AGREED TERMS FOR DELIVERY OF READY-MIXED MORTAR
1. ABOUT US
1.1 We are Turnbull and Company Limited a company registered in England and Wales. Our company registration number is 00536685 and our registered office is at 95 Southgate, Sleaford, Lincolnshire, NG34 7RQ. Our registered VAT number is GB450026004. “Turnbull QuickMix” is a trading name of Turnbull and Company Limited.
1.2 To contact us telephone our customer service team at 01529 308839 or email [email protected]. How to give us formal notice of any matter under the Contract is set out in clause 15.
2. OUR CONTRACT WITH YOU
2.1 These terms and conditions (“Terms”) apply to the order by you and supply by us to you of one or more tubs of ready-mixed mortar (“Mortar”) (the contract governed by these Terms for such supply being the “Contract”). No other terms are implied by trade, custom, practice or course of dealing.
2.2 By having a credit account with us, and placing orders for Mortar against such credit account, you acknowledge that these Terms will apply to each and every Contract that we have with you for the supply of Mortar. Where you order Mortar along with other goods, these Terms will only apply to the supply of Mortar.
2.3 The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.4 We intend to sell Mortar under these Terms exclusively on a business to business basis. However, it is possible that a Consumer could place an order unbeknown to us. Accordingly, we have added clause 16 to these Terms to deal exclusively with Consumers; all other provisions of these Terms apply to every customer. You are a Consumer if your permanent place of residence is the UK and, in placing your order, you are acting wholly or mainly outside your trade, business, craft or profession in accordance with section 2(3) of the Consumer Rights Act 2015.
3. PLACING AN ORDER AND ITS ACCEPTANCE
3.1 These Terms apply to all Contracts you enter into with us, whether entered into online, over the telephone or in branch. Each order is an offer by you to buy the number of tubs of Mortar specified in the order (“Goods”) subject to these Terms. We may not allow all of the forms of order specified above in respect of Mortar supply at certain times, and we reserve the right to vary those methods at any time without notice.
3.2 You are responsible for ensuring that your order is complete and accurate, and that the Goods ordered are suitable for your intended purpose. Without prejudice to the generality of the foregoing, it is entirely your responsibility to ensure that the order gives a clear, full and not misleading description of the location of the delivery site and any access, parking or unloading restrictions that could affect our delivery vehicle.
3.3 After you place an order on our website, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order is accepted. Your order is only accepted as further detailed below. Our acceptance of your order will take place when we email you to accept it (known as a “Dispatch Confirmation”), at which point the Contract will be formed.
3.4 Where you place an order in one of our branches or by telephone, the trader with whom you place the order will accept the order on our behalf. You will be given an opportunity prior to this acceptance to check the product(s) included in your order. A Contract will come into existence between you and us when our trader accepts your order.
3.5 If we are unable to supply you with the Goods for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Goods, we will refund you the full amount including any delivery costs charged as soon as possible.
4. OUR GOODS
4.1 The images of the Goods on our site, in our brochures or in any other materials (together, “Our Materials”) are for illustrative purposes only. This includes (without limitation) any sketches, plans, diagrams or similar documents we may produce (at our discretion) during discussions with you around the Specification and/or your order. Although we have made every effort to display the colours accurately, we cannot guarantee that your device’s display of the colours or the display in any other of Our Materials, accurately reflect the colour of the Goods. The colour of your Goods may vary slightly from what is shown in Our Materials.
4.2 We will only supply you with Mortar to one of the mortar specifications offered by our third-party supplier (such specification being the Specification). You will have chosen the Specification at the point of placing your order. We do not provide advice on the suitability, desirability or appropriateness of the Specification for any or all purposes – it is entirely your responsibility to ensure that you are fully satisfied with the Specification before placing an order for Mortar.
