of being insured (or that purport to be sold on an insured basis, including at the election of a Customer), you will be deemed to have accepted and agreed to the versions of the Acceptance Documents in effect at the time the insurance was requested or deemed to be requested (or, if the request or deemed request relates to a general election to insure future shipments of goods, the versions of such Acceptance Documents in effect at the time of booking of the applicable shipment of goods). For the avoidance of doubt, if the settings or preferences for your account include a general election for purchased goods to be insured, then you will be deemed to have elected to insure goods until such time as you change that election.
- 2. DEFINITIONS: As used in these T&Cs:
a) “Broker” means UPS Capital Corporation and its subsidiary companies, including, but not limited to, UPS Capital Insurance Agency, Inc. (“UPSCIA”) and Parcel Pro, Inc.
b) “Policy” means one or more cargo insurance policies issued to You through UPSCIA.
c) “Services” means any and all services offered and/or performed by Broker, including but not limited to any and all commercial insurance and risk management related services such as quotation of insurance coverage, placement and/or binding and/or renewal of insurance coverage.
- 3. BROKER’S SERVICES: If You choose to use the Services or to allow your Customers to use the Services, You agree to: (i) designate Broker as Your broker of record or agent of record; (ii) Broker to communicate such designation as broker or agent of record to any insurance company, Your prior insurance producer, and any other person or entity Broker determines should be advised; (iii) work exclusively with Broker for such Services unless we have otherwise expressly agreed; and (iv) permit Broker to receive any commission or other form of compensation that any insurance carrier agrees to pay to Broker in connection with the provision of Services.
- 4. STRUCTURE OF COVERAGE: In order to use the Services or permit your Customers to use the Services, You must be a business or other approved organization. No personal shipments or shipments with contents unrelated to Your business or organizational purpose will be protected under any insurance policy regardless of commodity type. Insurance coverage arranged by Broker may be underwritten by various insurance companies (the “Insurance Underwriter”) and is subject to the terms and conditions contained within the specific insurance Policy. The information contained in these T&Cs is not intended to constitute a recommendation, advice, or complete description of any products, Services or program. The availability of coverage under Your specific insurance Policy depends on the policy language, the facts of the claim and the law of the jurisdiction governing the interpretation of the Policy. You must not rely on the information included in these T&Cs as an alternative to legal advice from an attorney nor should You delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action based on this content.
- 5. YOUR WARRANTIES AND AGREEMENTS: By using the Services of Broker, You represent, warrant, covenant and agree that:
(a) The person accepting these T&Cs is at least 18 years of age and is eligible to enter into binding contracts including contracts for insurance;
(b) in the event You are requesting and/or receiving Services from Broker on behalf of a company, the person accepting these T&Cs is authorized to bind such company into contracts including contracts for insurance;
(c) all information and/or documentation provided about You and Your officers or other representatives is accurate and comprehensive;
(d) You will notify Broker of any changes in the information and/or documentation provided about You and Your officers and other representatives or other material changes that could impact Your use of the Services;
(e) any information and/or documentation provided to Broker via electronic mail, website or other electronic medium shall be deemed to be “in writing” and to have been “signed” and delivered for all purposes by You and that You will not contest the legally binding nature, validity or enforceability of any information and/or documentation provided to Broker via electronic medium;
(f) You and/or Your officers and other representatives are compliant and for the duration of Your use of the Services will be compliant with applicable national, state and local laws and regulations, including but not limited to those concerning the transmission of information;
(g) You and/or Your officers and other representatives shall not use the Services for any false, fraudulent or illegal purpose;
(h) You and/or Your officers and other representatives shall use the Services strictly for the benefit of You and/or Your Customers shall not resell the Services other than by offering the Services to Customers through Shopify web platforms in accordance with these T&Cs and the other Acceptance Documents;
(i) You and your officers or other representatives will not transmit, reproduce, publish or distribute the marks, images, text or other content within the materials provided to You by Broker in the course of the Services except as may be expressly permitted by Broker in writing, whether such content is registered or unregistered;
(j) You and Your officers or other representatives will promptly and comprehensively read the terms of any quotation(s), placement(s), binding(s), renewal(s) and/or coverage(s) of insurance being provided to You by Broker and bring to Broker’s attention any discrepancies and/or questions that may arise;
(k) in the event that You and/or Your officers or other representatives do not understand the terms of any quotation(s), placement(s), binding(s), renewal(s) and/or coverage(s) of insurance being provided to You by Broker, it is Your duty and obligation to immediately contact Broker who will either respond to Your question directly or facilitate a response by the insurance underwriter as appropriate; and unless You promptly indicate to the contrary or raise a question, You: (i) fully understand the terms of any quotation(s), placement(s), binding(s), renewal(s) and/or coverage(s) of insurance being provided to You and/or Your Customers by Broker, and You require no further explanation or information; (ii) acknowledge the quotation(s), placement(s), binding(s), renewal(s) and/or coverage(s) of insurance being provided to You and/or Your Customers by Broker are adequate and appropriate for Your needs and/or the needs of Your Customers.
