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STANDARD TERMS AND CONDITIONS

1.      Parties. (a) Buyer acknowledges and agrees that by executing the Credit Application and/or a Purchase Order with Bauman Redi-Mix Concrete, LLC (“Bauman Redi-Mix”), that Buyer is bound by these Standard Terms and Conditions as set forth below. Any Purchase Order and/or order confirmation initiated by Buyer to Bauman Red-mix for the purchase of goods, materials, and/or services (collectively, the “Materials”) shall form an agreement under which these Standard Terms and Conditions shall be enforceable against Buyer (the “Agreement”).

 

(b) Buyer and Bauman Redi-Mix agree(s) and represent(s) that the Agreement comprises the full and entire agreement affecting the purchase of Materials, and no other agreement or understanding of any nature concerning the same has been entered into or will be recognized and that all negotiations, acts, work performed, or payments made prior to the execution hereof shall be deemed merged in, integrated, and superseded by the Agreement.

 

(c) Bauman Redi-Mix expressly rejects any term or condition that is in addition to, or inconsistent with the Agreement, and to any other term or condition proposed by Buyer in a Purchase Order. Any subsequent lack of objection to any terms or conditions, nor the delivery of Materials shall constitute an agreement by Bauman Redi-Mix to any such term or condition.

 

2.      Pricing; Payment Terms. (a) Except as otherwise stated in the Agreement, prices for and quantities of Materials are the full amounts estimated to be required for the job and are based on the volume of materials at the time of discharge from the delivery truck. Such prices are available only to Buyer. Unless a “delivered” price is quoted by Bauman Redi-Mix, all prices are F.O.B. point of shipment from the locations designated. All taxes applicable to the sale or delivery of Materials are payable by Buyer, unless Buyer provides Bauman Redi-Mix with satisfactory evidence of exemption from same. Special cements, aggregates, admixtures, fibers, or refrigerants required by job specification are not included in the quoted prices unless specifically noted. (b) Bauman Redi-Mix may change the price and/or quantity upon thirty (30) days’ written notice to Buyer for any reason, including for (without limitation) fuel surcharges and costs of materials. Bauman Redi-Mix shall also have the right to change, modify or amend any other terms and conditions upon written notice of such change to Buyer. (c) Credit will not be issued for any Materials returned to Bauman Redi-Mix by Buyer for any reason that is beyond the control of Bauman Redi-Mix. (d) Buyer shall pay to Bauman Redi-Mix all amounts due under this Agreement, including applicable taxes, as required by the Credit Application.  Payment terms are NET 30 unless otherwise stated. Any amounts not paid when due shall accrue interest at a rate of eighteen percent (18%) per annum. (e) If at any time Bauman Redi-Mix determines, in its sole discretion, that Buyer’s solvency or ability to perform is unsatisfactory to Bauman Redi-Mix, then Bauman Redi-Mix may require payment in advance, additional security or collateral, or a guarantee that invoices will be paid when due. Bauman Redi-Mix may suspend performance until such assurances are provided.

 

3.      Credit and Breach. Bauman Redi-Mix shall have no obligation to ship or deliver Materials to Buyer except upon its determination prior to each shipment or delivery that Buyer is worthy of the credit to be extended. Bauman Redi-Mix reserves all rights and remedies granted to a seller under the Uniform Commercial Code as adopted in California for Buyer’s failure to pay any amounts when due or any other breach by Buyer of its obligations to Bauman Redi-Mix. In addition to all other remedies available to Bauman Redi-Mix (which Bauman Redi-Mix does not waive by the exercise of any rights hereunder), Bauman Redi-Mix may suspend shipment or delivery of any Materials if Buyer fails to pay any amounts when due or breaches any other obligation to Bauman Redi-Mix. Buyer shall pay all attorney’s and other costs of collection incurred by Bauman Redi-Mix as the result of Buyer’s failure to pay any amounts when due or any other breach by Buyer of its obligations to Bauman Redi-Mix.

 

