|
In consideration of the Services being provided by UPS-MI hereunder, unless otherwise agreed to by the parties in a writing referencing these Service Terms and Conditions executed by duly authorized representatives of each of the parties hereto, Client shall pay UPS-MI the amount per Piece set forth Exhibit A attached hereto and expressly incorporated herein by this reference, for each Piece processed and delivered by UPS-MI to the Postal Authority hereunder.
. UPS-MI reserves the right to increase its prices in the event of any increase in Postal Authority postage rates, and any such increase will be effective as of the date the Postal Authority postage rate change is placed into effect.
. UPS-MI reserves the right to increase the prices set forth in Exhibit A hereto by providing written notice thirty (30) days in advance of the effective date of such increase. If any economic conditions or regulatory changes beyond the control of UPS-MI change UPS-MI’s cost of providing Services to Client, UPS-MI may increase its prices or impose applicable surcharges including but not limited to security surcharges, to cover such increased costs. UPS-MI will make reasonable efforts to provide thirty (30) days notice of any such increases by posting such increase on http:www.upsmailinnovations.com; however, increases may be effective immediately upon notice thereof.
UPS-MI reserves the right to change its rates or charge additional fees in the event that Client changes the mutually-agreed upon location of the Facility(ies) or identifies additional Facilities for the collection of Pieces by UPS-MI under the Agreement.
 . UPS-MI reserves the right to institute a fuel surcharge on some or all shipments without prior notice. The fuel surcharge will be applied to such Services and for such periods as UPS-MI, in its sole discretion, may determine necessary. The current fuel surcharge is described at http://www.upsmailinnovations.com.
UPS-MI payment terms require payment of all applicable fees, charges, surcharges, and expenses (“Charges”) within seven (7) days from date of invoice. UPS –MI will invoice Client no more frequently than on a weekly basis, and invoices will reflect any balances due from any previous invoice. All payments by Client to UPS-MI shall be made by check or wire transfer to such address or bank account as set forth on the Shipment Control Form, with no right of set-off, including for any claims based on disputed invoices or claims for loss or damage, and without withholding of any taxes or other assessments or fees. All charges hereunder are exclusive of applicable federal, state, and local sales, use, excise or similar taxes or tax-like charges applicable to the Services (“Taxes”). Client shall be responsible for payment of all Taxes applicable to the Services (excluding taxes based on UPS-MI's income). If Client fails to make any payment when due under the Agreement, Client shall pay to UPS-MI a late payment fee equal to one and one-half percent (1½%) of the total past due balance of Client’s invoice or the maximum amount permitted by applicable law, whichever is less. The late payment fee is in addition to any collection costs that may be incurred by UPS-MI in the final collection of charges owed by Client. Neither the assessment nor the payment of a late payment fee will (a) affect Client’s responsibility to pay all charges owed, or (b) in any manner preclude UPS-MI from exercising any of its rights or remedies hereunder or under applicable law.
UPS-MI will not give or sell Client confidential information provided to UPS-MI hereunder to any third party not performing Services hereunder, except as required by law or as necessary to provide the Services. Client will not give or sell UPS-MI confidential information provided to Client hereunder to any third party except as required by law. Client confidential information shall not include: (i) information contained on the exterior of a Piece, including information contained in plain text or bar code form on shipping labels, or (ii) Shipment or Piece level detail or smart label information, including but not limited to, consignee's full name, complete delivery address, weight, and labeling that contains Maxicode, postal barcode, current routing code, appropriate service level icon, a tracking number bar code and address details related thereto (collectively, "Shipping Information"). UPS-MI will use Shipping Information only as permitted by the UPS Privacy Policy located at www.ups.com and in effect at the time of shipping or as permitted by law.
