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 terms are Net 30 days from the date of the invoice. 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 Specificto Scanning Services
9. Customer acknowledges that:
a. Penhall may use electromagnetic and magnetic equipment for the purpose of non-destructive testing, damage prevention, and surveying to assist in the requests of Customer or its representative. There are significant limitations in the equipment and the associated technology which may render results as inconclusive. Scanning services are not the equivalent of x-ray and no promise is made or implied that these services represent anything other than a guide as to the location of buried or embedded objects within or below the survey material. Customer, its representatives, the builder, and/or the owner are aware that the information produced by this service is only to be used as a guide and Customer accepts these limitations.
b. Due to the physical aspects of the ground penetrating radar (“GPR”) equipment and the various limitations attributed to the technology used, the results can vary 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 survey area, such as reinforcing steel, steel mesh, metallic filings, conduits, metal fencing, catch basins, and railway lines etc.
c. All markings represent the inferred center point of the object and do not in any way designate the size of the object.
d. Penhall may also 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 or service congestion, and electronic equipment. Results from this equipment may be distorted or unattainable. Magnetic or 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.
e. All services and utilities which are publicly owned and located within the work area must be marked by Customer, owner or an approved contractor.
f. It is understood and agreed by Customer that the implied positions of all marked objects are for the convenience of Customer only and does not relieve Customer or any other person or entity from liability for property damage or personal injury, including death, to any person as a result of the information provided by this survey.
10. Any scanning service call initiated by Customer shall expire and terminate upon the first occurrence of any of the following events: (a) 30 days from the date of service initiation; (b) the removal, disappearance, or fading of field markings, or the discovery that field markings do not coincide with the Customer-supplied report; or (c) site conditions, scope of work, or limits of work have changed from the date Penhall’s initial service was provided. In the case of any such termination, a new and independent agreement will be required prior to Penhall performing any further services.
11. Penhall expressly disclaims any and all warranties, express or implied, including, without limitation, any warranty of merchantability and/or fitness for a particular purpose.
12. 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.
13. 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.
14. 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.
15. 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.
16. Customer shall not assign any of its duties, obligations, or rights hereunder without the prior written consent of Penhall.
17. 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.
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.