Terms and Conditions

1. Parties and Agreement

This Program Agreement (“Agreement”) is entered into between the client (“Client”) and Air Fresh Marketing, LLC (“Agency”). Agency provides experiential marketing, event staffing, and event execution services to Client. The services for any engagement are described in one or more Statements of Work (“SOW”) together with the standard terms in Exhibit A, each of which is incorporated into this Agreement. The Parties agree as follows.

2. Services

Agency will provide the experiential marketing and event execution services described in the applicable SOW. Additional SOWs may be executed and attached over time. Agency performs the services as an independent contractor and controls the means and methods by which the services are performed.

Client engages Agency to plan, manage, and execute an experiential marketing program. Agency’s compensation is for that program and the related services as a whole, including strategy, coordination, staffing, management, and execution. It is not a pass-through of staffing payroll, and it applies whether or not field staff are deployed for a given engagement.

3. Nature of Services; No Guaranteed Results

Agency’s services drive brand awareness, consumer engagement, and top-of-funnel activity. Agency does not guarantee, and Client does not rely on any guarantee of, any specific result, including lead volume, data captures, samples distributed, impressions, sales, conversions, or return on investment. Staffing and hours are sold as a committed program block, not as à la carte units, and are not measured or refunded on a per-result basis. Provided Agency delivers the staffing and execution described in the SOW, Client’s dissatisfaction with results, lead volume, or engagement is not a defect in the services, a breach by Agency, or grounds for a refund, credit, chargeback, or withholding of payment.

4. Performance and Make-Good

Agency will deliver the staffing and execution described in the applicable SOW. If Agency fails to deliver a material portion of the contracted staffing or hours due to Agency’s own fault, Client shall promptly notify Agency, and Agency shall have a reasonable opportunity to cure, including by completing, rescheduling, or restaffing the affected services. If a cure is not practical, Client’s sole and exclusive remedy is a make-good in the form of replacement services or a credit equal to the value of the undelivered portion, to be used within four (4) months. Cash refunds are provided only at Agency’s election. Reductions in delivery caused by Client, by a Force Majeure event, or by conditions outside Agency’s reasonable control are not Agency shortfalls under this Section.

5. Representations and Warranties

Each Party represents and warrants that (a) it has the legal authority to enter into this Agreement; (b) it has the right to grant the licenses contained herein; (c) its execution and performance will not breach any other agreement by which it is bound; and (d) it will comply with all applicable laws, regulations, and ordinances in performing under this Agreement.

6. Term

This Agreement is effective as of the Effective Date and continues until the services under all active SOWs are completed and Agency has been paid in full, unless earlier terminated under Section 9.

7. Compensation and Payment

Fees. Client shall pay the fees stated in the applicable SOW and Exhibit A.
Prepayment. Unless a SOW states otherwise, one hundred percent (100%) of fees are due and payable before the services begin. Agency is not obligated to begin work until payment is received.
Payment method. ACH or wire transfer is preferred. Payments made by credit card are subject to a three percent (3%) processing fee.
Credit card authorization. Where a credit card is on file, Client authorizes Agency to charge that card for amounts due under this Agreement and the applicable SOW. Client certifies that the signer is an authorized user of the card and agrees not to dispute or charge back any amount that corresponds to the terms of this Agreement.
Overtime and scope authorization. Overtime, additional hours, added markets or staff, and expanded duties are billable only if authorized by Client in writing in advance, including by change order or written approval. Absent such authorization, Agency bills the staffing and hours stated in the SOW.
Billing records. Hours worked are billed based on Agency’s records, including timesheets and platform check-ins, which are the basis for billing absent clear evidence of error.
Deposits. Deposits are earned by Agency upon receipt, in consideration of staffing and organizational efforts, and are non-refundable.
Taxes. Amounts paid to Agency are exclusive of taxes. Agency is responsible for its own income taxes. Agency is not Client’s employee, and Client will not withhold any taxes from amounts paid to Agency.
Expenses. Client shall reimburse expenses as set out in the applicable SOW and Exhibit A and, subject to Client’s prior written approval, any unusual or extraordinary expenses.
Late and declined payments; collection costs. Overdue or declined amounts accrue a late charge of the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, from the due date until paid. If Client fails to pay and the matter is referred to a third-party collection agency, attorney, or other collection effort, Client agrees to pay, in addition to the amount owed, all costs of collection, including the collection agency’s fees and commissions (including any contingency percentage the agency charges), court costs, and reasonable attorneys’ fees. This collection-cost obligation is an express exception to Section 21.

