Terms and Conditions

Sale of any materials or services is expressly conditioned on Customer’s assent to these Terms and Conditions. Any acceptance of this offer by Rack Depot, Inc, a California company (“TRD”) is expressly limited to acceptance of these Terms and Conditions and TRD expressly objects to any additional or different terms proposed by Customer. Any order to perform work and TRD’s performance of work shall constitute Customer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, TRD’s quotation shall expire 14 days from its date and may be modified or withdrawn by TRD before receipt of Customer’s conforming acceptance.

1. Payment

Customer shall pay TRD in accordance with the agreed upon payment terms, included on the quotation. For each day that payment is late, Customer shall pay a late payment charge of 5% (or the maximum interest rate allowed by law, whichever is lower) on the overdue balance. TRD will not commence or continue its performance unless and until any required payment is received. For each day of delay in receiving any payment, TRD shall be entitled to a matching extension of the schedule.

2. Warranty

TRD warrants that the services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. All materials provided hereunder are provided on an AS IS, WHERE IS basis subject only to any warranties available directly from the manufacturer. Any warranty provided herein applies only to those services performed by TRD directly; the warranty for services shall expire thirty (30) days from installation. If the services do not meet the above warranty, Customer shall promptly notify TRD in writing prior to expiration of the warranty period. TRD shall re- perform defective services. Warranty repair, replacement or re-performance by TRD shall not extend or renew the applicable warranty period. Customer shall bear the costs of access for TRD remedial warranty efforts (including removal and replacement of inventory, structures or other parts of Customer’s facility), deinstallation, decontamination, reinstallation and transportation of defective materials to TRD and back to Customer. This Section 2 provides the exclusive remedies for all claims based on failure of or defect in materials or services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Section 2 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES, AND TRD HEREBY WAIVES AND DISCLAIMS ANY AND ALL STATUTORY OR IMPIED WARRANTIES OR ANY WARRANTIES EXTENDED TO CUSTOMER BY ANY THIRD PARTY ON BEHALF OF TRD, TO ANY GOODS OR SERVICES.

3. Termination

TRD may suspend or terminate this contract (or any affected portion thereof) immediately for cause if Customer (i) becomes insolvent/bankrupt, or (ii) materially breaches the contract, including, but not limited to, failure or delay in Customer making any payment when due. If the contract (or any portion thereof) is terminated for any reason other than TRD’s material default, Customer shall pay TRD for all materials (or re-stocking fees if TRD is able to return any materials) and services performed before the effective date of termination, plus expenses reasonably incurred by TRD in connection with the termination.

4. Permits

Unless otherwise agreed to in writing, Customer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits and environmental impact assessments, required for the lawful performance of the services at the site or fulfillment of TRD obligations hereunder. Failure to secure such permits, licenses, etc. shall be a material breach of this contract. Customer shall indemnify, defend and hold harmless TRD and any TRD subcontractors, including their employees, officers, directors, members and managers, of and from any and all expenses, fees, costs (including attorney’s fees) related to or arising from Customer’s failure to timely obtain, effectuate and maintain in force any required permits, licenses, exemptions, filings, registrations, and any other authorizations that may be required by any local, state or national authority having jurisdiction over the installation site.

5. Limitations of Liability

The total liability of TRD for all claims of any kind arising from or related to the formation, performance or breach of this contract, or any materials or services, shall not exceed the lesser of (i) one-half of the total contract price or (i) $50,000. TRD shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Customer’s customers for any of the foregoing types of damages.

6. Insurance

By accepting these terms and conditions, Customer represents and warrants to TRD that it has in place with reputable insurers such insurance policies in coverage amounts that would be maintained by a prudent business of Customer’s size and complexity, including, as applicable, comprehensive commercial general liability insurance (including product liability coverage, all-risk contractors’ equipment insurance, and automobile liability insurance) and workers compensation. Customer will promptly deliver to TRD, as and when requested, written proof of such insurance. TRD will be named as an additional insured under any such policies. If requested by TRD, such insurance will provide that it cannot be cancelled, or materially changed so as to affect the coverage provided under this Agreement, without the insurer providing at least 30 days prior written notice to TRD.

7. Miscellaneous

This contract shall be governed by the laws of the State of California. Any legal action or dispute arising from or related to this contract shall be commenced in the state court located in Los Angeles County, California. The contract represents the entire agreement between the parties. No oral or written representation or warranty not contained in this contract shall be binding on either party. Customer’s and TRD’s rights, remedies and obligations arising from or related to materials and services sold under this contract are limited to the rights, remedies and obligations stated in this contract. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing.