Terms of Use – Lofty Marketplace
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Terms of Use

 

Terms of Use

Last Updated: November 3, 2016

Hi, and welcome to Lofty.com!

PLEASE READ THESE TERMS OF USE (THE “TERMS OF USE” OR “AGREEMENT”) CAREFULLY BEFORE USING THE WEBSITE LOFTY.COM (THE “SITE”) BECAUSE THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND THE OWNER AND OPERATOR OF THE SITE, AUCTION MOBILITY, LLC (D/B/A LOFTY) (“LOFTY,” “WE,” “US” OR “OUR”). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS WHICH GOVERN YOUR USE OF THE SITE AND OF THE CONTENT (AS DEFINED BELOW) AND THE SERVICES AND PRODUCTS MADE AVAILABLE ON OR THORUGH THE SITE (COLLECTIVELY, THE “SERVICES”). BY BROWSING, ACCESSING OR OTHERWISE USING THE SERVICES IN ANY MANNER, YOU HEREBY ACCEPT AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, (1) THE TERMS OF USE, (2) THE TERMS & CONDITIONS OF LOFTY’S PROFESSIONAL SELLER PROGRAM (THE “PROFESSIONAL SELLER AGREEMENT”), AND (3) THE PRIVACY POLICY (http://www.lofty.com/pages/privacy-policy) FOR THE SITE (THE “PRIVACY POLICY”). IF YOU DO NOT AGREE TO THESE TERMS OF USE, THE PROFESSIONAL SELLER AGREEMENT, OR THE PRIVACY POLICY, PLEASE DO NOT USE THE SITE AND/OR SERVICES AND EXIT NOW. 

Your Ability to Accept this Agreement. You affirm that you are more than eighteen (18) years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.

Updates and Revisions to the Terms of Use. Please review the Terms of Use periodically. We reserve the right, in our sole discretion, to update or revise these Terms of Use at any time. In the event of any such update or revision, we will change the “Last Updated” date indicated above. Such updates or revisions shall become effective immediately upon the posting thereof. YOUR CONTINUED USE OF THE SITE FOLLOWING THE POSTING OF UPDATES AND/OR REVISIONS TO THE TERMS OF USE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH UPDATE AND/OR REVISED TERMS OF USE. The most current version of the Terms of Use can be accessed at any time by selecting the Terms of Use link on the bottom of the home page for the Site.

  1. General

We believe in transparency and professionalism.  You shall only use the Site in strict compliance with these Terms of Use and all applicable laws, rules and regulations (collectively, “Laws”). All calls, emails and other communications between you and Lofty may be recorded. Should you buy or sell any object on the Site, you agree that you will not hold Lofty or any members of our network responsible for later remorse about the sale price paid or received.  

  1. Privacy Policy

By using the Site, you hereby agree to be bound by Lofty’s Privacy Policy. A copy of the Privacy Policy that applies to the collection, use, disclosure and other processing of personal information by Lofty is located at http://www.lofty.com/pages/privacy-policy. You consent to any personal information we may obtain about you (either via the Site, by email, telephone or any other means) being collected, stored and otherwise processed in accordance with the terms of the Privacy Policy. Lofty may update its Privacy Policy from time to time, in its sole discretion, and post an updated version of the notice at the website address provided above.

  1. Lofty Accounts

You may establish a Lofty account on the Site. At a minimum, enrollment requires you to (i) indicate agreement to these Terms of Use and Privacy Policy, (ii) provide contact information and identification details, and (iii) submit any other form of authentication required as part of the enrollment process, in Lofty’s sole discretion. You agree to accept responsibility for all activities that occur under your account. You are responsible for maintaining the confidentiality of your account and password, and for restricting access to your account. 
You shall not use your Lofty account for any purpose competitive to Lofty. You will notify Lofty immediately by emailing http://www.lofty.com/pages/contact of any unauthorized use of your Lofty account or the Site known to you, whether by you or a third party. 
You may cancel your Lofty account at any time by contacting Lofty customer support. Lofty may terminate your account and refuse any and all current or future use of the Sites or any portion thereof, (i) in order to comply with applicable Law, (ii) if you provide any information that Lofty determines, in its sole discretion, to be untrue, inaccurate, not current or incomplete (or if the information becomes untrue, inaccurate, not current or incomplete), (iii) if Lofty determines, in its sole discretion, that you are using your Lofty account in a manner not permitted by these Terms of Use, the Professional Seller Agreement, or the Privacy Policy, or (iv) in other circumstances, as Lofty deems appropriate in its sole discretion. 

