Agreement for Services

These terms of service are effective as of Oct.1.2023. THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICES.

These Terms govern the relationship between any person or entity (“Client”) who engages A-Train Marketing Communications, Inc. (“A-Train”) for any type of services or consulting. Client and A-Train are sometimes collectively referred to herein as the “Parties” and individually as a “Party.”

A-Train is a company providing professional services in the areas of branding, messaging, marketing strategy, consulting, graphic design, advertising, public relations, web and digital media, and other related Client services as outlined in the Project Summary (collectively, “Services”), and Client has engaged A-Train to render Services to Client in one or more of these areas.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:

  1. Client Engagement of A-Train. By signing a Project Summary with A-Train, the Client hereby engages A-Train to provide Services as Client requests from time to time and which A-Train agrees to provide for each such Client request. Unless Client and A-Train agree otherwise in a signed writing, these Terms govern Services provided by A-Train to Client without the need for a separate purchase order, Project Summary, or other document for Client projects.
  2. Services. The Services shall only be provided to Client if Client has requested or agreed to such Services and agreed to payment terms for said Services. Client agrees to comply with all reasonable requests of A-Train and shall provide A-Train’s personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services.
  3. Fees, Reimbursable Expenses, Estimates and Advance Deposits, Overtime Scheduling, and Invoicing.
    • 3.1 Fees. A-Train will charge fees (“Fees”) for its Services based on A-Train’s hourly rates in effect when the Services are rendered, and the hours required to perform and complete the Services. A-Train accounts for and bills its time in quarter-hour (15 minute) increments. A-Train typically adjusts its rates on an annual basis to reflect changing economic conditions and costs associated with producing Client materials. When A-Train increases its rates, A-Train will provide written notice to Client and thereafter charge Client at the adjusted rates.
    • 3.2 Reimbursable Expenses. A-Train reserves the right to charge and invoice Client for A-Train’s reimbursable expenses, including but not limited to printing, advertising, photography, stock photo/image acquisition and licensing, international telephone, postage, express courier, shipping, and travel expenses, including automobile mileage (collectively, “Expenses”). Expenses, as and to the extent billed, will be itemized on A-Train’s invoices to Client.
    • 3.3 Estimates and Advance Deposits. At Client’s request, A-Train will provide an estimate for Fees and Expenses anticipated for Client projects based on A-Train’s experience with projects of comparable difficulty and expected professional time incurred. A-Train will work diligently to stay within its estimate and will advise Client in advance of an anticipated overage or Client scope change which will increase A-Train’s Fees or Expenses over the provided estimate. Regardless of A-Train’s estimate, Client will pay for A-Train’s actual Fees and Expenses incurred as invoiced. In the event A-Train requests a deposit to invoice against Fees and Expenses to be incurred, Client shall remit the requested deposit upon A-Train’s invoice and A-Train will not commence its Services until it receives the deposit.
    • 3.4 Overtime Scheduling. A-Train will work diligently to adhere to Client’s scheduling requirements. In the event Client requests A-Train to complete projects on an accelerated timeline, A-Train will likely schedule overtime hours and/or additional personnel to adhere to Client’s accelerated schedule. At A-Train’s discretion, but subject to Client’s concurrence prior to A-Train commencing the requested accelerated work, A-Train will charge “rush” Fees based on Client’s requested turnaround time and the applicable scope of work.Overtime Scheduling. A-Train will work diligently to adhere to Client’s scheduling requirements. In the event Client requests A-Train to complete projects on an accelerated timeline, A-Train will likely schedule overtime hours and/or additional personnel to adhere to Client’s accelerated schedule. At A-Train’s discretion, but subject to Client’s concurrence prior to A-Train commencing the requested accelerated work, A-Train will charge “rush” Fees based on Client’s requested turnaround time and the applicable scope of work.
    • 3.5 Invoicing. A-Train will invoice Client for A Train’s Services and Expenses, including monthly retainers, on or about the last business day of each calendar month. All sums are due and payable in full no later than thirty (30) calendar days after the date that Client receives the invoice. A-Train reserves the right to charge interest on the unpaid balance of any invoice which is not timely paid in full within said thirty (30) calendar day period, at the lesser of eighteen percent (18%) per annum or the highest rate allowed by law. For certain reimbursable Expenses A-Train reserves the right to invoice Client up front or otherwise when they are incurred and require payment prior to or on delivery of the impacted collateral; any such invoices not paid before delivery will result in an eighteen percent (18%) handling fee. Client shall pay all invoices in U.S. Dollars.Upon request, A-Train may, but is not required, to produce a monthly, bi-monthly, or quarterly report of actual time spent on the project. In the event Client has any questions as to an A-Train invoice for Fees or Expenses, Client must contact A-Train’s Accounting Department not later than thirty (30) calendar days after the date that Client receives the invoice. A-Train reserves the right to suspend its Services at any time until any late payment is cured and paid in full.
