Wingman Group

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Terms & Conditions

1. Summary of fundamental terms

Below is a summary of the fundamental terms set out in these Terms. This summary does not replace the substantive terms of this document. It is important that the Client review all the procedure set out in these Terms in their entirety prior to execution of this document.
  1. Statement for Workers: Where the Client requires a Worker to use additional equipment and resources, the Client must provide these to the Worker at the Client’s cost. Please refer to clause 3.3 for more information.
  2. Client obligations: Clause 5 sets out various obligations on the Client’s obligation. Please refer to the Statement of Work. Please refer to detail.
  3. Workers: Clause 5 sets out provisions relating to the Workers in the Client’s obligation. Please refer to the Statement of Work. relating to the conditions of work, selection process, leave, selection process, leave, selection process, leave, selection process, leave, replacement.
  4. Review of Fees: Wingman may review the Fees at any time the Client’s review of Fees. Please refer to the Statement of Work. notice to the Client does not agree to any amended Fees, the notice to Wingman Please refer to clause 5 for more information.
  5. Placement Fees: Please refer to the Fees, the Client will be required to pay Wingman. Placement Fee, where the Client’s review of Fees. Please refer to the Statement of Work. Please refer to clause 1.3 for more information.
  6. Termination rights: Either party may terminate these Terms in accordance with the Statement of Work. Please refer to the Statement of Information as to the term, termination rights of each party’s obligation. Please refer to detail.
  7. Intellectual Property Rights: Each party retains ownership of their Background IP or Created IP will be owned by Wingman. Please refer to the Statement of Work.
  8. Security etc: Clause 15 sets out provisions that apply where security services are used, not Client or Wingman. Please refer to the Statement of Work. Please refer to detail.
  9. No responsibility for Client Data or Client IP etc: In all circumstances, Wingman is not responsible for Client Data or Client IP or the Client’s failure to back up Client Data or Client IP, or the breach by a Worker of any obligations under these Terms. Please refer to the Statement of Work. Please refer to clause 11(1).
  10. Statement of Fees: The party’s liability is capped at the amount of the fees paid by the Client to Wingman under the Statement of Work, subject to certain exclusions. Please refer to clause 12 for more information, including other limitations on each party’s liability.
  11. Non-solicitation: Clause 13 sets out non-solicitation restrictions on the Client during the Term and for a period of 12 months, after the effective date of termination or expiry. The Statement of Work applies to breach of the Client’s obligation in clause 13(4).
  12. Direct Debit Terms: Annexure A sets out certain additional Terms that apply where the Statement of Work provides that direct debit applies to payments made by the Client. Please refer to Annexure A for more information.

2. Engagement

2.1 General

In consideration of the Client paying the Fees, Wingman agrees to provide Workers to the Client perform the Work (Services) for the Term in accordance with these terms and conditions (Terms).

2.2 Order of priority

The following documents will form the agreement between the parties (Agreement):

  1. the Statement of Work;
  2. these Terms;
  3. any annexures or schedules to these Terms,

and any ambiguity or discrepancy between the documents will be resolved and interpreted according to the same order of preference as the documents are listed above, with the documents higher in the list having higher priority.

3. Wingman’s obligations

3.1 General

Wingman will:

  1. comply with applicable Laws; and
  2. use its best endeavours to provide Workers that have the qualifications, skills and experience necessary to perform the Assignment.

3.2 Payments for Workers

Wingman will be solely responsible for:

  1. the payment of remuneration to the Workers; and
  2. continuing training and support of the staff member.

3.3 Equipment

  1. Wingman will ensure that each Worker has, at a minimum, basic equipment and resources sufficient to enable the Worker to perform the Services, as determined by Wingman (acting reasonably).
  2. To the extent that the Client requires the Worker to have additional equipment or resources than those under clause 3.3(a), the Client must provide these to the Worker at its cost. If agreed by Wingman, the Client may request that Wingman procures such equipment or resources for the Worker and the Client must reimburse Wingman on demand for its reasonable costs of doing so if Wingman agree.