8. Cancellation, Rescheduling, and Refunds

This Section sets the single cancellation, rescheduling, and refund regime for all engagements and controls over any inconsistent statement elsewhere in this Agreement, any SOW, or Exhibit A, unless a SOW expressly references and modifies these terms.

Binding upon signature. Once Client signs or otherwise accepts this Agreement or a SOW, including by electronic signature or clicked confirmation, Client is bound and obligated to pay the fees, whether or not Client has made any payment yet and whether or not Client later decides not to proceed. A decision not to proceed, including immediately after signing, is a cancellation governed by this Section and does not release Client from the resulting payment obligation. There is no cooling-off period.
Rescheduling (7 or more days’ notice). There is no cancellation for convenience. If Client gives seven (7) or more days’ written notice before the scheduled event start, the program may be rescheduled, and fees paid are held as a credit toward the rescheduled program. The rescheduled program must take place within four (4) months of the original date. Any credit not used within four (4) months is forfeited.
Cancellation (less than 7 days’ notice). If Client cancels, or reduces headcount or scope, less than seven (7) days before the scheduled event start, one hundred percent (100%) of the total contract fees for the cancelled or reduced services are due and payable, with no credit and no reschedule.
Changes and change orders. Changes to event dates, times, locations, or staffing are handled by change order. A change fee of $500 applies as a minimum; larger or last-minute changes may require additional fees depending on the project, plus any incremental costs.
Cancellation by Agency. If Agency cancels the services other than due to a Force Majeure event or Client’s breach, Agency will refund amounts paid by Client for the cancelled services.
Refunds. Deposits are earned on receipt and are non-refundable. Except for a refund by Agency under this Section, fees are earned as set out above and are non-refundable.

9. Termination

Either Party may terminate this Agreement or any SOW for a material breach by the other Party that is not cured within thirty (30) days after written notice. Upon termination, Client shall pay Agency for all services performed and all fees earned through the effective date of termination, determined under Section 8. Termination does not relieve Client of payment obligations already accrued or earned, including under the cancellation schedule.

10. Personnel and Classification

Agency is solely responsible for sourcing, screening, engaging, scheduling, and directing the personnel who perform the services (“Field Personnel”). Drug testing and background checks are available on request at Client’s additional cost.
Field Personnel are engaged by Agency as independent contractors. To the extent any Field Personnel must be treated as employees under applicable law, they are W-2 employees of Agency. In all cases, Field Personnel are personnel of Agency and are not employees of Client.
No employment or joint-employer relationship is created between Client and any Field Personnel. Client does not control the means and methods of the work and shall not hire, direct, supervise, discipline, or set the pay of Field Personnel except through Agency.
Agency is responsible for the arrangements applicable to its Field Personnel consistent with their classification, including, for any W-2 employees of Agency, applicable payroll taxes, unemployment insurance, and workers’ compensation as required by law.

11. Independent Contractor; No Joint Employer

Agency’s relationship to Client is that of an independent contractor. Nothing in this Agreement, any SOW, or any invoicing terms creates a joint venture, partnership, general agency, or joint-employer relationship. Agency has exclusive control of the means and methods of the services and independently manages its Field Personnel. Agency has no authority to bind or create obligations for Client without Client’s prior written authorization. If any governmental agency or other person challenges the independent contractor status of Agency or any Field Personnel, or asserts that any Field Personnel are employees of Client, Agency shall defend, indemnify, and hold Client harmless from the resulting claims, except to the extent such claim arises from Client’s own direction or control of Field Personnel in breach of this Agreement.

12. Confidentiality

Each Party agrees not to disclose or use the other Party’s confidential information during or after the Term, except as needed to perform under this Agreement. This obligation does not apply to information that (a) is or becomes public other than through the receiving Party’s breach; (b) is received from a third party entitled to disclose it; or (c) was already in the receiving Party’s possession without a confidentiality obligation. Each Party will protect the other’s confidential information with at least reasonable care.

