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Our terms of serviceTo help us work and communicate efficiently.

When you hire Studiothink, these terms and conditions (these “Terms”) govern our relationship by setting out rules and procedures to help us work and communicate efficiently. By accepting one of Studiothink’s proposals, you create a legal agreement between you and Studiothink where these Terms and those terms set out in that Proposal will apply.

1 Reading these Terms

1.1 Basic Definitions

Let’s get some simple definitions out of the way first, to help you read these Terms. References in these Terms to “you” and “your” of course are references to you—our client—and bind the person on whose behalf you are agreeing to these terms (for example, if the person who agrees to these Terms does so in representation of a company, that company is bound by these Terms). “Studiothink”, “we”, “us”, and “our” all are words referring to 514085 B.C. Ltd., which is a British Columbia limited company carrying on business as Studiothink.

The “Proposal” means the proposal for Studiothink to provide you with certain services in relation to which you are accepting these Terms. It is not a reference to a Rom-Com.

If these Terms ever reference this “agreement”, that reference means the terms of any proposal you accept when read with these Terms, along with any subsequent changes we agree to with you from time to time. The date of reference of this agreement will be the date you accept a particular proposal. Each time we send you a new proposal, and you agree to that new proposal, these Terms will govern that new proposal.

1.2 Technical Definitions

Our lawyer wrote some more technical definitions which also apply to these Terms because they’re apparently important. You’ll find those definitions near the end of these Terms. If you see a capitalized word in these Terms which is not a proper noun, it’s because that word has an expanded meaning and is defined somewhere in the body between quotation marks or in the definitions section.

2 Hiring Studiothink

You agree to hire Studiothink to provide you with those services described in the Proposal (the “Services”), which could include website development, branding, digital marketing, website maintenance and support, or other marketing services related to marketing you. If any terms in the Proposal conflict with these Terms, the terms of the Proposal will govern.  

3 Changes and Delays

3.1 Change Orders

While providing the Services, you might change your mind about certain decisions you made—that’s totally fine, but we have a procedure for recording those changes to make sure that there are no cost surprises. If you’d like us to make a change to the Services, you agree to write to us proposing the changes to be made (a “Change Request”). After receiving the Change Request, we will determine the financial and scheduling impact the changes will have, if any, and any necessary modifications to the Services the proposed changes require, and will deliver the proposed changes to the Services, our fees, and the scheduling (a “Change Order”) to you for review and approval. A Change Order will only modify the terms of the Proposal after you have approved of it. We may rely on any approval of a Change Order where approved by signed agreement, emailed acceptance, approval submitted through Studiothink’s customer relationship management utility, or other manner that evidences an intention by you to provide that approval. Once you have approved the Change Order, the Proposal will be deemed amended to include the terms of the Change Order.

3.2 Delays

If you don’t deliver to us content, specifications, feedback, or approvals we request by the deadline we request that information, we may extend by a reasonable period any established timelines for delivery of the Services upon notice to you.

4 Payment

4.1 Deposit

Before we start work on the Proposal, we require that you pay a deposit in the amount specified in the Proposal. This payment is non-refundable except where we are unable to begin providing the Services to you.

4.2 Value-Added Taxes

All quotes and pricing excludes applicable value-added taxes such as Goods and Services Tax. You will be responsible for paying all taxes applicable to our fees.

4.3 Invoicing

On one or more occasions while providing the Services, we will send you an invoice for amounts owing under the Proposal. Those invoices are due upon receipt and payable within 15 days of delivery.

4.4 Late Payments

Interest will accrue on outstanding amounts at a rate of 2% per month, compounded monthly (effectively, 26.8% per annum). If payment for an invoice becomes outstanding, we may pause in providing the Services until you pay the required amount.

4.5 Milestones

The Proposal might describe events or actions marking the achievement of particular stages of the Services (each being a “Milestone”) and may specify fees due after achieving those Milestones. Once you’ve approved the Services or deliverables at a particular Milestone, the fees associated with that Milestone become earned, and we may issue an invoice for these fees in accordance with these Terms.

