UPS Capital® Group Technology Agreement
This Technology Agreement (which together with the Additional Terms, as defined below, is the “Agreement”) is between you and UPS Capital Corporation, UPS Capital Versicherungsvermittlung GmbH, UPS Capital Insurance Agency Limited, UPSC (Thailand) Ltd., and their respective subsidiaries and branches (collectively, “UPS Capital,” “we” or “us”) governing your use of (including any access to) UPS Capital’s technology products and services that we make available subject to this Agreement (together with any related services, information, content and materials, and any successors, the “UPS Capital Technology”).
BY ACCESSING OR USING ANY UPS CAPITAL TECHNOLOGY, OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS TECHNOLOGY AGREEMENT, YOU ARE AGREEING TO BE BOUND BY ITS TERMS.
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE UPS CAPITAL TECHNOLOGY ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS TECHNOLOGY AGREEMENT ON BEHALF OF YOURSELF AND THE ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION. REFERENCES TO “YOU” AND “YOUR” IN THE AGREEMENT WILL REFER TO BOTH THE INDIVIDUAL USING THE UPS CAPITAL TECHNOLOGY AND TO ANY SUCH ORGANIZATION.
THE AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Additional Terms. Certain UPS Capital Technology may be subject to additional or different terms and conditions entered into between you and UPS Capital, or otherwise made available by UPS Capital to you, which are hereby incorporated into this Technology Agreement (“Additional Terms”). If there is any conflict between the terms of any Additional Terms and the terms of this Technology Agreement, the terms of such Additional Terms will govern with respect to the applicable UPS Capital Technology.
Please also note that certain UPS Capital Technology may be made available through websites and other platforms that are governed by separate terms and conditions. Such terms and conditions continue to govern your use of such platforms, and if there is any conflict between the terms of the Agreement and any such platform’s terms and conditions, the terms of the Agreement will govern with respect to any UPS Capital Technology.
2. Changes. We may change the Agreement from time to time by notifying you of the changes by any reasonable means. Changes will not apply retrospectively. Your use of the UPS Capital Technology following any change to the Agreement will constitute your acceptance of the change. We may, at any time, modify or discontinue all or part of the UPS Capital Technology, or charge, modify or waive any fees for the UPS Capital Technology.
3. License. Subject to the terms and conditions of the Agreement, UPS Capital hereby grants to you a limited, revocable, non-sublicensable, non-exclusive, non-transferable license to access and use the UPS Capital Technology, solely for your internal business purposes during the term of the Agreement, in accordance with any applicable documentation.
4. Rules of Conduct. In connection with the UPS Capital Technology, you must not:
- Make available any materials that are or may be: (a) failing to respect the rights and dignity of others; (b) defamatory, fraudulent, or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the owner.
- Make available any computer code or other material that is or may be harmful or invasive, or intended to damage or hijack the operation of (or to monitor the use of) any hardware, software, or equipment.
- Use the UPS Capital Technology for any personal (e.g., non-commercial, or non-business) purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful, or harvest or collect information about users of the UPS Capital Technology.
- Interfere with or disrupt the operation of the UPS Capital Technology, including by hacking or defacing any portion of the UPS Capital Technology.
- Restrict or inhibit any other person from using the UPS Capital Technology.
- Exploit any portion of the UPS Capital Technology, except as expressly authorized in the Agreement.
- Reverse engineer, decompile or disassemble any portion of the UPS Capital Technology or any Confidential Information (as defined below), except where such restriction is expressly prohibited by applicable law.
- Remove, obscure or destroy any copyright, trademark, confidential or other proprietary rights notice from the UPS Capital Technology or any Confidential Information.
- Frame or otherwise incorporate any portion of the UPS Capital Technology into any product or service.
- Systematically download and store any data or other material available through the UPS Capital Technology.
- Use any manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather data or other material available through the UPS Capital Technology, or reproduce or circumvent the navigational structure or presentation of the UPS Capital Technology.
