Terms & Conditions
TERMS AND CONDITIONS OF SALE WESTLAKE DREAM GATES LLC
“You are entitled to a completely filled in copy of this agreement, signed by both you and the contractor, before any work may be started”
1. DESCRIPTION OF WORK
Contractor will furnish all labor, materials, equipment, supervision, and contract administration to complete in a good and workmanlike manner the following: Installation of a fence, gate, outdoor living product, gate automation or any other product or service as describe in the Quote at the property of Client located at [see quote] (the “Project”), as described more fully in the Quote previously approved by the Client. By this reference, the Quote is incorporated in and made a part of this Contract. Contractor’s scope of work under this Contract is restricted only to the works specified on the Quote.
2. USE OF NOMINAL AND DIMENSIONAL MEASUREMENTS
As is common practice in the lumber industry, all lumber sizes are stated in nominal dimensions not actual measurements, regularly actual boards can be up to half an inch less than the tagged numerical value. This means the final measurements may vary especially when stacking different wood parts. The overall height of the fence might be shorter than the specified on the quote because of such conditions.
3. DESCRIPTION OF MATERIALS AND EQUIPMENT
The materials to be used in the construction of the Project are described in full detail in the Quote previously approved by the Client. By this reference, the Quote is incorporated in and made a part of this Contract.
4. NATURE OF MATERIALS
The material which will be used for the construction of the contracted work will be specified in the quote. Unless clearly stated wood elements will have no additional processes such as sanding, or pre-staining, most boards used, unless clearly specified, will be rough cut and delivered to the installer prior to the execution of work. Some dark marks on boards might be visible from the friction of the saw against the wood surface.
5. APPROVING A QUOTE
This Contract is deemed signed by both Contractor and Client upon the approval of the corresponding Quote in writing (email is sufficient). The Contract will be deemed perfected after the Client enters their Credit Card information on the electronic Quote, or by submitting a check with the corresponding down payment according to Law. Client has the legal right under federal law to cancel this transaction within three (3) days (excluding Saturday and Sunday) from the date of acceptance of this proposal customer deposits for any non stock or special order items are non refundable after the order is placed. In the event this proposal is not approved by WDG sales or credit departments, this proposal shall become null and void; Any payment shall be refunded to the customer
6. CONTRACT PRICE
Client shall pay Contractor a fixed sum that is specified and can be found on the corresponding Quote, for the work to be performed under this Contract, subject to additions and deductions pursuant to change orders agreed upon in writing by the parties. This change order will be itemized.
7. PAYING WITH CHECK
All payments made via paper check or e-check will be charged at the amount listed on the Client’s quote. All payments made via credit card will be subject to an additional 2.5% transaction fee.
8. DOWN PAYMENT
A down payment will be required in case the Client decides to approve the Quote by submitting a check. THE DOWNPAYMENT MAY NOT EXCEED $1,000 OR 10 PERCENT OF THE CONTRACT PRICE, WHICHEVER IS LESS.
9. PROGRESS PAYMENTS
In any Project with a Contract Price equal or greater than $7,000 USD, progress payments shall be required for each phase of work completed. A schedule of progress payments is included on the Quote which is a conforming part of this Contract.
10. PAYMENTS DUE
The final amount shall be immediately due and payable upon completion to the crew leader on-site. Should default be made in payment of this contract, charges shall be added from the date thereof at a rate of two percent (2.00%) per month (24.00% per annum) with a minimum charge of $5.00 per month, and if placed in the hands of an attorney for collection, all attorney’s fees and legal filing fees shall be paid by Client accepting said contract
11. START AND COMPLETION OF WORK
The work to be performed under this Contract shall be commenced approximately 20 business days after the Quote Approval (which is the equivalent of signing this Contract). The Project shall be completed by approximately 7 business days after the beginning of the work, subject to any permissible delays as defined in this contract. These timeframes are only an average and vary depending on seasonality and materials availability.
The Contractor reserves the right to adjust and modify these dates based on the previously stated factors and will inform the Client who adheres to them by signing this contract.
12. PERMISSIBLE DELAYS
If the Contractor is delayed during or before commencement of the project by any cause beyond the control of the Contractor, the Contractor shall be entitled to an equitable extension of the contract.
