(Last updated: 12/1/2022)
Lift Truck Center, Inc. Quotation Terms and Conditions
As used in these terms and conditions (these “Terms”), “Seller” means Lift Truck Center, Inc., “Customer” means the person to whom this Quotation is given as listed in the Quotation, and “Equipment” means the good(s) specified in the Quotation (as modified below). All other capitalized terms are defined in the Quotation or below. “Quotation” means each quotation provided by Seller to Customer in connection with the sale of Equipment or Services on or after the effective date of these Terms. “Services” means the services specified in the Quotation.
1. Customer’s Offer to Purchase. By signing the Quotation Customer makes an offer to purchase the Equipment subject to these Terms and Conditions. The Quotation is only a quotation and not an offer to sell the Equipment.
2. Acceptance by Seller. Seller is not obligated to accept Customer’s offer to purchase the Equipment. Seller will accept Customer’s offer, if at all, on the earliest of when (a) Seller ships the Equipment, or (b) acceptance by the signature of Seller’s authorized employee. Seller reserves the right to make partial shipment, and partial shipment is acceptance of only the Equipment shipped, which will be confirmed with Customer prior to shipment. Notwithstanding the foregoing, Seller’s acceptance of Customer’s offer is expressly conditioned on Customer’s assent to all of the terms of the Agreement.
3. Agreement. When Customer’s offer is accepted by Seller, the following is the complete agreement (the “Agreement”) of the parties: (1) any applicable National Account Terms (defined below), (2) these Terms, (3) the information in the Quotation referenced in these Terms, (4) Warranty Certificates (as defined below), if any, and (5) any other applicable terms and conditions incorporated in these Terms. When in conflict, priority is given the documents in the foregoing order. Once an agreement is formed, it may not be cancelled except as provided in these Terms. No prior or contemporaneous proposals, statements, Customer purchase order, course of dealing, or usage of the trade will be part of the Agreement, which Seller expressly rejects. The Agreement may not be amended except in writing signed by Seller’s authorized employee.
4. National Account Terms. Customer may be subject to additional terms if Customer has an account with a national account originator ("NAO") recognized by Seller. Modifications to National Account Terms must be coordinated between the Customer and the NAO, whether or not the Customer or a third party company is purchasing the Equipment. Modifications to National Account Terms may not be negotiated with Seller. "National Account Terms" means the terms which Seller has agreed with the applicable NAO to provide to Customer.
5. Credit Terms. If Customer has indicated in the Quotation payment by financing, including without limitation an operating lease, such financing may be provided not by Seller but by an unaffiliated, third-party creditor, subject to such creditor’s credit approval at creditor’s discretion, and separate terms and conditions, if applicable. Customer is subject to the Agreement whether or not they have completed a credit application. For the avoidance of doubt, any leasing company or financing company acting on behalf of Customer, or which becomes the purchaser under this Agreement, will be bound by the same terms and conditions that Customer is bound under this Agreement.
6. Maintenance Terms. If Customer selects a maintenance program for the Equipment in the Quotation, separate terms and conditions are applicable and those separate terms and conditions, as well as any maintenance agreement entered into between Customer and Seller, are incorporated in this Agreement. Seller will not be bound to any maintenance agreement until it signs such agreement. If the parties do not enter into a maintenance agreement for any reason (even if selected on the Quotation), it will not affect the validity and enforceability of the other provisions of this Agreement.
7. Conditions on Performance. Seller’s obligations are subject to (a) Seller’s on-going credit review and approval of Customer, (b) Seller’s on-going determination that Customer and the Quotation are in compliance with all applicable laws, regulations, and Seller’s compliance policies, and (c) the receipt and availability of Equipment and applicable parts and supplies from Seller’s suppliers in sufficient quantities. If Seller determines in good faith at any time that there is credit and/or compliance issues with the Quotation that have not been satisfactorily addressed, or that adequate quantities of the applicable Equipment, parts or supplies, Seller may cancel the Agreement upon written notice to the Customer. If Seller is not able to provide to Customer all Equipment provided in the Quotation for delivery within a reasonable time as determined by Seller, then Seller may cancel the agreement with respect to the Equipment it is unable to provide, without liability or obligation to Customer, and may fulfill this Agreement with respect to the remaining pieces of Equipment covered by the Quotation.