4. Client’s obligations

4.1 Services provisioning

The Client shall:

  1. comply with all applicable Laws;
  2. provide all necessary information required by Wingman to allow Wingman to perform the Services in a timely fashion and as otherwise reasonably required by Wingman; 
  3. review information, make decisions and, on an ongoing basis, provide Wingman with the information necessary for Wingman to perform the Services; and
  4. provide Wingman with true and relevant information regarding the Client and its business.

4.2 Client’s obligations

The Client agrees to:

  1. meet with each Worker to familiarise them with the working environment and objective of the Work;
  2. carry out introductions of the Client’s other employees and contractors;
  3. provide specific worker inductions to Workers in connection with the Work;
  4. subject to clause 3.3(a), ensure that all necessary equipment (including protective equipment) required for the Work is available and provided to each Worker; and
  5. provide training to the Worker on an ongoing basis to ensure that the Worker is reasonably able to perform the Work.

The Client must:

  1. satisfy itself that each Worker has the requisite qualifications, aptitude, skills, relevant licenses, training, and experience to undertake the Work; and
  2. not instruct Wingman or any Worker to engage in any conduct which contravenes, or is likely to contravene, any Laws.

5. Workers

5.1 Conditions of work

  1. Each Worker will perform the performance of the Work under the control, direction, and supervision of the Client or the Client’s Personnel.
  2. 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 Workers.
  3. Without limiting clause 5.3(a), the Client acknowledges and agrees each Worker is entitled to certain entitlements, including without limitation relating to hours of work, breaks, leave and public holidays, in accordance with their employment agreement with Wingman (or its Affiliate) and applicable laws and labour codes.

5.2 Selection process

  1. The Client acknowledges that Wingman will undertake a selection process for Workers with the Client and the Client will approve each Worker that is provided to the Client.

5.3 Leave

The Client acknowledges and agrees that:

  1. each Worker is entitled to leave entitlements in accordance with their employment agreement with Wingman (or its Affiliate) and applicable laws and labour codes;
  2. Wingman will use reasonable endeavours to ensure continuity of Workers assigned to perform the Work during any period of leave;
  3. the Client is not relieved of any obligations to pay the Fees or other amounts under this Agreement when a Worker exercises their leave entitlements;
  4. each Worker must not be required by the Client to take leave at any particular time during the Term; and
  5. the Client is not relieved of any obligations to pay the Fees or other amounts under this Agreement during any shut down period or other period where the Client does not have Work for the Worker, unless the Worker has exercised their leave entitlements under clause 5.3(a) at the same time.

5.4 Resignation

  1. The Client acknowledges and agrees that a Worker may tender their resignation to Wingman (or its Affiliate) in accordance with their Independent Contractor agreement and applicable laws and labour codes.
  2. If a Worker tenders their resignation, Wingman will promptly notify the Client in writing of such resignation. The Client will be responsible to pay the Fees for the Worker until the last date of the Worker’s Independent Contractor Agreement with Wingman (or its Affiliate).

5.5 Serious misconduct or underperformance

  1. If the Client considers that a Worker has:
    1. engaged in serious misconduct in performance of the Work; or
    2. consistently failed to perform to Work to a reasonable standard,

    the Client may give Wingman a written notice particularising the serious misconduct or failure to perform (as the case may be).

  2. If Wingman receives a notice from the Client under clause 5.5(a), the parties must meet to discuss the particulars of the issue within 7 days of such notice being received.
  3. Following the meeting under clause 5.5(a), the parties will agree the process to manage the misconduct or underperformance which may include without limitation performance management or termination.

5.6 Replacement

  1. If the Client considers that the Worker is not performing the Work to a standard required by the Client in circumstances where clause 5.5 does not apply, the Client may request in writing that Wingman replace the Worker. Wingman will take reasonable steps to promptly cause the Worker to improve the standard of work or otherwise replace the Worker and will advise the Client of the revised Fees for such replacement.
  2. The Client must pay all Fees and other costs associated with or incurred by Wingman in taking any action under clause 5.6(a).