Any delays that incur additional costs that are caused by acts, omissions or decisions by the Client or any change order required, the Contractor shall be entitled to an equitable adjustment of the contract price as specified in the Contract Terms.
If any permits need to be obtained by the Client, these will be required before work starts. If not obtaining these delays the installation, the Contractor will not be held responsible for those delays.
No financial liability is assumed by the contractor for loss of wages if property owner elects to be present during installation and a delay occurs.
13. SPECIAL CONSIDERATION ABOUT PERMITTED WORK
For any and all work that requires a permit according to the corresponding building regulations, the provisions expressed on the previous clause will apply. In case the obtaining of such permits takes longer than the proposed installation timeframe for the project, both parties can cancel the contract without penalty or further obligation.
If the obtaining of a permit takes longer than 60 days, a new quote will be issued with possible price adjustments based on material price fluctuations, market conditions and labor based on demand.
14. RELEASE OF MECHANICS’ LIENS
In the event that the Contractor has filed and notified the Client of a mechanics lien, the Contractor is obligated to deliver the corresponding Release to the Client after satisfactory payment of any pending balance or compensation made.
15. APPLICABLE LAW AND DISPUTE RESOLUTION
This Contract will be subject to the State laws. Any controversies will be solved via Arbitration. An Arbitration Agreement can be found on Appendix B and is hereby deemed part of the present Contract.
16. CLIENT RESPONSIBILITIES & CONTRACTOR CONDITIONS
- a) Owner is responsible for facilitating the Contractor with all the necessary means to perform the project to a successful completion, such as access to the premises, timely communications, access to electrical current for tools, authorization to access neighboring properties, among others. Any delays attributable to the Client may result in additional charges.
- b) Client is responsible for securing any and all animals or pets to ensure their safety as well as the installers.
- c) Client understands and agrees that approving a Quote solely binds the Client, therefore it is the Client’s responsibility to collect all shared payments. Contractor can provide separate invoices at the Client’s request that will serve as proof of payment.
- d) Client is responsible for obtaining all Homeowners Associations approval procedure, documents, and/or costs that may be required prior to construction commencing on the property, including all permit fees.
- e) Client is responsible for locating and identifying any property lines to the Contractor. If there is no clarity on the boundaries, the Client can hire a licensed land surveyor. Client warrants that all boundaries and property lines are accurate and therefore the Contractor will rely on the property lines identified by the Client or their surveyor. Client agrees to defend, indemnify and hold Contractor harmless from any and all claims (including, without limitation, claims asserted by neighbors of Client alleging trespass), and damages of every type (including, without limitation, attorney fees, expert and consultant fees, and costs), arising out of any inaccuracies or alleged inaccuracies with the boundary and property lines identified by Client and/or Client’s surveyor.
- f) Client is responsible for notifying all neighboring property owners that the installation will take place, which may produce noises and vibrations that could disturb their regular activities. Also inform them that in the event there’s a need to access their corresponding properties for installation, such is granted in a timely manner. In the event of a dispute between neighbors caused by the project; Contractor shall not engage in any work until a written agreement is signed by both neighbors and will reserve the right to cancel the project without any further responsibility.
- g) Contractor is not responsible for damages to irrigation, sprinklers or landscape/vegetation along the fence line. Client is responsible for clearing 2 feet of work space along the fence lines prior to start date. If significant overgrowth is required to be cut back to execute agreed construction, additional charges shall be applied to the Client.
- h) Contractor shall mark the Client’s property to request dig clearance from DIG ALERT, who will identify public utility lines that run underground prior to the execution of work. Client will be responsible to identify any other lines installed privately, and that are not accounted for by DIG ALERT which includes also the presence of sprinklers, irrigation lines, drip lines and similar. Contractor will not be responsible for buried objects or lines like gas, water, cable, telephone, electric that were not properly identified.
- i) Contractor recommends Client to reposition or remove any sprinkler heads, irrigation lines, drip lines and analogous before installation, due to the high risk of damaging them during demolition and excavation, if these are within 2 feet from the proposed fence line, Contractor will not be responsible for any damages occurred to the mentioned items.
- j) The approved quote does not include any dirt removal costs from excavation. The Client will seek to relocate or dispose of the dirt. A change order will be required if dirt removal is requested by the Client
- k) The approved quote does not include costs for removing and reattaching objects such gates downspouts, fences or similar for access purposes.