4.3 The packaging of your Goods may vary from that shown on images on or in Our Materials.
4.4 We reserve the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirement.
4.5 You acknowledge and accept that the Goods may be Dangerous (meaning that they pose an actual or potential risk to people, property or the environment). You shall take all necessary steps in respect of all Goods, Dangerous or otherwise, to ensure no such harm or damage is caused. We shall have no liability to you, and you shall indemnify us in respect of, any failure by you to handle, store or use Goods in accordance with generally applicable or recognised health and safety obligations and procedures.
5. COLLECTION
We do not allow “Click and Collect” orders for Mortar; we supply Mortar exclusively on a delivered basis.
6. DELIVERY
6.1 If you are a Consumer, there are additional delivery provisions applicable to you in clause 16. They apply in addition to rather than in place of this clause 6, save that where the two are contradictory the provisions of clause 16 will prevail.
6.2 The costs of delivery will be as displayed to you on our website or advised to you at the time of placing your order (whether by telephone or in our branch).
6.3 You must ensure that you provide us with sufficient advance notification of the required time and date for delivery of the Goods, which in any event shall be not less than 48 hours of notice. Where delivery is to be on multiple dates, you must give us such notice of the amount of Goods to be delivered on each date. The delivery costs described at 6.2 above may at our discretion be increased by a reasonable amount where insufficient notice is given, and/or such notice is incorrect and additional trips or inconvenience to us are experienced.
6.4 If we are unable to deliver, or are delayed in delivering the Goods, due to:
6.4.1 your failure to give complete and accurate delivery instructions;
6.4.2 your inability to store the Goods on delivery;
6.4.3 inadequate or unsafe discharge conditions at the delivery location;
6.4.4 your failure to obtain any necessary permits, licences or authorisations; or
6.4.5 your failure to accept or permit delivery of the Goods; then the Goods shall be deemed to have been delivered when we attempted to make delivery, and any re-delivery shall be subject to your agreement to (and if we require it, prepayment of) an additional delivery charge. Where, as a result of any of the above items, the Mortar is no longer suitable for use and fresh has to be supplied to you instead, you acknowledge that you will be required to pay for both the wasted and the fresh Mortar, along with our costs incurred (including third party costs of skips and so forth) in disposing of any Mortar which cannot be used as a result of the failed delivery (along with aa reasonable management charge associated with such disposal).
6.5 We are entitled to deliver the Goods by instalments, and each instalment shall be invoiced and paid for in accordance with these Terms. Each instalment shall for the purpose of delivery be treated as a separate supply, and failure to deliver one instalment (or any claim by you in respect of one instalment) shall not entitle you to terminate, repudiate or cancel the Contract.
6.6 The date of delivery shall not be of the essence. If we fail to deliver the Goods within a reasonable time of the Delivery Date, our liability is limited to the cost of obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods. However, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control (as defined in clause 14 hereof), or because you failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
6.7 Where you ask us to leave the Goods in a particular location in your absence, then you are responsible for any loss of or damage to the Goods arising after delivery, and we reserve the right to take photographs of the delivered Goods and the surrounding area as evidence of such delivery.
6.8 Our deliveries are typically made by heavy goods vehicles of up to 26 tonnes. It is important that you ensure that the delivery location specified in your order is appropriate for such a vehicle to access, as if our delivery contractor is unable to deliver due to the inability to get such a vehicle to your specified delivery location, this will be your responsibility. Where expressly noted in your order that you would prefer a smaller vehicle then we will use reasonable endeavours to comply with this request, but we may be unable to do so (for example due to vehicle availability or the nature of your Goods); it will therefore remain your responsibility to ensure that the larger vehicle can access the delivery location.
6.9 As standard, our delivery contractor will unload the Goods at kerbside. If you ask our delivery contractor to deliver to a different part of the delivery location (for example to the back of a house, a driveway or otherwise) then it will be entirely at the delivery contractor’s discretion whether or not to comply with your request. In any event, you will be responsible for, and shall have no claim against us or the delivery contractor in relation to, any property damaged as a result of complying or attempting to comply with your request. Where you are not the property owner, you will indemnify us from and against any liability whatsoever (including liability arising under negligence) to such property owner arising in these circumstances.
