1. These terms and conditions
1.1 These terms will apply to:
1.1.1 all upholstering, recovery or other services (“ the Services”);
1.1.2 any and all furniture, headboards, wall upholstery or other items or goods, whether standard, bespoke or other, including items to which any element of the Services are applied (“the Goods”)
provided by Andre Upholstery Limited (Company No. 08892130) whose registered office and place of business is at Unit 26a, Lombard Business Park, 8 Lombard Road, London, United Kingdom, SW19 3TZ) (“we”, “us” or “ Andre Upholstery”) to the client (“you” or “the Client”). These terms and conditions along with any quotation, estimate, scope of work or other document setting out the Goods and/or Services to be provided (“Quotation”) will together form the agreement between you and us (“ the Agreement”).
1.2 These terms and conditions may not be released discharged supplemented interpreted varied or modified in any manner except as agreed and put in writing signed by both parties.
1.3 To the extent any terms in the Quotation are contrary to any express provisions in these terms and conditions, the relevant provisions in the Quotation will prevail over these terms.
1.4 We may provide sketches, previous examples of our work, plans, diagrams, or similar documents in advance of the Goods and/or Services. Any such material is intended for illustrative purposes only and is not intended to;
1.4.1 provide an exact specification of the Goods and/or Services;
1.4.2 guarantee specific results; or
1.4.3 materially affect what has been agreed.
1.5 In these terms where we refer to you having a “right of set-off” that refers to your right to deduct from a payment due from you to us an amount which is found to be validly due from us to you.
2.1 We warrant that the Goods and/or Services) shall:
2.2 The warranties at clause 2.1 shall not apply to Goods that were ex-display, and where this is the case, you will be;
2.2.1 notified before or at the time of purchase; and
3.1 We will provide the Services to you as set out in the Quotation or as otherwise agreed in writing and subject to the terms of this Agreement.
3.2 Where the Services are to be carried out at an address other than Unit 26a, Lombard Business Park, 8 Lombard Road, London, United Kingdom, SW19 3TZ or any other permanent workshop premises occupied by us (“ Andre Upholstery Premises”), the address where we agree to provide the Services will be set out in the Quotation or otherwise provided to us prior to the commencement of the Services (“ the Client Property”).
3.3 We shall have the right to make any changes to the Goods and/or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods and/or Services, and we shall seek your agreement you in any such event.
3.4 You may request a change in the Services at any time but we will only provide such different services if we believe we are qualified to do so. If such changes to the Services constitute a material change to those in the Quotation we reserve the right to revise our fees as previously agreed with you. We will not perform any alternative Services until such time as you have agreed to pay any such additional fees.
3.5 You may request services in addition to the Services set out in the Quotation. Such additional services shall be charged at our standard rates at the time (details of such rates can be provided on request). We will not perform any additional Services until such time as you have agreed to pay any such additional fees.
3.6 We may provide some of the Services through third parties and subcontractors. Whether or not we sub-contract out any of the Services to third parties is at our absolute discretion and you shall not have the right to object to any third party providing the Services. Where we do engage a third party and/or subcontractor we will notify you of who had provided the Service no later than the Delivery Date.
3.7 You agree to supply us with all necessary information which we will reasonably require for us to be able to perform the Services. If you do not provide us with such information we will not be liable to you (unless we have been negligent or are in breach of these terms) for any failure to carry out the Services as a result including any failure to complete the Services as otherwise agreed between us. All samples provided by us to you remain the property of Andre Upholstery. If you pass the samples on to any third party for the provision of services similar to the Goods and/or Services, we may charge you an additional fee.
4.1 We will use reasonable endeavours to ensure that any Goods and any products and materials which are used in the provision of the Services (“ Materials”) match those chosen by you and, where applicable, are consistent. There may be slight variations to the same Materials as a result of differences between photographs, catalogues and other materials, and the Materials themselves. If materially different Materials are required due to non-availability, we will not supply them without consulting with you in advance of their use.
4.2 Where the provision of the Services is to take place at the Client Property;
4.2.1 we may, at our discretion, deliver, or arrange for the delivery, of Materials and/or equipment to the Client Property. These will remain our property at all times. Upon delivery you will take appropriate measures to ensure safekeeping of the Materials and/or equipment; and
4.2.2 where any damage occurs to the work, tools, equipment or materials at the Client Property in our absence, we may charge an additional fee in respect of this.
