TERMS AND CONDITIONS

TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS

1. Applicability and Acceptance. All materials furnished by Seller (“Materials”) to Customer and all labor and services that may be provided by Seller (the “Services”) shall be subject to, and conditioned upon, these Standard Terms and Conditions (“Terms”). Seller expressly rejects all new, different or additional terms of sale submitted by Customer. The Terms shall not be altered or interpreted by reference to any course of dealing between Seller and Customer or industry practice or standards.

2. Purchase Price. All prices listed in the purchase order or quote from Seller are valid for 30 days from the date of issue of the purchase order or quote unless specifically stated otherwise in the purchase order or quote.

3. Terms of Payment. If timely payment is not made, the account will be considered past due. Customer agrees to pay to Seller (i) a finance charge of 1.5% per month (18%APR), or the highest rate permitted by law, from the due date until paid, and (ii) all of Seller’s reasonable attorneys’ fees, costs (including court costs), and legal expenses incurred in the course of enforcing Seller’s legal rights against Customer, whether or not in connection with a judicial proceeding, including Seller’s post-judgment attorneys’ fees.

4. Taxes. Each party shall be responsible for and shall pay any and all taxes applicable to such party in connection with the purchase of Materials or provision of the Services.

5. Changes in the Law or Cost of Transport. Increased costs incurred by Seller as a result of changes in the law after the date of the purchase order, quote or credit application shall be reimbursable. Any increase in the cost of transport after the date of the purchase order, quote or credit application shall be reimbursable. Any extra costs of utilizing substitute methods of delivery when the intended type of carrier, vehicle or loading or unloading facilities become unavailable, shall also be reimbursable.

6. Designations. Customer agrees that, on the basis of information provided by Customer, Seller may, in its sole discretion, designate on the invoice for all Materials the lot, unit, or parcel into which the Materials are/were to be incorporated. Such designation shall be conclusive and binding as to the use of such Materials unless Customer provides to Seller in writing a correction of such designation within 15 days from the date of such invoice. Customer further agrees that all sales designated as aforesaid to a particular lot, unit or parcel, from the first sale to the last sale, shall be deemed to be a part of one supply contract applicable to such lot, unit or parcel for purposes of determining any time requirements applicable to enforcement by Seller of any lien, payment bond or other collection rights against such lot, unit or parcel or other rights of collection for such sales.

7. Notice and Acceptance. Customer has 5 business days from the date of delivery (including the date of delivery) of any Materials to object that the Materials are non-conforming or unauthorized. Such objection will be via written notice to Seller. Rejected Materials must be received by Seller within 10 days from the date of the initial delivery. Seller agrees to replace any rejected Materials within 10 days of receipt and prior to installation. If a rejection notice is not timely received Customer shall be deemed to have accepted Materials as conforming and/or authorized. Customer waives any and all right to set off claims and/or withhold payment based on a claim that Seller is indebted or has any obligation to Customer.

8. Custom Orders. Customer acknowledges and agrees that special, custom or non-stock orders are made specifically for Customer and are non-cancelable. If Customer purports to cancel or does not accept delivery, Seller will attempt to repurpose the order and Customer shall pay a reasonable restocking fee. If Seller is unable to repurpose the order, Seller shall be entitled to the cost of the special, custom or non-stock order plus a reasonable restocking fee.

9. Materials with Flush Sills. Certain Materials have sills that are flush with the ground. Flush sill Materials pose a risk that water will penetrate the sill and enter the interior of the home, even with a proper install. Water entering through the sill could lead to (i) water damage to interior floors, walls, furniture, or other possession; and (ii) cause interior floors to be slick, which could lead to slips or falls in the home. Customer assumes the risk that water causes upon entering the sill of a flush sill Material.

10. Plans; Measurements. Materials are described, labeled, quoted, and sold by standard “nominal size” nomenclature. Actual NET or MEASURED sizes vary by mill and/or manufacturer. Seller only agrees to furnish, deliver and install, as the case may be, the Materials based upon the specifications, measurements, and most recent plans provided to Seller by Customer. Seller shall be entitled to rely on the accuracy of any plans or specifications Seller receives from Customer (collectively “Plans”). If Seller is fabricating, sourcing or manufacturing materials for Customer based on the Plans, Seller shall not be liable to Customer for any damage resulting from any errors, inconsistencies or omissions that may occur from such Plans. Customer’s remedy for any damage resulting from any errors, inconsistencies or omissions that may occur from the Plans shall be the limited remedies set forth below.

11. Delivery and Lien Rights. Seller delivers all Materials to the curb. Seller is not responsible for damage when Customer requests delivery to the Customer’s project. Customer agrees to use Materials from Seller in and upon the Customer’s project only, and not at any other projects. Title in and transfer of risk in the Materials shall occur upon delivery. However, Seller reserves, until full payment is received, a purchase money security interest in each product delivered. Nothing in these Terms shall be construed as a waiver of the right of Seller to impose and enforce its mechanics lien or trust fund rights. Seller shall have no liability to Customer for the Materials upon delivery and Customer agrees and understands that Customer is responsible for proper storage and care of the Materials once delivered in accordance with all manufacture specifications, requirements and recommendations. If Customer directs Seller to provide substituted material, Seller makes no representation or warranty as to the suitability or adequacy of such substituted material and Customer bears sole responsibility for determining whether such substituted material conforms in all respects to the Plans.

