1.1. Terms and Services. These Terms of Service (“Terms”), as amended from time to time by Stain Your Fence? LLC., a Texas limited liability company, its subsidiaries, affiliates, predecessors, successors, and assigns (“Stain Your Fence,” “us,” “we” and/or “our”), between you
(“Customer,” “you” and/or “your”) and Stain Your Fence, set forth the terms applicable to your purchase and/or use of our services (collectively, the “Services”). You and Stain Your Fence together may be referred to herein as the “Parties” and each may be referred to herein as a “Party.” These
Terms explain our obligations to you, and your obligations to us in relation to any Services you purchase or otherwise utilize.
1.2. Basic and Additional Services. Our basic service (“Service”) is the sealing or staining of residential wood, stone, or concrete structures only (“Structure(s)”), including fences, doors, and decks. You may also elect to purchase additional Services such as repairs, touch-ups and
color changes of the Structure (the “Additional Services”).
1.3. Agreement. By scheduling a date for any Service and/or Additional Services, you acknowledge that you have read, understand, and agree to be bound by these Terms, as well as all other applicable rules or policies, Terms, or service agreements that are or may be established by us
from time to time and are incorporated herein by reference. The verbal approval of the Service Estimate by any homeowner or adult present at the Property is sufficient to signify your agreement to our performance of the Services pursuant to these Terms.
1.4. Modification to Terms. Stain Your Fence reserves the right to modify these Terms or Stain Your Fence’s policies relating to the Services at any time, effective upon posting of an updated version of these Terms on its website, www.stainyourfencetexas.com (“Website”). Therefore, it is important to check the last updated date posted at the top of these Terms each time you visit the website or use any of the Services to ensure you are familiar with our most updated terms. You are responsible for regularly reviewing these Terms available at all times on the Website. Continued use of the Services after any such changes shall constitute your consent to such changes.
2.1. Estimates. Stain Your Fence will provide an estimate of fees for the Service based on your description of the type and condition of your Structure by text message or email to your telephone number or email address, respectively, provided to us during the scheduling process (“Service Estimate”). You authorize Stain Your Fence to coordinate the Services described in the Service Estimate at the property whose address is listed in the Service Estimate (“Property”), subject to these Terms.
2.2. Service Estimate Changes. If the Representative determines your fence is in a different condition from what you described to Stain Your Fence during the scheduling process, Page 2 of 6 or if additional/different parts or labor is necessary to perform the Service, you will be provided with a new Service Estimate. The new Service Estimate may be higher than the original Service Estimate.
2.3. Estimates for Additional Services /Added Costs/Minimum Fee. We will provide an estimate for any Additional Service. Added costs will apply where the Service exceeds the scope of work in the Service Estimate as described during the scheduling process. Additional Services may be scheduled after the completion of a Service, provided that a minimum fee of One Hundred (100) Dollars will be payable on each occasion our representatives visit the Property to perform Additional Services.
2.4. Completion of Services and Payment.
a. Terms of payment are within Stain Your Fence’s sole discretion. Stain Your Fence collects payment on a cash-on-delivery basis, and allows you to make payment(s) using a credit card. Full payment for the Services is due and payable when the Services are completed and before our representatives leave your Property. Completion is defined as when the last listed specified labor on the applicable Service Estimate is completed.
b. You confirm that an adult will be present at the Property to inspect all work done and approve the completion of the Services to your satisfaction. If an adult will not be present at the Property to inspect and approve the completed Service as required under paragraph 3, you agree to pay the Service Estimate amount before we commence the performance of the Service. In any event, you acknowledge that payment to us for any Service signifies your approval of the completion of such Service to your satisfaction.
3.1. Adult Consent/Authorization.
a. An adult at least 18 years old must be present at the Property to authorize and approve the completion of the Service to your satisfaction.
b. You confirm we have the right and are allowed to perform the Services at the Property (e.g., you have obtained any necessary permission from a landlord or homeowner’s association, or other required approval or permit)
3.2. Safety. We require a safe working environment and reserve the right to refuse or reschedule an appointment due to conditions we find dangerous or unsafe, including but not limited to possible code violations, extreme temperatures, natural disasters, or other hazards—real or perceived.
3.3. THIRD PARTY CONTRACTORS. THE SERVICE MAY BE PERFORMED, AT OUR DISCRETION, BY EITHER OUR OWN EMPLOYEES OR ONE OF OUR AUTHORIZED, INDEPENDENT THIRD-PARTY CONTRACTORS.