  1. Buying Products on the Site

By making an offer to purchase a product, you irrevocably agree to pay the Total Purchase Price. The “Total Purchase Price” consists of (i) the agreed price of the product (the “Purchase Price”), which is either (a) the listed price on the Site for a Buy Now purchase, or (b) the negotiated price agreed by both Buyer and Seller (and mediated by Lofty) for a Make an Offer purchase; (ii) shipping and insurance fees (represented in Lofty's Shipping Quote, see below); and (iii) all Taxes as set forth below.  
By purchasing products and services on our Site, you agree to pay us, through our third party payment processor, all charges at the prices then in effect for the purchased products and services in accordance with the applicable payment terms and you authorize us, through our third party payment processor, to charge your chosen payment provider for amount of the Total Purchase Price. 
A Shipping Quote will need to be determined for each item sold through the site. Because Lofty is a peer-to-peer marketplace and does not, as a rule, maintain physical possession of listed items in a centralized location, the Shipping Quote for each item purchased will be determined by the particular logistics of shipping the item in question from the Seller's location to the Buyer. The Shipping Quote provided by Lofty represents a competitive price for all shipping and insurance fees for a purchased item. By purchasing an item through the Site using the Buy Now option, the Buyer acknowledges that the Shipping price listed at Checkout is an estimate, and agrees to pay additional shipping if Lofty's Shipping Quote is determined to exceed the default estimate. The Buyer is responsible for paying the full amount of the provided Shipping Quote, or the property will not be released to the Buyer. In the event that the actual Shipping Quote is greater than Lofty’s estimated default shipping and insurance fees, the Buyer shall have the right to cancel the purchase or agree to pay the additional shipping and insurance fees. 
Lofty has the right to cancel any sale for any reason, including, but not limited to (i) Lofty suspects the buyer is fraudulent; (ii) the seller has (or Lofty suspects the seller has) already sold the product for sale elsewhere; or (iii) Lofty determines that the product is not authentic after an in-person inspection by Lofty. 
You are entirely responsible for paying all sales and use taxes, VAT, Internet sales tax, export and/or import taxes and duties, and all transactional taxes or levies related to the purchase of each product purchased (collectively, “Taxes”). You shall pay the Taxes Lofty is required to collect, but failure of Lofty to collect the Taxes will not relieve your obligations regarding same. It is your responsibility to establish and/or document any applicable exemption from said Taxes. You must determine, pay, collect, remit and report to the appropriate taxing authority the correct amount of all export and/or import taxes or duties payable upon export of the product from its country of origin and import into the United States or any other country.

  1. Product Shipping

Lofty may request shipping/insurance quotes from several shipping companies and, at its discretion, will select the shipping provider it deems fit for the specific delivery. You hereby agree that Lofty may pass along your contact information to shipping partners in order to communicate drop-off locations, dates, times, and any other questions a shipper may have with respect to a product that is being shipped to you. In the event that you have any shipping/insurance preferences, please contact Lofty and it will use reasonable efforts to accommodate your shipping request. Notwithstanding anything above, Lofty, in its sole discretion, shall be the final deciding party regarding any and all shipping/insurance arrangements. 