4.6 Method of Payment

You agree to pay all amounts payable under this agreement by any of the following ways, in your discretion:

  1. by credit card payment processed on the payment processing service used by Studiothink;
  2. by cheque made out to “Studiothink” and delivered to:

    Studiothink
    Attn: Accounts Receivable
    5828 176 Street, Suite 200, Surrey, BC V3S 4E2
  3. by electronic funds transfer using information Studiothink provides.

5 Acceptance Testing & Feedback

5.1 Incremental Acceptance Tests for Work Product

On one or more occasions, we might provide you with items within the Work Product or deliverables for the purpose of reviewing, testing, or otherwise obtaining feedback. In doing so, we will give you a reasonable period of time (the “Acceptance Testing Period”) to evaluate the Work Product or deliverables to ensure they conform to the specifications set out in the applicable Proposal or approved Change Order (the “Acceptance Criteria”). During the Acceptance Testing Period, you may evaluate and use in a testing environment the Work Product delivered for your feedback. The Acceptance Testing Period will be suspended during periods where we are attempting to correct any deficiency, and you will have a reasonable period to conduct re-testing following each delivery of a correction. If you do not approve or reject the Work Product during the Acceptance Testing Period, you will be deemed to have approved the Work Product.

5.2 Website Pre-Live Testing

If the Services include website development, you and Studiothink will start testing the website in a non-publicly accessible testing environment to identify any defects in the website (the “Pre-Live Testing”) on a date to be agreed upon between you and Studiothink. We will give you a reasonable period of time (the “Pre-Live Testing Period”) to conduct Pre-Live Testing to determine whether the website operates in accordance with the Acceptance Criteria, including the following:

  1. Functionality Testing—you will test the website for functional capabilities and characteristics;
  2. Integration Testing—you will test the website for integration by testing the information flows to and from the website and between and among any interrelated modules or features of the website;
  3. Stress Testing—you will subject the website to load testing by transmitting and processing high-volume operational data in a simulated environment to verify the website can process unanticipated volumes of data.

If any defects are discovered as a result of Pre-Live Testing, we will correct those defects as soon as practicable. When all defects identified during Pre-Live Testing have been corrected, you will let us know and the website will be deemed ready for live testing. If you do not provide us feedback in the Pre-Live Testing Period, the website will be deemed to have completed the Pre-Live Testing.

5.3 Website Live Testing

If the Services include website development, you will have a period of 30 days (the “Live Testing Period”) following successful completion of Pre-Live Testing to test the website under actual, everyday operating conditions to assess whether the website operates in accordance with the Acceptance Criteria. We will correct any defects discovered during the Live Testing Period as soon as practicable. During the Live Testing Period, you must review the website in its entirety and if in that period you fail to approve, or fail to notify us of defects in relation to, any particular function of the website, at the expiration of the Live Testing Period you will be deemed to have approved of website. If you notify Studiothink of any Critical Defects or Medium Defects after expiration of the Live Testing Period which you could have discovered with reasonable diligence during the Live Testing Period but which were not discovered or no notice of their discovery was provided to us, that reporting of a Critical Defect or Medium Defect by you will be deemed a Change Request made under section 3. If you report a Critical Defect or Medium Defect inside the Live Testing Period which we reasonably determine was not caused by us (e.g. if you made a change to the coding without our approval), your request to remedy that defect will be deemed a Change Request made under section 3.

5.4 Website Defect Correction

If any defects are discovered during the Pre-Live Testing Period or Live Testing Period, you will report those defects to us and we will correct those defects as soon as practicable. If you do not accept or reject a corrected defect within 10 days of delivery, you will be deemed to have accepted the correction to that defect. Successful Live Testing will be deemed to occur (“Website Acceptance”) when; (a) all Critical Defects and Medium Defects identified during the Pre-Live Testing Period or Live Testing Period have been corrected; and (b) the website has been operating 10 consecutive days without experiencing any Critical Defects or Medium Defects.

