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Wingman Group

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Terms & Conditions

(WMG & WMX October 2026)

Background:

Wingman Group Pty Ltd (Wingman) provides the Services to Clients in Australia and New Zealand under these Terms. The Services are delivered by remote professionals engaged as independent contractors by Philippines Resources Pte. Ltd. or as employees by an approved Employer of Record (Remote Professionals).

1. ENGAGEMENT

1.1 General

In consideration of the Client paying the Fees, Wingman agrees to provide the Services as set out in any Statement of Work for the Term in accordance with these Terms and Conditions (Terms).

1.2 Services

The Services provided by Wingman may comprise:

  1. (a) the provision of Remote Professionals to perform services for the Client; and/or
  2. (b) access to and use of WingmanX, together with any related implementation, configuration, support or other services,

in each case as specified in the applicable Statement of Work. The terms applicable to the relevant Services are set out in these Terms and the applicable Statement of Work.

1.3 Separate Agreements and order of priority

  1. (a) Each Statement of Work, once accepted by the Client, forms a separate agreement between Wingman and the Client (each an Agreement), made up of:
    1. (i) that Statement of Work;
    2. (ii) the Partnership Agreement (if applicable);
    3. (iii) these Terms; and
    4. (iv) any annexures or schedules to these Terms.
  2. (b) Any ambiguity or discrepancy between those documents is resolved in the order listed in clause 1.3(a), with documents higher in the list having priority. A Statement of Work varies a provision of these Terms only where it expressly identifies the provision it varies.
  3. (c) Each Agreement is independent. Except as set out in clauses 8.1, 9.1(a)(ii) and 9.1(c), the expiry, termination, breach or variation of one Agreement does not affect any other Agreement.

1.4 Term

  1. (a) These Terms apply from the Effective Date and govern each Statement of Work accepted by the Client. Each Agreement commences on its SOW Start Date and continues until it expires or is terminated in accordance with these Terms, subject to any provisions that survive expiry or termination.
  2. (b) The term of each Agreement is the term set out in its Statement of Work (SOW Term), unless terminated earlier under clause 9. The SOW Start Date is:
    1. (i) the start date stated in the Statement of Work; or
    2. (ii) if no start date is stated, the date the Client accepts the Statement of Work in writing.
  3. (c) A Statement of Work may state a SOW Start Date earlier than the date it is accepted only if the parties agree to this in writing. If Wingman provides Services at the Client’s request before a Statement of Work is accepted, those Services are provided under these Terms, and the Client must pay for them at the rates in that Statement of Work once accepted or, if none is accepted, at Wingman’s then-current rates.
  4. (d) At the end of each SOW Term, the Agreement renews automatically for a further period equal to its original SOW Term, subject to clauses 7.4 and 7.5, unless either party gives the other at least 90 days’ written notice of non-renewal before the end of the then-current SOW Term.
  5. (e) Wingman will give the Client written notice at least 120 days before the end of each SOW Term confirming the renewal date and process.

2. WINGMAN’S OBLIGATIONS

2.1 General

Wingman will:

  1. (a) comply with applicable Laws;
  2. (b) use its reasonable endeavours to provide Remote Professionals that have the qualifications, skills and experience necessary to perform the Services; and
  3. (c) where the Services include WingmanX, provide the Client with access to and use of WingmanX in accordance with these Terms and the applicable Statement of Work.

2.2 Payments and support for Remote Professionals

Wingman will be responsible for:

  1. (a) ensuring the relevant Contracting Entity pays all fees payable to the Remote Professionals;
  2. (b) providing the Remote Professionals with training, support and access to professional development resources, where reasonably required or requested, to maintain the quality of the Services; and
  3. (c) providing the Remote Professionals with opportunities to participate in the Wingman community through optional access to exclusive platform benefits, events and other initiatives.

2.3 Equipment

  1. (a) Wingman will arrange for each Remote Professional to have access to the equipment and resources reasonably required to perform the Services, subject to the Client paying the applicable Fees.
  2. (b) The Client is responsible for the cost of any equipment provided to a Remote Professional in connection with the Services, whether included in a setup fee or charged separately, as specified in the applicable Statement of Work.
  3. (c) If the Client requires any additional equipment or resources beyond those contemplated in the applicable Statement of Work, Wingman may arrange for such equipment or resources to be provided at the Client’s cost, subject to agreement between the parties.
  4. (d) Where required, Wingman may facilitate the provision of equipment (including laptops, headsets or other peripherals) to Remote Professionals through third-party service providers, solely to enable performance of the Services. Such arrangements are managed in compliance with applicable Laws and do not create any employment relationship between the Client and any Remote Professional, or affect the basis on which a Remote Professional is engaged. Equipment ownership, maintenance, insurance and return obligations are governed exclusively by the third-party provider’s terms.

2.4 Insurance

  1. (a) While any Agreement is in force, Wingman must, at its cost, effect and maintain appropriate business insurances with reputable insurers, including:
    1. (i) Professional Indemnity insurance;
    2. (ii) Public Liability insurance;
    3. (iii) Cyber Liability insurance;
    4. (iv) Workers Compensation insurance as required by law for onshore operations; and
    5. (v) any other insurance required by applicable Laws having regard to the Services.
  2. (b) Wingman must provide the Client with certificates of currency for the insurance policies required under clause 2.4(a) upon reasonable request, which must not be made more than once per calendar year while any Agreement is in force.

3. CLIENT’S OBLIGATIONS

3.1 Service requirements

The Client must:

  1. (a) comply with all applicable Laws;
  2. (b) provide all necessary information, access, credentials, permissions and other assistance required by Wingman to allow Wingman to perform the Services in a timely fashion and as otherwise reasonably required by Wingman;
  3. (c) ensure that its IT network, systems and associated infrastructure are maintained in a secure, functional and reliable condition at all times, and meet or exceed the minimum technical and serviceability standards prescribed by Wingman and notified to the Client in writing, including during onboarding. These standards may include internet speed, hardware compatibility, software requirements, cybersecurity protocols, system configurations, API access and integration requirements and remote accessibility. The Client acknowledges that failure to maintain such standards may adversely affect service delivery, for which Wingman is not responsible;
  4. (d) review information, make decisions and, on an ongoing basis, provide Wingman with the information and instructions necessary for Wingman to perform the Services and provide the Client with access to and use of WingmanX; and
  5. (e) provide Wingman with true and relevant information regarding the Client and its business.

3.2 Client responsibilities

The Client agrees to:

  1. (a) provide each Remote Professional with the information needed to understand the work objectives and deliverable specifications;
  2. (b) introduce the Remote Professional to the Client personnel they will work with;
  3. (c) provide task-specific briefings and outcome-based quality standards;
  4. (d) subject to clause 2.3, ensure that any access, systems and resources the Client is to provide under the Statement of Work are available to each Remote Professional;
  5. (e) provide necessary requirements and outcome specifications to enable each Remote Professional to deliver work to required standards;
  6. (f) not instruct Wingman or any Remote Professional to engage in any conduct, or use WingmanX in any manner, which contravenes or is likely to contravene any Laws;
  7. (g) review completed work deliverables and, where applicable, the outputs or deliverables generated through WingmanX and provide written feedback within 7 Business Days of delivery. Failure to provide feedback within this timeframe will result in the work being deemed accepted for invoicing and payment purposes. Deemed acceptance does not prevent the Client raising a concern about the Work under clause 4.7; and
  8. (h) in relation to WingmanX:
    1. (i) ensure that only authorised users access and use WingmanX through the Client’s accounts and access credentials;
    2. (ii) keep all access credentials secure and confidential and promptly notify Wingman of any actual or suspected unauthorised access or use; and
    3. (iii) ensure that its authorised users comply with these Terms and any reasonable instructions or requirements notified by Wingman in relation to the use of WingmanX.

4. REMOTE SERVICES

4.1 Application of this clause

This clause applies to the extent that the Services described in a Statement of Work include the provision of Remote Professionals to perform the Services for the Client.

4.2 Conditions of Work

  1. (a) The scope of Work to be performed by each Remote Professional will be documented in writing in the Statement of Work.
  2. (b) The Client must comply with all Laws applicable to the Work, including all OH&S Law notified to the Client which apply to the relevant Remote Professionals.
  3. (c) Remote Professionals are engaged either as independent contractors by Philippines Resources Pte. Ltd. or as employees by an approved Employer of Record (each a Contracting Entity).
  4. (d) As between the Client and the Wingman Group, the relevant Contracting Entity is solely responsible for all obligations that arise under Law or under its arrangement with a Remote Professional in connection with that engagement, including, as they apply to the type of engagement:
    1. (i) paying the Remote Professional’s fees, wages or other remuneration;
    2. (ii) for Remote Professionals employed through an Employer of Record, tax withholding, social security, health insurance and similar statutory contributions, leave, 13th month pay, separation pay and any other statutory employee entitlements;
    3. (iii) any insurance, registration or licence the Contracting Entity is required by Law to hold; and
    4. (iv) onboarding, managing and ending the engagement.

    For Remote Professionals engaged as independent contractors through Philippines Resources Pte. Ltd., the Remote Professional is responsible for their own tax, social security and similar contributions under their engagement terms and applicable Law, except to the extent that applicable Law imposes any withholding, payment or contribution obligation on the relevant Contracting Entity.

  5. (e) These obligations remain with the relevant Contracting Entity regardless of how a Remote Professional’s engagement is described in these Terms or any Statement of Work. To the extent permitted by Law, the Client is not responsible for them. Nothing in this clause 4.2 limits clause 4.10(d).
  6. (f) The Client must not directly engage, end the engagement of, or otherwise manage the engagement of any Remote Professional.

4.3 Selection

  1. (a) Wingman will propose a Remote Professional to perform the Services described in the applicable Statement of Work.
  2. (b) The Client may accept or decline a proposed Remote Professional. If the Client declines, Wingman will propose an alternative Remote Professional.

4.4 Availability

The Client acknowledges and agrees that:

  1. (a) Remote Professionals may be unavailable for periods in accordance with their engagement terms and applicable local laws (Periods of Unavailability);
  2. (b) Wingman will use reasonable endeavours to ensure continuity of the Work during any Period of Unavailability;
  3. (c) the Client remains liable to pay all Fees and other amounts under the Agreement during any Period of Unavailability;
  4. (d) the Client must not direct when a Remote Professional takes time away from the Services; and
  5. (e) the Client remains liable to pay all Fees and other amounts under the Agreement during any Client shut-down period or other time where the Client does not have Work for the Remote Professional, regardless of whether the Remote Professional is unavailable.