3.4. Access / Workspace Conditions. In order to perform the Services, we will need (1) access to your Property, (2) your cooperation with any of our questions or requests, and (3) electrical power. You are responsible for clearing the work area prior to our arrival. The Service may be denied if we arrive for an appointment and no adult is present or we determine we do not have appropriate access or cooperation from those on site. If our ability to render the Service is impaired by you or circumstances beyond our control, we may elect to not provide the Service. We will not move furniture or other items at the Property even if necessary for carrying out the Service. No credits will be applied based on areas skipped due to our inability to access the areas. We are not responsible for removal or repairing any changes made to the Property to facilitate the performance of the Service.
3.5. Changes /Cancellations/ Delays. You must notify us of any change or cancellation at least 24 hours in advance of your scheduled appointment. We may cancel a scheduled Service if, due to no fault of our own, the Service has not been completed or rescheduled within 45 days of placement. We will try to complete the Service as quickly as possible, but we are not responsible for delays caused by factors beyond our control.
3.6. Photos / Videos. In situations where it is necessary or warranted, we may take, transmit, and/or use photos/videos of your Structure for service, claim, and/or quality assurance purposes.
3.7. Phone Calls and Texting. We may call or text you at the telephone number you provide (including any mobile number) to inform you about your appointment status, scheduling, and service requirements. Calls may be live or prerecorded and calls or texts may be made via automated dialing system. Voice and data rates may apply.
4.1. Property Damage. The Customer assumes responsibility for any fittings, fixtures, exposed wires, cables, electrical cables, telecommunication wires or cables, etc. that are not installed or buried properly and are damaged by our equipment. Before Stain Your Fence takes responsibility, a supervisor will inspect the damage to determine if the damage was caused by carelessness or negligence on our part. If so determined, Stain Your Fence will assume responsibility for repairing the damage.
4.2. Children, Pets, and Plants. The Customer assumes responsibility for containing and protecting any children, pets, and plants on their Property. Our Representatives will make every effort to make sure gates and doors are closed when practicable but will not assume responsibility for your children and pets. The Customer assumes all responsibility for injury to parties present at the Property when our Representatives are onsite. If there is a dog at the Property at the time of the scheduled appointment and our Representatives feel threatened by the pet, we reserve the right not to carry out the Service.
5.1. Limited Warranty on Service Provided. Stain Your Fence warrants customer satisfaction with the Service for three (3) years on vertical fences and one (1) year on doors from the date of job completion. Very slight, slow, and gradual fading and natural graying of wood may occur on Page 4 of 6 during this period, especially in areas exposed to heavy sun or excessive weather. Sprinkler systems spraying the stained areas directly will nullify this warranty. If you are not satisfied with the Service, Stain Your Fence will, at its option and upon receiving proof of previous purchase of our Service, furnish an equivalent amount of all products required to re-stain the fence or door. This warranty is made to the original purchaser and is not transferable. This warranty excludes (1) labor and costs of labor for application or removal of any product or (2) any incidental or consequential damages, whether based upon breach of express or implied warranty, negligence, strict liability or any other legal theory (3) defects resulting from any action by you, including but not limited to mishandling, physical damage, water damage, improper repair by someone other than Stain Your Fence, use of any other product other than Stain Your Fence products, or unauthorized modification.
5.2. LIMITATION OF LIABILITY. THE LIMITED WARRANTY STATED ABOVE SETS OUT THE FULL EXTENT OF STAIN YOUR FENCE’S RESPONSIBILITIES, AND THE EXCLUSIVE REMEDY REGARDING WORK PERFORMED OR PARTS SUPPLIED BY STAIN YOUR FENCE IN CONNECTION WITH THE SERVICE PERFORMED AT YOUR PROPERTY. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED TO THE DURATION OF THE LIMITED WARRANTY OR THE SHORTEST PERIOD ALLOWED BY LAW. IN NO EVENT WILL STAIN YOUR FENCE BE LIABLE FOR DAMAGES IN EXCESS OF THE TOTAL AMOUNT DUE FOR THE SERVICE, INCLUDING WITHOUT LIMITATION, COMMERCIAL LOSS OF ANY SORT; LOSS OF USE, TIME, DATA, REPUTATION, OPPORTUNITY, GOODWILL, PROFITS OR SAVINGS; INCONVENIENCE; INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE DISCLAIMER OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. STAIN YOUR FENCE IS NOT LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL.