  1. Insurance Claims
I. Lost Package 
In the event that an item is irretrievably lost in transit (“Lost Package”), Lofty will initiate a Lost Package claim with the shipping vendor for the full purchase price of the item.
Once Lofty has received confirmation from the shipping vendor that a claim has been initiated (including a claim number), Lofty will refund the Buyer the full purchase amount. 
Lofty will pay the Seller the net proceeds due (which is equivalent to the sale price less Lofty’s commission) once the shipping vendor has paid the claim. 
II. Total Loss 
In the case that an item is damaged beyond repair while in transit to the Buyer, the item will be deemed a “Total Loss”. The Buyer must notify Lofty of the damage as soon as possible. Lofty will require the Buyer to thoroughly document the overall condition of the item and the packing material. Photographs should clearly represent any damage to the item and the condition of all packing materials. No parts of the item or packing materials should be discarded and the item should be kept at the original delivery address. 
Once Lofty has received photographic documentation of the reported damage, Lofty will open an insurance claim with the shipping vendor for the full purchase price of the item. 
As part of standard procedure for processing insurance claims, the Buyer must allow a representative of the shipping vendor to visit the delivery location in order to physically inspect the reported damage if requested. The Buyer must release the property to the vendor and agrees to do so by requesting a Total Loss claim. 
Once Lofty has received confirmation from the shipping vendor that the claim is valid and will be paid, Lofty will refund the Buyer the full purchase amount. 
Lofty will pay the Seller the net proceeds due (which is equivalent to the sale price less Lofty’s commission) once the shipping vendor has paid the claim.
III. Retention 
In the case that an item is damaged in transit, but is not beyond repair, and the Buyer wishes to retain possession of the item, the Buyer is entitled to request a Retention Claim (as defined below) on the property towards the cost of restoring the item. The Buyer must notify Lofty of the damage as soon as possible. 
Lofty will require the Buyer to thoroughly document the overall condition of the item. The buyer will be asked to photograph the item and packing material in the condition it was in upon arrival. Photographs should clearly represent any damage to the item and the condition of all packing materials. No parts of the item or packing materials should be discarded and the item should be kept at the original delivery address. 
Once Lofty has received photographic documentation of the damage, Lofty will contact a restoration expert to obtain a quote for necessary repairs or restoration work to the item, and will open a “Retention Claim” with the shipping vendor for the value of the quoted amount. 
Once Lofty has received confirmation from the shipping vendor that a claim has been initiated (including a claim number), Lofty will refund the Buyer the full amount of the restoration quote. 
As part of standard procedure for the processing of insurance claims, the Buyer must allow a representative of the shipping vendor to visit the delivery location in order to physically inspect the reported damage if requested. 
The Buyer will be responsible for paying for any restoration or repair services directly, and Lofty will not be responsible for any costs incurred by the buyer beyond the original restoration quote. 
If a Buyer wishes to open a Retention Claim for an item, that Buyer forfeits all rights to return the item. 
Lofty will pay the Seller the net proceeds due (which is equivalent to the sale price less Lofty’s commission) on the agreed upon schedule, regardless of any outstanding insurance claims. 
IV. Insurance Claim on Return to Seller 
In the case that an item is returned to the Seller and damaged in transit, this will be pursued as a Total Loss. The Seller must notify Lofty of the damage as soon as possible. Lofty will require the Seller to thoroughly document the overall condition of the item and the packing material. Photographs should clearly represent any damage to the item and the condition of all packing materials. No parts of the item or packing materials should be discarded and the item should be kept at the delivery address. 
Once Lofty has received photographic documentation of the reported damage, Lofty will open an insurance claim with the shipping vendor for the full purchase price of the item. 
Once Lofty has received payment of the claim from the shipping vendor, Lofty will refund the Seller the full purchase amount. 
As part of standard procedure for processing insurance claims, the Seller must allow a representative of the shipping vendor to visit the delivery location in order to physically inspect the reported damage if requested. The Seller must release the property to the vendor and agrees to do so by requesting a Total Loss claim.

  1. Import/Export Restrictions

Some of the products sold on the Site may require cultural, customs and endangered species permits for export from the country where they are located and import into the buyer’s country. Products may also be subject to a right of the country from which they are exported to purchase the products from the buyer, sometimes called a “right of preemption”. Neither the seller nor Lofty makes any representation, gives any warranty or shall have any liability to the buyer in respect of the requirement for, or the availability or issuance of, valid export or import permits, or the existence or exercise of preemption rights to purchase by governmental or regulatory authorities anywhere. Lofty may cancel a sale in its sole discretion based upon import/export complications. Upon such cancellation, Lofty shall return the Total Purchase Price held by Lofty to buyer.

  1. Return and Payment Policy

When an item is purchased, Lofty holds the payment in escrow for seven (7) days after the item is delivered. This 7-day return period allows the buyer time to verify that the item is as described in the associated product listing, and to report any damage that may have occurred in transit. 
If no return is announced by the end of the 7-day return period, Lofty will initiate payment to the seller and the sale shall be final.
There are two (2) situations in which a buyer may initiate a return during the 7-day return period: 
1. In the event that it is discovered that the dimensions, condition, or function of the item are meaningfully different than what the seller had reported to Lofty, the seller will be responsible for the cost of fully insured return shipping, and the buyer will be refunded the purchase price of the item, including original shipping costs, once the returned item has been delivered to the seller. 
2. In the event that the buyer is not satisfied with a purchased item for any reason other than the item not being as described, the buyer can announce a return within seven (7) days of delivery. The item must be returned in the original condition. The buyer is responsible for payment of return shipping, and Lofty will refund the buyer the full payment of the item, less original shipping costs, upon delivery to the seller's location.