4.5 End of a Remote Professional’s engagement

  1. (a) A Remote Professional may end their engagement in accordance with their engagement terms. Wingman will notify the Client in writing promptly after it becomes aware.
  2. (b) The Client must continue to pay the Fees for that Remote Professional for 10 Business Days after their last day providing the Services (Replacement Period).
  3. (c) After the Replacement Period, the Fees for that Remote Professional are suspended until a Replacement Remote Professional starts providing the Services.
  4. (d) If Wingman has not proposed a suitable Replacement Remote Professional within 30 days after the Remote Professional’s last day, the Client may, by written notice, end the Services of that Remote Professional under the applicable Statement of Work. No Early Termination Fee is payable for those Services. If no other Services remain under the Agreement, the Agreement ends on the date of the Client’s notice.
  5. (e) If the Client declines two proposed Replacement Remote Professionals who meet the requirements of the Statement of Work, the Fees resume from the date the Client declines the second.
  6. (f) A Remote Professional ending their engagement does not end or otherwise affect the Agreement.

4.6 Serious breach or sustained underperformance

  1. (a) If the Client considers that a Remote Professional has:
    1. (i) seriously breached the standards of conduct required for the Work; or
    2. (ii) consistently failed to deliver the Work to a reasonable standard,

    the Client may give Wingman written notice with particulars of the issue, asking Wingman to address it.

  2. (b) If Wingman receives a notice under clause 4.6(a), the parties must meet to discuss the issue within 7 Business Days.
  3. (c) Following the meeting under clause 4.6(b), the parties will agree the process to address the issue, which may include steps taken by Wingman with the Remote Professional, a Service Improvement Plan or withdrawal of the Remote Professional from the Services.
  4. (d) Any breach, underperformance or other issue concerning a Remote Professional does not affect the validity or duration of the Agreement. Wingman will act promptly and in good faith to address the issue, including by managing it directly or providing a Replacement Remote Professional, with minimal disruption to the Client.

4.7 Service Improvement Plan

  1. (a) If the Client considers that Work delivered by a Remote Professional does not meet the standards set out in the applicable Statement of Work, the Client must notify Wingman in writing, identifying the relevant Work, the standards not met and supporting examples.
  2. (b) Within 5 Business Days of receiving a notice under clause 4.7(a), Wingman will prepare a service improvement plan (Service Improvement Plan) setting out:
    1. (i) the Statement of Work standards that the Work has not met;
    2. (ii) the steps Wingman will take to bring the Work up to those standards;
    3. (iii) review dates, at least fortnightly; and
    4. (iv) the feedback and information the Client will provide.
  3. (c) Wingman is solely responsible for deciding on and carrying out any support, guidance or other steps with the Remote Professional. The Client’s role is limited to giving feedback on the Work against the standards in the Statement of Work.
  4. (d) If the Work does not meet the Statement of Work standards by the end of the Service Improvement Plan, Wingman may withdraw the Remote Professional and provide a Replacement Remote Professional. A withdrawal under this clause 4.7(d) is not a Client request under clause 4.8, and no Transition Fee applies.
  5. (e) A Service Improvement Plan does not waive any party’s rights under the Agreement.

4.8 Withdrawal and replacement of a Remote Professional

Withdrawal of a Remote Professional from the Services ends that Remote Professional’s assignment to the Client only. Whether the Remote Professional’s engagement continues is a matter solely between the Remote Professional and the relevant Contracting Entity. The Client has no right or role in that decision.

  1. (a) The Client may request in writing that Wingman withdraw a Remote Professional from the Services and provide a Replacement Remote Professional, including following a process under clause 4.6. Wingman will take reasonable steps to address the Client’s concerns or provide a Replacement Remote Professional, and will advise the Client of any change to the Fees.
  2. (b) The Client must give at least 30 days’ written notice of a withdrawal request (Withdrawal Notice Period). Wingman may waive the Withdrawal Notice Period where the Remote Professional has seriously breached their engagement terms.
  3. (c) If the Client requires the Remote Professional to stop providing the Services before the end of the Withdrawal Notice Period, the Client must pay 60% of the Fees for that Remote Professional for the rest of the Withdrawal Notice Period, instead of the full Fees (Transition Fee).
  4. (d) The Transition Fee reflects Wingman’s reasonable estimate of its continuing costs and lost profit during the Withdrawal Notice Period, and excludes costs that cease when the Remote Professional stops providing the Services.
  5. (e) A withdrawal under this clause 4.8 adjusts personnel only. It does not terminate the Agreement, which continues until the end of the Term or termination under clause 9. Fees for the withdrawn Remote Professional end at the end of the Withdrawal Notice Period, and Fees for the Replacement Remote Professional start on the date they start providing the Services.
  6. (f) Following a withdrawal, Wingman will use reasonable endeavours to provide a suitable Replacement Remote Professional on the same terms.
  7. (g) To end the Services of a Remote Professional without replacement, the Client must give notice under clause 9.3.

4.9 Delay to commencement

  1. (a) Where a Commencement Date for a Remote Professional has been confirmed in writing and the Client requests a delay, the Client must pay a holding fee of $300 per week plus GST (Holding Fee) for the period of the delay, instead of the Fees.
  2. (b) The Holding Fee covers Wingman’s costs of securing the Remote Professional’s availability for the Client and associated administration.
  3. (c) The Holding Fee applies from the original Commencement Date until the earlier of:
    1. (i) the revised Commencement Date; and
    2. (ii) the date Wingman releases the Remote Professional under clause 4.9(e).
  4. (d) A delay to the Commencement Date does not change the SOW Term, which continues to run from the SOW Start Date.
  5. (e) A delay may not exceed 4 weeks. If the Remote Professional has not started by the end of that period, Wingman may release the Remote Professional by written notice, and the Holding Fee ends on the date of release.
  6. (f) After a release under clause 4.9(e):
    1. (i) no Fees or Holding Fee are payable for that position until a replacement Remote Professional starts;
    2. (ii) the Client must give Wingman written notice when it is ready to start, and Wingman will use reasonable endeavours to propose a replacement Remote Professional as soon as reasonably practicable after that notice;
    3. (iii) the Fees resume from the replacement Remote Professional’s Commencement Date; and
    4. (iv) any Fees paid in advance for that position are credited against the Fees for the replacement Remote Professional.
  7. (g) If the Client has not given notice under clause 4.9(f)(ii) within 8 weeks after the release, Wingman may end the Services for that position by written notice. Clauses 9.3(c) and 9.3(h) then apply as if the Client had ended those Services for convenience, with the Remaining Months measured from the date of Wingman’s notice.
  8. (h) The Holding Fee is payable in accordance with the Payment Terms.

4.10 Engagement of Remote Professionals

  1. (a) The Client acknowledges and agrees that all Remote Professionals are engaged as independent contractors by Philippines Resources Pte. Ltd., a Singapore-registered entity, or as employees by an approved Employer of Record, under separate arrangements. Nothing in these Terms creates an employment, partnership, joint venture or agency relationship between the Client and any Remote Professional.
  2. (b) To preserve the engagement structure and support compliance with applicable Laws, the Client must not:
    1. (i) impose fixed or specific work hours on a Remote Professional, except for coordinating availability aligned with business operations and the delivery of tasks required;
    2. (ii) take any action against a Remote Professional in response to a concern about their Work or conduct. The Client must instead raise the concern with Wingman;
    3. (iii) directly supervise or control the manner, means or methodology by which tasks are performed, other than clearly communicating desired outcomes, timelines, tools to be used, access to necessary information or resources, and quality expectations; or
    4. (iv) integrate Remote Professionals into the internal employment systems, benefits platforms, payroll systems or HR frameworks of the Client.
  3. (c) The Client’s dealings with Remote Professionals must be limited to the Work, its quality and its timing. All other matters concerning a Remote Professional’s engagement are for Wingman and the relevant Contracting Entity.
  4. (d) If, as a result of the Client’s conduct or actions, a Remote Professional is determined by a court, regulatory authority or applicable Law to be an employee of the Client, the Client is responsible for all employment-related obligations arising from that determination, including wages, benefits, tax, insurance and statutory entitlements, and indemnifies Wingman, its Affiliates and the relevant Contracting Entity against any Claims, costs, liabilities or penalties arising from or in connection with that determination.

4.11 Placement Fee

  1. (a) If, during the Restraint Period, the Client or any of its Affiliates engages, employs or otherwise obtains services from a Remote Professional other than through Wingman, whether directly or through a related body corporate, intermediary, agency or other third party, the Client must:
    1. (i) notify Wingman in writing before the engagement starts or, if it has already started, as soon as the Client becomes aware of it; and
    2. (ii) pay Wingman a fee of $10,000 plus GST (Placement Fee).
  2. (b) The Placement Fee becomes payable when the Remote Professional accepts an offer of engagement or employment, or first provides services to the Client or its Affiliate, whichever happens first. The Client must pay the Placement Fee within 14 days after the date of Wingman’s invoice.
  3. (c) Clause 14.3 applies to the Placement Fee.
  4. (d) If Wingman takes legal action to recover the Placement Fee, the Client must pay Wingman’s reasonable legal costs on a solicitor-client basis.
  5. (e) The parties acknowledge that the Placement Fee reflects Wingman’s investment in sourcing, screening, onboarding and supporting the Remote Professional, and the Fees Wingman would otherwise have earned from that engagement.

In this clause 4.11, Remote Professional and Restraint Period have the meanings given in clause 14.1.

5. WINGMANX

5.1 Application of this clause

This clause applies to the extent that the Services described in a Statement of Work include the provision of WingmanX.

5.2 Access to WingmanX

  1. (a) Subject to the Client paying the Fees and complying with these Terms, Wingman grants the Client a non-exclusive, non-transferable and non-sublicensable licence to access and use WingmanX during the SOW Term of the applicable Statement of Work solely for the Client’s internal business operations pursuant to the applicable Statement of Work.
  2. (b) The Client is responsible for ensuring that its employees, contractors and other authorised users who access WingmanX comply with these Terms. The Client is responsible for all use of WingmanX through its user accounts and access credentials.
  3. (c) The Client must not, and must not permit any person to:
    1. (i) use WingmanX other than for the purposes permitted by these Terms;
    2. (ii) resell, sublicense, lease, distribute or otherwise make WingmanX available to any third party;
    3. (iii) copy, modify, adapt or create derivative works of WingmanX;
    4. (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure of WingmanX, except to the extent that such conduct cannot lawfully be restricted;
    5. (v) interfere with or disrupt the operation or security of WingmanX; or
    6. (vi) use WingmanX in breach of any applicable Law or in a manner that may damage or adversely affect WingmanX or Wingman’s systems.