12. Product Pickup Policy.
(a) Customer is responsible for and releases Seller from any damage to Customer’s vehicle from loading and unloading Materials. Seller may refuse to load product if Customer does not bring an appropriately sized vehicle. Customer is responsible for tie-down and safe transportation of the Materials to their intended destination. Seller’s warranty does not cover damage that occurs from improper tie-down or from the effects of transit.
(b) Customer is responsible for the accuracy of the order. At time of pick-up, Customer must check for damaged or missing items and note the damaged or missing items on the pick ticket. Customer may not make a claim for damaged or missing items after pick-up. Note-Customer must exercise extreme caution in product pick-up areas. There are moving trucks and forklifts in the product pick-up areas. Customer must stay with their vehicle and not permit children to exit the vehicle while in pick-up areas.

13. Seller’s Obligations. Seller shall perform the Services in a good and workmanlike manner in accordance with generally recognized industry standards for similar services. However, Customer agrees and understands that Seller cannot (and shall have no obligation to) protect Materials once delivered or, in the case of Services, protect the Materials or completed work once installed. Seller shall not be responsible for testing and inspection of the Materials, or labor harmony at the jobsite. Seller shall not be liable for any damages relating to poor install conditions or for improper installation when Customer neglects to provide adequate install conditions.

14. Design Services. Nothing contained in the purchase order or quote shall be deemed to require or authorize Seller to perform or do any acts which would be deemed the practice of architecture or engineering within the meaning of the laws of the State where delivery or services occur. Seller does not assume liability for the architect, engineer or any other design professional providing services to Customer. Customer represents and warrants that no Plans are copyrighted by any third party, or if they are, that Customer has duly obtained authority to use, copy or modify such Plans.

15. Customer’s Obligations. For any Services, Customer shall (i) cooperate with Seller in all matters relating to the Services and provide access to the site for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services; (iii) provide Customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; (iv) provide adequate install conditions; and (v) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

16. Customer Default. In the event of Customer’s default, Seller may, after giving Customer a reasonable opportunity to cure, terminate the purchase order or quote and cease providing Materials and Services. Upon default, Customer agrees to pay all costs of collection, court costs, and expenses, including reasonable attorneys’ fees, incurred by Seller, whether involving collecting payments due or otherwise enforcing these Terms.

17. Safety. Seller shall not be responsible for the safety program at the site or the safety of any entity or person at the site other than Seller and its employees.

18. Warranty. Materials shall be new and conform in all material respects with the Plans. Customer is responsible for selecting which Materials it chooses to purchase and for what purposes those Materials will be used. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSES OR MERCHANTABILITY OF THE MATERIALS AND SERVICES, AND CUSTOMER HEREBY WAIVES ANY SUCH REPRESENTATIONS OR WARRANTIES. CUSTOMER AGREES THAT THE SOLE AND EXCLUSIVE REMEDY AGAINST SELLER FOR ANY LATENT DEFECTS IN THE MATERIALS SHALL BE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR REFUND OF PURCHASE PRICE, WITH THE REMEDY TO BE SELECTED BY SELLER IN ITS SOLE DISCRETION (“LIMITED REMEDIES”). LIMITED REMEDIES SHALL BE AVAILABLE FOR A PERIOD OF 1 YEAR FROM THE DATE OF DELIVERY OR SUBSTANTIAL COMPLETION OF THE SERVICES AS APPLICABLE. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES. LIMITED REMEDIES SHALL NOT BE AVAILABLE IN THE EVENT OF IMPROPER STORAGE, INSTALLATION, REPAIR, MISAPPLICATION OR MISUSE, OPERATION, MODIFICATION, ABNORMAL CONDITIONS OR FAILURE TO PROPERLY MAINTAIN BY CUSTOMER OR FORCE MAJEURE EVENT.

19. Third-Party Manufacturer’s Warranties. Materials may be warranted by others and Seller may deliver certain third-party manufacturer warranties to Customer, but Seller shall have no liability under such warranties except to assist in the administration of such third-party warranties.

20. Limitation of Liability. Except for bodily injury or property damage due to the gross negligence or willful misconduct of Seller, Seller shall have no liability whatsoever to Customer or its affiliates in an amount of damages in excess of the amount of the purchase order or quote.

21. Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY GENERAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PARTY, INCLUDING WITHOUT LIMITATION THOSE FOR LOST PROFITS OR SALES, ADDITIONAL LABOR OR INJURY TO PERSON OR PROPERTY.

22. Subcontractors. Customer acknowledges that Seller may, at its option, subcontract part or all of the Services to independent contractors. These subcontractors, their agents and employees do not have authority to make, amend, or modify contracts on behalf of Seller, or to extend credit in Seller’s name, or to make any representations or warranties concerning any goods, materials, or installation services provided to Customer. Customer waives, and Seller disclaims, all liability of Seller for any direct, indirect or consequential damages to persons or property arising from any acts or omissions committed or permitted by Seller’s subcontractors (their agents and employees), outside the strict scope of the subcontractor’s work assignment in their contract with Seller.