5. Access Credentials. You may need to register to use all or part of the UPS Capital Technology. We may reject, or require that you change, any access credentials that you provide to us. Your access credentials are for your personal use only and should be kept confidential; you, and not UPS Capital, are responsible for any use or misuse of your access credentials, and you must promptly notify us of any confidentiality breach or unauthorized use of your access credentials, or your UPS Capital Technology account.
6. User Data. Except to the extent prohibited by applicable law, you hereby grant to UPS Capital and its affiliates a non-exclusive, irrevocable, fully paid, royalty-free, non-sublicensable (except to service providers acting on behalf of UPS Capital or its affiliates), perpetual license to modify and use any information, data, and other material, including personal information, that UPS Capital or its affiliates collect about you, or that you make available in connection with the UPS Capital Technology (“User Data”) for all purposes, including, without limitation, (a) to provide the UPS Capital Technology, (b) for the purposes set forth in the UPS Capital Corporation Privacy Notice, currently available at https://upscapital.com/privacy-notice/, as updated from time to time, (c) to develop or improve the UPS Capital Technology and other products and services, and (d) to provide the UPS Capital Technology and other products and services to UPS Capital’s or its affiliates’ customers. UPS Capital and its affiliates may also collect usage data in connection with your use of the UPS Capital Technology and may use such data for all such purposes (including in combination with other data).
7. California Data. To the extent that any party’s provision of the User Data to the other party under the Agreement is subject to the California Consumer Privacy Act and its implementing regulations (as amended from time to time, “CCPA”), specifically CCPA Section 1798.100(d) (with any such data being referred to as “California Data”), the parties agree that: (a) each party is making the California Data available to the other party only for the limited and specified purposes set forth in the Agreement, and a party will not use California Data received from the other party for any other purpose, except as otherwise permitted by the CCPA; (b) each party will comply with its respective CCPA obligations and will provide the same level of privacy protection to California Data received from the other party as required of businesses under the CCPA; (c) a party may take reasonable and appropriate steps to ensure that the California Data provided by that party is processed by the other party consistent with the first party’s obligations under the CCPA; and (d) each party will notify the other party if it determines that it can no longer meet its CCPA obligations, and each party has the right to take reasonable and appropriate steps to stop and remediate unauthorized use of California Data provided by that party to the other party.
8. Third Party Components. Certain features of the UPS Capital Technology may include or make available access to information, products, services, and other materials made available by third parties (“Third Party Components”). We neither control nor endorse, nor are we responsible for, any Third Party Components or their providers (including any privacy policies or practices). Nothing in the Agreement constitutes a representation or warranty by us with respect to any Third Party Components. We have no obligation to monitor Third Party Components, and we may block or disable access to any Third Party Component through the UPS Capital Technology at any time. YOUR USE OF THIRD PARTY COMPONENTS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY COMPONENTS, AND YOU HEREBY AGREE TO COMPLY WITH SUCH ADDITIONAL TERMS, CONDITIONS AND POLICIES.
9. Feedback. If you provide to us any ideas, proposals, suggestions, testimonials, or other materials (“Feedback”), whether related to the UPS Capital Technology or otherwise, you hereby acknowledge that such Feedback is not confidential, and you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to use and otherwise exploit such Feedback, with or without attribution, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes).
10. UPS Capital’s Proprietary Rights. Except for any license granted in this Agreement and as between the parties, UPS Capital retains all right, title, and interest in and to the UPS Capital Technology, and all copies, improvements, modifications, and derivative works of the UPS Capital Technology, including all intellectual property rights related to the foregoing. All rights not expressly granted to you under this Agreement are reserved by UPS Capital, and no other rights are granted to you by implication or otherwise. Nothing contained in the Agreement should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
11. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE UPS CAPITAL TECHNOLOGY IS MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) UPS CAPITAL DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE UPS CAPITAL TECHNOLOGY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH UPS CAPITAL AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “AFFILIATED ENTITIES”).