5.3 Implementation and additional services

  1. (a) To the extent the applicable Statement of Work includes implementation, configuration, migration, integration, customisation or other professional services in connection with WingmanX, those services will be provided in accordance with the scope and terms set out in the applicable Statement of Work.
  2. (b) Unless otherwise specified in the applicable Statement of Work, professional services provided by Wingman in connection with WingmanX will be charged on a time and materials basis at Wingman’s then-current applicable rates.
  3. (c) The Client must promptly provide all information, access, credentials, decisions, personnel, test data and other assistance reasonably required by Wingman to provide WingmanX and any related professional services.
  4. (d) To the extent any delay in the provision of WingmanX or related professional services is caused or contributed to by the Client or any third party, Wingman is entitled to extend the applicable timeframe accordingly and, where the delay results in additional work or costs, charge the Client the applicable additional Fees.
  5. (e) Any variation to the scope, assumptions, deliverables, integrations, timeframe or acceptance criteria applicable to implementation or other professional services must be agreed in writing by the parties. Where a requested variation results in additional work, Wingman is entitled to charge additional Fees and reasonably adjust the applicable timeframe.
  6. (f) Unless otherwise expressly agreed in writing, all customisations, configurations, integrations, developments and other work undertaken or created by Wingman in connection with WingmanX form part of the Wingman IP.

5.4 Updates and maintenance

  1. (a) During the period in which the Client is entitled to access WingmanX, Wingman may provide updates, upgrades, modifications and other Improvements to WingmanX from time to time.
  2. (b) Wingman is not required to provide updates or functionality that constitutes a new product, separately charged module, material new functionality, bespoke development, substantial data migration or other professional service, unless expressly included in the applicable Statement of Work or otherwise agreed in writing.
  3. (c) Wingman may carry out scheduled or emergency maintenance of WingmanX. Where reasonably practicable, Wingman will provide reasonable advance notice of scheduled maintenance that is expected to materially affect the Client’s access to WingmanX.
  4. (d) The Client acknowledges that WingmanX may be temporarily unavailable or subject to reduced functionality while maintenance, updates, upgrades or other technical work is undertaken.

5.5 Support

  1. (a) To the extent the Services include support for WingmanX, Wingman will provide support in accordance with the support arrangements specified in the applicable Statement of Work or service description.
  2. (b) Any response times specified for support are targets only unless expressly identified as binding service levels. A response time does not constitute a guaranteed resolution time.
  3. (c) Support does not include rectification of issues caused by:
    1. (i) the Client’s systems or network;
    2. (ii) unsupported systems or software of third parties;
    3. (iii) unauthorised modifications to WingmanX;
    4. (iv) misuse of WingmanX;
    5. (v) failures of internet or telecommunications services; or
    6. (vi) circumstances outside Wingman’s reasonable control.
  4. (d) Unless otherwise expressly agreed in the applicable Statement of Work, support for WingmanX will be provided during Wingman’s ordinary business hours on Business Days, excluding weekends and public holidays (Support Hours). Wingman is not obliged to provide support outside Support Hours, including in relation to urgent matters, and any support provided outside Support Hours will be at Wingman’s discretion and may be subject to additional Fees agreed with the Client.

5.6 Third-party systems and integrations

  1. (a) WingmanX may integrate with or connect to third-party software, platforms or services (Third-Party Systems).
  2. (b) Third-Party Systems are provided and controlled by third parties and may be subject to separate terms and conditions. The Client is responsible for obtaining and maintaining any licences, permissions, credentials, API access and other authorisations required to use those Third-Party Systems.
  3. (c) Wingman is not responsible for the availability, security, functionality, accuracy or performance of a Third-Party System, or for any failure of WingmanX resulting from a Third-Party System.
  4. (d) Wingman does not warrant that an integration with a Third-Party System will remain available or unchanged. A third party may change, restrict, suspend, charge for or withdraw its API, integration or other access at any time.
  5. (e) Wingman may suspend, modify or discontinue an integration where reasonably necessary due to security, legal, technical or commercial circumstances affecting the relevant Third-Party System.
  6. (f) Where an integration becomes unavailable due to circumstances outside Wingman’s reasonable control, Wingman will use reasonable endeavours to identify an alternative where reasonably practicable. Any work required to implement an alternative integration may constitute additional Services and be subject to additional Fees.
  7. (g) Where WingmanX incorporates, integrates with or provides the Client or its authorised users with access to any Third-Party System under Wingman’s account or licence, the Client must, and must ensure that its authorised users:
    1. (i) comply with any applicable acceptable use policies, use restrictions and other requirements of the relevant third-party provider notified to the Client by Wingman;
    2. (ii) keep confidential and not disclose any confidential or proprietary information of the relevant third-party provider, except as permitted by these Terms or the applicable third-party terms; and
    3. (iii) not use, copy, modify, distribute, reverse engineer or otherwise deal with the Third-Party System or any intellectual property of the relevant third-party provider except as permitted under these Terms or the applicable third-party terms.
  8. (h) Without limiting clause 5.6(g), where WingmanX incorporates or provides access to services or functionality supplied by Formagrid, Inc. (dba Airtable) (Airtable):
    1. (i) the Client must, and must ensure that its authorised users, comply with Airtable’s applicable acceptable use policy and use restrictions as notified by Wingman from time to time;
    2. (ii) Airtable is an intended third-party beneficiary of clauses 5.2, 5.6(g), 10 and 11 to the extent those provisions relate to Airtable, its services, technology, Intellectual Property Rights or Confidential Information, and Airtable may enforce those provisions directly against the Client; and
    3. (iii) the Client acknowledges that Airtable may communicate directly with the Client and its authorised users in relation to the Airtable services, including product updates, security notices and changes to Airtable’s applicable terms and policies.
  9. (i) The Client is responsible for the accuracy, completeness and integrity of all data and information entered into, maintained in or imported from any Third-Party System, including any data transferred to or processed through WingmanX. Wingman is not responsible for verifying the accuracy or completeness of such data or information and, to the maximum extent permitted by Law, will not be liable for any errors, inaccuracies or incorrect calculations, reports or other outputs generated by WingmanX to the extent arising from inaccurate, incomplete or incorrect data or information contained in or imported from a Third-Party System.

5.7 Service continuity

  1. (a) Wingman will maintain commercially reasonable backup, disaster recovery and service continuity measures appropriate to the nature and scale of WingmanX.
  2. (b) Wingman will use reasonable endeavours to restore access to WingmanX following an interruption affecting Wingman’s systems.
  3. (c) Any Client-specific service levels, recovery time objectives, recovery point objectives, data escrow arrangements, customer-controlled hosting or other enhanced continuity commitments apply only if expressly agreed in the applicable Statement of Work.

6. CHANGES TO THE SERVICES AND STATEMENTS OF WORK

6.1 Changes to Services

The Services will be provided in accordance with the applicable Statement of Work. Any change to the scope, nature or requirements of the Services, including any change to the Work, Remote Professionals, WingmanX functionality or implementation requirements, must be agreed in writing by the parties, except a change to Remote Professionals made under clause 4.

6.2 Change in Fees or timing

Where a change requested by the Client or otherwise agreed by the parties is reasonably likely to affect the Fees, resources or timing for delivery of the Services, Wingman may provide the Client with reasonable details of the resulting change to the Fees, timing or other relevant terms. The change will not take effect until the parties have agreed the applicable changes in writing.

6.3 Additional Services

Wingman is not required to provide any Services or functionality outside the scope of the applicable Statement of Work unless otherwise agreed in writing. Any additional services agreed by the parties may be charged at the rates specified in the applicable Statement of Work or, where no applicable rate is specified, Wingman’s then-current rates.

6.4 Client-requested changes

Wingman may decline a requested change where it is not reasonably practicable to implement the change, would materially affect the Services or Wingman’s systems, or would require changes to WingmanX that are not commercially or technically feasible.

7. FEES AND INVOICING

7.1 General

  1. (a) The Client must pay the Fees specified in the applicable Statement of Work and any other amounts payable under these Terms.
  2. (b) Unless otherwise stated, the Fees are exclusive of GST and other applicable taxes.
  3. (c) Wingman may issue invoices in advance and at the frequency specified in the applicable Statement of Work.
  4. (d) The Client must pay each invoice by the due date specified in the invoice, without set-off, deduction or counterclaim, except to the extent required by Law.

7.2 Upfront payments as a condition of commencement

  1. (a) The Fees payable for set-up and the first month of the Services are payable in full before the scheduled Commencement Date as set out in the applicable Statement of Work.
  2. (b) Commencement of Services and allocation of a Remote Professional are conditional upon receipt of cleared funds. Wingman is under no obligation to allocate or onboard a Remote Professional or otherwise commence the provision of the Services until such payments have been received in full.
  3. (c) Any delay in payment will result in a corresponding delay to commencement of the Services, without liability to Wingman.
  4. (d) The Fees for the first month of the Services paid under clause 7.2(a), referred to in the Statement of Work as the deposit, are payment for the first month of the Services.

7.3 Other amounts

Where applicable, the Client must pay Wingman for any other amounts owing under the Agreement upon demand without set-off, deduction or delay, except to the extent required by Law.

7.4 Annual Fee increase

  1. (a) The Fees will automatically increase by 5% on each anniversary of the SOW Start Date of each Agreement.
  2. (b) Each increase under clause 7.4(a) applies automatically to the Fees payable from the relevant anniversary date without the need for further notice, agreement or consent from the Client.
  3. (c) An increase under this clause 7.4 is separate from any adjustment to the Fees under clause 7.5 and is not subject to the notice, consultation or termination provisions in clause 7.5.

7.5 Review of Fees

In addition to any annual increase under clause 7.4, Wingman may amend the Fees at any time during the Term by providing at least 90 days’ written notice to the Client. If the Client does not agree to any amended Fees, the Client must notify Wingman in writing of its disagreement within 30 days of the fee notice. Upon receiving such notice, the parties must meet and discuss the proposed fee changes in good faith within 14 days to understand the costing adjustment and seek mutual agreement. If no agreement is reached following such discussions, the Client may terminate the Agreement by giving 90 days’ written notice to Wingman. If the Client gives notice of termination under this clause 7.5, the amended Fees do not apply during the Client’s notice period, and no Early Termination Fee is payable.

7.6 GST

  1. (a) If GST has application to any supply made under or in connection with these Terms, Wingman may, in addition to any amount or consideration payable under these Terms, recover from the Client an additional amount on account of GST, calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.
  2. (b) Any additional amount on account of GST recoverable from the Client under this clause is calculated without any deduction or set-off of any other amount and is payable by the Client upon demand by Wingman, whether by invoice or otherwise.