23. Indemnification. To the fullest extent permitted by law, Customer agrees to indemnify, defend, and hold harmless Seller, its employees, agents, affiliates and parent corporations from and against all claims, costs (including but not limited to attorneys’ fees and costs), losses, liabilities and general, incidental, special, consequential and other damages asserted against or incurred by Seller, its employees, agents, contractors, affiliates and/or parent corporations with respect to or arising out of any act, error or omission of Seller its employees, agents, affiliates and parent corporations (in each case regardless of whether based on negligence, breach of contract or warranty, injury to person or property and/or otherwise and whether asserted by any Customer, transferee or assignee of Customer or by any other party).

24. Performance Dates. Seller shall use reasonable efforts to meet any performance dates to deliver and/or install the Materials, and any such dates shall be estimates only. For the avoidance of doubt, time shall not be of the essence and the Seller shall incur no liability to the Customer in respect of any failure to deliver and/or install the Materials by any agreed date.

25. Force Majeure. Seller shall not be liable to Customer or any third party for any failure or delay in the performance of Seller’s obligations that arises out of, or is caused, directly or indirectly, by fires, strikes, wars, accidents, acts of god, product availability, action of any State, Federal, or local government body or agency, disease, virus or pandemic (including but not limited to COVID-19) or other circumstances beyond its control, (each a “Force Majeure Event”) or the threat of a Force Majeure Event. If as a result of a Force Majeure Event or a Customer caused delay (a) an increase of raw material prices occurs between the date of the purchase and the date of delivery, Seller is entitled to a respective adjustment of the purchase price; and/or (b) Seller incurs labor and/or general conditions costs increases, Seller is entitled to a respective adjustment of the purchase price.

26. Confidentiality. All information, including without limitation pricing and volume information concerning the Materials, material handling schemes or methodologies, electronic catalogs, reports, data processing configurations and approaches and related information are strictly confidential. All methodologies, know-how, proprietary information, materials, drawings and other information which have been developed by Seller shall remain the property of Seller.

27. Notices. Except as otherwise provided by law or herein, any notice provided for this purchase shall be given in writing by mailing such notice by first class mail to the other party, and such notice shall be deemed to have been given when postmarked, postage prepaid and properly addressed to the other party. Any notice to Customer shall be mailed to such address as Customer may designate. Any notice to Customer shall be mailed to Customer’s address designated on the first page of the Purchase Order or Credit App, or if none is designated, to Customer’s last known address on file with Seller.

28. Solvency. Customer represents that it is solvent and that it knows of no one that intends to institute any insolvency proceedings against it nor of any reason why such proceedings should be instituted against it and that it has not instituted and does not intend to institute any such proceedings for itself. It is understood that Seller is transacting with Customer in reliance upon said representations. If any of such representations are false, Seller shall have the right to withhold delivery, terminate the order, or reclaim any part or all of the Materials shipped to Customer. If Customer has sold any or all of such Materials, the proceeds there from, whether paid or unpaid, shall be deemed to be held by Customer in trust for Seller. This provision shall not, in any way, be deemed to limit any rights or remedies otherwise available to Seller.

29. Dispute Negotiation and Arbitration.

(a) Customer shall attempt in good faith to promptly negotiate and resolve any dispute arising out of, or relating to, these Terms or any Agreement between Customer and Seller. The negotiation must be between executives who have authority to settle the controversy. Customer must give Seller written notice of any dispute not resolved in the normal course of business. After delivery of the notice, Seller shall submit a written response to the Customer within a reasonable time. With reasonable particularity, the notice and response must include (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. The negotiation ends at the close of the first meeting of executives described above (“First Meeting”). The close of the First Meeting does not preclude continuing or later negotiations, if desired. If either party requests continuing negotiations, then the parties must follow the notice and meeting requirements above. The parties may not request continuing negotiations more than once. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. Prior to the First Meeting, Customer may not initiate arbitration or litigation for any issue related to these Terms.

(b) If Customer and Seller are unable to resolve an issue by negotiation, then the following procedure must be followed after attempting negotiation in good faith: For an issue of less than $75,000, then either party may initiate litigation; For an issue of $75,000 or more, then either party may request arbitration. The American Arbitration Association(“AAA”) shall administer the arbitration pursuant to the AAA’s Construction Industry Arbitration Rules. A single arbitrator shall hear the arbitration. The arbitrator has the power to determine any issue arising out of, or relating to, these Terms or any Agreement between the parties, including breach, termination, enforcement, interpretation, or validity. The arbitrator has power to determine the scope and applicability of these arbitration clauses. The arbitration will take place in Gilbert, Arizona. The arbitrator must determine the number and length of depositions based upon the complexity of the issue. The arbitrator may allow document discovery. The parties may not raise objections, except objections based on privilege, proprietary, or confidential information. The parties may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The brief must include a statement of each party’s position and a summary of arguments supporting that position. Also, the parties may submit materially relevant documents. Time is of the essence in dispute resolution. The arbitrator shall hold the hearing within 90 days of filing for arbitration and awards issued within 120 days. The arbitrator must agree to these limits prior to accepting appointment. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some, but not all, of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim and counterclaim. The arbitrator may not include punitive, consequential, or incidental damages in the award. The arbitrator may not split the award equally among the parties unless the fault is clearly split between the parties. Within 30 days of receipt of any arbitration award, which shall not be binding if an appeal is taken, any party may notify the AAA of an intention to appeal to a second arbitrator, constituted in the same manner as the initial arbitration. For the appellate arbitration, each party may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The appellate arbitrator may adopt the initial award, modify the initial award, or substitute its own award for the initial award. If the appellate arbitrator modifies or substitutes the initial award, then the appellate arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim. The appellate arbitrator has no authority to modify or replace any part of the award that does not relate to the manifest disregard of the law claim. The appellate arbitrator’s award is final and binding, and judgment may be entered by a court having jurisdiction.

