Terms and Conditions
Action Ready Mix, LLC (“ARM” or “Seller”)
By visiting this website (www.ActionReadyMix.net) or by shopping here or by placing orders with ARM either in writing, or by any purchase on credit with Seller (Credit Application and forms incorporated by reference herein), by telephone or by electronic data exchange, you expressly agree to the following Terms and Conditions. The Terms and Conditions here supersede any terms on Purchaser’s purchase order which contradict, in part or in whole.
Acceptance and Cancellation of Orders
Each order for goods is subject to acceptance in writing by a duly authorized officer of ARM. Any written acknowledgement of receipt of goods in and itself constitutes such acceptance. Seller reserves the right to require payments in advance of any delivery and to cancel the unfilled portion of any purchase order without notice in the event of Purchaser’s breach or default of the Terms and Conditions or any other agreement with Seller, or if Purchaser’s financial status becomes impaired or deemed unsatisfactory to Seller.
Purchaser should give Seller at least 48 hours prior notice of the time and rate of requested deliveries. Delivery schedules shall be mutually agreed between Purchaser and Seller.
Seller shall strive with commercially reasonable efforts to dispatch such deliveries, however, Purchaser waives any claims associated with any delays. Purchaser may cancel orders accepted by ARM only upon written consent of ARM. In the event of cancellation or other withdrawal of an order, without limiting any other remedy which ARM may have as result of such cancellation or other withdrawal, reasonable cancellation charges and all expenses incurred, including spoilage costs of the delivery or commitments made by ARM relating to the order shall be paid by Purchaser to ARM. Rush orders for delivery within two (2) hours subsequently cancelled are non-cancelable and non-refundable. ARM reserves the right to reject any order.
Delivery and Shipment
All prices quoted and goods shipped are C.I.F (Costs, Insurance, and Freight are included in the price) at Seller’s concrete plant at point of loading onto a truck. Title and risk of loss of all goods shall pass upon ARM’s point of loading onto a truck. Unless otherwise agreed to by ARM in writing, Purchaser is construed to pay all freight, handling, delivery, and insurance charges for shipment of goods which are included in Seller’s net price to Purchaser.
In the event of delivery interruption or loss of goods due to shipping failures due to no fault of Seller, Purchaser shall be responsible for full payment of the goods as title and risk of loss has passed at the point of loading on Seller’s truck so designated.
ARM will elect to credit Purchaser’s account or replace goods to Purchaser all goods which at the time of delivery are not in accordance with agreed upon specifications. Purchaser shall notify ARM in each instance when Purchaser intends to seek claim for such a credit due to reason of receipt of goods not to agreed specifications and ARM shall be entitled to examine the concrete, conduct its own tests and investigations at Purchaser’s site where concrete was delivered and/or where Purchaser’s relevant records are held.
Despite specific suggestion of mode, carrier mean, or route by Purchaser, ARM may elect to choose such methods and means of delivery at its sole election for reasons of reliability, route, safety, or any other reasonable grounds. ARM shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of ARM, which shall include without limitation, acts of God, acts or omissions of Purchaser or civil or military authorities, fire, strikes, epidemics, quarantine restrictions, floods, earthquakes, riot, war, delays in transportation or inability to obtain necessary labor, materials, or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to ARM. ARM shall be entitled to refuse or delay shipments for failure of Purchaser to pay promptly any payments due ARM, whether on this or any other contract between ARM and Purchaser. ARM shall have the right to deliver all goods covered hereby at one time or in portions in reasonable time-to-time within the approximate time mutually scheduled, subject to the prior terms of this paragraph.
The Purchaser agrees to provide suitable roadways or approaches to points of delivery when material is to be delivered by truck in places other than on paved streets. Seller reserves the right to stop deliveries if the roadways or approaches are unsatisfactory to Seller. Purchaser is responsible for any wrecker fees. In the event Purchaser orders delivery beyond curb line, Seller will not assume liability for damage to sidewalks, driveways, or other property and Purchaser hereby agrees to indemnify and hold ARM harmless against all liability, loss and expenses incurred as a result of such deliveries. Purchaser is responsible to ensure that the concrete is handled in accordance with best construction practices Seller has no control over the placing or handling of concrete after unloading and does not guarantee the finished work in which it is used, which may adversely impact concrete strength.