    • 3.6 Backup Payment Method. Client agrees to place a primary payment method and backup payment method on file with A-Train. In the event that Client fails to make an on-time payment and/or Client’s primary payment method is declined or is returned for any reason, A-Train is authorized to take payment from Client’s backup payment method. A-Train may attempt Client’s backup payment method as soon as the payment has become late, and Client understands and agrees that payment will include any late or return fees.
    • 3.7 Collection of Past Due Balances. If payment becomes thirty (30) calendar days past due, A-Train reserves the right to engage a third-party debt collector of A-Train’s choice to pursue further collections on the unpaid balance.
    • 3.8 Suspension of Services. In addition the Terms outlined above, if any amounts due to A-Train become past due for any reason, A-Train may, at its option and without further notice, suspend its Services until all unpaid invoices have been paid in full, and such suspension of Services shall not be considered a breach or default of any of A-Train’s obligations under these Terms or the Project Summary.
  4. Client Responsibility for Client Materials and Use of A-Train Deliverables; A-Train Responsibility for A-Train Content.
    • 4.1 Client Responsibility. Client is responsible for and hereby assumes and undertakes, sole liability, in all respects, for all materials Client provides to A-Train for use by A-Train in performing the Services, including but not limited to proposed logos, designs, graphics, artwork, photographs, schemes, names, slogans, titles, textual content, and other items, whether Client or a third party creates or produces such materials (collectively, “Client Materials”), including ensuring that such Client Materials do not infringe upon or otherwise violate the intellectual property or other rights of third parties or applicable laws.Client is also responsible for and hereby assumes and undertakes sole liability, in all respects, for Client’s use of all A-Train work product and deliverables to Client resulting from A-Train’s Services (collectively, “Deliverables”) regardless of the extent to which the Deliverables utilize Client Materials or the Deliverables result from the convergence or combination of Client Materials with “A-Train Content” (as defined under “A-Train Responsibility” below), including ensuring that such Deliverables do not infringe upon or violate the intellectual property or other rights of third parties or applicable laws.Without limitation to Client’s responsibilities hereunder, Client understands that it is Client’s responsibility to: (i) engage qualified legal counsel to advise Client regarding Client’s obligations under this Section, including performing customary diligence on the Client Materials and Deliverables and Client’s use thereof, in all respects including as to intellectual property and infringement diligence; and (ii) obtaining written clearances or licenses as are necessary to lawfully use Client Materials and Deliverables, and strictly complying with any restrictions imposed thereby.
    • 4.2 A-Train Responsibility. A-Train is responsible for and hereby assumes and undertakes sole liability, in all respects, for textual content A-Train creates and delivers to Client strictly in the original, unedited form delivered to Client (“A-Train Content”), exclusive of any Party’s revisions or edits thereto, the convergence or combination of such A-Train Content with Client Materials, or the use of such A-Train Content in the Deliverables, including ensuring that such A-Train Content does not infringe upon or violate the intellectual property or other rights of third parties or applicable laws.
  5. Client Ownerships of Deliverables. Upon Client’s payment in full of A-Train’s Fees and Expenses incurred, all of A-Train’s copyright and other intellectual property rights in and to the A-Train Content and Deliverables under the United States Copyright Act of 1976, as amended, and all international laws, treaties and conventions, shall automatically be assigned and transferred solely and exclusively to Client.Unless and until all of A-Train’s Fees and Expenses have been fully paid, Client shall not be authorized to use or display the A-Train Content or Deliverables in any respect or for any purpose and the copyright and other intellectual property rights therein shall continue to be solely and exclusively owned and retained by A-Train. Such retention and ownership by A-Train shall not preclude A-Train from exercising its lawful rights to collect monies due and owing to A-Train under these Terms and/or a Project Summary.Client acknowledges and consents to A-Train using the Deliverables for A-Train’s marketing and promotional purposes, including in Client proposals, in A-Train’s project portfolio, and on A-Train’s website or other marketing channels or platforms.
