This Windows and Doors Company sucks – signed contract advice.

[teaboy]

Hi Piggs, I’m looking for some practical advice.

I recently shopped for replacement vinyl windows and after getting 3 quotes from reputable companies with good online presence, I decided to go with company #2, which I’ll call Shitan windows herein. I signed the $12k contract in July with Shitan but to date the windows have not been ordered from the Manufacturer yet, primarily because of multiple mistakes Shitan have made in the windows order form which I caught and then started questioning. The sales rep I am working with routinely takes over 24h to reply to my email questions and even then gives terse incomplete answers.
TBH, at this point I am now loathe to let this company continue with the work since I do not trust their attention to detail and I reason that if this is the level of customer service they provide BEFORE the job is started I can only assume it will be even worse after I’ve paid them.

In addition to all this, I have since become aware that my home is in what is technically termed the very high fire hazard severity zone and hence requires “fire zone” windows per the building code, which would increase my price by ~15% from the non-fire zone windows in my contract.
https://www.sandiego.gov/department/very-high-fire-hazard-severity-zones-map
While I believe this is correct, I’m not a licensed contractor and I’m not 100% sure this is correct.

My plan is/was to get the Shitan sales rep to confirm in a written email that I do indeed require these “fire zone” windows and then argue that they missold me the wrong windows and hence the contract should be voided. However, given the sales rep’s (presumably deliberate) lack of emails, I’m getting less and less confidant this approach will work.

So far, I have only paid the $1000 Down Payment.
Does anyone have experience of this?
What is my best practical approach for handling this?

TIA,
tb

[teaboy]

Here’s the full contract text:

HOME IMPROVEMENT CONTRACT
http://www.shitanwindowsanddoors.com
[email protected]
CA License: 1000582

THIS AGREEMENT (“Contract”) is between SHITAN WINDOWS AND DOORS – SD (“Shitan”) and Mrs Me (“Owner”),
SIGNED ON: ________________
Address: Some St , San Diego, CA 92121
Telephone: 858-888-8888 Email: [email protected]
Performance
Shitan agrees to furnish all labor (Shitan may elect to use licensed subcontractors), equipment, and material as set forth in the
scope of work (“SOW”) attached and incorporated hereto in exchange for full payment by Owner as set forth in this Contract,
and as it otherwise may be amended. All labor, equipment, and material will be furnished in a good, workmanlike manner,
and in accordance with industry standards. Upon completion of the work, Shitan will remove debris, surplus material, and old
windows and doors from Owner’s property and leave it in a neat and broom-clean condition. The term “broom-clean
condition” shall have its plain and ordinary meaning and shall not be construed to mean “professionally-cleaned condition”.
No other work is promised or implied unless specifically set forth in writing. Owner must be present at the property during the
install and has 48 hours to inspect the work and report installation complaints to Shitan. All material is warranted only as
specified in this contract.
Approximate Start and Completion Dates:
Owner acknowledges that Shitan is not a manufacturer, and windows and doors are supplied to Shitan by third-party
manufacturers. Vinyl windows and doors normally are delivered to Shitan between four (4) to ten (10) weeks after the order has
been placed with the manufacturer. Aluminum, Colored Vinyl, Fiberglass and Wood windows and doors can take between
eight (8) to fourteen (14) weeks to be delivered to Shitan. Installation normally commences within one to two (2) weeks of
product delivery to Shitan, and at a date suitable to Shitan (“scheduled date”). If installation is delayed more than seven (7) days
from the scheduled date due to no fault of Shitan, a storage charge of $75.00 per day thereafter will be invoiced to Owner.
Shitan is specifically not responsible for the following:
1. Moving and replacing furniture and other impediments to access (if Shitan is asked to do so by Owner, and Shitan
agrees, Owner shall hold Shitan harmless for damage); and,
2. Removal and replacement of window treatments/coverings (if Shitan is asked to do so by Owner, and Shitan agrees,
Owner shall hold Shitan harmless for damage); and,
3. Connection and reconnection of alarm systems; and,
4. Painting, Drywall Repair, Stucco Repair, Tile Repair, Interior molding/casing, Exterior molding/casing; and,
5. Building Permit Fees. Windows, glazing and/or fenestration require building permits per the California Building
Code (CBC) Sec. 105.1, California Residential Code (CRC) Sec. 105.1 and County Building Codes. All Permit fees are
the responsibility of the Owner. If Shitan is requested to pull permits, the owner will be responsible for paying Shitan a
$250.00 permit runner’s fee in addition to any city fees required; and,
6. Retrofit and Block installations require Shitan to cut parts of the existing windows/doors, existing frames will
remain. While cutting existing windows and doors, vibrations to the exterior/interior walls and surrounding coverings
(tiles, mouldings, siding, stucco, etc) may happen (Shitan is not responsible for vibration damage).
7. Home Owner’s Association approval, if needed. It is Owner’s responsibility to inform Shitan that the Owner’s
property is governed under a HOA. Such notice shall be given to Shitan within three (3) days of Contract execution by
Owner.
8. Scaffolding (if necessary) will be provided at the homeowner’s expense.
Schedule of Progress Payments
Contract Price: $ 12,885.12
Down Payment (Due upon Contract Execution): $ 1,000.00
Due Upon Delivery of Material*: $ 10,752.00
Final Payment: (Due Upon Installation of Contract Items): $ 1,133.12
Down payment may not Exceed $1000 or 10% of the contract price, whichever is less.
*For incomplete deliveries, Owner will be held responsible for paying for the items that were delivered only.
Remaining Delivery balance will be collected from Owner upon Shitan’s delivery of missing items.
Once windows and/or doors are installed, the maximum amount Owner may withhold from final payment is 5% of the Final
Payment amount, but only in the case of a bona-fide workmanship issue. All withholding must be released to Shitan upon
resolution.
Initials: ______________
Jul 20, 2021

