Acceptance of a quote from MacKenzie & Sons Concrete on Demand LLC (“Supplier”) by Purchaser constitutes acceptance of these Terms and Conditions, receipt of which is acknowledged.  After such acceptance by Purchaser, all purchase orders, invoices and/or other documents or instructions from Purchaser shall be deemed subject to all Terms and Conditions set forth herein, and no additional or inconsistent term contained in any such purchase order, invoice or any other document or instructions from Purchaser shall be given any effect unless agreed to in writing by Supplier and Purchaser. 

Except as otherwise provided herein, any quotation of Supplier shall be deemed void and of no further effect unless accepted by Purchaser in writing within thirty (30) days after the date of such quotation.  If Purchaser has not signed and returned to Supplier a copy of Supplier’s quotation, Purchase will conclusively be deemed to have agreed to all the Terms and Conditions set forth herein by submitting to Supplier any order, contract, request or delivery instructions for any materials covered hereby or by accepting delivery of such materials, and no additional or inconsistent term contained in any such order and/or contract, request or instructions from Purchaser shall be given any effect unless agreed to in writing by Supplier.  Supplier may, at its sole discretion, reject any order for materials covered hereby where a quotation has not been signed and returned to Supplier within the time provided for therein.

Supplier’s obligation to deliver concrete at prices quoted is limited to deliveries on any specific project within six (6) months after the date of the quotation, unless otherwise specified therein.  Suppliers may refuse to commence or continue deliveries at prices quoted on any project not started within a reasonable time or on projects not continuously prosecuted after the commencement of deliveries.

Scheduling/Delivery.

Unless otherwise specified, prices quoted are based on delivery by truck to the project during normal working hours, Monday through Friday, 7:00 a.m. – 4:00 p.m.  An additional charge may be applied for deliveries outside of normal working hours.  Purchaser is responsible for giving Supplier reasonable and adequate notice for scheduling and delivering concrete.  Any changes to Purchaser’s original delivery request shall be made only through Supplier’s dispatch office.   Supplier shall not be expected to hold trucks and equipment available for deliveries to Purchaser and will not, without reimbursement, make equipment available for deliveries for which adequate and reasonable notice has not been given.  Supplier will not honor back charges for delays in delivery due to inadequate notice by Purchaser or due to underestimation of quantities for a delivery.

All materials are subject to availability.  Supplier will make every reasonable effort to deliver all materials on the date and time requested by Purchaser, and in sufficient incremental quantity to meet Purchaser’s specifications per its initial order.  Supplier, however, disclaims any responsibility for late delivery or insufficient quantity delivered. Purchaser expressly waives any claim of damages, right of offset or back charges as a result of late delivery and/or insufficient quantities delivered. The above waiver of damages shall include actual or consequential damages.

Supplier shall have no liability whatsoever to Purchaser or to any other person for delays in deliveries of orders accepted hereunder resulting from fire, casualties, calamities, strikes or other labor disputes, war, insurrection, interruption, or shortage of utility service or. materials, acts or regulations of any governmental body or agency, or resulting from conditions or events beyond the reasonable control of Supplier.

Prices quoted are based on prompt unloading of trucks. Supplier reserves the right to make a standby charge of $2.50 per minute or $150.00 an hour. In case of repeated delays in unloading, Supplier reserves the right to discontinue deliveries to Purchaser until conditions causing delay are corrected.

Purchasers are required to provide an area suitable for wash-down of the truck to meet applicable local, state and national environmental requirements.

Deliveries by Supplier’s trucks are dependent upon accessibility to point-of-delivery. Roadways shall be deemed inaccessible if Supplier’s trucks cannot proceed under their own power without damage to property or equipment. In the event Purchaser ordered delivery beyond curb line, Supplier disclaims any liability or responsibility for damage of any kind that arises from Supplier’s use of Purchaser’s required path.  Supplier shall not be liable for damage to sidewalks, driveways, or other property, and Purchaser shall indemnify and hold Supplier harmless against any and all liability, loss, and expense (including attorneys’ fees and costs), incurred as a result of such damages.  Upon Supplier’s tender of defense under this provision, Purchaser agrees to retain, at Purchaser’s sole expense, counsel of Supplier’s choice to defend against any third-party claims.