5.3. No Modification. No agent, employee, dealer, representative, or reseller is authorized to modify these Terms, to extend the Limited Warranty above, or to make binding representations or claims, whether in advertising, presentations, or otherwise, on behalf of Stain Your Fence regarding the Service.
Customer agrees it shall indemnify and hold harmless, to the fullest extent permitted by all applicable law, Stain Your Fence, its officers, agents and employees and its respective successors and assigns from, and, if requested, shall defend them against, and in respect of any and all liabilities, losses, fines, penalties, judgments, actions, interest, awards or costs, (including costs enforcing any right to indemnification), including reasonable attorneys’ fees based upon, arising out of or incurred as a result of our performance of the Services, regardless of the negligence of, and regardless of whether liability without fault is imposed or sought to be imposed on Stain Your Fence, except to the extent that such indemnity is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of these Terms, and except where such loss, damage, injury, liability or claim is the result of the active negligence or willful misconduct of Stain Your Fence and is not contributed to by any act of, or by any omission to perform some duty Page 5 of 6 imposed by law or agreement on Customer, its subcontractors or agent or employee.
The Parties shall utilize the following dispute resolution for any issues regarding these Terms or any matter related to the Service:
7.1. Mediation. The Parties agree that, except for injunctive or other immediate equitable relief, any dispute between them relating to these Terms, or the breach hereof, shall, if negotiations and other discussion fail, be first submitted to mediation in accordance with the provisions of the Home Construction Arbitration Rules and Mediation Procedures of the American Arbitration Association (“AAA”). The Parties agree to conduct the mediation in good faith and make reasonable efforts to resolve their dispute by mediation. The Commercial Mediation Rules of the AAA then in effect shall be applied. The Parties agree to conduct the mediation in San Antonio, Texas, or another mutually agreed upon location.
7.2. Arbitration. The Parties agree that, except for injunctive or other immediate equitable relief, after a mediation impasse, any dispute shall be subject to binding arbitration, in accordance with the provisions of the Home Construction Arbitration Rules and Mediation Procedures of the American Arbitration Association, and that judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be heard before one (1) arbitrator selected in accordance with the Commercial Arbitration Rules of the AAA then in effect shall be applied or as agreed to by the Parties. The Parties agree to conduct the arbitration in San Antonio, Texas, or another mutually agreed upon location.
7.3. Venue. The venue for any injunctive or other equitable relief or any dispute regarding arbitration shall be in the state or federal courts within Bexar County, Texas. Both Parties agree to waive any challenge to jurisdiction of the same.
7.4. Attorney Fees and Costs. The prevailing Party in any arbitration or litigation shall be entitled to recover from the other Party reasonable attorney and expert witness fees, court costs, and the administrative costs, fees, and expenses of the AAA, as the case may be, incurred in the same, in addition to any other relief that may be awarded.
8.1. Binding Effect. These Terms shall inure to the benefit of, be binding upon, and enforceable against, the Parties hereto and their respective successor, heirs, beneficiaries, and permitted assigns.
8.2. Headings. The headings contained in these Terms are for convenience of reference only and shall not affect in any way the meaning or interpretation of these Terms.
8.3. Notices. All notices, requests, demands, and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or by private overnight mail service (e.g., Federal Express) to the Party at the address set forth as follows:
If to the Stain Your Fence, to: Stain Your Fence, LLC
c/o Cristina Isget
5900 Balcones Dr
Suite 200
Austin, TX 78731
With Copy to:
Rosenblatt Law Firm, P.C.
c/o James D. Rosenblatt
16731 Huebner Road
San Antonio, Texas 78248
If to Customer, to:
The address of the Property
or to such other address as either Party or the Stain Your Fence may hereafter give notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the third business day after sending.
8.4. Waiver. The waiver by either Party of a breach of any provision of these Terms shall not operate or be construed as a continuing waiver of any subsequent breach by either Party. No waiver by either Party of any provision or condition to be performed shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or any prior or subsequent time.
8.5. Governing Law/Venue. These Terms shall be governed by the laws of the State of Texas without regard to its conflicts of laws principles. Mandatory and exclusive venue for any dispute regarding these Terms shall only be appropriate in San Antonio, Bexar County, Texas.
8.6. Severability. In the event any provision or provisions of these Terms is held to be invalid or unenforceable by any court of law or otherwise, the remaining provisions of these Terms shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included therein.
8.7. Jury Waiver. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HEREBY BOTH KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OUT OF OR RELATING TO THESE TERMS.