You just provided me with an education regarding "contract of adhesion" and what it does to the party signing it. Credit card companies, car dealers, car leasing agents and insurance agents are just a few entities that use these contracts to place a consumer "over a barrel" and are onerous for sure. That the flooring 'industry' attempts to employ such documents to attempt to insulate it from claims is eye opening, probably the result of a more litigious population these days and a change in how business is conducted.

In my father's time, a gentleman's agreement was how they did business...no kidding, a handshake and a piece of paper on which was the stated price and a description of what was to be provided and done. Toward the end of his business, he encountered many consumers who wanted 'everything' in writing. Suffice it to say, they rarely saw his toolbox in their homes.

Now in my time, I got to the point with the average consumer that if I got an inkling that a consumer was going to nitpick on contracts and such and create an adversarial climate from the start...well their jobs never got started and they never saw my toolbox either.

This is not to say that you are being unreasonable in trying to get basic things spelled out, although you don't say what 'problem X' or 'problem Y' or 'problem Z' might be. I have no way of knowing if what you want included in the contract is reasonable or not. Obviously, there is this discrepancy between what they say they do and and what the contract states.

You have a reasonable expectation to get the products and services contracted for, and if a particular company cannot make you feel comfortable in signing a contract with them...then don't.

Consumers out there who these days purchase flooring products and services will be the ones who can tell you if what you are encountering is 'standard business practice' or not.

I will ask you, just for the heck of it...would this company be the one with national advertising that has that annoying telephone number jingle?

Nope, not the jingle company.

An example of what I'm talking about -- by the terms of the contract, we are supposed to inspect the flooring prior to installation or forever hold our peace. We don't know how it is practicable to look at every plank prior to installation. If they put in something defective or wrong without our catching it, we're out of luck. Similarly, they could show up with something that's the wrong color or whatever, we see it and say no, and we get charged a 30% restocking fee. That is, assuming it is deemed a "special order" which is nowhere defined...

They say they will be reasonable. They probably would be. We'd be okay if the contract talked in terms of reasonability, rather than their sole discretion. We should have the right to reject defective or erroneous materials without charge (or have any dispute as to this decided by an impartial third party), but by the terms of the contract we wouldn't. The company has all its rights spelled out; we have none.

I've looked at sample contracts online, all of which appear better than what we've been offered. Local consumer protection requirements (what is specifically supposed to be included in all contracts) are ignored, too.

This is but a minor add-on to a larger remodeling contract with a kitchen/bath contractor. They were amenable to negotiation, we developed a mutually agreeable contract, and construction has proceeded without dispute. I don't think we're being unreasonable. Indeed, both sides are better off having basic rights and obligations spelled out.

My question was whether contracts of adhesion are par for the flooring course. If we can't do better, well then, we have to grit our teeth and take our chances.

It is irksome, though, to be asked to sign something that is patently false. They wrote the contract. Why should we be required to formally affirm that they didn't?

We have seen somewhat better contracts -- but those folks wanted $1,500 to $2,500 more. The chance that we would have a problem with the work is small. Is principle/peace of mind worth that much? Like I said, a quandary.

I never sign contracts that contain the clause "neither party is the drafter," because should you end up in court you lose the protection of differences of interpretation being construed in favor of the non-drafter. And I have never had anyone refuse to strike that clause from their contract.

So I would say it's common that people try to put it in. But that doesn't mean you should accept it, unless it truly is a contract whose details were jointly negotiated.

And it doesn't matter if 100 people have signed the same contract without making changes (and probably without reading it). That doesn't mean you should or have to do the same.

You can ask for changes in a contract in a way that doesn't make the relationship adversarial. If I presented a contract to a customer and they said "There are some terms I'm not comfortable signing," I'd inquire as to their concerns and we'd work out language that addressed their concerns but still gave me protection. That rarely happens, but then my contracts are not written to be one-sided out of the gate. You could take the same approach.

So what would I do if it were me? Hmmm, I'd probably sit down with the salesman and say, "Your price and timeline are reasonable, and I'd like to hire you guys, but there are a few things in your contract that cause me concern. As long as the right flooring arrives, it's installed correctly, and there are no problems, it doesn't much matter what the contract says. But I know that sometimes problems happen, and the contract protects both of us by clarifying what we do, who's responsible for what, etc. You've given me verbal reassurances that you're reasonable, but it makes me uncomfortable that you won't document those."

Then go through each issue that causes you concern. Talk through verbally what will happen, in detail, say "perfect, that sounds very reasonable," (showing that you're not just trying to cause trouble) then pull out the contract and say, "this contract says something different than what you and I are agreeing is reasonable if we have problem X. Does it make sense to have something different in writing than we actually agree to?"

Also, recognize that the salesman might be resistant to changing the contract because the company doesn't have any process to do so, and none of his customers have ever requested it. They probably just have a contract a lawyer wrote up for them way back when, and they don't even understand it. So you're smarter than he is on the contract front, and rather than admit that and say "let me check on that" he's just stonewalling you. If this is the case, you might get further by saying, "hey, you probably don't get many customers asking for changes in contracts, and it's probably a bit much to be asking you to play lawyer. Is there someone back at the office that you could take my proposed changes to, to get approval? You could offer to hand-write and initial the changes for him to take back for review. Can you call the office and appeal to the manager/owner (if a small company)? They're likely a bit more savvy about legal matters.

If your attempts to be reasonable, cooperative, and helpful meet with continued resistance, then I'd probably not do business with them. To me, not working to address a potential customer's concerns--especially when they're valid, not just nitpicky--is a red flag about the future working relationship.

