TERMS & CONDITIONS OF SALE

Terms & Conditions of Sale

THESE TERMS AND CONDITIONS APPLY WHEN WE SELL GOODS OR SERVICES TO OUR CUSTOMERS.

MMC Materials, Inc. and Bayou Concrete (each individually a “Seller”) are engaged in the business of selling concrete products and certain ancillary services. These Terms and Conditions of Sale (“T&Cs”) govern Seller’s provision of products, services, or a combination of both. 

Governing Terms

By accessing, browsing, or otherwise using our website, requesting a quote, establishing a line of credit, placing an order, issuing a release, or accepting products or services from Seller, you acknowledge and agree that all products and services provided by or on behalf of Seller to you and/or your subsidiaries or affiliates (collectively “Customer”) shall be governed exclusively by: (i) these T&Cs; and (ii) the additional terms of any credit application provided by Seller and executed by Customer (each a “Credit Application”), which shall together control regardless of any additional or conflicting legal terms and/or conditions contained on or referenced in any quotation, order, acknowledgment, invoice, website, release, correspondence, request, proposal, or other document or form issued by or on behalf of Customer, including, but not limited to, at any time in the course of dealing or performance, all of which are hereby rejected and deemed void and of no force or effect. Seller’s acknowledgment and/or acceptance of an order shall not be deemed an acceptance of any such other terms and/or conditions or a waiver of the provisions hereof; instead, these T&Cs may only be modified, waived, supplemented, or superseded with the express prior written consent of an authorized officer of Seller. While the terms and conditions set forth in these T&Cs and a Credit Application are intended to supplement one another, in the event of a conflict between the terms and conditions set forth in these T&Cs and a Credit Application (if any), the terms and conditions that are more onerous on Customer, as determined by Seller in its sole discretion, shall control. Notwithstanding the foregoing, Seller reserves the right, in its sole discretion, to periodically revise these T&Cs.  The revisions shall become effective upon being posted to the Seller’s website and no further notice shall be necessary. Seller reserves the right to accept or reject any order.  Customer acknowledges that Seller’s provision of products and/or services is expressly conditioned on acceptance of these T&Cs, and Customer waives and agrees not to assert any argument under Uniform Commercial Code § 2-207 or similar statute to avoid, modify, or add to these T&Cs.

Payment Terms

Payment terms are thirty (30) days from date of invoice (the “Payment Date”) unless otherwise expressly agreed by Seller and Customer in writing; provided, however, Seller may, in its sole discretion, require full payment in cash before order entry, shipment, or delivery. Payments not received when due will be subject to a service charge of 1.5% per month until paid to cover the additional cost of handling the account.  Customer acknowledges and agrees that this charge is a “service charge” levied by Seller to reimburse Seller for the additional cost of carrying its delinquent account and that such charge is not an interest charge.  Customer shall also be responsible for interest on the outstanding balance at a rate of 8% per annum, or the maximum lawful rate, whichever is lower, of the outstanding invoice balance for each 30-day period or portion thereof past due.

When Seller deems itself insecure with respect to Customer’s ability to pay, Seller may, in its sole discretion: (a) withhold, defer, or cancel shipments and/or orders; (b) require cash in advance; and/or (c) demand immediate payment of all amounts then owed and pursue collection actions (including attorneys’ fees and costs of collection). Seller may also impose, revoke, or revise Customer’s credit limits, if any, at any time and for any reason. Customer agrees to give Seller current credit information, current annual financial statements, and proper authorizations for Seller to request financial information on Customer (including its subsidiaries and affiliates) from third parties, in each case, within five (5) days of request from Seller as a condition to beginning and/or continued credit extension or for any other reasonable purpose. All amounts and payments are in U.S. dollars. Seller may set-off and/or deduct for any sums owed by Customer (including its subsidiaries and affiliates). Customer has no right to withhold or set-off amounts against Seller or its affiliates.

