TERMS AND CONDITIONS OF SALE

All prices are per U.S. ton.  All Material or Products (collectively referred to as “Material”) and Trucking are subject to availability, and Material may be limited daily.  Material is subject to Buyer’s pre-approval at the plant site prior to Buyer’s plant pickup or delivery to Buyer.  Buyer’s plant pickup or delivery to Buyer of Material constitutes acceptance of Material including all terms and conditions as stated on Seller forms including Material Quotes, Material Orders, Weighmaster Certificates, Invoices, or Credit Applications.  If Material is delivered by Seller, Thirty (30) day advance notice is required prior to shipment.  If a minimum, partial, or short load is needed, haul is billed at a 25 ton minimum.  Haul rates are subject to change without notice.

Seller certifies its Material meets any referenced specification at Seller’s facility only, as Seller has no control or responsibility over its Material once it leaves Seller’s facility.  Buyer agrees that all claims for failure of Seller’s Material to meet specification must be made prior to Material leaving Seller’s facility, and Seller disclaims all express or implied warranties and any liability or responsibility for failure of Material to meet any referenced specification after it leaves Seller’s facility.  By purchasing Material, Buyer acknowledges and agrees to these Terms and Conditions of Sale.

1)      QUANTITY CALCULATION: The Material shall be sold by the U.S. Ton.  No Material shall be sold from other measurement unless expressly stated by Seller in the Material Quote or Material Order form. The Customer acknowledges that the amount of Material ordered by the Customer has been determined by the Customer and not by the Seller.  Conversion of Materials from yards to tons or tons to yards is the responsibility of the Customer.  The Customer assumes full responsibility, and shall hold the Seller harmless, regarding the adequacy of the amount of Material ordered.

2)      CARRIER VEHICLE WEIGHT: As evidenced by signature, or departure from Seller’s facility, carrier acknowledges that carrier is solely responsible for the accuracy of this vehicle’s tare weight, axle weights, and gross weight.  To the maximum extent allowed by law, carrier shall indemnify Seller for any loss caused by overloading. Carrier is solely responsible for notifying Seller of any changes to vehicle tare weight.  Truck tare and gross weights are determined with the driver in the vehicle.

3)      DELIVERIES:  Time is of the essence. All orders are taken with the purpose to deliver on time.  Seller does not guarantee arrival time or the rate of delivery. Seller will not be chargeable for delayed deliveries to the Buyer. Deliveries will be made only to points which, in Seller’s or Seller’s Agent’s opinion, are reasonably accessible to Seller’s or Seller’s Agent’s equipment under its own power. The Customer assumes, and agrees to indemnify and hold Seller harmless from all liability for trespass or other damage alleged to have arisen out of Seller’s use of access to the job site as specified by Buyer, except any damage which is the result solely of Seller’s negligence.  Buyer has 48 hours from date of delivery to make a written claim for damages caused by Seller.

4)      OBLIGATION TO PAY: The Buyer shall be obligated to pay for Material when the Material is loaded into a truck at Seller’s plant. The Buyer shall remain obligated to pay for the   Material even if the Material is not deliverable to the Buyer, provided the lack of delivery is not attributable solely to Seller’s negligence. RETURNED MATERIAL IS SUBJECT TO RESTOCKING FEE.

5)       TAXES: The prices set forth do not include sales, excise or similar taxes. All such taxes shall be paid by the Buyer to Seller on the date payment for Material is due or upon delivery.

6)      TITLE: Buyer agrees that title to Material sold transfers to Buyer upon delivery at Seller’s facility.

7)      PAYMENT: This Delivery Ticket does not establish a credit account for the Buyer and does not entitle the Buyer to purchase Material on credit. In the absence of a credit account, all amounts and charges shall be due and payable at or prior to the time the Material is loaded into a truck at Seller’s plant. Seller may withhold loading and delivery of Material until payment has been made.

8)      CREDIT SALES: In the event the Buyer has established a credit account with Seller, all amounts and charges shall become due and payable by the 10th of the following month from the date of pickup or delivery of Material.

9)      ALL SALES: The following provisions apply to all sales, whether or not on credit. Any charge, invoice or portion thereof remaining unpaid after the due date will be subject to a late fee of 1-1/2 percent per month (18 percent per annum) until paid. The Buyer agrees to pay all of Seller’s costs of collection, including attorney’s fees and costs. If the Buyer fails to comply with the terms, Seller shall have the right to withhold further deliveries and all unpaid amounts shall be immediately due and payable. No waiver of such rights shall be implied from any failure by Seller to exercise such rights.

10)   BUYER RESPONSIBILITY:  Buyer shall be responsible for any Material testing by an independent laboratory.

a.   Buyer shall provide an authorized person to sign each delivery ticket or the Buyer may sign   the first delivery ticket and attach a release form waiving the signatures on all remaining loads delivered that same day.

b.   Buyer is responsible for providing a safe work environment.

c.   All claims regarding delivery or billing must be submitted in writing within 30 business days from the date of service. Claims over 30 business days will not be reviewed by Seller.

11)   LIMITATION OF WARRANTIES: Seller expressly warrants (a) its title to Material sold prior to delivery to Buyer at Seller’s facility and (b) that the Material sold by it hereunder will conform to the applicable specification at time of shipment and delivery at Seller’s facility, but not after it leaves Seller’s facility. EXCEPT FOR SUCH EXPRESS WARRANTIES, SELLER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESSED  OR IMPLIED, AND ALL WARRANTIES  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OTHER WARRANTIES OF WHATEVER KIND ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED.

12)   LIMITATION ON LIABILITY:  In no event shall Seller be liable for failure or delay in delivery when such failure or delay results, in whole or in part, from strikes, boycotts, lockouts or other labor troubles of any kind; priorities, allocations, limitation or other restraints which affect manufacture or delivery; or any other cause or occurrence beyond Seller’s control, including, but not limited to, riots, wars, fires, inclement weather, earthquakes or other acts of God, sabotage, damage, or destruction of any kind of Seller’s equipment or facilities necessary for performance hereunder; arising from any cause whatsoever; delays of usual sources of supply of Materials. present or future laws, orders or regulations enacted by any governmental agency or bureau effecting restrictions. Seller is furnishing basic aggregate products at standard prices and is not insuring buyer against possible consequences of error, omission or neglect in production of delivery. EXCEPT FOR BREACH OF THE LIMITED WARRANTY CONTAINED IN PARAGRAPH 11 ABOVE, SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR CONTINGENT DAMAGES, OR ANY OTHER CLAIM OR DEMAND WHATSOEVER, EXCEPT TO THE EXTENT OF THE PURCHASE PRICE OF THE MATERIAL, THE REFUND OF WHICH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER.

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