Alumicor Limited Standard Terms & Conditions of Sale

As of October 25, 2016

These terms and conditions of sale shall apply to all purchase orders accepted by Alumicor Limited or Alumicor Limited (“Alumicor”), and to all quotations supplied to the Customer by Alumicor.

1) Prices

Current prices and discounts supersede any and all prices shown in previous price lists covering these products. Alumicor reserves the right to correct any errors or omissions in purchase orders, quotations, invoices and other documents delivered to the Customer. All prices are subject to change without notice unless otherwise specified in a purchase order accepted by, or in a quotation supplied by, Alumicor.

2) Order Acceptance

All purchase orders placed by the Customer are subject to the approval of Alumicor’s credit department and are not binding until they have been accepted in writing by Alumicor. Alumicor reserves the right in its sole-discretion to refuse to accept, in whole or in part, any purchase order placed by the Customer. Upon acceptance of the Customer’s purchase order by Alumicor, Alumicor shall make reasonable efforts to fill the Customer’s order and make available for shipment to Customer all of the products and provide all of the services ordered by the Customer as soon as practicable. The Customer and Alumicor may jointly agree on an appropriate schedule; however, any commitment date or shipping date quoted or specified in any documentation is approximate.

3) Sales and Use Taxes

Unless noted otherwise in Alumicor’s quotation to the Customer, the prices specified do not include any sales, use or other taxes which may be payable under applicable laws. In the event that any such taxes are payable, the Customer shall promptly issue payment for them in accordance with any invoice issued by Alumicor or, where such taxes are payable but are not noted on an invoice issued by Alumicor, the Customer shall self-assess and remit such taxes directly to the appropriate taxing authorities. The Customer shall irrevocably indemnify and save harmless Alumicor from and against any and all liabilities, claims, expenses (including reasonable lawyer’s fees and disbursements), suits, proceedings, judgments, interest and penalties arising from, as a result of or in connection with the Customer’s failure to promptly pay or remit any such taxes.

4) Scope of Work

Alumicor will supply products and services to the Customer in accordance with the accepted Customer’s purchase orders and Alumicor’s corresponding quotations. Anchors, fabrication fasteners, brackets and clips will only be supplied by Alumicor if specifically included in a quotation issued by Alumicor. The Customer will supply, at its sole cost and expense, all necessary structural support members and installation supplies. Alumicor will provide glass sizes only when requested in writing and when the product is manufactured in accordance with an approved shop drawing. A charge may be levied for these services.

5) Shop Drawings and Engineering Calculations

The terms set forth in this Section 5 will apply to any shop drawings and engineering calculations that expressly included in any quotation issued by Alumicor. Alumicor shall submit shop drawings to the Customer for approval, in electronic format. Shop drawings shall include elevations, floor plans, sections and full size details. Where required, structural calculations will also be supplied. Structural calculations will be limited to an analysis of the framing members, anchors including anchors embedded in concrete, section property computations for framing members and an analysis of stress in structural silicone. The shop drawings will indicate what is to be done by Alumicor and what is to be done by others. Alumicor will fabricate in accordance with the dimensions shown on customer approved drawings. Shop drawings shall remain at all times the property of Alumicor. Alumicor assumes no responsibility for the measurements and/or details affecting any work but its own. Details and profiles may not be modified in any way without the written consent of Alumicor. The Customer takes sole responsibility for the use of the information contained in the shop drawings and/or engineering calculations. The responsibility for stamping or sealing Alumicor’s shop drawings, engineering calculations and/or revisions rests with the Customer. Where revisions to shop drawings occur, all sheets with the title blocks shall be dated accordingly with notes, outlining the revisions. Failure to review comments to note noncompliance with plans and specifications shall relieve Alumicor from its obligation to comply with the same. A maximum of two submissions will be provided by Alumicor without additional cost to the Customer. Cost of additional submittals shall be borne by the Customer. The Customer assumes responsibility for providing final sizes to Alumicor.

6) Requests for Information

If questions arise about the work to be done, Alumicor will issue a “Request for Information” (“RFI”) to the Customer, outlining the information required. The Customer will supply this information in a timely manner so as not to impact negatively on the delivery schedule. If the RFI is not processed by the Customer in a timely manner, Alumicor has the right to place the work on hold without default until the RFI is processed by the Customer.