All Sales Final

All sales are final.  Once Customer places an order, Customer shall be responsible for paying the full amount of the order, regardless of whether Customer subsequently cancels the order, without refund or credit. 

Collection Costs

If Seller retains legal or collection agency assistance to assist with collecting amounts due from Customer, responding to any other breach or potential breach of Customer, or responding to any claim, inquiry, or demand of Customer, all costs Seller incurs, including, but not limited to, legal expenses, interest, attorneys’ fees, and collectors’ expenses (collectively “Collection Costs”), shall be paid by Customer to Seller upon demand.  Customer shall be responsible for Collection Costs regardless of whether a lawsuit is commenced.  Further, Customer unconditionally waives its right to assert any statute, regulation, or judicial decision that places limits on the amount of necessary Collection Costs that Seller can recover from the Customer.

Prices and Taxes

Unless otherwise agreed in writing by Seller, quoted prices are subject to change.  Prices do not include any federal, state, or local property, license, privilege, sales, use excise, gross receipts, or other similar taxes or assessments.  Such taxes, if any, shall be added to the purchase price and shall be paid by Customer unless Customer provides Seller with an exemption certificate acceptable to the taxing authorities.  Customer agrees to defend, indemnify, and hold Seller harmless for any demand, claim, or liability relating to an exemption certificate provided by Customer.  Any taxes or assessments that Seller may be required to pay or collect under existing or future law shall be for the account of Customer, who shall promptly pay the amount thereof to Seller upon demand. 

Deliveries

Customer shall accept partial or pro rata deliveries in commercial units as full performance under Customer’s order if Seller is unable to fulfill Customer’s entire order in a single delivery.  Deliveries are subject to shipping and handling, freight, fuel, and related charges.  Title shall pass to Customer upon the earlier of Customer’s receipt of goods or delivery to the curb of the closest suitable public access point.  Seller assumes no responsibility for a suitable roadway from the public access to where material is to be unloaded.  Further, Seller assumes no responsibility for damage to property when asked to drive beyond the curb line.  Customer assumes all responsibility for damage done by or to our trucks after leaving the public access.  Customer will be charged $60.00 per hour (billed in 1/10^th of an hour increments) if Seller’s truck is held on a job site for more than one hour.  After-hours and weekend charges may also apply and will be supplied, as needed, on a case-by-case basis.

Choice of Law and Venue

Mississippi law shall govern all aspects of the Seller’s and Customer’s relationship notwithstanding any conflicts of law principles.  Venue for any dispute arising between Seller and Customer, regardless of its nature, shall be resolved exclusively in a state or federal court within 30 miles of Jackson, Mississippi.  Litigation between the parties in any other venue or forum is expressly prohibited.  This provision is mandatory, not permissive.  All depositions that are part of a litigated dispute between the parties will take place in Madison County, Mississippi, and all documents and electronically stored information that the parties are entitled to obtain through discovery requests will be produced in Madison County, Mississippi.  

Disclaimer of Warranties

Seller shall produce concrete in accordance with the standard specification for Ready Mixed Concrete, ASTM Designation C94, and quality is guaranteed to be as indicated on the delivery ticket when samples taken from the truck are tested in accordance with ASTM specifications.  Customer acknowledges that all material and services shown the delivery ticked have been received, that truck times shown are correct, and that the amount of water added at Customer’s request is shown correctly.  CAUTION: the addition of water reduces concrete strength and durability.  The addition of water is done at Customer’s sole risk.  Further, Seller assumes no responsibility in color or surface discoloration.

WE DO NOT GUARANTEE FINISHED RESULTS for any load of concrete.  Many important factors affecting the ultimate quality of the completed job are beyond Seller’s scope of responsibility and control.  Other than agreeing to provide concrete that meets ASTM specifications set forth above, SELLER EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND/R FITNESS FOR A PARTICULAR PURPOSE.  SELLER’S SOLE RESPONSIBILITY FOR NON-CONFORMING GOODS IS LIMITED TO EITHER RETURN OF THE PURCHASE PRICE OR REPLACEMENT OF THE NON-CONFORMING GOODS, AS SELLER, IN ITS SOLE DISCRETION, MAY ELECT. 

