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. Fees are a program price, not a reimbursement of Agency’s staffing costs, and apply 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 on the date Client first signs or otherwise accepts this Agreement or a SOW that incorporates it (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 (the “Term”). Sections 3, 4, 7 (as to amounts owed), 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, and 22 survive the expiration or termination of this Agreement.

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 and one-half percent (3.5%) processing fee.
• Public-sector clients. Where Client is a government or public-sector entity whose procurement rules prevent payment in advance of services, Agency will accept net fifteen (15) day terms from the date of invoice, provided a fully executed agreement or purchase order is in place before Agency confirms staffing. Invoices are issued on the final day of service. All other provisions of this Section apply.
• 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.
• Added hours and scope authorization. Added hours, markets, staff, and expanded duties beyond those stated in the SOW are billable only if authorized by Client in advance in writing, including by change order, email, or text message to Agency’s account contact or on-site lead. Extended-hours rates on hours so authorized, and labor costs required by law under Exhibit A, are billable without further authorization, invoiced after the event, and due on receipt. Absent 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. Added hours on a scheduled event day authorized under Section 7 are billed as added hours and are not a change under this Section.
• 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 direct, supervise, discipline, or set the pay of Field Personnel except through Agency. Client’s hiring or engaging of Field Personnel is addressed in Section 19.
• 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 third party asserts that any Field Personnel are employees or joint employees of Client, Agency shall defend, indemnify, and hold Client harmless from the resulting claims, except to the extent the claim arises from Client’s own acts or omissions, including Client’s direction or control of Field Personnel, or from Client’s direct hiring or engagement of Field Personnel other than through Agency. Agency’s total liability for any claim of that kind, however pleaded (including as a breach of Section 10 or this Section or under Section 15), will not exceed the greater of (a) two times (2x) the fees paid by Client under the SOW or SOWs under which the Field Personnel at issue performed, or (b) the limits of Agency’s insurance available for the claim. This limit applies notwithstanding Sections 15 and 16.

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, including the site conditions and heat-safety measures described in Exhibit A, and for maintaining those premises in the condition required by the workplace safety and health rules that apply there.

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. Placement Fee

If, during the Term or within twelve (12) months afterward, Client, directly or through a third party, hires or engages any Field Personnel who performed services for Client under a SOW, other than through Agency, Client shall pay Agency a placement fee of $5,000 per person. The Parties agree this fee is a reasonable estimate of Agency’s recruiting, screening, and training investment and is not a penalty. Nothing in this Section restricts any Field Personnel from accepting work from Client or anyone else.

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.
• Notices. Formal notices under this Agreement, including notices of breach, termination, or claims, must be in writing and are effective when delivered by email with confirmation of receipt, by nationally recognized courier, or by certified mail. Notices to Agency go to Air Fresh Marketing, LLC, 1580 N. Logan St. Suite 660, Denver, CO 80203 (courier or certified mail) or hello@airfreshmarketing.com (email). Notices to Client go to the Client contact named in the applicable SOW or, if none is named, to the email address Client used to accept this Agreement. Cancellation and rescheduling notices under Section 8 may be given by email to Agency’s account contact and are effective on the day Agency receives them. Either Party may change its notice address by notice to the other. Operational communications, including authorizations under Section 7 and Exhibit A, may be given as those provisions state.
• 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 to Agency.
• Provide on-site orientation where applicable.
• Provide brand and training materials at least 72 hours before the event.
• Site conditions and heat safety. Agency remains responsible for its own heat illness prevention program, training, and supervision of Field Personnel. Where Client, or a venue or host at which Client’s program takes place, controls the event site, Client shall ensure the site provides Field Personnel free, readily accessible potable drinking water, access to shade or a cool area, and restroom access, and meets the site conditions required by the workplace safety and heat-illness rules that apply in that state, for example California’s outdoor and indoor heat illness prevention standards (Cal. Code Regs. tit. 8, §§ 3395 and 3396) and comparable rules in Washington, Oregon, Nevada, and Maryland. If Client does not provide these items, or asks Agency to provide them, Agency may purchase water, ice, shade, or other site supplies and bills the cost to Client at cost; doing so does not shift responsibility for the site to Agency. Where Agency controls the site under the SOW, Agency provides for staff welfare. Nothing in this paragraph gives Client direction or control over Field Personnel.

Rates and Billing

• Extended hours. Scheduled hours stated in the SOW are billed at the SOW rates regardless of their length. Hours worked beyond the scheduled hours are billed at 1.5x the hourly bill rate; any such hour that is also beyond the twelfth hour worked in a day is billed at 2x. Hourly bill rate means the hourly rate stated in the SOW or, for a day rate, the day rate divided by the scheduled hours. A day is the 24-hour period beginning when the shift starts. A new shift begins after a minimum of 8 hours between shifts. Holiday work not scheduled in the SOW is billed at 1.5x.
• Day rates. Where a SOW prices a flat day rate, the day rate is all-in for the scheduled hours stated in the SOW. If the SOW states no scheduled hours, a day rate covers up to 8 hours. Hours worked beyond the scheduled hours are billed under the Extended hours paragraph.
• Labor costs required by law. Any premium pay, penalty, or other labor cost that applicable law requires Agency to pay because of an event’s schedule, hours, or breaks is included in the SOW fees where it results from the schedule stated in the SOW, unless the SOW itemizes it separately. Where it results from hours, a run of show, or a staffing level that differs from the SOW, it is billed to Client as additional hours at the hourly bill rate for the number of hours on which the premium or penalty is measured. Amounts arising from a challenge to the classification of Field Personnel are not billed under this paragraph.
• Meal and rest breaks. Agency schedules meal and rest breaks for Field Personnel consistent with applicable law and event conditions. Where the event schedule, run of show, or staffing level set by Client does not allow a required break, Agency will notify Client and may bill a relief position at SOW rates, and any premium that results is billed under the Labor costs required by law paragraph as a cost that differs from the SOW.
• Authorization and records. Hours, staff, markets, or duties beyond those stated in the SOW are billable only if authorized by Client in advance in writing, including by email or text to Agency’s account contact or on-site lead. Extended-hours rates on hours so authorized require no separate authorization. A relief position billed under the Meal and rest breaks paragraph requires notice to Client, not separate authorization. Hours are billed from Agency timesheets and platform check-ins.
• Additional services. Services outside the SOW scope are billable at the rates quoted in a change order.
• 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, except that (a) public-sector clients pay on the terms in Section 7, and (b) amounts that Section 7 or this Exhibit provides are invoiced after the event (added hours, relief positions, labor costs required by law, expenses, site supplies, and change-order services) are due on receipt. ACH or wire transfer preferred. Credit card payments add a 3.5% 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