6. Fees and invoicing

6.1 General

 

  1. The Client will pay Wingman the Fees in respect of the supply of Services. The Fees are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes.
  2. The Client must pay the Fees in accordance with the Payment Terms.
  3. Where applicable, the Client must pay Wingman the Deposit on or before the Commencement Date. The Deposit will be applied as a credit against the Fees owing by the Client to Wingman.
  4. Where applicable, the Client must pay Wingman for any other amounts owing under this Agreement upon demand without set-off, deduction or delay.

6.2 Review of Fees

Wingman may amend the Fees at any time during the Term by providing at least 30 days’ written notice to the Client. If the Client does not agree to any amended Fees, the Client may terminate the Agreement by giving 90 days written notice to Wingman.

6.3 Placement of Workers

  1. If:
    1. after the Commencement Date, a Worker, or potential worker introduced to the Client by Wingman, is subsequently engaged or employed by the Client during the Term or for the period of 24 months after the effective date of termination or expiry; or
    2. the Client wishes to directly employ a Worker; or
    3. the Client otherwise breaches its obligations in clause 13(a);

    the Client must:

    1. promptly notify Wingman in writing of this;
    2. pay a placement fee of $10,000 to Wingman upon the Worker accepting an offer of employment or engagement with the Client or otherwise commencing provision of any services to the Client; and
    3. pay any Placement Fee that is due and payable within 14 days of the date of an invoice issued by Wingman.
  2. Each party acknowledges that the Placement Fee is a genuine pre-estimate of the Loss that Wingman will suffer if the Client employs or engages any Worker or prospective worker.
  3. Any Placement Fees paid under clause 6.3 do not relieve the Client from any other liability or from meeting any other obligation under these Terms.

6.4 GST

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

6.5 Failure to pay

If the Client does not pay any undisputed invoice on or before the due date, Wingman shall be entitled to receive interest on overdue payments of 1% per month and shall be entitled to withhold delivery or part thereof of any Services yet to be provided.

7. Term and termination

7.1 Term

  1. This Agreement will commence on the Commencement Date and continue until the Expiry Date, unless terminated earlier under this clause 7 (Term).

7.2 Termination for cause

Either party may terminate this Agreement immediately without notice if the other party:

  1. materially breaches this Agreement and fails to remedy such breach within 10 Business Days of receiving written notice from the other party particularising the breach, or materially breaches this Agreement where such breach is incapable of being remedied; or
  2. suffers an Insolvency Event.

7.3 Obligations on termination or expiry

  1. On termination or expiry of this Agreement:
    1. 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. the Client must immediately pay all outstanding invoices to Wingman;
    3. 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. each party must return, destroy or permanently erase (as directed in writing by the other party) any Confidential Information of the other party; and
    5. each party must cease using the other party’s Confidential Information.
  2. Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
  3. Termination or expiry of this Agreement will not affect clauses 7, 9 to 13, 15 and 16 or any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry.

8. Insurance

  1. During the Term, Wingman must, at its cost, effect and maintain workers’ compensation insurance as required by law for its Workers with reputable insurers.
  2. Wingman must provide the Client with a copy of its certificate of currency for the insurance policy required under clause 8(a) upon request, which must not be made more than once per calendar year during the Term.

9. Intellectual Property Rights

9.1 Background IP

  1. 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 them.
  2. The Client acknowledges that all Wingman IP, and all Intellectual Property Rights subsisting in the Wingman IP, remains the exclusive property of Wingman or, where applicable, the third party licensor from whom Wingman derives the right to use them.