Limitation of Liability

IN NO EVENT SHALL THE SELLER BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS OF CUSTOMERS OF THE CUSTOMER OR OTHER THIRD PARTIES FOR ANY DAMAGES.  SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITHI ANY SALE OF GOODS OR SERVICES. 

Seller’s Maximum Liability.  CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL LIABILITY TO CUSTOMER EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SELLER FOR THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM AT ISSUE. 

Force Majeure

Seller shall not be liable for any delay, impairment, or prevention of Seller’s performance, in whole or in part, due to any event, circumstance, or occurrence that is not within Seller’s control, including, but not limited to, acts of God, labor disruptions, acts of war, acts of terrorism (actual or threatened), governmental decrees or controls, imposition of or changes to tariffs or duties, changes to commodity markets, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship products or obtain permits or licenses, inability to procure supplies or raw materials, severe weather, catastrophic events, or any other event, circumstance, or cause beyond Seller’s control within the normal conduct of its business (collectively “Force Majeure”). If Seller’s performance is so delayed, impaired, or prevented by Force Majeure, Customer agrees that Seller may, at Seller’s option: (i) suspend or terminate performance; and/or (ii) increase pricing and/or schedules for delivery or performance, in each case, without liability or penalty to Seller.  In no event will a Force Majeure event delay or excuse Customer’s obligation to make timely payments.

No Waiver

Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of Seller’s rights or remedies hereunder nor of its right to insist upon strict performance of the same or any other term herein in the future.  No waiver of any term or condition herein shall be valid unless in writing and signed by an authorized representative of Seller. 

Independent Contractor

The status of Seller and its personnel and any subcontractors is and will be that of independent contractors, and no such personnel or subcontractors will, at any time or for any purpose, be deemed Customer’s employees or agents, or vice versa.

Security Interest

Customer hereby grants Seller a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable, cash, or other proceeds resulting from insurance or the resale thereof until full and final payment is made to Seller. Customer shall file, and it hereby permits and authorizes Seller to file, all financing statements and other applicable documentation necessary to perfect, confirm and continue the validity, priority, and enforceability of such liens and/or security interests. Customer further authorizes Seller to notify any creditor asserting a security interest in Customer’s assets that Seller has been granted a purchase money security interest and/or chattel mortgage in the products.

Assignment

Customer shall not assign any order, or interest therein, without Seller’s express prior written authorization. Actual or attempted assignment without Seller’s prior written consent shall be void and unenforceable and shall entitle Seller to cancel such order upon notice to Customer.

Third Parties

These T&Cs are solely for the benefit of Customer and Seller and no other person or party is conferred any rights, benefits, or claims.

Severability

If any term, provision, or subsection in these T&Cs is to any extent found illegal, invalid, or unenforceable, the same shall be excluded to the extent of such illegality, invalidity, or unenforceability and all other terms, provisions, and subsections hereof shall remain in full force and effect. To the extent permitted and possible, the illegal, invalid, or unenforceable term, provision, or subsection shall be deemed replaced by one that is legal, valid, and enforceable and that comes closest to expressing the intent of such illegal, invalid, or unenforceable term, provision, or subsection. If such replacement is not permitted and possible, the illegal, invalid, or unenforceable term, provision, or subsection shall be severed from these T&Cs and the remainder of these T&Cs shall be valid and fully enforced as written.

Entire Agreement

These T&Cs, together with the Credit Application (if any), and the commercial and technical terms of Seller’s forms, acknowledgments, quotations, and invoices, constitute the entire and exclusive agreement between Seller and Customer, with any conflict therein being resolved in favor of the terms and conditions that are more onerous on the Customer, as determined by Seller in its sole discretion. All typographical or clerical errors made in these T&Cs or by Seller in any quotation, acknowledgment, or publication are subject to correction by Seller at its sole discretion.