8. Equipment. Any time before delivery, Seller may substitute the Equipment stated in the Quotation for other equipment with the same or better specifications at no additional charge to Customer, which substitute will become the Equipment without prior approval from Customer. Except as provided in the previous sentence, Seller may substitute equipment which is substantially the same as the Equipment stated in the Quotation, only upon Customer’s written approval.
9. Price. The price of the Equipment will be as stated in Seller’s Quotation except as provided in this Section. Customer acknowledges that the price stated in Seller’s Quotation cannot be guaranteed, and may change after the Quotation is provided, without any liability to Customer. Seller will notify Customer of any increase in the price before Customer will be obligated to accept delivery of the Equipment. Customer may terminate this Agreement with respect to any Equipment which it refuses to purchase as a result of any increase in the price of the Equipment.
10. Trade-In. If the Quotation states credit for equipment accepted as a trade-in (“Trade-In”), Customer agrees to sell such Trade-In to Seller upon receipt by Seller. Customer represents and warrants that at the time of delivery by Customer: (a) the Trade-In is in materially the same condition, except for ordinary wear and tear, as at the time that Seller inspects the Trade-In, (b) Customer is the sole owner of the Trade-In with full authority to sell it to Seller, and (c) the Trade-In is free of all liens, claims, and encumbrances of any type or nature. Sale of the Trade-In is subject to Seller’s acceptance after inspection. If the Trade-In is not in acceptable condition as solely determined by Seller, Seller may reject the Trade-In or reduce the credit given by an equitable amount, and Customer will immediately pay to Seller any excess of Trade-In credit already applied. If the purchase under the applicable Quotation is cancelled, and if Seller and Customer agree, Seller may purchase the Trade-In for an amount equal to the credit that Customer would have been entitled to, and subject to the other terms of this Section.
11. Taxes. Unless expressly stated otherwise in the Agreement, prices do not include and Customer will be solely responsible for payment of any sales, use, gross receipts, excise, value-added, or other taxes or imposts, however described, arising out of or related to the Agreement, the Equipment, or Trade-In and all interest and penalties assessed thereon (“Taxes”), other than taxes on Seller’s net income. Customer will indemnify Seller for all Taxes. If Customer claims a tax exemption, Customer must provide a current tax exemption certificate acceptable to Seller and the relevant taxing authority.
12. Payment. Payment of the price, Taxes, and other costs and expenses specified in this Agreement, less amount of any Trade-In credit, is due at such time(s) and in such amount(s) as stated in Seller’s written acceptance or if not so stated, in the Quotation. If no payment terms are specified, or unless otherwise agreed to in writing, Customer will pay Net 10 days from factory shipment on new equipment, and Net due upon delivery for new stock inventory or used equipment. In addition to any other remedies, a late payment fee will be charged on all amounts past due until paid in full at 1.5% per month (or highest lawful rate, if lower), together with all costs of collection and attorneys’ fees. If payment is made by credit card, Customer agrees to pay in accordance with its agreement with the card issuer and within the acceptable transaction amount as determined by Seller. Seller reserves the right to limit the amount Customer may pay by credit card, and Seller may require Customer to pay any applicable credit card processing fees to the extent permitted by law.
13. Security Interest. Customer grants Seller a purchase money security interest in the Equipment and all attachments, accessions, proceeds, and replacements thereto until Seller receives full payment of all amounts owed under the Agreement. Customer will sign and deliver to Seller a financing statement and any additional documents Seller may request to perfect this security interest, and Customer irrevocably appoints Seller its attorney-in-fact to execute any such documents should Customer refuse to so sign and deliver any such document. Upon Customer’s breach of any term of this Agreement, and without any liability of any kind to Customer, Seller may enter onto Customer’s premises and remove or disable the Equipment, or may disable the Equipment remotely using telemetry or other technological means. If removed, Seller may use, sell, or lease the Equipment. The remedies stated herein are in addition to any other remedies available to Seller.