7.7 Failure to pay

  1. (a) Wingman may charge interest on any overdue amount at 2% per month, calculated daily from the due date until payment. The parties agree this rate reflects Wingman’s cost of funding unpaid amounts and administering overdue accounts.
  2. (b) Wingman may recover its reasonable costs of recovering overdue amounts, to the extent permitted by Law.
  3. (c) If an undisputed amount remains overdue, Wingman may suspend the Services under clause 8.

7.8 Invoice disputes

  1. (a) If the Client disputes an invoice in good faith, it must notify Wingman in writing within 7 days after the invoice date, identifying the disputed amount and its reasons, and must pay the undisputed portion by the due date.
  2. (b) Any amount not disputed in accordance with clause 7.8(a) is an undisputed amount for the purposes of these Terms.
  3. (c) The parties will resolve a disputed amount under clause 16.9. Any amount found to be payable must be paid within 7 days after the dispute is resolved, with interest under clause 7.7(a) from the original due date.

8. SUSPENSION

8.1 Suspension of Services

Wingman may suspend all or part of the Services, including the Client’s access to WingmanX, where Wingman reasonably believes that:

  1. (a) the Client has failed to pay an undisputed amount that is overdue following written notice;
  2. (b) the Client is using the Services unlawfully or in breach of these Terms;
  3. (c) the Client’s use of the Services creates a material security, operational or legal risk to Wingman, WingmanX, the Services, Wingman’s systems or another client of Wingman; or
  4. (d) suspension is required by Law or by a third-party infrastructure, hosting or service provider on whom Wingman reasonably relies to provide the Services.

8.2 Notice

Where practicable, Wingman will give the Client reasonable notice of a proposed suspension and a reasonable opportunity to remedy the relevant issue before suspending the Services.

8.3 Immediate suspension

Wingman may suspend the Services immediately without prior notice where delay would create a material security, legal or operational risk, or where suspension is required by Law or a third-party provider.

8.4 Restoration

Wingman will use reasonable endeavours to restore the affected Services within a reasonable period after the cause of the suspension has been remedied, subject to the Client paying any outstanding amounts and any reasonable costs incurred by Wingman in restoring the Services, where applicable.

8.5 Fees during suspension

Suspension of the Services does not relieve the Client of its obligation to pay the Fees or any other amounts payable under the Agreement, except to the extent the suspension resulted solely from Wingman’s breach of the Agreement. This clause 8.5 does not apply to the extent clause 15.3 applies.

9. TERMINATION

9.1 Termination for cause

  1. (a) Either party may terminate an Agreement immediately by written notice if the other party:
    1. (i) materially breaches that Agreement and fails to remedy that breach within 10 Business Days of receiving written notice from the other party particularising the breach, or materially breaches that Agreement where the breach is incapable of being remedied; or
    2. (ii) suffers an Insolvency Event, in which case the other party may terminate any or all Agreements.
  2. (b) For clarity:
    1. (i) a Remote Professional ending their engagement, or the underperformance of a Remote Professional, does not constitute termination of the Agreement or a material breach of the Agreement. The Agreement remains in force between the Client and Wingman for its full term, and Wingman remains responsible for delivering the agreed Services in accordance with the Agreement, regardless of any change in assigned personnel;
    2. (ii) the replacement of a Remote Professional under clause 4 does not constitute a material breach of the Agreement; and
    3. (iii) dissatisfaction with an individual Remote Professional is not a material breach and does not give the Client a right to terminate under this clause 9.1. The Client may terminate for convenience under clause 9.3.
  3. (c) If the Client fails to pay an undisputed amount under any Agreement within 10 Business Days after written notice, Wingman may suspend or terminate any or all Agreements.
  4. (d) If Wingman terminates an Agreement under clause 9.1(a) or 9.1(c), the Client must pay Wingman an amount calculated in the same way as the Early Termination Fee under clause 9.3(c), with the Remaining Months measured from the date of termination. The parties agree this amount is a genuine pre-estimate of Wingman’s loss, for the reasons set out in clause 9.3(d), and is not a penalty. It is a debt due and payable within 14 days after the date of Wingman’s invoice. Clauses 9.3(f) and 9.3(g) apply to it.

9.2 Obligations on termination or expiry

  1. (a) On termination or expiry of an Agreement:
    1. (i) the Client must pay Wingman for any Services it has provided up to the date of termination for which Wingman has not been paid;
    2. (ii) the Client must immediately pay all outstanding invoices to Wingman for that Agreement;
    3. (iii) subject to the Client paying Wingman at its then-current rates, Wingman will provide the Client with disengagement services for the Services as agreed between the parties;
    4. (iv) subject to clause 12.2, each party must return, destroy or permanently erase (as directed in writing by the other party) any Confidential Information of the other party that is not needed for another Agreement that remains in force; and
    5. (v) each party must cease using the other party’s Confidential Information except as needed for another Agreement that remains in force.
  2. (b) Termination of the Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
  3. (c) Termination or expiry of the Agreement will not affect clauses 4.10(d), 4.11, 9 to 14, 16 and 17, or any provision of the Agreement that expressly or by implication is intended to continue after termination or expiry.

9.3 Termination for convenience

  1. (a) The Client may terminate any Agreement for convenience by giving Wingman not less than 90 days’ written notice (Notice Period).
  2. (b) During the Notice Period the Client must continue to pay the Fees in full, and Wingman will continue to provide the Services. If the Client requires a Remote Professional to stop providing the Services before the end of the Notice Period, the Client must pay 60% of the Fees for that Remote Professional for the rest of the Notice Period, instead of the full Fees.
  3. (c) On termination under this clause 9.3, the Client must pay Wingman an early termination fee (Early Termination Fee) for that Agreement equal to: Remaining Months x Monthly Fee x 60%, where:
    1. (i) Remaining Months means the number of whole and part months that remain in the then-current SOW Term of that Statement of Work after the end of the Notice Period, with any part month calculated pro rata on a daily basis; and
    2. (ii) Monthly Fee means the monthly Fees payable under that Statement of Work as at the date of the Client’s notice, excluding GST.
  4. (d) The Early Termination Fee is the agreed price for the Client’s right to end the Agreement before the end of the Term. It is not a payment for breach. The parties acknowledge that Wingman commits to premises, offshore operating entities, onshore support personnel and systems in reliance on the Client’s Term, and that those costs continue after early termination. The Early Termination Fee reflects Wingman’s reasonable estimate, made at the date of the Agreement, of the lost contribution to those continuing costs and the profit Wingman would otherwise have earned. It excludes costs that cease on termination.
  5. (e) Wingman will invoice the Early Termination Fee on or after the last day of the Notice Period. It is a debt due and payable within 14 days of the invoice date, plus GST.
  6. (f) The Early Termination Fee is not Consequential Loss and is not limited by clause 13.
  7. (g) Payment of the Early Termination Fee does not affect the Client’s liability for Fees or other amounts that accrued before termination, or the Client’s obligations under clauses 4.10, 4.11, 10, 11 and 14.
  8. (h) The Client may end the Services of an individual Remote Professional, without replacement, under this clause 9.3. Clauses 9.3(a) to 9.3(g) apply to those Services as if references to the Agreement were references to that Remote Professional’s Services, and the Monthly Fee were the monthly Fees for that Remote Professional. The Agreement otherwise continues.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Right to use IP

  1. (a) Subject to clauses 10.2(d) and 10.4, Wingman grants the Client a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable licence while any Agreement is in force to use the Wingman IP solely to the extent necessary for the Client to receive the benefit of the Work and the Services.
  2. (b) The Client grants Wingman a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable licence while any Agreement is in force to use the Client IP solely to the extent necessary for Wingman to perform the Work and Services.

10.2 Ownership of Intellectual Property

  1. (a) Wingman acknowledges that the Client IP, and all Intellectual Property Rights subsisting in the Client IP, is and remains the exclusive property of the Client or, where applicable, the third-party licensor from whom the Client derives the right to use the Client IP.
  2. (b) The Client acknowledges that the Wingman IP, and all Intellectual Property Rights subsisting in the Wingman IP, is and remains the exclusive property of Wingman or, where applicable, the third-party licensor from whom Wingman derives the right to use the Wingman IP.
  3. (c) Wingman retains all right, title and interest in the Wingman IP and all Intellectual Property Rights in any materials, processes, configurations, workflows, methodologies, Support Packages, system optimisations or other materials created or developed by Wingman in providing the Services (Created IP), other than Deliverables.
  4. (d) The Client is granted a perpetual, non-exclusive, royalty-free licence to use Created IP for its internal business purposes, subject to these Terms. This licence does not extend to WingmanX or WingmanX Materials, which the Client may use only during the SOW Term of the applicable Agreement.
  5. (e) For the avoidance of doubt, Created IP does not include Client Data, Deliverables or materials independently created and provided by the Client.
  6. (f) WingmanX Materials implemented in the Client’s systems remain the property of Wingman. On termination or expiry of the applicable Agreement, the Client must stop using them and, where reasonably practicable, remove or roll them back.
  7. (g) If, following termination or expiry of the Agreement, the Client:
    1. (i) continues to use any WingmanX Materials in breach of this clause 10.2; or
    2. (ii) fails, within 10 Business Days after termination or expiry, to remove or roll back any WingmanX Materials as required under clause 10.2(f),

    the Client must pay Wingman a licence fee equal to the monthly Fees that applied to the WingmanX Services immediately before termination or expiry, calculated daily, for each day the use continues. Wingman will invoice the licence fee monthly in arrears, plus GST.

  8. (h) The licence fee in clause 10.2(g) is the price of the Client’s continued use of Wingman IP. Payment of it does not grant the Client any ongoing licence, and does not limit Wingman’s right to require the Client to stop using the Wingman IP or to seek injunctive relief under clause 11.3.

10.3 Restrictions

  1. (a) Except as expressly permitted by these Terms or agreed in writing, neither party may:
    1. (i) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or underlying structure of the other party’s IP;
    2. (ii) copy, reproduce, modify, adapt or create derivative works from the other party’s IP;
    3. (iii) sell, licence, distribute, disclose or otherwise make the other party’s IP available to a third party; or
    4. (iv) remove any proprietary or copyright notices from the other party’s IP.
  2. (b) These restrictions do not apply to the extent prohibited by applicable Law.

10.4 Deliverables

  1. (a) Deliverables means materials created by a Remote Professional specifically for the Client in performing the Work, including documents, reports, data, content, and any configurations, automations or workflows the Remote Professional builds in the Client’s own systems without using WingmanX. Deliverables do not include WingmanX, WingmanX Materials or other Wingman IP.
  2. (b) Ownership of all Intellectual Property Rights in a Deliverable passes to the Client when the Client has paid the Fees for the period in which the Deliverable was created. Until then, Wingman grants the Client a non-exclusive licence to use the Deliverable for its internal business purposes.
  3. (c) Where a Deliverable incorporates Wingman IP, such as a template or methodology, the Client is granted a perpetual, non-exclusive, royalty-free licence to use, copy and modify that Wingman IP as part of the Deliverable for its internal business purposes.
  4. (d) Wingman will ensure that the arrangements between the relevant Contracting Entity and each Remote Professional allow ownership of Deliverables to pass to the Client under this clause 10.4, including any consent required in relation to moral rights.
  5. (e) Nothing in this clause 10.4 prevents Wingman or a Remote Professional from using general skills, knowledge and experience gained in performing the Work, provided none of the Client’s Confidential Information is used or disclosed.

11. CONFIDENTIALITY

11.1 Obligations of confidence

Each party agrees to, and must ensure each of its Personnel:

  1. (a) hold in strict confidence, and not disclose or permit the disclosure of, any Confidential Information of the other party;
  2. (b) use the Confidential Information solely to perform or to exercise its rights under these Terms;
  3. (c) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
  4. (d) use its reasonable endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.

11.2 Exclusions

The obligations in clause 11.1 do not apply:

  1. (a) to the extent necessary to enable disclosure required by law;
  2. (b) to any disclosure agreed in writing between the parties;
  3. (c) where the Confidential Information has entered the public domain other than as a result of a breach of the Agreement;
  4. (d) to Confidential Information that is already known by, rightfully received by, or independently developed by the recipient free of any obligation of confidence; or
  5. (e) to disclosure to the recipient’s Personnel, Affiliates (including Philippines Resources Pte. Ltd.), Remote Professionals, contractors and service providers who need to know the Confidential Information for the purposes of the Agreement and are bound by obligations of confidence no less protective than this clause 11, provided the recipient remains responsible for their compliance.

11.3 Injunctive relief

Each party acknowledges that:

  1. (a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to the other party’s Confidential Information or Intellectual Property Rights, and that monetary damages would be an insufficient remedy; and
  2. (b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of, clauses 10 or 11.

12. DATA PROTECTION AND PRIVACY

12.1 Client Data

  1. (a) The Client retains ownership of all Client Data.
  2. (b) The Client grants Wingman and its Personnel a non-exclusive, worldwide, royalty-free licence to access, use, reproduce, store, transmit and otherwise process Client Data to the extent reasonably necessary to:
    1. (i) provide, operate, support, maintain and improve the Services;
    2. (ii) provide and administer WingmanX;
    3. (iii) perform the applicable Statements of Work;
    4. (iv) prevent or address security, technical or operational issues; and
    5. (v) comply with applicable Laws.
  3. (c) The Client is responsible for the accuracy, quality, legality and integrity of Client Data and for ensuring that:
    1. (i) it has all rights, consents and other authorisations necessary for Wingman and any third-party service provider used in connection with the Services to access, use and process Client Data in accordance with these Terms; and
    2. (ii) the Client Data, and its provision and use in connection with the Services, does not infringe or otherwise violate the rights of any third party or any applicable Law.
  4. (d) The Client authorises Wingman to access, store, copy, transmit, process, modify and otherwise use Client Data to the extent reasonably necessary to provide, maintain, support, secure and improve WingmanX and to otherwise perform Wingman’s obligations under these Terms.
  5. (e) Wingman will not sell Client Data or use Client Data for independent advertising, marketing or services provided to another client, except with the Client’s consent or as otherwise permitted by these Terms.
  6. (f) Wingman may use aggregated or de-identified information derived from the use of WingmanX for purposes including analytics, reporting, service improvement and product development, provided that the information does not reasonably identify the Client or any individual.
  7. (g) The Client is responsible for maintaining appropriate backups or copies of its Client Data for its own business purposes.

12.2 Data export and deletion

  1. (a) Following expiry or termination of the Client’s access to WingmanX, and subject to payment of all outstanding Fees, Wingman will make the Client Data available to the Client for export in a reasonably available format for 30 days, unless a different period is specified in the applicable Statement of Work.
  2. (b) The Client’s right to export Client Data does not extend to WingmanX, Wingman IP, Created IP, source code, database structures, schemas, workflows, automations, proprietary formats or other Intellectual Property Rights owned by Wingman.
  3. (c) Any additional data extraction, transformation, migration or transition assistance requested by the Client may be provided as additional Services and charged at Wingman’s then-current rates.
  4. (d) Following the applicable export period described in clause 12.2(a), Wingman may delete the Client Data, subject to any applicable Law, backup and disaster recovery processes and Wingman’s ordinary data retention practices.
  5. (e) Client Data retained in backup or disaster recovery systems will remain protected and will not be used for any purpose other than maintaining those systems and complying with applicable Law.
  6. (f) On written request following expiry or termination, Wingman will confirm that it has deleted or permanently de-identified the Client Data, except to the extent that the Client Data is required to be retained by Law or remains in backup or disaster recovery systems maintained in accordance with these Terms.

12.3 Security Services

  1. (a) Where the applicable Statement of Work includes security services, Wingman will provide the following security support as part of the Services (Security Services):
    1. (i) the device security controls set out in Schedule 2 for each device Wingman supplies to a Remote Professional and each Cloud PC (Device Security Controls);
    2. (ii) security awareness training for Remote Professionals during onboarding;
    3. (iii) cybersecurity guidance, including recommendations for the Client’s own IT environment;
    4. (iv) direct engagement with Wingman’s security provider to assist with Client security assessments; and
    5. (v) ongoing security updates and recommendations throughout the engagement.
  2. (b) Providing the Security Services does not transfer responsibility for the Client’s own environment. The Client remains solely responsible for:
    1. (i) the security of the Client’s systems, networks, applications and accounts, including the access permissions it grants to Remote Professionals and any email accounts the Client provides to Remote Professionals;
    2. (ii) implementing and maintaining appropriate cybersecurity protocols within its own environment;
    3. (iii) ensuring Remote Professionals receive any Client-specific security training the Client requires; and
    4. (iv) engaging with, responding to and implementing security recommendations provided by Wingman.
  3. (c) Except to the extent resulting from a breach of these Terms by Wingman, the Client is responsible for considering, implementing and maintaining appropriate security measures in relation to its use of the Services. To the extent the Client fails to engage with, respond to, acknowledge or implement security information, guidance or recommendations provided by Wingman, Wingman is not responsible for any loss, damage, security incident or compromise arising from or contributed to by that failure. Except for the Security Services, Wingman is not responsible for reviewing, monitoring or maintaining the security of the Client’s systems.
  4. (d) Except as set out in clause 13.6, except to the extent resulting from a breach of these Terms by Wingman, and to the maximum extent permitted by Law, Wingman is not responsible for any Loss suffered or incurred by the Client in connection with any data breach or security incident caused or contributed to by a Remote Professional placed with the Client.
  5. (e) The Device Security Controls reduce, but do not eliminate, security risk. Wingman does not warrant that any device will be free from security incidents. Wingman may change the Device Security Controls or its security provider from time to time, provided the overall level of protection is not materially reduced.
  6. (f) Wingman has no visibility of, or responsibility for, the Client’s IT environment. The Client must not rely on the Security Services as a substitute for its own security measures.
  7. (g) The Security Services and the Device Security Controls do not include the backup of any data, including data held on a device used by a Remote Professional, whether by Wingman or its security provider. Clause 12.4 applies to all backups.
  8. (h) Where a Statement of Work does not include Security Services, the Client has declined them and confirmed that it will provide its own security for the Remote Professional. In that case, for that Agreement:
    1. (i) the Client is solely responsible for the security of every device, system and account a Remote Professional uses to provide the Services, including any device the Client requires or permits the Remote Professional to use; and
    2. (ii) Schedule 2, clause 12.3(e) and clause 13.6(a)(iv) do not apply.

12.4 Data backup and responsibility

Notwithstanding anything else in these Terms, the Client acknowledges and agrees that Wingman:

  1. (a) is not responsible for the backup of any Client Data or Client IP in connection with the Services, other than the WingmanX backup measures described in clause 5.7(a); and
  2. (b) is not liable to the Client for any loss, destruction or other damage to Client Data or Client IP caused by the Client failing to back up the Client Data or Client IP, or for any Loss suffered or incurred by the Client in connection with that failure.

12.5 Privacy

  1. (a) Each party must, and must ensure that its Personnel, comply with their obligations under all relevant Privacy Laws.
  2. (b) If the Client discloses any third party’s Personal Information to Wingman or a Remote Professional, the Client warrants that it has obtained consent and made any necessary disclosures to the relevant third party before collecting and disclosing their Personal Information to Wingman or the Remote Professional.
  3. (c) In providing the Services, Personal Information may be transferred to, stored in or accessed from Australia, the Philippines, Singapore, India, Nepal, Sri Lanka, the United States and, for New Zealand-based Clients, New Zealand, including by Philippines Resources Pte. Ltd., Remote Professionals and Wingman’s service providers. The Client acknowledges that such information may be subject to the privacy laws of those countries and consents to those cross-border transfers.
  4. (d) In the event of a data breach involving Personal Information, the party becoming aware of the breach must notify the other party within 48 hours and cooperate in any required breach notifications to regulatory authorities or affected individuals.
  5. (e) Subject to clause 12.2, upon termination or expiry of the Agreement, each party must return or securely destroy all Personal Information received from the other party, except as required by applicable Law.
  6. (f) The Client indemnifies Wingman against any Claims, penalties or losses arising from the Client’s failure to obtain proper consent for Personal Information disclosed to Wingman or Remote Professionals.
  7. (g) To the maximum extent permitted by applicable Law, Wingman is not liable for any loss, damage, Claim, liability, penalty, cost or expense arising out of or in connection with:
    1. (i) Personal Information provided or disclosed by the Client to Wingman or a Remote Professional without the Client having obtained all necessary consents or provided all required notices or disclosures;
    2. (ii) any act or omission of the Client or its Personnel in breach of applicable Privacy Laws or these Terms;
    3. (iii) any Personal Information that is inaccurate, incomplete, unlawfully collected or unlawfully disclosed by the Client;
    4. (iv) any security incident, data breach or unauthorised access caused or contributed to by the Client, its Personnel or any third party engaged or authorised by the Client; or
    5. (v) the Client’s instructions, systems or processes relating to the collection, use, disclosure, storage or handling of Personal Information.
  8. (h) Nothing in this clause limits or excludes either party’s liability to the extent that such limitation or exclusion is prohibited by applicable Law.