  1. Data integrity

You represent that all of the information, data and other materials you provide on this Site or to Lofty through any other means are true, accurate, current and complete.

  1. Content Made Available On or Through the Site and Your Use of the Content

Description of Content. The Site contains a wide variety of Content (defined below), whether (1) proprietary to Lofty, or (2) proprietary to third parties. “Content” includes, but is not limited to text, data files, documents, design, graphics, logos, icons, images, audio clips, audiovisual combinations, video, downloads, interfaces, code and software, scripts, layout, design, function and “look and feel,” interactive features as well as any other materials that you may view, access or download.

Proprietary Rights. You acknowledge and agree that all Content, whether publicly posted or privately transmitted, as well as all derivative works thereof, is the exclusive property of and owned by Lofty, its licensors or its content providers, and is protected by copyright, trademark and other applicable Laws of the United States and foreign laws. Except as specifically permitted herein, Content may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, including by e-mail or other electronic means, without the prior consent of Lofty or such third-party that owns the Content. All rights not expressly granted herein by Lofty and/or its licensors to you are reserved by Lofty and/or its licensors. 
Restrictions on Your Use of Content. You may access and use Content solely for your information and personal, non-commercial use, as intended through the functionality of the Services and permitted under this Agreement. Any modification of the Content, downloading or copying of the Content, use of the Content on any website or networked computer environment, or use of the Content for any purpose other than personal, non-commercial use, without the prior consent of Lofty or its licensors, as applicable, is a violation of the copyright, trademark and other proprietary rights in the Content and is expressly prohibited. You agree not to circumvent, disable or otherwise interfere with security-related features of the Site and/or Services that prevent or restrict the use or copying of any Content and not to alter, remove or falsify any attributions or other proprietary designations of origin or source of any Content appearing on the Site. If you download any Content from the Site for your personal, non-commercial use, you do so at your own risk.

Content Disclaimer. Content is provided to you AS IS. You understand that we do not guarantee the accuracy, safety, integrity or quality of Content and you hereby agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the integrity, accuracy and substance of such Content. NOTHING ON OUR SITE SHOULD BE DEEMED TO CONSTITUTE A RECOMMENDATION TO PURCHASE, SELL OR HOLD, OR OTHERWISE TO CONSTITUE ADVICE REGARDING, ANY REGISTERED OR UNREGISTERED SECURITY.

Restrictions on Your Use of the Site and Services. You agree not to access or use the Site and/or Services in an unlawful way or for an unlawful or illegitimate purpose. Lofty strictly prohibits:1) any caching, unauthorized linking to the Site or the framing of any Content available on the Site; 2) any modification, distribution, transmission, performance, broadcast, publication, uploading, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any Content, products or services obtained from the Site that you do not have a right to make available (such as the intellectual property of another party); 3) any uploading, posting or transmitting of any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer; 4) using any hardware or software intended to surreptitiously intercept or otherwise obtain any information (such as system data or personal information) from the Site (including, but not limited to the use of any “scraping” or other data mining techniques, robots or similar data gathering, hacking, password mining and extraction tools); 5) any attempt to disrupt the operation of the Site and/or Services in any manner, including without limitation, through the use of methods such as denial of service attacks, flooding or spamming; 6) any attempt to transmit, distribute, introduce or otherwise make available in any manner through the Site and/or Services any computer virus, keyloggers, spyware, worms, Trojan horses, time bombs or other malicious or harmful code; or 7) any action that imposes or may impose an unreasonable or disproportionately large load on Lofty’s infrastructure, or damage or interfere with the proper working of our infrastructure, products, Services or networks. 
8. You may not bypass any measures that have been implemented to prevent or restrict access to the Site. Any unauthorized access to the Site by you (including any such access or use that involves in any way an account you may establish on the Site or any device you may use to access the Site) shall terminate the permission or license granted to you by Lofty.

