Terms and Conditions

These are the Terms and Conditions on which Dianne KelySmith (“KelySmith”) will carry out work for you. By placing an order for any of the packages or services set out on our Website, or accepting any quotation for Services, you are deemed to have accepted these Terms and Conditions.

Additional Fees means fees applicable to Services not foreseen or not requested by the Client before commencement of the Services including:

(a) content not in the appropriate format;
(b) extra workshops or workshops requiring additional hours;
(c) requested additional design concepts/alterations;
(d) requested changes to the design or scope of works after final approval has been requested or provided; and
(e) purchasing Content required to provide the Services.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Client means the individual or entity requesting the provision of Services from KelySmith.

Confidential Information of a party means any information regarding that party’s business or affairs or that party’s customers, employees, or other people doing business with that party which is:

(a) by its nature confidential;
(b) designated as confidential by that party at the time of disclosure; or
(c) which the other party knows or ought to know is confidential.

Confidential information does not include information, documents or materials that are common property, are required to be disclosed by law or are available in the public domain in Australia otherwise than by a breach of these Terms and Conditions.

Content includes written material/copy, images, photos, fonts, audio and video.

Fees means the fees stated on the Package and Pricing Guide available on KelySmith’s website or otherwise provided to the Client and includes any Additional Fees.

Intellectual Property Rights includes all worldwide registered and unregistered copyrights, trade marks, designs, patents, inventions, brands, logos, circuit layout rights, concepts, catch phrases and other similar industrial property rights and rights to registration of such rights whether created before or after the provision of the Services or as developed during the course of providing the Services.

Moral Rights are defined in Section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.

Services means the email marketing, website content changes and integration, software integration and business automation services provided by KelySmith or any part thereof. The Services will be more particularly described in a written proposal or quotation provided to the Client by KelySmith and the terms of such proposal or quotation should be read in conjunction with these Terms and Conditions.

Tax Invoice means includes any document or records treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.

Term means the term commencing on the date the Services commence and ending in accordance with clause 4 of these Terms and Conditions.

Website means www.diannekelysmith.com.


2.1 KelySmith shall provide the Services to the Client on dates and times to be mutually agreed between the parties.
2.2 The Client may request a variation of the Services by notice in writing to KelySmith. If KelySmith accepts such variation, KelySmith will advise the Client of the date the variation will take effect and the updated Fees applicable.
2.3 During the provision of the Services, KelySmith will seek the Client’s approval of strategies, content, schedules, website changes, social media posts and other elements of the Services. The Client must provide its approval or otherwise as soon as practically possible after receiving a request for approval from KelySmith and the Client will be deemed to have approved where a response is not received by KelySmith within 5 business days of a request.
2.4 If a variation of the Services or any part thereof is required after approval is given in accordance with clause 2.3, Additional Fees will apply and KelySmith will provide the Client with an updated fee proposal or quotation before carrying out any further Services.


3.1 Fees for packaged Services are payable monthly in advance. Fees for ad hoc, pay as you go Services or Additional Fees are payable monthly in arrears.
3.2 Except where payment is required in advance of the provision of Services, Fees are payable within 14 days of receipt of a Tax Invoice. Tax Invoices are issued on the first of each month for the month prior.
3.3 The Client must pay interest on any outstanding Fees at a rate of 10% per annum, calculated daily. 3.4 KelySmith reserves the right to suspend the provision of Services until any overdue Fees are paid.
3.5 Fees may be varied from time to time by 30 days notice in writing to the Client.
3.6 Unless otherwise, the Fees are exclusive of GST.


4.1 Except as provided for in clause 4.1, either party may terminate the Services by 30 days written notice to the other party.
4.2 If KelySmith becomes incapable of providing the Services through illness or otherwise, KelySmith may terminate the Services by notice in writing to the Client effective immediately.
4.3 KelySmith may terminate the Services immediately without notice and without any right for the Client to claim damages of any kind if:

(a) the Client breaches these Terms and Conditions;
(b) the Client becomes the subject of bankruptcy, administration, liquidation or winding up procedures or otherwise is or becomes or threatens to become insolvent;
(c) the Client becomes a person whose person’s estate is liable to be dealt with any way under the laws relating to mental health; or
(d) the Client ceases, or threatens to cease to carry on business for any reason.

4.4 In the event that the Services are terminated, the Client must pay to KelySmith any Fees due for Services performed up to the date of termination.


5.1 The Client must supply to KelySmith, all Content required to allow KelySmith to provide the Services, and all other Content KelySmith reasonably requests, in a timely manner.
5.2 The Client must supply all Content in the following digital format/s:

(a) text/copy: Microsoft Word or Rich Text (clearly labelled and in correct order);
(b) tables: Microsoft Excel (clearly labelled and in correct order);
(c) images: high resolution where possible (JPEG, PNG files);
(d) logos: vector format (Illustrator EPS/AI) and JPEG files;
(e) diagrams/maps: vector format (AI) or (JPEG files); and (f) if required, access to the Client’s current website and database via SSH, FTP and/or CMS/hosting control panel login;

5.3 The Client must also provide to KelySmith: (a) usernames and passwords for any social media platforms required for KelySmith to carry out the Services’ (b) brand style guidelines (if applicable); (c) any taglines, brand messages, mission statements, vision statements, etc; and (d) any other professional or branded images required to carry out the Services.
5.4 KelySmith may charge Additional Fees if Content is not provided in the appropriate format or if Content is not supplied when requested and KelySmith is required to source Content from third parties in order to carry out the Services.
5.5 The Client confirms that it agrees with any terms and conditions of use, posting or advertisement placement on any of the social media platforms it authorises KelySmith to engage with on its behalf.
5.6 The Client must ensure that a payment method has been set up to any social media accounts for our approved ads and/or boosted posts as necessary.
5.7 The Client is responsible for all subscriptions for domains, website hosting and any software or platforms used in the provision of the Services. The Client must ensure that any subscriptions are valid and available for use.