7) Requests for Engineering Change Orders

When information pertaining to the work is found to be in error, Alumicor will issue a request for Engineering Change Order as soon as the change is discovered or the change is deemed necessary. The Customer will review the change and approve or disapprove the change and issue a change order. An approved change order will be considered as part of the contract document. The costs for a change order will be borne by the Customer. All change orders must be signed by Alumicor before Alumicor shall have any obligation to proceed.

8) Payment

The Customer agrees to pay Alumicor in accordance with Alumicor’s current credit terms on the date of invoice. Alumicor will have no responsibility at all for any “hold back” or “retainage” funds held by the General Contractor. Late payments will be charged interest at the rate of 2% per month. If the Customer is late in making payments under an order, in addition to any other rights Alumicor may have, Alumicor may elect to stop or withhold from shipment any products and the provision of any further services until the owner brings the account up to date. If such stoppage occurs, the Customer shall be responsible for reimbursing Alumicor for all costs incurred as a result, including warehousing and storage costs.

9) Title

Title to and control over products shall pass from Alumicor to Customer after the products are loaded on board a carrier’s vehicle at Alumicor’s plant.

10) Packaging, Shipment Terms and Receipt

Complete shipping instructions must be given on each purchase order. When this information is not given, Alumicor reserves the right (but not the obligation) to make arrangements, wholly at the Customer’s risk and cost and on the Customer’s behalf, to ship the products to the Customer by the most suitable way as determined by Alumicor in its sole discretion. Shipments made by carriers are subject to the carriers’ terms and conditions, but such additional terms and conditions shall at all times be subject to these terms and conditions.

All shipments shall be made Ex Works Alumicor’s Plant. Alumicor shall load the products on board the collecting vehicles (be they vehicles of the Customer, a carrier arranged by the Customer, or a carrier arranged by Alumicor on behalf of the Customer). Alumicor shall not be responsible for any other goods (or their state or condition) loaded on such vehicles. Once loaded, all risk and liability for the products shall pass to the Customer, and the Customer shall be solely responsible for the transportation of the products from Alumicor’s plant. The Customer shall irrevocably indemnify and hold harmless Alumicor from any and all losses, costs or damages that may be sustained or incurred by the Customer, Alumicor and/or any third-party in connection with the products once they have been loaded onto a vehicle and their subsequent transportation.

Upon arrival of the products at the loading dock at the Alumicor’s plant, the Customer or the Customer’s representative shall sign the Bill of Lading “subject to count and inspection.” Upon signing the Bill of Lading and the loading of the products onto a carrier, the insurance and protection of the products shall then become the responsibility of the Customer. Any discrepancies or defects are to be reported in writing to Alumicor within 10 calendar days of the Customer signing the Bill of Lading. THE PRICES QUOTED AND CHARGED TO THE CUSTOMER UNDER ANY GIVEN PURCHASE ORDER TAKE INTO ACCOUNT THE SHIPPING TERMS DESCRIBED HEREIN. ALUMICOR’S RISK AND LIABILITY IS ACCORDINGLY LIMITED, AND RISK AND RESPONSIBILITY WILL TRANSFER FROM ALUMICOR TO THE CUSTOMER IN THE MANNER DESCRIBED ABOVE.

11) Changes or Cancellations Made by the Customer

The Customer may, by providing written notice, make changes at any time within the general scope of the agreement to drawings, specifications, shipping instructions, quantities and delivery schedule. Upon receipt of such notice, the parties shall negotiate in good faith, within a reasonable time, an equitable adjustment in price and/or time for performance. The change shall become effective upon agreement concerning such adjustment and this agreement modified accordingly at that time. The Customer cannot cancel this agreement without prior written authorization from Alumicor. In the event that Alumicor agrees to the cancellation, the Customer agrees to compensate Alumicor for the value of the products and services rendered to the Customer, plus any costs incurred by Alumicor in affecting the cancellation, plus a reasonable markup.