While we try to maintain the timeliness, integrity, and security of the UPS Capital Technology, we do not guarantee that the UPS Capital Technology is or will remain updated, complete, correct, or secure, or that access to the UPS Capital Technology will be uninterrupted. The UPS Capital Technology may include inaccuracies, errors and materials that conflict with the Agreement; the Agreement will control in the case of any such conflicts.
12. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) UPS CAPITAL WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT), UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR USE OR DATA, LOSS OF OTHER INTANGIBLES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, UPS CAPITAL WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE UPS CAPITAL TECHNOLOGY, INCLUDING FROM ANY VIRUS; (C) YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE UPS CAPITAL TECHNOLOGY IS TO STOP USING THE UPS CAPITAL TECHNOLOGY; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF UPS CAPITAL FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE USD 10. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH UPS CAPITAL AND THE AFFILIATED ENTITIES.
13. Indemnity. To the fullest extent permitted under applicable law, you agree to defend (using appropriate counsel), indemnify and hold harmless UPS Capital and the Affiliated Entities, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to your use of, or activities in connection with, the UPS Capital Technology (including User Data), or any violation or alleged violation of the Agreement by you. UPS Capital reserves the right to step in and defend any such claim using counsel of its choice, at your expense, if you do not use appropriate counsel or otherwise fail to adequately defend the claim.
14. Confidentiality. “Confidential Information” means the terms of the Agreement, any trade secrets or other confidential or proprietary information within the UPS Capital Technology, and any other information made available by UPS Capital that is identified as confidential, or that a reasonable person would consider confidential. Confidential Information includes the UPS Capital Technology and all Feedback. You will maintain all Confidential Information in confidence, and not disclose any Confidential Information to a third party or use any Confidential Information except as permitted under the Agreement. You will take all reasonable precautions necessary to ensure that Confidential Information is not disclosed by you (or your employees, agents, or users) to any third party, using a degree of care that is at least as protective as the care you use to maintain the confidentiality of your own confidential information of similar importance (and in no case less than a reasonable degree of care). You will immediately notify UPS Capital of any unauthorized access to or disclosure of Confidential Information. The obligations related to Confidential Information in this Section will not apply to information that: (a) is or becomes part of the public domain through no act or omission of yours; (b) was in your lawful possession before receipt from UPS Capital, through no breach of an obligation of confidentiality or other restriction on disclosure; (c) is lawfully disclosed to you by a third party without restriction on disclosure; or (d) is independently developed by you without use of or access to Confidential Information, as shown by written contemporaneous documentation.
15. Termination. The Agreement is effective until terminated. UPS Capital may terminate or suspend your use of the UPS Capital Technology at any time and without notice, for any or no reason, including if UPS Capital believes that you have violated or acted inconsistently with the letter or spirit of the Agreement. Upon any such termination or suspension, your right to use the UPS Capital Technology will immediately cease, and you will immediately return or permanently destroy all Confidential Information in your possession or control. UPS Capital may, without liability to you or any third party, immediately deactivate or delete your access credentials, and all associated accounts and materials, without any obligation to provide any further access to such accounts or materials. Sections 6 and 9–17 will survive any expiration or termination of the Agreement.
