Standard terms and conditions of engagement | RSM Australia

Updated: 19/04/2024

APPENDIX A – Standard terms and conditions of engagement

These Standard Terms and Conditions of Engagement are to be read in conjunction with our engagement letter to You (as defined in our engagement letter to You). They apply to all services that we perform for You that are described in that letter (called the ‘Services’). Together, the letter and the Standard Terms and Conditions of Engagement are called this ‘Agreement’. To the extent the two documents are inconsistent, the terms in the engagement letter overrule these Standard Terms and Conditions of Engagement. This Agreement constitutes the entire agreement between the parties with respect to our work under this Agreement and supersedes all prior agreements, proposals, oral and written representations and negotiations.

1.    OUR OBLIGATIONS    
RSM Australia Pty Limited (‘RSM Australia’) and its affiliates (collectively referred to as ‘RSM’, ‘us’, ‘our’ and ‘we’) must all use reasonable commercial efforts to complete the Services within the date or dates agreed in writing with you. We will perform the Services with due care, competence and diligence; however the quality of the Services will depend on input from You.    
 

2.    YOUR OBLIGATIONS 

(a)    You must instruct us fully and respond to our enquiries arising in the course of performance of the Services and, in a timely fashion, give RSM each of the following (as reasonably required to perform the Services):    
(i)    Information – we are entitled to rely on the accuracy of that information without independently verifying it. That is so whether the information is provided by You, your representatives, or your advisers.  RSM will not be liable to you or any other person for any losses, damages, costs or expenses arising out of errors made by RSM due to, or as a result of, whether direct or indirect, the supply or provision to RSM by you of false, misleading or incomplete information or documentation or due to any acts or omissions of you or any other person, and you release RSM from any such claim;    
(ii)    Access – to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experience;    
(iii)    Resources – You must provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval, development and sign-off of all specifications, accounts and deliverables.    
(b)    You agree that any commercial decisions that You make are not within the scope of our duty of care, regardless of whether You have referred to or considered our work in making those commercial decisions. You should take into account the restrictions on the scope of our work and other factors, commercial and otherwise, of which You and your other advisers are or should be aware from other sources other than our work.    
(c)    You agree to pay our fees and expenses within 14 days of the date of our invoice or as otherwise agreed in writing between RSM and You.    
 

3.    DELAYS 

RSM will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond our control or could not be foreseen at the commencement of our engagement, including the untimely performance or non-performance by You of your obligations, in which case, RSM is entitled to review its fees and, if the delay is substantial, terminate this agreement.    
If You require advice within a prescribed time frame or by a specific date, we ask that You communicate this to us at the commencement of the particular engagement.    
 

4.    FEES & EXPENSES 

(a)    We will issue our invoices for fees, Goods and Services Tax (‘GST’), if applicable, and any expenses relating to the Services to You or as You direct. In the event that You direct us to issue an invoice to another party, You will remain responsible for payment until our invoice is paid in full.    
(b)    In addition to the fees, you agree to pay:    
(i)    all reasonable expenses including (but not limited to) travel, meals and accommodation.    
(ii)    any tax or similar charges, or customs, duties or tariffs imposed in respect of the Services (apart from taxes imposed on our income generally). Note that any fees chargeable under this agreement may be varied to reflect the net financial impact of any change in law affecting the cost to RSM of providing the Services including, without limitation, a change in the rate of GST in relation to the Services provided by us under this agreement.    
(c)    RSM is entitled to review fees quoted, if You do not proceed with the engagement within 60 days of the engagement letter, and if we are still performing the Services (including any related services) more than 12 months from commencement.    
 

5.    PAYMENT OF FEES 

You agree to pay fees and expenses within 14 days of the billing date. We reserve the right to perform no further work for You until all outstanding accounts are paid in full.    
Our preferred means of payment is by electronic funds transfer or by internet banking. Otherwise payment shall be by cash, credit card or cheque drawn on an Australian trading bank.    
 