The attached MSDS and Safety Information are incorporated by reference herein under these Delivery and Shipment Terms.
Regular delivery hours are 6:00 a.m. to 5:00 p.m., Monday through Friday and Saturdays from 6:00 a.m. to 2:30 p.m. An additional charge may be added for deliveries outside of these hours and for any waiting/unloading periods in excess of 10 minutes per yard of concrete delivered or 60 minutes per load. Prices are based on full loads; an additional charge will apply to short loads.
Purchaser must provide an appropriate location and facility (in compliance with applicable law) for Seller to washout the truck’s chutes and drum after discharging concrete. Purchaser is responsible for full payment of, including all costs of disposal and Seller’s return charge per truck for, (i) orders not cancelled at least two (2) hours prior to delivery time; (ii) concrete delivered due to Purchaser’s mistake or in excess of requirements; (iii) concrete not deliverable due to unsuitable approaches.
Concrete prices and quantities are based upon the wet volume at the time of discharge from the truck, and are not sold “form measurement” or measured “in place.” Yield will be established in strict accordance with applicable ASTM standards. Purchaser will pay all charges incident to inspection or tests made by or on behalf of Purchaser.
Limited Warranty: Purchaser is solely responsible for determining the type and quantity of goods to be purchased. Concrete will be batched and delivered in accordance with ASTM: C-94. Seller warrants that its products will meet or exceed applicable American Society for Testing Materials (“ASTM”) and American Concrete Institute (“ACI”) standards, when tested in accordance with ASTM and evaluated by ACI standards. Seller will only replace any goods supplied by Seller that fail to meet this limited warranty, within one year after delivery/thereof, subject to the Limitation of Liability as follows: ALL OTHER WARRANTIES, EXPRESS OR IMPLED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. THE REMEDY SET FORTH IN THIS SECTION WILL CONSTITUTE THE SOLE REMEDY OF BUYER UNDER THIS LIMITED WARRANTY.
Seller is not responsible for slump, strength or quality of any concrete to which water (subject to the addition of water only within design specifications) or other material has been added by or on behalf of Purchaser. Purchaser is responsible to see that the concrete is handled in accordance with best construction practices. Seller has no control over the placing or handling of concrete after unloading and does not guarantee the finished work in which it is placed or any finish that is applied, which may adversely impact concrete strength. Seller is selling goods and Purchaser is purchasing the goods under specific specifications not for performance requirements of Purchaser’s customers. Purchaser is responsible to determine suitability and applicability of concrete specifications to the site and to the actual performance needs.
Any extra product which may be required in excess of the mix design quoted, or which may be required to provide workability, strength, setting time or water/cement ratio, will result in an additional ingredient charge payable by Purchaser.
Inspection and Acceptance of Goods
Purchaser shall be responsible for conducting any final acceptance tests on goods if necessary, which tests shall be completed promptly and in no event later than immediately after delivery.
Concrete temperature will be dictated by the environmental and material conditions at the time of delivery. Any requirement beyond these conditions will require the implementation of controlled measures during production at the expense of Purchaser. Purchaser is responsible for the requirements of ACI 305R and 306R, except as it may pertain to production variances.
Purchaser must give Seller written notice within 48 hours after delivery of any claim against Seller as a result of any alleged nonconforming materials or any other cause whatsoever (other than failure to meet compressive strength, in which event the time for notice will be within 48 hours after the specified test age of the test cylinder in accordance with ASTM standards), time being of the essence. Seller will be given reasonable opportunity to investigate all claims. Any failure by Purchaser to give written notice within such 48 hour period will be deemed a conclusive waiver by Buyer of all such claims against Seller.
SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATED TO DELAY, WHETHER BASED ON STATUTE, TORT, CONTRACT, OR OTHERWISE, AND WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE, STRICT LIABILITY OR FAULT. IN NO EVENT WILL SELLER BE RESPONSIBLE FOR DAMAGES DUE TO THE ACTIONS OF OTHERS OR THE FAILURE OF PURCHASER TO COMPLY WITH ITS OBLIGATIONS. SELLER’S LIABILITY FOR ANY CLAIMS WILL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS SOLD UNDER THIS CONTRACT.
Terms & Payment
Payment terms are subject to ARM’s credit approval. ARM may change Credit terms or payment terms at any time at ARM’s sole discretion, for any reason.
Unless otherwise specified by ARM in writing (refer to payment on face of the sales invoice), payment in full of the net amount owing without offset or deduction is due at the time of the purchase order. If payment is not received within the specified period, a later payment charge of 1.5% per month commencing from the C.I.F. terms aforementioned at the point of loading of goods or the maximum allowed by law, whichever is less, shall be paid by Purchaser.
All checks and payments accepted by ARM are subject to collection and Purchaser agrees to pay all costs of collection, including reasonable attorney’s fees and costs. ARM may apply any checks or payments received from Purchaser against any obligation of Buyer to ARM under this or any other agreement, notwithstanding any statement appearing on or referring to such check. Acceptance of partial payment shall not constitute a waiver of ARM’s right to payment in full of all amounts owed from Purchaser to ARM.
Purchaser hereby grants ARM a security interest in any goods shipped under this agreement, including all accessions to and replacements of such goods and the process thereof to secure the payment of the purchase price for such goods and all other amounts owing under this agreement. Purchaser agrees that this agreement may be used by ARM for facilitation of filing a financing statement in any location deemed necessary or advisable to perfect ARM’s security interest in the goods and their proceeds without the necessity to obtain an additional signature on the actual financing statement. Nonetheless, Purchaser agrees to cooperate fully with ARM, with no delays, in executing any additional documents, instruments, financing statements or amendments thereof as ARM may deem necessary or advisable to maintain and continue the security interest created by this agreement. ARM’s attorney fees and reasonable costs shall be recoverable from Purchaser specifically to enforce this term in this Paragraph.
Offset of Amounts Owed to Buyer
If Purchaser is owed any monies by ARM because of goods purchased from Purchaser, overpayment to ARM or because ARM has credited Purchaser for returned goods or discounted a purchase to Purchaser, ARM at its sole discretion may apply the owed amount to any other amounts owed by Purchaser to ARM. Any request for cash refunds of credits to Purchaser must be sent to ARM in writing. Any request for refunds of overpayments not done in writing and held by ARM for more than two years will be deemed forfeited. ARM may withhold payment of any amounts owed to Purchaser if amounts owed by Purchaser to ARM are past due.
Purchaser may not apply a credit to any open invoice without issuance of a credit memo to ARM. Credit memos may be issued at the sole discretion of ARM for payment in exchange and other reasons as determined by ARM.
ARM’s Right to Increase Prices
Unless otherwise specified on a sales order, ARM reserves the right to increase the selling price of any and all goods by ARM’s supplier. The selling price quoted shall, upon increase in price by ARM’s supplier, be increased by a percentage equal to the percentage of increase in ARM’s cost for goods and Purchaser agrees to pay any such increased price in accordance with the terms hereof.
ARM’s prices do not include any applicable sales, use or other similar taxes. Accordingly, in addition to prices specified by ARM, Purchaser shall also be responsible for payment of any sales, use, excise or similar tax or duties attributable to the sale of goods covered hereby or, in lieu thereof, provide ARM with tax exemption certificates acceptable to the taxing authorities.
Shipping Damage or Loss
In the event of shipping damage or loss, Purchaser must contact ARM immediately. If ARM has shipped the merchandise C.I.F., then the Purchaser must register a claim with ARM on the insurance claim form currently found on its website. ARM will credit the Purchaser for the loss if and only if the insurance company has approved a claim for the loss with ARM. ARM will not be responsible for issuing the Purchaser a credit memo if the insurance company has denied the claim. ARM will not be responsible for any consequential or other damages for the loss or damage of merchandise during shipping. The Purchaser will still be expected to pay for the shipment on the appropriate due date.