  1. Content You Submit

You acknowledge that you are responsible for any content you may submit through the Site, including the legality, reliability, appropriateness, originality and copyright of any such content. You may not upload to, distribute or otherwise publish through this Site any content that:

  1. is confidential, proprietary, invasive of privacy or publicity rights of others, infringing on intellectual property rights of others, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, predatory of minors, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable Laws in the United States or any foreign laws.;
  2. may contain software viruses or malware;
  3. is designed to impersonate others;
  4. contains personal information (such as messages that include phone numbers, Social Security numbers, payment card numbers, account numbers, addresses or employer references), except where we expressly ask you to provide such information;

You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. Some features that may be available on this Site require registration. By registering, you agree to provide true, accurate, current and complete information about yourself. 
With respect to any content you submit or make available through the Site, you grant Lofty a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such content or any part of such content, in any media. You hereby represent, warrant and covenant that any content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant such a license to Lofty.

  1. Suspension and Termination

You understand that the Site and the Services are provided as a courtesy to you and that we may modify, suspend or terminate all or a portion of the Site and/or Services at any time in our discretion without prior notice to you. Lofty reserves the right to refuse or cancel any person’s registration for this Site, remove any account from this Site and prohibit any person from using this Site for any reason whatsoever, and to limit or terminate your access to or use of the Site at any time without notice. Termination of your access or use will not waive or affect any other right or relief to which Lofty may be entitled, at law or in equity. You agree that Lofty shall not be liable to you or any third party for any termination of your access to the Site and/or Services.

  1. Visitor/User Suggestions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information provided by you to Lofty (collectively, “Feedback”) are not confidential and you hereby grant to Lofty a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Feedback as it deems appropriate for any and all commercial or non-commercial purposes, in its sole discretion.

  1. Links

This Site may contain links to other websites or resources that are operated by third parties not affiliated with Lofty. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. The fact that we link to a website is not an authorization or representation of our affiliation with that third party. We do not exercise control over third party websites and we are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Inclusion of links to other sites or resources should not be viewed as an endorsement of the content of linked sites or resources. These other websites may place their own cookies or other files on your computer, collect data or solicit personal information from you. Other sites follow different rules regarding the use or disclosure of the personal information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit. Please be aware that the terms of our Privacy Policy do not apply to these third party websites. Lofty is not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any such content, products or services available on or through any such linked site or resource.

  1. DISCLAIMERS

Lofty makes no representation or warranty of any kind, express or implied, with respect to the Site and/or Services, any products offered for sale or sold on or through the Site by any seller, including without limitation: (i) any representation or warranty that the Site and/or Services meets the buyer’s requirements; (ii) any representation or warranty with respect to title to or delivery of any product; (iii) any representation or warranty with respect to intellectual property rights in any product; (iv) any representation or warranty that any product conforms to its description or the colors, texture and detail shown on the buyer’s computer monitor; or (v) any representation or warranty regarding the character, reputation or business practices of the seller.

ACCESS TO THE SITE AND/OR SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LOFTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LOFTY DOES NOT WARRANT THAT ACCESS TO THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES LOFTY MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SITE AND/OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR SOLE RISK. YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR IMPROPER DISCLOSURE OF INFORMATION CAUSED BY YOU. LOFTY CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY OF THE ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SITE AND/OR SERVICES.

  1. LIMITATION OF LIABILITY

THE SELLERS AND PROVIDERS WHOSE PRODUCTS ARE AVAILABLE ON THE SITE ARE NOT AGENTS OR EMPLOYEES OF LOFTY. LOFTY IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SELLERS OR PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. 
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE, SERVICES AND/OR FOR USE OF THE PRODUCTS AVAILABLE THROUGH THE SITE. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE THROUGH THE SITE, AND/OR YOUR USE OF THE SITE, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR OWN RISK AND THAT THE SITE IS MADE AVAILABLE TO YOU AT NO CHARGE. RECOGNIZING SUCH, YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, CONSUMER PROTECTION LAW), LOFTY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATED TO (1) YOUR USE OF THE SITE, SERVICES OR ANY OTHER SITE OR RESOURCE YOU ACCESS THROUGH A LINK FROM THIS SITE; (2) ANY ACTION WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; (3) YOUR ACCOUNT, ANY TERMINATION OR CANCELLATION OF YOUR ACCOUNT; (4) ANY PRODUCTS MADE AVAILABLE OR PURCHASED THROUGH THE SITE, INCLUDING ANY DAMAGES OR INJURY ARISING FROM ANY USE OF SUCH PRODUCTS; (5) ANY DELAY OR INABILITY TO USE THE SITE, SERVICES OR ANY INFORMATION ADVERTISED IN OR OBTAINED THROUGH THE SITE; (6) THE MODIFICATION, REMOVAL OR DELETION OF ANY CONTENT SUBMITTED OR POSTED ON THE SITE; OR (7) ANY USE OF THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF LOFTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. YOU HEREBY RELEASE LOFTY AND HOLD IT AND ITS LICENSORS AND SUPPLIERS HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE AND/OR SERVICES. YOU WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.

IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE OR RESOURCE. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, LOSS OF PROFITS BY YOU, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT LOFTY SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE.

WITHOUT LIMITING THE FOREGOING, IN THE EVENT OF ANY PROBLEM WITH THE SITE, SERVICES AND/OR THE CONTENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OF THE ABOVE CLAIMS OR ANY DISPUTE WITH LOFTY IS TO DISCONTINUE YOUR USE OF THE SITE, SERVICES AND/OR CONTENT. YOU AND LOFTY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS OF USE, IF LOFTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE, SERVICES, CONTENT, OR A PRODUCT PURCHASED ON THE SITE, LOFTY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE TOTAL AMOUNT PAID BY YOU TO LOFTY WITH RESPECT TO SUCH PRODUCT, OR (II) FIFTY U.S. DOLLARS ($50). Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

  1. Indemnities

You will indemnify and hold harmless Lofty and its parents, subsidiaries, affiliates, suppliers and their officers, directors, affiliates, subcontractors, agents and employees, lenders, licensors and suppliers and their parents, subsidiaries, affiliates, suppliers and their officers, directors, affiliates, subcontractors, agents and employees (collectively, “Indemnified Parties” and each, individually, an “Indemnified Party”) from and against any and all costs, expenses, fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by an Indemnified Party, and shall defend any such Indemnified Party, against any and all claims arising out of (i) your use of the Site and/or Services; (ii) your breach of these Terms and Use or the Professional Seller Agreement; (iii) fraud you commit, or your intentional misconduct or gross negligence; (iv) your infringement or misappropriation of the intellectual property rights of others; or (v) your violation of any applicable Law of the United States or any foreign law or the rights of a third party. Lofty will control the defense of any claim to which this indemnity may apply, and in any event, you shall not settle any claim without the prior written approval of Lofty.

  1. Electronic Communications

When you use the Site or send emails to Lofty, you are communicating with Lofty electronically. You consent to receive electronically any communications related to your use of this Site. Lofty will communicate with you by email or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from Lofty intended for receipt by a customer shall be deemed delivered and effective when sent to the email address you provide on any portion of Lofty’s Site. 

  1. Site-Provided Email and Postings

The Site may provide users with the ability to send email messages to other users and non-users and to post messages on the Site. Lofty is under no obligation to review any content (including any messages) posted on or sent through the Site by users and assumes no responsibility or liability relating to any such content. Lofty, in its sole discretion, may monitor, not post or remove any such content.

  1.  Access to Password Protected Site Features

Access to and use of password-protected areas of the Site is restricted to authorized Registered Users only. You are responsible for protecting your login credentials, including any password. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your login credentials. If you have any reason to believe or become aware of any loss, theft or unauthorized use of your login credentials, notify Lofty immediately. Lofty may assume that any communications we receive from your email or other address, or communications that are associated with your login credentials or your account on this Site, have been made by you unless we receive notice indicating otherwise.

  1. Trademarks and Copyrights

The trademarks, logos, slogans, taglines and service marks (“Marks”) displayed on the Site are the property of Lofty or its licensors or content providers, or other parties. Users or any parties acting on their behalf are prohibited from using any Marks for any purpose including, but not limited to, use as meta tags on other pages or sites without the written permission of Lofty or such third party which may own the Marks. You may not use frames or utilize framing techniques or technology to enclose any content included on the Site without Lofty’s express written consent. Further, you may not utilize any Content in any meta tags or any other “hidden text” techniques or technologies without Lofty’s express written consent. All Content (including any software programs) available on or through the Site is protected by copyright, trademark and other applicable Laws of the United States and/or any foreign laws. 