6 Online Properties and Data Usage

6.1 Access to Accounts

At our request you agree to provide us with such administrator access to your online properties as we may deem necessary for implementation of the Services, including without limitation: (1) website content management system (e.g. WordPress); (2) Google Analytics; (3) Google and social media ad accounts; (4) domain registrar (5) third party integration accounts; (6) image and document libraries; and (7) hosting and FTP servers.

6.2 Changes to Online Properties

If in the course of the Services you make any changes to your website, hosting, or social media accounts that could reasonably disrupt or influence the Services, you will notify us of those changes at least 2 business days before implementing them.

6.3 Access to Third Party Websites and Applications

You acknowledge that we have no control over Facebook, Google, LinkedIn, or any other third party website, application, or other resource involved or used in connection with the Services (“Third Party Resources”), and that those resources might have technical difficulties, might cancel or terminate certain programs, block certain data, or change their terms of services. You acknowledge that the use and access to Third Party Resources might be subject to certain terms and conditions, privacy policies, and other requirements imposed by those sites (collectively, “Third Party Terms”). Third Party Terms might govern and impact your access to Third Party Resources, as well as the use and provisions of the Services. Third Party Terms might also include obligations and restrictions on your collection, possession, handling, transfer, and use of any data collected or generated in connection with a Third Party Site. You and Studiothink will each materially comply with all applicable Third Party Terms and will indemnify and save harmless one another from any claims or damages arising as a result of any material breach by you or Studiothink of Third Party Terms.

6.4 Data Security and Storage

We will use, store, transfer, and process the Work Product, Client Content, and Client IP with technical and organizational security measures that are no less secure than those measures taken with Studiothink’s own digital assets. You acknowledge and consent to us transferring, storing, and processing the Work Product, Client Content, and Client IP on servers located in Canada and the United States.

6.5 Accessing Data in Performance Marketing Accounts

If reasonably required to perform the Services, you will provide us with access to Usage Data in accordance with section 6.1. We may not use Usage Data except as authorized under these Terms or otherwise consented to in writing by you. You will ensure that your websites include an adequate privacy statement and, where required by law, an opt-in consent mechanism to permit us to access Usage Data. You will ensure that you have all necessary rights to allow us to use Usage Data in connection with the Services. 

We may use Usage Data:

  1. to compile aggregate statistics, metrics, and general trend data for the enhancement and optimization of your media, the Services, or services rendered to other of our clients; and
  2. in an anonymous database used for trending, analytics, targeting, and media planning purposes for you and other of our clients.

We may collect the Usage Data for the purposes set out above in this section 6.5 until this agreement terminates or otherwise until our access to your online marketing accounts terminates. After termination, we may not collect any further Usage Data.

6.6 Data Protection in the European Economic Area

If you are or become established in the European Economic Area or in a country outside of the European Economic Area with processing activities impacting individuals located in the European Union, we will execute your standard form Data Processing Agreement.

6.7 Data Protection in California

For the purpose of the California Consumer Privacy Act (the “CCPA”), you and Studiothink agree that:

  1. all underlined words in this section 6.7 will have the meanings given to them in the CCPA;
  2. if you provide us with Personal Data (defined below), we will be deemed a Service provider;
  3. you might provide to us information that identifies, relates to, describes, is capable of being associated with, or could reasonable be linked, directly or indirectly, with a particular Consumer or household (that information, “Personal Data”);
  4. any Personal Data you provide to us is provided solely for a Business purpose, being our performance of the Services; and
  5. we may not:
    1. sell any Personal Data;
    2. retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the Services;
    3. retain, use, or disclose Personal Data for a Commercial purpose other than providing the Services;
    4. retain, use, or disclose Personal Data outside of the direct business relationship between you and Studiothink under these Terms.

We hereby certify that we understand the restrictions under this section 6.7 and will comply with them.