(c) This Dispute Negotiation and Arbitration clause shall not preclude any party from filing a statutory construction lien or from commencing suit to foreclose a lien, but the foreclosure suit shall be stayed until the rendering of the arbitration award, which award shall be binding in the foreclosure suit as to all matters determined in arbitration, and the lien may then be foreclosed to the extent permitted by law.

(d) If a court, mediator, or arbitrator holds a provision of this Dispute Negotiation and Arbitration clause to be unenforceable, all other provisions remain in full force.

(e) The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

30. Law/Jurisdiction. All matters relating to this purchase of Materials and Services shall be governed by the laws of the state where the Customer’s project is located. Any action by Customer instituted against Seller arising from the Services must be commenced within 1 year from the date of Substantial Completion of the Services, as determined solely by Seller.

31. No Waiver. Any waiver or non-enforcement by Seller of a breach, default or term hereunder shall not be deemed a waiver of any subsequent or other breach or default or enforcement of such term. Seller shall only be deemed to have given such waiver if in a writing executed by Seller explicitly providing for such waiver. If any provision hereunder is waived by Seller or is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect as if such invalid, unenforceable or waived provision were not contained herein.

32. Precedence. To the extent of any inconsistency between these Terms and any other terms (including without limitation any terms in any invoice, quote, or other contract) these Terms shall prevail.

SUPPLY TERMS AND CONDITIONS

1. Applicability. All sales of product (the “Materials”) by Seller are subject to and expressly conditioned upon the terms set forth in this Addendum to subcontract (the Subcontract as modified by this addendum collectively “Subcontract”).

2. Notice and Acceptance. Customer has 5 business days from date of delivery (including the date of delivery) of any Materials to object that Materials are non-conforming or unauthorized. Such objection will be via written notice to Seller. Rejected Materials must be received by Seller within 10 days from the date of the initial delivery. Seller agrees to replace any rejected Materials within 10 days of receipt and prior to installation. If a rejection notice is not timely received Customer shall be deemed to have accepted Materials as conforming and/or authorized. Customer waives any and all right to set off claims and/or to withhold payment based on a claim that Seller is indebted or has any obligation to Customer.

3. Custom Orders. Customer acknowledges and agrees that special, custom or non-stock orders are made specifically for Customer and as such are non-cancelable. If Customer purports to cancel or does not accept delivery, Seller will attempt to repurpose the order. If Seller is able to repurpose the order, Customer shall pay a reasonable restocking fee. If Seller is unable to repurpose the order, Seller shall be entitled to the cost of the special, custom or non-stock order plus a reasonable restocking fee.

4. Materials with Flush Sills. Certain materials have sills that are flush with the ground. Flush sill Materials pose a risk that water will penetrate the sill and enter the interior of the home, even with a proper install. Water entering through the sill could lead to (i) water damage to interior floors, walls, furniture, or other possessions; and (ii) cause interior floors to be slick, which could lead to slips or falls in the home. Customer assumes the risk that water causes upon entering the sill of a flush sill Material.

5. Delivery and Lien Rights. Seller delivers all Materials to the curb. Seller is not responsible for damage when Customer requests delivery to the Customer’s premises (the “Project”). Customer agrees to use Materials from Seller in and upon the Project only, and not at any other projects. Title in and transfer of risk in the Materials shall occur upon delivery. However, Seller reserves, until full payment is received, a purchase money security interest in each product delivered. Nothing in these Terms shall be construed as a waiver of the right of Seller to impose and enforce its mechanics lien or trust fund rights. Seller shall have no liability to Customer for the Materials upon delivery and Customer agrees and understands that Customer is responsible for proper storage and care of the Materials once delivered in accordance with all manufacture specifications, requirements and recommendations.

6. Payments. Customer’s payment to Seller is not and shall not be contingent or conditioned upon Customer’s receipt of payment from a project owner or any other party. Seller shall be under no obligation to continue working if it is not being paid in a timely manner through no fault of its own. Increased costs incurred by Seller as a result of changes in the law after the date of the Subcontract shall be reimbursable. Any increase in the cost of transport after the date of the Subcontract shall be reimbursable. Any extra costs of utilizing substitute methods of delivery when the intended type of carrier, vehicle or loading or unloading facilities become unavailable, shall also be reimbursable.

7. Notices of Seller Default. Except in the case of an emergency or safety related matter, Seller shall receive at least 3 days prior written notice from Customer of any default (including any purported withholding or backcharge) under this Subcontract with reasonable opportunity to commence cure, before Customer may pursue any of its remedies, unless a longer notice period is required under the Subcontract.

8. Customer Default. In the event of Customer’s default, Seller may, after giving Customer a reasonable opportunity to cure, terminate the Subcontract and cease providing Materials. Upon default, Customer agrees to pay all costs of collection, court costs, and expenses, including reasonable attorneys’ fees, incurred by Seller, whether involving collecting payments due or otherwise.

