Expert Marketing-Check Terms & Conditions

Company:
Smokybrands Marketing Agency Inc.
92 Caplan Ave., Suite 634
Barrie, ON L4N 9J2
Canada
Business Number (BN): 715968368TZ0001
Ontario Corporation Number: 1001446318
Email: info@smokybrands-marketing.ca
Phone: +1 (416) 302-4098

1. Scope of Application

These Terms & Conditions (“Terms”) apply exclusively to the Expert Marketing-Check service (“Service”) provided by Smokybrands Marketing Agency Inc. (“Company,” “we,” “us”) to business clients (“Client” or “you”).

These Terms apply exclusively to clients acquiring the Service for business or commercial purposes and not for personal, family, or household use. Nothing in these Terms excludes or limits any right or obligation that cannot lawfully be excluded or limited under applicable law.

With respect to the Service, these Terms and the related contractual relationship shall become legally binding upon the earlier of: (i) the Client’s submission of a binding order through the Company’s website or ordering interface, where such submission is designated as a binding order; or (ii) the Company’s issuance of an order confirmation, acceptance email, invoice, or other written confirmation stating or reasonably confirming that the order has been accepted.

For greater certainty, the contractual relationship may be formed electronically and is not conditional upon payment unless the applicable order page, order confirmation, invoice, or other written agreement expressly states otherwise. Payment obligations arise as set out in these Terms and the Master Agreement.

Relationship to Contract Terms; Integration; Priority.

These Expert Marketing-Check Terms & Conditions (“Service Terms”) supplement and are subject to the Company’s general Contract Terms (the “Master Agreement”), available at https://smokybrands-marketing.ca/contract-terms/.

These Service Terms and the Master Agreement shall be read and interpreted together as a single, integrated agreement.

In the event of any conflict, inconsistency, or discrepancy between the Master Agreement and these Service Terms, these Service Terms shall prevail solely with respect to the specific Expert Marketing-Check service and only to the extent of such conflict.

In all other respects, the Master Agreement shall remain fully applicable and controlling.

The Client expressly acknowledges that by submitting a binding order for the Service, or by receiving an order confirmation, acceptance email, invoice, or other written confirmation from the Company reasonably confirming acceptance of the order, the Client agrees to be legally bound by both the Master Agreement and these Service Terms.

2. Binding Order / Acceptance

An order for the Service shall become binding upon the earlier of the following:

• the Client’s submission of a binding online order, where the applicable order page or order form expressly states that submission constitutes a binding order; or
• the Company’s issuance of an order confirmation, acceptance email, invoice, or other written communication stating or reasonably confirming that the order has been accepted.

Where the applicable order page or order form expressly states that submission constitutes a binding order, the contractual relationship for the Service shall become legally binding immediately upon submission by the Client, without the need for any further act, signature, or payment.

Where no such designation is made, the Company may accept the Client’s order by issuing an order confirmation, acceptance email, invoice, or other written communication stating or reasonably confirming that the order has been accepted, at which point the contractual relationship for the Service shall become legally binding.

The Client represents and warrants that any person submitting an order, approving the Service, accepting an invoice, or otherwise communicating acceptance on behalf of the Client has full authority to bind the Client contractually.

The Client is responsible for ensuring that its internal approval and authorization requirements have been satisfied before an order is submitted. The Company may reasonably rely on communications and approvals received from the Client’s apparent authorized representatives, subject to applicable law.

Following acceptance, the Company may issue an order confirmation, invoice, or related written communication. The Client must promptly notify the Company of any apparent error or inconsistency. Failure to object within five (5) business days may be considered evidence that the communication accurately reflects the agreed commercial terms, but does not override applicable law or a contrary binding written agreement.

3. Nature of the Service

The Expert Marketing-Check is a limited-scope, opinion-based professional review of observable aspects of the Client’s website, digital presence, and marketing setup.

The Service is based on:

• publicly accessible information;
• information and materials provided by the Client;
• professional judgement and experience.

The Service may include review of observable factors such as:

• website structure and user experience;
• positioning and offer communication;
• trust signals and credibility factors;
• visible SEO weaknesses;
• technical quality signals reasonably identifiable without invasive testing;
• mobile responsiveness;
• visible marketing inconsistencies or inefficiencies;
• conversion-related issues and strategic blind spots.

4. Strict Scope Limitation

The Service is a compact review product with limited scope.

Unless expressly agreed in writing, the Service does not include:

• implementation work;
• revisions beyond the originally delivered version;
• ongoing consulting or advisory services;
• campaign management;
• ongoing SEO work;
• legal review;
• compliance review;
• accessibility review;
• privacy or data protection review;
• cybersecurity audit;
• financial, tax, or accounting advice;
• exhaustive technical testing;
• guarantees of completeness, correctness, or business effectiveness.

