Terms of Service

Acceptance, Authority and Eligibility

These Terms of Service (the “Terms”), together with any proposal, statement of work, quotation, order, subscription confirmation or agreement that incorporates them (each, an “Agreement”), constitute a legally binding agreement between Design Aesthetics (“Design Aesthetics”, “we”, “us” or “our”) and the person or entity that accesses our website at design.aes-studio.com (the “Site”), submits an enquiry, accepts a proposal, pays a fee, or otherwise engages us for services (the “Client”, “you” or “your”). By taking any of those steps, you accept and agree to be bound by these Terms, as amended from time to time in accordance with Section 20.

If you accept these Terms on behalf of a corporation, partnership, professional corporation or other legal entity, you represent and warrant that you have the requisite authority to bind that entity, and “you” refers to that entity. If you do not have that authority, or if you do not agree with these Terms, you must not access the Site or engage us.

The Site and the Services are offered to businesses and to individuals who are at least eighteen (18) years of age and who can form legally binding contracts. The Site is provided for informational purposes. Nothing on the Site constitutes an offer, a binding quotation, legal, medical, clinical, advertising or regulatory compliance advice, or a promise of any particular result.

Where an Agreement applies to a specific engagement, that Agreement prevails over these Terms to the extent of any conflict or inconsistency, and these Terms prevail over any other document incorporated by reference. Where no Agreement exists, these Terms govern, together with the scope, fees and deliverables most recently confirmed by us in writing, including by email.

Definitions

• “Agreement” means, collectively, these Terms and any proposal, statement of work, quotation, order or subscription confirmation accepted by the parties.
• “Business Day” means a day other than a Saturday, Sunday or statutory holiday in Ontario.
• “Client Materials” means all content, data, text, images, video, audio, footage, trademarks, logos, trade names, records, files, credentials and other materials provided or made available by the Client or its personnel to Design Aesthetics in connection with an Engagement.
• “Confidential Information” means non-public information disclosed by one party to the other in any form that is designated as confidential or that would reasonably be understood to be confidential, including business plans, pricing, client and prospect lists, patient or client data, technical information, source code, methods and financial information.
• “Deliverables” means the websites, applications, designs, templates, social media assets, written content and other work product created by Design Aesthetics specifically for the Client and identified as deliverables in an Agreement.
• “Engagement” means the Services performed by Design Aesthetics for the Client under an Agreement.
• “Fees” means all amounts payable by the Client under an Agreement, including package fees, add-on fees, expenses and taxes.
• “Ongoing Services” means hosting, maintenance, support, content subscriptions, social media management, retainers and any other Services performed continuously or periodically.
• “Personal Information” means information about an identifiable individual as defined under applicable Canadian privacy law, and includes “personal data” where that term is used in other jurisdictions.
• “Protected Health Information” or “PHI” means health information about an identifiable individual, including information relating to physical or mental health, the provision of health care, or payment for health care, as defined under PHIPA or other applicable law.
• “Services” means the design, development, content, social media, brand and related services provided by Design Aesthetics.
• “Third-Party Services” means platforms, hosting, software, plug-ins, fonts, libraries, application programming interfaces and other services that are not owned or controlled by Design Aesthetics.
• “Website Materials” means the Site and all content, code, design, text, graphics and other materials on it, excluding Client Materials.

Services and Scope

We provide web design, web development, brand, content and social media services, with a focus on healthcare practices, clinics, health brands and related organizations. The scope, deliverables, quantities, platforms, specifications, milestones, dependencies and Fees for each Engagement are those set out in the applicable Agreement and, where the Agreement refers to a package, in the package description published by us at the time the Agreement is accepted.

Nothing on the Site, in our marketing materials, in a presentation, or in a conversation forms part of an Agreement or constitutes a representation, warranty, condition or commitment, unless it is expressly incorporated into an Agreement in writing. Any indication of timelines, cost or scope given before an Agreement is accepted is an estimate provided in good faith for planning purposes and is not binding unless the Agreement states that it is binding.

We may engage subcontractors and independent contractors to perform any part of the Services, and we remain responsible for their compliance with the confidentiality and privacy obligations in these Terms. We may decline to accept, or may discontinue, any engagement or request, in whole or in part, at our discretion, including where a request would require us to make claims about health outcomes, would require us to publish content that we consider misleading or non-compliant, or would conflict with applicable law, professional standards or platform policies.

Packages, Deliverables and Add-ons

Our recurring content Services are offered as the following packages. Package descriptions are current as at the “Last Updated” date of these Terms, may be updated in accordance with Section 20, and are superseded by the terms of an applicable Agreement where that Agreement specifies the package, quantities, platforms or deliverables.

Packages

• Starter, at $649 CAD per month plus applicable taxes: four (4) finished pieces per month, one (1) platform, one (1) guided capture session, and one (1) approval round. This package is offered only where the Client confirms in writing that a package at the Core level is not feasible for its budget.
• Core, at $999 CAD per month plus applicable taxes: one (1) guided capture session of approximately forty-five (45) minutes each month, which we direct and the Client records; eight (8) finished pieces per month, ordinarily comprising four (4) short-form video pieces and four (4) static pieces; captions, design, editing, scheduling and publishing; one (1) platform; one (1) approval round; and a short monthly summary.
• Growth, at $1,599 CAD per month plus applicable taxes: everything included in Core, plus twelve (12) finished pieces per month, ordinarily comprising six (6) short-form video pieces and six (6) static pieces; two (2) platforms; up to three (3) story placements per week; two (2) approval rounds; one (1) monthly review call of approximately fifteen (15) minutes; and quarterly topic planning.
• Authority, at $2,499 CAD per month plus applicable taxes: everything included in Growth, plus sixteen (16) finished pieces per month, ordinarily comprising eight (8) short-form video pieces and eight (8) static pieces; three (3) platforms; two (2) capture sessions per month; one (1) monthly strategy call; priority turnaround within forty-eight (48) hours; and one (1) additional content day per quarter.