6.10 Delivery is complete once the Goods have been unloaded at the address for delivery set out in the Dispatch Confirmation and the Goods will be at your risk from that time.
6.11 Given the nature of Mortar and its usable life-span, we will only undertake deliveries within a reasonable distance from our locations. We will advise you at the point of order if your proposed delivery location cannot be served; however, we reserve the right to contact you after placing the order but before delivery to advise that the location is too distant, and therefore to cancel your order.
7. TITLE
7.1 Title to the Goods shall not pass to you until the earlier of:
7.1.1 us receiving payment in full (in cash or cleared funds) for the Goods and any other goods that we have supplied to you and in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
7.1.2 you resell the Goods, in which case title to the Goods shall be deemed to have passed to you at the time specified in clause 7.3.
7.2 Until title to the Goods has passed to you, you shall:
7.2.1 store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
7.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.2.4 notify us immediately if you become subject to any of the events listed in clause 13.1.3; and
7.2.5 give us such information relating to the Goods as we may require from time to time.
7.3 Subject to clause 7.2, you may resell or use the Goods in the ordinary course of your business (but not otherwise) before title to the Goods has transferred to you. However, if you resell the Goods before that time:
7.3.1 you do so as principal and not as our agent; and
7.3.2 title to the Goods shall pass from us to you immediately before the time at which resale by you occurs.
7.4 If before title to the Goods passes to you, you become subject to any of the events listed in clause 13.1.3, then, without limiting any other right or remedy we may have:
7.4.1 your right to resell the Goods or use them in the ordinary course of your business ceases immediately; and
7.4.2 we may at any time:
7.4.2.1 require you to deliver up all Goods in your possession that have not been resold, or irrevocably incorporated into another product; and
7.4.2.2 if you fail to do so promptly, enter any premises of yours or of any third party where the Goods are stored in order to recover them entirely at your risk.
8. PRICE OF GOODS AND DELIVERY CHARGES
8.1 The prices of the Goods will be as quoted on Our Materials (or, in the case of telephone and in-branch orders, advised to you by our trader) at the time you submit your order. We take all reasonable care to ensure that the prices of Goods are correct at the time when the relevant information was entered onto our order system. However, please see clause 8.5 for what happens if we discover an error in the price of Goods you ordered.
8.2 Prices for our Goods may change from time to time, but changes will not usually affect any order you have already placed. However, for Contracts in respect of which deliveries shall or may take place more than one month after the date of your Order, we may by one month’s notice in writing to you increase the price of Goods (including any rate on which the price is based). The increased price/rate will be deemed to apply to all Goods delivered on or after the expiry of such notice.
8.3 The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
8.4 The price of the Goods does not include delivery charges. Our delivery charges are as advised to you during the order process, before you confirm your order, if applicable. We reserve the right to levy additional charges (without prejudice to any other right or remedy we may have in these terms or at law) if:
8.4.1 Our Dispatch Confirmation references any circumstances in which additional charges may apply, and those circumstances arise;
8.4.2 You fail to comply with any of your contractual obligations, including around delivery;
8.4.3 Delivery is to take place outside our normal working hours;
8.4.4 You request a change to the delivery location, date(s), amounts or otherwise request a variation to the delivery arrangements (including where your original instructions to us were incorrect, unclear or misleading with regards to delivery location or arrangements); or
8.4.5 You vary or cancel a delivery without giving at least 48 hours notice to us.
8.5 It is always possible that, despite our reasonable efforts, some of the Goods on our site may be incorrectly priced. If we identify a pricing error after Contract formation but prior to delivery or collection, we may cancel supply of the Goods and refund you any sums you have paid.