- l) Additions or changes to the scope of work not accounted for in the quote will require a change order with the additional charges and the corresponding approval from the Client. Unforeseen situations that cause additional charges or changes in the scope of work will require a change order.
- m) The approved quote does not include the removal of concrete footings from previously installed posts. The new posts would be installed offset from the existing post holes, the old posts cut at the ground level. A change order will be required if concrete footing removal is requested by the Client.
- n) Some special soil conditions might be unaccounted for in the approved quote. A change order might be needed if during the installation unforeseen conditions such as heavy presence of bedrock, other rock material, concrete slabs, boulders, roots or other conditions that render the installation slower and more labor intensive are found or that require the use of jackhammers or other coring equipment.
- o) Automatic gate installation only includes the mechanical installation of the motor as well as the construction of the gate. Any electrical installation shall be done by a certified electrician at the Owner’s expense.
- p) The Fence staining service does not provide with color-matching
- q) Wood material will not match the existing color of any existing wooden fence. Wood is a natural product and it’s coloration is dependent upon many factors such as weathering that are not controlled by the Contractor or the lumber provider. Natural characteristics of wood, such as checking, shrinking, and warpage, as well as movement, can be expected. CHECKING: This is a crack that can occur in the boards, rails or post and is not considered to be a defect. SHRINKING: Old boot can be expected to shrink and is not considered to be a defect. WARPAGE: this is the natural process of wood. It is impossible to foretell which piece may or may not show warpage. This is not considered a defect.
- r) If the Client is a tenant on the property and not the owner, the tenant warrants to the Contractor that all work performed under this contract has been approved by the owner prior to the execution of this contract. Tenant agrees to indemnify and hold harmless the Contractor from any and all claims by the Client or its agents arising out of the owner’s non-approval of the work under this contract.
- s) Contractor is not responsible for working or constructing across not properly identified property lines, easements, covenants or other legal encumbrances that your service address may be subject to and holds no liability for such elements.
- t) Contractor is not responsible for any grading work in the terrain. Soil may shift during installation and/or over time. Gaps under fences are normal and will be accentuated when the ground upon where the fence is built is uneven. Post concrete crownings are for utilitarian purposes rather than aesthetic, their final shape may not be completely even.
- u) Client agrees to provide access to the jobsite during working hours, remove all objects attached to the fence, provide power and water, keep all pets restrained and leave no minors unattended.
- v) Client agrees that if by theirs or anyone else’s action, interference or delays are caused to the installation, Client will be subject to transportation/storage and labor charges at the cost of $75 an hour or $400 per work day lost.
17. ENTIRE AGREEMENT
Both Parties agree that this Agreement and its supplementary clauses and appendixes have been written accordingly to their will and specifications. This Agreement supersedes and cancels any and all related previous written and oral agreements, communications and other understandings. It is agreed that there are no rules, conditions or limitations from other agreements affecting the present, different from those provided in this Agreement.
Any provisions held invalid or unenforceable may be severed from the remainder of this Agreement, whether partially or completely. The remaining provisions will continue to be valid and enforceable.
If any of the Parties waives the other for any breach, default, delay or omission of any of the provisions contained in this Agreement, this action will not allow future breaches of the same or any other provisions to be waived automatically.
20. FORCE MAJEURE
Contractor shall not be held liable or responsible for any breach, default or delay for failure to deliver the Services as specified on this Agreement, as long as this failure is caused by circumstances beyond the reasonable control of the Contractor, including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, festive mishaps, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the Client. If a Force Majeure event exceeds 30 days the Contract is terminated unless mutually agreed by the parties.
21. MODIFICATIONS TO THIS CONTRACT
Contractor may modify or replace any provisions of this Contract at any time by posting a notice on the Contractor’s Website or by notifying the Client in writing via email or regular correspondence.
Except as otherwise provided herein, any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
Westlake Dream Gates Limited Warranty
Contractor guarantees that all newly installed fences will be free of workmanship defects. For this, Contractor will provide a 1 year Craftsmanship warranty on all fences and gates, which will be counted from the date of installation.
Contractor guarantees that all newly installed fences will be free of material defects. The duration of the Material Warranty will depend on the type of product installed. Services like repairs and staining are not covered by any warranties.