16. Governing Law and Jurisdiction.
Except as set forth herein, to the fullest extent permitted by applicable law, the Agreement and any claim, case, or controversy arising out of or relating to the Agreement (whether for breach of contract, tort or otherwise) shall be governed by and construed in accordance with the laws of the State of New York in the United States, excluding (a) its conflict of law principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (d) the Protocol amending the 1974 Convention, done at Vienna, April 11, 1980. THE EXCLUSIVE JURISDICTION FOR ANY CLAIM, CASE, OR CONTROVERSY ARISING OUT OF OR RELATING TO THE AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE) SHALL BE A FEDERAL OR STATE COURT IN ATLANTA, GEORGIA, AND THE PARTIES HEREBY CONSENT TO SUCH EXCLUSIVE JURISDICTION AND IRREVOCABLY WAIVE AND SHALL NOT ASSERT ANY DEFENSES BASED ON LACK OF IN PERSONAM JURISDICTION, IMPROPER VENUE OR INCONVENIENT FORUM. Notwithstanding the foregoing, if and to the extent subsequent separate or ancillary proceedings in another U.S. or foreign court are necessary in order to enforce a judgment of the court in Atlanta, Georgia, or otherwise as is necessary to provide complete relief and full resolution of all issues in dispute, the parties may institute such subsequent separate or ancillary proceedings in any such U.S. or foreign court, and the parties hereby consent to the non-exclusive jurisdiction of such court and hereby waive any defenses therein based on lack of in personam jurisdiction, improper venue or inconvenient forum. Notwithstanding anything herein to the contrary, UPS Capital shall be entitled to interim relief or provisional remedies before any court having jurisdiction. You agree to the admissibility of computer records and electronic evidence in any dispute herein.
If you are a resident of or your registered office is located in the United States of America or Puerto Rico, any dispute arising out of the Agreement, or the breach thereof, shall be governed as set forth in the Annex (Dispute Resolution in the U.S. and Puerto Rico) attached hereto, and in the case of conflict or ambiguity between any provision contained in the body of the Agreement and any provision contained in the Annex, the provision contained in the Annex shall prevail if the Annex applies to you.17. Miscellaneous.
a. Export Control. You may not access or use the UPS Capital Technology from a country or territory that is in a Restricted Territory or otherwise if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the UPS Capital Technology (including to sanctions imposed by the United Nations or the European Union). You must comply with all U.S. or other applicable export and re-export restrictions in the country where you are using the UPS Capital Technology. You will not use the UPS Capital Technology to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, or any equivalent laws or regulations in force in the countries or territories in which you use the UPS Capital Technology. “Restricted Territory” means a country or territory subject to a comprehensive economic sanctions program administered by the U.S. Department of the Treasury, Office of Foreign Assets Control, the United Nations or European Union or to any other general prohibition on the use, exportation, or reexportation of the UPS Capital Technology under applicable sanctions or export control laws.
b. Government End Users. This Section applies if the customer or end user is a Governmental Entity. “Governmental Entity” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any employee or official thereof. For United States (U.S.) federal Governmental Entities, the UPS Capital Technology is “commercial computer software” as defined at 48 C.F.R. § 2.101 and 48 C.F.R. § 252.227-7014(a)(1) and as the term is used in 48 C.F.R. §§ 12.212 and 227.7202, and the related services are “commercial services” as defined in 48 C.F.R. § 2.101. This is in lieu of, and supersedes, any Federal Acquisition Regulations, the Defense FAR Supplement, or other agency supplemental clause or provision that addresses government rights in computer software or technical data. The UPS Capital Technology and related documentation are provided to Governmental Entity customers and end users, for use by the Governmental Entity or on its behalf, subject to the terms of this Agreement and with only those rights as are granted to all other customers and users pursuant to the terms and conditions herein. If any Governmental Entity has a need for rights not conveyed under the terms described in this Section or under this Agreement, it must negotiate with UPS Capital to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement to be effective. If the Agreement fails to meet the U.S Government end user’s needs, and the parties cannot reach a mutual agreement on terms for the Agreement, the U.S Government end user agrees to terminate its use of the UPS Capital Technology and return any software or technical data delivered as part of the UPS Capital Technology, unused, to UPS Capital.
c. Assignment. You cannot assign any of your rights or delegate any of your duties without our prior written consent. Any such assignment or delegation without our prior written consent will be void. We may assign, delegate or transfer all or any part of any Additional Terms or the Agreement without your approval.