6.    CONFIDENTIALITY  

(a)    In conducting this engagement, information acquired by us in the course of the engagement is subject to strict confidentiality requirements. That information will not be disclosed by us to other parties except as required or allowed by law, or with your consent.    
(b)    Both RSM and You agree to take reasonable steps to maintain (within our respective organisations) the confidentiality of any proprietary or confidential information of the other party. This clause does not preclude any disclosure required by law or by a court or other tribunal, regulations (including those made under the Corporations Act), professional duty or as is requested by regulatory authorities, or any disclosure to lawyers, bankers and financial advisers of a party.     
(c)    Subject to applicable law and professional duties, we may also disclose confidential information to service providers within and external to the RSM network who enable or facilitate the provision of the Services to You. These service providers may be located outside of Australia.     
(d)    RSM provides its Services using a range of outsourced cloud computing and outsourced service providers who will, in some circumstances, hold your data. RSM has in place outsourcing agreements with each of these providers. Given the providers vary by service, if you would like details of names, locations and specific outsourced service, these details can be provided to you, on request, at any time during this engagement.    
(e)    We are an independent member of RSM International (‘RSMI’) which acts as the central co-ordinating body of the RSM network of independent firms (‘RSM Network’). As part of the RSM Network, RSM exchanges information between network firms located overseas. The network may also use overseas facilities or contractors to process or back up our information or to provide certain services to us. Any such transfer of information remains subject to existing confidentiality obligations.    
(f)    Subject to our duty of confidentiality, You agree we may act for your competitors or for other clients, whose interests are or may be opposed to yours.    
(g)    We wish to draw your attention to our firm’s system of quality control which has been established and maintained in accordance with the relevant Accounting Professional & Ethical Standards Board (‘APESB’) standard. As a result, our files may be subject to review as part of the quality control review program of professional bodies that monitor compliance with professional standards by its members. We advise You that by accepting our engagement You acknowledge that, if requested, our files relating to this engagement will be made available under this program.    
(h)    We may, in the course of providing the Services, be required to collect your Tax File Number (‘TFN’) or those of your personnel. Our TFN Collection Statement, accessible at https://www.rsm.global/australia/tax-file-number-collection-statement, sets out information regarding our policies for the collection, storage, use, disclosure, and disposal of TFNs.      
 

7.    PRIVACY 

(a)    RSM is committed to complying with the Privacy Act 1988 (Cth) and the Australian Privacy Principles when collecting, holding, using or disclosing personal information concerning your shareholders, members, customers, employees and other individuals with whom You have dealings (‘Stakeholders’).    
(b)    As personal information concerning your Stakeholders will be collected from You rather than from the relevant individuals, we require You to ensure that those individuals are fully informed of the matters contained in this clause 7, including that RSM collects, or has collected, the Stakeholders' information and the circumstances of that collection. You agree to provide the Stakeholders with a copy of any privacy collection notice which we provide to You for that purpose.    
(c)    If RSM becomes aware that your Stakeholders have not been made aware of the collection, holding, use or disclosure of their personal information by RSM as part of this engagement, You agree that RSM can, if necessary, take action to inform them of those matters.    
(d)    RSM collects personal information concerning Stakeholders to allow it to provide professional financial, advisory, and accounting services to You. RSM may disclose Stakeholders' personal and sensitive information to the third parties listed in clause 6(b), above, in the usual course of providing You with our Services.    
(e)    RSM's Privacy Policy (which can be accessed at http://rsm.global/australia/legal/privacy-policy) contains information about how Stakeholders can:    
(i)    Access and seek correction of their personal information held by RSM.     
(ii)    Complain to RSM about a breach of the Australian Privacy Principles, and how RSM will deal with such a complaint.    
(f)    The RSM Network may also use overseas facilities or contractors to process or back up our information or to provide certain services to us. As a result the RSM Network may transfer personal information concerning your Stakeholders to our overseas facilities or contractors for these purposes. Any such transfer of information does not change any of our commitments to safeguard the privacy of that information.    
(g)    Any enquiries or requests in relation to RSM's obligations under the Privacy Act 1988 (Cth) and the Australian Privacy Principles should be directed to your relevant RSM contact.    
(h)    We may disclose Stakeholders' personal and sensitive information to third parties where required by law or by a court or other tribunal, regulations (including those made under the Corporations Act), professional duty or as is requested by regulatory authorities, and to lawyers, bankers and financial advisers of such parties, in the usual course of providing You with our Services. As part of the RSM Network, we may exchange information between network firms located overseas. The full list of the countries where network firms are located is available at https://www.rsm.global.    
(i)    We may also provide personal information to overseas third party contractors, software providers or service providers in the course of providing our Services to You, including processing of your information.    
 