(l) If You elect to make the Services available to your Customers through an option to request coverage for shipments in the Shopify “shopping cart” (or through other means permitted under these T&Cs and the other Acceptance Documents), You agree:
- i.To promptly communicate to Customers requesting coverage for shipments the terms of coverage via documentation provided by Broker.
- ii. To collect all insurance service fees from Customers and timely remit the full amount thereof to Broker within thirty (30) days after invoice date. Invoices are currently delivered via the InsureShield® online portal, although Broker reserves the right to alter the method of invoicing in the future.
- iii. Not to impose or collect any commission, “mark-up” or other charges with respect to any insurance-related fees.
- iv. To assist with processing of any insurance-related claims by, among other things, providing (or making available) to Customers the current approved form of claim application, communicating to Customers regarding claim filing requirements (e.g., taking photos, retaining packaging, etc.), collecting completed claim application and supporting documentation from Customers and transmitting the same to Broker within 10 business days after receipt from the Customer, sending documentation and information requests from Broker to Customers within 10 business days after receipt of request from Broker and such other assistance as Broker may request in connection with any claim.
- v. To receive claim payments from UPSCIA and remit the full amount thereof to the applicable Customer within 10 business days after receipt of funds from Broker, so long as you have not – at the time the claim payment is remitted to You – already reshipped replacement items for the lost or damaged goods or refunded the purchase price, including shipping costs, to Customer.
- vi. Not to block or otherwise interfere with Customers’ ability to view or accept Broker’s terms and conditions of insurance applicable to Customers.
- vii. That Services do not extend to, and should not be purchased by, Customers that are not located in the United States.
- 6. NOTICE OF FULL AND ADDITIONAL TERMS: Under all circumstances, the terms and conditions set forth in Your insurance Policy shall control and determine insurance coverage. To the extent these T&Cs stated herein conflict with those in Your insurance Policy, the insurance Policy shall control and be binding as to issues of coverage under such insurance Policy. Broker reserves the right to update these T&Cs and to re-distribute such updated T&Cs to You at any time.
- 7. CERTAIN CUSTOMERS AND SHIPMENTS NOT ELIGIBLE: Customers located or based outside of the United States are not eligible to request coverage for shipments under the Policy issued to the Shopify account holder by Broker or participate in any of the Services. Shipments with contents unrelated to the business purpose of the Shopify account holder are not eligible for protection and will not be protected under any Policy regardless of commodity type. You are not eligible to participate in the Services except to the extent acting on behalf of a corporate or similar business entity for a business purpose.
- 8. ELIGIBLE CONVEYANCES AND ROUTES: Ground, air and ocean shipments are eligible for coverage under the Policy. International and domestic shipments are eligible for coverage under the Policy so long as You and Your Customer reside (or under applicable law are deemed to reside) in the United States, provided that coverage will be null and void whenever it (or any related payment or other transaction) would be in violation of any U.S. economic or trade sanctions, or if You or any applicable Customer reside (or under applicable law are deemed to reside) outside the United States.