Hardwood fences or gates: are covered for a period of 2 year from the date of installation. Its pressure treated elements (generally used in posts and kickboards) will be covered for a duration of 5 years.
Redwood Fences or gates (Con Common or Con Heart): are covered for a period of 1 year from the date of installation. Its pressure treated elements (generally used in posts and kickboards) will be covered for a duration of 5 years.
Cedar Fences are not covered for a material warranty except for its pressure treated elements which will be covered for a duration of 5 years.
This Wood fence warranty is limited but not restricted to the following conditions:
- Structural Failure caused by rot, fungal decay or termites. The terms “rot” and “fungal decay” as used in this limited warranty mean attack by wood-destroying fungi that disintegrate the wood cell walls. Surface mold or mildew is caused by fungi. Weathering of wood is not considered fade, decay, fungal decay or rot of any type of definition.
- Damage to fences caused by excessive irrigation, failure to keep fences free of excessive vegetation, soil contraction due to insufficient hydration or other causes,
- Damage caused by “weathering” of wood, including but not limited to raised grain, color changing, splitting, bowing, twisting, warping, shrinkage, swelling or any other physical property of the wood including but not limited to knots drying out, ends splitting or shrinking therefore creating smalls gaps in between fence parts.
- Color variances in wood are normal even within the same board.
will have a Limited Lifetime Materials Warranty that is given to the original purchaser, or (2) the owner(s) of the property at the time of installation, if different from the original purchaser (collectively, will be referred to as the “Purchaser”) of vinyl fence products installed by Westlake Dream Gates. (“WDG”). For purposes of this warranty, a “Residential Purchaser” shall refer to a single-family residential homeowner and a “Commercial Purchaser” shall refer to any Purchaser other than a single-family residential Purchaser. Subject to the exclusions and limitations set forth herein, WDG warrants to the Purchaser that its vinyl fence and rail profiles (the “Products”) will be free from manufacturing defects which include peeling, flaking, blistering rotting and corroding when subject to normal and proper use.
The warranty period is for the life of a residential purchaser or 30 years in the case of a Commercial Purchaser. The warranty automatically terminates upon the sale of the property or death of the Purchaser.
Aside from the previously mentioned limitations, this warranty does not cover any failure, defects, expenses or damages attributable to:
- Discoloration or other damage caused by air pollution, mildew, exposure to chemicals (including, but not limited to sunscreens, insect repellents, acids or bases, rust, lime, fertilizers, herbicides, or solvents)
- Color changes due to normal weathering. Normal weathering is defined as exposure to sunlight and extremes of weather and atmosphere that will cause any colored surface to gradually fade, chalk, or accumulate dirt or stains. When sunlight is partially blocked by a roof, trees, awnings or the like, uneven weathering may occur. WDG shall have sole discretion to determine, based on reasonable criteria, whether the Products are undergoing normal weathering
- Any other cause not involving manufacturing defects in the Products
- Bowing of pickets or boards
- WDG reserves the right to discontinue or modify any Vinyl product or element without notification. If needed, WDG may choose to provide a replacement product of similar value, color or pattern
- Vinyl product shouldn’t be painted, varnished, or covered with any other unapproved substance applied over the original finish
- Vinyl products shouldn’t be placed near a heat source like outdoor grills, or intense reflected sunlight from windows or other surfaces
Coverage under this Vinyl material warranty will start automatically from the moment the project invoice is fully paid. This material warranty is not transferable, with the following exception: The warranty may be transferred only by the original Purchaser and only one (1) time to a subsequent buyer of the property on which the Products were originally installed. WDG must be notified through a written notice about the intention to transfer said material warranty following the same steps as the Warranty Claim procedure, all within thirty (30) days from the date of the transfer of the property.
Once transferred, the extension warranty will have a duration of fixed 30 years of prorated coverage, WDG’s responsibility under such duly transferred warranty shall decrease by five percent (5%) per year.
At no time, however, shall WDG’s responsibility under this time be less than ten percent (10%) of the original Purchaser’s price for the Products. Time is of the essence, and failure to comply with the foregoing requirements will terminate the warranty and relieve WDG of any further obligation under this warranty.
All gate hardware and automatic operators will have a 90 day warranty besides any applicable manufacturer’s warranty.
Gate operators and all access control devices may have a manufacturer’s warranty different from the warranty described herein, and the Contractor has no responsibility for any such manufacturer’s warranty.
