Terms and Conditions

Uniform Terms & Conditions for Purchase Orders

Velocity Ready Mix, LLC (“Seller,” “VRM”)

1. Offer; Acceptance; Entire Agreement (UCC §2-207)

These Terms & Conditions (“T&C”) apply to every purchase order, sales confirmation, delivery ticket, invoice, and/or sale of products, goods, materials, and/or services (collectively, “Products”) provided by Seller to the customer identified in the applicable purchase order or account documents (“Buyer”).  Buyer’s order is accepted by Seller solely on the basis of these T&C. Any terms submitted or proposed by Buyer that differ from, conflict with, or add to these T&C are hereby objected to, rejected, and shall be of no force or effect, whether such terms appear in Buyer’s purchase orders, acknowledgments, emails, online portals, or other communications.  No waiver, modification, or amendment of these T&C shall be valid or binding unless set forth in a written instrument signed by Seller’s President or Executive Vice President.  These T&C, together with the face of Seller’s purchase order, sales confirmation, invoice, and delivery ticket, constitute the entire agreement between Seller and Buyer and supersede all prior or contemporaneous communications, representations, or agreements.

Due to Covid-19 protocols, delivery of Products constitutes Buyer’s acceptance of all T&C, with or without a signature on the delivery ticket. Any dispute, defect, shortage, or issue must be clearly noted on the delivery ticket at the time of delivery. A signed or unsigned delivery ticket without notation of issues shall constitute conclusive evidence that the Products, including concrete delivered, were received, accepted, and found to be in satisfactory condition with no issues.

2. Specifications; Plans; Codes

Seller’s product standards and any specifications expressly referenced by Seller in the PO govern. Any plans, specifications, drawings, descriptions, codes, or requirements not created or expressly incorporated by Seller are not binding on Seller. Buyer is solely responsible for verifying compliance with all applicable codes, ordinances, permits, insurance and project requirements and acknowledges such items are outside Seller’s knowledge and scope. Seller warrants only that the Products will conform to Seller’s specifications on the face of the PO/delivery ticket.

3. Changes; Clarifications

Seller may initiate, and Buyer may request, changes. No change is binding unless Seller issues a written change order. All added or resulting costs, time extensions, price adjustments, and scheduling impacts are Buyer’s sole responsibility as determined by Seller in its sole discretion. Any Seller clarification or change order is deemed an amendment unless Buyer objects in writing to Seller’s CEO within two (2) days of issuance.

4. Cancellation; Substandard Performance

Buyer may cancel within 24 hours as long as the concrete has not been set in que to batch. If buyer cancels late, Buyer shall immediately pay Seller for all costs, expenses, damages and lost profits incurred or committed (including processing, engineering, detailing, material procurement, fabrication, storage, demurrage, and administrative costs). If Seller in good faith determines Buyer’s performance is substandard, or receives third-party complaints about Buyer’s project performance, Seller may communicate with such third parties and may cancel immediately, with Buyer liable for all damages as above.

5. Delivery; Title; Risk of Loss; Storage; Stoppage

When Products are ready for delivery, Seller will notify Buyer of tender dates and times confirmed the day before. Title and risk of loss pass when Products leave Seller’s facility or, if shipped by common carrier, upon tender to the carrier (UCC §§2-319, 2-509). No goods in Seller’s possession are identified to any Buyer contract until shipment/tender. As an accommodation, Seller may arrange delivery to the jobsite; Buyer shall reimburse all shipping and related costs. If Buyer arranges its own shipping, Buyer must notify Seller at least 5 days prior to scheduled shipment. If Buyer fails/refuses to take timely delivery, Seller may invoice the full price for ready Products, and Buyer shall pay all storage, transport, spotting, switching, drayage, demurrage, repainting, deterioration, and handling costs and assumes all risks while in storage. Seller may split shipments and invoice separately. If Buyer delays delivery, Seller may adjust price to reflect then-current increases in Seller’s pricing. Seller may exercise stoppage in transit and other UCC remedies upon Buyer default (UCC §2-705).