14. Delivery and Acceptance. All delivery dates are estimates only. Customer is responsible for the cost of freight and shipping insurance. All products are sold F.O.B. shipping point, unless otherwise stated in the Quotation. If delivery is delayed due to unavailability of Customer’s facilities or any other cause, Customer hereby requests and authorizes Seller to store the Equipment or ship the Equipment to storage of Seller’s choosing. Customer will pay Seller for all storage-related charges, including insurance and shipping costs. One business day after delivery to Customer (or at the time of Customer picks up the Equipment from Seller or the manufacturer), Customer will inspect the Equipment using non-harmful methods, and unless Customer provides written notice to Seller rejecting the Equipment as a result of a defect (and such notice identifies the defect), the Equipment will be deemed irrevocably accepted upon the earlier of (a) two business days after the Equipment was delivered to, or picked up by Customer, or (b) actual use by Customer. Damage may occur to the Equipment after it is delivered to the carrier. It is solely Customer’s responsibility to determine whether the Equipment is damaged prior to accepting it from the carrier. Seller is not responsible for freight damage unless the Equipment is shipped directly from Seller to Customer. If the products are damaged by the carrier, it is solely Customer’s responsibility to address the damage with the carrier, except for shipments made by Seller to Customer from Seller’s facility or the factory, which will be Seller’s responsibility to address with the freight carrier.
15. Warranty and Disclaimer. If provided with this Agreement or when delivered, the original equipment manufacturer (“OEM”) for the Equipment (and not Seller) may provide the limited warranty for new Equipment and Seller (not the OEM) may provide a limited warranty for qualifying used Equipment, in each case set forth on the pre-printed warranty certificate corresponding to the Equipment, or other electronic or physical document (“Warranty Certificate”), subject to the terms, conditions, and limitations set forth on the Warranty Certificate. Although Seller may provide a limited warranty for qualifying used Equipment, Seller does not provide a warranty for all OEMs or all Equipment. The remedies provided in the Warranty Certificate are Customer’s sole remedies arising out of or related to the Equipment, its condition, or operation, and OTHERWISE ALL EQUIPMENT IS PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, OR COVENANTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. Although Seller may provide warranty work for some Equipment, it does not provide warranty work for all Equipment, nor for all components of each piece of Equipment.
16. Confidentiality. This Agreement, including without limitation, prices and all of the terms and conditions, are confidential and proprietary to Seller. Customer must use reasonable measures to safeguard this information and may not disclose this information to any person outside of Customer. If Customer breaches or threatens to breach this Section 16, Seller would not be adequately compensated by money damages alone; therefore, Seller is entitled to injunctive and other equitable relief for the breach or threatened breach of this Section 16.
17. Limitation of Liability. SELLER’S LIABILITY FOR ANY CLAIM OF ANY KIND, WHETHER ARISING OUT OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, THE PERFORMANCE OR BREACH THEREOF, OR FROM THE EQUIPMENT, PARTS, COMPONENTS, MATERIALS, OR SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT WILL IN NO CASE EXCEED THE TOTAL PRICE OR COSTS PAID TO SELLER (LESS EXPENSES AND CREDITS) FOR THE EQUIPMENT THAT GIVES RISE TO THE CLAIM. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF USE OR DATA, OR COST OF SUBSTITUTE PRODUCTS OR SERVICES.
18. Limitation of Actions. No action may be maintained by Customer against Seller unless written notice of the same is delivered by Customer to Seller within thirty (30) days after the event complained of first becomes known, but in no case may Customer maintain an action against Seller unless the same is brought within 1 year after the cause of action accrues.
19. State Law Exclusion. The laws of some states do not permit limitations on certain warranties or their remedies. If such laws apply, the foregoing exclusions and limitations are amended only to the extent required by said laws, if applicable.
20. Assignment and Binding Effect. Customer may not assign its rights or obligations under this Agreement, and any attempted assignment is void. This Agreement will benefit and be binding upon each of the parties and their respective heirs, administrators, executors, personal representatives, and permitted successors and assigns. Except to the extent prohibited by law, no third party will be the beneficiary to any of the rights or obligations hereunder (including but not limited to, warranty obligations).