9. PAYMENT
9.1 We may invoice you for the Goods at any time on or after the date when we notify you that they are ready for delivery.
9.2 Subject to any special arrangements agreed between us in writing for a particular Contract (including as set out in clause 9.3), payment of all sums included in an invoice will fall due on the 28th day of the month following the date of invoice. Time of payment is of the essence of the Contract.
9.3 We reserve the right in relation to any Contract to require payment by you of a deposit prior to our acceptance of an order. Such a deposit is typically between 25% and 50% of the value of the Goods in question, but the amount and the requirement for a deposit will be entirely at our discretion. The balance of the price of the Goods, less that deposit, will become due in accordance with clauses 9.1 and 9.2 above.
9.4 In the alternative, we reserve the right to determine after formation of the Contract that your credit position has changed, and that we require payment for all Goods delivered (and/or pre-payment for further Goods) before we will make any further deliveries of Goods to you.
9.5 You acknowledge that we may send invoices out by email.
10. INSPECTION, SHORTAGES AND TESTING
10.1 We will use reasonable endeavours to supply the quantity of Goods specified in your order, and to notify you of any surplus or shortfall in the quantity of Goods delivered. Each tub of Mortar supplied will contain not less than 0.25 metres cubed of Mortar. Subject to the remainder of this clause 10, if a surplus or shortfall occurs you and we shall discuss the possible options to resolve the surplus or shortfall and you shall not be entitled to object to or reject the Goods (in whole or part) by reason of any such surplus or shortfall.
10.2 If you believe that you have a claim for short delivery, you must telephone us as soon as reasonably practicable (and in any event within one hour of delivery) and shall then advise us in writing within 48 hours of delivery of any such claim.
10.3 If you do not notify us in accordance with clause 10.2, the Goods will be deemed to have been delivered in the quantities shown on the consignment note, and you shall have no entitlement to make a claim in respect of an alleged shortfall in the Goods.
10.4 Subject to clauses 10.2 and 10.3 above, our liability to you for any shortfall is limited to:
10.4.1 making good the shortfall within a reasonable time; or
10.4.2 issuing a credit note for the shortfall pro rata to the price set out in the Order.
10.5 We conduct weekly strength testing of a sample batch of Mortar, in accordance with the currently applicable British Standard. For the avoidance of doubt, this is a generic sample Mortar rather than a recipe/specification agreed with any particular customer.
11. OUR WARRANTY FOR THE GOODS
11.1 If you are a Consumer, there are additional warranty provisions applicable to you in clause 16. They apply in addition to rather than in place of this clause 11, save that where the two are contradictory the provisions of clause 16 will prevail.
11.2 The Goods are intended for use only in the UK. We do not warrant that the Goods comply with the laws, regulations or standards outside the UK.
11.3 You irrevocably acknowledge and agree that you have not relied on any statement, promise or representation in respect of the Goods (including in relation to the use, strength, fitness for any purpose, surface area/volume yield, storage or handling of the Goods) made or given by us or on our behalf which is not expressly set out in the Contract.
11.4 We warrant that, on delivery, the Goods shall conform in all material respects with the Specification (“Warranty”).
11.5 Subject to clause 11.6, if:
11.5.1 you give us notice in writing that some or all of the Goods do not comply with the Warranty within both:
11.5.1.1 48 hours of your discovery of the Warranty noncompliance (or, if earlier, when you ought reasonably to have discovered the Warranty non-compliance);
and
11.5.1.2 45 days from the date of delivery of the applicable Goods to you;
11.5.2 we are given a reasonable opportunity of examining the Goods;
and
11.5.3 if we ask you to do so, you allow us to collect the Goods from you at our cost (subject to clause 11.6 below); we will, at our option, replace the defective part of the Goods, or refund the price of the defective part of the Goods in full.