A “finished piece” means a completed item of content, in the form described for the applicable package, that is delivered to the Client for approval or published on the Client’s behalf. Where a package specifies a number of pieces, that number is the total monthly entitlement, and unused pieces do not accumulate, carry forward or entitle the Client to a credit, refund or offset, except where we have failed to deliver them and have not remedied that failure within a reasonable time after written notice.

Content mix

The mix of content types within a package, including the division between short-form video and static pieces, may be adjusted by us having regard to the Client Materials available, the topics agreed and platform requirements, provided that the total number of pieces for the package is delivered. Where we cannot obtain the footage, information, approvals or access required from the Client, we may deliver the package using approved alternative formats and existing approved media, and the Client acknowledges that the planned mix and the publication schedule may change as a result.

Add-ons

Add-ons are additional to, and are not included in, any package. Unless otherwise agreed in writing, they are priced as follows:

• Additional or replacement capture session: $250 per session.
• Additional short-form video piece: $200 per piece.
• Additional static piece: $100 per piece.
• On-location attendance within the Greater Toronto Area: $900 per day, plus travel, accommodation and expenses for attendance outside the Greater Toronto Area.
• Priority turnaround: $250 per request.
• Additional platform setup or integration: $500 per platform, one-time.

Add-ons are subject to availability and to our delivery capacity at the time of the request, and must be confirmed by us in writing, including by email, before the work is performed. We may decline any add-on request. Work is not treated as accepted or as included in a package merely because it has been requested, discussed, scoped or partially performed.

No informal expansion of scope

Nothing in these Terms entitles the Client to work beyond the package it has purchased. Work outside the package, including additional pieces, additional capture sessions, additional platforms, on-location production, campaign-specific content and rush requests, is performed only as a paid add-on or under a change request accepted by us in accordance with Section 5. Where a Client repeatedly requests work beyond its package, we may require the Client to move to a larger package or to enter into a written scope agreement, and we may suspend work on the out-of-scope requests until that occurs.

Web design and development engagements, including website builds, applications, integrations and ongoing hosting or maintenance, are scoped individually in an Agreement, are not included in any content package, and are not interchangeable with content packages.

Engagements, Proposals and Change Requests

Each Engagement is initiated by a written proposal, statement of work, order or subscription confirmation, and becomes binding on our countersignature or on the Client’s written acceptance, including acceptance by email or by payment of any amount payable at the outset of the Engagement. Unless otherwise stated in the proposal, a proposal remains open for fourteen (14) days from the date it is issued, after which it may be withdrawn, revised or repriced.

The Client will designate an authorized representative with authority to give instructions, provide feedback, give approvals and make decisions in connection with the Engagement. Instructions, feedback and approvals given by that representative, or by any person the Client holds out as authorized, bind the Client. Where the Client designates more than one representative, the Client is responsible for consolidating instructions and approvals, and we are entitled to rely on the last instruction or approval received from any of them unless the Client notifies us otherwise in writing.

Any change to the scope, deliverables, quantities, specifications, platforms, schedule or Fees requires a written change request accepted by both parties. We may adjust Fees, timelines and dependencies accordingly, and may suspend or reprioritize affected work until the change request is accepted. Work performed at the Client’s request before a change request is accepted will be charged at the rates then published by us or, where no published rate applies, at our standard time and materials rates, and the Client is responsible for those amounts.

Fees, Invoicing and Payment

Unless an Agreement provides otherwise, the following applies to all Fees:

• Fees are stated and payable in Canadian dollars, and exclude all applicable taxes, including harmonized sales tax, goods and services tax and provincial sales tax, which are added where required by law. The Client is responsible for all such taxes and for any withholding, levies or duties applicable in its jurisdiction.
• Third-party costs are additional to our Fees unless expressly included in an Agreement in writing. These include domain registrations and renewals, hosting and infrastructure, content delivery, licences, fonts, stock imagery and footage, software subscriptions, platform and advertising spend, app and marketplace fees, and payment processing charges.
• Content packages are invoiced monthly in advance. Web design, development and project work is invoiced as set out in the applicable Agreement, or, where the Agreement is silent, fifty percent (50%) on acceptance and the balance on completion or on the milestones we specify. A deposit is non-refundable and is applied against Fees earned.
• Invoices are due on receipt unless the invoice states otherwise, and in no event later than fifteen (15) days after the date of the invoice.
• Amounts that remain unpaid after their due date bear interest at the rate of two percent (2%) per month (26.82% per annum), compounded monthly, from the due date until paid in full, both before and after judgment.
• Where an amount remains unpaid for more than fifteen (15) days after its due date, we may, without liability and without prejudice to any other remedy: suspend performance; withhold Deliverables and approvals already completed; revoke administrative access to systems, accounts and environments we manage; and, in the case of hosted sites or Ongoing Services, take the relevant site, service or content offline. Suspension does not relieve the Client of its payment obligations, and we may charge a reasonable reactivation fee.
• The Client is responsible for all costs we incur in collecting amounts owing, including legal fees on a substantial indemnity basis, disbursements, court and arbitration costs, and collection agency charges.
• Fees are non-refundable, including where an Engagement ends early, except where a refund is required by applicable law or is expressly agreed by us in writing. Deposits are non-refundable in all circumstances.
• Where the Client cancels or terminates an Engagement after work has commenced, all Fees for work performed to the effective date, all non-cancellable third-party commitments and all expenses incurred become immediately due and payable.
• The Client may not withhold, set off, deduct or delay payment of any amount owing on the basis of any claimed defect, delay, dispute or counterclaim, and no right of set-off applies except as ordered by a court or arbitrator of competent jurisdiction. Payment of Fees is not conditional on any particular result.
• Where the Client initiates a chargeback, payment reversal or similar process in respect of Fees properly invoiced, we may suspend the Services, recover the amounts owing together with our costs, and require the Client to pay by an alternative method for the remainder of the Engagement.
• Time-and-materials work, where agreed, is recorded in minimum increments of fifteen (15) minutes, and all recorded time is billable. An estimate for time-and-materials work is an estimate only and is not a commitment to a maximum price unless the Agreement expressly states a fixed fee or a cap.
• We may amend our published Fees, package contents and add-on prices at any time. Where an Agreement specifies a fixed recurring fee for an ongoing Engagement, that fee applies for the period stated in the Agreement. A change to a recurring fee applies from the start of the next billing period after we give the Client at least thirty (30) days’ written notice, including by email or by notice on the Site. Promotional, introductory or transitional pricing is subject to the period and conditions stated in the applicable notice or Agreement.

