Consolid8 Pty Ltd ABN 47 128 651 909 Terms of Trade (Terms)

Carefully review the below terms before proceeding with your online proposal

Our commitment to you

  1. We will provide the Engagement with due care and competence. If Staff Members named in the Engagement Letter are not available to perform the Engagement, we will supply equivalent substitutes.
  2. You agree that we may subcontract portions of the Engagement to other Member Firms or third parties (including in another jurisdiction). Regardless, we alone will be responsible to you for the Engagement and you agree your sole recourse in connection with the Engagement is against us.
  3. We are your independent contractor and the Engagement Letter does not and is not intended to create a partnership, joint venture, fiduciary, employment, agency or other relationship with you.

Your responsibilities

  1. You agree to provide all assistance and information we reasonably request in a timely manner including information we require to meet our obligations.
  2. You must ensure that information provided to us by you or on your behalf is accurate, complete and not misleading. If during the Engagement anything occurs after information is provided to Consolid8 to render the information inaccurate, incomplete or misleading, you must promptly notify us.
  3. We will not carry out any review, due diligence, audit or verification of the information provided by you or on your behalf and relied on by us, unless this is expressly agreed in the Engagement Letter.
  4. If you require us to use any third-party information or Intellectual Property Rights in performing the Engagement, you must ensure we are permitted by the third party to do so.
  5. While we may provide you with recommendations or advice, all decisions relating to implementation of such recommendations or advice will be your responsibility and made by you.
  6. Our final Work can only be used and relied on by you. We accept no liability or responsibility to any third party in respect of the Engagement or our Work, unless we agree otherwise in writing.
  7. You may not do or allow any of the following without our prior written consent unless expressly permitted in the Engagement Letter or our Work:

i. Distribute, reproduce, publish, display or copy our Work (other than to the extent required to store it as part of your internal business systems) or, modify, refer to in any other document, use for derivative works, offer for sale, exploit, make available to any third party or use our Work for any purpose other than that for which it was prepared;

ii. Include any of our Work in a public offer document, meeting notice or other material;

iii. Make any public statement about or refer to us or the Engagement in any written materials or publicly filed documents; or

iv. Commit us to provide any opinions, certificates or reports to any third party.

The only exceptions to clause 10(i) above are disclosure:

v. To others within your organisation, your related bodies corporate (as defined in the Corporations Act) or your professional advisors on a confidential and non-reliance basis (provided those parties agree not to do any of the things in clauses 10(i)-(iv)); or

vi. As required by law or court order.

  1. Our Work will be provided in writing and you must not rely on any oral advice or draft or interim Work. If you wish to rely on oral advice, you must inform us so we can issue our advice in writing.

Projections

  1. If during the Engagement we provide analysis or comments on financial projections, you agree that actual results and cash flows may be different from that projected and the differences may be material.

Confidentiality

  1. Subject to clause 14, each of Consolid8and you must keep the other’s Confidential Information confidential and must not use such Confidential Information except for the purpose of the Engagement.
  2. We may disclose your Confidential Information to persons who supply services connected with the Engagement, including Member Firms, or to our professional advisors or insurers on a confidential basis. You and we may disclose Confidential Information with the express consent of the other party or as required by law, court order, any regulatory, competition or government authority or professional obligations.
  3. You authorise us to provide our files relating to the Engagement if selected for external review by a Member Firm or nominee of Chartered Accountants Australia and New Zealand, or if otherwise requested by a government body or professional association.

Privacy

  1. We will handle your information (including Personal Information) in accordance with our Privacy Policy and Collection Statement, and our Credit Reporting Policy if we are acting as a credit provider under the Privacy Act in connection with the Engagement.
  2. You agree that for the purposes of the Engagement, Personal Information may be disclosed to third parties (including Member Firms) or if required by law or court order, and may be stored on infrastructure outside Australia and that you have the consent of your personnel or clients to such disclosure or use. You acknowledge that countries outside Australia do not always have the same privacy protection obligations as Australia in relation to Personal Information, and that Australian Privacy Principle 8.1 in the Privacy Act does not apply to such disclosures.
  3. You must not provide us with Personal Information of another individual unless you first make them aware of our Privacy Policy and Collection Statement and have their consent to provide their Personal Information to us for the purpose of the Engagement.
  4. If the Engagement requires you to transfer Personal Data of EU residents or UK residents, the provisions in Schedule 1 will apply. Please request a copy of Schedule 1 before you sign the Engagement Letter if you believe this provision will apply. Capitalised terms not defined in these Terms have the corresponding meanings given in Schedule 1.
  5. We may share non-personal or de-identified and aggregated Personal Information or Confidential Information with third parties for research and promotional purposes.

