Terms & Conditions of Sale - June 26, 2006
Terms & Conditions of Sale
These terms and conditions of sale shall apply to all orders accepted by Alumicor* and all quotations supplied by Alumicor to the Customer.
1) Prices
Current prices and discounts supersede any and all prices shown in previous price lists covering these products. Errors and omissions are subject to corrections. All prices are subject to change without notice unless specific reference is made to the contrary on Alumicor’s quotations.
2) Order Acceptance
All orders placed by the Customer shall be subject to acceptance by Alumicor and the approval of Alumicor’s credit department. Alumicor reserves the right in its sole discretion to refuse to accept, in whole or in part, any order placed by the Customer. Upon acceptance of the Customer’s order by Alumicor, Alumicor shall make reasonable efforts to fill the Customer’s order and deliver to Customer all of the goods ordered by the Customer as soon as practicable. Any commitment date or shipping date quoted or specified is approximate; however, the Customer agrees that Alumicor shall not be held liable for any failure or delay in the procurement, production, shipment or delivery of any goods arising from any cause whatsoever.
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 applicable. In the event that any taxes are payable, the Customer shall promptly either pay such taxes to Alumicor in accordance with any invoice therefore or where not noted on an invoice, remit such taxes directly to the appropriate taxing authorities. The Customer further agrees to indemnify Alumicor (and its officers, directors, shareholders, employees and agents) from and against any and all liabilities, claims, expenses, suits, proceedings or judgments (including reasonable attorney’s fees and any interest or penalties incurred in connection therewith) arising from the Customer’s failure to promptly pay or remit any such taxes.
4) Scope of Work
Alumicor will supply goods (products and services sold by Alumicor to the Customer) consistent with the Customer’s take off and Alumicor’s quotation. Anchors, fabrication fasteners, brackets and clips will only be supplied by Alumicor if specifically included in the quotation. Any structural support members required will be supplied by the Customer. All installation supplies shall be by the Customer. Alumicor will provide glass sizes only when requested in writing and when the product is manufactured to an approved shop drawing. A charge may be levied for these services. In complying with such request for glass sizes, Alumicor will not be liable for any loss, damage or expense resulting from inaccurate dimensions.
5) Shop Drawings and Engineering Calculations
5.0. If specifically included in Alumicor’s quotation, the following will apply with respect to shop drawings and engineering calculations.
5.1 Alumicor shall submit shop drawings to the Customer for approval. The 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 and will take no responsibility for failure of the customer to check the drawings against job site conditions. Shop drawings are 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 non compliance 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 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 project 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 at the end of the month following 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 this order, in addition to any other right Alumicor may have, Alumicor may elect to stop or withhold deliveries of materials until the owner brings the account up to date. If such stoppage occurs, the Customer shall be reasonable for reimbursing Alumicor for all costs incurred as a result.
9) Schedule
The schedule shall be mutually agreed to.
10) Packaging, Shipment and Receipt
Complete shipping instructions must be given on the purchase order. When this information is not given, Alumicor reserves the right to ship by the most suitable way as determined by Alumicor. Shipments made by carriers are subject to their own terms and conditions. If the job is quoted F.O.B. destination, upon arrival of the goods to the site or staging area, the Customer or the Customer’s representative is to sign the Bill of Lading “subject to count and inspection”. Upon signing the Bill of Lading, the insurance and protection of the goods then becomes 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.
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 goods and services rendered to the Customer, plus any costs incurred by Alumicor in affecting the cancellation, plus a reasonable markup.
12) Claims and Liabilities
All claims with respect to this agreement will be waived if not reported to Alumicor, in writing, within 15 calendar days after the date of the shipment of the materials or 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 goods and subject to Article 2, shall in no event exceed the invoice price for the goods or services which are found to be defective or causing the claim, or, at Alumicor’s election, Alumicor may replace the goods provided that the Customer shall first deliver the claimed defective goods to Alumicor’s plant (FOB Alumicor’s Plant) at the Customer’s cost. In no event shall Alumicor be liable for any special, indirect, exemplary, incidental, consequential, punitive damages, or damages for lost profits or lost revenues suffered by the Customer.