What's $1500-2000 as a percentage of the whole job? What kind of flooring is this, btw?

We have tried talking to the salesman pleasantly, even said we could suggest some language ourselves. Explaining that we just wanted the contract to specify how they say they operate, he simply says he doesn't understand. Perhaps he doesn't. Maybe we are peculiar in actually reading the contract?

I'm thinking we may go into the store and talk to them in person. This is the first time we've dealt with a contractor that wouldn't negotiate terms. Why turn away customers who only want them to say in writing they will do what they say they will?

The other two estimates we have are 18% and 27% more expensive than the one we hoped to go with. We're talking bamboo (the high-end, environmentally friendly, incredible warranty type). The higher estimates involve a more expensive product that is available from a wide number of local stores. The lowest estimate involves a comparable product that seems to have only two local sources, the folks we have been dealing with (who install) and another place (which doesn't install).

We're also considering doing the basement floor. The estimates we got for nice cork were more than we care to spend right now given everything else on our plate (kitchen, three bathrooms, master bedroom, hall, foyer, and steps). We'd probably go with the same folks we get to do the kitchen floor.

Thanks to both of you who've commented on our predicament BTW. This board is great. I haven't commented until now but I spend loads of time researching other issues in the course of our remodeling project. It's fantastic that strangers are so giving of their time.

I've only skimmed but I think you are being naive in thinking that problems are rare, either with the install or the terms or the contractor. You only have to read on GW, or elsewhere, for a short time to see the types of things that go on. If you have had reno projects go smoothly so far, I would say you are very lucky! lol

I think this company sounds really shifty. I would not sign something that was a lie. Maybe cross that part out and initial? The "I don't understand" bit makes me uncomfortable with this person/company. Not sure what the other problems are that they can't clearly state what the terms of the sale and install are.

Make sure you know what prep is being done and how the floor will be installed, which should be covered in your contract. Unfortunately, make sure you know what prep and install should is required for the project, as best you can.

If it's a material problem, it is the manufacturer's warranty that attends to it. Problem is, they just blame each other. Many installers do not install to manufacturer/industry specs that the manufacturer certainly has a point and claim, in all fairness to their products. They need to be installed properly, things prepped properly.

I would be very picky about who you have install the floor. You might be better off finding a good installer on your own anyway.

It sounds to me like you have too many red flags. Maybe you should listen to your gut on this, that things just don't seem right.

Don't be penny wise but pound foolish.

Low bid and a poorly worded contract? Just the fact that they were the low bid is enough of a red flag. There's enough issues out there with bamboo that you really have to educate yourself on the manufacturer first, and their requirements second. Then, when you interview installers for bidding, you give them a copy of the requirements, so that there's no miscommunication about what the project is. You're going to be better off I think decoupling the seller and installer here. The installers for most flooring companies are technically independent contractors anyway.

Settle on the product. Learn it's requirements. Interview the installers. And usually, the low bidder isn't the one you want to go with.

"...we are supposed to inspect the flooring prior to installation or forever hold our peace. We don't know how it is practicable to look at every plank prior to installation."

It is not practicable to inspect every plank prior to installation...it is the installer's responsibility to do that. The installer is the final inspector of the goods prior to placing it in the installation. Your responsibility as the customer is to accept the goods 'as ordered' and in good condition. In other words, you are to verify that the SKU is what you ordered and that the packages contain the product ordered. You also verify that there are no obvious signs that the packages have in any way been damaged in shipment. After that, it becomes the installers responsibility to see that individual damaged or defective units are not placed in the installation. To attempt to shift the installer's responsibility to you as final inspector is unreasonable and is not how things are done.

After the installation is complete, then it becomes your responsibility to inspect the job for completeness and acceptability prior to making any final payment.

The previous poster's comments about most installers being independent contractors is correct. And you must also consider that when scrutinizing any proposed contract. Are the installers employees of the goods seller? Or, are they independent contractors who contract installation work from the seller? I think it would be wise to discover that particular chain of responsibility. It would also be wise to ask for a certificate or proof of insurance from any independent contractor who wants to step foot on your property.

The 30% restocking fee is ridiculous to ask a consumer to accept, if the product delivered is not the one that was ordered. However, manufacturers will usually state something like "shading and decoration may vary" to cover very small changes or improvements to a product not reflected in the samples sent to distribution and then to stores. These small changes and improvements usually are not large enough differences from the samples to make the product unacceptable.

If what the contract says they will do is "not how we do it" verbally and they refuse to put in writing how they do it ... I'd walk.

They are trying ti have their cake and eat it too ... they can always point to the contract.

Ask the other store for the names of installers they work with and interview them.

Yes, forgot this one:

"...we are supposed to inspect the flooring prior to installation or forever hold our peace. We don't know how it is practicable to look at every plank prior to installation." *

Run like he!! from these people. They should be inspecting all boards they install, as mentioned above. They are passing all responsibility off on the consumer.

Honestly, I would not even buy the product from them. Any problems -- like restocking fees on an erroneous order?? -- you will be in trouble.

Pay completely by credit card if you can so you have some recourse in a dispute. After you vet the installer, make sure the contract does not state they can sub it out.

P.S. * I guess they could be trying to cover that your "taste" in ugly boards might be different than theirs, but that is not clear in the phrasing. They should, of course, be inspecting them for integrity, as well as bad looking boards.

This post was edited by snookums2 on Sat, Aug 17, 13 at 14:42

Thanks everyone! Your insights have been valuable.