12) Claims

All claims with respect to this agreement will be waived if not reported to Alumicor, in writing, within five calendar days after the date of the shipment of the products or the provision of the services which are the basis for the claim. The Customer’s exclusive remedy for any and all claims, including with respect to claims of defective products shall in no event exceed the invoice price for the products or services which are found to be defective or causing the claim or, at Alumicor’s election, Alumicor may replace the products provided that the Customer shall first deliver the claimed defective products to Alumicor’s plant (DAP Alumicor’s plant: freight prepaid) at the Customer’s sole cost and expense.

13) Limitation of Liability

ALUMICOR SHALL NOT BE LIABLE TO THE CUSTOMER FOR: (A) ANY LOSS OF TIME, BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, HOWSOEVER CAUSED; OR (B0 ANY DIRECT OR INDIRECT DAMAGES CAUSED BY OR RESULTING FROM ANY FAILURE OR DELAY IN THE PROCUREMENT, PRODUCTION, SHIPMENT OR DELIVERY OF ANY PRODUCTS OR PARTS THEREOF; ANY INACCURATE DIMENSIONS SPECIFIED IN A REQUEST FOR GLASS SIZES; THE CUSTOMER’S FAILURE TO CHECK ALL SHOP DRAWINGS AND ENGINEERING CALCULATIONS, IF ANY, AGAINST THE ACTUAL CONDITIONS AT THE CUSTOMER’S JOBSITE; ANY NEGLIGENT ACT OR OMISSION BY THE CUSTOMER; ANY BREACH OF THESE STANDARD TERMS & CONDITIONS BY THE CUSTOMER; OR ANY UNLAWFUL ACT BY THE CUSTOMER.

14) General Indemnity

The Customer shall irrevocably indemnify and save harmless Alumicor from and against any and all claims, suits, proceedings or complaints by third parties arising from, as a result of or in connection with the matters listed in Section 13, above, and all related liabilities, expenses (including reasonable lawyer’s fees and disbursements), judgments, interest and penalties.

15) Warranty

Alumicor’s standard warranties will apply with respect to this agreement.

16) Returned Material

Products may not be returned unless such return has been previously authorized in writing by Alumicor. Products returned under such authority will be subject to regular inspection. Products found sellable without reconditioning will be credited to the Customer’s account at the price less a handling charge of at least 15% (but possibly more) and incoming transportation charges. Products must be returned within three calendar days of authorization of their return.

17) Security Interest, Title and Risk of Loss

The Customer hereby grants, and Alumicor retains, a purchase money security interest in any and all products supplied to the Customer by Alumicor pursuant to a purchase order, and the title of all such products remains with Alumicor until the net purchase price is fully paid and all other obligations of the Customer are satisfied. Notwithstanding the foregoing, the Customer shall assume full risk of any loss of, or damage to, the products at the time and place where such products are loaded on the receiving vehicle of the applicable carrier, in keeping with the shipping terms hereunder.

18) Disputes

i) Mediation. Before any claim shall be submitted for dispute resolution under the arbitration clause, it must first be submitted for nonbinding mediation. Unless the parties agree to other terms as to the mediation, either party may request mediation by sending to the other a demand to mediate a claim. That demand shall include the names of three proposed mediators or a professional mediation service. The recipient of the mediation demand may either agree to one of the proposed mediators or suggest its own mediators. Unless the mediation is completed within 30 days after the demand for mediation is send, the mediation requirement will be deemed to have been waived by the parties. The mediation shall be confidential and no statements made in the mediation may be used against any party thereafter. The cost of the mediation shall be shared equally by Alumicor and the Customer.

ii) Arbitration. Unless specifically referenced to the contrary in this agreement, any disputes, claims or controversy related to this agreement shall be settled by binding arbitration in Toronto, Ontario, pursuant to the Arbitration Act, 1991 (Ontario), and the award rendered by the arbitrator shall be binding on both sides and may be entered into a court that has jurisdiction. The cost of the arbitration shall be shared equally by Alumicor and the Customer.

iii) Lien Rights. Nothing in this Agreement shall limit in any way any rights that Alumicor may have under applicable law to assert a lien (including a mechanic’s, repairer’s, contractor’s or subcontractor’s lien), or assert a claim against trust funds. For greater certainty, Alumicor may, at any time in its sole discretion, assert, register and enforce any and all such liens and claims against trust funds, including by way of court or administrative proceedings, to the full extent authorized by applicable law.

