CONSULTING TERMS AND CONDITIONS
These terms and conditions shall apply to the provision of the Services by Yael Keon (ABN 60 407 872 063) (consultant, owner, we, my, our or us) to the customer identified in a supplied quotation, proposal or invoice (“Client”). The client accepts these terms and conditions (Terms) by making payment of the service.
1. Definitions and Interpretation
The following words have these meanings in this Consulting Terms and Conditions (Terms)
GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST Act or otherwise on a supply;
GST Act means a New Tax System (Goods and Trading Tax) Act 1999 or any amending or replacement legislation;
Intellectual Property Rights means all statutory and other proprietary rights and interests including copyrights and all rights in the nature of copyright, patents, pending patents, trademarks, service marks, trade names, domain names, designs, methods, database rights and all other intellectual property rights;
Email Marketing Software means software you have signed up for to manage your email marketing. Examples include Klaviyo or ActiveCampaign.
In these Terms, headings are only for convenience and do not affect interpretation and, unless the context requires otherwise, a reference to:
(i) a party includes that party’s legal personal representatives, successors, directors, officers, employees, agents and related bodies corporate;
(ii) words in the singular include the plural and the plural includes the singular;
(iii) a reference to a clause, party, attachment, annexure or schedule is a reference to a clause of, and a party, attachment, annexure and schedule to, this agreement;
(iv) a reference to this agreement includes any attachment, annexure or schedule;
(v) a reference to a right includes a remedy, power, authority, discretion or benefit;
(vi) a reference to a person includes a body corporate, an incorporated association, an unincorporated body or other entity and conversely;
(vii) a reference to an agreement or document is to the agreement or document as amended, varied, supplemented, novated or replaced from time to time, except to the extent prohibited by this agreement;
(viii) a promise or agreement by 2 or more persons binds each person individually and all of them jointly;
(ix) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(x) a reference to conduct includes, but is not limited to, an omission, statement and undertaking, whether or not in writing;
(xi) a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement whether or not in writing; and
(xii) a reference to a document includes an agreement (as so defined) in writing, and any certificate, notice, instrument or document of any kind and also a reference to a document includes a reference to all electronic, magnetic, photographic and other mediums by which information may be stored or reproduced.
2. Agreed Services
(a) The Services
Services are as per the booking form at the time of making your appointment.
(b) How we Work and What You Can Expect
(i) We provide advise on the setup of your email marketing software and creating an email marketing strategy based on industry best practice knowledge and information provided to us. We may also do some technical setup for you.
(ii) This is done by you providing as much detail as possible and access to your software and any other resources needed.
(iii) This is done on a collaborative consulting call with follow up instructions and support where specified.
(a) Payment Terms
(i) The cost of the project is as per the booking form.
(ii) Payment is in full up front or on an agreed payment plan
(iii) If paying via a payment plan you commit to paying all instalments on time on the agreed schedule selected at checkout.
(iv) Currency is in AUD
(v) GST is added for all Australian customers and this is reflected in the invoice.
(b) Debt Recovery
The client agrees to pay all costs, including debt collection agency fees and solicitor’s costs, incurred by us in taking steps to recover any monies owing to us by the client whether or not legal proceedings are issued for recovery of the monies.
4. Provision of Services
(a) Duration of these Terms and Conditions
The term of these Terms (the “Term”) will begin on the date of payment and will remain in full force and effect indefinitely until terminated as provided in these Terms.
When booking, a date is selected for the consulting call or calls. Following the final call the client receives 1 month of support relating to any matters discussed as part of the consultation.
(b) Rescheduling by Consultant
There may be extenuating circumstances beyond our control which may mean rescheduling is required. In this case, we will contact the client as early as possible to agree on a new appointment date.
(c) Cancellation or Rescheduling by Client
Bookings that require to be cancelled require at least 7 days notice to be eligible for a refund. Any cancellations within 7 days of the booking will only be eligible for a 50% refund. No refund applies for no shows.
Bookings that require to be rescheduled require 24 hours notice for any non-emergencies and are subject to availability.
You can cancel or reschedule your booking by using the links included in your booking confirmation and reminders or by email.
(d) No Show or Late Arrival
A client will be considered a no show if they do not join the meeting withing 15 minutes of the start time. Rescheduling will be at the consultants discretion.
If the client arrives late, time added to the end of the booking time cannot be guaranteed due to other commitments.
5. Client Responsibilities
(a) Provision of information
The client must provide access to their email marketing software account where technical support is required.
Our consulting services do not include any custom copywriting. The client can choose to provide pre-existing copy if they have it. If not placeholder, templated copy will be provided for essential emails.
(c) Photographs and Images
If required, the client can provide a copies of their logo and any essential brand elements. This should be done in png or jpeg format, compressed web quality.
The client takes full responsibility that any text, images or other materials that they provide to us are their own creation or appropriately licensed. The client indemnify’s Yael Keon against any third party claims for intellectual property infringement.
(d) Consumer Law
The client is solely responsible for ensuring that all email marketing practices comply with their local consumer law. This includes regulations such as the ACMA Spam Act, Australian Privacy Principles, GDPR and any other local laws relating to data collection and privacy protection.
You agree if you don’t fully understand these obligations in this area you you will seek appropriately qualified legal advice. You further agree to absolve us of any responsibility for issues that may arise in relation to your data collection and email marketing activity.
6. Consultant Responsibilities
(a) Professional Values
We commit to completing all work with integrity, professionalism and to create great experiences for your contacts while creating ease for you.