9. Supplier Only. Seller is a materials supplier only and the “Work” includes only delivery of certain Materials to the Project. Any provisions that are intended to apply to a contractor whose work includes installation, assembly, warranty, fabrication or finishing shall not apply to Seller. Seller does not and will not perform installation services or other jobsite related services. Any and all provisions pertaining to site work, site conditions, site safety and cleanup, the work of other trades, protection of work, onsite insurance requirements, testing and inspection of Materials, and labor relations shall be deemed inapplicable to this Subcontract. Retainage is not applicable. Nothing contained in the Subcontract shall be deemed to require or authorize Seller to perform or do any acts which would be deemed the practice of architecture or engineering within the meaning of the laws of the State where the Project is located. Seller does not assume liability for the architect, engineer or any other design professional providing services to Customer.

10. Limitations to Scope of Work. Materials are described, labeled, quoted and sold by standard “nominal size” nomenclature. Actual NET or MEASURED sizes vary by mill and/or manufacturer. Seller only agrees to furnish and deliver the Materials based upon the specifications, measurements and most recent plans provided to Seller by Customer (collectively “Plans”). Seller shall be entitled to rely on the accuracy of any plans or specifications Seller receives from Customer. The terms of any prime contract shall only apply to Seller to the extent they expressly relate to the Materials. Seller shall be provided with a copy of the specific terms in the prime contract that apply to the Materials. If Customer directs Seller to provide substituted material, Seller makes no representation or warranty as to the suitability or adequacy of such substituted material and Customer bears sole responsibility for determining whether such substituted material conforms in all respects to the Plans.

11. Warranty. Materials shall be new and conform in all material respects with the Plans. Customer is responsible for selecting which Materials it chooses to purchase and for what purposes those Materials will be used. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSES OR MERCHANTABILITY OF ANY MATERIALS, AND CUSTOMER HEREBY WAIVES ANY SUCH REPRESENTATIONS OR WARRANTIES. CUSTOMER AGREES THAT THE SOLE AND EXCLUSIVE REMEDY AGAINST SELLER FOR ANY LATENT DEFECTS IN THE MATERIALS SHALL BE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR REFUND OF PURCHASE PRICE, WITH THE REMEDY TO BE SELECTED BY SELLER IN ITS SOLE DISCRETION (“LIMITED REMEDIES”). LIMITED REMEDIES SHALL BE AVAILABLE FOR A PERIOD OF 1 YEAR FROM THE DATE OF DELIVERY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES. LIMITED REMEDIES SHALL NOT BE AVAILABLE IN THE EVENT OF IMPROPER STORAGE, INSTALLATION, REPAIR, MISAPPLICATION OR MISUSE, OPERATION, MODIFICATION, ABNORMAL CONDITIONS OR FAILURE TO PROPERLY MAINTAIN BY CUSTOMER OR FORCE MAJEURE EVENT.

12. Third-Party Manufacturer’s Warranties. Materials may be warranted by others and Seller may deliver certain third-party manufacturer warranties to Customer, but Seller shall have no liability under such warranties except to assist in the administration of such third party warranties.

13. Subcontracting: Seller reserves the right to subcontract all or any portion of its work without prior approval of Customer. Customer may not make payments directly to Seller’s subcontractors without Seller’s written consent.

14. Commercially Reasonable Costs. All costs and/or expenses, including back charges or attorney fees that the Seller is or may be liable for shall be commercially reasonable in amount.

15. Limitation of Liability. Except for bodily injury or property damage due to the gross negligence or willful misconduct of Seller, Seller shall have no liability whatsoever to Customer or its affiliates in an amount of damages in excess of the amount of the Subcontract.

16. Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY GENERAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PARTY, INCLUDING WITHOUT LIMITATION THOSE FOR LOST PROFITS OR SALES, ADDITIONAL LABOR OR INJURY TO PERSON OR PROPERTY.

17. Schedule and Force Majeure. Any change in or resequencing of the original schedule shall be mutually agreed to by the parties. Seller shall not be liable to Customer or any third party for any failure or delay in the performance of Seller’s obligations that arises out of, or is caused, directly or indirectly, by fires, strikes, wars, accidents, acts of god, product availability, action of any State, Federal, or local government body or agency, disease, virus or pandemic (including but not limited to COVID-19) or other circumstances beyond its control (each a “Force Majeure Event”) or the threat of a Force Majeure Event. In the event of any such Force Majeure Event or Customer caused delay, the time for performance of Seller’s obligations shall be extended for a reasonable period of time. If as a result of a Force Majeure Event or a Customer caused delay an increase of raw material prices occurs between the date of the purchase and the date of delivery, Seller is entitled to a respective adjustment of the purchase price.

18. Dispute Negotiation and Arbitration.

(a) Customer shall attempt in good faith to promptly negotiate and resolve any dispute arising out of, or relating to, this Subcontract between Customer and Seller. The negotiation must be between executives who have authority to settle the controversy. Customer must give Seller written notice of any dispute not resolved in the normal course of business. After delivery of the notice, Seller shall submit a written response to the Customer within a reasonable time. With reasonable particularity, the notice and response must include (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. The negotiation ends at the close of the first meeting of executives described above (“First Meeting”). The close of the First Meeting does not preclude continuing or later negotiations, if desired. If either party requests continuing negotiations, then the parties must follow the notice and meeting requirements above. The parties may not request continuing negotiations more than once. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. Prior to the First Meeting, Customer may not initiate arbitration or litigation for any issue related to this Subcontract.