d. Waiver and Severability of Provisions. No waiver of any provision of the Agreement will be effective without a written waiver for the specific purpose and scope. By law, you may have certain rights that cannot be limited by a contract like the Agreement. The Agreement is not intended to restrict those rights. If any part of the Agreement is deemed invalid or unenforceable, the rest of the Agreement will remain valid and enforceable to the fullest extent permitted by applicable law.
e. Notice. You can contact us by sending an email with your questions or comments regarding the use of the UPS Capital Technology. Please email us at email@example.com.
f. Language. Except where local law requires otherwise, the controlling language of the Agreement is English, and any translation you receive is solely for your convenience. All correspondence and communications between you and UPS Capital under the Agreement must be in English. If you are a resident of (or your registered office is located in) Canada, then the foregoing two sentences of this Section shall be void and replaced with the following: “The parties declare that they have required that the Agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent qu’elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou l’avenir, soient rédigés en langue anglaise seulement.”
g. Entire Agreement. The Agreement constitutes the entire understanding and agreement between you and us with respect to your access to and use of the UPS Capital Technology.
h. Injunctive Relief. In addition to any other legal and equitable remedies that may be available, UPS Capital is entitled to seek and obtain injunctive relief against any breach or threatened breach by you of any of the obligations set forth in the Agreement, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
i. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the UPS Capital Technology infringe your copyright, you (or your agent) may send to UPS Capital a written notice by mail, e-mail or fax, requesting that UPS Capital remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to UPS Capital a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to the Copyright Agent as follows: By mail to Copyright Agent, UPS Capital, 35 Glenlake Parkway N.E., Atlanta, GA 30328; or by e-mail to firstname.lastname@example.org. The Copyright Agent’s phone number is +1 877-263-8772. We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
ANNEX - DISPUTE RESOLUTION IN THE U.S. AND PUERTO RICO
Binding Arbitration of Disputes
Except as to 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), you and UPS Capital agree that any controversy or claim, whether at law or equity, arising out of or related to the Agreement that arises in whole or in part in the United States or Puerto Rico, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration. You and UPS Capital 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 services provided at the time of a previous version of this Agreement.
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 the terms and conditions in the Agreement. You and UPS Capital agree that their sole relationship is a contractual one governed by the Agreement.
The arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules or, provided that you are an individual consumer and are using UPS Capital’s services for personal (not business) use, the Consumer Arbitration Rules (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 https://www.adr.org. 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 UPS Capital’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 the Agreement 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 and UPS Capital each waives the right to trial by jury. You and UPS Capital further waive the ability to participate in a class, mass, consolidated or combined action or arbitration.
Place of Arbitration/Number of Arbitrators/Costs of Arbitration
Any arbitration will take place in the county where you reside 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, UPS Capital 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 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 this Agreement.
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.
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, and concerning an award between fifteen thousand dollars ($15,000.00) and fifty thousand dollars ($50,000.00), inclusive, UPS Capital shall pay your filing fee under the AAA Rules, provided that you agree that each party 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.
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.
YOU AND UPS CAPITAL ACKNOWLEDGE AND AGREE THAT EACH PARTY WAIVES THE RIGHT TO:
(a) HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST YOU, UPS CAPITAL OR RELATED THIRD PARTIES;
(b) HAVE A COURT, OTHER THAN A STATE COURT OF LIMITED JURISDICTION AS DEFINED ABOVE, RESOLVE ANY DISPUTE ALLEGED AGAINST YOU, UPS CAPITAL OR RELATED THIRD PARTIES;
(c) 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) 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 IN ANY CLASS, MASS, CONSOLIDATED OR COMBINED ACTION OR ARBITRATION FILED AGAINST YOU, UPS CAPITAL AND/ OR RELATED THIRD PARTIES.
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 both you and UPS Capital 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.
Confidentiality of Arbitration
Notwithstanding anything to the contrary in the AAA Rules, UPS Capital and you 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 party, 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 AAA from reporting certain consumer arbitration case information as required by state law.