Cold Connect Terms & Conditions

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).

1. Services

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.

2. Rates

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.

3. Term

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.

4. Warranties

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.

5. Indemnity

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.

6. Loss and Damage Claims

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.

7. Confidential Information

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.

8. Governing Law Venue.

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.

9. Transportation

  1. Unacceptable Shipments. Shipper warrants that its Shipment is suitable for transportation, however, if it is deemed unsuitable at UPDS’s sole discretion,
    1. UPDS may decide it cannot transport it or an item safely or legally
    2. UPDS reserves the right to inspect shipper-loaded trailers upon arrival at its facility to verify condition and count, and to reject or make other arrangements with shipper on any shipments if they are not properly pre-cooled, palletized, stacked, or packaged, or are determined by UPDS to be otherwise unsuitable for safe transportation
  2. Deliveries. If Receiver refuses delivery or to pay for delivery, or the Shipment is deemed to be unacceptable, or Receiver cannot be reasonably identified or located, UPDS shall be released from incurring any liability whatsoever to Shipper or anyone else and granted the authority to dispose of or sell the Shipment, with the proceeds applied against service charges and related administrative costs and the balance of the proceeds of a sale to be returned to Shipper.
  3. Inspection. UPDS has the right to open and inspect a shipment without prior notice to Shipper.
  4. Charges & Billing. Shipper shall pay or reimburse UPDS for all Shipment charges, storage charges, fees, and taxes owed for services provided by UPDS or incurred by UPDS on Shipper’s, Receiver’s, or any third party’s behalf and all claims, damages, fines, and expenses incurred if the Shipment is deemed unacceptable for transport as described in this Transportation Section, within fifteen (15) days of date of invoice. Shipper shall not set off claims for loss, damage, or delay, or claims for overcharge or duplicate payment, against freight or other charges owed to UPDS. Claims for overcharges, credits, and invoice charges must be made in writing to UPDS within one (1) year of the date of acceptance of the shipment by UPDS. The amount of the overcharge and/or credit claim may not be deducted from transportation charges.
  5. UPDS’s Liability. UPDS’s liability is strictly limited to direct loss only and to the per lb. limits in this Transportation Section. Shipper shall not have the right to procure substitute goods in the event of loss or damage (“Cover”). If Shipper regards these limits as insufficient it must make a special declaration of value and request excess valuation protection as described in Section (“Excess Valuation”) or make its own insurance arrangements. All other types of loss or damage are excluded (including but not limited to lost profits, income, interest, future business), whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to UPDS’s attention before or after acceptance of the Shipment since special risks can be insured by Shipper. If a Shipment combines carriage by rail, road or other mode of transport, it shall be presumed that any loss or damage occurred during the rail period of such carriage unless proven otherwise. UPDS’s liability in respect of any one Shipment transported, without prejudice to Sections One through Eleven (1-11), is limited to its actual cash value and shall not exceed the greater of: $0.10 per pound per shipment and/or $2.00 per case, the lesser of the two, and further subject to a maximum liability of $200,000 for all shipments carried in any one rail car or $100,000 for all shipments carried in any one truck or trailer.
  6. Excess Valuation. If the Shipment has an actual value greater than the liability limits listed in Section, UPDS can arrange excess valuation protection for Shipper covering the actual cash value in respect of loss of or physical damage to the Shipment provided Shipper the request in writing and pays the applicable premium. Excess Valuation does not cover indirect loss or damage, or loss or damage caused by delays. If Shipper does not declare a value for carriage and pay the appropriate charge, Shipper assumes all risks of loss or damage over the amount of UPDS’s liability as stated in Section.
  7. Delayed Shipments. UPDS will make every reasonable effort to deliver the Shipment according to UPDS’s regular delivery schedules, but these are not guaranteed and do not form part of the contract. UPDS is not liable for any damages or loss caused by delays.
  8. Circumstances Beyond UPDS’s Control. UPDS is not liable for any loss or damage arising out of circumstances beyond UPDS’s control. These include but are not limited to: “Act of God” – e.g. earthquake, cyclone, storm, flood, fog; “Force Majeure” – e.g. war, train crash, derailment or embargo; any defect or characteristic related to the nature of the Shipment, even if known to UPDS; riot or civil commotion; any act or omission by a person not employed or contracted by UPDS, e.g. Shipper, Receiver, third party, government official; labor strike; and electrical or magnetic damage to, or erasure of, electronic or photographic images, data or recordings.
  9. Routing. Shipper agrees to all routing and diversion, including mode of transportation and the possibility that the Shipment may be carried via intermediate stopping places, which UPDS deems appropriate.
  10. Shippers Obligations:
    1. Loading: Unless an entity has expressly requested UPDS to arrange loading services before shipment and UPDS expressly agrees to undertake this task, UPDS shall not be responsible for ensuring that cargo is properly and safely loaded, inventoried and securely sealed.
    2. Shipping Instructions: Shipper shall provide shipping instructions and shall properly, completely, and accurately identify all cargo in the bill of lading or in other written shipping instructions provided to UPDS shall not review, warrant or guarantee the accuracy of such instructions and instead shall rely upon the actions of Shipper to accurately and properly identify such freight as required by law and custom within the industry.
  11. Overweight Shipments. Loads exceeding 43,500 lbs (inclusive of pallet weight) will incur charges to cover LTL deliveries of the excess weight.

10. Past Due Accounts

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.

11. Accessorial Charges

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

12. Fuel Surcharge

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 4.3998.10%
$3.50 to 3.5490.45%$4.40 to 4.4498.55%
$3.550 to 3.5990.90%$4.450 to 4.4999.00%
$3.60 to 3.6491.35%$4.50 to 4.5499.45%
$3.650 to 3.6991.80%$4.550 to 4.5999.90%
$3.70 to 3.7492.25%$4.60 to 4.64910.35%
$3.750 to 3.7992.70%$4.650 to 4.69910.80%
$3.80 to 3.8493.15%$4.70 to 4.74911.25%
$3.850 to 3.8993.60%$4.750 to 4.79911.70%
$3.90 to 3.9494.05%$4.80 to 4.84912.15%
$3.950 to 3.9994.50%$4.850 to 4.89912.60%
$4.0 to 4.0494.95%$4.90 to 4.94913.05%
$4.050 to 4.0995.40%$4.950 to 4.99913.50%
$4.10 to 4.1495.85%$5.0 to 5.04913.95%
$4.150 to 4.1996.30%$5.050 to 5.09914.40%
$4.20 to 4.2496.75%$5.10 to 5.14914.85%
$4.250 to 4.2997.20%$5.150 to 5.19915.30%
$4.30 to 4.3497.65%$5.20 to 5.24915.75%

13. UPDS Self Insured Letter