The Service is not exhaustive and does not identify all possible issues.

Any services outside the expressly agreed scope shall require a separate written agreement and may be billed separately.

4A. Scope Interpretation / No Implied Deliverables

The scope of the Expert Marketing-Check is limited strictly to the items expressly described in the Service description, proposal, or order confirmation.

Any expectation, assumption, interpretation, or understanding by the Client that is not explicitly stated in writing by the Company shall not form part of the agreed scope.

The Client acknowledges that:

• the Service is a limited review product and not a comprehensive audit or consulting engagement;
• not all potential issues, weaknesses, or opportunities will be identified;
• depth of analysis may vary depending on available information and professional judgement.

The Company retains sole and final discretion regarding:

• the depth and focus of the analysis;
• the selection of reviewed elements;
• the prioritization of findings;
• the structure and format of the deliverables.

Any request by the Client that exceeds the defined scope shall be treated as a separate service and may be refused or quoted separately at the Company’s discretion.

4B. Chargeback and Payment Dispute Restriction

Before initiating a chargeback, reversal, or payment dispute, the Client must first provide the Company with written notice describing the disputed amount and a reasonable opportunity to review and respond, except where immediate action is reasonably necessary because of suspected fraud or unauthorized payment.

Subjective dissatisfaction, disagreement with professional findings, or failure to achieve a desired business outcome does not, by itself, establish that a validly ordered and performed Service was unauthorized or not provided.

A chargeback or payment dispute made without a reasonable contractual or legal basis may constitute a material breach. The Company may seek recovery of amounts properly owing and reasonable costs of responding to an improper dispute, to the extent permitted by applicable law.

5. No Reliance / Independent Decision-Making

All findings, observations, recommendations, summaries, comments, or opinions are provided for informational purposes only.

The Client acknowledges and agrees that:

• all business decisions are made independently by the Client;
• the Client assumes sole responsibility for all actions taken or not taken based on the Service;
• the Company is not responsible for the Client’s interpretation, implementation, or use of the Service.

The Client expressly agrees not to rely on the Service as the sole basis for any business, financial, legal, technical, advertising, or strategic decision.

6. No Guarantee of Results

The Company does not guarantee any specific outcome or result, including but not limited to:

• search rankings;
• website traffic;
• inquiries or leads;
• conversion rates;
• advertising efficiency;
• revenue;
• profitability;
• return on investment;
• brand growth;
• business performance of any kind.

Any examples, projections, revenue illustrations, performance scenarios, or explanatory comparisons are for illustrative purposes only and do not constitute guarantees, warranties, or promises of results.

7. Fees and Payment

The fee for the Service is the fee stated in the applicable offer, proposal, service page, invoice, or order confirmation.

Unless otherwise agreed in writing, payment shall be structured as follows:

• A non-refundable advance payment of thirty percent (30%) of the total fee shall be due within seven (7) calendar days after the earlier of: (i) the Client’s submission of a binding order; or (ii) the Company’s issuance of an order confirmation, invoice, or payment request.
• The remaining seventy percent (70%) is due within seven (7) calendar days after delivery of the final report to the Client by email, unless otherwise stated in the applicable order confirmation, invoice, or written agreement.

The Company shall have no obligation to commence work, allocate resources, reserve capacity, schedule delivery, or begin performance until the required advance payment has been received in cleared funds.

All payments are non-refundable once work has commenced.

If the Client fails to pay the remaining balance within the specified period:

• the Company may suspend any further communication or support;
• all outstanding amounts shall become immediately due;
• the Company may charge reasonable late fees and interest at the rate stated on the applicable invoice or, if no rate is stated, at the maximum lawful rate;
• the Company may initiate collection or legal enforcement proceedings.

The Client shall be responsible for reasonable collection and enforcement costs to the extent recoverable under applicable law, a court order, an arbitral award, or a binding written agreement.

7A. No Withholding of Payment

Delivery of the Service does not depend on subjective satisfaction.

The Client shall not withhold, delay, reduce, or offset any payment based on:

• dissatisfaction;
• disagreement with findings;
• perceived incompleteness;
• or subjective expectations.

Payment obligations are independent of the Client’s subjective evaluation of the Service.

8. Chargebacks

A chargeback, reversal, or payment dispute initiated without a reasonable contractual or legal basis in relation to a validly ordered Service may constitute a material breach of contract.

