These Terms and Conditions together with any bid award submitted by Shipper and accepted by UPDS shall hereinafter be referred to as the “Agreement”. This Agreement constitutes the complete and exclusive statements of the agreement of the parties with respect to the subject matter hereof, and supersedes all prior written and oral statements with respect to the subject matter hereof. In the event of any conflict between the terms of these Terms and Conditions and any bid award submitted or shipment by Shipper and accepted by UPDS, the terms of these Terms and Conditions shall control.
“Shipment” means all pallets or goods that travel under one waybill and may be carried by any means UPDS chooses, including rail, road, or any other carrier. A “bill of lading” shall include any bill of lading, waybill, receipt, or consignment note and shall incorporate these Terms and Conditions. Every Shipment is transported on a limited liability basis as provided herein. If Shipper requires greater protection, then Excess Valuation protection may be arranged at an additional cost. (Please see Transportation Section for further information).
UPDS may perform any of the following activities on Shipper’s behalf in order to provide its services to Shipper: (1) complete and transmit (manually or electronically) any documents, amend product or service codes, and pay any fees or taxes required under applicable laws and regulations, and (2) redirect the Shipment to Receiver’s agent or other address upon request by any person who UPDS believes in its reasonable opinion to be authorized.
Shipper agrees to pay UPDS for the Services in accordance with the rates set forth in Exhibit A to the bid award submitted by Shipper and accepted by UPDS. UPDS may modify the rates at any time. UPDS agrees to deliver its invoices to Shipper in accordance with Shippers instructions to UPDS. Shipper will pay each invoice received from UPDS within fifteen (15) days of date of any such invoice; provided that each such invoice is prepared in accordance with Shipper’s instructions. UPDS shall timely provide any supporting invoice documentation requested by Shipper. UPDS’s failure to timely provide such documentation to Shipper may delay payment of the related invoice.
The term of this Agreement shall be as identified on Exhibit A to the bid award submitted by Shipper and accepted by UPDS. UPDS may terminate this Agreement immediately upon providing written notice to Shipper. Upon receipt of notice of termination, UPDS shall discontinue its performance hereunder, preserve and protect materials, work in progress and completed work and, if requested by Shipper, transition the performance of such services to Shipper or a third party in accordance with Shipper’s instructions. Shipper may terminate this Agreement upon ninety (90) days’ written notice to UPDS, provided that if requested by Shipper, Shipper shall work with UPDS to transition the performance of services provided by UPDS to Shipper or a third party in accordance with UPDS’ instructions. Termination of this Agreement, or any part hereof, for any reason shall not release any party from any obligations that may have accrued prior to such termination.
UPDS warrants that (a) UPDS will perform the Services using its best efforts in accordance with good industry standards; (b) UPDS’s employees or agents performing the Services will be skilled and have adequate education and training to perform such Services; (c) UPDS will comply with all applicable federal, state and local laws, orders, ordinances, rules and regulations, including, without limitation, all Department of Transportation and Federal Motor Carrier Safety Administration rules and regulations; (d) UPDS and its employees and agents have obtained and will keep current at UPDS’s sole cost and expense all permits, certificates and licenses necessary for UPDS or its employees and agents to perform the Services; (e) UPDS is financially capable of fulfilling all of its obligations under this Agreement; (f) there are no legal, administrative or other proceedings pending or threatened against or involving UPDS that could adversely affect UPDS’s performance under this Agreement; (g) UPDS is not prohibited by any arrangements or any document or obligation from entering into or performing obligations under this Agreement; (h) materials, supplies and equipment used in performance of the Services are of good quality, are new, and meet Department of Transportation safety requirements for operation over US roads and highways (as applicable); and (i) UPDS will perform the Services in compliance with any specifications provided to UPDS by Shipper, as such specifications may be modified by Shipper from time to time. UPDS’s warranties will survive the termination of this Agreement without limitation. UPDS shall not create, permit or suffer any mechanic’s or material men’s lien of any kind or nature to be created or enforced against any real or personal property of Shipper. Shipper shall defend, indemnify and hold harmless UPDS, its subsidiaries and affiliates, from and against any and all liens or other Losses as defined below in any way connected with or growing out of the Services, including any labor performed or materials furnished by UPDS.