13. LIMITATION OF LIABILITY

13.1 Maximum liability

  1. (a) Subject to clause 13.1(b) and unless otherwise prohibited by Law, each party’s aggregate liability to the other party arising out of or in connection with an Agreement (whether under contract, in tort, under statute or otherwise at Law or in equity) is limited to the lesser of:
    1. (i) the total Fees paid by the Client to Wingman under that Agreement in the 12 months before the event giving rise to the Claim; and
    2. (ii) the total Fees payable under the applicable Statement of Work,

    but in any case is not less than one month’s Fees under the applicable Statement of Work.

  2. (b) Clause 13.1(a) does not limit or exclude the liability of either party for any Claim or Loss arising from:
    1. (i) fraud, fraudulent representation or criminal conduct of a party;
    2. (ii) wilful misconduct or gross negligence of a party; or
    3. (iii) in the case of the Client:
      1. (A) its obligation to pay the Fees, the Early Termination Fee and any other amounts under these Terms;
      2. (B) its indemnity under clause 4.10(d);
      3. (C) its obligations under clause 4.11;
      4. (D) a breach of clause 14;
      5. (E) its indemnity under clause 13.5; or
      6. (F) its indemnity under clause 12.5(f).

13.2 Exclusions

As far as the law permits:

  1. (a) neither party nor any of its Personnel will be liable to the other party for any Consequential Loss. This clause 13.2(a) does not apply to the Fees, the Early Termination Fee, any amount payable under clause 9.1(d), the Transition Fee, the Placement Fee, the licence fee under clause 10.2(g) or any amount payable under clause 14.4;
  2. (b) the Client is solely responsible, as between the Client and Wingman, its Personnel and the Remote Professionals, for any opinions, recommendations or other conclusions made, or actions taken, by the Client or any other third party based (wholly or in part) on the Work, the Services or the Security Services;
  3. (c) Wingman has no liability for:
    1. (i) any deemed employment relationship that arises between a Remote Professional and the Client;
    2. (ii) except as set out in clause 13.6, any injury, Loss or damage caused by misconduct, negligence or incompetence of a Remote Professional in connection with the Work, the Services or the Security Services; or
    3. (iii) any injury, Loss or damage caused by errors or omissions in any information or instructions that the Client provides to Wingman, its Personnel or the Remote Professionals in connection with the Work, the Services or the Security Services; and
  4. (d) except for the warranties expressly set out in these Terms, Wingman makes no warranties or representations in relation to the Remote Professionals, the Work, the Services, the Security Services or WingmanX and disclaims, to the maximum extent permitted by Law, all statutory or implied warranties, including warranties of fitness for a particular purpose, warranties arising from a course of dealing or usage of trade and any warranties of non-infringement.

13.3 Mitigation

Each party must mitigate any Loss it suffers as a result of a breach by the other party of these Terms, or of a warranty provided under these Terms (including where such Loss gives rise to an indemnity).

13.4 Australian Consumer Law

Nothing in these Terms excludes, restricts or modifies any right or remedy under the Australian Consumer Law that cannot lawfully be excluded, restricted or modified. Clause 13.7 applies to the extent the Australian Consumer Law permits.

13.5 Third-Party Systems indemnity

Where the Services include access to or use of a Third-Party System, the Client indemnifies Wingman against any Loss suffered or incurred by Wingman arising from any claim made against Wingman by the provider of that Third-Party System, to the extent that the claim arises from or relates to:

  1. (a) Client Data provided, submitted, stored or processed by or on behalf of the Client in connection with the Third-Party System; or
  2. (b) the Client’s or any of its authorised users’ use of the Third-Party System in breach of any applicable acceptable use policy, use restriction or other requirement notified to the Client by Wingman,

except to the extent that the Loss was caused or contributed to by Wingman’s breach of these Terms, negligence or wilful misconduct.

13.6 Remote Professional conduct

  1. (a) Subject to clause 13.1 and clauses 13.6(c) to 13.6(e), Wingman is liable to the Client only for Recoverable Loss directly caused by:
    1. (i) fraud or dishonesty of a Remote Professional in performing the Work;
    2. (ii) a Remote Professional’s deliberate misuse or unauthorised disclosure of Client Data or the Client’s Confidential Information;
    3. (iii) Wingman’s failure to carry out the screening and verification checks expressly listed in the applicable Statement of Work; or
    4. (iv) where the applicable Statement of Work includes Security Services, Wingman’s failure to maintain the Device Security Controls in Schedule 2.
  2. (b) Except as set out in clause 13.6(a), Wingman is not liable for any act, omission, error or negligence of a Remote Professional. Where Work does not meet the standards in the Statement of Work, the Client’s remedies are a Service Improvement Plan under clause 4.7, a Replacement Remote Professional under clause 4.8, or Wingman arranging for the Work to be performed again.
  3. (c) The Client controls the access, authority and systems it gives a Remote Professional, and is responsible for Loss to the extent it is caused or contributed to by:
    1. (i) the Client’s instructions;
    2. (ii) access, permissions or authority the Client grants a Remote Professional beyond what the Work reasonably requires, including authority to approve payments, change bank or payee details, or act alone on financial transactions;
    3. (iii) the Client’s failure to use multi-factor authentication, role-based access, and independent approval of payments and changes to bank or payee details on its systems;
    4. (iv) the Client’s failure to remove a Remote Professional’s access promptly after Wingman notifies the Client that the Remote Professional has stopped providing the Services; or
    5. (v) the Client’s failure to act on security guidance provided under clause 12.3.
  4. (d) Where the Client caused or contributed to a Loss under clause 13.6(c), Wingman’s liability is reduced in proportion to the Client’s contribution.
  5. (e) The Client must notify Wingman in writing within 30 days after becoming aware of any matter that may give rise to a Claim under clause 13.6(a), give Wingman reasonable information and cooperation, and not admit or settle any liability without Wingman’s written consent, which Wingman will not unreasonably withhold. Wingman is not liable to the extent a failure to comply with this clause 13.6(e) increased the Loss.
  6. (f) For a Claim under clause 13.6(a)(i) or 13.6(a)(ii), Wingman will take reasonable steps to recover the Loss from the Remote Professional under the Remote Professional’s engagement terms, and will pay any amount recovered to the Client, less reasonable recovery costs, to the extent it is not already paid under clause 13.6(a). Wingman’s liability under clause 13.6(a) is not conditional upon recovery of any amount from the relevant Remote Professional.
  7. (g) Nothing in this clause 13.6 excludes, restricts or modifies any right or remedy the Client has under the Australian Consumer Law or any other Law that cannot lawfully be excluded, restricted or modified. Where Wingman’s liability for such a right can be limited, it is limited as set out in clause 13.7.
  8. (h) In this clause 13.6, Recoverable Loss means financial loss that:
    1. (i) the Client has actually incurred or paid, and not loss that is contingent or may arise in the future;
    2. (ii) is of a specific amount that can be calculated; and
    3. (iii) is supported by reasonable documentary evidence,

    and is limited to:

    1. (iv) money, or physical property, taken from the Client and not returned or recovered;
    2. (v) reasonable and necessary amounts the Client pays to third parties to investigate, contain, remediate or recover from an incident arising from a matter described in clause 13.6(a); and
    3. (vi) amounts the Client pays a third party under a court judgment, a compensation determination of the Office of the Australian Information Commissioner, or a settlement Wingman consented to under clause 13.6(e),

    but does not include:

    1. (vii) the Client’s internal staff time or costs;
    2. (viii) loss of reputation or goodwill, or any other Consequential Loss;
    3. (ix) any fine or penalty imposed on the Client; or
    4. (x) any loss to the extent it has been recovered or made good, including by the return of data or property, by insurance or by the Remote Professional.

13.7 Australian Consumer Law limitation

Where the Australian Consumer Law applies and the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by section 64A of the Australian Consumer Law, Wingman’s liability for a failure to comply with a consumer guarantee in relation to the Services is limited, at Wingman’s option, to:

  1. (a) supplying the Services again; or
  2. (b) paying the cost of having the Services supplied again.

14. NON-SOLICITATION

14.1 Definitions

In this clause 14:

  1. (a) Restraint Period means the period during which any Agreement is in force and the 12 months after the last Agreement expires or is terminated.
  2. (b) a reference to a Remote Professional includes any individual who, at any time in the 12 months before the relevant conduct:
    1. (i) provided Services to the Client; or
    2. (ii) was proposed or introduced to the Client by Wingman,

    whether engaged as an independent contractor by Philippines Resources Pte. Ltd., as an employee by an approved Employer of Record or otherwise.

  3. (c) Wingman Staff means any employee or contractor of Wingman, other than a Remote Professional, who was involved in providing the Services or dealt with the Client in the 12 months before the relevant conduct.

14.2 Restraints

During the Restraint Period, the Client must not, and must ensure its Affiliates do not, directly or indirectly (including through a related body corporate, intermediary, agency or other third party):

  1. (a) solicit or encourage a Remote Professional or a member of Wingman Staff to provide services to the Client or its Affiliates other than through Wingman;
  2. (b) engage, employ or otherwise obtain services from a Remote Professional other than through Wingman, without Wingman’s prior written consent;
  3. (c) employ or engage a member of Wingman Staff without Wingman’s prior written consent;
  4. (d) encourage a Remote Professional or a member of Wingman Staff to end or reduce their engagement with Wingman, Philippines Resources Pte. Ltd. or an approved Employer of Record; or
  5. (e) encourage any client of Wingman to end or reduce its relationship with Wingman.

14.3 Engaging a Remote Professional

  1. (a) Wingman will give its consent under clause 14.2(b) if the Client notifies Wingman in writing and pays the Placement Fee under clause 4.11.
  2. (b) The Placement Fee is the agreed price for that consent. Payment of the Placement Fee is the Client’s only monetary liability for engaging that Remote Professional. It does not affect Wingman’s rights for a breach of clauses 14.2(a), 14.2(d) or 14.2(e), or clauses 10 and 11.
  3. (c) If the Client engages a Remote Professional without notifying Wingman, the Placement Fee is still payable, together with Wingman’s reasonable costs of enforcing this clause.

14.4 Wingman Staff

If the Client breaches clause 14.2(c), the Client must, within 14 days after Wingman’s written demand, pay Wingman an amount equal to 30% of the staff member’s annual base salary (excluding superannuation, bonuses and other benefits), measured at the date of the breach or immediately before the staff member left Wingman, whichever is higher. The parties agree this amount is a genuine pre-estimate of Wingman’s loss, including the cost of recruiting and training a replacement and lost revenue during that period, and is not a penalty.