- 9. COVERAGE LIMITS, INSURING TERMS, DEDUCTIBLES AND FEES: The Policy may provide for different insuring terms, coverage limits, deductibles, and fees depending upon the commodity types being shipped. Note that motorized vehicles are only eligible for “Free of Particular Average” or “FPA” coverage, meaning that only the risk of total loss is covered in most instances for such commodity types and not the risk of partial loss or damage. If you are asked to indicate the type of commodity being shipped, when requesting coverage for shipments containing multiple commodity types, choose the commodity representing the majority of items in the shipment, but be advised that each specific commodity type will remain subject to all the insuring terms and restrictions applicable to that specific commodity type. Notwithstanding the foregoing, coverage under the Policy is limited in all events to $10,000 per any one conveyance or occurrence, whichever is less, provided that “On Deck” ocean shipments are subject to a $1,000 sublimit when subject to an “On Deck” bill of lading.
- 10. SCOPE OF COVERAGE: The Policy provides coverage for physical loss and/or damage to package contents in the course of transit, subject to insuring conditions, limitations and exclusions. The Policy provides no coverage for delay in transit or for consequential or indirect losses. The scope of coverage under the Policy is summarized as follows. See the Policy for the full terms and conditions of coverage.
- (a) Duration: Coverage under any Policy commences upon the shipment of cargo leaving the origin of the insured transport and continues during the ordinary course of the transit, including customary transshipment, until the sooner of: (i) delivery to the final destination of the insured transport; or (ii) fifteen days after the shipment arrives at the destination port, airport or other hub, if not yet delivered to final destination of the insured transport (or thirty days if the destination to which the goods are insured is outside the limits of the port). You acknowledge that coverage under a Policy may terminate before final delivery and that you are responsible for arranging and facilitating prompt final delivery of the shipment after its arrival at the destination port, airport or other hub.
- (b) Valuation: The declared value for shipments covered under the Policy will be deemed to be the final price of the goods agreed to be paid by the Customer (which may differ from the value of the goods) plus freight. In all cases, the claim payment will not exceed the lesser of verified valuation of the goods or the amount declared for insurance purposes, in each case less any applicable deductible. Loss valuations are subject to substantiation, and no Policy is an agreed value policy.
- Notice of Co-Insurance Penalty: In the event that you declare a value that is less than the valuation provided for above, you will be compensated for a proportion of your loss based on the value that you declared and not based on any other valuation. For example, if you declared a value of $500 for a shipment of goods with an actual value of $1,000 (i.e., you declare a value for the goods equal to 50% of the actual value of the goods), and if an insurable event occurred which resulted in a loss with a value of $400, then the Policy for such goods would only pay 50% of the loss value associated with such insurable event, or $200.
- (c) Excluded Commodities and Shipments: Not all commodities are eligible for coverage under the Policies. Each Policy specifically excludes the following commodities from coverage: contraband, illicit goods; accounts receivable; fish meal; nuclear fuel and substances; fireworks, explosive agents, fire-starting devices or aids; live plants, animals and insects, human tissues or organs, human remains, corpses or body parts; bullion; stamps; cash; currency; money; coins; deeds; notes; securities; bills; evidence of debt; precious stones; and fine arts and jewelry. Commodity-specific coverage terms may apply.
- (d) Excluded Risks: As with all insurance, coverage under the Policy is subject to exclusions which specifically include:
- war risks for U.S. (continental) domestic shipments;
- radioactive contamination;
- delay, whether or not caused by an insured peril;
- temperature variation, whether or not caused by an insured peril;
- inherent vice;
- fraud or infidelity by you, the shipper or consignee;
- misrepresentation / false information by you, the shipper or consignee;
- cyber attacks;
- illicit trade;
- capture, seizure, arrest or detainment of goods by public authority;
- nuclear contamination;
- rust, oxidation, discoloration, scratching, marring, denting, chipping and/or electrical or mechanical derangement to used goods, whether or not caused by an insured peril;
- Consequential and indirect damages, such as loss of market, depreciation, or diminution in value as a result of repair
- improper, inadequate or otherwise unsuitable packing or preparation of the cargo, provided this exclusion will not apply to the extent that:(i) such packing or preparation was carried out by a third party other than you, the shipper, consignee or anyone bearing an interest in the cargo; and (ii) the deficiency was unknown to you, the shipper, consignee and anyone bearing an interest in the cargo;
- fraud or infidelity by you, the shipper or consignee;
- misrepresentation / false information by you, the shipper or consignee;
- a shipment of cargo being re-routed, stopped in transit or retrieved at a point other than the original consigned delivery point pursuant to any instruction or representation to the transport carrier by a fraudster or imposter;
- a shipment of cargo being sent as a result of fraud or trick upon the Customer, the shipper and/or consignee (including but not limited to product orders made by imposters);and
- package labels being changed or revised in the course of transportation for the purpose of fraudulent redirection.