7 Intellectual Property

7.1 Intellectual Property Rights Reserved until Final Payment

We will be the first owner of all ownership and intellectual property rights existing in the Work Product under a Proposal. However, after you have paid all fees applicable to that Proposal, we will assign all ownership and intellectual property rights in the Work Product to you or your designated nominee as of the date you paid the last amount owing under the Proposal, and we will sign such reasonable documents you request to evidence that assignment. Until you have paid all fees relating to the creation of Work Product under the Proposal, you will have a revocable, exclusive (except as to our use for fulfilling our obligations under this agreement or as otherwise reserved in these Terms) licence, with no right to grant sublicenses, to use and test the Work Product on our servers or development platforms. Until all fees under the Proposal are paid, you will not be able to obtain full copies of all source code in Work Product and we may at any time revoke the license granted in the Work Product in this paragraph.

7.2 Client Intellectual Property

We will have no ownership in and will not make any claims or assert any interest in Client IP or Client Content. We will have no right to use, display, license, refer to, or in any way benefit from Client IP or Client Content in any manner, except:

  1. to perform the Services, in which case we will have a revocable, non-exclusive license to use, analyze, modify, and reproduce Client Content for the sole purpose of providing the Services to you, and to only use Client IP for that same purpose; 
  2. as permitted under section 7.3; and
  3. as permitted under section 7.4.

7.3 Portfolio Use

You will grant us a non-exclusive, non-transferable, non-sublicensable, irrevocable license to publish and display the Work Product (excluding the strategy documents we prepare for you), and any Client IP and Client Content embodied in the Work Product, in our portfolio, including without limitation in any gallery of representative work on our website.

7.4 Advertisement of Client as Customer

During the term of this agreement and for a period of 10 years after its termination, we may display your name and logos on our website, social media webpages, and other marketing materials. For this purpose, you grant us an irrevocable, non-exclusive, fully-paid licence to publish on our website, social media webpages, and other marketing materials your logos as published on one or more occasions on your websites, so long as we do not publish one or more of those logos adjacent to any material that in any way would reasonably be seen as disparaging to you or that would otherwise reasonably have the effect of lowering the goodwill or reputation of your business in the esteem of the general public.

8 Statements of Fact

8.1 Assurances by Studiothink

We state the following statements are true and accurate:

  1. we have the authority and power to enter into this agreement. Entering into this agreement is not a breach by us of any obligations it might have to third parties;
  2. to best of our knowledge, without conducting searches in intellectual property office registries, the Work Product will be original and will not infringe on any intellectual property rights of third parties; 
  3. the Work Product will not: (i) contain any content that is fraudulent, defamatory, libellous, threatening, harassing, obscene, indecent, pornographic, or contrary to law; and (ii) contain any viruses or other harmful or intrusive programs or code;
  4. we will have full and sufficient right to assign or grant the rights or licenses granted or to be granted to you in the Work Product pursuant to the terms of this agreement;
  5. we have not previously or otherwise granted any rights to any third party which conflict with the rights granted or to be granted by us to you under this agreement; and
  6. we will not use any resources of any kind whatsoever belonging to any post-secondary institution in performing the Services.