4.3 Where the provision of the Services take place at the Client Property and will take more than one working day, we will, where reasonably possible, leave the Client Property in a clean and tidy state and minimise any disruption to your use and enjoyment of the Client Property while work is being carried out. We will, wherever possible, store all tools and materials only in areas where work is being carried out.
5.1 Where Goods are not provided at the Client Property, delivery can be arranged from the Andre Upholstery Premises to the Client Property or another address, subject to payment of a delivery fee, if applicable.
5.2 There is no additional fee for delivery within a five mile radius of the Andre Upholstery Premises (subject to a minimum order value as may be specified from time to time). For deliveries outside of this area, an additional fee will be payable (“Delivery Charge”). The Delivery Charge will be as set out in the Quotation, or as otherwise stated by us.
5.3 For the purposes of this Agreement, “the Delivery Date ” shall mean;
5.3.1 where Goods are delivered under clause 5.1, the day on which they are delivered to the address specified by you;
5.3.2 where Goods and/or Services are provided at the Client Property, the final day of the Services Period (defined below), or, if later, the date on which all the Goods and/or Services have been provided by us.
6.1 In the event that we have not carried out the Services with reasonable care and skill or that any Goods are defective or not fit for purpose then we shall carry out such further work as is necessary to remedy such unsatisfactory services or repair or replace any such defective Goods. We are not liable for wear and tear nor are we liable for damage to the works by other contractors or traders (unless engaged by us), accidents or negligence on your part or on the part for your contractors or traders (unless engaged by us).
6.2 We reserve the right to assess any work or Goods complained of before carrying out any additional work; and
6.2.1 if in our reasonable opinion the Services have been performed satisfactorily then we may not carry out any such additional work or may charge you additional fees if we do so;
6.2.2 if any complaint or claim regarding the provision of Goods is made;
(a) in a period of six months starting with the Delivery Date then we will have the right to prove that the Goods were not defective at the Delivery Date; or
(b) following a period of six months starting with the Delivery Date then you will have the obligation to prove that the Goods were defective at the Delivery Date;
and where the relevant burden of proof is not satisfied then we may not carry out any such additional work or may charge you additional fees if we do so.
7. Time commitment
7.1 We will endeavour to complete the Services in the time period set out in the Quotation or otherwise agreed between us (“ Services Period”). We cannot guarantee to complete the Services within the Services Period; although we will complete the Services within a reasonable time.
7.2 The Services Period is based on your cooperation with us and the cooperation of any other contractors or professionals we may need to work with.
7.3 We reserve the right to suspend provision of the Services if they cannot be carried out due to any of the following reasons:
7.3.1 Where the provision of the Services is to be at the Client Property:
(a) If you fail to provide us with access to the Client Property when required by us or anybody engaged by us to provide the Services; or
(b) If you fail to provide us with any information about the Client Property that we may require in order for us to be able to carry out the Services properly;
7.3.2 You or any third party whose cooperation we require fail to cooperate with us;
7.3.3 You fail to make payment to us of any sum which is due to us (unless that failure of payment is in exercise of your right to set off) ;
7.3.4 We are unable to carry out the Services to the required standard for any other reason beyond our reasonable control;
For the purposes of this clause, ‘us’ shall include any third parties sub-contracted by Andre Upholstery.
7.4 If we incur additional costs as a result of us being unable to carry out the Services due to any of the reasons described in the previous clause (including, without limitation, any storage costs for products and materials that we have been unable to use) then we reserve the right to pass any such costs on to you and these shall be payable in addition to our other fees.
8. Client Property
8.1 It is your responsibility to move or remove any personal property or effects at the Client Property before we start carrying out the Services in order to ensure that they are not damaged in any way as a result of us carrying out the Services.
8.2 On the the date on which we start work (“Start Date”), and throughout the period during which the Services are being provided, all areas in which we will be working must be kept clear, accessible, and ready for us to operate in, whether or not we attend the Client Property at that time.
8.3 Reasonable electricity, water and other amenities are to be provided at all times whilst we attend the Client Property.
