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MATERIAL SALES
(1) ACCEPTANCE OF TERMS AND COMPLETE AGREEMENT. These Terms and Conditions (“Agreement”) are the complete agreement between Company and Customer regarding the subject hereof. By purchasing Material, Customer acknowledges and agrees to the terms and conditions stated herein.
(2) DEFINITIONS. “Company” as used herein means , its officers, directors, agents, employees, subsidiaries and affiliates. “Customer” as used herein means the party responsible for purchasing rock, gravel, sand, aggregate or other construction materials or products (collectively, “Material”) from Company. “Facility” means Company’s plant or facility supplying the Material purchased by Customer.
(3) GENERAL. All prices are per U.S. ton. All Material is subject to availability, and Material may be limited daily. Material is subject to Customer’s pre-approval at the Facility prior to Customer’s plant pickup or delivery to Customer. Customer’s Facility pickup or delivery to Customer of Material constitutes acceptance of Material including all terms and conditions as stated on Company forms including Material Quotes, Material Orders, Weighmaster Certificates, Invoices, or Credit Applications. If Material is delivered by Company, 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.
(4) SPECIFICATIONS. Company certifies its Material meets any referenced specification at Company’s Facility only, as Company has no control or responsibility over its Material once it leaves Company’s Facility. Customer agrees that all claims for failure of Company’s Material to meet specification must be made prior to Material leaving Company’s Facility, and Company disclaims all express or implied warranties and any liability or responsibility for failure of Material to meet any referenced specification after it leaves Company’s Facility.
(5) QUANTITY CALCULATION. The Material shall be sold by the U.S. ton. No Material shall be sold from other measurement unless expressly stated by Company in the Material Quote or Material Order form. Customer acknowledges that the amount of Material ordered by Customer has been determined by Customer and not by Company. Conversion of Material from yards to tons or tons to yards is the responsibility of Customer. Customer assumes full responsibility, and shall hold Company harmless, regarding the adequacy of the amount of Material ordered.
(6) CARRIER VEHICLE WEIGHT. As evidenced by signature or departure from Company’s Facility, carrier, if different than Customer, acknowledges that carrier is solely responsible for the accuracy of its vehicle’s tare weight, axle weights, and gross weight. To the maximum extent allowed by law, carrier shall indemnify Company for any loss caused by overloading. Carrier is solely responsible for notifying Company of any changes to vehicle tare weight. Truck tare and gross weights are determined with the driver in the vehicle.
(7) DELIVERIES. Time is of the essence. All orders are taken with the purpose to deliver on time. Company does not guarantee arrival time or the rate of delivery. Company will not be chargeable for delayed deliveries to the Customer. Deliveries will be made only to points which, in Company’s or Company’s Agent’s opinion, are reasonably accessible to Company’s or Company’s Agent’s equipment under its own power. The Customer assumes, and agrees to indemnify and hold Company harmless from all liability for trespass or other damage alleged to have arisen out of Company’s use of access to the delivery site as specified by Customer, except any damage which is the result solely of Company’s gross negligence. Customer has 48 hours from date of delivery to make a written claim for damages caused by Company.
(8) OBLIGATION TO PAY. Customer shall be obligated to pay for Material when the Material is loaded into a truck, whether Company’s, Customer’s, or carrier’s, at Company’s Facility. Customer shall remain obligated to pay for the Material even if the Material is not deliverable to the Customer, provided the lack of delivery is not attributable solely to Company’s gross negligence. This ticket does not establish a credit account for Customer and does not entitle Customer to purchase Material on credit. In the event the Customer has established a credit account with Company, 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. 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 Company’s Facility. Company may withhold loading and delivery of Material until payment has been made. RETURNED MATERIAL IS SUBJECT TO RESTOCKING FEE.
(9) TAXES: The prices set forth do not include sales, excise or similar taxes. All such taxes shall be paid by Customer to Company on the date payment for Material is due or upon delivery.
(10) TITLE. Customer agrees that title to Material sold transfers to Customer when the Material is loaded into a truck, whether Company’s, Customer’s, or carrier’s, at Company’s Facility.
(11) 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. Customer agrees to pay all of Company’s costs of collection, including attorney’s fees and costs. If Customer fails to comply with the terms, Company 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 Company to exercise such rights.
(12) CUSTOMER RESPONSIBILITY. Customer shall be responsible for any Material testing by an independent laboratory. Customer shall provide an authorized person to sign each delivery ticket or Customer may sign the first delivery ticket and attach a release form waiving the signatures on all remaining loads delivered that same day. Customer is responsible for providing a safe work environment. All claims regarding delivery or billing must be submitted in writing within 30 calendar days from the date of service. Claims over 30 calendar days will not be reviewed by Company.
(13) LIMITATION OF WARRANTIES. Company expressly warrants (a) its title to Material sold prior to delivery to Customer at Company’s Facility and (b) that the Material sold by it hereunder will conform to the applicable specification at time of shipment and delivery at Company’s Facility, but not after it leaves Company’s Facility. EXCEPT FOR SUCH EXPRESS WARRANTIES, COMPANY 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 COMPANY AND EXCLUDED.
(14) LIMITATION ON LIABILITY. In no event shall Company be liable for failure or delay in delivery arising from any cause whatsoever. EXCEPT FOR BREACH OF THE LIMITED WARRANTY CONTAINED IN PARAGRAPH 13 ABOVE, COMPANY 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 CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER.