8.2 Assurances and Acknowledgement by the Client

  1. You state the following statements are true and accurate:
    1. you are the legal and beneficial owner of the website, trading name, and social media accounts in relation to which you have requested Studiothink perform the Services, or otherwise are authorized to engage us to provide the Services in respect of those properties;
    2. you own all necessary rights and licenses in the Client Content, Client IP, and Usage Data to grant all necessary licenses to Studiothink to perform the Services. No Client Content or Client IP will (i) be fraudulent, defamatory, libellous, threatening, harassing, obscene, indecent, pornographic, or otherwise contrary to law; (ii) infringe the intellectual property rights of any third party; or (iii) contain any viruses or other harmful or intrusive programs or code; and
    3. you have taken all necessary measures in order to comply with applicable international and local rules relating to the protection of personally-identifiable information.
  2. You acknowledge that:
    1. all proof-reading and fact-checking is your sole responsibility;
    2. any delay in you delivering feedback during the Acceptance Period or any other feedback period might delay the ability for us to deliver the Services on previously-agreed timelines. We will not be liable for any missed deadlines for delivering the Services where you have caused delay.
    3. due to the vast number of logos in existence, it is possible that our logo designs might unknowingly have similar elements or features of other logo designs. We do not conduct any trademark, copyright, or other searches to verify any logo design created by Studiothink does not infringe upon any pre-existing logo designs. We will not be liable to you for any costs you incur in using any logo designed by us in the event you decide to change it;
    4. Studiothink is not responsible for materials, artwork, or archiving of projects and files beyond 12 months after completion. Any archival copy we retain will not contain any customization you make or otherwise implement after completion of the Work Product;
    5. if you have engaged us to design a website and wish for it to display on any particular web browsers or platforms, you are responsible for informing us in advance. We test website display on the latest stable releases of most major web browsers operated on desktop, tablet, and smartphone devices running Windows, macOS, iOS, and Android;
    6. we are not responsible for any failure of servers or domain hosts in relation to your website;
    7. if you damage any website we design for you, we only have the ability to restore it to the most recent backup you made of the website, and all changes made since that backup will be lost (and if you did not create a backup, we can only restore it to the final version we delivered). Any such restoration of the website will be at your additional cost;
    8. the lifespan of a website can be prolonged with regular maintenance however there are many factors that can impede performance or cause a website to stop working over time. These factors are beyond our control and can include updates to web browsers, hosting servers, domains, DNS settings, or WordPress or other content management systems;
    9. for any interior design work included in the Services, we are not responsible for providing floor plans, pathing plans, lighting plans, or electrical plans that adhere to applicable laws and regulations, including without limitation adherence to applicable building code, fire code, and municipal bylaws;
    10. search engine ranking algorithms, performance platform ad-serving, customer click-through rates, website or mobile application conversion rates, market demand, market competition, competitor activities, Google quality scores, your business model, and other factors that influence your website ranking or inclusion in search engines are outside of our control.

9 Default & Termination

9.1 Events of Default

A party is in default of this agreement in each of the following circumstances:

  1. that party is in breach of a provision of this agreement or the Proposal, and has not remedied that default within 5 days of a request by the other party to do so, or otherwise has not commenced remedying a default within 5 days of that request where the remedy requires 10 or more days to complete;
  2. that party suffers or is subject to any of the following: winding-up, liquidation, dissolution, the institution of proceedings to be adjudicated bankrupt or insolvent under the Bankruptcy and Insolvency Act (Canada) or any analogous laws, the consenting to the institution of such proceedings, the consenting to the filing of any petition under the Bankruptcy and Insolvency Act (Canada) or to the appointment of a receiver or receiver-manager, the making of a general assignment for the benefit of creditors, the filing of a proposal to settle payment of creditors’ liabilities under the Companies’ Creditors Arrangement Act, the admission in writing of insolvency, or the passing of a resolution or issuance of a court order for the dissolution of that party;
  3. in the course of the Services, that party or its employees, contractors, directors, or officers  exhibit behaviour to the other party or its employees, contractors, directors, or officers that reasonably is abusive, derogatory, racist, bullying, or constitutes sexual harassment;
  4. that party fails to pay an invoice issued by Studiothink when due.

9.2 Termination with Cause by Client

If we are subject to an event described in section 9.1(a), 9.1(b), or 9.1(c) you may terminate this agreement immediately upon written notice to us.

9.3 Termination with Cause by Studiothink

  1. If you are subject to an event described in section 9.1, we may terminate this agreement immediately upon written notice to you.
  2. If you are subject to an event described in section 9.1(d), we may:
    1. cease performing the Services until the default has been remedied; or
    2. enforce the provisions of this agreement.

9.4 Termination without Cause

Either party may at any time terminate this agreement, for any reason or without reason, by notifying the other party of termination, in which case this agreement will terminate on the later of:

  1. 5 days after delivery of the notice; and
  2. the date stipulated in the notice as the termination date.