(b) If Customer and Seller are unable to resolve an issue by negotiation, then the following procedure must be followed after attempting negotiation in good faith: For an issue of less than $75,000, then either party may initiate litigation; For an issue of $75,000 or more, then either party may request arbitration. The American Arbitration Association(“AAA”) shall administer the arbitration pursuant to the AAA’s Construction Industry Arbitration Rules. A single arbitrator shall hear the arbitration. The arbitrator has the power to determine any issue arising out of, or relating to, this Subcontract between the parties, including breach, termination, enforcement, interpretation, or validity. The arbitrator has power to determine the scope and applicability of these arbitration clauses. The arbitration will take place in Gilbert, Arizona. The arbitrator must determine the number and length of depositions based upon the complexity of the issue. The arbitrator may allow document discovery. The parties may not raise objections, except objections based on privilege, proprietary, or confidential information. The parties may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The brief must include a statement of each party’s position and a summary of arguments supporting that position. Also, the parties may submit materially relevant documents. Time is of the essence in dispute resolution. The arbitrator shall hold the hearing within 90 days of filing for arbitration and awards issued within 120 days. The arbitrator must agree to these limits prior to accepting appointment. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some, but not all, of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim and counterclaim. The arbitrator may not include punitive, consequential, or incidental damages in the award. The arbitrator may not split the award equally among the parties unless the fault is clearly split between the parties. Within 30 days of receipt of any arbitration award, which shall not be binding if an appeal is taken, any party may notify the AAA of an intention to appeal to a second arbitrator, constituted in the same manner as the initial arbitration. For the appellate arbitration, each party may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The appellate arbitrator may adopt the initial award, modify the initial award, or substitute its own award for the initial award. If the appellate arbitrator modifies or substitutes the initial award, then the appellate arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim. The appellate arbitrator has no authority to modify or replace any part of the award that does not relate to the manifest disregard of the law claim. The appellate arbitrator’s award is final and binding, and judgment may be entered by a court having jurisdiction.

(c) This Dispute Negotiation and Arbitration clause shall not preclude any party from filing a statutory construction lien or from commencing suit to foreclose a lien, but the foreclosure suit shall be stayed until the rendering of the arbitration award, which award shall be binding in the foreclosure suit as to all matters determined in arbitration, and the lien may then be foreclosed to the extent permitted by law.

(d) If a court, mediator, or arbitrator holds a provision of this Dispute Negotiation and Arbitration clause to be unenforceable, all other provisions remain in full force. (e) The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. 19. Law/ Jurisdiction. All matters relating to this Subcontract shall be governed by the laws of the state where the Materials are delivered, including the jurisdiction’s Uniform Commercial Code (UCC), as adopted. Any action by Customer instituted against Seller arising from Materials sold must be commenced within 1 year from delivery of the subject Materials. 20. Precedence: The terms of this Addendum shall prevail to the extent of any inconsistency with any other term in this Subcontract or any other contract.

INSTALL TERMS AND CONDITIONS

1. Applicability. All services provided by Seller pursuant to the Subcontract (“the Services”), and all materials (“Materials”) furnished by Seller to the Customer’s premises (the “Project”), shall be subject to and expressly conditioned upon the terms set forth in this Addendum to subcontract (the Subcontract as modified by this Addendum collectively “Subcontract”).

2. Notice and Acceptance. Customer has 5 business days from the date of delivery (including the date of delivery) of any Materials to object that the Materials are non-conforming or unauthorized. Such objection will be via written notice to Seller. Rejected Materials must be received by Seller within 10 days from the date of the initial delivery. Seller agrees to replace any rejected Materials within 10 days of receipt and prior to installation. If a rejection notice is not timely received Customer shall be deemed to have accepted Materials as conforming and/or authorized. Customer waives any and all right to set off claims and/or withhold payment based on a claim that Seller is indebted or has any obligation to Customer.

3. Custom Orders. Customer acknowledges and agrees that special, custom or non-stock orders are made specifically for Customer and as such are non-cancelable. If Customer purports to cancel or does not accept delivery, Seller will attempt to repurpose the order and Customer shall pay a reasonable restocking fee. If Seller is unable to repurpose the order, Seller shall be entitled to the cost of the special, custom or non-stock order plus a reasonable restocking fee.

4. Materials with Flush Sills. Certain Materials have sills that are flush with the ground. Flush sill Materials pose a risk that water will penetrate the sill and enter the interior of the home, even with a proper install. Water entering through the sill could lead to (i) water damage to interior floors, walls, furniture, or other possessions; and (ii) cause interior floors to be slick, which could lead to slips or falls in the home. Customer assumes the risk that water causes upon entering the sill of a flush sill Material.

5. Delivery and Lien Rights. Seller delivers all Materials to the curb. Seller is not responsible for damage when Customer requests delivery to the Project. Customer agrees to use Materials from Seller in and upon the Project, and not at any other projects. Title in and transfer of risk in the Materials shall occur upon delivery. However, Seller reserves, until full payment is received, a purchase money security interest in each product delivered. Nothing in the Subcontract shall be construed as a waiver of the right of Seller to impose and enforce its mechanics lien or trust fund rights. Seller shall have no liability to Customer for the Materials upon delivery and Customer agrees and understands that Customer is responsible for proper storage and care of the Materials once delivered in accordance with all manufacture specifications, requirements and recommendations.