4.      Delivery. (a) All deliveries are contingent upon Material availability and shall be made during regular non-holiday work hours, Monday through Friday. Additional charges may apply for deliveries required outside of regular work hours. Buyer must give Bauman Redi-Mix at least forty-eight (48) hours advance notice of the time and rate of delivery. If for any reason Buyer must cancel a delivery, Buyer must notify Bauman Redi-Mix at least twenty-four (24) hours in advance of the scheduled delivery time. Failure to provide advance notifications will result in the imposition of a cancellation charge to cover the costs incurred in connection with the cancellation and lost revenue as a result of the cancellation. (b) All deliveries will be made to the best of Bauman Redi-Mix’s ability. Bauman Redi-Mix will deliver the Materials only to the curb or public street line adjacent to the project. In the event Bauman Redi-Mix is requested to deliver the Materials beyond the curb or public street adjacent to the project, Buyer (i) shall provide and maintain a safe and reliable means of access for Bauman Redi-Mix’s trucks, (ii) hereby releases, indemnifies, and holds harmless Bauman Redi-Mix from and against any and all liability for damages to the property arising out of or in connection with Bauman Redi-Mix’s delivery, and (iii) shall pay for any damages to Bauman Redi-Mix’s trucks and any costs incurred by Bauman Redi-Mix for any towing or other costs incurred arising out of such delivery. Bauman Redi-Mix may, in its discretion, refuse to make deliveries when there exists unsafe or unreliable road or site conditions, issues of right to access, or other matters outside of Bauman Redi-Mix’s control adversely affecting Bauman Redi-Mix’s delivery (including, without limitation, Material shortages, labor troubles, accidents, necessary repairs to machinery, fire, flood, weather conditions, natural phenomena). (c) Bauman Redi-Mix shall not be liable for any delivery delays due to job conditions or any other reason beyond Bauman Redi-Mix's control. Buyer shall supply and maintain a washout area, and shall remediate such area after completion of the job. No used or unused Materials may be returned to the mixer. (d) Unless otherwise provided in the Agreement, the minimum load for each delivery is 1 cubic yards. Any delivery under three (3) yards will be charged an additional $300.00 short load charge. Any delivery between three to six (3-5) yards will be charged an additional $200.00 short load charge.

 

5.      Limited Warranty and Warranty Disclaimer. (a) For a period of six (6) months from the date of delivery (the “Warranty Period”), Bauman Redi-Mix warrants that the Materials substantially comply with the specifications set forth in the Agreement (the “Specifications”) when tested and sampled in accordance with this Section 5 (the “Limited Warranty”). (b) EXCEPT FOR THE LIMITED WARRANTY, BAUMAN REDI-MIX HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING AND EXCEPT FOR THE LIMITED WARRANTY, BAUMAN REDI-MIX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO (i) WHETHER ANY AGGREGATES IN SAID MATERIAL ARE INNOCUOUS OR DELETERIOUS, OR CONTAIN, NON-REACTIVE AGGREGATES, (ii) WHETHER ANY CONCRETE MATERIAL IS SUBJECT TO POP-OUTS, EXPANSION, CHECKING, DISCOLORING, SPALLING, FRETTING, CONSOLIDATION, SCALING, EFFLORESCENCE OR CRACKING, (iii) THE DURABILITY OF THE CONCRETE, INCLUDING BUT NOT LIMITED TO SULFATE RESISTANCE, OR (iv) WHETHER ANY CONCRETE MATERIAL, BOTH IN ITS QUALITY, QUANTITY, CHARACTERISTICS, AND PROPORTIONS, INCLUDING BUT NOT LIMITED TO CEMENT TYPE AND WATER-TO-CEMENT RATIO, IS IN CONFORMANCE WITH ANY PLANS, OTHER SPECIFICATIONS, REGULATIONS, ORDINANCES, STATUTE, OR OTHER STANDARDS APPLICABLE TO BUYER’S JOB OR TO SAID MATERIAL AS USED BY BUYER. THE LIMITED WARRANTY SHALL NOT APPLY IN THE EVENT THAT WATER OR ANY OTHER SUBSTANCE OR ADMIXTURE/MATERIAL IS ADDED TO THE CONCRETE EITHER BY OR AT THE REQUEST OF BUYER. BUYER ACKNOWLEDGES THAT MIX DESIGNS ARE BASED UPON COMPRESSIVE STRENGTH OR CEMENT FACTOR AS DULY NOTED. BUYER SHALL HAVE THE RESPONSIBILITY TO VERIFY THAT QUOTED MIXES ARE IN CONFORMANCE WITH PLANS AND SPECIFICATIONS. (c) To determine any claimed deficiency, Buyer shall test Materials in accordance with ASTM standards at an independent testing laboratory. With respect to ready-mixed concrete Materials, Bauman Redi-Mix shall not be liable for any claims resulting from: (i) the deviation from applicable ACI standards or any other factors beyond Bauman Redi-Mix’s control; (ii) any alteration of the concrete by the addition of any materials by Buyer (including, without limitation, water, additives or other chemicals); (iii) any concrete mix designs not provided by Bauman Redi-Mix, unless such mix design is tested and certified by Bauman Redi-Mix; (iv) any color variations due to admixtures that are requested by Buyer; (v) use of concrete for any purpose other than stated in the Agreement.