- 11. CLAIM REPORTING LIMITATION & CLAIM PROCESS: Pursuant to procedures established by Broker from time to time, loss or damage to an insured shipment must be immediately reported in writing to Broker. Customers are required to provide notice of loss or damage to You within 5 business days of the date of delivery and, pursuant to Section 5(l)(iii), You must report the loss or damage to Broker within 10 business days of the date of the notice of loss or damage from Your Customer to You. As a condition precedent for coverage under the Policy, claims must in all events be submitted in writing within the following timeframes: (i) in the event of a claim for concealed loss or damage, within 90 days from the date of delivery; or (ii) for all other claims, within nine months from the date of delivery. In the event of a claim for non-delivery, the time-for-claim shall run from the date that the cargo was scheduled to have been delivered or should have reasonably been delivered, whichever is first in time. Loss verification will be required. Photos of any damaged goods, packaging and/or containers are required. Damaged goods, packaging and/or containers should be retained for inspection at the discretion of Broker and/or the Insurer. You are responsible for timely communicating all claim reporting requirements to Your Customers [see Section 5(l)(iv)]. By submitting any claim under a Policy, you agree to fully cooperate with Broker and/or the Insurer in providing all documentation and information pertinent to such claim, including an examination under oath if requested by the Insurer. In addition, if your Customer requests coverage for a shipment in the Shopify “shopping cart” (or through other means permitted under these T&Cs and the other Acceptance Documents), You and not the Insurer will be responsible for any loss or damage caused by Your action or inaction, including Your failure to pack the goods properly, Your failure or delay in tendering the goods for shipment to the carrier, Your failure or delay in timely communicating claims filing requirements to the Customer or delivering information to or from the Customer regarding the claim, and Your failure or delay in cooperating with Broker or the Insurer in connection with the claim.
- 12. COMPLIANCE WITH TRANSPORTATION CARRIER TERMS AND CONDITIONS: Your compliance with the transportation carrier’s shipping terms and conditions in effect at time of shipment shall be a condition precedent for coverage under the Policy (whether such coverage was requested by You or by the Customer). In accepting the transportation carrier’s shipping terms and conditions and these T&Cs, you do so on behalf of Yourself, Your officers and other representatives, and on behalf of all parties with any interest in the goods.
- 13. YOUR INDEMNIFICATION OF BROKER: If You elect to make the Services available to your Customers through an option to request coverage for shipments in the Shopify “shopping cart” (or through other means permitted under these T&Cs and the other Acceptance Documents), You agree to indemnify and defend Broker, Insurer and each of their respective affiliates, officers, directors, shareholders, employees, agents, representatives and attorneys (collectively, the “Indemnitees”), and to save and hold the Indemnitees harmless from and against, all claims, demands, liabilities, costs, actions, suits or proceedings that any Indemnitee may suffer or incur (including reasonable attorneys’ fees and expenses) to the extent relating or attributable to (i) any action or inaction on Your part or by Your officers or other representatives (collectively, “Indemnitors”) in violation of any law (including any insurance laws or regulations) or any action or inaction in violation of Your duties under these T&Cs and the other Acceptance Documents, (ii) any inaccurate, incomplete or misleading information provided by any Indemnitor to any Customer or any other person or entity relating to the Services, (iii) any false, fraudulent or intentionally inaccurate claims asserted by or facilitated by any Indemnitor, and (iv) without limiting the generality of any of the clauses above, the denial (in whole or in part) of any claim by Broker or the applicable Insurer under any Policy (or by any transportation carrier in respect of any subrogation claim asserted by Broker or the applicable insurer) by reason of the failure by any Indemnitor to take or refrain from taking any action required in order for the claim to be allowed.