Purchaser hereby releases and holds harmless the driver of Supplier’s truck and Supplier from any and all liability, including but not limited to, damage to curbs, gutters, sidewalks, driveway, water pipes or water meters, or any damage of any kind or nature caused by the vehicle or the load being delivered on the property being so improved or adjacent properties. If the truck or vehicle becomes stuck while making a delivery inside the curb line property line, or adjacent property line, Purchaser agrees to reimburse Supplier for any and all loss, cost and expense. Purchaser has been advised by the driver of the possibility of damage to said property. Purchaser accepts any and all responsibility for any damages.

Supplier represents that the mixture and color of concrete specified on the front of the delivery invoice are as ordered by Purchaser. Purchaser acknowledges that it has been advised by Supplier that any colored concrete ordered from a color chart may vary from the colored concrete delivered, as a result of variations in the coloring material and other factors beyond Supplier’s control. Purchaser agrees that Supplier shall not be liable for any dissatisfaction with the color of the colored concrete delivered or defects caused by a mixture design, when same is specified by Purchaser or when additional water is added by Purchaser, or finishing implements used by Purchaser have been used with water by washing, rinsing, immersing, spraying, or any means that may add water to finished surface.

Purchaser shall notify Supplier, in writing, of any claims, including claims of defects associated with the materials delivered within seventy-two (72) hours after delivery. Purchaser shall also afford Supplier the opportunity to correct, in a timely fashion, any such claims prior to Purchaser incurring any cost or expense in attempting to correct the same. Purchaser agrees Supplier will not be held responsible for any claims without said seventy-two (72) hour notice.

Invoicing.

All concrete ordered by Purchaser and delivered to the project, whether used or not, will be billed to Purchaser. Receipt and delivery tickets shall be binding unless immediately disputed by Purchaser.  Pricing is based on the quarter yard, up to nearest quarter yard.

Subject to Supplier’s approval of Purchaser’s credit, invoices will be due thirty (30) days from date of invoice. If the invoice due date falls on a weekend or holiday, the payment will be due on the last working day preceding the weekend of holiday. Supplier has the right to refuse to deliver to any Purchaser with unsatisfactory credit history or to discontinue deliveries to any Purchaser with a past due account. All payments due hereunder shall be in U.S. Dollars.  Any NSF checks shall be subject to a handling fee and will not be re-deposited.  Any past due account shall bear interest at the rate of 18% per annum until paid in full. In the event the collection of any unpaid balance is placed in the hands of the Supplier’s attorney, Purchaser shall pay all related attorney’s fees and costs.  If invoices are not paid in full for the labor, equipment, and materials furnished, Supplier hereby notifies Purchaser that a mechanic’s lien will be placed on the property being so improved.  Any dispute hereunder shall be in Snohomish County, Washington. 

Any sales, processing or similar tax imposed by any governmental authority which is now or hereafter becomes applicable to deliveries by Supplier shall be paid by Purchaser unless otherwise provided by law in addition to the prices specified herein.  Any payment made via credit card shall be subject to an additional 3% processing fee.

Express Disclaimer of All Implied Warranties.

SUPPLIER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, (INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE)  REGARDING THE MATERIALS, WHICH ARE SOLD “AS IS.” Supplier’s obligation under this warranty shall be limited to replacement or allowance of credit for nonconforming materials as provided herein.

Limitation of Damages.

Supplier shall not be liable for loss or damage of any nature after delivery. Supplier’s only liability and obligation with respect to nonconforming (including defective) concrete shall be to replace such nonconforming concrete at point of delivery, or at Supplier’s option, to allow credit for such nonconforming concrete, provided that Purchaser shall be deemed to have waived all rights or claims hereunder with respect to nonconforming concrete not reported to Supplier within seventy-two (72) hours after the time of delivery thereof to Purchaser. Supplier shall have no liability for loss or damage in excess of the price received for nonconforming or defective concrete delivered to Purchaser or for losses or damages of any nature (including without limitation incidental or consequential damages) incurred or suffered by Purchaser or any other person or entity in repairing or replacing defective concrete or occasioned by defective concrete, and Supplier shall have no other responsibility, obligation or liability whatsoever with respect to any concrete delivered hereunder whether predicated or alleged breach of contract or negligence or otherwise.