We agree to keep the client informed at every stage, provide email reminders of bookings, seek input when required and complete work promptly or advise the client about unexpected delays.
We reserve the right to assign subcontractors to the project to ensure quality and on-time completion.
7. Intellectual Property rights
As part of the consulting relationship, you may be supplied with additional resources including but not limited to online courses, video trainings, technical tutorials, worksheets, audio files or pdf downloads. These are for the purpose of providing extra context and support (“Content”).
(a) Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) to this content. Your use of our Site to participate in our online course and/ or digital products and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Site or the Content.
(b) You must not, without the prior written consent of us or the owner of the Content (as applicable):
(i) copy or use, in whole or in part, any Content;
(ii) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or
(iii) breach any intellectual property rights connected with our Site, including (without limitation) by:
(1) altering or modifying any of the Content;
(2) causing any of the Content to be framed or embedded in another website or platform; or
(3) creating derivative works from the Content.
Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, subscriber details and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
The Consultant agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any confidential information which we have obtained, except as authorised by the Client or as required by law. The obligations of confidentiality will apply during the term of work and will survive indefinitely upon project completion.
All written and oral information and material disclosed or provided by the Client to us under the scope of work is Confidential Information regardless of whether it was provided before or after the project or how it was provided to us.
Any exported data files will be stored for a period of time in case needed for support purposes. The client can request at any time that we delete this information.
Data may need to be shared with employees and subcontractors on a need to know basis. Staff and subcontractors are subject to a confidentiality agreement.
All Copyright of materials that is developed or produced under these Terms specifically for the client, will be the sole property of the Client. The use of the Intellectual Property by the Client will not be restricted in any manner.
10. Technical and Maintenance Support
The client receives 30 days email support after the final booking on any items delivered as part of the project. This is to ensure the functionality and complete understanding.
A response will be provided withing 48 hours M-F.
If support is required outside of the projects scope of work or after this 30 days, this will be provided on a quoted hourly rate.
11. Guarantees, Warranties and Limitiations
(a) Important Information
While we strive to do our best, we can’t guarantee that our work will be perfect. As a result, I cannot be held liable to you or any third party for any loss or damage of any kind.
We cannot guarantee sales results.
Email marketing software is there to be used and results will only be achieved if you use it.
Email marketing should also be about providing valuable content & information, in addition to your promotions. If you are too promotion heavy, we cannot guarantee results.
• We are not a designers or copywriters, we specialise in email marketing systems and processes.
• We don’t provide VA style ongoing newsletter and content support.
• Sometimes we am limited by the functionality of the software selected or integrations with third party software. While we do my best to build workarounds sometimes this is not always possible and this may impact final results. We will communicate with you options if this is the case.
• In the case of challenges with integrations with your website, other third party software or major deliverability issues, you may need to seek additional assistance from professionals or other support teams.
12. Relationship of the Parties
You, the client, have engaged us to provide email marketing consulting services. The relationship between the client and us is that of a principal and independent contractor.
Nothing contained in these Terms will mean that we or any of our employees or agents is a partner, employee or agent of the client or vice versa.
13. Dispute Resolution
If either of us have any concerns arising out of these Terms, we agree that we shall communicate with the intention of making a genuine effort to seek a win/win solution and resolve any dispute by negotiation and discussion.
All information exchanged during this meeting or any subsequent dispute resolution process, shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the Parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the dispute resolution process.
(b) Alternative Dispute Resolution
If we are unable to resolve a dispute by negotiation and discussion within 14 days, we agree to proceed to mediation with the assistance of an independent accredited mediator.
The mediator is to be appointed by agreement between us or, failing agreement within twenty-one (21) days of the first notification of the dispute, by a person appointed by the Chair of Resolution Institute, (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, email: [email protected]) or the Chair’s designated representative.
The Resolution Institute Mediation Rules shall apply to the mediation.
We agree to share the costs of mediation equally between us.
It is a condition precedent to the right of either of us to commence litigation other than for interlocutory relief that we have first offered to submit the dispute to mediation. Litigation is to be considered a last resort and may not be commenced until, in the opinion of the independent mediator, the potential for negotiation and mediation have been exhausted
(d) Mutual Non-Disparagement
Each of the parties agrees that it shall not publicly or privately disparage the other or the agents, servants or employees of the other, but rather shall act in good faith to refrain from any conduct or communication which might reasonably be expected to interfere with the business and/or personal interests of the other.
14. Limitation of Liability
In no event shall we be liable to you or any third party for costs, loss, injury or damage to you or your business.
You expressly agree that if this clause is unenforceable for any reason, our total cumulative liability for all causes of action of any kind shall not exceed the amount paid to [me/us/Entity] under clause 4(a).
15. General Provisions
(a) Whole Agreement
The above terms set out in this online course purchase terms and conditions constitute the entire agreement of the parties and supersede any and all preceding and contemporaneous agreements between you and us.
We may modify these Terms from time to time by posting the amended Terms on our Website. By continuing to use the Website and any associated third party platform hosting our Content after such modification, you agree to the amended terms. If you do not agree to the modifications, you must terminate your account with our Website and any other associated third party platform hosting our Content.
(c) Survival of clauses
Clauses 2, 3, 7, 8, 11, 13 and 14 are essential terms of these Terms and survive the termination of the Agreement for any reason.
The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
The validity, interpretation and performance of these Terms will be governed by the law of Western Australia, Australia.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting these Terms