9.5 Effect of Termination

If this agreement terminates for any reason:

  1. termination will not release the parties from any liabilities or obligations arising before termination; and
  2. termination will not adversely affect any rights and licenses acquired or granted by the parties under this agreement.

If this agreement terminates before we complete Work Product under the Proposal, payment will be due for services rendered by us up to the effective date of the termination notice. Upon termination, we will you the extent to which the Services have been completed through the date of the termination notice, and collect and deliver to you whatever Work Product then exists. In the event of termination, we will wind up the Services in a reasonable manner to preserve and deliver items of value created before the termination notice date. Subject to the terms of this agreement, you will pay to Studiothink any amounts properly owing for Services rendered up to the effective date of termination, provided that payment will not be greater than the payment that would have become due if we had completed the Work Product contemplated under the relevant Proposal. For the purpose of calculating the amount payable for Services rendered between any milestone events specified in the Proposal, we may charge you based on the hours expended on the Services during that period, multiplied by an hourly rate of $145.

10 Exclusions from Liability

10.1 Force Majeure

  1. Force Majeure Event” means, with respect to a party, any event or circumstance, whether or not foreseeable, that was not caused by that party and any consequences of that event or circumstance.
  2. If a Force Majeure Event prevents a party from complying with any one or more obligations under this agreement, exercising discretion under this agreement, or satisfying any conditions under this agreement, then any time limits on that performance stated in this agreement will be suspended for the duration of that Force Majeure Event and that inability will not constitute breach if (i) that party uses reasonable efforts to perform those obligations; and (ii) that party complies with its obligations under section 10.1(c).
  3. If a Force Majeure Event occurs, the noncomplying party will promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying party expects it to last. Thereafter the noncomplying party will update that information as reasonably necessary. During a Force Majeure Event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.

10.2 Limit on Direct Liability

Each party must mitigate its damages in the event of a breach of this agreement, and must cooperate with the other party in that party’s attempt to mitigate its own damages. Except with respect to any indemnity provided by either party in this agreement and any failures by you to pay our invoices, each party’s aggregate liability under this agreement for any claim whatsoever—including without limitation: negligence, other tort, breach of contract (excepting non-payment of invoices), or any human error that arises during the Services—will be limited to an amount equivalent to the fees we invoice you in the month immediately before the event giving rise to any such liability.

10.3 Limit on Indirect Liability

To the maximum extent permitted by law, we will not be liable to you under or in relation to this agreement (whether or not it is still in effect) for:

  1. indirect, special, incidental, consequential, exemplary, or punitive damages; 
  2. loss of use, data, business, revenues, or profits (whether direct or indirect); 
  3. any damages whatsoever relating to authorized use of third party products, materials, or any goods or services not developed or provided by Studiothink; or
  4. any damages whatsoever relating to breach by: (i) either party of applicable privacy laws, (ii) third party of Studiothink’s data storage systems or premises, or (iii) third party of any cloud computing service provider’s data storage systems used by you or Studiothink,

even if we knew or should have known those damages were possible and even if a remedy fails of its essential purpose.

11 Confidential Information & Non-Solicitation

11.1 Definitions

In this article, the following definitions apply:

Confidential Information” means:

  1. Information of any kind or nature (other than Excluded Information) relating to you and your business that you provide to us: 
    1. in the course of discussing the Relationship prior to entering into this agreement; and 
    2. during the term of this agreement, which at the time of disclosure is marked confidential, disclosed in circumstances of confidence, or would be understood by the parties exercising reasonable business judgment to be considered confidential—whether in writing, transmitted or stored electronically, presented by oral communication, presented by visual demonstration, physically embodied, or expressed in any other medium whatsoever—and includes without limitation: particulars of intellectual property rights, business systems, business ideas, source code, know-how and trade secrets, personal or aggregated data, patents and patent applications, financial statements and related documentation, customer names and contact information, employee and independent contractor names and contact information, research and development activities, technology, vendors, computer hardware and software, products, drawings, operating procedures, pricing and marketing methods and strategies, projections, product life cycle plans, suppliers, future plans, and third party information that is itself subject to restrictions of confidentiality that may be disclosed by a party; and 
  2. Derived Information.