Capture Sessions, Footage and Production

Where a package includes a guided capture session, the session is conducted remotely unless on-location attendance is purchased as an add-on. We direct the session, plan the questions, topics and shot list, and guide the Client’s participants; the Client records the footage using equipment the Client provides, unless we have agreed otherwise in writing.

The Client is responsible for scheduling participants and confirming attendance; providing a suitable, private and quiet location; ensuring that equipment, connectivity and lighting are adequate; ensuring that anyone appearing in footage has provided any consent or release required, including consent to the use of their image, voice and name in published content; and ensuring that no patient or third-party information is captured or displayed in footage unless the Client has all required consents or authority.

Capture sessions must be rescheduled at least twenty-four (24) hours in advance. Where the Client cancels a session without that notice, does not attend, or is not ready to record when the session begins, the session is treated as delivered for the purposes of the package, and a replacement session is an add-on. On-location attendance is subject to availability, requires written confirmation in advance, and is invoiced at the applicable daily rate.

Because the Client records the footage, the Client is responsible for the storage, security and backup of raw footage. Where we hold footage on the Client’s behalf, we may delete it in accordance with the retention provisions of the applicable Agreement or, where the Agreement is silent, within ninety (90) days after the relevant content has been published or the Engagement has ended, whichever is earlier. The Client should retain its own copies of raw footage.

Client Responsibilities and Materials

The Client will provide, promptly, accurately and at no cost to us, all Client Materials, information, access, credentials, decisions, participants and approvals reasonably required for us to perform the Services. Where the Client delays in providing an item identified as a dependency for more than five (5) Business Days, we may adjust the schedule, reprioritize resources, and charge additional Fees where the delay causes additional work or idle time.

The Client represents, warrants and covenants that: (i) it owns or has all necessary rights, licences, consents and permissions in and to all Client Materials, including all rights required for us to use, reproduce, modify, adapt, publish, display and distribute them in the Deliverables; (ii) the Client Materials and the Client’s instructions do not and will not infringe, misappropriate or violate any intellectual property, privacy, personality, publicity or other right of any third party; (iii) it has obtained all consents, authorizations and releases required for any personal information, testimonial, review, image, voice or likeness of an identifiable individual included in Client Materials, including any consent required under PHIPA, PIPEDA or other applicable privacy law; (iv) the Client Materials and the instructions given to us are accurate, not misleading, and do not require us to make claims that cannot be substantiated; (v) it complies and will continue to comply with all laws applicable to its business, including those governing advertising, health professionals’ advertising and professional standards, privacy, consent and the marketing of health services; and (vi) any person providing instructions or approvals to us on its behalf is authorized to do so.

The Client acknowledges that we do not verify, and are not responsible for, the accuracy, completeness, legality, clinical appropriateness, advertising compliance or regulatory compliance of Client Materials, of claims the Client instructs us to publish, of information supplied by the Client’s personnel during a capture session, or of content published on the Client’s behalf after launch, handover or publication.

The Client is responsible for maintaining its own backups of Client Materials and of any website content, database, configuration and account after launch. Where we provide hosting, maintenance or backup as part of an Engagement, our practices are those described in the applicable Agreement, and we are not an insurer, archival service or disaster-recovery provider unless we have expressly agreed otherwise in writing.

The Client is responsible for maintaining its own licences, accounts and subscriptions for Third-Party Services, including social media, advertising, hosting, domain and software accounts, unless the Agreement provides otherwise, and for reviewing and complying with the terms of those services. Where the Client provides us with access to a system or account, the Client confirms that it is authorized to grant that access on the terms granted.

The Client will respond to our reasonable requests for information, approvals and decisions within the timeframes stated in the applicable Agreement or, where none is stated, within five (5) Business Days. Where the Client fails to do so, and we have given written notice requesting a response, we may proceed as described in Section 9.

Approvals, Revisions and Publication

We will submit content for the Client’s review and approval before publication, and the Client will provide a single consolidated set of feedback and approvals for each approval round. The number of approval rounds included in an Engagement is that stated for the applicable package or in the applicable Agreement. Additional approval rounds are charged as additional work at our then-published rates or as an add-on.