11.6 We will not be liable for breach of the Warranty (Defect) if or to the extent that:
11.6.1 you make any use of the Goods after giving notice to us under clause 11.5;
11.6.2 you alter, add to, adulterate or repair the Goods without our written consent, save as explicitly permitted by us;
11.6.3 the Defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal storage or working conditions or a failure to take reasonable care of the Goods;
11.6.4 the Defect relates only to the colour, consistency, texture, shade, visual appearance or surface finish of the Goods (including without limitation efflorescence);
11.6.5 the variations from the Specification are within permitted tolerances set out in the Specification or otherwise agreed with you;
11.6.6 the Defect arises from the surface or ground conditions onto which the Goods are to be used are not appropriate or suitable to receive them;
11.6.7 any fuel or pollutant impacting the Goods, whether via spillage (not caused by us) or otherwise;
11.6.8 increasing the intended load bearings to be applied to the Goods;
11.6.9 failing to ensure the correct supporting block and/or beam or other materials used in conjunction with the Goods;
11.6.10 failing to prevent the Goods being exposed to extremes of heat or cold, or moisture/water ingress outside our recommendations;
11.6.11 the Defect arises as a result of your failure to follow our recommendations (whether oral or written) in respect of handling, transportation, storage, use, preparing, finishing, discharge, loading or health and safety matters relating to the Goods, or good trade/industry practice in respect of the same.
Without prejudice to the generality of the foregoing, we instruct you that (i) the Mortar must be used on the day of delivery; and (ii) the Mortar must be kept covered and protected from frost, heat and contamination; or
11.6.12 the Defect was drawn to your attention prior to or upon delivery, and you chose to nevertheless accept delivery of the Goods; and if after investigation any of the above are found to apply, we shall be entitled to charge you for the costs which we incurred under clause 11.5.3, if applicable.
11.7 We will only be liable to you for the Goods’ failure to comply with the Warranty to the extent set out in this clause 11, and the remedy set out in clause 11.5 shall (to the maximum extent permissible by law and including without limitation where liability would otherwise arise under negligence) be your sole and exclusive remedy for any failure to comply with the Warranty and any defect or fault in the Goods.
11.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
11.9 These Terms also apply to any replacement Goods supplied by us to you.
12. OUR & YOUR LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 If you are a Consumer, there are additional liability provisions applicable to you in clause 16. They apply in addition to rather than in place of this clause 12, save that where the two are contradictory the provisions of clause 16 will prevail.
12.2 Nothing in these Terms limits or excludes our liability for:
12.2.1 death or personal injury caused by our negligence;
12.2.2 fraud or fraudulent misrepresentation;
12.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
12.2.4 any other liability that cannot be limited or excluded by law.
12.3 Subject to clause 12.2, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any liability (direct or indirect) arising under or in connection with the Contract for:
12.3.1 any loss of profits, sales, business, or revenue;
12.3.2 loss or corruption of data, information or software;
12.3.3 loss of business opportunity;
12.3.4 loss of anticipated savings;
12.3.5 loss of goodwill or damage to reputation;
12.3.6 loss or waste of management or staff time or resource; or
12.3.7 any indirect or consequential loss.
12.4 Subject to clause 12.2, our total liability to you arising under or in connection with the Contract and/or Goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the lower of the price of the Goods and £50,000.
12.5 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which would otherwise be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Goods and the Specification are suitable for your purposes or any purposes.
12.6 Where you are purchasing the Goods for sale to or for the use of another person (such person(s) being an “End User”), then you hereby indemnify us from and against any liability whatsoever to such End User(s) which is in excess of, or in duplication of, the liability which we would have to you under the Contract.
12.7 You hereby indemnify us against all loss, damages, costs, liability, and direct or indirect economic loss or expenses awarded against or incurred by us in connection with any claim arising from the manufacture, processing or mixing under the Specification (including for infringement of any patents, copyright, design, trademark or any other industrial or intellectual property rights of any third party), or the defence or settlement of such claim.