Extra Work and Change Orders
Any changes, alterations or deviations to this Contract must be made in writing, and signed by the parties prior to the
commencement of any work covered by the new Change Order. Extra work or a change order is not enforceable against a
buyer unless the change order also identifies all of the following in writing prior to the commencement of work covered by the
new change order: (i) the scope of work encompassed by the order; (ii) the amount to be added or subtracted from the contract;
(iii) the effect the change order will make in the progress payments or the completion date.
Shitan is not obligated to perform any extra or changed work absent a written and mutually executed Change Order, with the
exception of work ordered by municipal or governmental authorities, in which case, Shitan shall be entitled to recover the
material and labor cost of such extra work plus 15% overhead and 15% profit on the total. A failure to comply with the
requirements of this paragraph does not preclude Shitan’s recovery of compensation for work performed based upon legal or
equitable remedies designed to prevent unjust enrichment.
Warranties
Owner acknowledges that Shitan is not a manufacturer, and windows and doors are supplied to Shitan by third-party
manufacturers. As such, the windows and doors are warranted per the manufacturer’s policies and not by Shitan. Shitan makes
no warranties, either express or implied, as to the merchantability of, or fitness for any particular purpose of, windows and
doors manufactured by third-parties. Any and all manufacturing defects and any and all material defects are not the
responsibility of Shitan, and do not excuse non-payment of the total contract price to Shitan under any circumstances. After
completion of installation of windows and/or doors, all manufacturers’ warranty information and documentation will be
promptly supplied to the Owner by Shitan, and Shitan agrees to exercise its best efforts to assist in prosecution of warranty
claims made by the Owner with the Manufacturer.
For Limited Installation warranty information, visit: http://www.ShitanWindows.com
Delay
Shitan is excused for any delay in completion of the contract caused by the Manufacturer, acts of God, acts of the Owner or the
Owner’s agent, inclement weather, natural disaster, wet or muddy grounds, labor trouble such as strikes, accidents or delays
beyond Shitan’s control, acts of public utilities, public bodies, or inspectors, extra work, failure of the Owner to make payments
due promptly, or other contingencies unforeseen and beyond the reasonable control of Shitan.
Insurance and Licensing
Owner agrees to carry fire, and other necessary insurance to cover any damage caused by Shitan and/or its subcontractor to
walls, doors, floors, furniture and personal items due to negligence. Shitan and/or its subcontractor agrees to carry all other
necessary insurance and licenses as required by law. Shitan and/or its subcontractor will maintain workers’ compensation
insurance and commercial general liability insurance in full force and effect and will furnish certificates of insurance to
Owner. Contractors are required by law to be licensed and regulated by the Contractor’s State License Board. Any questions
concerning a contractor may be referred to the Contractors State License Board, 9821 Business Park Drive, Sacramento, CA
95827, Phone (800) 321-CSLB, http://www.cslb.ca.gov.
Attorney’s Fees
In the event Shitan deems it necessary to file a mechanics lien or to file suit to collect any money due under this contract,
Owner agrees to pay all Shitan’s costs of collection and legal fees including reasonable sums incurred by Shitan for attorney’s
fees. If the parties become involved in legal action resulting from a dispute as to Shitan windows performance of this contract,
the court shall award reasonable costs and expenses, including attorney’s fees, to the prevailing party.
Cancellation
As set forth in the California Home Solicitation Sales Act, you may have the right to cancel this transaction at any time prior to
midnight on the third (3rd) business day after this contract was executed.
In Shitan’s sole discretion, an untimely contract cancellation may be handled in the following manner, and Owner expressly
agrees that:
1. Any and all Contract cancellations that take place after the statutory 3-day cancellation period and prior to window
and/or door ordering by Shitan, are subject to a liquidated damages charge of 30% of the total contract price shown below.
As a condition of this courtesy, Owner will not receive windows, doors, materials or installation services.
2. Because windows and/or doors are custom manufactured per specific order, Contract cancellations that take place after
the statutory 3-day cancellation period and after window and/or door ordering by Shitan, (but prior to installation), are
subject to a liquidated damages charge consisting of 65% of the total contract price. As a condition of this courtesy,
Owner will not receive windows, doors, materials or installation services.