(15) SEVERABILITY. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid for any reason, the remaining portions not so invalidated shall remain in full force and effect.
INERT DEBRIS FILL DISPOSAL
(1) ACCEPTANCE OF TERMS AND COMPLETE AGREEMENT. These Terms and Conditions (“Agreement”) are the complete agreement between Company and Customer regarding the subject hereof. Customer’s disposal of Type A Inert Debris or Unacceptable Material at the Facility indicates that Customer acknowledges and agrees to the terms and conditions stated herein.
(2) DEFINITIONS. “Company” as used herein means , its officers, directors, agents, employees, subsidiaries and affiliates. “Facility” as used herein means the Facility that will accept Inert Fill Material under this Agreement, as defined. “Customer” as used herein means the party responsible for the generation, transport and disposal of material delivered to the Facility, including its officers, directors, agents, employees, haulers, transporters and subcontractors.
(3) TYPE A INERT DEBRIS DEFINED. THIS FACILITY WILL ACCEPT ONLY TYPE A INERT DEBRIS AS DEFINED HEREIN. Customer understands that this Facility will accept only the following Type A Inert Debris: gravel, rock, soil, sand, broken uncontaminated concrete, broken asphalt, brick, and clay and clay products. This Facility will not accept non-inert materials, any material deemed hazardous under any local, state or federal law or regulation , liquid wastes or soluble pollutants, including concrete slurry, regulated substances, nonhazardous solid wastes, such as decomposable organic refuse and ordinary household and commercial refuse, asbestos, or toxic materials such as insecticides, poisons, or radioactive materials.
(4) CUSTOMER CERTIFICATIONS, REPRESENTATIONS AND WARRANTIES. Customer certifies that all Type A Inert Debris delivered to the Facility satisfies the conditions contained herein and is not subject to any federal, state or local treatment, storage or disposal restrictions. Customer further represents and warrants to Company that any information provided to Company regarding the source, nature, quantity, or chemical makeup of Type A Inert Debris deposited at the Facility is true and correct. Customer hereby further represents and warrants to Company that the Type A Inert Debris deposited at the Facility was not removed from a site as part of a cleanup or removal of contaminants, including, but not limited to, activities conducted under CERCLA, RCRA, or other similar federal or state hazardous or toxic material remediation program, or a petroleum hydrocarbon site.
(5) COMPANY’S RESERVED RIGHTS. Company reserves the right to require laboratory analyses, at Customer’s expense, of Type A Inert Debris prior to delivery to the Facility. Company reserves the right to inspect, photograph, and/or video all Customer vehicles, haulers and containers of material at the Facility, and to screen and collect samples of delivered loads of material, as required by Company, local authorities, the Regional Water Quality Control Board, the state of California, and/or other governmental agencies. Material deemed by Company, in its sole discretion, to not meet Type A Inert Debris criteria (“Unacceptable Material”) will be rejected. Company reserves the right, at Company’s sole discretion, to refuse or to reject after acceptance, any load(s) of material delivered to the Facility for any reason or no reason whatsoever, including, but not limited to, if Company believes Customer has breached (or is breaching) its representations, warranties, or agreements hereunder, or any applicable federal, state or local laws, regulations, rules or orders, even if only a portion of such material load is unacceptable. Any material rejected by Company shall be immediately removed from the Facility by Customer at Customer’s expense. Company’s exercise, or failure to exercise, its rights hereunder shall not relieve Customer of its responsibilities under this Agreement.
(6) CUSTOMER RESPONSIBILITY. Customer shall inspect all material to be transported to the Facility at the place(s) of collection and shall remove any and all Unacceptable Material. Customer shall remain responsible for any Unacceptable Material delivered to the Facility. Customer shall immediately remove any Unacceptable Material discovered while the Customer is onsite at the Facility. For Unacceptable Material discovered after Customer has left the Facility, Company may, in its sole discretion, require Customer to promptly remove such Unacceptable Material, or Company may reload and properly dispose of the Unacceptable Material at Customer’s cost. Customer shall be responsible for, and bear all reasonable expenses and damages, including attorney’s fees, incurred by Company associated with the proper disposal of Unacceptable Material and any other material affected thereby, which expenses, damages and fees shall be paid by Customer immediately upon receipt of Company’s invoice therefor.
(7) OBLIGATION TO PAY. Customer shall be obligated to pay the disposal fee to Company for all materials disposed of at the Facility when such materials are deposited at the Facility.
(8) CUSTOMER INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Company from and against any and all claims, suits, losses, liabilities, assessments, damages, fines, costs and expenses, including reasonable attorney’s fees, and any inspection, testing, studies and/or analysis or remediation and the cost thereof, arising from, associated with or connected in any way to: (i) Customer’s activities and/or operations; (ii) any material transported to the Facility by Customer; (iii) any breach of this Agreement by Customer; (iv) any negligence, negligent acts or intentional acts by Customer; (v) the collection, transportation and/or disposal of any material transported to the Facility by Customer; and (vi) any removal of any material transported to the Facility by Customer. This indemnification shall survive the termination of this Agreement.
(9) LIMITATION ON LIABILITY. COMPANY 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 DISPOSAL FEE FOR TYPE A INERT DEBRIS, THE REFUND OF WHICH SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER.
(10) SEVERABILITY. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid for any reason, the remaining portions not so invalidated shall remain in full force and effect.