Product Sales Terms and Conditions

1.Terms and Conditions of Sale.Any quote or other offer issued by Supplier to Purchaser for sale of the Materials (as defined below) (“Quote”) includes and is governed by the express terms contained on the face of the Quote, the terms and conditions stated in Purchaser’s Commercial Credit Application and Agreement or Application for Business Credit and Agreement (the “Credit Agreement”), if applicable, the terms and conditions in any documents provided by Supplier to Purchaser relating to the delivery or shipment of materials by truck, barge, vessel, rail or other means (the “Shipping Documents”), if applicable, and these Terms and Conditions. The Quote does not constitute an acceptance of any prior offer, proposal or purchase order by Purchaser, and Supplier objects to and rejects any additional or different terms in such prior offer, proposal or purchase order. The Quote, the Credit Agreement, if applicable, the Shipping Documents, if applicable, and these Terms and Conditions (collectively, the “Contract”) comprise the entire agreement between the parties. The Contract supersedes all prior agreements, orders, quotations, proposals, purchase orders and other communications concerning the Materials, and there are no other understandings or agreements, verbal or otherwise. Except as expressly excluded herein, all sales of Materials shall be subject to these Terms and Conditions. Notwithstanding any other provision herein, these Terms and Conditions shall not apply to purchase orders for Materials issued by Purchaser pursuant to Purchaser’s National Sales Contract or other written agreement for the sale of Materials negotiated and executed by Supplier and Purchaser which expressly exclude these Terms and Conditions.

2.Acceptance.Any acceptance of the Quote, a purchase order or other request for Materials is limited to and conditioned upon Purchaser’s acceptance of these Terms and Conditions. Purchaser accepts the Quote, including these Terms and Conditions, by signing and returning the Quote, by accepting the Quote on the Vulcan Materials Company Customer Portal (aka MyVulcan), by sending a purchase order in response to the Quote, by submitting a purchase order for Materials to Supplier without a formal Quote, or by instructing Supplier to begin work. No terms, conditions or warranties other than those contained in the Contract and no agreement or understanding, oral or written, in any way purporting to modify the Contract, whether contained in Purchaser’s purchase order or shipping release forms, or elsewhere, shall be binding on Supplier unless hereafter made in writing and signed by Supplier’s authorized representative. Supplier expressly rejects any term or condition that is in addition to, or inconsistent with the Contract, and to any other term or condition proposed by Purchaser in accepting the Quote. Neither Supplier’s subsequent lack of objection to any terms or conditions, nor the delivery of the Materials shall constitute an agreement by Supplier to any such term or condition.

3.Pricing; Payment TermsExcept as otherwise stated in the Contract, prices for and quantities of Supplier products sold by Supplier to Purchaser (the “Materials”) are based on 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 for ready mix products or for the quantities described in the Quote, plus or minus 10% of such quantities for other Materials. Prices for aggregate product reflect Purchaser’s acceptance of Materials at the quoted plant based upon gradation analysis performed and reported by Supplier’s certified plant quality control personnel, and any penalties that result from in place sampling shall be the full responsibility of Purchaser. Such prices are available only to Purchaser and are only for quantities referenced in the Quote. Unless a “delivered” price is quoted by Supplier in the Quote, 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 Purchaser, unless Purchaser provides Supplier with satisfactory evidence of exemption from same. All taxes applicable to the sale of delivery of materials that are not paid directly by Purchaser will be added to the sales price, invoiced to and paid by Purchaser, unless Purchaser provides Supplier 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 in the Quote. Supplier may change the price and/or quantity upon thirty (30) days’ written notice to Purchaser for any reason, including for (without limitation) fuel surcharges and costs of materials. Supplier shall also have the right to change, modify or amend any other terms and conditions upon written notice of such change to Purchaser. Credit will not be issued for any Materials returned to Supplier by Purchaser for any reason that is beyond the control of Supplier. Purchaser shall pay to Supplier all amounts due under this Contract, including applicable taxes. Payment terms are NET 15th PROX. (payment is due on the 15th day of the following month of the purchase). Any amounts not paid when due shall accrue interest at a rate of eighteen percent (18%) per annum. If at any time Supplier determines, in its sole discretion, that Purchaser’s solvency or ability to perform is unsatisfactory to Supplier, then Supplier may require payment in advance, additional security or collateral, or a guarantee that invoices will be paid when due. Supplier may suspend performance until such assurances are provided.