19) Defaults by the Customer

Alumicor shall have the right, in addition to any and all other rights and remedies it may possess under law and under these Standard Terms & Conditions, at any time, for credit reasons or because of the Customer’s defaults, to withhold shipment, in whole or in part, and to recall products in transit, retake same, and repossess all products which may be stored with Alumicor for the Customer’s account, without the necessity of taking any other proceedings, and the Customer consents that all products so recalled, retaken or repossessed shall become the absolute property of Alumicor, provided the Customer is given credit for such products.

If the work should be stopped or delayed for a period of 30 days or more under an order of a court or other public authority and providing that such order was not issued as the result of an act or fault of Alumicor, Alumicor may without any prejudice to any other right or remedy that it may have, terminate its agreement with the Customer upon written notice. If Alumicor terminates its agreement with the Customer pursuant to this Section 17, the Customer shall be liable, and shall reimburse Alumicor, for all costs incurred by Alumicor in connection with the termination, including future costs, plus a reasonable markup.

20) General

Alumicor reserves the right to make changes to the details, descriptions, technical specifications and standards of its products and services at any time without notice to the Customer. These Standard Terms & Conditions, together with any purchase order that is accepted by Alumicor and any related quotation that is issued by Alumicor, collectively constitute the entire agreement between the Customer and Alumicor. In the event of any conflict, these Standard Terms & Conditions will prevail over any purchase order or other documents issued by or to the Customer. No person other than a duly authorized officer or director of Alumicor has the authority to vary or waive the application of any of these terms and conditions, and any such variance or waiver shall be made in writing. The Customer shall not assign its rights under any purchase order or under these Standard Terms & Conditions without the prior written consent of Alumicor.

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Alumicor Warranty Information

STANDARD ANODIZING WARRANTY

LIMITED WARRANTY AND LIABILITY

Alumicor Limited (“Alumicor”) warrants, for a period of five (5) years from the original date of shipment or pick-up from the Alumicor plant of any product manufactured by Alumicor, that: (i) the anodic coating applied to such product shall meet AAMA 611-20 Voluntary Specification for Anodized Architectural Aluminum; and (ii) the colour of the anodic coatings will not change or fade more than five Delta E Hunter units as per the ASTM method D-2244.

During this five-year warranty period, Alumicor will, at its sole discretion, either: (i) reprocess, at its sole expense, any anodizing which in Alumicor has determined to be defective because of faults in the anodizing process; (ii) or anodize new material supplied by the Customer; or (iii) reimburse the Customer for the original price paid to Alumicor for the defective finish.

In no event will Alumicor be responsible for: (i) material costs: (ii) the costs associated with manufacturing formed products; (iii) the costs of removing or replacing anodizing material from any structure in which it may have been incorporated; or (iv) the cost of transporting faulty or replacement anodized metal.

CONDITIONS

This Warranty applies only to an Alumicor Product that is: (a) used in accordance with the technical specifications set out in Alumicor’s Product catalogue, a copy of which will be provided at your request; and (b) installed by authorized Alumicor dealers. Upon purchasing an Alumicor Product, you will be deemed to have read and understood the technical specifications for said Alumicor Product. Purchasers of Alumicor Products do not have authority to make any warranties in addition to, or inconsistent with, the terms or conditions set forth in this warranty.

The anodized materials must be handled as per AAMA Publication CW-10. 2015 (-15) , Care and Handling of Architectural Aluminum From Shop to Site, and any anodized materials must be maintained as per AAMA 609 and 610-15 Cleaning and Maintenance Guide for Architecturally Finished Aluminum.

This warranty does not extend or apply to anodized material that has:

• sustained water or condensation damage
• been subjected to standing or pooling water, a corrosive atmosphere, harmful fumes, or foreign substances
• been damaged by handling or during shipping, processing or installation
• been subjected to any form of negligence, misuse, abuse, abrasion or physical impact or any other physical damage whether intentional or accidental
• been subjected to improper storage or packaging after delivery
• been welded, formed, or bent post anodizing
• come in direct contact with other materials that are not compatible with the anodic coating.

This warranty does not extend or apply to aluminum that is not of anodizing quality, or that has pre-existing mill defects (pitting, corrosion, die lines, handling damage, etc). This includes the correct selection of an anodizing quality alloy.