9.2 Licenses to use background IP

  1. Wingman grants the Client a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable right for the Term to use the Wingman IP solely for the purpose of, and only to the extent necessary for, the Client to receive the benefit of the Work or the Services.
  2. The Client grants Wingman a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable right for the Term to use the Client IP solely for the purpose of, and only to the extent necessary for, Wingman to perform its obligations under this Agreement.

9.3 Created IP

  1. All Created IP, and the Intellectual Property Rights subsisting in Created IP, vest in or are assigned to (as applicable) the Client on creation.
  2. The Client grants the Wingman a limited, royalty-free, revocable, non-exclusive, non-transferable right to use the Created IP solely for the purpose of, and only to the extent necessary for, the Workers to perform the Work or the Services.

9.4 Restrictions

Except as expressly allowed under this Agreement, or otherwise agreed in writing, each party agrees not to:

  1. create or attempt to create by reverse engineering, disassembly, decompilation or otherwise the other party’s Background IP or Confidential Information or aid, abet or permit others to do so;
  2. remove any identification or notices of any proprietary or copyright restrictions from the other party’s Background IP or Confidential Information;
  3. replicate the other party’s Background IP or Confidential Information;
  4. develop any derivative works from the other party’s Background IP or Confidential Information, or include any portion of the other party’s Background IP or Confidential Information into any other Materials; or
  5. develop methods to enable unauthorised parties to use the other party’s Background IP or Confidential Information.

10. Confidentiality

10.1 Obligations of confidence

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

  1. hold in strict confidence all, and not disclose or permit the disclosure of any, Confidential Information of the other party;
  2. use the Confidential Information solely to perform or to exercise its rights under this Agreement;
  3. not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
  4. 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.

10.2 Exclusions

The obligations in clause 10.1 do not apply:

  1. to the extent necessary to enable disclosure required by law;
  2. to any disclosure agreed in writing between the parties;
  3. where the Confidential Information has entered the public domain other than as a result of a breach of this Agreement; or
  4. that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

10.3 Injunctive relief

Each party acknowledges that:

  1. 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. 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 9 or 10.

11. Security

  1. If the Statement of Work provides that Wingman will provide security services (Security Services):
    1. Wingman agrees to procure such Security Services during the Term subject to the Client’s payment of any Security Fees set out in the Statement of Work; and
    2. notwithstanding clause 15.2(b), the Client acknowledges and agrees that Wingman makes no representations and provides no warranties or guarantees about the performance of the Security Services provided by the third party provider, and shall not be liable to the Client for the Security Services except to the extent of procuring such Security Services for the Client.
  2. If the Statement of Work provides that Wingman will not provide security services and without limiting the generality of clause 11(c), the Client acknowledges and agrees that it is solely responsible for any security services related to or connected with the Workers and the Services, and unconditionally and irrevocably releases and indemnifies Wingman from all liability or other claims arising from or in connection with any security breaches, incidents or any other matters related to security related to or connected with the Workers, the Services or these Terms in any way.
  3. Notwithstanding anything else in this Agreement, the Client acknowledges and agrees that Wingman:
    1. is not responsible in any way for a breach by the Worker of any obligations with respect to the Client Data or Client IP, or any unauthorised use or disclosure of the Client Data or Client IP connected with a Worker, including where this results in a breach of the Client’s obligations at law, in contract or in tort;
    2. is not responsible for the back-up of any of the Client Data or Client IP in connection with the Services; and
    3. will not liable to the Client for any loss, destruction or other damage caused by the Worker or the Client failing to back-up the Client Data or Client IP.

12. Limitation of liability

12.1 Maximum liability

  1. Subject to clause 12.1(b) and unless otherwise prohibited by law, each party’s aggregate liability to the other party arising out of or in connection with this Agreement (whether under contract, in tort, under statute or otherwise at law or in equity) is limited to an amount equal to the Fees paid by the Client to Wingman under the Statement of Work.
  2. Clause 12.1(a) will not limit or exclude the liability of either party for any claim or Loss arising from:
    1. fraud, fraudulent representation or criminal conduct of a party;
    2. wilful default, wilful misconduct, or gross negligence of a party;
    3. in the case of the Client:
      1. its obligation to pay the Fees and any other amounts under this Agreement;
      2. any liability arising from or in connection with a Worker in the performance of any Work or Services for the Client; or
      3. a breach of clause 13.