12.8 You shall be liable for and shall indemnify us against all costs, liabilities or losses which we incur, whether by act or omission, directly or indirectly, and under any legal theory (including without limitation contract, tort (including negligence), breach of statutory duty or otherwise) as a result of:
12.8.1 any loss of or damage to physical property of us or any third party arising as a result of your actions or omissions, or those of your sub-contractors or your or their respective employees and agents (in each case arising out or in consequence of carrying out this Contract) at any location;
12.8.2 death or personal injury arising out of or in consequence of carrying out this Contract to the extent caused by negligence or breach or statutory duty of you, your sub-contractors or your or their respective employees and agents at any location; or
12.8.3 your failure to comply fully with your obligations under this Contract, whether by action or omission.
13. TERMINATION
13.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Contract with immediate effect by giving written notice to you if:
13.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 7 days of you being notified in writing to do so;
13.1.2 you fail to pay any amount due under the Contract on the due date for payment;
13.1.3 you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.1.4 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
13.1.5 the Specification requires amendment to comply with statutory or regulatory requirements, and no new specification has been agreed; or
13.1.6 your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
13.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect. Without prejudice to the generality of the foregoing, any and all sums not yet due for payment by you in respect of Goods supplied or readied for delivery shall become immediately due and payable by you to us (and any Goods ready for delivery shall not be delivered unless and until all sums due to us have been paid).
14. EVENTS OUTSIDE OUR CONTROL
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control). The following constitutes a non-exhaustive list of some circumstances which would constitute an Event Outside Our Control:
14.1.1 strikes, lock-outs or other industrial action;
14.1.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war or conflict (whether declared or not), or threat of or preparation for war or conflict;
14.1.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, natural disaster or extreme weather condition;
14.1.4 impossibility of use of public or private transportation reasonably required for performance of the Contract;
14.1.5 impossibility of the use of public or private telecommunications networks;
14.1.6 unavailability of raw materials (whether at reasonable cost or at all);
14.1.7 unavailability of transportation vehicles or drivers (whether at reasonable cost or at all)
14.1.8 breakdown or other issues with required equipment, whether or ourselves or our suppliers; and
14.1.9 action or inaction of local, regional or national governments or other public bodies.
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
14.2.1 we will contact you as soon as reasonably possible to notify you;
and
14.2.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
15. COMMUNICATIONS BETWEEN US
15.1 When we refer to “in writing” in these Terms, this includes email.
15.2 Any notice or other communication given under or in connection with the Contract must be in writing and be sent by pre-paid first class post or other next working day delivery service, or email.
15.3 A notice or other communication is deemed to have been received:
15.3.1 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
15.3.2 if sent by email, at 9.00 am the next Business Day after transmission.
15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
15.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16. ADDITIONAL TERMS APPLICABLE ONLY TO CONSUMERS
16.1 In relation to Delivery:
16.1.1 we shall use all reasonable efforts to comply with any time or date given or agreed by us for delivery of the Goods, but any such dates and times are intended for guidance purposes only and shall not be of essence, and shall not be capable of being made of the essence by notice from you. Whilst time is not of the essence, delivery of the Goods shall be made to you without undue delay and in any event within 30 calendar days from the date that the Contract was entered into, failing which you shall have the right to terminate the Contract (save where you have requested a later delivery date);
16.1.2 In the event that we do not make delivery of the Goods to you in accordance with clause 16.1.1 above and you exercise your right to terminate the Contract, we shall return to you the total amount that you have paid under the Contract, less a pro-rata deduction for any part of the Goods which you have received; and
16.1.3 The Goods are supplied to you exclusively for your own private or domestic use. Any use by you of the Goods for commercial or resale purposes will mean that you are not a Consumer, and so this clause 16 shall cease to be applicable to you.
16.2 In respect of our liability:
16.2.1 Nothing in these Terms shall restrict or exclude our liability in respect of (i) section 12 of the Sale of Goods Act 1979; and (ii) sections 9-13, 15 and 17 of the Consumer Rights Act 2015.