 

6.      No Assistance. – In no event shall Bauman Redi-Mix be responsible or liable for claims arising from advice or assistance provided to Buyer including, but not limited to, materials submittals, cutsheets, and materials safety data sheets (MSDS). Buyer understands and agrees that Bauman Redi-Mix has not reviewed or examined any plans, specifications, or existing conditions. Any advice or assistance provided by Bauman Redi-Mix is for Buyer’s guidance only and Buyer agrees to rely solely on its own professionals, experts, architects, engineers and the like to comply with any obligations, specifications or criteria which may have been established by a third party.

 

7.      Exclusive Remedy. In the event of any breach of the Limited Warranty and Buyer provides Bauman Redi-Mix written notice of such breach within the Warranty Period, Bauman Redi-Mix shall, in its sole and absolute discretion, either (i) replace the non-conforming Materials with conforming Materials, (ii) refund the amount paid for the non-conforming Materials, or (iii) credit Buyer for the amount paid for the non-conforming Materials. In any such instance, Bauman Redi-Mix shall have no further liability. THIS REMEDY IS BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY.

 

8.      Limitation Of Liability. BUYER AGREES THAT BAUMAN REDI-MIX SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR BAUMAN REDI-MIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IT IS FURTHER AGREED THAT BAUMAN REDI-MIX SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNT PAID UNDER THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW BUYER WAIVES ALL CLAIMS FOR LIABILITY IN EXCESS OF THE AMOUNT PAID UNDER THIS AGREEMENT.

 

9.      Duty to Inspect. Buyer agrees to inspect and test all Materials upon receipt in accordance with Section 5 and agrees to promptly, but in any event no later than thirty (30) days from receipt, notify Bauman Redi-Mix in writing of any alleged failure of the Materials to conform to the Limited Warranty and/or any failure by Bauman Redi-Mix to comply with the Agreement. In the event Buyer fails to timely provide such notice, Buyer shall be deemed to have irrevocably waived any claim that the Materials did not conform to the Limited Warranty and/or that Bauman Redi-Mix failed to comply with the Agreement.

 

10.   Indemnity. Except caused by the gross negligence or willful misconduct of Bauman Redi-Mix, Buyer shall indemnify, defend and hold harmless Bauman Redi-Mix, its officers, agents and employees, from all claims, damages, liability, actions, loss, costs, and expenses, including attorney’s fees, arising out of the delivery or use of the Materials, including, but not limited to, those asserted by the end user of the Materials.

 

11.   Force Majeure. Bauman Redi-Mix shall have no liability for delay or failure to make shipments or delivery, as a result of strikes, severe weather conditions, casualty, labor problems, mechanical breakdowns, fires, floods, accidents, traffic, epidemics or pandemics, actions of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation, or any other condition beyond Bauman Redi-Mix’s reasonable control.

 

12.   Governing Law; Waiver of Jury Trial; Venue. The Agreement shall be governed by and construed in accordance with the laws of California. BUYER AND BAUMAN REDI-MIX WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER CONCERNING ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT, AND/OR THE MATERIALS. The exclusive venue for any proceeding, action or counterclaim concerning any matters arising out of or in any way connected with the Quote, Agreement, or the Materials shall be the Superior Court of California for the County of Marin. Buyer (i) agrees not to commence any action, suit, or proceeding relating thereto except in such court, (ii) submits to the personal jurisdiction and venue of such court for such purposes, and (iii) waives all claims (by way of motion, as a defense or otherwise) of improper venue, that any such court is an inconvenient forum, and that such party is not subject personally to the jurisdiction of any such court.

 

13.   Assignment. This Agreement shall inure to the benefit of and shall be enforceable by the parties and their respective successors and permitted assigns; provided, however, Buyer may not assign this Agreement (including Buyer’s rights and obligations hereunder), whether by operation of law or otherwise (including by merger, sale of substantially all assets, sale of substantially all equity, or change of control), without the prior written consent of Bauman Redi-Mix.

 

14.   Miscellaneous. Bauman Redi-Mix is a material supplier.  And nothing contained in this Agreement is intended to create any other relationship or any fiduciary relationship between Bauman Redi-Mix and Buyer. Unless otherwise stated in the Agreement, Bauman Redi-Mix is only a supplier of materials and cannot be considered a subcontractor within the meaning of any laws, regulations, agreements, union contracts, or other rules or agreements. All notices shall be in writing by personal delivery at Bauman Redi-Mix’s office address. If any provision herein is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable and this Agreement shall be construed and enforced as if such provision had never been a part hereof. The failure of Bauman Redi-Mix to enforce any provision of this Agreement shall not be construed as a waiver or limitation of Bauman Redi-Mix’s right to subsequently enforce strict compliance with every provision of this Agreement. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.