12.2 Exclusions

As far as the law permits:

  1. neither party nor any of its Personnel will be liable to the other party for any Consequential Loss;
  2. the Client shall be solely responsible, as against Wingman, its Personnel and the Workers, 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 (if applicable);
  3. Wingman shall have no liability for:
    1. any deemed employment relationship that arises between a Worker and the Client;
    2. any injury, Loss or damage caused by misconduct, negligence or incompetence of a Worker in connection with the Work, the Services or the Security Services (if applicable); or
    3. 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 Workers in connection with the Work, the Services or the Security Services (if applicable).
  4. Except for the warranties expressly set out in this Agreement, Wingman makes no warranties with respect to the Workers, Work, the Services or the Security Services (if applicable) and disclaims all statutory or implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, or arising from a course of dealing or usage of trade and any warranties of non-infringement.

12.3 Mitigation

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

12.4 Australian Consumer Law

If the Australian Consumer Law in schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) applies to the supply of services under this Agreement, Wingman acknowledges and agrees that its services come with a guarantee that cannot be excluded, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Client will apply:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

13. Non-solicitation

  1. In consideration of Wingman providing the Services, and providing access to the Workers, the Client must not, during the Term and for a period of 12 months after the effective date of termination or expiry:
    1. solicit, entice away or attempt to solicit or entice away any of the Workers involved in the delivery of the Services or Work under this Agreement;
    2. engage or employ any person for a period of 12 months after the person ceases to be engaged or employed by Wingman without the prior consent of Wingman;
    3. whether directly or indirectly, induce, encourage or attempt to induce or encourage any Workers or clients of Wingman to cease their relationship with Wingman, or to provide information regarding the terms of their arrangement with Wingman to the Client; or
    4. request, or otherwise induce a Worker to disclose information related to the remuneration or other benefits provided to that Worker by Wingman.
  2. The Client acknowledges that the restraint in clause 13(a) is reasonable in its extent and goes no further than is reasonably necessary to protect Wingman’s interests in maintaining employees and contractors, and its relationships with its Workers and clients.

14. Force Majeure Event

14.1 General

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to an event of Force Majeure Event.

14.2 Notification

  1. If a Force Majeure Event occurs, the party that is or may be delayed in performing its obligations under this Agreement (Affected Party) shall notify the other party without delay giving the full particulars of the Force Majeure Event and must use its best endeavours to remedy the situation without delay.
  2. When the Affected Party is no longer delayed in performing its obligations under this contract, the Affected Party must provide notice to the other party without delay of the cessation of the Force Majeure Event.
  3. Following notice under clause 14.2(b), the parties must meet without delay to agree a mutually acceptable course of action to minimise any effects resulting from the Force Majeure Event.

15. General

15.1 Notices

A notice, consent or communication under this Agreement 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 Quote or as otherwise advised in writing from time to time, and will be given and received as follows:

  1. if it is hand delivered, on the day it is given;
  2. if it is sent by post, three Business Days after posting; and
  3. 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.

15.2 Assignment and subcontracting

  1. Subject to clause 15.2(b), the client must not assign, novate or otherwise transfer, in whole or in part, any of its rights and obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld or delayed).
  2. Wingman may subcontract, in whole or in part, any of its rights and obligations under this Agreement without the prior written consent of the Client, provided that Wingman will not be relieved of its obligations under this Agreement as a result of such subcontracting.

