Customer agrees to be bound to these Standard Terms and Conditions (“Terms and Conditions”), which shall govern the relationship between Penhall Company (“Penhall”) and Customer for all purposes during the provision of services by Penhall to Customer. Customer’s request, approval, or consent, in any form, for Penhall to commence or proceed with any provision of services will irrevocably be deemed to be acceptance by Customer of all of the following terms and conditions, and any subsequent version thereof.
1. Original invoices will be mailed to the billing address stated on Customer’s credit application. Payment is due upon receipt. Any invoice (outstanding balance) not paid according to Penhall’s terms will be considered past due and subject to service charge(s) at a rate of 18% per annum (1½ % per month), or the maximum amount allowed by law, whichever is higher. Retention is not allowed. A $50.00 fee shall be assessed for each returned check. Should it become necessary to place Customer’s account with a collection agency or attorney for collection, Customer shall pay all collection costs, including, but not limited to, attorneys’ fees, expert witnesses’ fees, and court costs, in addition to all other sums due. Should any account become past due, Customer’s right to purchase on credit may be suspended at the sole discretion of Penhall. Penhall reserves the right to withhold, cancel, or modify credit privileges at its sole discretion and for any reason.
2. Upon request, Customer will provide updated credit information (on Penhall’s standard form). Any and all credit, financial and other information submitted to Penhall shall be true, correct, and complete on the date submitted. Penhall may at any time obtain credit information about Customer from any credit bureau, its employer, or any other person in connection with any of Customer’s dealings with Penhall and Penhall may disclose (automatically or upon request) credit information about Customer to credit bureaus and to persons with whom Customer has or proposes to have financial dealings or if Penhall believes disclosure is required by law. Customer hereby consents to the collection, use, and disclosure of any personal information disclosed to Penhall, if any, in order for Penhall to determine Customer’s credit worthiness, to meet Customer’s requests for services, to administer accounts, and to comply with legal requirements. Without limiting the foregoing, Customer hereby consents to the disclosure of personal information to third parties where required in order to obtain credit reports and credit references and to otherwise determine credit worthiness.
3. If at any time, Penhall owes credits, refunds, or other monies to Customer, Penhall has the right, at its sole discretion, to set off these amounts against any unpaid invoices.
4. Customer covenants that it has or will comply with all state, federal, and local taxes, orders, laws, statutes, ordinances, codes, rules, and regulations (collectively, “Applicable Law”) with respect to safety, accident prevention, property damage prevention, and safe work practices. Customer covenants that it has or will conduct inspections to determine if safe working conditions and equipment exist. Customer further covenants that, when appropriate, timely notice has been given of a planned excavation in accordance with Applicable Law.
5. Unless otherwise agreed to in writing prior to Penhall’s performance of services, and subject to general industry practice, the services provided by Penhall do not include: layout, flagging and barricades, traffic control, dust and water control, utilities (cut, cap and demo), protective covers, shoring, scaffolding, work with hazardous materials, ventilation, earthwork, repair of pavement scarring, pile extraction, salvage for others, delays or accelerations, testing inspections, permits, sales and use tax, bonds, and surface preparation.
6. Unless otherwise agreed to in writing prior to Penhall’s arrival on site, it is Customer’s responsibility to: locate, identify, mark, and de-energize any buried or hidden utility services; provide layout for areas to be drilled, sawcut, broken-out, excavated, or x-rayed; and provide safety rails, covers, hoarding, platforms, etc., all in accordance with Applicable Law.
7. Certain government agencies and owners specify that concrete slurry created during the cutting process be collected, removed from the job site, and properly disposed of. Slurry collection and disposal is not included in the price of services provided by Penhall and will be performed when required by Applicable Law or requested by Customer at standard hourly rates. In the event Customer desires to perform the slurry clean up with its own crews and equipment, Customer shall so indicate by notifying Penhall in writing.
8. Penhall shall have no duty or obligation to defend or indemnify Customer or any third party for any and all claims, allegations, actions, suits, arbitrations, administrative proceedings, regulatory proceedings, or other legal proceedings, causes of action, demands, costs, judgments, liens, stop payment notices, penalties, liabilities, damages, losses, anticipated losses of revenue, and expenses (including, but not limited to, any fees of accountants, attorneys, experts, or other professionals, or investigation expenses), or losses of any kind or nature whatsoever, whether actual, threatened, or alleged, arising out of, resulting from, or in any way (either directly or indirectly) related to the work or services provided by Penhall, except to extent caused by Penhall.
Terms Specific to Scanning Services
9. By entering into the attached Agreement, Customer hereby accepts, agrees to and acknowledges, the following terms and limitations on Services to be provided by Company to Customer:
a. Company uses electromagnetic, magnetic, and radiographic (x-ray) equipment for the purpose of Non-Destructive Testing, Damage Prevention, and Hazard Location to assist in the requests of Customer or Customer’s representative(s).
b. Company does not make any express or implied warranty as to the result of the GPR scanning or x-ray.
c. Analysis provided by the Company to the Customer is based on collected data that is imperfect and incomplete due to the limitations of the technology used for GPR scanning or xray imaging. As such, Company will provide advice, but no express or implied warranty, on the probable location of embedments that may be detected by the technology used by Company.
d. The final determination for the location of any destructive testing or penetration is at the sole discretion of the Customer, not the Company.