Derived Information” means information (including notes, analyses, compilations, and summaries) that is in writing or embodied in an electronic medium that Studiothink derives, in whole or in part, from any information described in subsection (a) of the definition of Confidential Information.

Excluded Information” means information that comes within any of the following categories:

  1. other than personally identifiable information, information that is already public when you disclose it to us or becomes public (other than as a result of breach of this agreement by Studiothink) after you disclose it to us; 
  2. information that we independently develop, so long as that development did not use or rely on Confidential Information or Derived Information; 
  3. information that, when you disclose it to us, is already in our possession as the result of disclosure by a third party not then under an obligation to you to keep that information confidential; and
  4. information that, after you disclose it to us, is disclosed to us by a person not then under an obligation to the Client to keep that information confidential.

11.2 Maintaining Confidentiality

During the term of this agreement and for as long as it remains Confidential Information regardless of whether this agreement terminates, we will hold Confidential Information in the strictest of confidence and will not disclose or use Confidential Information, except as authorized in this agreement.

11.3 Precautions against Unauthorized Disclosure or Use

We will take precautions to prevent disclosure or use of Confidential Information other than as authorized in this agreement. Those precautions must be at least as effective as those we take to protect our own Confidential Information or those that would be taken by a reasonable person in our position, whichever standards are greater.

11.4 Permitted Use

We may use the Confidential Information:

  1. in such manners as you consent in writing; 
  2. for performing our obligations to you in the course of providing the Services; and
  3. for enforcing this agreement.

11.5 Permitted Disclosure

We may disclose Confidential Information:

  1. to our professional legal and tax advisors on a need-to-know basis; and
  2. to any of our personnel who require the Confidential Information to assist us in fulfilling the Services.

11.6 Disclosure Required by Law

  1. If any proceeding is brought to compel us to disclose Confidential Information or if we are otherwise required by law to disclose any Confidential Information, we will:
    1. unless by doing so we would violate any law or order by a court or arbitrator, notify you of that proceeding or requirement promptly after learning of it, taking into account any time constraints you would face in bringing a proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed;
    2. at our expense cooperate with you in any proceeding you bring to prevent that disclosure or to protect the confidentiality of any information that is disclosed.
  2. It will not constitute a breach of our obligations under this agreement for us to disclose Confidential Information as required by law, on condition that we have complied with our obligations under section 11.6(a)(i) in connection with that disclosure.

11.7 Return or Destruction of Confidential Information

 Within 30 days after receipt of your written request to do one of the following, we will either: (a) return to you; (b) permanently and securely destroy; or (c) return to such person as you may designate, all Confidential Information in our possession.

Despite the foregoing paragraph, we: (a) are permitted to retain a copy of Confidential Information solely to the extent required to comply with applicable law or regulatory authority; and (b) are not required to destroy, delete, or modify any backup tapes or archival media created in the ordinary course of archiving our records. However, for as long as we retain Confidential Information pursuant to this paragraph, we must continue to comply with our obligations of confidentiality under this agreement.

11.8 Mutual Non-Solicitation

During the term of this agreement and for a period of 12 months following the termination of this agreement for any reason, neither party will directly or indirectly solicit to be hired as employee or independent contractor any individual who was an employee of the other party during the term of this agreement and who had direct involvement in providing, delivering information in relation to, or approving the Services. Any general advertisement not directly targeting the employees of a party will be deemed not to be solicitation for the purpose of this clause.