8.    INTELLECTUAL PROPERTY RIGHTS 

RSM will not acquire any ownership rights over any information provided to us by You or your representatives or advisers although You consent to us inserting your logos and other similar intellectual property on our deliverables where appropriate unless You notify us to the contrary. When You have paid all amounts owing to RSM in relation to the Services (and related services), RSM assigns to You all copyright (and other intellectual property rights) to all reports, written advice and other deliverables (except software) we have provided. However, You grant to RSM a non-exclusive, irrevocable, royalty free licence to use, copy, modify and exploit those deliverables so long as doing so would not disclose any of your confidential information. RSM retains:    
(a)    as confidential information the processes, ideas, concepts and techniques developed in the course of providing the Services.    
(b)    all copyright and other intellectual property rights in:    
(i)    data, designs, models, methodologies, analysis frameworks, leading practices, specifications and other elements of the deliverables which were owned or developed by RSM before, or independently from, the Services; and    
(ii)    all tools (and any enhancement, improvement or other derivative of those tools) including but not limited to software and working papers (whether or not these are supplied to you) used by RSM in performing the Services.    
All working papers prepared by RSM in connection with the Services will remain the property of RSM.    
 

9.    DATA RIGHTS 

You will retain the rights to all original documents that you provide to us during our engagement. However, we reserve the right to make a reasonable number of copies of the original documents for our records.    
The firm has a policy of exploring a legal right of lien over any client documents or data in our possession in the event of a dispute. The firm has also established dispute resolution processes.    
You will also retain the right to any accounting and other data files that we establish for You.  However, if we establish any accounting or other data files using software and other tools (including any files within such software or tools), whether cloud or server-based (the Software Established Files), in the course of providing You with advice or any designated reporting or similar services, we will retain the rights to those Software Established Files.      
Any accounting or data files established using software may also be subject to the terms and conditions of the nominated software provider (with which You should become acquainted).  If You require us to provide a link to this information please let us know.    
You acknowledge that RSM Australia has no control over the terms and conditions imposed by any third-party software provider and that those terms and conditions may change at any time.    
 

10.    INDEMNITY FOR LIABILITY TO THIRD PARTIES 

(a)    You agree to indemnify RSM against all liabilities, claims, costs and expenses collectively referred to as ‘Loss’ (including any GST payable by RSM on amounts paid by You under this indemnity) incurred by RSM in respect of any claim by a third party which is related to, arises out of, or is in any way associated with the Services or this engagement including any breach of this agreement or any negligent, wrongful or wilful act or omission by You. However, the indemnity does not apply to any Loss in respect of any matters which are finally determined to have resulted from RSM’s negligent, wrongful or wilful acts or omissions.    
(b)    You agree to waive and release us from all and any Loss that You suffer as a direct or indirect result of the acts or omissions of any third party provider that we may recommend and/or implement in the performance of this engagement.     
 