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

5.Delivery.All deliveries are contingent upon Material availability and shall be made during regular non-holiday work hours between 7:30 a.m. and 5:30 p.m., Monday through Friday. Additional charges may apply for deliveries required outside of regular work hours. Purchaser must give Supplier at least forty-eight (48) hours advance notice of the time and date of delivery. If for any reason Purchaser must cancel the delivery, Purchaser must notify Supplier 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. All deliveries will be made to the best of Supplier’s ability. Supplier will deliver the Materials only to the curb or public street line adjacent to the project. In the event Supplier is requested to deliver the Materials beyond the curb or public street adjacent to the project, Purchaser (i) shall provide and maintain a safe and reliable means of access for Supplier’s trucks, (ii) hereby releases, indemnifies, and holds harmless Supplier from and against any and all liability for damages to the property arising out of or in connection with Supplier’s delivery, and (iii) shall pay for any damages to Supplier’s trucks and any costs incurred by Supplier for any towing or other costs incurred arising out of such delivery. Supplier 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 Supplier’s control adversely affecting Supplier’s delivery (including, without limitation, Material shortages, labor troubles, accidents, necessary repairs to machinery, fire, flood, weather conditions, natural phenomena). Time allowance for unloading Concrete Materials (as defined below) will be ten (10) minutes plus five (5) minutes per cubic yard. Purchaser shall be charged additional time for unloading Concrete Materials at the quoted hourly rate for trucks delayed at the jobsite by Purchaser. Supplier shall not be liable for any delivery delays due to job conditions or any other reason beyond Supplier's control. Purchaser shall supply and maintain a washout area, and shall remediate such area after completion of the job. For ready mix products, no unused Materials may be returned to the mixer.

6.LIMITED WARRANTY AND WARRANTY DISCLAIMER.

General.For a period of one (1) year from the date of delivery (the “General Warranty Period”), Supplier warrants that the Materials (except for the Concrete Materials, which are exclusively covered by the Limited Concrete Warranty) substantially comply with the specifications set forth in the Contract (the “Specifications”) when tested and sampled in accordance with this Section 6 (the “Limited General Warranty”).EXCEPT FOR THE LIMITED GENERAL WARRANTY, SUPPLIER MAKES NO WARRANTY WHATSOEVER AND 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 GENERAL WARRANTY, SUPPLIER MAKES NO WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO (1) WHETHER ANY AGGREGATES IN SAID MATERIAL ARE INNOCUOUS OR DELETERIOUS, OR CONTAIN, NON-REACTIVE AGGREGATES, (2) WHETHER ANY MATERIAL, IN ITS QUALITY, QUANTITY, CHARACTERISTICS, AND PROPORTIONS IS IN CONFORMANCE WITH THE SPECIFICATIONS OR ANY PLANS, OTHER SPECIFICATIONS, REGULATIONS, ORDINANCES, STATUTE, OR OTHER STANDARDS APPLICABLE TO PURCHASER’S JOB OR TO SAID MATERIAL AS USED BY PURCHASER OR (3) MATERIAL’S SPECIFIC GRAVITY OR ABSORPTION. FURTHERMORE, SUPPLIER MAKES NO WARRANTY OF GUARANTY OF FINISHED WORK WHATSOEVER, AND HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED.