6. Inspection; Acceptance; Remedies

Buyer shall inspect upon delivery. Claims for shortage must be made in writing at delivery; Seller’s disposition is final and will be proven by batch weights. Any claim for nonconformity/defect or rejection must be made in writing within twenty-four (24) hours after delivery, with specific description and identification of the portion rejected. Failure to give timely written notice constitutes irrevocable acceptance. Installation, placement, finishing, or pouring constitutes acceptance of the Products as-is and waives any nonconformity claims for conditions discoverable upon reasonable inspection. Seller may inspect/review any claim and, at its option, repair, replace, or credit the affected portion as Buyer’s sole and exclusive remedy.

7. Concrete-Specific Terms

(a) Plastic Properties Window. Concrete properties in a drum are valid for ninety (90) minutes from batching. Buyer is solely responsible for time management and unloading within this window.

(b) Added Ingredients/Water. Any water, color, admixture, fiber, or material added after the VRM batch plant is at Buyer’s risk and voids any performance claims.

(c) Not Responsible for Jobsite Conditions. Seller is not responsible for grade, subgrade, base, reinforcement, embeds, vapor barriers, curing, finishing, weather (including freeze-thaw, precipitation, snow/ice, wind cracking), or other pre-/post-placement conditions or procedures.

(d) Unloading & Standby. Buyer must provide safe access and a suitable washout area. Drivers will deliver only where conditions permit safe and proper operation. Drivers will not go beyond the curb line absent Buyer’s express consent; if they do so at Buyer’s request, Buyer assumes all risk for property damage, towing/wrecker charges, and equipment recovery. Buyer is allowed five (5) minutes per cubic yard to unload; additional time is charged at $90.00 per hour per truck (or Seller’s then-current rate).

(e) Any placement of concrete into forms shall require the use of a pump furnished and maintained by Buyer. If no pump is present at the jobsite, Buyer shall bear sole and exclusive responsibility for unloading and placing the concrete, and Seller shall have no obligation to furnish equipment, labor, or assistance for such placement. Concrete shall not be discharged directly into forms except upon Buyer’s express written or verbal direction, and any such discharge shall be performed strictly at Buyer’s sole risk.  Buyer assumes full and unconditional liability for, and agrees to defend, indemnify, and hold Seller, its officers, employees, and agents harmless from and against, any and all claims, demands, damages, losses, costs, expenses, or injuries (including attorneys’ fees and litigation costs) arising out of or relating to the placement of concrete into forms without a pump, including but not limited to:  Damage to forms, structures, reinforcement, or equipment of any kind; and  Damage to, or loss of use of, Seller’s mixer truck, chute, or related equipment occurring during such placement or while following Buyer’s directions on site. This assumption of liability and indemnity obligation shall apply under all circumstances and regardless of cause.  

(f) Independent Testing. Any testing (e.g., cylinders) is Buyer’s responsibility and must be performed by an independent laboratory using recognized standards; field water additions invalidate results.

(g) Batch Weights. Claims for cement content are invalid; Seller will provide batch weights as the sole evidence of quantities delivered.

8. Spillage; Environmental; Roadway Damage

VRM HAS NO LIABILITY FOR SPILLS, LEAKS, OR DAMAGE caused by transportation, delivery, or handling of concrete/materials on public roads, private property, or the jobsite. Buyer assumes all risk and responsibility for any such incidents and shall promptly clean up all spills, residues, and related damage to and from the jobsite once dispatched from Seller’s plant. All routes to/from the jobsite are under Buyer’s responsibility. Buyer shall comply with all environmental laws, provide appropriate containment/washout, and indemnify Seller for any citations, penalties, cleanup costs, and third-party claims.

9. “FOB/Will-Call” Orders; “AS-IS”

ALL FOB/WILL-CALL ORDERS ARE SOLD “AS-IS, WHERE-IS, WITH ALL FAULTS.” Once the FOB truck leaves the VRM batch location, Seller assumes zero liability for any issues.

10. Pricing; Taxes; Surcharges; Escalation

Prices exclude performance/payment bonds and all federal, state, and local taxes (including, without limitation, sales, use, excise, privilege, occupation, value-added). Buyer shall pay or reimburse all such amounts. If Buyer claims tax exemption, Buyer must provide a valid exemption certificate acceptable to Seller’s tax department prior to shipment; otherwise, Seller will collect the applicable tax. Seller may implement surcharges (e.g., fuel) and pass-through supplier increases announced between PO date and delivery, and Buyer shall pay the adjusted price.