What counts as a revision. Within an approval round, the Client may request corrections for factual accuracy, brand compliance, tone and clarity, and changes to wording, imagery or structure that are consistent with the approved topic plan and brief. A revision does not include a change of topic, direction, concept or strategy; the addition of new pieces, platforms or formats; re-shooting or re-recording; changes arising from information the Client failed to provide or provided inaccurately; or changes requested after the content has been approved or scheduled. Those matters are additional work and are charged accordingly.

Deemed approval. Where the Client does not provide feedback or approval by the deadline stated in the applicable Agreement or in our written request, and we have given written notice requesting a response, we may treat the content as approved and proceed to schedule and publish it, deliver it as final, or carry it forward. The Client remains responsible for the Fees attributable to that content, and we are not liable for any consequence of publication that the Client did not address within the stated period.

Publication and scheduling. We schedule and publish content on the platforms included in the Client’s package using accounts and access provided by the Client. Publication is subject to the availability, functionality, policies, review processes and technical limits of each platform. We do not control, and are not responsible for, platform outages, algorithm changes, content moderation, account restrictions, rate limits, reach, engagement, or the removal of content by a platform.

The Client is responsible for reviewing all content before publication and for the accuracy of the information it contains. By approving content, the Client accepts responsibility for its content, including any statement about its services, treatments, prices, qualifications or outcomes. Where the Client publishes, or instructs us to publish, content contrary to our written recommendation or without our final review, we are not responsible for the consequences.

Where the Client requests the removal of published content, we will action the request within a reasonable time where we have the necessary access. Removal from a platform does not recall content that has already been seen, shared, screenshotted, indexed or cached, and we are not responsible for copies of content made by third parties.

Third-Party Services and Platform Dependencies

Deliverables may incorporate, integrate with, or depend upon Third-Party Services, including hosting providers, content-delivery networks, domain registrars, content management systems, e-commerce platforms, payment processors, email and messaging providers, social media platforms and their interfaces, analytics, scheduling and booking tools, fonts, stock libraries and open-source components. We do not own, operate or control Third-Party Services.

We make no representation or warranty regarding the availability, security, functionality, performance, terms, pricing or continued existence of any Third-Party Service, or regarding the acts, omissions, data practices or security incidents of any third-party provider. We are not responsible for outages, interface or policy changes, deprecations, rate limits, pricing changes, account suspensions or other actions taken by third parties, including the suspension, restriction or termination of a Client’s social media, advertising or hosting account.

Third-Party Services are subject to their own terms, licences and fees, which are the Client’s responsibility unless we have expressly assumed them in writing. Where a Third-Party Service is discontinued, materially changed or becomes unacceptable to us, we may propose an alternative, and any migration, reconstruction, re-integration or re-licensing work required is chargeable and requires a change request.

Where the Client directs us to use a particular Third-Party Service, or elects not to follow our recommendation regarding a platform, tool, host or provider, we are not responsible for the consequences of that choice, including any resulting security, privacy, performance, compliance or cost consequence.

Intellectual Property and Deliverables

On receipt of payment in full of all Fees payable in respect of a Deliverable, and subject to these Terms, Design Aesthetics assigns to the Client all right, title and interest that it holds in that Deliverable, excluding Retained Materials. Until payment in full has been received, all Deliverables remain the sole property of Design Aesthetics, and the Client has only a limited licence to use them for the purpose of review and approval.

“Retained Materials” means all pre-existing and independently developed materials, including our design systems, templates, components, code libraries, frameworks, custom tooling, know-how, methods, processes, techniques and any derivative works of the foregoing, together with any material developed for the Client that is generic in nature or that we can use without disclosing the Client’s confidential information. We retain all right, title and interest in the Retained Materials, and grant the Client a non-exclusive, non-transferable, perpetual licence to use Retained Materials solely as embedded in the Deliverables and as necessary to use them for their intended purpose.

We retain the right to use the skills, knowledge, techniques and experience acquired in the course of an Engagement, and nothing in an Agreement restricts our right to provide similar services to other clients, including in the same industry, provided that we comply with our confidentiality obligations and applicable privacy law.

Client Materials remain the property of the Client. The Client grants Design Aesthetics a non-exclusive, royalty-free, worldwide licence to use, reproduce, store, modify, adapt, publish, display and distribute Client Materials to the extent necessary to perform the Services and to exercise our rights under these Terms, including for the purposes described under “Confidentiality and Publicity”.

Open-source and third-party components. Deliverables may include open-source and third-party components licensed under their own terms. Those components remain subject to their licences, our warranties do not extend to them, and the Client’s use of them is subject to the applicable licence. Where a licence requires attribution or disclosure, we will identify the component and the licence in the applicable Agreement or in the Deliverables.

Artificial-intelligence-assisted tools. We may use artificial-intelligence-assisted and automated tools in the course of delivering the Services, including for drafting, editing, design, transcription, analysis and scheduling. We will not input Client Confidential Information, Personal Information or PHI into a third-party artificial-intelligence tool except under terms that restrict its use and retention and prohibit its use for model training. The Client acknowledges that output produced with those tools is reviewed by us but may require further review by the Client, and that we do not warrant that such output is original, non-infringing or free of error.

Moral rights. To the extent permitted by applicable law, we will procure from our employees, contractors and subcontractors any waivers of moral rights necessary to give effect to the assignment of Deliverables under this Section. Where a waiver cannot be obtained, the applicable Deliverable is licensed to the Client on the terms set out in this Section rather than assigned.

