Last Modified: June 08, 2023

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 “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 5 days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery 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 notice that the Goods have been delivered at the Delivery Point, 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 Terms

Delivery shall be made FOB 1507 Industry Drive, Burlington,NC 27215, United States, 2905 Old Oakwood Rd, Gainesville, GA 30504 United States, or FOB such other shipping location as the Invoice may provide.

Title and Risk of Loss

Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the North Carolina Uniform Commercial Code.

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; or
• product’s label or packaging incorrectly identifies its contents.

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 shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility (or Seller’s third-party manufacturer’s facility), in either case to an address to be provided by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

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 of that 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 North Carolina (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 taxexempt 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.

Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. 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 the 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. 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.

Insurance

During the term of this Agreement and for a period of twelve (12) months thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including products and completed operations) in a sum no less than $1,000,000, with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Any such certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with at least 15 days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.

Compliance with Law

Buyer shall comply with all applicable laws, regulations,and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations,consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

Termination

In addition to any remedies that may be provided under these Terms,Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:

• fails to pay any amount when due under this Agreement;
• has not otherwise performed or complied with any of these Terms, in whole or in part; or
• becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

Waiver

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates as, or may be construed as, a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Confidential Information

All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller 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 or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is:

• in the public domain;
• known to Buyer at the time of disclosure; or
• rightfully obtained by Buyer on a non-confidential basis from a third party.

Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”):

• acts of God;
• flood, fire, earthquake, epidemic, or explosion;
• war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
• government order, law, or actions;
• embargoes or blockades in effect on or after the date of this Agreement;
• national or regional emergency;
• strikes, labor stoppages or slowdowns, or other industrial disturbances;
• shortage of adequate power or transportation facilities; and
• other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 19, either may thereafter terminate this Agreement upon 10 days’ prior written notice.

Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. 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, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

Governing Law

All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina.

Submission to Jurisdiction

Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of North Carolina, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Notices

All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses, email addresses, or facsimile numbers set forth on the face of the Invoice or to such other address, email address, or facsimile number that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only

• upon receipt of the receiving party, and
• if the party giving the Notice has complied with the requirements of this Section.

Severability

If any term or provision of this Agreement is 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 these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.