Standard Terms and Conditions of Sale

Entire Agreement - The Terms of this document constitute a contract for sale between Commdoor Aluminum (a partnership of Fran-car 2000 Inc. and Fran-Car Aluminum Inc. and a company within the Toro Aluminum Group of Companies) (hereinafter "Seller" or “Commdoor”) and Buyer [designated on the face hereof] (hereinafter referred to as the “Buyer”). This document constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior purchase orders, understandings, negotiations, and discussions, whether oral or written, between the parties in connection herewith. This document shall not be expanded or supplemented by a course of dealing, usage of trade, or course of performance. The Terms shall prevail and take precedence over the provisions contained in any other prior correspondence, quotation, shipping document, purchase order or other instrument.

No terms and conditions which are inconsistent with or in addition to these Terms (including any amendment to the Terms contemplated herein) shall be binding on Seller unless they have been specifically reviewed and accepted in writing by Seller. Failure of Seller to object to any inconsistent or additional terms and conditions shall not be construed as a waiver, nor as an acceptance of any other terms and conditions.

Buyer shall be deemed to accept the Terms upon the earlier of: (a) Buyer’s receipt of this document; and (b) Buyer’s acceptance of all or any part of the goods delivered by, or on behalf of, the Seller pursuant to any purchase order or quotation (the "Goods").

1. Price - All prices, whether herein named or heretofore quoted or proposed, shall be valid for the period set out in the relevant quotation or customer price sheet, as applicable, and are based on quantities, sizes and descriptions set out. The Seller is not responsible for any interpretation of the description provided herein. All changes to purchase orders must be provided in writing and may be subject to price revisions. All finishing and non-stock extrusion orders will be subject to a minimum charge as set out in the relevant quotation unless otherwise agreed upon. All taxes, duties and other governmental or administrative charges and levies of any kind whatsoever resulting from or otherwise arising out of this contract, including, but not limited to, property, sales, use, value-added, withholding or other taxes which may be payable or collectable at the date hereof or in the future by Seller as a result of this contract shall be the responsibility of Buyer and shall be in addition to the price.
2. Terms of Payment - Buyer shall pay Seller for the Goods on the earlier of: (i) 30 days of the invoice date or (ii) in accordance with the specific agreed upon Terms. Buyer agrees to execute either prior or after delivery, upon Seller's request, a security agreement, financing statement, and any and all other documents or agreements necessary to give Seller a perfected security interest with respect to all Goods and proceeds thereof, and to pay the cost of filing same.
3. Credit Approval - All quotations are subject to Buyer credit approval by Seller. Seller reserves the right to refuse shipment of any and all goods identified in any quotation, to modify the Payment Terms identified therein or to cancel without penalty or charge any contract formed and concerning the Goods identified in its quotation if, in its sole discretion and for any reason whatsoever, Seller requests and is unable to secure acceptable payment assurances from Buyer for the goods identified in the quotation.
4. Delivery Time - All delivery times are approximate and are subject to variation without notice. No delivery shall occur until Seller has received all details from Buyer necessary to execute the order and Seller shall not be held liable for any such delay. Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer's requested delivery dates. The delivery date will be agreed on mutually between the Buyer and Seller. Buyer acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates, or for any loss or damage to Buyer or others as a result of any delay or change in the delivery time regardless of the cause. Delay in delivery of one instalment shall not entitle Buyer to cancel other instalments.
   