The Client remains responsible for amounts properly owing and for reasonable collection or enforcement costs awarded or recoverable under applicable law or a binding dispute-resolution decision.

9. Ownership Retention / Intellectual Property

All reports, analyses, texts, observations, recommendations, frameworks, summaries, and other deliverables remain the intellectual property of the Company until full payment has been received.

Upon full payment, the Client receives a limited, non-exclusive, non-transferable licence to use the delivered materials internally for the Client’s own business purposes only. The licence may be terminated if the Client materially breaches the applicable use restrictions and fails to remedy the breach after written notice where a remedy is reasonably possible.

The Client may not, without prior written consent:

• reproduce;
• publish;
• resell;
• sublicence;
• distribute;
• commercialize;
• provide to third parties for commercial use.

10. Delivery

Delivery is typically made in one or more of the following forms, depending on the purchased format:

• written report;
• summary findings;
• written observations and recommendations;
• optional review call or presentation, if included or separately agreed.

Any delivery timeframe is an estimate only unless explicitly stated in writing as binding.

The Company shall not be liable for delays caused by missing Client information, missing access, late approvals, technical issues, third-party outages, or circumstances beyond reasonable control.

11. Limited Interaction / Revisions

Unless otherwise agreed in writing, the Service includes one completed Expert Marketing-Check only.

The Service does not include:

• additional revisions;
• updated reviews;
• re-checks;
• re-audits;
• expanded analysis;
• ongoing support;
• extended Q&A.

The Company may, at its sole discretion, answer minor clarification questions, but is under no obligation to provide additional work without a separate agreement.

12. Client Responsibilities

The Client must:

• provide complete, accurate, and lawful information;
• provide all required materials, URLs, context, and access in a timely manner;
• ensure that provided materials do not violate any law or third-party rights.

The Company is not liable for incomplete, inaccurate, outdated, or misleading conclusions caused by:

• incomplete Client input;
• inaccurate Client input;
• missing access;
• outdated information;
• misleading or unlawful Client-provided content.

13. No Legal, Financial, or Compliance Advice

The Service does not constitute:

• legal advice;
• financial advice;
• tax advice;
• accounting advice;
• regulatory advice;
• compliance advice;
• privacy or data protection advice;
• accessibility advice;
• cybersecurity advice.

The Client remains solely responsible for compliance with all applicable laws, regulations, standards, and obligations.

14. Third-Party Services / Platforms / Data / Software

The Company shall not be liable for any issue caused in whole or in part by third parties, including but not limited to:

• websites or platforms controlled by the Client;
• analytics tools;
• advertising platforms;
• CMS systems;
• plugins;
• APIs;
• hosting services;
• search engine changes;
• algorithm changes;
• outages;
• software failures;
• cyberattacks;
• hacks;
• malware;
• ransomware;
• data loss.

The Company does not guarantee uninterrupted access to any third-party platform or data source and is not liable for platform-side errors, outages, restrictions, or inaccuracies.

15. Confidentiality

Both parties agree to keep confidential all non-public business, technical, strategic, financial, and proprietary information disclosed in connection with the Service.

This obligation does not apply to information that:

• is publicly known without breach;
• becomes publicly known without breach;
• was already lawfully known by the receiving party;
• must be disclosed by law or legal process.

Confidentiality obligations survive termination.

16. Disclaimer of Warranties

To the maximum extent permitted by law, the Service is provided “as is” and “as available.”

The Company disclaims all warranties, express or implied, including but not limited to:

• merchantability;
• fitness for a particular purpose;
• non-infringement;
• accuracy;
• completeness;
• uninterrupted availability.

17. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SPECIFIC EXPERT MARKETING-CHECK GIVING RISE TO THE CLAIM SHALL NOT EXCEED THE FEES ACTUALLY PAID TO THE COMPANY FOR THAT SERVICE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL NOT BE LIABLE FOR:

• indirect damages;
• consequential damages;
• incidental damages;
• special damages;
• exemplary damages;
• punitive damages;
• loss of profits, revenue, business, data, goodwill, opportunity, advertising value, reputation, or business continuity.

THIS LIMITATION APPLIES REGARDLESS OF THE CAUSE OF ACTION, INCLUDING CONTRACT, TORT, NEGLIGENCE, OR MISREPRESENTATION, BUT DOES NOT EXCLUDE LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED, INCLUDING LIABILITY ARISING FROM FRAUD OR WILFUL MISCONDUCT TO THE EXTENT SUCH EXCLUSION IS PROHIBITED.

This limitation applies together with the Master Agreement. If the agreements contain different valid liability caps for the same claim, the more specific Service Terms govern that claim.