6. Payments. Customer’s payment to Seller is not and shall not be contingent or conditioned upon Customer’s receipt of payment from a project owner or any other party. Seller shall be under no obligation to continue working if it is not being paid in a timely manner through no fault of its own. Increased costs incurred by Seller as a result of changes in the law after the date of the Subcontract shall be reimbursable. Any increase in the cost of transport after the date of the Subcontract shall be reimbursable. Any extra costs of utilizing substitute methods of delivery when the intended type of carrier, vehicle or loading or unloading facilities become unavailable, shall also be reimbursable.

7. Notices of Seller Default. Except in the case of an emergency or safety related matter, Seller shall receive at least 3 days prior written notice from Customer of any default (including any purported withholding or backcharge) under this Subcontract with reasonable opportunity to commence cure, before Customer may pursue any of its remedies, unless a longer notice period is required under the Subcontract.

8. Seller’s Obligations. Seller shall perform the Services in a good and workmanlike manner in accordance with generally recognized industry standards for similar services. However, Customer agrees and understands that Seller cannot (and shall have no obligation to) protect Materials once delivered or, in the case of Services, protect the Materials once installed. Any and all provisions in the Subcontract relating to testing and inspection of the Materials shall be inapplicable to Seller. Seller shall not be responsible for labor relations, protection of work at the site or for loss/damage caused by others. Nothing contained in the Subcontract shall be deemed to require or authorize Seller to perform or do any acts which would be deemed the practice of architecture or engineering within the meaning of the laws of the State where the Project is located. Seller does not assume liability for the architect, engineer or any other design professional providing services to Customer.

9. Customer’s Obligations. Customer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to the Project for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of the Subcontract; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

10. Customer Default. In the event of Customer’s default, Seller may, after giving Customer reasonable opportunity to cure, terminate the Subcontract and cease providing Materials or Services. Upon default, Customer agrees to pay all costs of collection, court costs, and expenses, including reasonable attorneys’ fees, incurred by Seller, whether involving collecting payments due or otherwise.

11. Limitations to Scope of Work. Materials are described, labeled, quoted and sold by standard “nominal size” nomenclature. Actual NET or MEASURED sizes vary by mill and/or manufacturer. Seller only agrees to furnish, deliver and install the Materials based upon the specifications, measurements, and most recent plans provided to Seller by Customer. Seller shall be entitled to rely on the accuracy of any plans or specifications Seller receives from Customer (collectively “Plans”). The terms of any prime contract shall only apply to Seller to the extent they expressly relate to the Services and Materials. Seller shall be provided with a copy of the specific terms in the prime contract that apply to the Services and Materials. If Customer directs Seller to provide substituted material, Seller makes no representation or warranty as to the suitability or adequacy of such substituted material and Customer bears sole responsibility for determining whether such substituted material conforms in all respects to the Plans.

12. Warranty. Materials shall be new and conform in all material respects with the Plans. Customer is responsible for selecting which Materials it chooses to purchase and for what purposes those Materials will be used. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSES OR MERCHANTABILITY OF THE MATERIALS AND SERVICES, AND CUSTOMER HEREBY WAIVES ANY SUCH REPRESENTATIONS OR WARRANTIES. CUSTOMER AGREES THAT THE SOLE AND EXCLUSIVE REMEDY AGAINST SELLER FOR ANY LATENT DEFECTS IN THE MATERIALS SHALL BE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR REFUND OF PURCHASE PRICE, WITH THE REMEDY TO BE SELECTED BY SELLER IN ITS SOLE DISCRETION (“LIMITED REMEDIES”). LIMITED REMEDIES SHALL BE AVAILABLE FOR A PERIOD OF 1 YEAR FROM THE DATE OF SUBSTANTIAL COMPLETION OF THE SERVICES. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES. LIMITED REMEDIES SHALL NOT BE AVAILABLE IN THE EVENT OF IMPROPER STORAGE, INSTALLATION, REPAIR, MISAPPLICATION OR MISUSE, OPERATION, MODIFICATION, ABNORMAL CONDITIONS OR FAILURE TO PROPERLY MAINTAIN BY CUSTOMER OR FORCE MAJEURE EVENT.

13. Third-Party Manufacturer’s Warranties. Materials may be warranted by others and Seller may deliver certain third-party manufacturer warranties to Customer, but Seller shall have no liability under such warranties except to assist in the administration of such third-party warranties.

14. Subcontracting: Seller reserves the right to subcontract all or any portion of the Services without prior approval of Customer. Customer may not make payments directly to Seller’s subcontractors without Seller’s written consent.

15. Commercially Reasonable Costs. All costs and/or expenses, including back charges or attorney fees that the Seller is or may be liable for shall be commercially reasonable in amount.
16. Limitation of Liability. Except for bodily injury or property damage due to the gross negligence or willful misconduct of Seller, Seller shall have no liability whatsoever to Customer or its affiliates in an amount of damages in excess of the amount of the Subcontract.

17. Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY GENERAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PARTY, INCLUDING WITHOUT LIMITATION THOSE FOR LOST PROFITS OR SALES, ADDITIONAL LABOR OR INJURY TO PERSON OR PROPERTY.