This warranty does not extend or apply to damage that occurs as a result of Acts of God, accidents, fire, flood, acid rain or unforeseeable circumstances, or accident that exposes the finish to abnormal atmospheric conditions.

Alumicor will not be held responsible under any circumstances or be liable for any loss of benefit or of income or of any other direct, indirect, fortuitous, special, secondary or incidental damages resulting from a defective finish.

This warranty does not apply if Alumicor is not paid in full.

Aside from the limited warranty described above, Alumicor disclaims all other representations, warranties and conditions, expressed, implied or statutory, in respect of any Alumicor Product, including without limitation, any representations, warranties and conditions of merchantability or fitness for a particular purpose.

EXTENDED ANODIZING WARRANTY – Please contact your Alumicor representative for more information. Don’t know who to call? Check here for your area.

STANDARD PRODUCT WARRANTY

LIMITED WARRANTY AND LIABILITY

Aluminum entrances, windows, curtainwall and sloped glazing products with an anodizing finish (“Alumicor Products”) that are manufactured by Alumicor Limited (“Alumicor”), have a limited warranty against defects in manufacture under normal usage for a period of five (5) years from the original date of shipment or pick-up from the Alumicor plant.

During this five-year warranty period, Alumicor will, at its sole discretion, either repair or supply EXW the Alumicor plant a replacement for, any Alumicor Product that, in Alumicor’s sole judgment is defective; provided that Alumicor has been notified in writing by the customer, within thirty (30) calendar days of discovery of the defect. A defective Alumicor Product will be replaced by a product or part that is, in Alumicor’s sole judgment, identical, similar, or of like quality. Alumicor reserves the right to refund the original price received by Alumicor for the defective Alumicor Product.

This warranty does not cover the cost of labor, sundry materials or freight costs required to remove, deliver and/or replace defective Alumicor Product. The following items are also expressly excluded from this warranty: any sealed units, panels, hardware, finishes and other materials that are included in any Alumicor Product, but were manufactured or supplied by a third-party manufacturer; however these items may be covered by a separate warranty provided by such third-party manufacturer.

CONDITIONS

This Warranty applies only to an Alumicor Product that is: (a) used in accordance with the technical specifications set out in Alumicor’s Product catalogue, a copy of which will be provided at your request; and (b) installed by authorized Alumicor dealers. Upon purchasing an Alumicor Product, you will be deemed to have read and understood the technical specifications for said Alumicor Product. Purchasers of Alumicor Products do not have authority to make any warranties in addition to, or inconsistent with, the terms or conditions set forth in this warranty.

The finished goods must be handled as per AAMA CW-10-15, “Care and Handling of Architectural Aluminum From Shop to Site,” and any anodized materials must be maintained as per AAMA 609 and 610-15 “Cleaning and Maintenance Guide for Architecturally Finished Aluminum.”

The Alumicor warranty does not apply when damage to an Alumicor Product occurs from: (a) lack of maintenance; (b) installation that does not comply with good commercial installation practices; (c) from intense thermal or physical stresses; or (d) normal wear and tear.

This warranty does not extend or apply to damage that occurs as a result of Acts of God, accidents, fire, flood or unforeseeable circumstances, breakage of glass or screens, negligence, misuse, abuse, accident, color changes, frost or condensation on glass, aluminum and/or other parts due to inadequate building envelope.

The repair or replacement of an Alumicor Product or the refund of the original price received by Alumicor for the defective Alumicor Product is your sole and exclusive remedy under this Warranty. Alumicor will not be held responsible under any circumstances or be liable for any loss of benefit, profits or income or for any direct, indirect, consequential, special, punitive, or incidental damages resulting from your use of an Alumicor Product.

This warranty will not apply to any Alumicor Product and/or to any services provided by Alumicor that are not paid in full.

Alumicor reserves the right to make changes or improve any Alumicor Product at any time without any obligation to incorporate or install such changes or improvements in any Alumicor Product already fabricated and/or supplies.

Aside from the limited warranty described above, Alumicor disclaims all other representations, warranties and conditions, expressed, implied or statutory, in respect of any Alumicor Product, including without limitation, any representations, warranties and conditions of merchantability or fitness for a particular purpose.