13) Warranty
Alumicor’s standard warranties will apply with respect to this agreement, copies of which are attached.
14) Returned Material
Merchandise may not be returned unless such return has been previously authorized in writing by Alumicor. Goods returned under such authority will be subject to regular inspection. Goods found sellable without reconditioning will be credited to the Customer’s account at the price invoiced less a 15% handling charge and incoming transportation charges. Goods must be returned within 30 calendar days of authorization of their return.
15) Security Interest, Title and Risk of Loss
The Customer grants and Alumicor retains a purchase money security interest in the goods purchased hereunder and title of these goods remains with Alumicor until the net purchase price is fully paid and all other obligations of the customer are satisfied. Notwithstanding the foregoing, the risk or damage to the goods will fall on the Customer from the time the goods are delivered to the Customer or the Customer’s agent.
16) Disputes
i) Mediation
Before any claim shall be submitted for dispute resolution under the arbitration clause, it must first be submitted for non-binding 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 shall be 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 equally shared by the parties.
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. The Arbitration Act of the Province of Ontario and the judgment upon the award rendered shall be binding on both sides and entered into a court that has jurisdiction. The two parties agree to evenly split the costs of the arbitrator. Notwithstanding anything in this Section to the contrary, nothing in this Agreement shall limit in any way Alumicor’s rights under mechanics lien or other lien laws, including but not limited to Alumicor’s rights with respect to trust funds, and accordingly Alumicor shall be entitled, without limitations, to file mechanics liens and other liens, to bring actions and proceedings to enforce such liens, and to bring any other actions or proceedings or authorized under mechanics lien or other lien laws.
17) 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 Terms and 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 therefore.
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 this agreement by giving notice to the Customer.
If Alumicor terminates this agreement under the conditions set out in this article, it shall be entitled to be paid for costs incurred including future costs pertaining to the termination, plus reasonable markup.
18) General
Details and descriptions of goods covered herein are Alumicor’s current standards. Alumicor reserves the right to make changes to these standards without notice. This agreement between the two parties represents the entire agreement and shall prevail over any terms and conditions in any purchase order or other documents used by the Customer. Neither party shall assign this agreement or any portion thereof, without the written consent of the other, which consent shall not be unreasonably denied.
* Alumicor Limited or Alumicor Corp.
Alumicor Warranty Information
STANDARD ANODIZING WARRANTY
SCOPE
Alumicor Limited (Alumicor), warrants to anodize aluminum supplied by a customer to Aluminum Association Standards as agreed upon with the customer, on the condition that the aluminum supplied is an alloy and temper that Alumicor recognizes as suitable to electrolytically colour or clear anodize and its grain structure and surface condition will readily accept standard pretreatment, anodizing and sealing, with the equipment, chemicals and process in use by Alumicor at the time of processing.
Only anodize quality (A.Q.) 6063 aluminum extrusion and 5005 aluminum sheet alloys containing less than .02% zinc by weight and aged at 350°F for 8 hours are acceptable.
Alumicor reserves the right to use an independent testing organization to determine if the aluminum supplied by a customer meets these standards.
Alumicor warrants to reprocess at its expense, any anodizing which in Alumicor’s sole discretion is defective because of faults in the anodizing process for a period of 1 year from the date of shipment of the product. Reprocessing will be done at Alumicor’s option, either by reprocessing the defective material or by processing new material supplied by the purchaser. Alumicor also reserves the right to repay 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, (iv) the cost of transporting faulty or replacement anodized metal.
CONDITIONS
- The Alumicor warranty applies only to products used exclusively for their purpose. Further, the warranty applies only if Alumicor’s products are installed by authorized Alumicor dealers.