Intellectual Property Rights

  1. Unless otherwise agreed in writing, we will own all Intellectual Property Rights in all Work. You may use our Work for the purpose set out in the Engagement Letter or the relevant Work.
  2. We may use data, software, source code, tools and other methodologies that we own, licence or have developed in providing the Engagement (Materials). You acknowledge that you will not obtain any ownership or other rights in respect of such Materials.

Conflicts of interest

  1. We may act for clients who may compete with or be involved in business with you. We will continue to represent those clients or new clients in matters that are not substantially related to the Engagement.
  2. We will manage any actual or potential conflict pursuant to our professional obligations. You agree that we may terminate the Engagement (without penalty) if we are unable to resolve the conflict.
  3. If you become aware of any actual or potential conflict during the Engagement, you must advise us immediately.

Australian Consumer Law

  1. You may have rights under the Australian Consumer Law (in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and nothing in the Engagement Letter should be interpreted as attempting to exclude, restrict or modify the application of those rights.

Limitation of Liability

  1. To the maximum extent permitted by law and without limitation, Consolid8will not be liable for any Loss arising directly or indirectly out of or in relation to the Engagement to the extent it:

i. Is not caused or contributed to by us (including due to any act, delay or information provided by you (or on your behalf) or any breach by you of the Engagement Letter);

ii. Arises as a result of an act or event that is beyond our control or was not reasonably foreseeable by us;

iii. Arises as a result of your failure to mitigate such Loss;

iv. Arises as a result of us suspending services or terminating the Engagement if you do not pay amounts owed to us;

v. Is in respect of loss of (actual or expected) revenue or profit, data or goodwill or any decrease in value or deficiency of any kind or any indirect or consequential loss (which would, for example, include loss of business opportunities, loss arising from an interruption to a business or activity, special exemplary or punitive damages, and any loss which does not directly and naturally flow from the event causing the liability), regardless of whether or not such loss was in the contemplation of you or us at the time of the Engagement Letter; or

vi. Arises from any email or other electronic means of sharing information being intercepted, corrupted, not delivered, read by a third party, virus-affected or altered without our authority,

and you release us in relation to any such Loss.

  1. Our liability is limited by a scheme approved under Professional Standards Legislation (Scheme) (psc.gov.au). If we are liable in connection with the Engagement (whether in contract, tort (including negligence), indemnity or statute), irrespective of any other term of the Engagement Letter, our cumulative liability in the aggregate (to the fullest extent permitted by law) will not exceed:

i. The amount provided by the Scheme; or

ii. Where the Scheme does not apply, the amount that is the lesser of 5 times the Fees paid to us in respect of the Engagement or AUD2 million.

  1. Where the Engagement Letter is addressed to, or more than one person or entity is named as our client in the Engagement Letter (Addressees), the limitations of liability apply to the Addressees as a group, and it is up to you to decide how the limit is to be allocated between you. You agree not to dispute the limit if you are unable to agree on how it will be allocated between you.
  2. All liability limitations and releases in the Engagement Letter shall apply equally to and for the benefit of us, Staff Members, Member Firms and any third parties we have used in performing the Engagement. Each of them (and us) shall have the right to enforce any limitations or exclusions of liability as are available to us in the event of any claim made by you against any of them. This Limitation of Liability section and the releases provided by you in the Engagement Letter are for the benefit of such persons and we hold that benefit on trust for them, and they may rely on this section as if they were a party to the Engagement Letter.

Email and other electronic communication

  1. You agree that we may communicate with you and others on your behalf by email or other electronic means. You acknowledge there are inherent risks in sharing information electronically. Each of us and you agree to implement and maintain reasonable security systems to protect against viruses, loss, interception, corruption, delay, unauthorised access or alteration of emails or other electronically shared information.

Cloud Services and AI

  1. You agree that we may utilise a cloud service in performing the Engagement and that you will use it in accordance with the provider’s terms. Cloud services that may be used are on our website. You acknowledge cloud services are provided by third parties and carry inherent risks. To the maximum extent permitted by law, we do not have any liability for Loss arising from the cloud services (except to the extent caused by our negligence). If you request us to utilise a different cloud service, you will be solely responsible for all matters relating to the use of that cloud service and agree to release and indemnify us from any Loss howsoever arising in connection with the use of that cloud service (except to the extent caused by our negligence).
  2. When using a cloud service, we act on your instructions and you are responsible for ensuring the accuracy of the information provided to us. You agree we will retain ownership of our Work created or stored in any cloud service and that we may download any reports or information from the cloud service workspace for retention on our file and you must not remove our access before providing us reasonable time (as directed by us) to do so. If we are required to transfer our workspace or access to it, we may require you to sign a release and you agree not to revoke our access to the workspace prior to doing so. Additionally, you agree to pay our reasonable costs of transfer, including to download required reports or information. On termination of the Engagement, you agree to pay any outstanding costs and to cooperate with us in relation to any transition or closure of the cloud service.
  3. We may use artificial intelligence enabled software (AI tools) in completing the Engagement. AI tools support administrative tasks, research, data analysis and generation of draft content. Staff Members review and verify AI output for accuracy and make all decisions relating to our Work. Information about our use of AI tools is available on our website.