11.    EXCLUSIONS AND LIMITATIONS OF LIABILITY 

(a)    If the Competition and Consumer Act 2010, Corporations Act 2001 (Cth) or any other legislative provision prohibits or otherwise precludes the restriction, modification or exclusion of any statutory condition, warranty, guarantee, right, remedy or other benefit, then this clause 11 does not restrict, modify or exclude it. Unless prohibited by law, no term condition or warranty is implied except as expressly provided in this agreement.    
(b)    Our liability is limited by a scheme approved under professional standards legislation, except where we are a financial services licensee. A copy of the scheme can be obtained from us on request, or further information about the scheme can be obtained from the website of the Professional Standards Council: https://www.psc.gov.au/    
(c)    If a term is implied into this agreement by law, which cannot be excluded, You agree that RSM may, in its absolute discretion and to the extent it is allowed by law, choose either to re-supply the Services, or to pay You the cost of having the Services re-supplied.    
(d)    Our liability to You arising in connection with this engagement (if any) is limited to that proportion of the loss or damage (including interest and costs) suffered by You, which is agreed between us or ascribed to us by a court or tribunal of competent jurisdiction allocating proportionate responsibility to us having regard to the extent of our responsibility for the loss or damage and the contribution to the loss or damage in question by You and any other person. RSM is not liable:    
(i)    to the extent that You or any other person is / are responsible and / or liable for an act or omission that contributed to your loss;    
(ii)    for any indirect or consequential costs, loss or damage or loss of profits;    
(iii)    for any defect or deficiency in any system or service that is not developed or provided by RSM under this agreement. That includes (without limitation) your production and legacy systems and systems that receive data from systems produced by RSM.    
(e)    This clause has no application to any liability arising directly as a result and to the extent of fraud committed by RSM.    
 

12.    RSM NETWORK 

(a)    From time to time we may use the services of partners or staff from other members of the RSM Network to assist us in providing the Services to You, in which case they are deemed to be acting as our agents and not the partners or agents of any other person (including any other member of the RSM Network) and we are liable for their activities as if they were in all respects our partners or staff. No member of the RSM Network other than ourselves assumes any responsibility to You in connection with this agreement. You acknowledge that RSM in Australia is not the agent of any member of the RSM Network and that none of those other entities are agents of RSM.    
(b)    You acknowledge and agree that your engagement is with RSM Australia only and any claim in relation to any aspect of the work undertaken in accordance with this engagement is limited to a claim against RSM Australia.  You acknowledge and agree that You specifically waive any right to claim against any other firm within the RSM Network.  Firms within the RSM Network agree to provide the work to RSM Australia on the basis that their liability is limited in accordance with Australian Law and no claim will be made against them based on the law of another jurisdiction.    
(c)    By engaging us You agree that any claim arising out of or in connection with this agreement shall be brought only against RSM and not to bring any proceedings arising out of or in connection with this agreement personally against any other persons involved in the performance of this agreement. You agree not to bring any proceedings arising out of or in connection with this agreement in any jurisdiction against any member of the RSM Network (other than RSM in Australia) or any partner or staff thereof.    
(d)    Please refer to clause 6 for the confidentiality obligations by which we are bound in using the services of partners or staff from other members of the RSM Network.       
(e)    Each member of the RSM Network and each partner or member of staff thereof and each of our partners or members of staff shall have the express benefit of this section and shall have the right to rely on and enforce any of its terms.    
 

13.    USE OF OUR REPORTS 

(a)    If You wish to provide a third party, including any of your related bodies corporate, with copies of RSM reports, letters, information, advice or other deliverables, then You must obtain our prior written consent and we reserve the right to:    
(i)    set the terms on which those copies are given or used; or    
(ii)    require the third party to enter into a direct relationship with us.    
(b)    We disclaim all liability to any third party, including any of your related bodies corporate, for all costs, loss, damage and liability that the third party may suffer or incur arising from or relating to or in any way connected with the provision of the deliverables to the third party irrespective of whether we provide our consent in accordance with clause 13(a).    
(c)    Written advice and final reports shall take precedence over any oral advice, or advice conveyed by electronic transmission, and interim reports. RSM is not responsible for updating any opinions, advice or reports subsequent to the issue of a final version.    
(d)    Advice may be given in draft form or orally but is only given on the basis that the advice is not relied on by You until final advice is published in writing.    
 