Site and Website Materials. All right, title and interest in the Site and the Website Materials, including our brand, design, copy, code and structure, remain with Design Aesthetics and its licensors. Nothing in these Terms grants the Client any right or licence in respect of the Site or the Website Materials other than as expressly stated.

Hosting as a service right. Where an Engagement includes hosting, the Client’s right to use the hosting environment is a service right and not a property right. It terminates with the Engagement, and we do not transfer infrastructure, server configurations, licences held in our name or third-party accounts. Reasonable assistance with migration or export after termination is chargeable at our then-published rates.

Confidentiality and Publicity

Each party may receive Confidential Information of the other. The receiving party will: (i) use Confidential Information only for the purposes of the Engagement; (ii) protect it using at least the degree of care it uses to protect its own confidential information of similar importance, and in no event less than reasonable care; (iii) not disclose it except to its employees, contractors, professional advisers and subcontractors who need to know it for the purposes of the Engagement and who are bound by confidentiality obligations at least as protective as this Section; and (iv) not use it to develop or provide competing products or services.

Confidential Information does not include information that: (i) is or becomes generally available to the public other than through a breach of this Section; (ii) was lawfully in the receiving party’s possession without a duty of confidence before disclosure; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) is disclosed to the receiving party by a third party without breach of a duty of confidence. Confidential Information does not include Personal Information or PHI, which are governed by Section 13 and by applicable privacy law.

Where the receiving party is legally compelled to disclose Confidential Information, it will, where lawful and practicable, give the disclosing party prompt notice so that the disclosing party may seek a protective order or other remedy, will disclose only the portion it is legally required to disclose, and will use reasonable efforts to obtain confidential treatment for it.

On termination, or on written request, the receiving party will return or destroy the other party’s Confidential Information, except for copies retained in backup and archival systems, in routine information-technology records, or where retention is required by law, professional standards or a document-retention policy, in which case the obligations in this Section continue to apply to the retained copies.

The obligations in this Section survive for five (5) years after the end of the Engagement, and indefinitely in respect of trade secrets, Personal Information and PHI.

Portfolio and publicity. Unless the Client notifies us in writing that it opts out, we may identify the Client by name, describe the Services provided, and display the Deliverables, screenshots, mock-ups and sample content in our portfolio, case studies, proposals, pitch materials, on the Site and on our social media channels, and may include the Client in our client list. We will honour a written opt-out request prospectively, but we may not be able to recall or withdraw materials that have already been distributed. The Client will not disclose the contents of proposals, statements of work, pricing or our methods to any third party other than its professional advisers without our written consent.

Feedback. Any suggestion, idea, enhancement request, comment or other feedback provided by the Client or its personnel about the Site, the Services, the Deliverables or our methods is voluntary, and we may use, disclose, reproduce, license and otherwise exploit that feedback without restriction, attribution or compensation to any person.

Privacy and Protected Health Information

Our handling of personal information in our own right is described in our Privacy Policy at /privacy-policy, which is incorporated into these Terms by reference. Where these Terms and the Privacy Policy address the same subject matter, these Terms govern the contractual relationship between us and the Privacy Policy governs our handling of personal information.

Where we process Personal Information or PHI on the Client’s behalf, we do so as a service provider and, where the Client is a health information custodian within the meaning of PHIPA, as the Client’s agent, only on the Client’s documented instructions and in accordance with the applicable Agreement. The Client remains the custodian of that information, or remains responsible to the custodian of it, and is responsible for the lawfulness of its collection, use and disclosure, for obtaining all required consents or authority, and for its own privacy notices, consents and disclosures.

The Client acknowledges and agrees that: (i) Design Aesthetics is not a health information custodian, does not provide health care or clinical advice, and does not make decisions about the collection, use or disclosure of PHI; (ii) the Client will not instruct us to collect, receive, store, transmit or publish PHI through any channel that we have not confirmed in writing as appropriate for that purpose, including unencrypted email, public web forms, consumer messaging applications and social media direct messages; (iii) the Client will not place or permit PHI to be stored on our systems or on Third-Party Services we use unless we have expressly agreed in writing, and will not use the Services in a manner that would breach PHIPA, PIPEDA, the Health Insurance Portability and Accountability Act where it applies, or any other applicable law; and (iv) the Client will maintain its own privacy, security and compliance program and will obtain its own legal advice in respect of it.

Where an Engagement involves access to Personal Information or PHI, the parties will enter into a written data processing or service provider agreement before any such access occurs, addressing permitted purposes, safeguards, sub-processors, retention, deletion, audit and breach notification. Where the Client requires additional contractual protections, including a business associate agreement or a prescribed form of Ontario service provider agreement, the Client must request it in writing before the Engagement begins.

We will notify the Client without undue delay, and in any event within the period required by the applicable Agreement or by law, after becoming aware of any unauthorized access to, disclosure of, loss of, or alteration of Personal Information or PHI processed on the Client’s behalf, and will reasonably cooperate with the Client’s notification, remediation and reporting obligations. The Client is responsible for making any notification required of it as custodian, and for any regulatory reporting that applies to it.

The Client is solely responsible for the accuracy, completeness and compliance of any privacy notice, consent language, patient-facing communication, testimonial, review and regulatory disclaimer published on its websites, applications and channels, and for compliance with applicable advertising, professional regulation and privacy law. We do not provide legal, medical, clinical or regulatory compliance advice.