18. Exclusive Remedy

Where the Company is responsible for a material failure to provide the agreed Service, the Company may, at its reasonable option and subject to applicable law:

• re-perform the affected portion of the Service;
• correct or replace the affected deliverable; or
• provide an appropriate partial refund or credit.

Fees are otherwise non-refundable once work has commenced, resources have been allocated, or the Service has been delivered, except where a refund is required by applicable law or expressly agreed in writing.

Nothing in this Section limits a remedy that cannot lawfully be excluded.

19. Indemnification

The Client shall indemnify and hold harmless the Company and its directors, officers, employees, contractors, and affiliates from third-party claims, liabilities, damages, losses, and reasonable legal costs arising directly from:

• unlawful or infringing Client-provided content or information;
• the Client’s unauthorized or unlawful misuse of the Service;
• the Client’s breach of these Terms; or
• the Client’s violation of applicable law or third-party rights.

The Company shall provide reasonably prompt notice of an indemnified claim and reasonable cooperation. The Client may not settle a claim in a manner that admits liability on behalf of, imposes non-monetary obligations on, or materially prejudices the Company without the Company’s prior written consent, not to be unreasonably withheld.

20. Force Majeure

The Company shall not be liable for delay or failure to perform caused by events beyond reasonable control, including but not limited to:

• natural disasters;
• fire;
• flood;
• internet outages;
• power outages;
• cyberattacks;
• illness;
• labor shortages;
• governmental actions;
• war;
• civil unrest;
• supplier failures;
• platform failures.

Any delivery estimate shall be extended by the duration of the relevant disruption.

21. Suspension / Refusal / Termination

The Company may suspend, refuse, or terminate the Service immediately if:

• payment is not received;
• required information is not provided;
• the Client becomes abusive, unreasonable, or uncooperative;
• performance becomes impracticable, commercially unreasonable, or inappropriate.

If the Client terminates after work has started, all amounts paid remain non-refundable and any unpaid work already performed shall become immediately due.

22. Dispute Resolution / Arbitration / Fees

These Terms and the Service are governed by the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario, without regard to conflict-of-laws rules that would require the application of another jurisdiction’s laws.

Before commencing formal proceedings, the parties shall make reasonable good-faith efforts to resolve the dispute through written notice and direct discussion.

Unless the parties agree otherwise in writing, any dispute arising out of or relating to the Service that is not resolved informally shall be finally resolved by confidential arbitration seated in Barrie, Ontario, in English, by one arbitrator under the Arbitration Act, 1991 (Ontario). The arbitrator may conduct the proceeding remotely and may award any remedy available under applicable law and the agreement.

Either party may apply to a court of competent jurisdiction in Ontario for urgent injunctive or protective relief, enforcement of an arbitral award, collection of an undisputed debt, or another matter that cannot lawfully or practically be submitted to arbitration.

The allocation of arbitration fees, legal costs, and other proceeding costs shall be determined by the arbitrator or court in accordance with applicable law. Nothing in this Section prevents the parties from agreeing to mediation or another consensual resolution process.

23. Survival

Any provision that by its nature should survive termination shall survive termination, including but not limited to provisions relating to:

• payment;
• chargebacks;
• intellectual property;
• confidentiality;
• disclaimers;
• limitation of liability;
• exclusive remedy;
• indemnification;
• dispute resolution;
• legal costs;
• governing law and dispute resolution.

24. No Waiver

Failure by the Company to enforce any provision of these Terms shall not constitute a waiver of any right or provision.

25. Amendments

No amendment, modification, supplement, or waiver of these Terms is effective unless recorded in a written or electronic document that expressly refers to these Terms and is agreed to by authorized representatives of the parties.

A waiver is limited to the specific circumstance for which it is given and does not constitute a continuing waiver.

Oral statements, informal discussions, conduct, delay in enforcement, or a course of dealing do not amend these Terms unless the amendment is subsequently confirmed in an agreed written or electronic record.

26. Electronic Communications and Notices

The parties agree that orders, confirmations, invoices, notices, approvals, and other contractual communications may be provided electronically.

A notice sent by email is deemed received on the next business day after transmission, unless the sender receives a delivery-failure notice or has reason to believe that the message was not received.

The Client must keep its contact and billing information current and promptly notify the Company of any changes.

27. Severability

If any provision of these Terms is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

28. Entire Agreement

These Service Terms, the Master Agreement, and any applicable proposal, invoice, order confirmation, and written service description constitute the entire agreement relating to the Service and supersede prior discussions, representations, and understandings relating to that Service, except in the case of fraud.