e. GPR (Ground Penetrating Radar) is a form of Non-Destructive Testing used by the Company. GPR can produce false positives and false negatives. Additionally, results can vary when utilizing GPR depending on several factors, including, but not limited to, inadequate working space (e.g. no GPR data can be collected within 6″ of any vertical obstruction for concrete inspection), depth of signal penetration, extreme temperatures, subsurface distribution/geometry, classification, conductivity and moisture content of subsurface material, spatial placement of objects within, or obstructions within the examination area, such as reinforcing steel, steel mesh, metallic filings, conduits, metal fencing, catch basins, and railway
lines among others. Based on the above limitations, Customer is advised, and hereby agrees, to corroborate GPR data with other sources (engineering plans, schematics, building history) before making a determination for the location of any destructive testing or penetrations through
f. X-Ray is also a form of Non-Destructive Testing used by the Company. Results can vary when utilizing x-ray depending on several factors, including, but not limited to, inadequate working space or obstructions within the examination area that would prevent adequate access to both sides of the material being inspected such as conduits or track, among others. Based on the above limitations, Customer is advised, and hereby agrees, to corroborate x-ray images and markings with other sources (engineering plans, schematics, building history) before making a determination for the location of any destructive testing or penetrations. When x-ray services are performed, the Company provides x-ray images (digital or by print) in addition to markings. The final interpretation of the image including the location of any embedments and the decision on
where to cut the target is the responsibility of the customer only.
g. All markings the Company makes as a result of GPR scanning or x-ray imaging represent the inferred center point of the object and do not in any way designate the size of the object. Company advises Customer against making any cut within 2 inches of the edge of any probable rebar, 6 inches of the edge of any probable post tension cable, and 3 inches of the edge of all other probable embedments (including but not limited to conduit, and other utility lines). We advise against cutting within 3 inches of the edge of the line on either side. However, 6 inches from the edge of the line is the preferred distance for cutting/coring near post tension cable when possible. For utility locating, follow state and federal laws associated with digging near utilities. Local protocols may vary. For utilities deeper than 12 inches, Penhall advises hand digging only (non mechanized) within 36 inches horizontally of field markings.
h. Company may employ a fixed frequency Utility Locating device which can be severely affected by competing magnetic fields from sources including, but not limited to, nearby-metal objects, utility/service congestion and electronic equipment. Results from this equipment may be
distorted and/or unattainable. Magnetic/Electromagnetic fields which propagate from linear conductors from either passive or active induction, including, but not limited to reinforcing steel bars and nearby services or railway lines, can lead to false markings and inconclusive results. Direct access to ‘detectable’ services is required with this equipment to generate (or induce) current to flow on specific services.
i. Customer must locate and mark all services/utilities that are publicly owned and within the work area through an appropriate contractor before Company commences its scanning services.
j. The approximate location of all objects detect by GPR or x-ray are for the convenience of the Customer only. Customer defend, indemnify and hold harmless the Company for any property damage or personal injury, including death, to any person arising out of, or relating to, the result of the information provided by Company’s GPR scanning or x-ray imaging.
k. At customer’s request Company may mark a target area with the location of probable embedments. After Company leaves the target area worksite, Customer is responsible for the maintenance and integrity of the markings for future use.
l. When provided, written communications as a submitted report and/or a site mark-up take precedence and supersede any verbal advice provided by the Company to the Customer.
10. Penhall expressly disclaims any and all warranties, express or implied, including, without limitation, any warranty of merchantability and/or fitness for a particular purpose.
11. Notice of any delay or damage claims must be delivered in writing to Penhall within 48 hours of occurrence of the event giving rise to such claim. Customer waives all rights to assert a claim unless such notice is given as required by this paragraph. Penhall’s liability for a claim that results from the provision of any services to Customer is limited to the amount charged by Penhall for the specific service involved in the claim. Under no circumstances will Penhall be liable for special, indirect, incidental, punitive, liquidated, or consequential damages, including, but not limited to, loss of profits, revenue, or use.
12. Penhall reserves the right to supply labor, materials, and services on credit on “job accounts” or “project accounts” only. In the event that Penhall exercises that right, Customer agrees to provide Penhall with all information necessary for Penhall to protect its statutory payment rights and remedies.
13. The invalidity of any provision or provisions herein contained shall not affect the other provisions, and these other provisions shall be construed in all respects as if the invalid provision or provisions were omitted.
14. Any agreement to provide services, which shall at all times include these Terms and Conditions, shall be governed by the laws of the State of California or the jurisdiction where the services are provided to Customer, at Penhall’s sole discretion.
15. Customer shall not assign any of its duties, obligations, or rights hereunder without the prior written consent of Penhall.
16. These Terms and Conditions govern the relationship between Penhall and Customer concerning the provision of services and may not be amended or replaced by any terms or conditions of any purchase orders or other correspondence from Customer to Penhall containing provisions which are different from those stated above.
17. 2% Environmental Surcharge. The Environmental Surcharge is intended to cover Penhall Company’s overall nationwide costs for our Penhall operating companies to operate in a safe and environmentally responsible manner. The environmental surcharge fee is not regulated nor collected by or for any government agency. Such environmental costs include, among other things, handling & disposal of slurry, OSHA compliance with Silica, the disposal of tires, batteries, oils and fluids and the monitoring and management of vehicle emissions. The environmental surcharge also helps us keep up with the changing costs of diesel, natural gas and other hydrocarbon based fuels and products that we use on an nationwide basis. Environmental/Fuel surcharges are common in the transportation industry and are charged by waste haulers, trucking companies, rental companies, crane companies and suppliers.
THESE TERMS AND CONDITIONS MAY BE AMENDED BY PENHALL AT ANY TIME OR FROM TIME TO TIME, IN WRITING AND/OR ON PENHALL’S WEBSITE. CUSTOMER SHALL BE BOUND TO THE TERMS AND CONDITIONS IN EFFECT AT THE TIME CUSTOMER AGREES TO BE BOUND.