Terms & Conditions

The following terms and conditions (these “Terms”) apply without exception to all sales by Lift-A-Loft, LLC, a Delaware limited liability company (“Lift-A-Loft”), of goods (the “Goods”) and services (the “Services”) to you (“Buyer”).

1. SOLE TERMS: These Terms and the quotation provided by Lift-A-Loft (the “Quote”) to which these Terms are attached or incorporated by reference, or with which these Terms are otherwise provided (the “Quote”), which Quote is incorporated herein and part hereof by reference (collectively, this “Agreement”), comprise the entire agreement between Lift-A-Loft and Buyer, and supersede all prior or contemporaneous understandings, agreements and communications, both written and oral. This Agreement supersedes and prevails over any of Buyer’s terms and conditions of purchase, regardless of whether or when Buyer has submitted such terms and conditions, which Lift-A-Loft hereby expressly rejects. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms.

• PRICES: Buyer shall purchase the applicable Goods and Services from Lift-A-Loft at the prices (the “Prices”) set forth in the Quote. The Prices are quoted without consideration of any applicable taxes, duties or charges imposed by any governmental authority, which are additional and shall be paid by Buyer. Unless otherwise specified in the Quote, the Prices are F.O.B. shipping point (Lift-A-Loft’s facility Muncie, Indiana) and all freight and shipping costs shall be Buyer’s responsibility. The Prices are subject to increase from time to time resulting from applicable surcharges or other cost increases, which may be made effective by Lift-A-Loft without prior notice to Buyer. If Buyer claims exemption from any taxes, Buyer must provide Lift-A-Loft with a valid and properly completed tax exemption certificate (or other documentation acceptable to the applicable taxing authority) prior to the time of sale or shipment, as required by applicable law. The exemption certificate must be applicable to the jurisdiction in which the Goods are delivered or Services are performed. Lift-A-Loft shall have no obligation to honor any claimed exemption unless and until a valid exemption certificate is received and approved by Lift-A-Loft. If a valid exemption certificate is not provided, Lift-A-Loft may charge and collect applicable taxes.

• PAYMENT: Payment in full is due per the terms listed on the Quote, and all payments shall be made in U.S. Dollars. A one and one-half percent (1 ½%) per month service charge will be added to all past due payments. Buyer will be responsible for, and promptly reimburse Lift-A-Loft for, all collection costs, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available to Lift-A-Loft, Lift-A-Loft may suspend the delivery of Goods and performance of Services if Buyer fails to make any payments when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Lift-A-Loft.

• DELIVERY AND RISK OF LOSS: Delivery dates are approximate. Buyer shall have the right to specify the date of delivery, but in no event shall the date be absolute or binding on Lift-A-Loft, unless specifically agreed to by Lift-A-Loft in writing. Delivery of the Goods shall be F.O.B. shipping point (Lift-A-Loft’s facility Muncie, Indiana), unless otherwise specified in the Quote, with all title, risk of loss and damage to the Goods passing to Buyer upon Lift-A-Loft making the Goods available for shipment from Lift-A-Loft’s facility. Lift-A-Loft shall not be liable for any delays, loss or damage in transit, and any claim therefor shall be made to the carrier by Buyer immediately upon receipt of the shipment. All claims of damage or shortage must be clearly documented by Buyer on bills of lading at the time of Buyer’s receipt of the Goods, and, without limitation to any of the foregoing, must be reported immediately to the carrier and Lift-A-Loft.  

• CANCELLATIONS: If Buyer terminates this Agreement (or any portion thereof) or fails to accept delivery, Buyer shall promptly pay Lift-A-Loft for: (a) all direct and indirect costs incurred or committed to by Lift-A-Loft prior to Lift-A-Loft’s receipt of written notice from Buyer of such termination and (b) a reasonable allowance for prorated expenses and anticipated profits consistent with industry standards.  Any deposit money paid by Buyer to Lift-A-Loft prior to Buyer’s termination of this Agreement will be applied to the above-described charges, with any remaining portion thereof to be retained by Lift-A-Loft. The foregoing is without limitation to any other rights or remedies of Lift-A-Loft.

• DIRECTIONS FOR USE: Due to the potential danger from the misuse of the Goods sold under this Agreement, Buyer agrees that the Goods must be used in accordance with the applicable manufacturing specifications, instructions and manuals issued by Lift-A-Loft (collectively, the “Directions for Use”) and for the purpose stated in the Directions for Use. 