Staff Members

  1. You agree that Staff Members attending your premises may leave (without penalty) if they assess there is a workplace (including psychosocial) hazard.
  2. Staff Members have the right to refuse to read, monitor or respond to contact made outside their ordinary work hours where it is reasonable to do so.
  3. You will not engage, or seek to engage, directly or indirectly, the services of any Staff Member with whom you have had dealings in connection with the Engagement during the 12 months immediately prior to your approach, except where the Staff Member responds directly to a general recruitment campaign.

Document retention

  1. We may retain copies of documents relating to the Engagement after the Engagement has ended. We will destroy or erase such documents pursuant to our document retention policy without notice to you.
  2. You retain ownership of your data and documents. It is your responsibility to retain your original records as required by law. Unless expressly agreed in the Engagement Letter, we will not hold any documents for you.  

Fees

  1. You must pay our professional fees and disbursements (Fees) for the Engagement. Each Addressee is jointly and severally liable to pay our Fees. We may ask you to pay us an amount in advance to cover our Fees.
  2. Unless agreed otherwise, our Fees are based on the time required by Staff Members to complete the Engagement at their hourly rates plus out of pocket expenses (including travel, accommodation and meals) reasonably incurred by us. We revise hourly rates from time to time and will give you written notice of changes to our rates, which will apply from the later of the date of the notice or the date set out in the notice. If you do not agree with the changes, you may terminate the Engagement as set out below.
  3. We will charge you a technology levy calculated at 3% of our professional fees to cover third party software licensing and usage costs.
  4. Any estimate of costs is based on the expected scope of work. If the scope is incorrect or varies, we will provide you a revised scope and estimate.
  5. If we are required to provide information about you or the Engagement to comply with our obligations under law or court order, you agree to pay our reasonable costs in doing so.

Terms of payment

  1. We will issue Fee invoices to you monthly which you must pay within 14 days without deduction or set off. Any queries about our Fees should be raised within 14 days of the invoice date. If you are required by law to withhold or deduct any taxes or duties, the amount of our Fee invoice is deemed to be increased so that we receive a net sum equal to the Fee invoice.
  2. If we agree that our Fees are to be paid by another person, you remain liable until they are fully paid.
  3. If you do not pay our Fees, we may:

i. Charge interest calculated on the daily unpaid balance until the date of payment at the maximum interest rate charged by our primary bankers on overdrafts over $100,000;

ii. Suspend the Engagement until we receive payment or accept alternative arrangements;

iii. Require you to pay on a full indemnity basis all of our costs associated with ensuring payment and you agree to do so; and/or

iv. Retain and/or exercise a lien over your documents and other property in our possession, (including withholding access to a cloud service), until all amounts due to us are paid in full.

Goods and Services Tax (GST)

  1. Our Fees are quoted exclusive of GST. GST will be charged in addition to our Fee in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth) and is payable at the same time as the Fee.

Termination

  1. Except where termination rules are prescribed by law or professional standards, the Engagement Letter may be terminated by you or us on expiry of seven days written notice to the other or immediately by written notice if the other party:

i. Becomes the subject of insolvency proceedings or calls any meeting of its creditors; or

ii. Materially breaches the Engagement Letter and such breach cannot be remedied.

  1. We may immediately terminate the Engagement Letter by written notice without penalty if you do not pay our Fees, if in our view the necessary relationship of confidence between you and us no longer exists or we think it appropriate having regard to applicable professional conduct rules and ethical standards.
  2. If we suspect it would be unlawful (in Australia or the jurisdiction where the act would take place) to undertake all or part of the Engagement, we may delay performance or terminate the Engagement Letter on written notice to you without penalty.
  3. You agree to pay us for all time and costs incurred up to the date of termination (including in bringing the Engagement to a close).
  4. Clauses 2, 3, 9, 10, 11, 13, 14, 15, 17, 20, 21, 22, 23, 27, 28, 29, 30, 32, 33, 37, 38, 40, 42, 44, 45, 46, 47, 52, 53, 56, 57, 58, 60, 61, 62, 63 and 64 shall survive expiry or termination of the Engagement Letter.