  1. Claims of Intellectual Property Infringement

Lofty respects the intellectual property of others, and we ask our users to do the same. You are hereby informed that Lofty has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of Site user access and Lofty accounts who are repeat copyright infringers. Lofty may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts and/or memberships of users who may be infringing the intellectual property of a third party. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Lofty’s Copyright Agent the following information (to be effective, the notification must be in writing and provided to our Copyright Agent): 1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 2) a description of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and a description of where the material that you claim is infringing is located on the Site; 4) your address, telephone number, and, if available, email address; 5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and 6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. 
Lofty’s agent for notice of claims of copyright or other intellectual property infringement (“Copyright Agent”) can be reached as follows:

By mail:
ATTENTION: Legal
Lofty c/o Auction Mobility
192 South St., Suite 600
Boston, MA 02111

By phone: 1 (857) 277-1313

Or at http://www.lofty.com/pages/contact

Lofty may update this contact information from time to time without notice to you. We will post the current contact information on this Site.

  1. Survival of Terms After Agreement Ends

Notwithstanding any other provisions of these Terms of Use, or any general legal principles to the contrary, any provision of these Terms of Use that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms of Use.

  1. Force Majeure

Lofty shall be excused from performance under these Terms of Use, to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of Lofty. In the event that Lofty is temporarily unable to ship to you a purchased item because of such an event, Lofty will give you the option of deferring shipment or receiving a refund of your charges.

  1. General

If any of the provisions set forth in these Terms of Use are deemed invalid, void, or for any reason unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the unenforceable condition shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions of these Terms of Use. Section headings are for reference purposes only and do not limit the scope or extent of such section. These Terms of Use and the relationship between you and Lofty will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

If a dispute arises under these Terms of Use between you and Lofty, such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the National Arbitration Forum or the American Arbitration Association, under their rules for consumer arbitrations. The venue for all disputes arising under these Terms of Use shall be the Commonwealth of Massachusetts. All disputes in arbitration will be handled solely between the named parties, and not on any representative or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR TO A JURY TRIAL. Notwithstanding any other provision of these Terms of Use, Lofty may resort to court action for injunctive relief at any time.

The failure of Lofty to act with respect to a breach of these Terms of Use by you or others does not waive Lofty’s right to act with respect to subsequent or similar breaches. If any content on this Site, or your use of the Site, is contrary to the laws of the place where you are when you access it, the Site is not intended for you, and we ask you not to use the Site. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.

Lofty does not guarantee it will take action against all breaches of these Terms of Use. Except as otherwise expressly provided in these Terms of Use, there shall be no third-party beneficiaries to these Terms of Use.

  1. Changes to These Terms of Use

You acknowledge and agree that Lofty may, in its sole discretion, modify, add or remove any portion of these Terms of Use at any time and in any manner, by posting revised Terms of Use on the Site. It is your responsibility to check periodically for any changes we make to the Terms of Use. Your continued use of this Site after any changes to the Terms of Use means you accept the changes.

  1. Errors, Inaccuracies and Omissions.

Occasionally there may be information on our Site or associated with the Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information on the Site or with respect to the Services or on any related website, including without limitation, pricing information, except as required by applicable Laws. No specified update or refresh date applied to the Site and/or Services or on any related website should be taken to indicate that all information with respect to the Site and/or Services or on any related website has been modified or updated.

  1. Assignment

You may not assign, transfer or delegate your rights, benefits or obligations under these Terms of Use, in whole or in part, by operation of law or otherwise, without the prior written consent of Lofty, which may be withheld at Lofty’s sole discretion. Any attempted assignment that does not comply with these Terms of Use shall be null and void. Lofty may assign these Terms of Use, in whole or in part, to any third party in its sole discretion. This Agreement shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns.

  1. Entire Agreement and Admissibility

These Terms of Use, together with the Professional Seller Agreement and Privacy Policy, constitute the entire agreement and understanding between you and Lofty with respect to use of the Site and/or Services and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to such subject matter.

In some instances, both of these Terms of Use and a separate document that provides additional conditions may apply to a service or product offered via this Site (“Additional Terms”). To the extent there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

A printed version of these Terms of Use shall be admissible in judicial or administrative proceedings based on or relating to use of this site to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

  1. How to Contact Us

If you have any questions or comments about these Terms of Use or this Site, please contact us by email at Contact@Lofty.com. You also may write to us at:

Lofty.com

c/o Auction Mobility

192 South St., Suite 600

Boston MA 02111

 

©COPYRIGHT 2016 AUCTION MOBILITY, LLC (D/B/A LOFTY), ALL RIGHTS RESERVED.