11. Payment; Credit; Interest; Collection; Set off; Mechanic Liens

Unless otherwise agreed in a Seller-signed writing, payment is due upon invoice and, at Seller’s discretion, prepaid or COD. Buyer authorizes Seller to charge any card on file for balances due. If any sum is unpaid 30 days from invoice, it accrues interest at the lesser of 3.3% month or the maximum permitted by law, calculated and compounded as allowed. All discounts are void upon any late or partial payment. Buyer shall pay all costs of collection, including reasonable attorneys’ fees, expert fees, lien fees, mailing/copying, inspection costs, and internal management time. Seller may withhold, set off, or apply payments to any Buyer obligations to Seller or its affiliates and may suspend deliveries for any default. Nothing waives Seller’s rights under C.R.S. §38-22-101 et seq. (mechanics’ liens) or the UCC.  All Mechanic’s Liens filed shall be at the Buyer’s expense, assessed at $750.00 per lien for the preparation, execution, and filing of the lien.  Once the past-due debt is satisfied, an additional $300.00 will be assessed if a lien release must be filed with the county on the Buyer’s behalf. The Buyer may also choose to file the lien release independently at their own cost.  A payment-in-full receipt and lien release will be issued once the outstanding balance, including all past-due amounts, late fees, legal fees, and any other costs incurred, has been paid in full.

12. Security Interest; Adequate Assurance (UCC §§2-401, 2-609)

Buyer grants Seller a purchase-money security interest in Products (and proceeds) until Seller is paid in full, and authorizes Seller to file UCC-1 financing statements. If Seller deems itself insecure, Buyer shall provide adequate assurance of performance upon demand; failure permits Seller to suspend or cancel.

13. Limited Warranty; Disclaimers; Exclusive Remedies

PRODUCTS ARE PROVIDED “AS-IS/WHERE IS/WITH ALL FAULTS.” SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR PERFORMANCE (INCLUDING STRENGTH, SLUMP, AIR, SET TIME, DURABILITY, OR FREEZE-THAW) UNLESS EXPRESSLY STATED IN A SELLER-SIGNED WRITING. Seller’s sole obligations, at its option, are repair, replacement, or credit of the nonconforming portion timely noticed under §6. These are Buyer’s exclusive remedies.

14. Limitation of Liability

To the fullest extent permitted by law, Seller’s maximum aggregate liability for any claim, whether in contract, tort (including negligence), strict liability, warranty, or otherwise, shall not exceed the purchase price actually paid by Buyer for the specific load/service giving rise to the claim. IN NO EVENT shall Seller be liable for special, incidental, liquidated, consequential, exemplary, punitive, delay, cost-of-cover, or back-charge damages, including but not limited to lost profits, revenue, use, production, business interruption, equipment damage, rental costs, or labor costs—even if advised of the possibility. Buyer agrees to mitigate damages. Any action or proceeding must be brought within one (1) year after the claim accrues (UCC §2-725 permits reduction to not less than one year).

15. Indemnification

Buyer shall defend, indemnify, and hold harmless Seller and its owners, members, officers, employees, agents, affiliates, successors and assigns from and against any and all claims, demands, damages, losses, fines, penalties, liabilities, costs, and expenses (including attorneys’ fees and expert fees) arising out of or related to: (i) use, handling, placement, finishing, curing, transport, unloading, or storage of Products; (ii) personal injury, death, or property damage occurring at or en route to/from the project; (iii) spills/leaks and environmental events; (iv) Buyer’s breach, negligence, or willful misconduct; and (v) additions/modifications to mixes after batching. This indemnity applies even if Seller is alleged to be partially negligent, but not to the extent of Seller’s sole negligence or willful misconduct where not permitted by law.

Products-Liability Indemnity Waiver. To the maximum extent permitted by law, Buyer waives and releases any right to be indemnified by Seller for products-liability claims. If such indemnity is nonwaivable by statute, the waiver applies to the fullest lawful extent.