NOTICE OF THREE-DAY (3) RIGHT TO CANCEL

Three-Day Right to Cancel
You, the buyer, have the right to cancel this contract within three business days. You may cancel by e-mailing, mailing,
faxing, or delivering a written notice to the contractor at the contractor’s place of business by midnight of the third business
day after you received a signed and dated copy of the contract that includes this notice. Include your name, your address, and
the date you received the signed copy of the contract and this notice.
If you cancel, the contractor must return to you anything you paid within 10 days of receiving the notice of cancellation. For
your part, you must make available to the contractor at your residence, in substantially as good condition as you received them,
goods delivered to you under this contract or sale. Or, you may, if you wish, comply with the contractor’s instructions on how
to return the goods at the contractor’s expense and risk. If you do make the goods available to the contractor and the contractor
does not pick them up within 20 days of the date of your notice of cancellation, you may keep them without any further
obligation. If you fail to make the goods available to the contractor, or if you agree to return the goods to the contractor and fail
to do so, then you remain liable for performance of all obligations under the contract.
I hereby cancel the home improvement contract between myself and Shitan Windows and Doors, the contract being dated
_______________

Buyer’s Signature: _________________________________________ Date: _______________

[gzz]

Have you asked for your money back?

They are likely swamped and also dealing with backordered parts being delayed. I doubt you will get better service elsewhere.

I’d take your case on contingency if the deposit were 200k+.

Now is an awful time for doing home improvement projects. Wait for the next recession.

[teaboy]

I have not asked for my money back yet, since I would not expect the sales rep to give it back willingly and lose his commission.
I want them to admit they have missold me the wrong windows which are not to code (San Diego fire code.) And then use this as a reason for full refund. Unfortunately, I dont believe the sales rep knows much of anything about the fire code of the products he’s selling and will simply tell me I’m wrong. Asking for a refund before doing that will just make them even more defensive & uncooperative.

I feel my options at this point are 1 or all of:
1. Ask my credit card company to issue a chargeback for my $1000.

2. File a complaint against the contractor to the Contractors State License Board (CSLB) for mis-selling a product not up to the fire code and maybe have them adjudicate whether it is or isnt up to code.
https://www.cslb.ca.gov/consumers/filing_a_complaint/Complaint_Against_Licensed_Contractors.aspx

3. Take this Contractor to the small claims court for my $1000.

4. Build a time machine, go back to the time before I signed this contract, and then wait for the next recession, like gzz suggested. 🙂

Anyone had any experience of any of those?

tb

[svelte]

You probably should have obfuscated the contractor’s license number too. Pretty easy to look up.

[XBoxBoy]

[quote=teaboy]I want them to admit they have missold me the wrong windows which are not to code (San Diego fire code.) And then use this as a reason for full refund. [/quote]

It’s probably going to be hard to get them to admit that they messed up. But you might be able to go to your local building department and get them to confirm or deny that you do need fire zone rated windows. If the building dept. confirms that you need fire zone windows that will strengthen your case more than an email from the salesman.

[Hobie]

Time is of the essence. Either sign up with gzz or send a certified letter demanding a refund and stop order. ( for non-performance since date signed contract ) If they order the product, you are poxed.