16.3 In respect of your cancellation rights:
16.3.1 As a consumer, you may have additional cancellation rights when compared to a trade customer, under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the Regulations). These will only apply to orders placed online or via the telephone – this clause 16.3 does not apply to orders placed on one of our branches;
16.3.2 In principle, as a consumer you have the right to return goods you purchase from a trader within 14 days of delivery (or final delivery for goods delivered in instalments), and receive a full refund of the price you paid (including delivery charges);
16.3.3 As Mortar falls within the definition of “goods which are liable to deteriorate or expire rapidly”, as set out in s28(c) of the Regulations, your cancellation rights do not apply to orders under this Contract. Accordingly, we will not under any circumstances accept returns of Goods after delivery under the Regulations. This does not affect your statutory rights in respect of faulty Goods.
16.4 Under the Consumer Rights Act 2015, we are obliged to supply you with Goods that are as described, fit for their ordinary purpose and of satisfactory quality. In principle, you are entitled to the following if our Goods do not meet this criteria:
16.4.1 Up to thirty days from delivery – immediate refund;
16.4.2 Up to six months from delivery – if the Goods cannot be repaired or replaced, a full refund in most cases; and
16.4.3 Up to six years from delivery – some money back, depending on the circumstances.
This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
17. GENERAL
17.1 Assignment & transfer.
17.1.1 We may assign or transfer our rights and obligations under the Contract to another entity.
17.1.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
17.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
17.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
17.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
17.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
17.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
17.7 Personal data. We will only use your personal data (and that of your employees or other personnel) as set out in our Privacy Policy at https://www.turnbull.co.uk/cms/customer-service/privacy-policy/.
17.8 Credit Account Limit. We may, at our discretion, supply you with Goods to a value in excess of the credit limit applicable to your account with us from time-to-time. We will be entitled to avail ourselves of any and all remedies and methods available to recover payment for such sums notwithstanding the exceeding of such credit limit.
17.9 Credit Searches. You acknowledge that, in accordance with our Privacy Policy, we may conduct credit searches and similar measures in order to verify that the proposed or current credit limit on your account (or proposed account in the case of applications) is appropriate, and/or to make ongoing decisions about whether or not we require full or part prepayment for any order (whether or not already accepted by us). Such searches and similar measures may be in relation to you, your directors and/or your partners. We will retain such information for an appropriate period in line with our Privacy Policy.
17.10 Anti-bribery, Modern Slavery and Competition:
17.10.1 You shall comply and use reasonable endeavours to ensure that all of your subcontractors, suppliers and all persons associated with you (as defined by section 8 of the Bribery Act 2010) comply with all applicable anti-bribery and anti-corruption legislation in the UK, including without limitation the Bribery Act 2010. You shall maintain and enforce your own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with all applicable anti-bribery and anticorruption legislation in the UK and anywhere else you operate.
17.10.2 You shall comply with the provisions of the Modern Slavery Act
2015 (MSA) and shall take all reasonable steps to ensure your supply chain is slavery free. You shall use all reasonable endeavours to assist us in our compliance with the MSA, including by complying with (and taking all reasonable steps to facilitate our compliance with) our Modern Anti-Slavery Policy, a copy of which is available at https://www.turnbull.co.uk/cms/customerservice/ modern-slavery-act-statement/.
17.10.3 You shall not engage in any agreement, arrangement, concerted practice, information exchange or behaviour in breach of UK or other competition law in force from time to time.
17.11 Tubs. All Mortar is supplied in and by the tub. By default, you purchase the Tubs (and accessories such as linings, lids etc) in which the Mortar is provided as well as the Mortar itself (and this will be shown as a separate entry on your order/invoice). Where by agreement with us you return the Tubs/accessories to us in a clean and reusable condition, we may offer a partial credit against future orders.