    • 5.1 Treatment of Confidential Information. As used herein, the term “Confidential Information” means all confidential and proprietary technical, business, commercial, and other information furnished or disclosed by one Party to the other, including business and marketing data, plans, and strategies; proprietary formulas, methods, and processes; customer data and information; financial information; and materials and information deemed to be trade secrets under applicable law. A-Train and Client shall maintain in strict confidence the other Party’s Confidential Information and shall not disclose Confidential Information to third parties or copy, summarize, or use Confidential Information for any purpose except to perform their respective obligations herein.The obligations set forth in this Section do not apply to information that (i) is already properly known to the receiving Party prior to disclosure from the other Party; (ii) is developed by the receiving Party independently from disclosure by the other Party; (iii) subsequent to disclosure hereunder, is lawfully received by a Party from a third party having the right to communicate the information at issue; or (iv) the disclosing Party generally furnishes to others without confidentiality restrictions.In the event either A-Train or Client is required to produce Confidential Information of the other in connection with a judicial or governmental proceeding, the Party who is being requested to produce shall promptly communicate that to the other Party and shall limit disclosure of the other Party’s Confidential Information to the extent permitted by law in such proceeding.
  6. Terms and Termination. These Terms shall commence as of the effective date that the Project Summary is signed and shall continue until terminated as set forth in this Section. In general, these Terms and the relationship between the Parties may be terminated by either Party (i) for cause by reason of the other Party’s breach of its obligations hereunder, which breach remains uncured after sixty (60) calendar days written notice by the non-breaching Party, or (ii) without cause for convenience for any reason or no reason on sixty (60) calendar days prior written notice delivered to the other Party with the below exceptions. Cancelation terms for services may differ between categories of agreements and/or different types of services as outlined below.Client may not terminate Services under a Project Summary until all active projects agreed upon have been completed and paid for in full. Projects that may be considered “active projects” include work such as website design and build, strategy projects, content writing, consulting projects, graphic design projects, or others defined by A-Train.Cancelation terms for specific types of agreements and services are as follows:
    • 6.1 Cancelation terms for services including Search Engine Optimization (SEO), Text/Voicemail Campaigns, Social Media Services, Hyper-Targeting Campaigns, Social Influencer campaigns/services, and all other retained services are as follows:
      • 6.1.1 After the minimum agreed upon period stated in the Project Summary either Party may terminate the relationship between the Parties with or without cause with sixty (60) calendar days prior written notice, in accordance with the Terms. If neither Party provides written notice of cancelation of the Services, then the Services will continue to be automatically billed and the Services provided until notice of cancelation is given in accordance with the Terms herein.
      • 6.1.2 The Client agrees to continue its monthly fee-based billing payment during the sixty (60) calendar day termination period to complete work and ensure a smooth transition.
      • 6.1.3 The Client further agrees, if termination occurs, to pay A-Train for all or any overage hours above and beyond the hours covered by payments by the Client to date, at A-Train’s standard hourly billing rate.
    • 6.2 Website Maintenance
      • 6.2.1 Client understands that the website maintenance Project Summary has an initial 12-month term which commences effective the date that the Project Summary for work is signed. Client further understands that the Project Summary will continue thereafter until cancelled or changed by either Party. Sixty (60) calendar days prior written notice is required to cancel such Project Summary.
      • 6.2.2 Client further agrees, if termination occurs, to pay A-Train for all or any overage hours above and beyond the hours covered by payments by the Client to date, at A-Train’s established hourly rate, through the date of termination.
      • 6.2.3 Client understands that price and scope of work includes the items listed in the Project Summary. Client further understands that should a site issue arise (such as a malicious attack, a problem generated by someone in Client’s organization, etc.), it may not be covered under the maintenance Project Summary, and that A-Train will assess the situation and provide an estimate for approval in this situation. All work beyond the scope of monthly maintenance as outlined in a Project Summary will be bid and agreed upon by A-Train and Client before any additional work commences.
      • 6.2.4 By signing a Project Summary, Client agrees to hold A-Train, its employees and officers and any affiliates harmless in the event a malicious attack or site crashes occurs for any reason including and not limited to negligence on the part of A-Train, its employees, officers, or affiliates.
    • 6.3 Obligations Upon Termination
      • 6.3.1 Upon termination, the Parties shall pay and fully settle their respective accounts with each other for Fees and Expenses incurred up through the effective date of termination. Client shall also complete all reservations, contracts, and commitments and pay for all work-in-process and Expenses to third parties for non-cancellable commitments entered into by A-Train on Client’s behalf.