9. Additional client obligations
9.1 You agree that you shall:
9.1.1 Co-operate fully with Andre Upholstery in all matters relating to the Services;
9.1.2 Obtain all necessary licences, permissions and consents which may be required for the Goods and/or Services to be provided at the Client Property before the Start Date and maintain such licences, permissions and consents until the Delivery Date (including planning permission or the consent of any third party with an interest in the Client Property).
9.2 You will not, without the consent of Andre Upholstery, at any time from the date of this Agreement until the expiry of 12 months from the Delivery Date, solicit or seek to employ any person performing services for, with or employed by Andre Upholstery.
10. Fees and payment
10.1 The fees payable by you to us in respect of the Goods and/or Services will be those set out in the Quotation (“the Fees”) or as further specified by us.
10.2 You must make payment of the Fees in accordance with the payment terms set out in the Quotation.
10.3 Where the Quotation does not specify payment terms, the Fees shall be payable as follows:
10.3.1 50% of the Fees shall become payable;
(a) Upon the placement of the order for the Goods; or
(b) 14 days before the first day on which we are due to start providing the Services
10.3.2 50% of the Fees shall become payable on the Delivery Date and must be paid within 14 days (“Final Payment”);
10.3.3 where applicable, the Delivery Charge shall become payable in advance of the Delivery Date.
10.4 If the Deposit is in excess of £500 then we will place your deposit in a separate bank account and will hold the sum on trust for you pending the issue by us to you of an invoice. Once we have issued an invoice to you we will be entitled to deduct your sum from our customer deposit account into our business account.
10.5 If any sums are outstanding and due for payment to us we reserve the right to immediately suspend the provision of any further Goods and/or Services without further recourse to you (unless that failure of payment is in exercise of your right to set off).
10.6 Where the Goods and/or Services are provided to you as a designer, architect, contractor or other professional as part of a project managed by you, you will be responsible for the payment of the Fees whether or not you have received payment from your end-client.
10.7 You will be liable to pay additional fees to us in such circumstances where we are required to provide alternative or additional Goods and/or Services or required to repeat the performance of Services already provided as a result of your actions or the actions of a third party who has also contracted to provide related services.
10.8 We shall be entitled to charge interest on any overdue sum at the rate of 3% over the base rate of the Bank of England from time to time (such interest to accrue and to compound with the principle sum on a weekly basis).
11.1 If you are engaging Andre Upholstery’s Services;
11.1.1 as a domestic customer; and
11.1.2 you have concluded this Agreement with a representative of Andre Upholstery at a place other than the Andre Upholstery Premises; or
11.1.3 this Agreement was concluded at the Andre Upholstery Premises following negotiations or an offer made at a place other than the Andre Upholstery Premises:
(a) Then this Agreement is an ‘off premises’ contract and under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you have the right to cancel this Agreement 14 days after entering into it without giving any reason and without being liable for any payment.
(b) Where the Start Date or Delivery Date is within the 14 day cancellation period under the Consumer Contracts (information, cancellation and additional charges) Regulations 2013, you are expressly agreeing to the Goods and/or Services commencing within the cancellation period and you accept that you will be liable to pay an amount proportionate to those Goods and/or Services provided in the cancellation period.
(c) If you wish to cancel this Agreement you should do this by sending a written notification of this to Andre Upholstery (this includes by way of email) and you may use the cancellation form attached although you are not obliged to do so.
11.2 Please note that if you cancel the Goods and/or Services after we have started providing them, you will be liable to pay a proportionate amount in respect of the Goods and/or Services already provided.
11.3 The cancellation right above will not apply if:
11.3.1 you are a domestic customer who has concluded this Agreement at the Andre Upholstery Premises, without prior negotiations at a place other than the Andre Upholstery Premises; or
11.3.2 if you have entered this Agreement away from the Andre Upholstery Premises after having visited the Andre Upholstery Premises, or contacted us for a Quotation and we have not met in person away from the Andre Upholstery Premises; or
11.3.3 you are engaging us in the course of business and are not a domestic customer. For the avoidance of doubt, you are not a domestic customer if you are engaging Andre Upholstery’s Services as a business or otherwise in the course of trade, even if your customer or client is a domestic customer; or
11.3.4 although you fulfil one of the criteria for an off-premises contract the Goods and/or Services you have ordered are;
(a) sufficiently bespoke or personalised; or
(b) specialised to a degree not usually offered by us.