Risk of Loss. 

Risk of loss of the materials sold hereunder shall pass to the Purchaser upon delivery of the materials at the place of delivery designated by Purchaser.  Thereafter, in addition to assuming all risk of loss, Purchaser shall be responsible for compliance with all governmental regulations and ordinances related to storage or placement of the materials and agrees to indemnify and hold Supplier harmless against all claims of any kind resulting from the storage, use or handling of the materials.

Time Limitation. 

Purchaser acknowledges that no legal action may be commenced or maintained by Purchaser as to any claim, known or unknown, based upon negligence, express or implied warranty or contract, if such claim is not brought within one (1) year of Supplier’s delivery of the materials to the place designated by Purchaser.

Concrete Warnings.

Concrete can cause injury to the eyes and irritate the skin.  Avoid contact with eyes and skin.  Wear waterproof gloves, a fully buttoned long-sleeved shirt, full-length pants, and tight-fitting eye protection when working with concrete materials.  If standing in wet concrete, wear waterproof boots high and secure enough to keep concrete out of boots.  If finishing concrete, wear kneepads to protect your knees.  If concrete or cement dust is inhaled, get fresh air immediately.  If irritation persists, get immediate medical attention.  Wash any wet concrete, mortar, and cement mixtures from your skin with fresh, clean water immediately after contact.  Because indirect contact with materials can be just as serious as direct contact, promptly rinse wet concrete, mortar and cement mixtures from clothing upon contact.  Seek immediate medical attention if you have persistence or severe discomfort.  In case of eye contact, flush with water for at least 15 minutes.  Consult a physician immediately.  KEEP OUT OF REACH OF CHILDREN.  IF INGESTED, CALL POISON CONTROL.  PURCHASER AGREES TO CONVEY THIS WARNING TO ALL PERSONS WHO MAY USE OR COME INTO CONTACT WITH WET CONCRETE, MORTAR, CEMENT OR CEMENT MIXTURES.

Personal Injury Indemnification.  This indemnification provision is an express part of these Terms and Conditions and is intended to comply with RCW 4.24.115.  In the event of a conflict between these Terms and Conditions and any other term, subcontract or agreement between Purchaser and Supplier, these Terms and Conditions shall control.  Purchaser agrees to defend, indemnify and hold harmless Supplier from any and all claims, demands, losses or liabilities to any third parties arising out of, resulting from, or connected in any way with the materials sold by Supplier to Purchaser, whether based in tort or contract, to the fullest extent permitted by law.  Purchaser’s duty to indemnify Supplier shall not apply to liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of Purchaser, its agents or employees.  Purchaser’s duty to indemnify Supplier hereunder shall apply only to the extent of Purchaser’s negligence, its agents or employees.  Purchaser specifically and expressly waives any immunities that may be granted under the Washington State Industrial Insurance Act, Title 51 RCW, provided that such waiver shall be expressly limited to Purchaser’s indemnity obligations herein and shall not be a benefit to any third party.  Further, the indemnification obligation herein shall not be limited in any way by any limitation on the amount or type of any damages, compensation or benefits payable to or for any third party under workers' compensation acts, disability benefits acts or other employee benefits acts.  The purchaser’s duty to defend, indemnify and hold Supplier harmless shall include payment of all damages, costs, interest, penalties, reasonable attorneys’ fees, Supplier’s personnel-related costs, and all other claim-related expenses.  Upon Supplier’s tender of defense under this provision, Purchaser agrees to retain, at Purchaser’s sole expense, counsel of Supplier’s choice to defend against any third-party claims.  PURCHASER AND SUPPLIER HEREBY CERTIFY THAT THESE TERMS AND CONDITIONS WERE SPECIFICALLY AND MUTUALLY NEGOTIATED.