      • 6.3.2 Upon termination and Client’s payment of all items properly chargeable to Client, A-Train will reasonably cooperate in transferring the account to another agency.
      • 6.3.3 Upon termination, each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination.
  7. Indemnification
    • 7.1 Indemnification. Without limitation to a Party’s legal rights and remedies by reason of a breach of the other Party’s obligations under these Terms, each Party shall defend, indemnify, and hold harmless the other Party from and against any and all claims, liabilities, damages, settlements and expenses, including reasonable legal fees and costs (collectively “Damages”), arising from a third-party claim by reason of a Party’s breach of its obligations under these Terms.
    • 7.2 Procedure. In the event that a claim is made against a Party and such claim is one that is subject to indemnification by the other Party under the Indemnification section above, the Party which receives such claim shall provide prompt written notice to the Party responsible for indemnification as outlined above. The Party responsible for indemnification shall have and assume sole control over the defense and settlement of such claim at its own expense. The Party which originally received such claim shall also have the right to participate at its own cost in the defense of any such claim with its own legal counsel. The failure to provide prompt written notice shall relieve the Party responsible for the indemnification hereunder only to the extent that the failure prejudiced such Party in defending the claim.
    • 7.3 Exclusive Remedy. This Section sets forth the Parties’ exclusive rights and remedies in the event of a claim for indemnification under these Terms.
  8. HIPAA Compliance and Related Breaches. A-Train provides the Services to numerous clients, including those in healthcare-related fields that may be required to comply with HIPAA regulations. Client understands that though A-Train is trained in HIPAA compliance and attempts to follow all regulations, A-Train itself is not a healthcare provider and therefore cannot guarantee it understands and follows all HIPPA-related regulations. It remains Client’s sole responsibility to assure compliance with all HIPAA regulations and to inform A-Train of any potential breach of HIPAA regulations. Client agrees that in the event of a breach related to HIPAA-protected information, A-Train shall not be responsible for said breach or related damages.
  9. Warranty Disclaimer, Limitations on Liability. A-TRAIN EXPRESSLY DISCLAIMS ALL WARRANTIES AS TO A-TRAIN’S SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED. NEITHER PARTY SHALL BE LIABLE TO THE OTHER HEREUNDER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF ONE PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. A-TRAIN’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIM ARISING UNDER THESE TERMS AND/OR THE PROJECT SUMMARY SHALL NOT EXCEED A-TRAIN’S FEES PAID BY CLIENT FOR A-TRAIN’S HOURLY WORK FOR THE INDIVIDUAL CLIENT PROJECT WHICH GAVE RISE TO THE CLAIM.
    • 9.1 Cyber Attacks. Cyber-attacks are becoming increasingly popular amongst criminals to steal, expose, alter, or destroy assets via unauthorized access to information technology systems. A-Train adheres to the strictest security standards to protect against data breaches, service distributions, losses, and reputational damages. Despite such precautions, it is possible for A-Train to be a victim of a cyber-attack. As such, CLIENT AGRES TO HOLD A-TRAIN HARMLESS as it relates to information being attained through cyber-attacks which are no fault of A-Train, including but not limited to, (1) billing and banking information; (2) usernames, passwords, and other access to Client accounts; (3) proprietary information such as trade secrets, intellectual property, research, customer data, etc.; and (4) other such information such as pixel and cookie information gathered via Client websites or other online accounts.
  10. Governing Law; Jurisdiction. These Terms shall be exclusively governed by and construed in accordance with Colorado law without reference to any conflicts of law provisions. In the event of any litigation or alternative dispute resolution proceeding, such as arbitration or mediation, between the Parties and arising out of these Terms, the federal and state courts situated in Denver, Colorado, shall have sole and exclusive jurisdiction over such litigation, and such alternative dispute resolution proceeding shall be conducted solely in Larimer County, Colorado.
  11. Attorneys’ Fees. In the event A-Train incurs legal fees and expenses to collect its invoices for Fees and Expenses, Client shall reimburse A-Train for its reasonable attorneys’ fees and costs incurred. In the event of any other dispute between the Parties, the prevailing Party in such dispute shall recover its reasonable attorneys’ fees and costs from the non-prevailing Party.