Compliance with laws

  1. You warrant that you comply, and will continue to comply, with all applicable laws and regulations in the jurisdictions in which you are incorporated or carry on business (including the Modern Slavery Act 2018 (Cth)) and will promptly inform us of any actual or suspected breach of this warranty.

Feedback, Complaints and Dispute resolution

  1. You may provide feedback by contacting the Engagement Partner or our Managing Partner, Mr Steven Sorbello (email Steven.Sorbello@bdo.com.au) . To make a formal complaint, please refer to our Complaints Policy and submit the Complaints Form on our website. If you have been provided with a Financial Services Guide by us, please follow the ‘Complaints’ information therein.
  2. If a dispute arises between you and us in connection with the Engagement, before commencing legal proceedings (other than for interim or interlocutory applications), all parties will attempt to promptly resolve the dispute in good faith by negotiation.

Miscellaneous

  1. Notice will be deemed served 24 hours after the notice has been sent.
  2. We may transfer, assign or novate our rights in the Engagement Letter to any Member Firm or successor to our business without your consent if this would not reasonably be expected to detrimentally affect you. In any other case, you and we cannot transfer, assign or novate our respective rights in the Engagement Letter without the consent of the other.
  3. The Engagement Letter may only be varied by written agreement between you and us, unless a variation is required to comply with law or professional standards. In such case, we will notify you of the variation, which will take effect on the later of the date of the notice or the date set out in the notice.
  4. Except in respect of your failure to pay our Fees, neither you nor Consolid8will be liable for any delays, failures in performance or breach of contract due to events or circumstances beyond the reasonable control of the party.
  5. If there is any inconsistency between a provision of these Terms and any part of the letter to which the Terms relate (which together constitute the Engagement Letter), the provisions of the letter will prevail to the extent of the inconsistency.
  6. If any provision of the Engagement Letter (including these Terms) is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect.
  7. The Engagement Letter is governed by and shall be interpreted in accordance with the laws of the State and the parties irrevocably submit to the exclusive jurisdiction of the courts exercising jurisdiction in that State.

Definitions and Interpretation

  1. In the Engagement Letter and these Terms:

Consolid8, us, we or our means Consolid8 Pty Ltd ABN 47 128 651 909. Consolid8 is a wholly owned subsidiary of BDO, which is a member of a national association of independent firms which are all members of BDO International Ltd, a UK company limited by guarantee and form part of the international BDO network of independent firms (Member Firms).

Confidential Information means any information in any form (including any copies and any document which contains, reflects or is derived from Confidential Information) disclosed by or on behalf of you or us to the other party (whether before or after the date of the Engagement Letter), but does not include information that: (a) is or becomes public knowledge (other than as a result of a breach of these Terms); (b) was known by the receiving party on a non-confidential basis prior to disclosure; (c) becomes available to the receiving party on a non-confidential basis from a person who is not bound by obligations of confidence; or (d) you and we agree in writing is not confidential or may be disclosed.

Corporations Act means Corporations Act 2001 (Cth).

Engagement means the professional services which we will provide pursuant to the Engagement Letter.

Engagement Letter means the letter and all enclosures (including these Terms) sent to you which set out the terms of our Engagement and any document sent to you which is stated to supplement them, including any Financial Services Guide. The Engagement Letter supersedes all previous agreements regarding the Engagement.

Intellectual Property Rights means all industrial and intellectual property rights worldwide, including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, patents, trade secrets or Confidential Information.

Loss means any loss, claims, demands, damages, costs, expenses, proceedings, obligations or liabilities of any kind.

Personal Information has the meaning given in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Professional Standards Legislation means a law providing for the limitation of occupational liability by reference to schemes formulated and published in accordance with that law and includes the Professional Standards Act 2004 (Qld) and similar legislation in each state and territory.

Staff Member means a shareholder, employee, director, agent, officer, representative or contractor of Consolid8. To denote levels of seniority, we refer to certain staff as:

i. Partners although Consolid8is a company and these individuals do not have joint and several personal liability to you; or

ii. Directors although generally these people are not appointed as directors of Consolid8or Member Firms under the Corporations Act.

State means Queensland, Australia.

Work means any draft or final advice, opinion, report, document, presentation or other deliverable prepared or provided to you by us pursuant to the Engagement Letter but excludes our working papers, Intellectual Property Rights or Materials.

You or your means the Addressee(s).

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