- The Alumicor warranty does not apply when a defect occurs from abuse, lack of maintenance, improper installations by others who did not follow good installation practices and/or Alumicor’s instructions, or from intense thermal or physical stress.
- The Alumicor warranty is conditional on the user properly cleaning and maintaining the finish. More information on this can be obtained by contacting Alumicor.
- This warranty does not cover normal fading due to weathering.
- The Alumicor warranty does not extend or apply to damage as a result of Acts of God, accidents, fire, flood, or exposing 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.
- There are not other warranties or obligations expressed, implied or asserted by Alumicor which are beyond this warranty.
STANDARD PRODUCT WARRANTY - SUPPLY ONLY DRIVE-THRU WINDOWS
SCOPE
Drive thru windows with an anodizing finish, manufactured by Alumicor Limited (Alumicor), have a limited warranty against defects in manufacture under normal usage for a period of 1 year from the date of shipment and/or pick-up of Alumicor’s product.
Double glazed sealed units, panels, hardware, finishes and other materials included in the products covered by this warranty, but manufactured or supplied by others, are warranted in accordance with the manufacturer’s or supplier’s terms.
Alumicor will repair or supply F.O.B. its plants, at its sole discretion, any product or product components as covered by this warranty that, in Alumicor’s sole judgement is defective, provided Alumicor has been notified in writing by Alumicor’s customer, within thirty calendar days of discovering the defect. Defective products or parts will be replaced by products or parts that are, in Alumicor’s sole judgement, identical, similar or of like quality. Alumicor reserves the right to repay the original price paid to Alumicor for the defective material and/or service. This warranty does not cover the cost of labour, sundry materials or freight costs required to remove and/or replace defective product.
CONDITIONS
- The Alumicor warranty applies only to products used exclusively for their purpose. Further, the warranty applies only if Alumicor’s products are installed by authorized Alumicor dealers.
- The Alumicor warranty does not apply when a defect or breakage of a product or product’s components occurs from abuse, lack of maintenance, improper installations by others who did not follow good installation practices and/or Alumicor’s instructions, or from intense thermal or physical stress.
- The Alumicor warranty does not extend or apply to normal maintenance, or the replacement of normal wearing parts.
- The Alumicor warranty does not extend or apply to damage as a result of Acts of God, accidents, fire, flood or unforeseeable circumstances, breakage of glass or screens, colour changes, frost or condensation on glass, aluminum and/or other parts due to inadequate building envelope.
- 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 Alumicor product defects.
- This warranty does not apply for materials and/or services not paid in full.
- Alumicor reserves the right to make changes or improvements to its product design at any time without obligation to incorporate or install such changes or improvements in the products already fabricated and/or supplied.
- There are no other warranties or obligations expressed, implied or asserted by Alumicor which are beyond this warranty.
STANDARD PRODUCT WARRANTY - SUPPLY ONLY ENTRANCES, WINDOWS, CURTAIN WALL & SLOPED GLAZING PRODUCTS
SCOPE
Aluminum entrances, windows, curtain wall 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 one (1) year from the original date of shipment and/or pick-up of Alumicor products.
Double glazed sealed units, panels, hardware, finishes and other materials included in the Alumicor Products, but manufactured or supplied by third party manufacturers are excluded from this Warranty and are subject to the warranty provided by such third party manufacturer.
During this one (1) year warranty period, Alumicor will repair or supply F.O.B. its plant, at its sole discretion, any Alumicor Product that, in Alumicor’s sole judgement is defective, provided Alumicor has been notified in writing by Alumicor’s customer, within (30) thirty 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 judgement, 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 labour, sundry materials or freight costs required to remove, deliver and/or replace defective Alumicor Product.
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 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, colour 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 supplied.
- Alumicor disclaims all representations, warranties and conditions, expressed, implied or statutory, in respect of any Alumicor Product, including without limitation, representations, warranties and conditions or merchantability or fitness for a particular purpose.