Client represents and warrants that all Pieces or other matter tendered to UPS-MI by Client do not violate any national, federal, state, provincial or local laws or regulations applicable to the Pieces or other matter. UPS-MI does not accept for transportation of any item that is prohibited by applicable law or regulation of any national, federal, state, provincial, or local government in the origin or destination country.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, NEITHER PARTY HERETO MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
UPS-MI DOES NOT WARRANT THAT THE SERVICES BEING PROVIDED BY UPS-MI HEREUNDER WILL BE PROVIDED FREE OF OMISSIONS, ERRORS, DELAYS OR INTERRUPTIONS.
UPS-MI’s liability terminates on delivery of the Pieces to the Postal Authority. Upon delivery to the Postal Authority, the Postal Authority becomes the party responsible for Client’s Pieces. UPS-MI shall have no liability of any nature whatsoever arising from the acts or omissions of the Postal Authority, including without limitation, liability for any loss, miscarriage, negligent transmission, damage, delay, or failure of delivery of any Pieces or other matter. UPS-MI shall not be liable or responsible for any losses or damages due to the failure or refusal of USPS to accept Pieces. UPS-MI shall have no responsibility or liability in connection with the loss of or damage to a Piece and/or contents thereof once delivered by UPS-MI to the Postal Authority.
UPS-MI’s entire liability to Client for any and all claims, causes of action, damages, losses, costs, expenses or other liabilities of any nature whatsoever incurred in connection with this Agreement or the Services, including, without limitation, any liabilities arising from any omissions, errors, delays or interruption in the Services and the preparation or delivery of any Pieces provided by UPS-MI, and attorney’s fees (“Liabilities”) shall, in each instance and without regard to the value of the contents of any Piece(s), be limited to the actual fees and expenses charged by UPS-MI, not including postage fees charged to Client for the specific Service performed that gave rise to the Liability. UPS-MI shall not be liable for any misdelivery, failure to deliver, or loss or damage to any Pieces if such misdelivery, failure, or loss or damage is due to Client’s error, omission or negligence. Client agrees that the foregoing limits are reasonable based on the characteristics of the Pieces and the parties’ respective business interests and rates charged. For purposes of this section, if applicable to the carriage, Client expressly waives pursuant to 49 U.S.C. § 14101, rights and remedies Client may have pursuant to 49 U.S.C. § 14706(a) and (f).Where carriage by air involves an ultimate destination or stop outside the country of origin, the rules relating to liability established by the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, Poland on October 12, 1929, and any amendments thereto or the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on May 28, 1999 (collectively “ the Convention”) may apply. The Convention governs and in most cases limits the liability of carrier in respect of loss, damage or delay to cargo. There are no stopping places which are agreed upon at the time of tender of the shipment, and UPS-MI reserves the right to route the shipment in any way it deems appropriate.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL UPS-MI BE LIABLE TO CLIENT, CLIENT’S CUSTOMERS OR ANY OTHER THIRD PARTY FOR LOSS OF USE, REVENUE OR PROFIT, DELAY DAMAGES, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF UPS-MI HAS BEEN ADVISED OF THE POSSIBIILTY OF SUCH DAMAGES.
Client will, at Client's sole cost and expense, indemnify and hold UPS-MI, its affiliates and their respective officers, directors, employees, agents, successors, and assigns, harmless from and against any and all claims, losses, damages, judgments, costs and expenses, including attorney's fees, arising out of or related to any third party claim based on personal injury, damage to tangible property, or otherwise arising from the Services performed, to the extent caused by or resulting from the actions or omissions of Client, its affiliates and/or their respective officers, directors, employees, agents, successors, and assigns.