14.5 Reasonableness and severability

  1. (a) The Client acknowledges that each restraint in clause 14.2 is reasonable and goes no further than necessary to protect Wingman’s legitimate interests, including its investment in sourcing and supporting Remote Professionals and its client relationships.
  2. (b) Each restraint in clause 14.2 is a separate obligation. If any restraint is unenforceable, the others are unaffected.

15. FORCE MAJEURE

15.1 Force Majeure Event

Neither party is liable for any delay or failure to perform its obligations under the Agreement, other than an obligation to pay money that has fallen due, to the extent the delay or failure is caused by a Force Majeure Event.

15.2 Notification

  1. (a) If a Force Majeure Event occurs, the party that is or may be delayed in performing its obligations (Affected Party) must notify the other party without delay, giving full particulars of the Force Majeure Event, and must use reasonable endeavours to remedy the situation without delay.
  2. (b) When the Affected Party is no longer delayed, it must notify the other party without delay.
  3. (c) Following notice under clause 15.2(a), the parties must meet without delay to agree a course of action to minimise the effects of the Force Majeure Event.

15.3 Fees during a Force Majeure Event

  1. (a) If a Force Majeure Event prevents Wingman from providing all or part of the Services for 5 or more consecutive Business Days, the Fees for the affected Services are suspended from the sixth Business Day until those Services resume, calculated pro rata for each Business Day affected.
  2. (b) Fees remain payable in full for the first 5 consecutive Business Days of any interruption, and for any interruption of less than 5 consecutive Business Days.
  3. (c) Fees are not suspended where Wingman is able to provide the Services but a Force Majeure Event affects the Client’s ability to receive or use them.
  4. (d) Fees paid in advance for a suspended period will be credited against the next invoice or, if the Agreement ends, refunded.

15.4 Termination

If a Force Majeure Event continues for more than 60 consecutive days and materially prevents a party from performing its obligations, either party may terminate the Agreement by written notice to the other party. No Early Termination Fee is payable.

16. GENERAL

16.1 Variation

  1. (a) Wingman may vary these Terms by giving the Client at least 90 days’ written notice before the variation takes effect.
  2. (b) If a variation is materially detrimental to the Client, the Client may, by written notice given before the variation takes effect, terminate the affected Agreement with effect on the date the variation would take effect. No Early Termination Fee is payable.
  3. (c) Clause 16.1(b) does not apply to a variation that is required by Law or that is not materially detrimental to the Client.
  4. (d) On request, Wingman will meet with the Client within 30 days of the notice to discuss the variation.
  5. (e) If the Client does not give notice under clause 16.1(b), the variation takes effect on the date stated in Wingman’s notice.

16.2 Notices

A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the receiving person at the details set out in the Statement of Work or as otherwise advised in writing from time to time, and will be given and received as follows:

  1. (a) if it is hand delivered, on the day it is given;
  2. (b) if it is sent by post, three Business Days after posting; and
  3. (c) if it is sent by email, that day, if the time of departure from the sender’s mail server is before 5.00pm on a Business Day, or the next Business Day in any other case.

A notice sent by email by an authorised representative of a party is taken to be signed by that party.

16.3 Assignment and subcontracting

  1. (a) The Client must not assign, novate or otherwise transfer, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of Wingman (not to be unreasonably withheld or delayed).
  2. (b) Wingman may, by giving the Client not less than 30 days’ prior written notice, assign, novate or otherwise transfer, in whole or in part, any of its rights or obligations under these Terms without the Client’s prior written consent.
  3. (c) Wingman may subcontract, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of the Client, provided that Wingman will not be relieved of its obligations under these Terms as a result of such subcontracting.

16.4 No relationship

Remote Professionals are engaged as independent contractors by Philippines Resources Pte. Ltd. or as employees by an approved Employer of Record, under separate arrangements. Nothing in these Terms or in the provision of the Services creates any employment, agency, partnership or joint venture relationship between the Client and any Remote Professional, or between Wingman and the Client.

16.5 Jurisdiction and governing law

The laws of Queensland govern these Terms. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

16.6 Severability

A clause or part of a clause of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining clauses or parts of the clause of these Terms continue in force. Where a provision can be read down so that it is valid and enforceable, it must be read down to the extent necessary before severance applies.

16.7 Entire agreement

Subject to clause 1.3, these Terms supersede all previous agreements about their subject matter. These Terms embody the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, representation or promise that is not expressly set out in the Agreement.

16.8 Waiver

A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

16.9 Dispute resolution

  1. (a) A party must not start court proceedings about a dispute arising under the Agreement unless it has first given the other party written notice of the dispute and the parties’ senior representatives have met, in person or by video, within 10 Business Days of the notice to try to resolve it.
  2. (b) If the dispute is not resolved within 20 Business Days of the notice, either party may start court proceedings.
  3. (c) This clause 16.9 does not prevent a party seeking urgent injunctive relief, or Wingman recovering any undisputed amount due and payable under the Agreement.
  4. (d) Each party must continue to perform its obligations during a dispute, including paying undisputed amounts.

16.10 Counterparts and electronic execution

The Agreement and any Statement of Work may be executed in counterparts and accepted or signed electronically. An electronic signature or acceptance has the same effect as a handwritten signature.

17. DEFINED TERMS AND INTERPRETATION

17.1 Defined terms

In these Terms:

Affected Party has the meaning given in clause 15.2(a).

Affiliate means, in relation to a party, any entity, wherever registered or incorporated in the world, that:

  1. (a) directly or indirectly controls that party;
  2. (b) is directly or indirectly controlled by that party; or
  3. (c) is directly or indirectly controlled by an entity that directly or indirectly controls that party.

Agreement has the meaning given in clause 1.3(a).

Airtable has the meaning given in clause 5.6(h).

API means an application programming interface.

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

Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

Claims means any claim, action, suit, cause of action, demand or proceedings for any Loss including any such claim by way of indemnity, under contract (including any breach of the Agreement), in equity, under statute, in tort (including for negligence) or otherwise.

Client means the person or entity identified as the client in the applicable Statement of Work and, where the context permits, includes its permitted successors and assigns.

Client Data means:

  1. (a) data provided by the Client to Wingman in connection with the Services;
  2. (b) data generated, compiled, arranged or developed by either party while providing the Services that relates to the Client’s business;
  3. (c) the Client’s Confidential Information; or
  4. (d) any materials, data or other information that a Remote Professional accesses in connection with the Work or the Services.

Client IP means all Materials owned or licensed by the Client which are created or derived independently of the Agreement by the Client (or a third party on behalf of the Client), and any Improvements to such Materials. Client IP includes Deliverables from the time ownership passes to the Client under clause 10.4(b).

Cloud PC has the meaning given in item 8 of Schedule 2.

Commencement Date means the date a Remote Professional or other Service is scheduled to start, as set out in the applicable Statement of Work.

Contracting Entity has the meaning given in clause 4.2(c).

Confidential Information means any information, regardless of its form or the medium on which it is stored, of a confidential, non-public or proprietary nature which, without limitation:

  1. (a) relates to the business and affairs of a party;
  2. (b) relates to Wingman, its clients, employees, contractors or other persons doing business with a party;
  3. (c) relates to the Agreement, including the Services;
  4. (d) relates to the Intellectual Property Rights of a party;
  5. (e) relates to the terms and existence of the Agreement;
  6. (f) is by its nature confidential;
  7. (g) is designated as confidential by a party; or
  8. (h) the other party knows or ought to know is confidential,

    and includes all trade secrets, know-how, financial information and other commercially valuable information of a party.

Consequential Loss means any consequential, special, indirect or incidental Loss including Loss of profit, Loss of revenue, business interruption, Loss of business, Loss of opportunity, Loss of reputation or Loss in connection with breach of third-party contracts or arrangements.

Created IP has the meaning given in clause 10.2(c).

Deliverables has the meaning given in clause 10.4(a).

Device Security Controls has the meaning given in clause 12.3(a)(i).

Documentation means user guides, operating materials, specifications and other documentation made available by Wingman for WingmanX.

Early Termination Fee has the meaning given in clause 9.3(c).

Effective Date means the date the Client accepts these Terms or signs its first Statement of Work, whichever is earlier.

Employer of Record means a third-party provider engaged by or on behalf of Wingman to act as the legal employer of a Remote Professional.

Fees means the fees set out in the applicable Statement of Work, as varied in accordance with these Terms from time to time.

Force Majeure Event means a matter beyond the reasonable control of a party and includes an act of God, national emergency, terrorist act, sabotage, flood, storm, earthquake, fire, explosion, epidemic, pandemic, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action, a general and continued energy shortage, power or utilities interruption, internet or telecommunications failures affecting service delivery in Australia or any country in which a Remote Professional is located, and political instability in any such country, but cannot apply with respect to the payment of money due under the Agreement.

Government Agency means any foreign or domestic governmental, semi-governmental, administrative, fiscal, court, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.

GST has the meaning set out in the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Holding Fee has the meaning given in clause 4.9(a).

Improvements means any modification, enhancement, extension, adaptation, development, application or improvement in whatever form.

Insolvency Event means any of the following events concerning a party:

  1. (a) an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
  2. (b) the party is unable to pay its debts when they become due and payable;
  3. (c) the party ceases to carry on business; or
  4. (d) any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.

Intellectual Property Rights means any current and future intellectual and industrial property rights and interests throughout the world, including any:

  1. (a) patents, copyrights and related rights, utility models, designs, trade marks, service marks, rights in relation to circuit layouts and databases, inventions, discoveries, trade secrets, know-how and Improvements;
  2. (b) trade, business or company name, indication, source or appellation of origin;
  3. (c) applications for, or rights to apply for registration of, any of those rights;
  4. (d) rights under licences and consents in relation to any of them; and
  5. (e) any other forms of protection of a similar nature or having equivalent or similar effect to any of them now or in the future,

    whether registered or unregistered, for the duration of the rights and interests.

Law means any law, regulation, authorisation, statute, proclamation, ordinance or by-law, ruling, judgment, order or decree of any Government Agency in any relevant jurisdiction.

Loss means any loss, cost, expense, damage or liability (including any fine or penalty), whether direct, indirect or consequential, present or future, fixed or unascertained, actual or contingent, and whether arising under contract, in equity, under statute (to the maximum extent possible), in tort (including for negligence) or otherwise.

Materials means material in whatever form, including:

  1. (a) literary, dramatic, musical and artistic works, sound recordings, cinematograph films, broadcasts and published editions of works as defined by the Copyright Act 1968 (Cth);
  2. (b) anything capable of being registered as a trade mark under the Trade Marks Act 1995 (Cth);
  3. (c) anything capable of being registered as a design under the Designs Act 2003 (Cth);
  4. (d) anything capable of being registered as a patent under the Patents Act 1990 (Cth);
  5. (e) documents, manuscripts, specifications, designs, plans, reports, products, equipment, information, data, tables, schedules, concepts, samples, proposals, inventions, tools, devices, procedures, processes, sequences, methods, formulae, calculations, scientific and technical information, studies, know-how, graphic layouts, logos, images, photographs, videos, charts, drawings, diagrams, source code, object code, software and test cases; and
  6. (f) novel combinations of any of the above material.