13. Force Majeure

Each Party’s performance is excused during a Force Majeure event, meaning an unforeseeable event beyond the Party’s reasonable control that makes performance commercially impracticable or illegal, such as the closure or destruction of the facility. Weather-related transportation difficulties are not a Force Majeure event permitting cancellation by Client. Services cancelled due to Force Majeure will be rescheduled as soon as practicable where possible.

14. Insurance

Throughout the Term, Agency maintains, at its expense: (a) Commercial General Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, covering premises, operations, independent contractors, products, completed operations, and personal and advertising injury; and (b) Workers’ Compensation insurance as required by applicable law for Agency’s W-2 employees, together with Employer’s Liability insurance of not less than $1,000,000 per occurrence. Independent contractor Field Personnel are responsible for their own coverage. On request during the Term, Agency will provide a certificate of insurance and, where commercially available and applicable, name Client as an additional insured on the Commercial General Liability policy. Agency will notify Client if required coverage is cancelled or materially changed.

15. Indemnification

Each Party will indemnify, defend, and hold harmless the other Party and its officers, directors, employees, and agents from third-party claims, losses, liabilities, and expenses, including reasonable attorneys’ fees, to the extent arising from the indemnifying Party’s negligence, willful misconduct, or breach of this Agreement. The independent-contractor indemnity in Section 11 and the product indemnity in Section 17 apply in addition to this Section. The indemnified Party shall promptly notify the other of any claim and allow the indemnifying Party to control the defense, with the indemnified Party’s reasonable cooperation.

16. Limitation of Liability

Except for (a) Client’s payment obligations, (b) a Party’s indemnification obligations, and (c) a Party’s breach of confidentiality, neither Party’s total cumulative liability arising out of or related to this Agreement will exceed the fees paid by Client to Agency under the applicable SOW. In no event will either Party be liable for indirect, incidental, special, consequential, or punitive damages, or for lost profits or lost business, whether based in contract, tort, or any other theory, even if advised of the possibility.

17. Client Products, Samples, and Premises

Client warrants that its products, samples, packaging, and materials provided for the program are safe, lawful, and compliant with all applicable laws and regulations, and that Client holds all rights and approvals to distribute them. Client is responsible for all claims arising from its products, samples, or materials, including product liability, and for obtaining any required licenses and permits, including liquor or alcohol licensing for any alcohol sampling or service, unless Agency expressly assumes a specific responsibility in a SOW. Client shall defend, indemnify, and hold Agency harmless from claims arising from Client’s products, samples, materials, or required licenses. Where services are performed at premises controlled by Client or a venue, Client is responsible for safe conditions and lawful access at those premises.

18. Intellectual Property, Content, and Data

Each Party retains all right, title, and interest in its own pre-existing intellectual property, including its trademarks, trade names, methodologies, tools, and platforms. Upon full payment, Client owns the deliverables Agency creates specifically for Client under a SOW. Agency retains its pre-existing and general know-how, methods, and platform.

Each Party recognizes the other’s (and the other’s clients’) service marks, trademarks, and trade names and will not contest, impair, or apply for confusingly similar marks. Unless a SOW states otherwise or Client objects in writing, Agency may identify Client by name and logo and may feature the engagement as a case study, reference, or example of its work in its portfolio, website, and marketing, including event photographs, video, and non-confidential descriptions of the campaign. Agency will not disclose Client’s confidential information in doing so. Client is responsible for obtaining any consumer, talent, or other third-party likeness, music, or other releases and licenses required for Client’s own use of event content.

Consumer data captured at events on Client’s behalf belongs to Client. Each Party will comply with applicable privacy and marketing laws. Agency is not responsible for Client’s use of consumer data after delivery.

19. Non-Solicitation of Field Personnel

During the Term and for twelve (12) months afterward, Client will not, directly or indirectly, solicit or hire any Field Personnel except through Agency. If Client hires any Field Personnel in breach of this Section, Client shall pay Agency a placement fee of $5,000 per person.