Information for these products will be supplied on an “as-requested” basis. In the event that a part is covered under warranty from the manufacturer, the Client will be responsible for labor charges to WDG to replace said part after 90 days. If the part is not under warranty by the manufacturer, then the Client will be responsible to WDG for the cost of the part and labor charges to replace said part. If WDG is notified of the defect of a non covered component during the 90 day warranty period, the Client will be responsible for the cost of the part only. Failure to request warranty information at the time of contract does not absolve the Client from the responsibility for any charges associated with replacement parts and/or labor.
Material warranties for all products are for materials solely. Labor required to replace or repair is not included.
Material warranties do not cover any damage resulting from the impact of foreign objects or animals, an accident, unreasonable use, neglect, alteration, service by an unauthorized third party, acts of God circumstances beyond WDG’s control or another cause not arising out of defects in materials or workmanship. Damages caused by windstorms, tornado, hurricane, lightning, hail, rain, or any other weather event. Use of accessories or other components which are incompatible with the Products; Movement, distortion, settling or collapse of the ground or structure on which the Products are installed. Failure to provide reasonable and necessary maintenance.
Applicable State Law
This warranty document is congruent with and governed by the laws of the State of California (without regard to its conflicts of law provisions), specifically the California Business and Professions Code Section 7091-a and the California Civil Code sections 915 and 917.
Warranty Claim Procedure
Warranty requests must be received by WDG in writing, via email to email@example.com.
Requests must include:
- a) Name of the Client and contact information,
- b) Address of installation,
- c) Order number, description of issue requested to be addressed under warranty and supporting proof of claim such as pictures and videos.
If the defect or failure corresponds to the limited warranty provided herein, the Client must within 15 days of discovery of the issue notify the Contractor through the above-mentioned process. WDG may request additional information. WDG will then have a reasonable time to inspect and perform analysis of the claimed defect. WDG shall be the sole judge of whether the product is defective and whether the defect is due to manufacturing.
If WDG determines that the claim is within the terms of this Limited Warranty, then WDG will, at its option, provide replacement Products or provide a purchase price refund for the Product under the terms and limitations described herein. In the event of repair or replacement, the original warranty shall apply to the repaired or replaced portion of the Products, and will extend for the balance of the warranty period in effect at the time the material proved defective.
Unless otherwise prohibited by or in conflict with applicable law, the foregoing sets forth the Client’s sole and exclusive remedy (and the Contractor’s sole liability) for failures to conform with the limited warranty herein.
The Client acknowledges that it has read the following ARBITRATION AGREEMENT carefully, as it requires the Client to arbitrate certain disputes and claims with the Contractor and limits the manner in which the Client can seek relief from the Contractor. Both the Client and the Contractor acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, the Contractor’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. All disputes arising out of or related to the Agreement shall be finally settled by binding arbitration in Ventura, Ventura County, California USA. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. The Contractor will pay all arbitration fees for claims less than fifty-thousand ($50,000) dollars. The Contractor will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that the Client’s claim is frivolous.
(c) Small Claims Court; Infringement. Either the Client or the Contractor may assert claims, if they qualify, in small claims court in Ventura County, California or the county where the service or installation has been performed. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each Party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a Party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. THE CLIENT AND THE CONTRACTOR WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. The Client and the Contractor are instead choosing to have claims and disputes resolved by arbitration.
Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between the Client and the Contractor whether to vacate or enforce an arbitration award, THE CLIENT AND THE CONTRACTOR WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CLIENT OR CUSTOMER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR CUSTOMER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither the Client nor the Contractor is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. The Client has the right to opt out of the provisions of this Section by sending written notice of its decision to opt out to the following address: 570 Paseo Grande, 91320 Thousand Oaks, CA postmarked within thirty (30) days of first accepting this Agreement. The Client must include (i) its name and residence address, (ii) the email address and/or telephone number associated with its order, and (iii) a clear statement that it wants to opt out of this Agreement’s arbitration agreement.
(g) Exclusive Venue. If the Client sends the opt-out notice in
(f), and/or in any circumstances where the foregoing arbitration agreement permits either the Client or the Contractor to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration agreement will not apply to either party, and both the Client and the Contractor agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Ventura, Ventura County, California USA, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of the Agreement.