18. Safety. Seller shall not be responsible for the safety program at the Project or the safety of any entity or person at the Project other than Seller and its employees.

19. Insurance. Upon Customer’s request, Seller shall provide Customer with a certificate of insurance from Seller’s insurer. The certificate of insurance shall name Customer as an additional insured and Seller shall not be required to name any other entity providing design or construction services at the Project as an additional insured.

20. Schedule and Force Majeure. Any change in or resequencing of the original schedule shall be mutually agreed to by the parties. Seller shall not be liable to Customer or any third party for any failure or delay in the performance of Seller’s obligations that arises out of, or is caused, directly or indirectly, by fires, strikes, wars, accidents, acts of god, product availability, action of any State, Federal, or local government body or agency, disease, virus or pandemic (including but not limited to COVID-19) or other circumstances beyond its control (each a “Force Majeure Event”) or the threat of a Force Majeure Event. In the event of any such Force Majeure Event or Customer caused delay, the time for performance of Seller’s obligations shall be extended for a reasonable period of time. If as a result of a Force Majeure Event or a Customer caused delay (a) an increase of raw material prices occurs between the date of the purchase and the date of delivery, Seller is entitled to a respective adjustment of the purchase price; and/or (b) Seller incurs labor and/or general conditions costs increases, Seller is entitled to a respective adjustment of the purchase price..

21. Dispute Negotiation and Arbitration.

(a) Customer shall attempt in good faith to promptly negotiate and resolve any dispute arising out of, or relating to, this Subcontract between Customer and Seller. The negotiation must be between executives who have authority to settle the controversy. Customer must give Seller written notice of any dispute not resolved in the normal course of business. After delivery of the notice, Seller shall submit a written response to the Customer within a reasonable time. With reasonable particularity, the notice and response must include (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. The negotiation ends at the close of the first meeting of executives described above (“First Meeting”). The close of the First Meeting does not preclude continuing or later negotiations, if desired. If either party requests continuing negotiations, then the parties must follow the notice and meeting requirements above. The parties may not request continuing negotiations more than once. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. Prior to the First Meeting, Customer may not initiate arbitration or litigation for any issue related to this Subcontract.

(b) If Customer and Seller are unable to resolve an issue by negotiation, then the following procedure must be followed after attempting negotiation in good faith: For an issue of less than $75,000, then either party may initiate litigation; For an issue of $75,000 or more, then either party may request arbitration. The American Arbitration Association(“AAA”) shall administer the arbitration pursuant to the AAA’s Construction Industry Arbitration Rules. A single arbitrator shall hear the arbitration. The arbitrator has the power to determine any issue arising out of, or relating to, this Subcontract between the parties, including breach, termination, enforcement, interpretation, or validity. The arbitrator has power to determine the scope and applicability of these arbitration clauses. The arbitration will take place in Gilbert, Arizona. The arbitrator must determine the number and length of depositions based upon the complexity of the issue. The arbitrator may allow document discovery. The parties may not raise objections, except objections based on privilege, proprietary, or confidential information. The parties may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The brief must include a statement of each party’s position and a summary of arguments supporting that position. Also, the parties may submit materially relevant documents. Time is of the essence in dispute resolution. The arbitrator shall hold the hearing within 90 days of filing for arbitration and awards issued within 120 days. The arbitrator must agree to these limits prior to accepting appointment. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some, but not all, of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim and counterclaim. The arbitrator may not include punitive, consequential, or incidental damages in the award. The arbitrator may not split the award equally among the parties unless the fault is clearly split between the parties. Within 30 days of receipt of any arbitration award, which shall not be binding if an appeal is taken, any party may notify the AAA of an intention to appeal to a second arbitrator, constituted in the same manner as the initial arbitration. For the appellate arbitration, each party may submit one brief of 30 double-spaced pages in 13-point font with one-inch margins and 10-point font for footnotes. The appellate arbitrator may adopt the initial award, modify the initial award, or substitute its own award for the initial award. If the appellate arbitrator modifies or substitutes the initial award, then the appellate arbitrator shall give a 10-page written explanation setting forth the reasons for the disposition of every claim. The appellate arbitrator has no authority to modify or replace any part of the award that does not relate to the manifest disregard of the law claim. The appellate arbitrator’s award is final and binding, and judgment may be entered by a court having jurisdiction.

(c) This Dispute Negotiation and Arbitration clause shall not preclude any party from filing a statutory construction lien or from commencing suit to foreclose a lien, but the foreclosure suit shall be stayed until the rendering of the arbitration award, which award shall be binding in the foreclosure suit as to all matters determined in arbitration, and the lien may then be foreclosed to the extent permitted by law.

(d) If a court, mediator, or arbitrator holds a provision of this Dispute Negotiation and Arbitration clause to be unenforceable, all other provisions remain in full force.

(e) The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

22. Law/ Jurisdiction. All matters relating to this Subcontract shall be governed by the laws of the state where the Project is located. Any action by Customer instituted against Seller arising from the Services must be commenced within 1 year from the date of Substantial Completion of the Services as determined solely by Seller.

23. Precedence: The terms of this Addendum shall prevail to the extent of any inconsistency with any other term in this Subcontract or any other contract.

Updated 05/2021
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