Last Modified: May 15, 2025

Applicability

These terms and conditions for the purchase of goods (these “Terms”) are the only terms which govern the sale of certain goods (“Goods”) by Infinity Rack LLC (“Seller”) to the buyer listed as the Buyer on the accompanying invoice (the “Invoice”) to these Terms (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

The Invoice and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

Delivery

The Goods will be delivered within a reasonable time after the payment of the Invoice, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.

Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s delivery address as designated on the Invoice (the “Ship to”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods upon a set date pre-agreed to by both the Seller and the Buyer via written email notice. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Ship to point.

Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Invoice.

If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations:

• risk of loss to the Goods shall pass to Buyer;

• the Goods shall be deemed to have been delivered; and

• Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

Non-delivery

The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the nondelivery within 3 days of the date when the Goods would in the ordinary course of events have been received.

Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

Quantity

If Seller delivers to Buyer a quantity of Goods of up to 20% more or up to 20% less than the quantity set forth in the Invoice, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Invoice, adjusted pro rata.

Shipping

Delivery shall be made FOB 11701 Mt. Holly Rd, Charlotte, NC 28214 or FOB such other shipping location as the Invoice may provide. Therefore, title and risk of loss passes to Buyer upon leaving Seller’s place of business. 

Amendment and Modification

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

Inspection and Rejection of Nonconforming Goods

Buyer shall inspect the Goods within 10 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following:

• Product shipped is different than identified in the Invoice

If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion:

• Replace such Nonconforming Goods with conforming Goods, or

• Credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.

Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

Price, Sales Tax

Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date the Seller accepts the Invoice. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.

All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

Seller is only required to collect sales tax on shipments to customers located in Colorado, Florida, Massachusetts, Michigan, Nevada, North Carolina, and Virginia (the “Registered States”). Seller does not collect sales tax on sales made to residents of non-Registered States. All sales tax due will be invoiced with the final invoice if Goods ship to a Registered State. Sales tax is charged based on sales tax legislation on the date of Buyer’s completed sales transaction. If sales tax was not collected on Buyer’s sale, Buyer may be liable for Use Tax in Buyer’s state. All applicable sales, use and other taxes imposed on the purchase of the Goods are the sole responsibility of Buyer, and Buyer shall reimburse, indemnify, and hold harmless Seller from any and all such taxes due (and any applicable interest or penalties thereon) and any attorney and other fees associated with the imposition of such taxes on Seller with respect to the purchase of the Goods hereunder. If Buyer or the end-user qualify for sales tax exempt status, Buyer must mail, e-mail, or fax a copy of the appropriate state’s Tax Exemption Certificate, Direct Pay Permit or Resale Certificate to Seller’s accounting department. If the certificate(s) Buyer provides cannot be accepted in good faith, Seller will impose sales/use tax on these transactions, if applicable. Acceptance of exemption paperwork in good faith does NOT mean these forms will be accepted as valid exemption by the state requiring them. Buyer will complete and return a Sales & Use Tax Exemption Statement or any other form required by Seller to support Buyer’s claim of an exemption from any applicable sales and use taxes. Failure to return such documentation promptly will delay shipment of the Goods as a shipment will not be released without all necessary paperwork on file. Buyer is advised to consult with the Department of Revenue in Buyer’s state to determine Buyer’s sales or use tax obligations. This purchase is not exempt from sales or use tax in Buyer’s state merely because it is made over the internet or by other remote means. Many states where product purchases are taxable require purchasers to a) file a sales and use tax (or other) return reporting all purchases that are taxable in the state and for which no tax was collected by the retailer and b) pay tax on those purchases. Additional information on sales and use tax reporting and payment requirements can be found on the Department of Revenue website for Buyer’s state.

Payment Terms

Buyer shall pay all amounts due to Seller as follows: 100% upon the acceptance of the Invoice. Buyer shall make all payments hereunder by wire transfer or ACH and in U.S. dollars. In the event that the Goods cannot be shipped or otherwise delivered under this Agreement, then any prepaid amounts shall be refunded by the Seller as soon as practicable. Once production has begun, all deposits are non-refundable. Production will be considered to have begun once a deposit has been received by Seller. All engineering deposits are nonrefundable regardless of the project’s status or material delivery.

Buyer shall pay storage fee of 1.5% of the total sale price every two weeks if at the request of the Buyer until Seller receives permission to ship the Goods. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.

Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

Installation of Goods

Buyer acknowledges and agrees that it shall be responsible for installing the Goods following its purchase thereof, and further agrees to perform such installation and any associated construction or similar projects in a professional and workmanlike manner, in accordance with best industry standards for similar services, in conformity with any instructions, schema, or other documentation provided by the Seller, and in compliance with all applicable laws. Any installation training provided by Seller shall not be interpreted as Installation services. Buyer hereby indemnifies, defends, and holds harmless Seller and Seller’s officers, directors, managers, employees, agents, successors, and permitted assigns from and against any and all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or result from any third-party claim, suit, action, or proceeding arising out of or resulting from bodily injury, death of any person, or damage to real property or tangible personal property resulting from such installation services or any other willful, fraudulent, or negligent acts or omissions of Buyer or its personnel, employees, contractors, subcontractors, agents, affiliates, or representatives.

Limited Warranty

SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY

• WARRANTY OF MERCHANTABILITY;

• WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;

• WARRANTY OF TITLE

• WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by any warranties express or implied hereunder. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Limitation on Liability

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.

The limitation of liability set forth in Section 13(b) above shall not apply to

• liability resulting from Seller’s gross negligence or willful misconduct and

• death or bodily injury resulting from Seller’s acts or omissions.