Warranties and Disclaimers

We warrant that: (i) the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards for comparable services, by suitably qualified personnel; (ii) the Deliverables will materially conform to the specifications set out in the applicable Agreement; and (iii) we will perform the Services in accordance with applicable law. Our exclusive liability, and the Client’s exclusive remedy, for breach of the warranty in this paragraph is the re-performance or correction of the non-conforming Service or Deliverable or, where we are unable to correct it within a reasonable time, a refund of the Fees paid for the affected Service or Deliverable.

EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE SERVICES, THE DELIVERABLES AND ALL THIRD-PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY, REPRESENTATION, CONDITION OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.

WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SITE, THE SERVICES OR ANY DELIVERABLE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR FREE OF LOSS OR CORRUPTION OF DATA; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, THE SERVICES OR ANY DELIVERABLE WILL BE COMPATIBLE WITH ANY PARTICULAR PLATFORM, DEVICE, BROWSER OR VERSION.

No guarantee of results. We do not warrant, represent, guarantee or promise any particular business, financial, marketing, search-engine, ranking, reach, impression, traffic, follower, engagement, conversion, lead, booking, patient, revenue or other outcome from the Services or the Deliverables. Any statement, projection or estimate regarding results, including in a proposal, presentation, case study or conversation, is an expression of opinion only and is not a warranty, guarantee, condition or collateral agreement. Search engine, social media and advertising platform visibility, rankings, reach and performance are determined by third parties and are outside our control.

We are not responsible for errors, omissions or inaccuracies in Client Materials or in information supplied by the Client’s personnel, and we are not obligated to review Client Materials or Deliverables for legal, medical, clinical, advertising or privacy compliance. The Client is responsible for reviewing and approving all Deliverables before publication and, by approving a Deliverable, accepts responsibility for its content.

The parties acknowledge that the limitations, exclusions, disclaimers and allocation of risk in these Terms, including in Sections 14 and 15, form a fundamental basis of the bargain between them, are reflected in the Fees charged, and that we would not enter into an Engagement without them.

Limitation of Liability

Indirect and consequential loss. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AGENTS, AFFILIATES, SUPPLIERS OR LICENSORS, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF INCOME, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, LOSS OF USE, COST OF SUBSTITUTE SERVICES, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE, THE SERVICES OR THE DELIVERABLES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, EQUITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.

Aggregate cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE, THE SERVICES AND ALL DELIVERABLES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID BY THE CLIENT TO DESIGN AESTHETICS UNDER THE APPLICABLE AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM. WHERE NO FEES HAVE BEEN PAID, OUR TOTAL AGGREGATE LIABILITY WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000) CAD.

Exclusions from the cap. The limitation in the immediately preceding paragraph does not apply to: (i) amounts payable by the Client under an indemnity in Section 16; (ii) the Client’s obligation to pay Fees and other amounts owing; (iii) a party’s infringement or misappropriation of the other party’s intellectual property rights; (iv) a party’s fraud, wilful misconduct or gross negligence; or (v) any liability that cannot be limited or excluded under applicable law.

Time limit on claims. Except where a longer period is required by applicable law, neither party may bring any claim arising out of or relating to an Agreement more than twelve (12) months after the date on which that party first became aware, or reasonably ought to have become aware, of the facts giving rise to the claim. The expiry of that period is a complete bar to the claim.

No collective proceedings. Each party may bring claims only in its individual capacity, and, to the maximum extent permitted by applicable law, each party waives any right to participate in, or to have its claims joined, consolidated or decided with, any class, collective, representative or multi-party proceeding.

Each provision of this Section operates separately. Where a limitation or exclusion is held unenforceable in a particular jurisdiction, our liability will be limited to the greatest extent permitted by law in that jurisdiction, and the remaining provisions of this Section continue to apply.

Indemnification

Client indemnity. The Client will indemnify, defend and hold harmless Design Aesthetics, its affiliates, and its and their respective directors, officers, employees, contractors, subcontractors, agents, Service Providers and licensors (collectively, the “Indemnified Parties”) from and against all losses, liabilities, damages, fines, penalties, judgments, settlements, interest, costs and expenses, including reasonable legal fees and disbursements on a substantial indemnity basis (collectively, “Claims”), arising out of or in connection with: (i) the Client Materials, including any allegation that they infringe, misappropriate or violate the intellectual property, privacy, personality, publicity or other rights of any third party; (ii) the Client’s breach of these Terms or of any Agreement, including the representations, warranties and covenants in Sections 8, 9 and 13; (iii) content published on the Client’s websites, applications, accounts or channels, including Claims relating to the accuracy, legality, clinical appropriateness or regulatory compliance of that content; (iv) the Client’s failure to obtain any consent, release, authorization or licence required for Personal Information, PHI, testimonials, reviews, images, voice or likeness; (v) the Client’s products or services, or any Claim relating to the practice of medicine, dentistry, nursing or the provision of health care; or (vi) the Client’s violation of any applicable law, professional standard, platform policy or advertising rule.

Procedure. We will give the Client prompt written notice of a Claim for which we seek indemnification. The Client will assume the defence of the Claim with counsel reasonably acceptable to us. We have the right, but not the obligation, to participate in the defence through counsel of our own choosing at the Client’s expense. The Client will not settle any Claim in a manner that imposes any obligation, admission, payment, restriction or liability on any Indemnified Party, or that fails to include a complete release of the Indemnified Parties, without our prior written consent, which we may withhold in our sole discretion.

Failure to defend. Where the Client does not assume and diligently conduct the defence of a Claim within ten (10) Business Days after receiving notice of it, we may retain our own counsel and conduct the defence, and the Client will be liable for all reasonable fees, disbursements and costs we incur, together with any settlement we enter into in good faith in respect of that Claim.