21. Force Majeure. Notwithstanding anything contained herein, Seller will have no obligation or liability and will not be considered in default for its failure or delay due to (a) any cause not reasonably within the control of Seller including, but not limited to fire, explosion, riot, acts of war or terror, civil disturbances, acts of God, floods, earthquakes, hurricanes, tornadoes, and casualties similar in nature to the foregoing, strikes, lock-out, and other labor disturbances, or (b) delays or lack of sufficient quantities of Equipment, parts or supplies, caused by shippers, vendors, or suppliers of Seller, or destruction or significant damage to the Equipment. Should events occur which would give rise to Customer’s claim that Seller is in default, Customer will first give Seller 30 day’s written notice of its claim during which time Seller may cure any claimed default and incur no liability therefor.
22. Additional Remedies, Further Assurances. No failure or delay by Seller to exercise any right or remedy will operate as a continuing waiver. Additionally, Customer will be liable for all damages, costs, expenses (including attorneys’ fees) incurred or to be incurred by Seller by reason of the occurrence of any breach or threatened breach of this Agreement, including the exercise of Seller’s remedies thereto, and all incidental and consequential damages. Seller may off-set against any amount owed by Seller to Customer, any amount Customer owes to Seller, whether arising under this Agreement or any other agreement between Customer and Seller.
23. Notices. Any notices related to claims, breach, termination, or disputed debts (including instruments tendered in full satisfaction of a debt) hereunder must be in writing and personally delivered or mailed, by certified mail, return receipt requested, and addressed to Seller at Seller’s address listed in the Quotation and to Customer at: the Customer’s address in the Quotation, the address where invoices are sent, any address of any of Customer’s places of business, or where Customer may be served by legal process. All other notices required or allowed hereunder must be in writing and sent by reasonable means, including to firstname.lastname@example.org for Seller and the email address designated on the Quotation for Customer.
24. Interpretation. Headings and captions used in the Agreement are for the parties’ convenience, do not form a part of, and will not be used to construe the Agreement. No consideration will be given to the fact or presumption that one party had a greater or lesser hand in drafting this Agreement. Unless specified otherwise, all days are calendar days.
25. Choice of Law, Forum. This Agreement will be governed by the laws of the State of Kansas ignoring rules on conflicts of law. Any dispute arising out of or related to the Agreement will be brought exclusively in a court sitting in Sedgwick County, Kansas; but, unless Customer is a “consumer” within the meaning of the Kansas Consumer Protection Act (“KCPA”), the provisions of the KCPA will not apply to this Agreement or the parties. Customer represents and warrants to Seller that it is purchasing the Equipment for business uses, and not for personal or household uses.
26. Dispute Resolution and Binding Arbitration.
a. CUSTOMER AND SELLER HEREBY GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF IT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN SELLER AND CUSTOMER ARISING FROM OR RELATING IN ANY WAY TO CUSTOMER’S PURCHASE OF THE EQUIPMENT, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
b. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
c. Customer may elect to pursue its claim in small-claims court rather than arbitration if it provides Seller with written notice of its intention do so within 60 days of its purchase. The arbitration or small-claims court proceeding will be limited solely to Customer’s individual dispute or controversy.
d. Customer agrees to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR SELLER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
e. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
27. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms. The severed provision will be replaced by the court by a legal, valid, and enforceable provision that is as near as possible to the original intent of the parties.
28. Entire Agreement. The Agreement will be deemed the final and integrated agreement between Customer and Seller on the matters contained in the Agreement.
29. UL Ratings, Functionality and Trained Operators. Customer acknowledges that it is solely responsible for determining independently or with its insurer, what UL ratings are required for its use of the Equipment. Customer acknowledges that Seller has advised Customer that (1) UL ratings can be voided as a result of any alteration or modification to Equipment after delivery to Customer, or when factory ordered in conjunction with specific options or components, and (2) that capacity ratings change and are reduced as the Equipment is lifted to different heights or operated under different circumstances, when equipped with attachments, and with various load sizes and distributions of weight. Customer understands that it is solely their responsibility to provide an operator trained in compliance with all OSHA rules and regulations and all other applicable laws for each piece of Equipment. Customer acknowledges that Customer is solely responsible for determining who is adequately trained and qualified to operate its equipment, even if such persons receive training from Seller. Any operator training provided by Seller may be subject to additional terms and conditions.