• INSTALLATION AND INDEMNITY: If Buyer purchases any Goods that require installation or erection, Buyer shall, at its sole expense, make all arrangements necessary to install, erect and operate the Goods and install the Goods in accordance with any Directions for Use. Buyer shall indemnify, defend and hold Lift-A-Loft and its affiliates and their respective employees, officers, directors, managers and agents harmless from and against any and all claims, demands, proceedings, losses, liabilities, damages, costs and expenses (including but not limited to reasonable attorneys’ fees and other costs of defense) arising from or otherwise connected with any failure by any person other than Lift-A-Loft to properly install, erect, repair, operate or use the Goods.

• ACCEPTANCE: All Services shall be inspected and approved by Buyer immediately upon completion. Buyer’s failure to provide written notice of any defects in performance as soon as reasonably practicable will constitute acceptance of Lift-A-Loft’s performance of the Services, shall relieve Lift-A-Loft of any further obligations with respect thereto, and shall waive any right or remedy of Buyer with respect to the Services or Lift-A-Loft’s performance of the Services.

• WARRANTY: Lift-A-Loft warrants to Buyer (and to no other person, except that if Buyer is a Lift-A-Loft authorized dealer, then to the purchaser of the Goods from such dealer) the Goods in accordance with the terms set forth on the Certificate of Warranty, attached hereto as Exhibit A, subject to the exclusions and limitations set forth herein (the “Certificate of Warranty”). Such warranties exclude (and Lift-A-Loft shall have no liability with respect to) any Goods (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, or use, operation, connection, installation or adjustment in a manner contrary to the Directions for Use, or improper testing, installation, erection, storage, handling or maintenance, whose serial number has been altered, effaced or removed, or repaired or altered in a way so as to injure their stability or reliability (as determined in Lift-A-Loft’s reasonable discretion) (ii) reconstructed, repaired,  modified or altered by anyone other than Lift-A-Loft, (iii) used with any product that is defective or that has not been previously approved in writing by Lift-A-Loft, or (iv) to the extent such Goods (or any components thereof) are manufactured or provided by any person other than Lift-A-Loft. In addition, Lift-A-Loft’s warranty does not cover maintenance items, including but not limited to lubricating greases, oils, oil filter elements, and adjustments, such as for switches or valves, or for items that show evidence of transportation/freight damage neglect, overload, abuse, accident, or inadequate maintenance. 

THE WARRANTIES EXPRESSLY SET FORTH IN THE CERTIFICATE OF WARRANTY ARE IN LIEU OF (AND LIFT-A-LOFT EXPRESSLY DISCLAIMS) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SERVICE WARRANTY, WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF NON-INFRINGEMENT, IN EACH CASE WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY LIFT-A-LOFT, OR ANY OTHER PERSON ON LIFT-A-LOFT’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THE CERTIFICATE OF WARRANTY.

1. EXCLUSIVE REMEDIES: During the applicable warranty period (a) Buyer shall notify Lift-A-Loft, in writing, of any alleged warranty claim within 10 days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable warranty period), (b) Buyer shall ship the defective Goods (or the defective component thereof) within 30 days of the date of its notice to Lift-A-Loft, at Buyer’s sole expense and risk of loss and damage, to Lift-A-Loft’s facility located at 9501 South Center Road, Muncie, Indiana 47302-9443 for inspection and testing by Lift-A-Loft, (c) if Lift-A-Loft’s inspection and testing reveals, to Lift-A-Loft’s reasonable satisfaction, that such Goods (or the relevant component) do not conform with the warranty set forth in the Certificate of Warranty, Lift-A-Loft shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section 10), either (i) repair or replace such Goods, or (ii) credit or refund the Price of such Goods or defective component less any applicable discounts, rebates, or credits if Lift-A-Loft exercises its option to repair or replace, Lift-A-Loft shall, after receiving Buyer’s shipment of such Goods (or the relative component), ship to Buyer the repaired or replacement Goods or component in accordance with the terms and conditions set forth in Section 4, above. Buyer has no right to return for repair, replacement, credit or refund any Goods except as set forth in this Section 10. If field repair or parts replacement is necessary on warranted Goods, Lift-A-Loft will supply the parts. Lift-A-Loft will also supply labor, or reimburse Buyer for direct labor cost incurred, for said repairs.  Prior approval is required for warranty work along with Buyer labor rate. Approval shall be requested in advance submitted on a Lift-A-Loft Warranty Claim Form. The warranty period for any repair or replacement Goods (or the relevant component) does not extend beyond the original warranty period for the original Goods. THIS SECTION 10 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND LIFT-A-LOFT’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN THE CERTIFICATE OF WARRANTY.