12 Definitions

The following definitions apply:

  1. Affiliate” means the person that controls, is controlled by, or is under common control with another entity, by virtue of equity ownership, contract, or other means.
  2. Client Content” means all Usage Data, budgetary information, intellectual property rights licensed to you by third parties, text, graphics, images, sound clips, software, code, and other materials you provide to us in furtherance of the Services.
  3. Client IP” means your and your Affiliates trademarks, copyrights, service marks, trade names, trade dress, identifying symbols, logos, tag lines, domain names, URLs, social media handles, or any other indicia of origin relating to, owned by, used, or associated with you and the goodwill associated with your business, excluding Client Content.
  4. Critical Defect” means any page load errors or items not functioning in the manner you specified.
  5. Medium Defect” means any page visibility or content display issues not caused by a Critical Defect nor by any customizations you implemented.
  6. Work Product” means:
    1. any new works of authorship, new or useful art, data, designs, developments (including source code and object code), documentation, discovery, contribution, finding or improvement, inventions, processes, reports, trade names, titles, tag lines, themes, ideas, creations, productions, results, materials, proceeds, whether on video, tape, film or any other medium (whether in digital or any other format) in respect of any of the foregoing, and all related know-how, created by or on behalf of Studiothink under this agreement; and
    2. any “architectural work”, “artistic work”, “book”, “choreographic work”, “cinematographic work”, “collective work”, “compilation”, “computer program”, “dramatic work”, “engravings”, “every original literary, dramatic, musical and artistic work”, “literary work”, “musical work”, “performance”, “performer’s performance”, “photograph”, “plate”, “sculpture”, “sound recording” and “work” (as those terms are defined in the Copyright Act R.S.C. 1985, c. C-42 as amended from time to time).
  7. Usage Data” means anonymous data collected from your online marketing and advertisement accounts, including but not limited to its Google Adwords and Facebook Ads accounts, in relation to which we perform the Services, and also includes those online marketing and advertisement accounts of your Affiliates in respect of whom you have instructed us to perform the Services.

13 General Terms

13.1 Indemnity

If a party breaches one or more of its obligations, representations, or warranties under this agreement, it will indemnify and save harmless the other party from all losses and liabilities whatsoever (including legal fees on a solicitor-client basis) in connection with any claim, demand, or proceeding brought or threatened by a third party—or settlement thereof—arising out of or relating to that breach, except to the extent that the non-breaching party negligently or intentionally caused those losses or liabilities.

13.2 Notices

For a notice or other communication under this agreement to be valid, it must be in writing and delivered by: hand, courier (with all fees and postage prepaid), or email.

13.3 Dispute Resolution

In the event of a dispute between you and Studiothink, the dispute will be escalated internally in good faith, through you or your designated personnel and our own designated personnel. All dispute resolution negotiations are confidential and must be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Any dispute arising out of or relating to these Terms, including the breach, termination or validity of these Terms, which has not been resolved by the foregoing negotiation procedure within 90 days of the initiation of that procedure, may then otherwise be dealt with according to the provisions of these Terms.

13.4 Governing Law & Jurisdiction

The provincial laws of British Columbia and federal laws of Canada govern this agreement. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in British Columbia, Canada, sitting in Vancouver, British Columbia.

13.5 Assignment

Either party may assign this agreement upon notice to the other party. However, we may not assign this agreement without your consent unless the assignee is an Affiliate or is a third party who has purchased substantially all of our assets.

13.6 Enurement

This agreement benefits and binds the parties and their respective executors, heirs, administrators, successors, trustees, and permitted assigns.

13.7 Severability

If any part of this agreement is held unenforceable, the validity of all remaining parts will not be affected.

13.8 Headings

The headings in this agreement are an aid to speedy reference and have no legal significance. They are not part of the agreement and may not be considered for the purpose of interpreting it.

13.9 Further Assurances

The parties will each do everything reasonably necessary to give full effect to this agreement.

13.10 Waiver

No waiver of satisfaction of a condition or failure to perform of an obligation under this agreement will be effective unless it is in writing and signed by the party granting the waiver.

13.11 Entire Agreement; Modification

This agreement constitutes the entire understanding between the parties with respect to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the parties. No amendment of this agreement will be effective unless it is in writing and signed by the parties. 

13.12 Effective Date

This agreement will become effective when you accept the Proposal.