Shipper agrees to defend, indemnify and hold harmless UPDS, its subsidiaries and affiliates and their respective officers, directors, employees and agents from and against all costs, damages, claims and liabilities, including attorneys’ fees, (“Losses”), including without limitation, Losses with respect to bodily injury or death to any persons, including site, subcontractors, the employees of subcontractors or the employees of UPDS, or Losses or destruction of any property arising directly or indirectly out of or in connection with: (a) the performance of any Services; (b) any breach of this Agreement by Shipper; or (c) any act or omission by Shipper or any employees, agents or subcontractors of Shipper. Shipper shall indemnify and defend UPDS against Losses arising out of claims by Shipper’s personnel or any government agency related to the payment of employment taxes, benefits and workers’ compensation in connection with the performance of Services by Shipper’s personnel. SHIPPER’S indemnification obligation hereunder is expressly intended to include indemnification for all claims, including those caused or alleged to be caused by the partial or sole negligence of UPDS AND/or its employees, whether active or passive. to the extent it may lawfully do SO; SHIPPER waives any and all defenses under worker’s compensation or industrial insurance acts to so indemnify UPDS. In no event shall this Section or any other provision of this Agreement be deemed to limit any liability Shipper may have to UPDS by statute or under common law. UPDS shall have the right to control the defense and settlement of any and all claims or demands brought under this Agreement.
All claims by customers for cargo loss or damage shall be governed by the provisions of UPDS’s applicable circulars as modified from time to time. The circulars are available for reference at http://www.upds.com/resources/claims.html. Claims are limited to one claim per Shipment, settlement of which will be full and final settlement for all loss or damage in connection therewith. As a condition precedent to recovery: i) Shipper shall notify UPDS of all actual or potential trouble within eight (8) business hours of delivery and file a formal claim, including but not limited to, a timely USDA Federal Inspection or Canadian Food Agency Inspection, as applicable, in writing to UPDS within ten (10) days from the date of delivery for all agricultural and/or other perishable commodities; and ii) for non-perishable commodities, UPDS shall be notified of all actual or potential cargo damage(s) in writing within ten (10) days of delivery (or the date it was suppose to be delivered in the case of loss) and file a formal claim, including all supporting documentation, in writing to UPDS within thirty (30) days from the date of delivery (or the date it was suppose to be delivered in the case of loss). Failure to timely notify UPDS of a claim or to timely file a formal claim will act as a bar to any claim or lawsuit and release UPDS from all liability whatsoever. All claims will be processed by Forwarder in accordance with 49 CFR Part 370 (claim regulations). All of the original shipping cartons, pallets, packing, and contents must be made available for UPDS’s and/or federal inspectors and retained until the claim is concluded, as applicable. On all agricultural and/or other perishable commodities, origin and destination timely USDA inspections or other equivalent government federal inspections, as reasonably approved by UPDS, must be performed and provided to UPDS. UPDS is not obligated to act on any claim until all transportation charges have been received and paid. No Cover is allowed.
UPDS acknowledges that in connection with this Agreement and the Services UPDS will receive information and materials relating to Shipper’s business or operations, which are confidential, proprietary, non-public or private in nature (the “Confidential Information”). Other than in connection with providing the Services, UPDS shall not disclose the Confidential Information to any unauthorized third party or make other use of the Confidential Information.
ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, AND INTERPRETATION OF THIS AGREEMENT AND THE PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEBRASKA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. The parties hereto agree that if any suit, action or proceeding is brought seeking to enforce any provision of or based on any matter arising out of or in connection with this Agreement or the transactions contemplated hereby, it shall be brought only in the federal or state courts located in Omaha, Nebraska, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Nebraska, and each of the parties hereby irrevocably consents to the jurisdiction of such courts and of the appropriate appellate courts there from in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Past due accounts are subject to interest charge of 1 ½% per month, maximum of 18% per annum. Customer agrees to pay UPDS a $95.00 service charge on each dishonored check returned to UPDS. Customer further agrees that if UPDS is not paid on time, in accordance with their terms, Customer shall pay for all costs and expenses incurred by UPDS in connection with the collection of the unpaid amount, including but not limited to reasonable attorney fees. Should UPDS refer Customer’s past due account to a Collection Agency, Customer agrees to pay collection agency fees equal to thirty percent (30%) of the past due balance or $500.00, and whichever is greater. Customer further agrees that if this account is referred to an attorney for collection activity and/or the initiation of the lawsuit, Customer will pay thirty-three percent (33%) in addition to the principle, interest and collection agency fees and for UPDS’s attorney fees incurred, whether suit is initiated or not.
Shipper agrees to pay UPDS for the Services in accordance with the rates set forth in the following table.
| Chargeable item | UPDS Charge |
|---|---|
| Truck Ordered Not Used (TONU) | $250 / truck |
| Multistop | $100 / stop |
| Driver Assist | Charges vary |
| Power Detention | $60 / hour |
| Pallet Storage | 5 days free - $20 / pallet / week thereafter |
| Slip Sheets | $2 / slip sheet |
| Pallet Supply | $25 / pallet |
| Pallet Replacement | $25 / pallet |
| Pallet Restacking | $25 / pallet |
| Pallet Non-Conforming | $25 / pallet |
| Cross Dock Handling (transloading) | $30 / pallet |
| In House Inspections | $75 / inspection |
| Inspection Federal | Actual cost + $50 service charge / inspection |
| Dump Rate | $100 / pallet |
| Repacking / Regrading - Standard | $18 / man hour |
| Repacking / Regrading - Premium | $36 / man hour |
| Layover | $600 / day |
Current Diesel Rates can be found here.
| Diesel Rate (Per Gallon) | FSC % | Diesel Rate (Per Gallon) | FSC % |
|---|---|---|---|
| $3.450 to 3.499 | 0.00% | $4.350 to 4.399 | 8.10% |
| $3.50 to 3.549 | 0.45% | $4.40 to 4.449 | 8.55% |
| $3.550 to 3.599 | 0.90% | $4.450 to 4.499 | 9.00% |
| $3.60 to 3.649 | 1.35% | $4.50 to 4.549 | 9.45% |
| $3.650 to 3.699 | 1.80% | $4.550 to 4.599 | 9.90% |
| $3.70 to 3.749 | 2.25% | $4.60 to 4.649 | 10.35% |
| $3.750 to 3.799 | 2.70% | $4.650 to 4.699 | 10.80% |
| $3.80 to 3.849 | 3.15% | $4.70 to 4.749 | 11.25% |
| $3.850 to 3.899 | 3.60% | $4.750 to 4.799 | 11.70% |
| $3.90 to 3.949 | 4.05% | $4.80 to 4.849 | 12.15% |
| $3.950 to 3.999 | 4.50% | $4.850 to 4.899 | 12.60% |
| $4.0 to 4.049 | 4.95% | $4.90 to 4.949 | 13.05% |
| $4.050 to 4.099 | 5.40% | $4.950 to 4.999 | 13.50% |
| $4.10 to 4.149 | 5.85% | $5.0 to 5.049 | 13.95% |
| $4.150 to 4.199 | 6.30% | $5.050 to 5.099 | 14.40% |
| $4.20 to 4.249 | 6.75% | $5.10 to 5.149 | 14.85% |
| $4.250 to 4.299 | 7.20% | $5.150 to 5.199 | 15.30% |
| $4.30 to 4.349 | 7.65% | $5.20 to 5.249 | 15.75% |