Design Aesthetics indemnity. Subject to Section 15, we will defend the Client against a third-party claim alleging that a Deliverable created by Design Aesthetics specifically for the Client and delivered under an Agreement infringes a Canadian copyright, registered trade-mark or registered industrial design of a third party, and will pay damages finally awarded against the Client by a court of competent jurisdiction, or amounts payable under a settlement we approve in writing, provided that the Client: (i) gives us prompt written notice of the claim; (ii) grants us sole control of the defence and settlement of the claim; (iii) provides reasonable cooperation, information and authority; (iv) does not make any admission or settlement without our written consent; and (v) is not in breach of these Terms. This indemnity does not apply to the extent that the claim arises out of or is contributed to by: Client Materials; the Client’s instructions, specifications or modifications; modifications made by the Client or a third party; the combination of a Deliverable with anything not supplied by us; the use of a Third-Party Service or open-source component; or use of the Deliverable for a purpose other than the purpose for which it was provided.

Sole remedy. This Section, together with the warranty remedy in Section 14, sets out the parties’ exclusive rights and remedies in respect of third-party claims and defects in the Deliverables.

Term, Suspension and Termination

Term. Recurring content engagements have an initial term of three (3) months commencing on the date we begin delivery, which the parties agree is the minimum period required to onboard, establish the recording and approval routine, and publish a meaningful body of content. Unless an Agreement provides otherwise, after the initial term the Engagement continues on a month-to-month basis and renews for successive monthly periods.

Suspension. We may suspend performance, withhold Deliverables, revoke access and, where applicable, take hosted services offline, immediately and without liability, where: (i) Fees or other amounts are overdue; (ii) the Client is in material breach of these Terms or an Agreement; (iii) we reasonably believe that the Client’s instructions or use of the Services are unlawful, infringing or misleading, or would expose us to liability or regulatory risk, including claims relating to unpermitted health claims or advertising; (iv) continued performance would violate applicable law, professional standards or a Third-Party Service’s terms; or (v) the Client becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to bankruptcy, receivership or similar proceedings. Suspension does not relieve the Client of its payment obligations.

Termination for cause. Either party may terminate an Engagement for a material breach that remains uncured thirty (30) days after written notice describing the breach in reasonable detail, or, in the case of a payment default, fifteen (15) days after written notice. Either party may terminate immediately for cause where the other party becomes insolvent or commits a breach that cannot be cured. We may terminate an Engagement or decline to renew it for convenience on thirty (30) days’ written notice, in which case the Client will pay for all work performed and expenses incurred to the effective date.

Termination by the Client. The Client may terminate a recurring Engagement on thirty (30) days’ written notice, effective at the end of the then-current monthly period, provided that the initial three-month term has been completed. Fees for the notice period and for work in progress remain payable, and no refund or credit is given for unused pieces, unused sessions or the unused portion of any prepaid period.

Effect of termination. On termination or expiry of an Engagement: (i) all Fees for work performed, non-cancellable third-party commitments and expenses incurred to the effective date become immediately due and payable; (ii) all licences granted to the Client in respect of Deliverables for which payment has not been made terminate; (iii) we may revoke access to hosting, environments, administrative panels and platform accounts that we administer; (iv) we may take hosted sites and services offline, and we are not responsible for any resulting loss of access, visibility or data; (v) the Client will have ten (10) Business Days after termination to retrieve Client Materials that are made available in the ordinary course, after which we may delete them without further notice, subject to our retention obligations; and (vi) on request, we will provide reasonable transition assistance, including export of content and handover of credentials, at our then-published rates and subject to availability.

Survival. Sections 1 through 20, together with any other provision that by its nature should survive, survive the termination or expiry of an Agreement, including those relating to definitions, fees and payment, intellectual property, confidentiality, privacy, warranties and disclaimers, limitation of liability, indemnification, governing law, dispute resolution and general provisions.

Governing Law and Dispute Resolution

Governing law. These Terms and each Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario, without regard to conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Subject to this Section, each party irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario, sitting in Toronto.

Negotiation. Before commencing mediation, arbitration or any proceeding (other than an application for interim or injunctive relief), the parties will attempt in good faith to resolve any dispute arising out of or relating to an Agreement by negotiation between senior representatives of each party, beginning with written notice describing the dispute delivered within fifteen (15) Business Days after the dispute arises.

Mediation. If the dispute is not resolved by negotiation within thirty (30) days after the notice, the parties will submit the dispute to non-binding mediation in Toronto before a mediator agreed by the parties or, failing agreement within ten (10) Business Days, appointed by the ADR Institute of Canada. The parties will share the mediator’s fees equally and will each bear their own costs of participating.

Arbitration. If the dispute is not resolved within thirty (30) days after the mediation begins, the dispute will be finally resolved by binding arbitration under the Arbitration Act, 1991 (Ontario), before a single arbitrator with experience in commercial and technology matters, seated in Toronto, and conducted in English. The arbitrator has no authority to award damages excluded or limited by Section 15, or to award punitive or exemplary damages. The award is final and binding, and judgment may be entered on it in any court of competent jurisdiction.

Carve-outs. Either party may apply to a court of competent jurisdiction for interim, interlocutory or injunctive relief, including to protect Confidential Information, intellectual property or privacy, or to enforce payment obligations, and either party may bring a claim in the Small Claims Court of Ontario for amounts within that court’s monetary jurisdiction.

Costs. The prevailing party in any arbitration or proceeding arising out of or relating to an Agreement is entitled to recover its reasonable legal fees, disbursements, expert fees and the costs of the proceeding from the other party on a substantial indemnity basis.