Notice of damage to and/or loss of a shipment must be reported to UPS-MI in writing within 15 days after delivery of the shipment, with the right of UPS-MI to make inspection of the shipment within 15 days after receipt of such notice. All claims, excluding claims for overcharges which are addressed below, must be made in writing to UPS-MI within sixty (60) days after delivery of the shipment or in the case of non-delivery, within sixty days (60) after a reasonable time for delivery has elapsed. Suits shall be instituted within one year after denial of any portion of the claim. However, suits involving claims to which the Convention applies shall be instituted within two (2) years from date of arrival of the shipment at destination, or from the date the shipment should have arrived, or from the date on which carriage stopped. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, such claims shall be deemed waived and will not be paid. A request for proof of delivery does not constitute the filing of a claim. For purposes of this section, pursuant to 49 U.S.C. § 14101, Client expressly waives any right or remedy it may have pursuant to 49 U.S.C. § 14706(d), and (e).
For any claim for an invoice adjustment (including, but not limited to, adjustment of charges based on an incorrect rate, or type of service, overcharge, refund due to a duplicate payment), Client must notify UPS-MI of the claim within 180 days of receiving the contested invoice, or any billing dispute is waived. A partial payment against an invoice is not considered a request for an invoice adjustment.
To the extent that UPS-MI's performance is precluded or delayed by, or Pieces are lost or damaged as a result of, a "Force Majeure Event," such performance shall be excused for the time necessitated by such Force Majeure Event, and UPS-MI shall not be responsible for damage or loss to Pieces resulting from such Force Majeure Event. "Force Majeure Event" shall mean any event beyond UPS-MI's control, including but not limited to: acts of war, terrorist acts, governmental orders relating to the foregoing, the application of security regulations imposed by a government, embargoes, acts of public authorities acting with actual or apparent authority, insurrections, riots, sabotage, natural disasters (including earthquakes or floods), acts of God, labor disputes (including strikes, lockouts, job actions or boycotts), fires, explosions, failure in electrical power, heat, light, air conditioning or communications equipment, or disruptions in air or ground transportation networks.
The Agreement, including these Service Terms and Conditions, the attached Exhibit A, and the Shipment Control Form, which are incorporated herein by reference in their entirety, and any other writing referencing and incorporating these Service Terms and Conditions and signed by duly authorized representatives of each of the parties hereto, sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement. The Agreement may not be modified except by a writing signed by authorized representatives of each of the parties.
Except where governed by mandatory treaty, national law, or U.S. federal law, the Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to the conflict of law rules thereof. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the U.S. District Court for the Northern District of Georgia, or in state court in the County of Fulton, Georgia, and each party hereto irrevocably submits to the jurisdiction and venue of such courts in any such suit, action or proceeding. If any part of the Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect. Waiver by either party of any breach or failure to comply with any provision of this Agreement or any fuel surcharge schedule by the other party shall not be construed as or constitute a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provision of this Agreement.
Each party hereto agrees to comply with all applicable laws. The Agreement shall be binding upon the parties hereto, their successors and permitted assigns. Client may not assign (by operation of law or otherwise) the Agreement nor any of its interests, rights or duties hereunder without the express written consent of UPS-MI. There shall be no third-party beneficiaries to the Agreement. UPS-MI has the right to use subcontractors or other third parties to fulfill any of its obligations or obligations of its servants, agents, and subcontractors, each of whom shall have the benefit of these Service Terms and Conditions. No such party has authority to waive or vary any of these Service Terms and Conditions.
There shall be no third-party beneficiaries to this Agreement. EMS may engage subcontractors or other third parties to fulfill any of its obligations hereunder, and such subcontractors or third parties shall have the benefit of the terms and conditions set forth in the Agreement. No such subcontractor or third party has authority to waive or vary any of these terms and conditions.
(Non-conforming pieces are billed at USPS First-Class® Rate plus a $0.48 or the Priority Mail Rate plus 10% (surcharge)
(Non-conforming pieces are billed at USPS First-Class® Rate plus a $0.48 or the Priority Mail Rate plus 10% surcharge). Additional charges may apply for oversize, balloon or non-machinable Parcels including but not limited to those listed above.
*Prices apply for pieces averaging 250 cubic inches or less. *Any item exceeding 400 cubic inches will have a $1.00 surcharge applied.
|
1. Definitions
Close Window