14.    ELECTRONIC AND OTHER COMMUNICATIONS 

Unless otherwise agreed with You, we may correspond or provide information to You in electronic form.  We may also deliver our final report or other key documentation in electronic form.  Unless agreed otherwise, we may accept any correspondence received containing electronic signatures from You as having been appropriately authorised.    
You warrant that You have put in place all reasonable steps to ensure that only authorised persons have access to the mailbox at your nominated physical address, so that we can send original correspondence and documents to that address, including material that may contain tax file numbers.    
Where third-party platforms are used, You warrant that You comply with and consent to the terms and conditions of use of the platform.     
Where You request to receive electronically any report or correspondence containing opinions or advice, we will not be responsible for any unauthorised copying, interception, interference or delivery failure of the transmission.  While it is our policy to check our email correspondence and other electronic information with anti-virus software, we similarly cannot guarantee that transmissions or other electronic information will be free from infection. Similarly, where we send reports, correspondence or documents to You by post or courier, we will not be responsible for any interception, interference or delivery failure arising from postage.    
 

15.    THIRD PARTY SERVICE PROVIDERS – COMMISSIONS REBATES AND REFERRAL FEES 

In providing our Services to You, we may engage third party service providers to deliver some aspects of those Services, such as software or accounting reporting packages. In some instances, we may receive income in the form of commission, or a rebate of fees. On some occasions, we may be introduced to You by a third party to whom we pay a referral fee.  Where this occurs we will disclose to you the nature of the arrangement, and the basis on which any referral fee, commission, or similar arrangement is charged.    
 

16.    TERMINATION 

We may terminate this Agreement by notice in writing if:    
(a)    You do not pay our bills when due;    
(b)    You do not provide us with adequate instructions within a reasonable time to allow us to complete the work scoped;    
(c)    You do not comply with the terms of this Agreement; or    
(d)    there are or may be ethical grounds (including conflicts of interest) as a result of which we cannot continue to act for You.    
(i)    You may terminate this Agreement by notice in writing if we do not comply with the terms of this agreement.    
 

17.    GOVERNING LAW & JURISDICTION 

All aspects of the Services and this agreement are governed by, and construed in accordance with, the laws of the state or territory of the RSM office shown on the letterhead of the engagement letter. Both You and RSM irrevocably submit to the exclusive jurisdiction of the Courts of that state or territory.    
 

18.    DISPUTE RESOLUTION 

Your engagement partner will always be pleased to hear any suggestions as to how our Services can be improved. If You wish to make a complaint, please call the Office Managing Partner in your State. We will investigate any complaint promptly and do what we can to resolve the difficulties. If the problem cannot be resolved You agree to submit to mediation before having recourse to any other dispute resolution process.    
If there is a dispute relating to the Services or this agreement, the parties must submit to mediation before recourse to any other dispute resolution process.  The Mediator shall be the nominee of the President of Chartered Accountants Australia and New Zealand in the State or Territory where the Services are primarily carried out.  Written notice of the dispute shall be given by the party giving notice of the dispute for their dispute to be submitted to mediation.  The parties will use their best endeavours to settle the dispute promptly.  The mediation will be conducted in accordance with the terms of the mediation as prescribed by the Mediator.  In the event that the parties to the dispute do not agree to the terms of the mediation set out by the Mediator, the mediation will be conducted in accordance with the guidelines of the Australian Commercial Disputes Centre to the extent that they do not conflict with the provisions of this clause.  If the dispute is not resolved within 60 days after notice of the dispute, the reference to mediation will come to an end unless the parties agree to extend the time within which their mediation may be conducted.    
 

19.    MISCELLANEOUS 

(a)    VARIATION & SURVIVAL - This Agreement may be varied by written agreement of the parties.  Provisions of this Agreement that are capable of having effect will survive its termination.    
(b)    RELATIONSHIP - we will provide the Services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship. No party has the right, power or authority to oblige or bind the other in any manner.    
(c)    ASSIGNMENT – this agreement may not be assigned without the prior written consent of each party, which consent may not be unreasonably withheld.    
(d)    PUBLICATION – unless You direct otherwise, we may publicise our involvement with this engagement.    
(e)    MARKETING MATERIAL – by agreeing to these Standard Terms and Conditions of Engagement, You authorise RSM to forward to You and other contacts within your organisation publications and other marketing material which we may publish from time to time. If You do not wish to receive any of this material, please advise us in writing.    
(f)    USE OF BRANDING – by agreeing to the terms of this Agreement, You authorise RSM to use your name and branding (including any trademarks) for the purposes of our tenders and marketing presentations.    
 