[sdduuuude]

Since you paid with a credit card, I would go that route. It is simple and will save you from wasting time and energy on fighting it.

First, tell them you believe the contract is invalid due to the change order required to meet fire code.

Second, ask for your deposit back.

If you don’t get it in a reasonable time, file a claim with the credit card. Send them the contract and all the details. Those cc companies are really good about fighting for you.

Recently, Chase Visa got a full $1100 deposit out of an unscrupulous VRBO host. He was a complete dick until I filed the visa claim. He kept calling me, leaving voice mails asking me to negotiate and “work something out.” I just ignored him and Visa got it all back. Asshole. But I digress.

I’d go to dixieline and order windows, then find a good independent installer to put them in. These big “reputable” firms are really just expert marketers. They aren’t any better than a good handyman, really, when it comes to doing the work.

Even if you forfeit the $1000, you will come out ahead that route. I may know a couple installers if you have trouble finding them but everyone is sooooo busy right now.

[sdduuuude]

dup

[sdduuuude]

Dixieline reps will know if the windows you ordered will meet code. Try them, Bring in your order and say “save me $1,000 on this so even if I forfeit my deposit, I’m good.”

I also think the firezone windows are only required in certain parts of the house facing out to open space. I think. There’s lots of details to know about that so if you are in the very high zone, maybe

Also, you can lookup your firezone through the city development services … somewhere. Just google “San Diego fire overlay zoning map” and you should be able to see your lot.

P.S. I NEVER hire anyone when a rep shows up with a collared polo shirt sporting the company logo on the chest. Give me the Mexican dude and his father any day, or the rough-looking guy from Ramona. Except maybe for pool work. You need the big company with insurance for that.

[Coronita]

I had a good experience with Bumba Windows and Doors for ordering from Milgard. They were good to deal with… I had myown installer though. The one Bumba referred me to was 4x more expensive. My contractor was the kind sduude described and included patching outdoor stucco and inside drywall. The guy in the polo shirt that wanted 4x more and didn’t include the stucco or drywall repair and just subcontracts it out anyway. Why hire a middleman and give him more and give less to the people doing the actual work?

[teaboy]

quick follow up to close this thread out..

I was able to get the sales rep to agree that my home is in a firezone and requires “firezone” windows to be to code. (“Firezone” windows simply means that one pane is tempered glass.)
The sales rep offered to install firezone windows for no additional cost, but refused to cancel the contract and refund my deposit.
Having lost trust in the sales rep and company, I then followed the credit card chargeback route to recover my $1000 and, 2 months later, just finally heard that my chargeback has been ​approved and refunded to me.

If the chargeback had not been approved, I would have been happy to take the Contractor to the small claims court, simply to experience the process. However, I’m very glad I don’t need to.

I guess it’s possible that the Contractor will now come after me for contract non-performance. Hopefully, they’re too busy for that type of shenanigans.

tb

ps. having pursued the credit card chargeback process numerous times in the past, it’s not nearly as much of a slam dunk process as it used to be. Additionally, my credit card company (a Credit Union) has outsourced the entire chargeback process to a 3rd party, co-opfs.org.

[gzz]

I only did one attempt at a credit card chargeback in the past 10 years, and Citi denied it. So I won’t use a citibank credit card again, and warn you too. It was only about $100 and with priceline.

A few months ago however I asked PayPal to refund an autobill I had already cancelled, and it was a really quick process that took 30 seconds online. This was for about $60.

The best credit cards these days are Chase, Amex, and Barclay, in that order. Citi used to be a close second but they just don’t have the big bonuses the other leaders do.

[XBoxBoy]

[quote=gzz]The best credit cards these days are Chase, Amex, and Barclay, in that order.[/quote]

Glad those worked out for you, but I had an Amazon Rewards card from Chase. Checking my bill, I found that there was a charge made in Sears in Arizona for a couple hundred bucks. I immediately called Chase and told them I didn’t make the charge. But they told me that the purchase was approved with the chip in my card and that I did make the purchase. (I still had the card in my possession.) I fought them with letters and appeals. Even filed a complaint with the Consumer Credit Bureau. Chase wouldn’t budge. They claimed that the purchase used the chip in the card and that since I still had the card, I must have driven to Arizona, made a purchase at the Sears and forgotten about it. (How would I forget a trip to Arizona???) I’ll never use Chase again.

[Author]

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