Monthly Fee has the meaning given in clause 9.3(c)(ii).

Notice Period has the meaning given in clause 9.3(a).

OH&S Law means any applicable health and safety related Law, including a Law related to occupational health and safety, dangerous goods, chain of responsibility, mining, electrical health and safety, and any other industry specific Law, and any related codes of practice, standards, notices and directions issued by a Government Agency.

Partnership Agreement means the agreement (if any) entered into between Wingman and the Client in connection with the provision of Remote Professional services, which sets out the terms governing the parties’ partnership and their respective rights and obligations in relation to those services.

Payment Terms means the payment terms set out in the applicable Statement of Work.

Periods of Unavailability has the meaning given in clause 4.4(a).

Personal Information has the meaning given in the Privacy Act 1988 (Cth) and includes information or an opinion about an identified individual, or an individual who is reasonably identifiable.

Personnel means a party’s directors, officers, employees, agents and contractors, as the context permits.

Placement Fee has the meaning given in clause 4.11(a)(ii).

Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles, and any other applicable legislation relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.

Recoverable Loss has the meaning given in clause 13.6(h).

Remaining Months has the meaning given in clause 9.3(c)(i).

Remote Professional means an individual engaged as an independent contractor by Philippines Resources Pte. Ltd. or as an employee by an approved Employer of Record, whose services are provided to the Client by Wingman under the Agreement.

Replacement Period has the meaning given in clause 4.5(b).

Replacement Remote Professional means a remote professional provided by Wingman as a replacement for an existing Remote Professional.

Restraint Period has the meaning given in clause 14.1(a).

Security Services has the meaning given in clause 12.3(a).

Service Improvement Plan has the meaning given in clause 4.7(b).

Services means the services specified in a Statement of Work to be provided by Wingman to the Client, which may include:

  1. (a) the provision of Remote Professionals to perform the Work specified in the applicable Statement of Work; and/or
  2. (b) the provision of access to and use of WingmanX, together with any implementation, configuration, integration, support, maintenance or other services relating to WingmanX specified in the applicable Statement of Work.

SOW Start Date has the meaning given in clause 1.4(b).

SOW Term has the meaning given in clause 1.4(b).

Statement of Work means a written statement of work, proposal or order form issued by Wingman and accepted by the Client in writing (including by electronic signature), setting out the Services, Fees, SOW Term and other relevant details, in the form Wingman requires from time to time.

Support Hours has the meaning given in clause 5.5(d).

Support Package means any tiered service, coaching, training or consulting package, as specified in the applicable Statement of Work, that provides the Client with access to any of Wingman’s methodologies, templates, standard operating procedures, workflows, systems, frameworks or know-how.

Term means, for an Agreement, its SOW Term, including any renewals.

Third-Party Systems has the meaning given in clause 5.6(a).

Transition Fee has the meaning given in clause 4.8(c).

Wingman Group means Wingman and its Affiliates, including Philippines Resources Pte. Ltd.

Wingman IP means all Intellectual Property Rights and other materials owned, developed or used by Wingman in connection with its business or the Services, including:

  1. (a) WingmanX and its software, source code, object code, APIs, integrations, connectors, workflows, automations, interfaces and underlying technology;
  2. (b) all documentation, templates, processes, methodologies, systems, configurations, reports, dashboards, database structures, schemas and data models relating to the Services or WingmanX; and
  3. (c) any modifications, enhancements, updates, developments or Improvements to any of the above,

    whether developed before or after the commencement of these Terms and whether developed by Wingman, for Wingman or on Wingman’s behalf. Wingman IP does not include Deliverables.

Wingman Staff has the meaning given in clause 14.1(c).

WingmanX means the proprietary software platform, including its middleware, integration and automation functionality, data, modules, interfaces, APIs, connectors, workflows and Documentation, as made available by Wingman to the Client from time to time.

WingmanX Materials means configurations, automations, workflows, integrations and other materials created by or for Wingman to implement, operate or connect WingmanX, whether or not implemented in the Client’s systems. WingmanX Materials do not include Deliverables.

Withdrawal Notice Period has the meaning given in clause 4.8(b).

Work means any duties or tasks to be carried out by a Remote Professional to fulfil the function or resource that the Remote Professional has been engaged for under the applicable Statement of Work.

17.2 Interpretation

In these Terms:

  1. (a) no rule of construction applies to the disadvantage of a party because that party prepared these Terms;
  2. (b) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, these Terms, and references to these Terms include any schedules or annexures;
  3. (c) a reference to a party to these Terms or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
  4. (d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  5. (e) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
  6. (f) if any day on or by which a person must do something under these Terms is not a Business Day, then the person must do it on or by the next Business Day;
  7. (g) a reference to ‘$’ or ‘dollar’ is to Australian currency; and
  8. (h) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included.

Schedule 1: Direct Debit Terms

1. General

  1. (a) This Schedule only applies where the applicable Statement of Work provides that direct debit applies to payments.
  2. (b) For the purposes of this Schedule:
    1. (i) Account means the account held at the Client’s Financial Institution from which Wingman is authorised to arrange for funds to be debited;
    2. (ii) Banking Day means a day other than a Saturday, Sunday or a banking holiday throughout Australia;
    3. (iii) Client’s Financial Institution means the financial institution nominated by the Client on the Direct Debit Request at which the Account is maintained;
    4. (iv) Debit Day means the day that payment by the Client to Wingman is due;
    5. (v) Debit Payment means a particular transaction where a debit is made; and
    6. (vi) Direct Debit Request means the request or authority provided by the Client to Wingman authorising Wingman to arrange for funds to be debited from the Account for payment of amounts payable by the Client to Wingman under the Terms.

2. Authorisation

  1. (a) By authorising a Direct Debit Request, the Client has authorised Wingman to arrange for funds to be debited from the Account.
  2. (b) The Client should refer to the Direct Debit Request and this Schedule for the terms of the arrangement between Wingman and the Client.
  3. (c) Wingman will only arrange for funds to be debited from the Account as authorised in the Direct Debit Request.
  4. (d) If the Debit Day falls on a day that is not a Banking Day, Wingman may direct the Client’s Financial Institution to debit the Account on the following Banking Day.
  5. (e) If the Client is unsure about which day the Account has been or will be debited, the Client should ask the Client’s Financial Institution.

3. Terminating authorisation

Upon expiry or termination of the Agreement, the Client may stop a Debit Payment from the effective date of expiry or termination.

4. Client’s obligations

It is the Client’s responsibility to ensure that there are sufficient clear funds available in the Account to allow a Debit Payment to be made in accordance with the Direct Debit Request. If there are insufficient clear funds in the Account to meet a Debit Payment:

  1. (a) the Client may be charged a fee and/or interest by the Client’s Financial Institution or Wingman; and
  2. (b) the Client must arrange for the Debit Payment to be made by another method.

5. Disputes

If the Client believes that there has been an error in debiting the Account, the Client should notify Wingman promptly, and in any event within 7 days of the debit occurring. If Wingman concludes, after investigation, that the Account has been incorrectly debited, Wingman will arrange for the Client’s Financial Institution to adjust the Account accordingly. If Wingman concludes that the Account has not been incorrectly debited, Wingman will provide the Client with reasons and any reasonable evidence for this finding.

6. Accounts

The Client should check:

  1. (a) with the Client’s Financial Institution whether direct debiting is available from the Account, as direct debiting is not available on all accounts offered by financial institutions;
  2. (b) that the account details which the Client has provided to Wingman are correct, by checking them against a recent account statement;
  3. (c) with the Client’s Financial Institution before completing the Direct Debit Request if the Client has any queries about how to complete it; and
  4. (d) the Client’s account statement to verify that the amounts debited from the Account are correct.

7. Confidentiality

  1. (a) Without limiting Wingman’s obligations under the Terms, Wingman will keep any information (including the Client’s account details) in the Direct Debit Request confidential. Wingman will make reasonable efforts to keep any such information secure and to ensure that any of Wingman’s employees or agents who have access to information about the Client do not make any unauthorised use, modification, reproduction or disclosure of that information.
  2. (b) Wingman will only disclose information held about the Client, in each case in accordance with the Terms:
    1. (i) to the extent specifically required by law; or
    2. (ii) for the purposes of this Schedule (including disclosing information in connection with any query or Claim to the Client’s Financial Institution).

8. Notice

Notwithstanding clause 16.2 of the Terms:

  1. (a) Wingman will provide any notices under this Schedule by email to the email address on file for the Client’s account; and
  2. (b) the Client will provide any notices to Wingman under this Schedule by email to [email protected].

Schedule 2: Device Security Controls

This Schedule applies only where the applicable Statement of Work includes Security Services. For each device Wingman supplies to a Remote Professional, and each Cloud PC, Wingman, through its security provider, maintains the controls in items 1 to 9 below.

A Remote Professional who uses their own device may provide the Services only through a Cloud PC.

Wingman does not manage, monitor or control any device it has not supplied, including a device owned by a Remote Professional or supplied by the Client. The controls in items 1 to 5 apply to devices Wingman supplies and to each Cloud PC, not to the device used to connect to the Cloud PC.

Item 8 applies where specified in the Statement of Work or where a Remote Professional uses their own device. All other items apply to every Remote Professional.

  1. 1. Managed device profile: enrolment in a managed security profile (currently Microsoft Intune) enforcing password requirements and conditional access.
  2. 2. Data transfer restrictions: USB storage access restricted to prevent data leaving the device.
  3. 3. Remote wipe: the ability to remotely remove business data from a lost or stolen device.
  4. 4. Endpoint monitoring: a threat detection agent, with monitoring and response by a security operations centre (currently N-able Managed Detection and Response).
  5. 5. Updates: automated operating system and software updates.
  6. 6. Email security: spam and phishing filtering for email accounts provided by Wingman. Where the Client requires a Remote Professional to use an email account provided by the Client, the security and filtering of that account are the Client’s responsibility under clause 12.3(b)(i), and this item does not apply to that account.
  7. 7. Phishing simulations: periodic simulated phishing tests for Remote Professionals.
  8. 8. Cloud desktop: a managed Microsoft Cloud PC (Cloud PC), where specified in the Statement of Work or where a Remote Professional uses their own device.
  9. 9. Service desk: technical support for device issues.