Ready Mix Specific Warranty Provisions.With respect to concrete and ready mix Materials (the “Concrete Materials”), for a period of six (6) months from the date of delivery (the “Concrete Warranty Period”, and together with the General Warranty Period, the “Warranty Period”), Supplier warrants that the Concrete Materials substantially comply with the Specifications when tested and sampled in accordance with this Section 6 (the “Limited Concrete Warranty”, and together with the Limited General Warranty, the “Limited Warranty”). EXCEPT FOR THE LIMITED CONCRETE WARRANTY, SUPPLIER 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 CONCRETE WARRANTY, SUPPLIER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO (1) WHETHER ANY AGGREGATES IN SAID CONCRETE 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 MATERIALS, INCLUDING BUT NOT LIMITED TO SULFATE RESISTANCE, (4) WHETHER ANY CONCRETE MATERIAL, IN ITS QUALITY, QUANTITY, CHARACTERISTICS, AND PROPORTIONS, INCLUDING BUT NOT LIMITED TO CEMENT TYPE AND WATER-TO-CEMENT RATIO, IS IN CONFORMANCE WITH THE SPECIFICATIONS OR ANY PLANS, OTHER SPECIFICATIONS, REGULATIONS, ORDINANCES, STATUTE, OR OTHER STANDARDS APPLICABLE TO PURCHASER’S JOB OR TO SAID MATERIAL AS USED BY PURCHASER, OR (5) ANY MATERIAL’S SPECIFIC GRAVITY OR ABSORPTION. THE LIMITED CONCRETE WARRANTY SHALL NOT APPLY IN THE EVENT THAT WATER OR ANY OTHER SUBSTANCE OR MATERIAL IS ADDED TO THE CONCRETE MATERIAL EITHER BY OR AT THE REQUEST OF PURCHASER. PURCHASER ACKNOWLEDGES THAT MIX DESIGNS ARE BASED UPON COMPRESSIVE STRENGTH OR CEMENT FACTOR AS DULY NOTED. PURCHASER SHALL HAVE THE RESPONSIBILITY TO VERIFY THAT QUOTED MIXES ARE IN CONFORMANCE WITH PLANS AND SPECIFICATIONS. To determine any claimed deficiency, Purchaser shall test the Concrete Materials in accordance with ASTM standards at an independent testing laboratory. Supplier shall not be liable for any claims resulting from: (i) the deviation from applicable ACI standards or any other factors beyond Supplier's control; (ii) any alteration of the Concrete Materials by the addition of any materials by Purchaser (including, without limitation, water, additives or other chemicals); (iii) any concrete mix designs not provided by Supplier, unless such mix design is tested and certified by Supplier; (iv) any color variations due to admixtures that are requested by Purchaser; (v) use of the Concrete Materials for any purpose other than stated in the Contract.

7.EXCLUSIVE REMEDY.In the event of any breach of the Limited Warranty, provided Purchaser provides Supplier written notice of such breach within the Warranty Period, Supplier 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 Purchaser for the amount paid for the non-conforming Materials. In any such instance, Supplier shall have no further liability.THIS REMEDY IS PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY.

8. LIMITATION OF LIABILITY. PURCHASER AGREES THAT SUPPLIER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE OR LOSS DUE TO JOB DELAYS OR USE OR UNDER-UTILIZATION OF LABOR ARISING OUT OF THIS CONTRACT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IT IS FURTHER AGREED THAT SUPPLIER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE PURCHASER UNDER THE CONTRACT FOR THE MATERIALS FROM WHICH THE CLAIM AROSE, AND TO THE EXTENT PERMITTED BY LAW PURCHASER WAIVES ALL CLAIMS FOR LIABILITY IN EXCESS OF THE AMOUNT PAID FOR SUCH MATERIALS UNDER THIS CONTRACT.

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

10.Indemnity.Except to the extent caused by the gross negligence or willful misconduct of Supplier, Purchaser shall indemnify, defend and hold harmless Supplier, 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.Insurance. A Memorandum of Insurance containing current information regarding Supplier’s insurance program is available at http://www.marsh.com/moi?client=D156.

12.Force Majeure. Supplier 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, 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 Supplier’s reasonable control.

13.Governing Law; WAIVER OF JURY TRIAL; Venue. The Quote and Contract shall be governed by and construed in accordance with the laws of Alabama applicable to contracts executed, delivered and performed entirely within that state. PURCHASER AND SUPPLIER 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 QUOTE, CONTRACT, 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, Contract, or the Materials shall be a federal or state court located in Jefferson County, Alabama. Purchaser (i) agrees not to commence any action, suit, or proceeding relating thereto except in such courts, (ii) submits to the personal jurisdiction and venue of such courts 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.

14.Assignment. This Contract shall inure to the benefit of and shall be enforceable by the parties and their respective successors and permitted assigns; provided, however, Purchaser may not assign this Contract (including Purchaser’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 Supplier.

15.Miscellanous. Supplier is an independent contractor selling Materials and nothing contained in this Contract is intended to create any other relationship or any fiduciary relationship between Supplier and Purchaser. Supplier is only a supplier of materials and cannot be considered a sub-contractor within the meaning of any laws, regulations, agreements, union contracts, or other rules or agreements. All notices shall be in writing and delivered by overnight courier or by personal delivery at each party’s address provided in the Contract. 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 Contract shall be construed and enforced as if such provision had never been a part hereof. The failure of Supplier to enforce any provision of this Contract shall not be construed as a waiver or limitation of Supplier’s right to subsequently enforce strict compliance with every provision of this Contract. The Contract 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. The Contract contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into the Contract. The express terms of the Contract control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms of the Contract.