- 14. TRADE SANCTIONS: Broker does not provide Services (or other services) to governments, governmental agencies, businesses, other groups, or any of their agents that are subject to U.S. trade sanctions. By using the Services, You represent and warrant that You and Your officers and other representatives are not subject to any U.S. trade sanctions.
- 15. PRIVACY NOTICE: Broker will need to collect and process personal data from time to time in connection with the Services, including with respect to the adjustment and payment of claims made under any Policy. For details about how Broker and its affiliates process personal data, please see the UPS Capital Privacy Notice located at https://upscapital.com/privacy-notice/. By accepting these T&Cs, you warrant that (i) you have obtained any personal data provided to Broker lawfully, (ii) you are authorized to provide such data to Broker and its affiliates, and (iii) you have duly informed any of your customers whose personal data is provided to Broker or its affiliates that Broker and its affiliates will process such data in accordance with the above-linked UPS Capital Privacy Notice in effect at the time of collection.
- 16. DISCLAIMER OF WARRANTIES, LIMITED DUTIES, LIMITATION OF LIABILITY AND TIMES FOR LEGAL CLAIM AND ACTION: Broker expressly disclaims any and all representations and warranties, including implied warranties of fitness for a particular or intended purpose. In quoting, placing, binding, renewing or otherwise brokering insurance coverage for You, Broker will use reasonable care, diligence and judgment in procuring the insurance coverage You request but You agree that Broker assumes no further duty to You or your officers or other representatives. Broker has no duty to read insurance policies on Your behalf or to interpret or explain insurance coverage application, restrictions and/or limitations. Broker has familiarity with and access to a wide range of insurance products, but does not purport as having a specialized expertise in any specific field of insurance; no action(s) of Broker shall be interpreted as Broker holding itself out as having such expertise. No action(s) of Broker shall subject Broker to a heightened or special duty of care to You, Your officers or other representatives, or Your Customers. Insurance underwriters determine in their discretion whether to offer, renew, cancel or non-renew insurance coverage and Broker is not responsible or liable for any loss resulting from such determinations.
UNDER NO CIRCUMSTANCES WILL BROKER BE LIABLE FOR ANY LOSS OR DAMAGES INCLUDING, WITHOUT LIMITATION, GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES (SUCH AS LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, EMOTIONAL DISTRESS OR OTHER INTANGIBLE LOSSES) OF ANY KIND WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF BROKER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES, ARISING OUT OF OR RELATING IN ANY WAY TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE SERVICES, THE CONTENT, OR ANY THIRD-PARTY SITE TO WHICH THE SERVICES OR CONTENT LINK; (B) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE; (C) THE COST OF GETTING SUBSTITUTE GOODS OR SERVICES; (D) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICES; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (F) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICES; (G) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY SITE; (H) ANY INJURY OR DAMAGES, WHETHER CAUSED BY THE NEGLIGENCE OF BROKER, ITS EMPLOYEES, SUBCONTRACTORS, AGENTS, SUPPLIERS OR OTHERWISE ARISING IN CONNECTION WITH THE SERVICES; (I) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS WEBSITE) TO SUBMIT APPLICATIONS FOR INSURANCE PRODUCTS OR SERVICES; (J) ANY ACTIONS ASSOCIATED WITH THE SUBMISSION OR HANDLING OF A CLAIM; (K) ANY ACTIONS ASSOCIATED WITH THE DELAY IN ISSUING ANY CERTIFICATE OF INSURANCE OR THE HANDLING OR TRACKING OF CERTIFICATES OF INSURANCE; OR (L) ANY OTHER MATTER ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, THE CONTENT OR USER CONTENT. BROKER IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR THE CONTENT IS TO DISCONTINUE USING THE SERVICES (AND, IF APPLICABLE TO DISCONTINUE OFFERING OF SERVICES TO YOUR CUSTOMERS). IN NO EVENT WILL BROKERS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION OF ANY KIND OR NATURE WHATSOEVER EXCEED THE AMOUNT OF COMMISSION, FEE OR OTHER RENUMERATION EARNED BY BROKER FOR PROVIDING SERVICES TO YOU FOR THE TWELVE MONTHS PRIOR TO THE ALLEGED ACT CAUSING DAMAGES, LESS (i) ANY AMOUNT(S) RECOVERED OR RECOVERABLE FROM ANY OTHER PARTY; (ii) ANY INSURANCE PROCEEDS THAT REDUCE THE AMOUNT OF THE LOSS PAYABLE UNDER THE APPLICABLE POLICY OR ANY OTHER POLICY OF INSURANCE; AND/OR (iii) ANY AMOUNTS RECOVERED OR RECOVERABLE FROM ANY THIRD PARTY WITH RESPECT TO THE LOSS.