General Provisions

Entire agreement

These Terms, together with the applicable Agreement and any document expressly incorporated by reference, constitute the entire agreement between the parties with respect to their subject matter and supersede all prior and contemporaneous proposals, negotiations, representations, warranties, understandings and agreements, whether written or oral, relating to that subject matter. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation, warranty, collateral contract, projection or assurance that is not expressly set out in these Terms or in an Agreement.

No reliance on marketing statements

Information on the Site, in proposals, presentations, pitches, marketing materials, case studies, portfolio items and conversations is provided for general information only, does not form part of any Agreement, and must not be relied upon as a statement of fact, capability, capacity, timeframe, result or availability. The Client acknowledges that it has not relied on any such information in entering into an Agreement, and that its decision to engage us was based solely on the terms of the Agreement.

Amendment and waiver

No amendment to these Terms is effective unless posted by us in accordance with Section 20 or agreed in writing by both parties. No waiver of any provision is effective unless in writing and signed by the waiving party. No failure or delay in exercising any right, power or remedy operates as a waiver of it, and no single or partial exercise of any right, power or remedy precludes any further exercise of it or of any other right, power or remedy. All rights and remedies under these Terms are cumulative and are in addition to, and not in substitution for, any right or remedy available at law or in equity.

Assignment

We may assign, transfer, delegate or subcontract these Terms or any Agreement, in whole or in part, including in connection with a reorganization, financing, change of control, merger or sale of assets, without the Client’s consent, and may perform the Services through subcontractors. The Client may not assign, transfer, delegate, sublicense or otherwise dispose of these Terms or any Agreement, in whole or in part, whether by operation of law or otherwise, without our prior written consent, and any purported assignment without that consent is void.

Independent contractors

The parties are independent contractors. Nothing in these Terms creates or implies any partnership, joint venture, agency, fiduciary, franchise, employment or similar relationship between the parties, and neither party has authority to bind the other or to make any representation on the other’s behalf.

Notices

Notices must be in writing and are validly given by email to the addresses the parties have used in the Engagement, by hand, or by courier to the addresses stated in an Agreement or, in our case, to the address set out in Section 20. Email notice is deemed received on the next Business Day after transmission, unless the sender receives a delivery failure notification. Notices to the Client may be sent to the email address most recently provided by the Client. We may give notice of changes to these Terms by posting the amended version on the Site. Legal notices must be sent to the address in Section 20 with the subject line “Legal Notice”.

Force majeure

Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control, including acts of God, natural disaster, severe weather, epidemic or pandemic, war, terrorism, civil unrest, labour dispute, cyber-attack, denial-of-service attack, failure of the public internet or a utility, and failure, delay, unavailability or material change of a Third-Party Service. Where such an event continues for more than thirty (30) days, either party may terminate the affected Engagement on written notice without liability, other than for amounts already due.

Severability and savings

If any provision of these Terms or of an Agreement is held to be invalid, illegal or unenforceable by a court or arbitrator of competent jurisdiction, that provision will be severed or, where possible, modified to the minimum extent necessary to make it valid and enforceable while preserving the parties’ intent, and the remaining provisions will continue in full force and effect.

Third-party beneficiaries

Except for the Indemnified Parties in respect of Section 16, and our affiliates, subcontractors, Service Providers and licensors in respect of Sections 14, 15 and 16, there are no third-party beneficiaries to these Terms, and no other person has any right to enforce them.

Consumer and statutory rights

Nothing in these Terms excludes, restricts or modifies any right, warranty, condition, guarantee or remedy that cannot lawfully be excluded, restricted or modified, including under applicable consumer protection legislation where it applies. Where such legislation applies, our liability is limited to the maximum extent permitted by that legislation.

Electronic contracting

The parties agree that these Terms, any Agreement and any related document may be accepted, signed, delivered and stored electronically, and that electronic signatures, click-through or checkbox acceptance, acknowledgement by email and scanned or emailed counterparts are valid and binding. Each party waives any objection to the enforceability of a document on the basis that it was concluded, signed or delivered electronically, and agrees that electronic records satisfy the writing and signature requirements of applicable law, including the Electronic Commerce Act, 2000 (Ontario).

Interpretation

Headings are for reference only and do not affect interpretation. “Including” means “including without limitation”. “Or” is not exclusive. A reference to a statute includes its regulations and any amendment or replacement. The singular includes the plural and vice versa. All amounts are in Canadian dollars unless stated otherwise. No rule of construction applies against the party that drafted a provision, and each party confirms that it has had the opportunity to obtain independent legal advice.

Changes to These Terms and Contact

We may amend, restate or replace these Terms at any time by posting the amended version on this page with a revised “Last Updated” date. The amended version takes effect on posting, except that: (i) a material change applies to an existing Engagement prospectively only, from the effective date, and does not apply retroactively to a Deliverable that has been finally accepted and paid for, or to a fixed fee period already paid; and (ii) where required by applicable law, we will give notice of a material change before it takes effect, including by email to the address we most recently used in the Engagement or by notice on the Site.

Your continued use of the Site or the Services after the effective date constitutes acceptance of the amended Terms. If you do not accept an amendment, your remedy is to stop using the Site and to terminate any recurring Engagement in accordance with Section 17, in which case all Fees for work performed and all amounts owing to the effective date remain payable.

Contact. Design Aesthetics, Suite 5700, 100 King Street West, Toronto, ON M5X 1A9, Canada. Email: [email protected]. Telephone: +1 888 546 3470. Legal notices must be sent to that address and email address with the subject line “Legal Notice”.