15.3 Miscellaneous

  1. The relationship between Wingman and the Client is an independent contracting relationship. Nothing in this Agreement renders the Client or any of its Personnel an employee, officer or agent of Wingman.
  2. This Agreement may only be amended by written agreement between all parties.
  3. The laws of Queensland govern this Agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
  4. A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force.
  5. This Agreement supersedes all previous agreements about its subject matter. This Agreement embodies the entire agreement between the parties.
  6. A right under this Agreement 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. Defined terms & interpretation

16.1 Defined terms

In this Agreement:

Affiliate means any of the following, wherever registered or incorporated in the world:

  1. a holding company of Wingman;
  2. a subsidiary of Wingman; or
  3. a subsidiary of a subsidiary of Wingman.

Background IP means the Client IP or Wingman IP, as applicable.

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

Client Data means:

  1. data provided by the Client to Wingman in connection with the Services;
  2. data generated, compiled, arranged or developed by either party while providing the Services that relates to the Client’s business;
  3. the Client’s Confidential Information; or
  4. any materials, data or other information that a Worker 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 this Agreement by the Client (or a third party on behalf of that party), and any Improvements to such Materials.

Commencement Date means the commencement date set out in the Statement of Work.

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. relates to the business and affairs of a party;
  2. relates to Wingman, its clients, employees, contractors or other persons doing business with a party;
  3. relates to this Agreement including without limitation with respect to the Services;
  4. relates to the Intellectual Property Rights of a party;
  5. relates to the terms and existence of this Agreement;
  6. is by its nature confidential;
  7. is designated as confidential by a party; or
  8. the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, financial information any other commercially valuable information of a party.

Consequential Loss means any consequential, special, indirect or incidental Loss including without limitation 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 means:

  1. any newly created Material; and
  2. any novel combination of existing Material,

arising from or in connection with the Services, whether created separately or jointly by the parties (but in each case excluding any Background IP or Third Party IP incorporated into the Material).

Deposit means the deposit set out in the Statement of Work.

Expiry Date means the expiry date set out in the Statement of Work.

Fees means the service fees and other fees set out in the Statement of Work, as varied in accordance with this Agreement 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 or a general and continued energy shortage, power or utilities interruption, but cannot apply with respect to the payment of money due under this 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) 1999 (Cth).

Improvements means any modification, enhancement, extension, adaptation, development of, applications of, mutations, or improvement in whatever form.

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

  1. if 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. if the party is unable to pay their debts when they become due and payable;
  3. if the party ceases to carry on business; or
  4. if 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. 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. trade, business, or company name, indication, source or appellation of origin;
  3. applications for, or rights to apply for registration of any of those rights;
  4. rights under licences and consents in relation to any of them; and
  5. 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 includes any law, regulation, authorisation, statute, proclamation, ordinance or by-law, ruling, judgment, order or decree of any Government Agency in any relevant jurisdiction.

Loss includes 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. literary, dramatic, musical, artistic works, sound recordings, cinematographic films, broadcasts, and published editions of works as defined by the Copyright Act 1968 (Cth);
  2. anything capable of being registered as a trade mark under the Trade Marks Act 1995 (Cth);
  3. anything capable of being registered as a design under the Designs Act 2003 (Cth);
  4. anything capable of being registered as a patent under the Patents Act 1990 (Cth);
  5. 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. novel combinations of any of the above material.

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.

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

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

Placement Fee has the meaning given in clause 6.3(a)(v).

Services has the meaning given in clause 2.1, and also includes the Security Services (if applicable).

Statement of Work means a written statement of work issued by the Client to Wingman and accepted by Wingman containing information related to the Services the Client wishes to purchase under these Terms, in such form as required by Wingman from time to time.

Wingman IP means all Materials owned or licensed by Wingman which are created or derived independently of this Agreement by Wingman (or a third party on behalf of that party), and any Improvements to such Materials.

Term has the meaning given to that term in clause 7.1.

Third Party IP means open-source Material, and Material in which the Intellectual Property Rights vest in a third party which are utilised by a party in connection with this Agreement.