6.1 Any Intellectual Property Rights owned by, or created by KelySmith during the provision of the Services, are the exclusive property of KelySmith. KelySmith grants the Client a royalty free, non-exclusive licence to use KelySmith’s Intellectual Property Rights supplied during the course of providing the Services to the extent required for the Client to use for its purposes.
6.2 The Client must not, without the prior written consent of KelySmith:

(a) adapt, create derivative works from or merge the template or other Intellectual Property provided during the provision of the Services;
(b) use any Intellectual Property provided by KelySmith for any purpose other than the specific purpose for which KelySmith have provided it;
(c) reverse engineer, disassemble or decompile any Intellectual Property provided by KelySmith; or
(d) distribute, lend, resell, transfer, assign or sublicence any Intellectual Property provided by KelySmith, or allow any other person to use it.

6.3 The Client warrants that the materials or content provided to KelySmith, will not breach any rights (including Intellectual Property Rights or Moral Rights) of any third party or compromise the security or operation of KelySmith’s computer systems, through a virus or otherwise.
6.4 The Client acknowledges that where Content is purchased or licensed from a third party by KelySmith, KelySmith will be the purchaser or license holder and must comply with the terms of any purchase or licence. Any breach of these Terms and Conditions by the Client may result in a breach of any licence KelySmith has entered into in obtaining the Content and the Client indemnifies KelySmith for any such loss.
6.5 The Client agrees that KelySmith may use any of part of the Services for promotional and portfolio purposes.
6.6 The Client authorises KelySmith to place its company logo and case study on its website or promotional collateral for promotional purposes.


7.1 Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.

7.2 Subject to KelySmith’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, KelySmith expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.


8.1 To the fullest extent permissible by law, KelySmith is not liable (whether in contract or tort) for: (a) faults or defects in any services or goods provided by third parties in connection with the Services; or (b) any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not KelySmith knew of the possibility of such loss and whether or not such loss was foreseeable.
8.2 To the fullest extent permitted by law, the liability of KelySmith for a breach of a non-excludable condition is limited to the supplying of the Services again or payment of the cost of having the Services supplied again.
8.3 KelySmith makes no warranties or guarantees regarding the likelihood of success of, or the performance of any marketing or promotional activity undertaken as part of the Services.
8.4 The Client acknowledges that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore provision of the Services may not be error-free or uninterrupted.


9.1 The Client indemnifies and holds harmless KelySmith in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:

(a) any breach of these Terms and Conditions;
(b) any negligent acts or omissions of the Client;
(c) the Client’s use of the Services, including any third party claims made in connection with or arising out of the Client’s use of the Services, other than use in accordance with these Terms and Conditions; and
(d) breach of third party Intellectual Property;


10.1 Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these Terms and Conditions, or any details of Fees. This obligation of confidence extends to Confidential Information obtained by a party before these Terms and Conditions were in force. Each Party shall refrain from making negative comments about the other Party, whether online or in person.
10.2 Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.


11.1 The parties agree to attempt in good faith to resolve any dispute regarding these Terms and Conditions through negotiation including negotiation with the assistance of an agreed mediator.
11.2 If the dispute or difference is not resolved to the satisfaction of the parties within 30 days, either party may request the matter to be heard by an arbitrator.
11.3 Arbitration shall be effected:

(a) by an arbitrator agreed upon in writing by the parties; or
(b) in the absence of such agreement, by an arbitrator appointed in accordance with the provisions of the law relating to arbitration in force in the State of Queensland; or
(c) by an arbitrator appointed by the National President for the time being of the Institute of Arbitrators Australia.

11.4 KelySmith may pause the provision of the Services to conduct whatever investigations deemed appropriate and, within 90 days of the given written notice, seek to resolve the dispute.


12.1 Any notice provided under these Terms and Conditions must be in writing, addressed to the other party’s contact persons as notified by the other party.
12.2 These Terms and Conditions do not create a relationship of employment, agency or partnership between the parties.
12.3 KelySmith may sub-contract its obligations under these Terms and Conditions.
12.4 The failure of a party at any time to insist on performance by the other party of an obligation under these Terms and Conditions is not a waiver of any of its rights.
12.5 If part or all of any of the provisions of these Terms and Conditions are illegal or unenforceable, it will be severed from these Terms and Conditions, and will not affect the continued operation of the remaining provisions.
12.6 KelySmith may vary these Terms and Conditions from time to time. Any varied Terms and Conditions will apply to Services which that commences after the date that KelySmith publishes the varied terms and conditions. The Client’s engagement of Services after that date signifies acceptance of the varied Terms and Conditions.
12.7 These Terms and Conditions are governed by the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
12.8 These Terms and Conditions constitute the entire agreement of the parties as to the subject matter and supersede and cancel all prior arrangements, understandings and negotiations in connection with it. Any statement made in negotiations for these Terms and Conditions which is not set out in the Terms and Conditions do not form part of the agreement between the parties.