  12. Relationship of the Parties. The relationship of the Parties hereto is that of independent contractors. Nothing in these Terms and/or any Project Summary, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties, or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
  13. Dispute Resolution. Any dispute arising out of or relating to these Terms or any Project Summary, including the alleged breach, termination, validity, interpretation, and performance thereof (“Dispute”) shall be resolved with the following procedures and shall not be shared publicly or privately either individually or via any social media or public review service with any third party prior to or after the commencement of mediation regardless of the result of said mediation. Any violation of this Section may result in the Client being held liable for any all damages caused to A-Train up to but not exceeding $15,000 per violation. Any Dispute Resolution shall follow the below steps:
    • A: Negotiation. Upon written notice of any Dispute, the Parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within thirty (30) calendar days (the “Negotiation”).
    • B: Mediation. If the dispute has not been resolved by Negotiation in accordance with the above paragraph, then the Parties shall proceed to mediation unless the Parties, at the time of the dispute, agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. All Parties agree, by agreement to these Terms, to use whatever fair and unbiased mediator may be mutually selected by the Parties, or by submitting to a randomly selected mediator through a mediation program. The mediation session shall be held within forty-five (45) calendar days of the retention of the mediator (or as reasonably soon thereafter based on the mediator’s availability), and last until a mutual agreement can be met. All reasonable efforts will be made to complete the mediation within thirty (30) calendar days of the first mediation session. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until thirty (30) calendar days after the parties agree that the mediation is concluded. Each side shall bear an equal share of the mediation costs unless the Parties agree otherwise. All communications, both written and oral, during the dispute resolution process are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.
  14. General.
    • 14.1 Event of Force Majeure. Except for Client’s payment obligations hereunder, neither Party will be liable for a delay or default in the performance of such Party’s obligations under these Terms if such delay or default is caused by conditions beyond such Party’s control, including an act of God, government restriction, war, terrorism, strike, fire, flood, global or national health emergency or pandemic, or work stoppage or embargo. In the event of a force majeure event, the Party will use commercially reasonable efforts to resume performance of their respective obligations upon cessation of such force majeure event.
    • 14.2 Entire Agreement. These Terms, together with any applicable Project Summary, constitutes the complete and entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements, or representations between the Party, written or oral.
    • 14.3 Amendment and Waiver. No modification, amendment, or waiver of any provision of these Terms shall be effective unless such modification, amendment, or waiver is in a writing signed by all Parties. The failure of any Party to enforce any of the provisions herein shall not be construed as a waiver of such provisions and shall not affect the right of such Party thereafter to enforce each and every provision herein in accordance with its terms.
    • 14.4 Severability. In the event any provision of these Terms shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited, or unenforceable for any reason, such provision shall be ineffective without invalidating the remaining provisions of these Terms.
    • 14.5 Assignment. A-Train may subcontract its obligations and rights to a third party.
    • 14.6 Successors and Assigns. These Terms shall bind and inure to the benefit of and be enforceable by the Parties hereto and their permitted successors and assigns. Client shall not assign these Terms or its obligations hereunder. These Terms are not intended to and do not create any third-party beneficiaries.
    • 14.7 Notices. All notices or other communications under these Terms shall be in writing and shall be delivered personally, sent by express courier, or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Party at the following addresses (or at such other address as shall be specified by any Party by like notice):
      • If to A-Train:
        A-Train Marketing Communications, Inc.
        Attn: Chief Executive Officer
        155 E. Boardwalk Dr., Ste. 400
        Fort Collins, CO 80525
      • If to client, to the billing address Client has provided to A-Train as set forth in A-Train’s records. All such notices and other communications shall be deemed to have been given and received (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of delivery by overnight courier, on the business day following dispatch, and (iii) in the case of mailing, on the third business day following such mailing.
    • 14.8 Construction. The section titles and other captions of these Terms are for convenience only and do not constitute a part of these Terms. The word “including” as used herein also means “including without limitation” and words of similar import. Any legal or other equitable principle that requires the interpretation of these Terms or any provision herein against the Party drafting these Terms shall not apply in any interpretation hereof.
    • 14.9 Survival. Each term and provision of these Terms that should by its sense and context survive any termination or expiration of any relationship between the Parties, shall so survive regardless of the cause and even if resulting from the material breach of either Party to these Terms and/or Project Summary.
  15. Privacy Policy. A-Train has adopted a privacy policy that is posted on the following web address: https://atrainmarketing.com/privacy-policy/.The privacy policy may be updated periodically in order to reflect changes to our practices or for other operational, legal or regulatory reasons.

By signing these Terms and/or a Project Summary, A-Train and Client hereby represent each for its own account that it is duly authorized to execute, deliver, and perform these Terms and that the person executing these Terms on behalf of A-Train and Client is duly authorized to execute these Terms on such Party’s behalf.

 

Contact Us