20. Assignment

Neither Party may assign this Agreement without the other’s prior written consent, except that Agency may use subcontractors and Field Personnel to perform the services and remains responsible for services performed by its subcontractors. This Agreement binds and benefits the Parties’ permitted successors and assigns.

21. Governing Law; Venue; Jury Waiver; Fees

This Agreement is governed by Colorado law, without regard to its conflicts of law principles. Venue for any action lies in Denver, Colorado, and the Parties consent to personal jurisdiction there. The Parties waive any right to a jury trial. Except for Agency’s right to recover collection costs and attorneys’ fees under Section 7, and except as provided in the indemnification provisions, each Party bears its own attorneys’ fees and costs.

22. Miscellaneous

No implied waiver. A Party’s failure to enforce any provision is not a waiver of its right to enforce that provision later.
Time to bring claims. Any claim arising out of or related to this Agreement must be brought within one (1) year after the event giving rise to the claim, except for payment obligations and except where a longer period is required by law.
Severability. If any provision is unenforceable, it will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions remain in full force and effect.
Headings. Headings are for reference only and do not affect interpretation.
Signatures and electronic acceptance. This Agreement may be executed in counterparts and by electronic signature, including by clicked confirmation, each of which has the same effect as an original.
Order of precedence; entire agreement. This Agreement, together with the applicable SOW and Exhibit A, is the entire agreement between the Parties and supersedes all prior discussions and agreements. It may be amended only in a writing signed by both Parties. In case of conflict, an executed SOW controls over Exhibit A, and Exhibit A controls over the main body for the specific terms it addresses, except that Sections 8 and 10 control over any inconsistent SOW or Exhibit A language unless a SOW expressly modifies them.

Exhibit A — Standard Staffing Services Terms

Objective

Agency delivers qualified event staffing and execution services as described in individual SOWs.

Agency Obligations

Provide qualified Field Personnel for event teams.
Communicate all event details to Field Personnel.
Develop day-of production schedules, deliverables, timing, and reporting.
Provide Field Personnel meeting general qualifications:
- 1+ years of relevant experience
- Reliable transportation, cell phone, and internet access
- Friendly, approachable, and articulate
- Strong time management and organization
- Good communication and presentation skills
- Able to stand for 4+ hours
- Flexible schedule including nights, weekends, and some holidays
- Able to work in varied weather
- Able to lift and carry at least 25 lbs.
- Able to multitask and prioritize

Client Obligations

Provide clear communication and direction.
Provide on-site orientation where applicable.
Provide brand and training materials at least 72 hours before the event.
Where Client is on site and directing the activation, Client should provide Field Personnel reasonable access to water and breaks as event conditions require. Where Client is not on site, Agency manages staff welfare using its best judgment.

Rates and Billing

Overtime. Hours over 40 per work week (Monday through Sunday) are billed at 1.5x the applicable rate, except where state law requires otherwise. A new shift begins after a minimum of 8 hours between shifts. Holiday work is billed at 1.5x. Field Personnel receive appropriate breaks as the event permits.
Authorization and records. Overtime, added hours, markets, staff, or duties are billable only if authorized in writing in advance. Hours are billed from Agency timesheets and platform check-ins.
Additional services. Services outside the SOW scope are billable at $150 per hour.
Expenses. Parking and approved expenses are billed to Client. Mileage is reimbursed at the IRS standard business mileage rate in effect at the time of the event.
Payment. One hundred percent (100%) payment is required before the project begins. ACH or wire transfer preferred. Credit card payments add a 3% processing fee.

Cancellation, Rescheduling, and Changes

These terms mirror Section 8 of the Agreement.

Seven (7) or more days’ notice before event start: no cancellation; the program may be rescheduled and fees apply as a credit toward the rescheduled program, which must occur within 4 months or the credit is forfeited.
Less than seven (7) days’ notice before event start: 100% of the total contract fees are charged, with no credit and no reschedule.
Changes are handled by change order: $500 minimum change fee, scaled by project, plus any incremental costs. Reductions in headcount or scope follow the cancellation rule above.

Contact Information

For questions about these Terms and Conditions, please contact us:

Air Fresh Marketing, LLC
1580 N. Logan St. Suite 660
Denver, CO 80203
Phone: (303) 720-6060
Email: hello@airfreshmarketing.com