11.4 If you are excluded from a right to cancel under clause 11.3:
11.4.1 the Deposit will not be refunded if you cancel after payment of the Deposit; and
11.4.2 you will be liable for paying any further charges which are due on cancellation which may include some or all of the Final Payment;
provided that the retained Deposit or further charges cover the actual costs we have incurred since commencing work and we have taken reasonable steps to mitigate these where appropriate
12. Term and Termination
12.1 This Agreement shall come into force on the date you sign the Agreement. Where the Agreement is not signed, it shall come into force on the day you confirmed acceptance of the Quotation.
12.2 Provision of the Goods and/or Services shall start on the date agreed between us (provided that we are able to start work on the relevant date) and shall, subject to prior termination provided for under this Agreement, continue until the Delivery Date.
12.3 We will be entitled to terminate the Agreement (and any Goods and/or Services then being provided to you) on notice to you in the event that:
12.3.1 you fail to pay any invoice when due (unless that failure of payment is in exercise of your right to set off); or
12.3.2 you fail to co-operate with us in the performance of the Services; or
12.3.3 you are in material breach of any other provision of the Agreement and, if the breach is capable of remedy, have failed to remedy that breach within 30 days.
12.4 All terms of this Agreement which are capable of surviving termination will continue in full force and effect following termination of this Agreement.
13.1 You agree that our liability in respect of any loss under the Agreement with you shall be limited in accordance with these terms and conditions.
13.2 Nothing in this Agreement shall limit or exclude our liability for death or personal injury, fraud or fraudulent misrepresentation arising as a result of our negligence or the negligence of our employees, agents or sub-contractors .
13.3 Subject to clause 13.2, Andre Upholstery will not be liable to you in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: a) loss of profits; b) loss of business; c) depletion of goodwill; d) loss or corruption of data or information; e) loss of anticipated savings; f) loss of bargain; g ) pure economic loss; or h ) special, indirect or consequential loss .
13.4 The total liability of Andre Upholstery, including the liability of our employees, agents, sub-contractors in relation to the Services will (except in relation to liability as set out in clause 1 3.2 or in relation to consequential loss arising from our negligence or our breach of these terms) be limited to the amount paid by you to us under this Agreement.
13.5 No claim may be brought against Andre Upholstery in relation to any Services more than six years following the Delivery Date or completion of the Services.
13.6 We will not be liable if any loss or damage arises as a result of a) your failure to cooperate with us under the Agreement; b) the negligent or wilful acts or omissions of you or any of your other contractors or traders.
13.7 We will not (unless we have acted negligently) be liable to any party other than the party named in our Quotation.
13.8 You accept that the limitations of our liability set out above are reasonable in all the circumstances.
14. Intellectual Property and Confidential Information
14.1 We shall own all intellectual property rights (including copyright) in drawings, photographs and plans and all other work produced in the performance of the Goods and/or Services and generally assert our moral rights and all other rights to be identified as the author of such work.
14.2 Each party agrees with the other not to divulge or allow to be divulged any confidential information relating to the other’s business or affairs other than to its employees, associates or contractors who are subject to appropriate non-disclosure undertakings (if required), or where the other party has consented to such disclosure or where required by law to make such disclosure. Either party may upon termination of this Agreement require by notice in writing to the other party the destruction or return of any confidential material in that party’s possession.
14.3 We shall be entitled to seek your consent to refer to the provision of Goods and/or Services to you for any purpose in connection with our business including for the purposes of marketing materials and use on our website.
15.1 No term of the Agreement will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.2 Each of the parties warrants its power to enter into the Agreement and has obtained all necessary approvals to do so.
15.3 Both parties shall be released from their respective obligations in the event of national emergency, war, pandemic, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of the Agreement impossible. .
15.4 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery, registered post, fax or email to the address of the relevant party shown in the Quotation, at the start of this Agreement or such other physical or electronic address as may be notified by one party to the other.
15.5 This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which will be an original and all of which together shall constitute one instrument. This Agreement shall not be effective until each of the parties has executed at least one copy.
15.6 If any provision of this Agreement is, or is found to be, illegal, invalid or unenforceable, the remaining provisions shall continue in full force and effect and shall not be affected by such illegality, invalidity or unenforceability.
15.7 Failure by us to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver by us of them or the right at any time subsequently to enforce all terms and conditions of this Agreement.
15.8 This Agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
15.9 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England or Wales.