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

Worker means any person who is an employee, agent, contractor or sub-contractor of Wingman or its Affiliates, or any other person acting under the supervision or control of Wingman and whose services are provided by Wingman to the Client.

16.2 Interpretation

In this Agreement:

  1. no rule of construction applies to disadvantage of a party because that party prepared these Terms;
  2. a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this Agreement and references to this Agreement include any schedules or annexures;
  3. a reference to a party to this Agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
  4. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  5. 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. if any day on or by which a person must do something under this Agreement is not a Business Day, then the person must do it on or by the next Business Day;
  7. a reference to ‘$’ or ‘dollar’ is to Australian currency; and
  8. 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.

Annexure A – Direct Debit Terms

1. General

  1. This Annexure A only applies where the Statement of Work provides that direct debit applies to payments.
  2. For the purposes of this Annexure A:
    1. Account means the account held at the Client’s Financial Institution from which Wingman is authorised to arrange for funds to be debited.
    2. Banking Day means a day other than a Saturday, Sunday or a banking holiday throughout Australia.
    3. Client’s Financial Institution means the financial institution nominated by the Client on the Direct Debit Request at which the account is maintained.
    4. Debit Day means the day that payment by the Client to Wingman is due.
    5. Debit Payment means a particular transaction where a debit is made.
    6. Direct Debit Request means this Agreement defining the Fees between Wingman and the Client and the associated payment method provided by the Client.

2. Authorisation

  1. By authorising a Direct Debit Request, the Client has authorised Wingman to arrange for funds to be debited from the Client’s account.
  2. The Client should refer to the Direct Debit Request and this Annexure A for the terms of the arrangement between Wingman and the Client.
  3. Wingman will only arrange for funds to be debited from the Client’s account as authorised in the Direct Debit Request.
  4. 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 Client’s account on the following Banking Day.
  5. If the Client is unsure about which day the Client’s account has or will be debited, the Client should ask the Client’s Financial Institution.

3. Terminating authorisation

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

4. Client’s obligations

  1. It is the Client’s responsibility to ensure that there are sufficient clear funds available in the Client’s account to allow a debit payment to be made in accordance with the Direct Debit Request. If there are insufficient clear funds in the Client’s account to meet a debit payment:
    1. the Client may be charged a fee and/or interest by the Client’s Financial Institution or Wingman; and
    2. the Client must arrange for the Debit Payment to be made by another method; or
    3. arrange for sufficient clear funds to be in Client’s account by an agreed time so that Wingman can process the Debit Payment.
  2. The Client should check the Client’s account statement to verify that the amounts debited from the Client’s account are correct.

5. Disputes

If the Client believes that there has been an error in debiting the Client’s account, the Client should notify Wingman promptly, and in any event within 7 days of the debit occurring. If Wingman concludes as a result of investigations that the Client’s account has been incorrectly debited, Wingman will respond to the Client’s query by arranging for the Client’s Financial Institution to adjust the Client’s account accordingly. If Wingman has concluded that as a result of investigations that the Client’s account has not been incorrectly debited, Wingman will respond to the Client’s query by providing the Client with reasons and any reasonable evidence for this finding.

6. Accounts

The Client should check:

  1. with the Client’s Financial Institution whether direct debiting is available from the Client’s account as direct debiting is not available on all accounts offered by financial institutions;
  2. the Client account details which the Client has provided to Wingman us are correct by checking them against a recent account statement; and
  3. with the Client’s Financial Institution before completing the Direct Debit Request if the Client has any queries about how to complete the Direct Debit Request.

7. Confidentiality

  1. Without limiting Wingman’s obligations under clause 10 of these 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 held secure and to ensure that any of Wingmans 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. Wingman will only disclose information held about the Client:
    1. to the extent specifically required by law; or
    2. for the purposes of this Annexure A (including disclosing information in connection with any query or claim to Client’s Financial Institution); and
    3. in accordance with the Terms and this Annexure A.

8. Notice

Notwithstanding clause 15.1 of these Terms:

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