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This document is a contract between SITEMIX,LLC, hereinafter referred to as SITEMIX, and CUSTOMER / BUYER, for service and/or equipment for a project in common and is comprised of the face and reverse side. Please read both sides in their entirety, as they contain important terms and conditions. The term "SITEMIX" shall include the SITEMIX, its parent, subsidiaries, affiliates, partners, joint interest owners, members, shareholders, co-owners, and joint ventures, if any, and the agents, officers, directors, employees and representatives of these other persons. The term “CUSTOMER / BUYER” shall include the CUSTOMER / BUYER, its parent, subsidiaries, affiliates, and joint ventures, if any, as well as its subcontractors, and the agents, officers, directors, employees and representatives of these other persons. DEFENSE, INDEMNIFICATION AND HOLD HARMLESS: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER / BUYER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS SITEMIX AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES AND AGENTS (THE “INDEMNITEES”) FROM ANY AND ALL ACTIONS, CAUSES OF ACTION, CLAIMS, SUITS, DEMAND INVESTIGATIONS, OBLIGATIONS, JUDGMENTS, LOSSES, COSTS, LIABILITIES, DAMAGES, FINES, PENALTIES AND EXPENSES, INCLUDING ATTORNEY’S FEES, WHICH ARE INCURRED BY, ACCRUED, ASSERTED, MADE OR BROUGHT AGAINST, OR RECOVERABLE FROM ANY OF THE INDEMNITEES ARISING FROM OR OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THE CUSTOMER / BUYER’S ACCEPTANCE, POSSESSION, TRANSPORT, USE, OPERATION, CONTROL OF THE EQUIPMENT, OR RETURN OF THE EQUIPMENT WHETHER OR NOT THE SAME ARISES FROM DAMAGE TO PROPERTY (REAL OR PERSONAL), INJURY OR DEATH TO PERSONS (INCLUDING BUT NOT LIMITED TO CUSTOMER / BUYER’S EMPLOYEES, AGENTS AND REPRESENTATIVES), FAILURE TO COMPLY WITH APPLICABLE LAWS, REGULATIONS OR ORDINANCES, THE EQUIPMENT CONDITION, THE LOSS OF USE OR SEIZURE OF THE EQUIPMENT, OR OTHERWISE OR ANY OTHER ACTION OR FAILURE TO ACT BY THE CUSTOMER / BUYER, THEIR AGENTS, CONTRACTORS, AFFILIATES, OR EMPLOYEES; AND/OR) ANY CLAIMS OF THIRD PARTIES AGAINST CUSTOMER / BUYER, THEIR AGENTS, CONTRACTORS, AFFILIATES. CUSTOMER / BUYER EXPRESSLY AGREES TO WAIVE ANY WORKERS’ COMPENSATION IMMUNITY IT MAY OTHERWISE HAVE. CUSTOMER / BUYER’S OBLIGATION TO INDEMNIFY THE INDEMNITEES SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. IN JURISDICTIONS IN WHICH THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION IS BROADER THAN THAT ALLOWED BY APPLICABLE LAW, THIS SECTION SHOULD BE INTERPRETED AS PROVIDING THE BROADEST INDEMNIFICATION PERMITTED AND SHOULD BE LIMITED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH SAID LAW. THIS INDEMNIFICATION PROVISION DOES NOT NEGATE, ABRIDGE OR REDUCE ANY OTHER RIGHTS.INSURANCE – The CUSTOMER / BUYER at its expense agrees to carry, maintain and provide the following insurance coverages prior to the Equipment’s arrival on the job site; a) worker's compensation and employer's liability insurance applicable to CUSTOMER / BUYER’s employees, with limits of at least the statutory minimum or $1,000,000, whichever is greater; b) primary non-contributory commercial general liability insurance on an occurrence basis, including bodily injury and property damage coverages with minimum limits of $1,000,000 per occurrence and $2,000,000, in the aggregate; c) follow form excess/umbrella non-contributory insurance in the amount of at least $5,000,000; said primary and excess/umbrella policies must be endorsed so that they are primary and non-contributory to all of SITEMIX policies; d) SITEMIX and all affiliated partnerships, joint ventures, corporations and anyone else who SITEMIX is required to name as an additional insured, are to be included as additional insureds on all liability insurance policies, including excess/umbrella policies on ISO endorsement forms CG 20 10 10 0 and CG 20 37 10 01. CUSTOMER / BUYER shall name SITEMIX as an Additional Insured on all insurance policies, and CUSTOMER / BUYER shall provide all insurance certificates and/or insurance policies to SITEMIX when requested; e) all CUSTOMER / BUYER's policies must remove any exclusion for explosion, collapse and underground operations (XCU); f) all CUSTOMER / BUYER's policies must remove the "employer's liability exclusion" for all additional insureds; i) all of SITEMIX’s policies and the policies of anyone SITEMIX is required to insure, are excess over all of CUSTOMER / BUYER’s policies. To the extent that the CUSTOMER / BUYER may perform under this agreement without obtaining the above coverages, such an occurrence shall not operate, in any way, as a waiver of the SITEMIX's right to maintain any breach of contract action against CUSTOMER / BUYER. CUSTOMER / BUYER hereby agrees to waive any and all rights of subrogation and any and all lien rights which may accrue to it or its insurers. CUSTOMER / BUYER understands that this waiver shall bind its insurers of all levels and agree to put these insurers on notice of this waiver and to have any necessary endorsements added to the insurance policies applicable to this agreement. To the extent that the SITEMIX may perform under this Agreement without obtaining the above coverage, such an occurrence shall not operate, in any way, as a waiver of SITEMIX’s right to maintain any breach of contract action against the CUSTOMER / BUYER.
ENTIRE AGREEMENT - The parties agree that the terms of this agreement are the sole and exclusive agreement between the parties, intended by the parties to be the only and final terms and agreements between them, superseding any and all oral or written understandings as otherwise might have been claimed to have existed, the assertion of which the parties hereby waive. This agreement shall be interpreted fairly and reasonably and neither more strongly for nor against either party
LIMITED WARRANTY AND WARRANTY DISCLAIMER: SiteMix warrants for a period of one (1) year from date of delivery only that the material sold hereunder substantially complies with SIteMix's specifications for said
material or thespecifications set forth in SiteMix's quotation. SITEMIX HEREBY EXCLUDES ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, OF THE MATERIAL SOLD HEREUNDER, OTHER THAN THE EXPRESS WARRANTY STATED ABOVE. In addition, except to the extent otherwise set forth in the specifications describe above. SiteMix makes no warranty whatsoever with respect to (1) whether any aggregates in said material are innocuous or deleterious, or contain non-reactive aggregates, (2) whether any concrete material is subject
to pop-outs, expansion, checking, discoloring, spalling, fretting, consolidation, scaling, efflorescence or cracking, (3) the durability of the concrete, including but not limited to sulfate resistance, or (4) 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,
statutes, or other standards applicable to customer's job or to said material as used by customer. No warranty shall apply in the event that water or any other substance or material is added to or on top of the concrete either by or at the request of customer. No warranty shall apply to any concrete that has any product or material introduced into the concrete other than the SiteMix's products and materials. SITEMIX SHALL IN NO EVENT BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGE CAUSED BY NON-COMPLIANCE OF THE MATERIAL
WlTH SPECIFICATIONS, OR FOR ANY DEFECTS IN THE MATERIAL SOLD HEREUNDER.
RELEASE AND INDEMNIFICATION: SiteMix is not responsible for damage inside curb or property line. In consideration of the delivery of materials to a place designated by customer, customer shall release, indemnify, defend and hold harmless SiteMix and its agents and employees from all liability and claims for damage to sidewalks, driveways, curbs, roadways, buildings, vegetation and other property resulting from said delivery. Customer assumes full responsibility for damage to all real and persona property. Customer is also responsible for any towing charges incurred.