20.    NON-SOLICITATION OF PERSONNEL 

During the term of this agreement, and for six months after it ends, neither party may knowingly solicit for employment, or independently contract the services of, any of the other party’s partners, staff members or sub-contractors who were involved in the Services (Personnel).  This does not apply if the Personnel respond to a general employment vacancy advertisement by the other party for the respective engagement.  Breach of this condition will render the breaching party liable to pay liquidated damages equal to 25% of that person’s proposed total annual remuneration.    
 

21.    SEVERANCE 

If any provision of this agreement is determined by a duly appointed person, Court or Tribunal to be illegal, unenforceable or otherwise invalid, then despite such illegality, unenforceability or invalidity:    
(a)    this agreement shall remain in full force and effect to the extent permissible by law; and    
(b)    the provision that is illegal, unenforceable or invalid shall be deemed to be deleted and replaced by a valid provision which in its effect is as close to the invalid provision that the replaced provision can be and will be taken to have been the provision by which the parties intended to be contractually bound from the date of commencement of our engagement.    
 

22.    FILING AND DESTRUCTION OF DOCUMENTS 

It is our practice to scan all documents, retain in electronic form and then destroy original documents, unless the law requires us to retain them. Documents retained in electronic form are destroyed after seven years, unless the law requires us to retain them. If You leave documents or material with us, by signing these terms and conditions You consent to destruction of any and all original and electronic documents left in our possession. You waive any right to claim against RSM for any loss or damage suffered by You or any related party, arising from destruction of documents. If You require any original documents to be returned to You, You should request return when providing those documents to us.         
 

23.    FORCE MAJEURE 

(a)    Provided notice is given to the other party as soon as practicable, neither party shall be liable for non-performance or delays (other than a failure to pay) caused by an external event beyond the reasonable control of a party, including, without limitation, acts of war, terrorism, civil commotion, epidemic, natural disasters, blockades, embargoes, strikes and lockouts, any other acts of god or act of any government or governmental agency (Force Majeure Event). 
(b)    If the Force Majeure Event continues for a period of 60 days or more, the party not relying on the Force Majeure Event may terminate the engagement.    
 

24.    ANTI-BRIBERY AND ANTI-CORRUPTION LAWS  

Each party must:    
(a)    comply with all applicable regulations, laws and legislation which are applicable to the Services and relate to combatting bribery and corruption, which may include the Criminal Code Act 1995 (Cth) and any other anti-bribery, anti-corruption or conflict of interest law applicable to the Services (Anti-Bribery/Corruption Laws);    
(b)    not give, offer, accept, or authorise to give, offer or accept, benefits of any kind (including payment, gift, promise, reward, or other advantage), whether directly or indirectly, to another person including any public official or any other person where that benefit would (A) comprise a facilitation payment; or (B) violate Anti-Bribery/Corruption Laws; and    
(c)    maintain in place its own policies and procedures to ensure compliance with the Anti-Bribery/Corruption Laws.    
 

25.    MODERN SLAVERY LAWS 

Each party must ensure that:    
(a)    it is fully compliant with the Modern Slavery Act 2018 (Cth) and any other equivalent laws of any State/Territory (Modern Slavery Laws);    
(b)    it has the necessary documentation, systems and controls in place to ensure its continued compliance;    
(c)    it will not use child labour in the provision of the Services, enjoying the benefit of the Services or otherwise (for these purposes, a child means any person which the local minimum age law stipulates is under the age for work and or must attend mandatory schooling);    
(d)    there is not any slavery, forced, bonded or involuntary labour in use across its operations; and    
(e)    all of its workers have the legal right to work at the premises from which the relevant party operates, to leave the premises at which the relevant party operates at the end of their working day and the freedom to terminate employment at any time in accordance with an agreed notice period.