Any liability of Broker however founded shall be subject to the conditions precedent of: (a) Broker receiving written claim within 60 days from the date that You or your officers or other representatives became aware of the circumstances giving rise to such claim; and (b) legal action being commenced against Broker within 1 year from the date that You or your officers or other representatives became aware of the circumstances giving rise to such claim. Claims against Broker shall be submitted by courier with tracking service and singed delivery requirement to: UPS Capital Corporation, Attn. Legal Department; 35 Glenlake Pkwy NE; Atlanta, Georgia 30328; USA.
- 17. 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 its conflict of laws principles.
- 18. AGREEMENT TO ARBITRATE CLAIMS: You, for yourself and on behalf of your officers or other representatives, and Broker 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 on their jurisdictions over civil disputes), any controversy or claim between any person or entity, whether at law or equity, arising out of or related to any Policy and/or coverage of shipments thereunder, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration. 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.
- (a) Institutional Arbitration: The arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (“Rules”), and judgment on the award may be entered in any court of competent jurisdiction. The 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 you initiate arbitration, you must serve the opposing parties or their registered agent for service of process.
- 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. You, your officers and other representatives and Broker each waive their right to trial by jury. You are further giving up the 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 You reside (or are deemed to reside under applicable law) and will be determined by a single arbitrator. Any filing fee or administrative fee required of You by the AAA Rules shall be paid by You 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, Broker 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 American Arbitration Association. 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 are 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 Your and Broker’s agreement to be bound to these T&Cs.
- (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), You and Broker 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-Related Disputes Supplementary Procedures, and concerning an award between fifteen thousand dollars ($15,000.00) and fifty thousand dollars ($50,000.00), inclusive, Broker shall pay Your filing fee under the AAA Rules, provided that You agree that all 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 on their jurisdiction over civil disputes, for individual disputes within the scope of such court’s jurisdiction.
- (f) Acknowledgements: You, on behalf of Yourself and your officers and other representatives, and Broker acknowledge and agree that pursuant to this Agreement to Arbitrate Claims:
- (i) YOU AND BROKER AGREE THAT EACH IS WAIVING THE RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST YOU, BROKER, OR ANY PERSON OR ENTITY IN CONNECTION WITH ANY INSURANCE POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER;
- (ii) YOU AND BROKER AGREE THAT EACH IS WAIVING THE RIGHT TO HAVE A COURT, OTHER THAN A STATE COURT OF LIMITED JURISDICTION AS DEFINED ABOVE, RESOLVE ANY DISPUTE ALLEGED AGAINST YOU, BROKER OR ANY PERSON OR ENTITY IN CONNECTION WITH ANY INSURANCE POLICY AND/OR COVERAGE OF SHIPMENTS THEREUNDER;
- (iii) YOU AND BROKER AGREE THAT EACH IS 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
- (iv) YOU AND BROKER AGREE THAT EACH IS 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 OR POLICYHOLDERS IN ANY CLASS, MASS, CONSOLIDATED OR COMBINED ACTION OR ARBITRATION FILED AGAINST YOU, BROKER, OR ANY PERSON OR ENTITY IN CONNECTION WITH THE POLICIES 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 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 You and Broker 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, You and Broker 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, arbitral award or other rights of the parties, or as required by law or court order. This confidentiality provision does not foreclose the American Arbitration Association from reporting certain consumer arbitration case information as required by state law.
- 19. 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 Broker at firstname.lastname@example.org.
Any controversy or claim between any person or entity, whether at law or equity, arising out of or related to the Services, a Policy and/or coverage of shipments thereunder shall be resolved solely based on these T&Cs and the applicable Policy.