1. TECHNICAL AND PROPRIETARY INFORMATION: All non-public, confidential and/or proprietary information of Lift-A-Loft (the “Information”), including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Lift-A-Loft to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed, copied or otherwise used, including, without limitation, to reverse engineer, disassemble, decompile or design around Lift-A-Loft’s confidential or proprietary information, in each case unless authorized in advance by Lift-A-Loft in writing. Upon Lift-A-Loft’s request, Buyer shall promptly return all documents and other materials received from Lift-A-Loft. Lift-A-Loft shall be entitled to injunctive relief for any violation of this Section 11. This Section 11 does not apply to information that is (a) in the public domain or (b) rightfully obtained by Buyer on a non-confidential basis from a third party. For the avoidance of doubt, any intellectual property and other Information supplied by Lift-A-Loft shall be and remain the sole and exclusive property of Lift-A-Loft and/or its licensors (as applicable), and no title to, or ownership of, or other interest therein is transferred to Buyer.

1. LIMITATION OF LIABILITY: In no event shall Lift-A-Loft be liable for any special, indirect, incidental, consequential, exemplary, enhanced or punitive damages arising out of or relating to this agreement, including, without limitation, damage to other property caused by any defect in the Goods, USE OF DEFECTIVE EQUIPMENT, inconvenience, loss of goodwill, loss of profits or revenue, loss of use of the Goods, cost of substitute products or modifications, downtime costs, other equipment costs or claims of any party dealing with Buyer, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER LIFT-A-LOFT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY UPON WHICH SUCH DAMAGES ARE BASED (WHETHER BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE). IN NO EVENT SHALL LIFT-A-LOFT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EXCEEDTHE TOTAL PRICE PAID TO LIFT-A-LOFT BY BUYER UNDER THIS AGREEMENT WITH RESPECT TO THE APPLICABLE GOODS AND SERVICES.

1. CHANGE IN PRODUCT DESIGN: Lift-A-Loft reserves the right at any time and without notice to Buyer to change, discontinue or modify the design and construction of any of its Goods and to substitute material of equal, or superior to, that originally specified.

1. SPARE PARTS: Lift-A-Loft shall determine in its sole discretion the period of time for which it supplies spare parts manufactured by it with respect to any of the Goods; provided however, in no event shall Lift-A-Loft be obligated to supply any such spare parts more than ten (10) years after the time at which the Goods are made available for shipment at Lift-A-Loft’s facility. Lift-A-Loft’s supply of any such spare parts is subject in all cases to availability by Lift-A-Loft.

1. FORCE MAJEURE: Neither party shall be liable or responsible to the other party, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following events (“Force Majeure Events”): (a) acts of God, (b) flood, fire, earthquake, pandemics, epidemics or explosion, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, (d) order or action by any governmental authority or requirements of law, (e) embargoes or blockades in effect on or after the date of this Agreement, (f) national or regional emergency, (g) strikes, labor stoppages or slowdowns, or other industrial disturbances, (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials and (i) other events beyond the control of the Impacted Party.

1. Applicable Law and Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of Indiana without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts of the State of Indiana. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SALE OF GOODS OR SERVICES BY LIFT-A-LOFT.

1. AMENDMENTS: No amendment, alteration or modification of any of the provisions of this Agreement shall be binding unless agreed in writing by Lift-A-Loft.

1. HEADINGS: The headings used in this Agreement are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provision hereof.

1. Assignment: Buyer’s rights, interests or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Lift-A-Loft. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

• Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties.

• No Third-Party Beneficiaries: Except as otherwise provided in Section 7, above, this Agreement benefits solely the parties to this Agreement and nothing herein, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

• Notices: All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).

• Severability: If any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

SURVIVAL: Provisions of this Agreement which by their nature survive shall remain in full force and effect after termination or expiration of this Agreement, including, without limitation, Sections 7, 10, 11 and 12.