16. Insurance; Additional Insured; Primary/Non-Contributory; Waiver of Subrogation

Buyer shall maintain, at its expense, Commercial General Liability (occurrence) of not less than $2,000,000 per occurrence, including products-completed operations (maintained for 3 years after completion), and any other coverages necessary for the work. Buyer shall name Seller as Additional Insured by endorsement on a primary and non-contributory basis and provide waiver of subrogation in favor of Seller. Certificates and copies of endorsements shall be furnished upon request.

17. Force Majeure

Seller is not liable for delay, non-performance, loss, or damage due to force majeure events beyond its reasonable control, including but not limited to fire, flood, weather, freeze, lightning, epidemic/pandemic, quarantine, strike or labor dispute, embargo, explosion, power failure, acts of God, war/terrorism, civil disturbances, government orders, supply or transportation failures, or actions/omissions of suppliers.

18. Compliance; Safety; Jobsite Control

Buyer is solely responsible for site access, safety, traffic control, and compliance with laws, codes, and OSHA. Seller does not control the jobsite and is not a subcontractor to Buyer. Buyer shall provide safe, legal ingress/egress for trucks and equipment.

19. No Special Inspections

Seller is not responsible for any special inspections, testing, third-party certifications, or approvals unless expressly agreed by Seller in a signed writing with separate pricing.

20. Assignment; No Third-Party Beneficiaries

Seller may assign receivables and rights. Buyer may not assign without Seller’s written consent. There are no third-party beneficiaries to this Agreement.

21. Severability; Survival; Order of Precedence

If any provision is unenforceable, it is severed, and the remainder remains in effect. Provisions regarding payment, security interest, warranty disclaimers, limitations, indemnities, venue, jury waiver, and survival survive. In any conflict, the face terms of Seller’s PO/confirmation/invoice/delivery ticket control, then these T&C, then any incorporated Seller change order.

22. Governing Law; Venue; Jury Trial Waiver

This Agreement is governed by the laws of the State of Colorado without regard to conflicts rules. Exclusive venue and jurisdiction lie in the state or federal courts located in Denver County, Colorado. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY in any action, claim, counterclaim, or proceeding arising out of or related hereto. Forum non conveniens and similar objections are waived. (The parties expressly waive any and all objections based on forum non conveniens, improper venue, or any similar doctrine or argument relating to the convenience or appropriateness of the forum selected for the resolution of disputes.)

23. Buyer Acknowledgments (Concrete-Specific)

• Refusal Right: Buyer may refuse any concrete for a legitimate reason before placement. Pouring/placement = acceptance with no recourse.
• VRM Not Responsible for Plasticity After Arrival: VRM is not responsible for maintaining plastic properties after arrival at jobsite.
• Not Responsible for Grade/Pre-Placement: VRM not responsible for grade, subgrade, reinforcement, or pre-placement procedures.
• Freeze-Thaw/Weather: VRM not responsible for freeze-thaw, water or snow on ground, or wind cracking.

24. Payment Authorization; Credit Review; Mechanic’s Liens

By purchasing, Buyer authorizes VRM to make credit inquiries (bank/trade references) and to charge any card on file. Seller reserves all rights under C.R.S. §38-22-101 et seq. and the UCC to secure and collect payment.

conspicuous warranty & damages statement (UCC §1-201(10))

DISCLAIMER OF IMPLIED WARRANTIES. SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. SELLER’S TOTAL LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE SPECIFIC LOAD/SERVICE AT ISSUE. NO LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, DELAY, COST-OF-COVER, OR BACK-CHARGE DAMAGES.

common project charges (reference)

• Standby/detention: first 7 minutes/yard included; thereafter $90.00/hr per truck (or then-current rate).
• Returned/redirected loads, short loads, weekend/after-hours, small-quantity, hot water/winter mix, accelerators, special admixtures, environmental/washout, fuel surcharges: charged at Seller’s then-current schedule.
• Price escalations: pass-through of supplier and fuel increases prior to delivery.

Acceptance

By placing an order, accepting delivery, using the Products, or otherwise indicating assent (including electronic acceptance), Buyer unconditionally accepts these T&C.