   Seller shall not be liable for any delay in performance due to acts of God, war, riot, embargoes, acts of civil war or military authorities, fires, floods, earthquakes, earth movements, accidents, strikes, labour unrest, delays in transportation, shortage or interruption in fuel, electricity, labour or materials, or any circumstance or cause beyond the control of Seller. In addition, Seller shall have the right, in the event of the happening of any of the above contingencies, to cancel this agreement or any part therefore without resulting liability.
5. Technical Aspects – Wind load analysis and thermal stress analysis are recommended to confirm Curtain Wall requirements and will be at the sole expense and responsibility of the Buyer. All quality requirements exceeding the Seller's standards must be specifically approved in advance by Seller’s Technical Department and shall bear an additional charge.
6. Delivery, Shipment, Risk of Loss - Shipments shall be F.O.B. Seller's warehouse and Buyer is responsible for collecting material from Seller’s facility unless agreed otherwise. All transportation charges shall be paid by Buyer in addition to the price of the Goods. Subject to Seller's right of stoppage in transit and payment of the price of the Goods, the earlier of: (i) notification to the Buyer that the Goods have been completed and are ready for shipment and (ii) delivery of the Goods to the carrier, shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. If payment of the price of the Goods is deferred on the basis of credit arrangements between the Buyer and Seller passage of title to the Goods shall be deferred to the date payment is received by the Seller. Regardless of whether title passes at the time of shipment Buyer agrees to assume risk for loss of, or damage to, the Goods from such time.
   
   At its own expense, Buyer shall procure and maintain adequate insurance on the Goods for the benefit of Buyer and Seller protecting against loss, damage, deterioration, or other casualty occurring during shipment. Seller shall not be responsible for any damage, including any concealed damage, of or to any Goods which occurred prior to or as a result of delivery of such Goods to Buyer, unless Buyer notifies Seller of any such damage within ten (10) days of receipt if delivered to Buyer’s plant or within three (3) days if delivered to the Buyer’s designated jobsite, of the relevant Goods, at which time the Seller shall have the right to field inspect such Goods to verify such damage and its cause. Commdoor accepts no liability for damage to Buyer’s vehicles incurred during loading of materials. Secondly, Commdoor, at its discretion will determine if Buyer transports are suitable for loading of Goods, and will refuse to load any vehicle Commdoor deems to be unsuitable.
7. Warranty - Seller warrants the Goods described below to its original purchaser only to be free from defects for the respective periods indicated below.
   1. Stock Lengths – 1 year from date of shipment
   2. Fabricated Goods – 1 year from date of shipment
   3. Finish
      1. Paint – TBD by Project Application at time of painting
      2. Anodized – five years for standard colour applications
   4. Customers’ Owned Material – Is not warranted, fabrication and supply is at Customer’s Own Risks
   5. Hardware
   6. Closers 20 years
   7. Door Hardware (cylinders, threshold, locks, hinges, electric strikes)
   8. Glazing Spline 1 year
   9. Custom Entrance Hardware (Panics) 1 year
   Each of Seller’s warranties set out in these Terms shall be void under any of the following circumstances:
   a) the Goods have not been paid for in full, according to the terms of sale.
   b) the Goods are installed outside of the continental limits of the United States and Canada; or
   c) the Goods have been abused or have not been stored and/or installed in a good and workmanlike manner. If any Goods are found to be defective and the warranties above apply, Seller will replace the applicable unit(s) without charge, FOB Seller’s plant or refund the purchase price of the unit(s), at its option. Defective Goods must be returned to the Seller’s plant at the expense of the Buyer. The Seller reserves the right to inspect in the field any material which is alleged to be defective. The warranty period of the replacement Goods will be limited to the remainder of the warranty period of the applicable original unit(s).
   Seller’s maximum liability under this warranty shall be to deliver replacement Goods, or the refunded purchase price, to the shipping point nearest to the place of installation. Seller will not be liable for any damage, labor or any other expenses arising from usage of the Goods hereby covered. Seller assumes no responsibility for Seller Supplied Materials, incompatibility with other products, faulty installation, abnormal weather conditions or damage caused by external factors or components. Seller’s sole liability shall be limited to the terms expressly stipulated herein.
   This warranty shall be void if Buyer is in breach of these terms and conditions of sale, including the terms of the warranty.
   No variation or change from this warranty will be binding upon Commdoor unless made in writing and signed by an officer of Commdoor.
8. THE BUYER DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS OR CONDITIONS, EITHER EXPRESSED OR IMPLIED INCLUDING THOSE ARISING OUT OF STATUTE OR AT COMMON LAW, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE GOODS. SELLER DOES NOT WARRANT THAT THE GOODS WILL SATISFY THE BUYER’S REQUIREMENTS OR THAT THE GOODS ARE WITHOUT DEFECT OR ERROR.
9. Buyer's Remediess - If the Goods furnished to Buyer are defective, and Buyer has notified Seller within the time prescribed above Seller shall replace such nonconforming Goods at the original point of delivery or refund the purchase price of such Goods at its option, and shall furnish instructions for its disposition.
   
