Document ID: chunk:federal_register_of_legislation:F2024L00374:body:0:p9
Version: federal_register_of_legislation:F2024L00374
Segment Type: other
Provision Reference: 
Character Range: 20493–23298

scheme property or assets to which the agreement relates and providing that any such engagement must be either:
(i) under a written agreement meeting the requirements of subsections (2) to (5) (including this subparagraph and subparagraph (ii), but not including paragraph (2)(p)) as if the person engaged were the custodian and the custodian were the responsible entity except to the extent that, in relation to assets held outside of this jurisdiction, the custodian has provided written reasons to the responsible entity as to why it reasonably considers that it is not practicable to engage a person that is willing to include such matters in the agreement; or
(ii) an arrangement with a related body corporate of the custodian, where the custodian has a written agreement with the responsible entity that it is liable to the responsible entity for the acts and omissions of the related body corporate relating to the scheme as if those acts and omissions were the acts or omissions of the custodian; and
(n) to the effect that the custodian must establish and maintain business continuity arrangements that are reasonable for a business of the nature, scale and complexity of the custodian's business; and
(o) to the effect that the custodian must not disclose any confidential information relating to the scheme, apart from any disclosure to ASIC or as required or permitted by law or by the responsible entity in writing; and
(p) to the effect that the custodian must establish and maintain adequate arrangements to ensure that it will report to ASIC in writing within 10 business days if it suspects that the responsible entity has breached its obligations to report a reportable situation in relation to the responsible entity as required by [section 912DAA].
(3) The responsible entity must ensure that the agreement with the custodian has reasonable liability provisions and does not include provisions that exclude the liability of the custodian for direct loss that it would have if the exclusion were not included except in particular circumstances that the responsible entity considers to be reasonable and contains, if appropriate, reasonable indemnity provisions in relation to losses caused to the responsible entity as responsible entity of the scheme by the custodian's acts and omissions that relate to that agreement.
(4) A responsible entity who arranges for a custodian to hold scheme property or assets must not permit, under the agreement with the custodian or otherwise, the granting of a security interest, mortgage, lien or other encumbrance in favour of the custodian or its associates unless the responsible entity reasonably believes for reasons it has recorded in writing that any conflict that may arise as a result of the security interest, mortgage, lien or encumbrance