Any warranty, which may be applicable to products purchased by Purchaser pursuant to the agreement, will be listed in the product description on ARM’s website. Please refer to the individual product for warranty information. Third party product warranty information is as specified in the third party documentation accompanying the product and, to the extent permitted by local law, ARM does not warrant a third party product. Other than as may be set forth as a warranty in the product description, ARM makes no express or implied warranties of any kind relating to any goods or products.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ANY OTHER WARRANTIES AND PURCHASER HEREBY EXPRESSLY WAIVES ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY ARM. IN NO EVENT SHALL ARM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SALE, INSTALLATION, USE, OPERATION, SERVICE OR REPAIR OF ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, WHETHER OR NOT ARM SHALL HAVE BEEN ADVISED AS TO THE POSSIBILITY OR REASON OF THE PRODUCTS IS STATED HEREIN. IN ALL OTHER CASES (EXCLUSIVE OF ARM’S LIABILITY STATED HEREIN) ARM’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO ANY MATTER ARISING FROM OR CONNECTED WITH THE SALE, INSTALLATION, USE, OPERATION, SERVICE OR REPAIR OF ANY PRODUCTS OR ARM’S PERFORMANCE UNDER THIS AGREEMENT, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE ORIGINAL COST TO PURCHASER OF THE PRODUCTS SOLD OR PROVIDED.
In the event of any default, the Purchaser shall pay all costs incurred by ARM in collecting any amounts due under this agreement, including reasonable attorney’s fees and court fees and costs. The waiver by ARM of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default. ARM shall have all the remedies provided under the Uniform Commercial Code, which shall be cumulative with any other remedies which ARM may have at law, in equity, under any agreement of any type or otherwise. The exercise or failure to exercise any remedy shall not preclude the exercise of the remedy at another time or of any other remedy at any time. No action regardless of form arising out of or in any way relating to the goods furnished or services rendered by ARM may be brought by Purchaser more than one year after the cause of action has accrued.
Entire Agreement and Assignment
This agreement sets forth the only terms and conditions and is the entire agreement between the parties with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written negotiations, communications and agreements with respect thereto. No terms or conditions in any order or other writing by Purchaser, course of prior dealings between the parties or usage of the trade shall amend, vary, supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. No subsequent modification of this agreement shall be binding upon ARM unless reduced to writing and signed by both ARM and Performer. No agent, employee, or representative of ARM has any authority to bind ARM to any affirmation, representation or warranty covering the materials sold under this agreement. Unless an affirmation, representation or warranty made by an agent, employee, or representative is specifically included within this agreement, it has not formed a part of this agreement and shall not in any way be enforceable against ARM. Any assignment of this agreement or any rights hereunder, wholly or in part, by Purchaser shall be void without ARM’s written consent.
Non-Applicability of Purchaser Terms
Notwithstanding any terms or conditions on Purchaser’s order, the terms and conditions on this agreement control all dealings between Purchaser and ARM. Any conflicting statements or terms on Purchaser’s purchase orders, invoices, confirmation or other Purchaser generated documents (“Purchaser Documents”) are negated by this agreement.
ARM’s performance of any contract is expressly made conditional on Purchaser’s agreement to ARM’s terms and conditions of sale here unless otherwise specifically agreed to in writing by ARM. In the absence of such agreement, commencement of performance and/or delivery shall be for Purchaser’s convenience only and shall not be deemed or construed to be acceptance of Purchaser’s terms and conditions or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any goods or services shall be deemed acceptance of the terms and conditions stated herein.
This agreement and performance by the parties hereunder shall be governed and construed in accordance with the laws of the State of Colorado, including the provisions of the Colorado Uniform Commercial Code but excluding its conflict of laws provisions. Any and all actions or proceedings arising out of or relating to this agreement or the goods or transactions shall be exclusively filed and resolved by the Superior Court of Colorado, County of El Paso. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Purchaser. If any provision or part of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The captions used herein are for the convenience of the parties only and shall not affect its construction or interpretation.