   Such shall be the Buyer’s exclusive and sole remedy in respect of the Goods that are defective.
10. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL AUTHORITY, INCLUDING, BUT NOT LIMITED TO, LOSSES OR LIABILITIES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE GOODS, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. SELLER’S ENTIRE LIABILITY AND BUYER’S SOLE REMEDY FOR ANY AND ALL DAMAGES WITH RESPECT TO ANY GOODS ACQUIRED BY BUYER FROM SELLER SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY BUYER WHICH SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL OF ALL AMOUNTS PAID BY BUYER FOR THE GOODS WHICH GIVE RISE TO THE CLAIM.
11. Return of Goods - Buyer agrees not to return Goods for any reason, except upon the written consent of Seller obtained in advance of such return, which consent, if given, shall specify the terms and conditions upon which any such return may be made.
12. Seller's Right of Possession - Seller shall have the right in addition to all others it may possess, at any time, for credit reasons or because of Buyer's default or defaults, to withhold shipments, in whole or in part, and to recall Goods in transit, retake same, and repossess all Goods which may be stored with Seller for Buyer's account without the necessity of taking any other proceedings, and Buyer consents that all Goods so recalled, retaken, or repossessed shall become the absolute property of Seller. In the event that Buyer defaults in the due performance of or compliance with any of the terms or conditions hereof, or a proceeding in bankruptcy, assignment for benefit of creditors, insolvency, receivership or reorganization be instituted by or against Buyer or Buyer's property or business, or Buyer is anywise liquidated, Seller may, at its option, terminate this agreement upon written notice and shall be relieved of all obligations hereunder. If Buyer is in breach of the terms hereof, Seller shall have a right to receive as damages the price for the Goods as stated herein. Upon recovery of the price, the Goods shall become the property of Buyer. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer.
13. Nonwaiver by Seller - Waiver by Seller of any default or breach of any of the terms and conditions or performance of this contract shall not be construed as a waiver of any other default or breach.
14. Governing Law - The Purchase Order shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
15. Arbitration - In the event of any difference or dispute arising under this Agreement, the disputing party shall give written notice of such dispute (the “Dispute Notice”) to the other party, setting out reasonable details of the dispute. Failing settlement of the dispute by Seller and Buyer within thirty (30) days after the giving of the Dispute Notice, the dispute shall be determined by a single arbitrator in accordance with the Arbitrations Act, (Ontario) as amended from time to time.
16. Cancellation - Buyer agrees that an order shall in no event be subject to cancellation except by prior written consent of Seller and then only when Seller is fully reimbursed for work performed and materials used.
17. Severability - The invalidity in whole or in part of any provision of these terms and conditions shall not affect the validity of any other provision.
18. Language - The parties hereby acknowledge to have specifically requested that this Agreement and all related documents and notices be drawn up in the English language. Les parties aux présentes déclarent qu'elles ont exigé que cette convention et tous Les documents et avis qui s'y rattachent soient rédigés en langue anglaise.
19. Notices - Any notices required to be given shall be in writing and sent by registered mail, facsimile or by courier addressed to each party at the address set out on the relevant purchase order or quotation and such notices if sent by facsimile shall be deemed received on the next day following transmission other than Saturdays, Sundays, Statutory and Civic holidays. If sent by courier such shall be deemed received on the day delivery is acknowledged by the recipient. If sent by registered mail such shall be deemed received the next day following confirmation of delivery by Canda Post tracking service other than Saturdays, Sundays, Statutory and Civic holidays.
20. Headings - The headings used herein are for reference purposes only and shall not affect the meaning or interpretation hereof.