Terms and Conditions Oct 2026

Terms & Conditions

(October 2026)

Background:

Wingman Group Pty Ltd (Wingman) provides the Services to Clients in Australia under these Terms. The Services are delivered by remote professionals engaged by Philippines Resources Pte Ltd, or by any other approved engagement structure (including Employer of Record providers) as determined by Wingman from time to time (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 of:

(a) the provision of Remote Professionals to perform services for the Client; and/or
(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 Order of priority

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

(a) the Statement of Work;
(b) the Partnership Agreement (if applicable);
(c) these Terms; and
(d) 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.

1.4 Term

(a) These terms will commence on the Effective Date and will continue for an initial fixed term as specified in the applicable Statement of Work (Initial Term).
(b) At the end of the Initial Term, the Agreement will automatically renew for consecutive further periods of the same duration as the Initial Term (Renewal Term(s)) in line with the Partnership Agreement, unless terminated by either party by giving at least 90 days’ prior written notice before the end of the then-current term.
(c) Unless the Client gives Wingman at least 90 days’ written notice before the end of the then-current Term that it does not wish to renew the Agreement, the Agreement will automatically renew for a Renewal Term on the same terms and conditions, subject to any mutually agreed variations. Wingman will give the Client written notice at least 90 days before the expiry of the then-current Term confirming the renewal date and process.
(d) The Client may only terminate the Agreement during the Term in accordance with these Terms. If the Client terminates the Agreement other than in accordance with these Terms, the Client remains liable for all Fees that would otherwise have been payable for the remainder of the then-current Term, regardless of the extent to which the Client uses or receives the Services.

2. WINGMAN’S OBLIGATIONS

2.1 General

Wingman will:

(a) comply with applicable Laws;
(b) use its best endeavors to provide Remote Professionals that have the qualifications, skills and experience necessary to perform the Services; and
(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:

(a) paying all fees payable to the Remote Professionals; and
(b) providing the Remote Professionals with ongoing training and support, where reasonably required or requested, to maintain service quality and alignment with Client’s requirements.
(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

(a) Each Remote Professional is responsible for supplying and maintaining their own equipment and resources required to perform the Services.
(b) Wingman will ensure that each Remote Professional has the equipment and resources sufficient to enable the Remote Professional to perform the Services, as determined by Wingman acting reasonably.
(c) If the Client requires a Remote Professional to use equipment or resources in addition to those provided by Wingman under clause 2.3(a) the Client must provide these to the Remote Professional at its cost. With Wingman’s agreement, the Client may request that Wingman procure such equipment or resources on the Client’s behalf, in which case the Client must reimburse Wingman on demand for the reasonable costs incurred.
(d) Where required, Wingman may facilitate the provision of equipment (including but not limited to laptops, headsets, or other peripherals) to Remote Professionals through third-party service providers, solely to enable performance of contracted services. Such arrangements are managed in compliance with applicable laws and expressly do not create any employment relationship or affect the independent contractor status of Remote Professionals. Equipment ownership, maintenance, insurance, and return obligations are governed exclusively by the third-party provider’s terms.

2.4 Insurance

(a) During the Term, 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) and any other insurance required by applicable Laws having regard to the Services.
(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 during the Term.

3. CLIENT’S OBLIGATIONS

3.1 Service Requirements

The Client shall:

(a) comply with all applicable Laws;
(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;
(c) ensure that its IT network, systems, and all associated infrastructure are maintained in a secure, functional, and reliable condition at all times. The Client agrees to ensure that such infrastructure meets or exceeds the minimum technical and serviceability standards prescribed by Wingman, as communicated to the Client throughout onboarding. These standards may include, but are not limited to, 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 shall not be held responsible.
(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
(e) provide Wingman with true and relevant information regarding the Client and its business.

3.2 Client Responsibilities

The Client agrees to:

(a) provide project orientation to each Remote Professional regarding work objectives and deliverable specifications;
(b) carry out introductions of the Client’s other employees and contractors;
(c) provide task-specific briefings and outcome-based quality standards;
(d) subject to clause 2.3(a), ensure that all necessary equipment (including protective equipment) required for the Work is available and provided to each Remote Professional; and
(e) provide necessary requirements and outcome specifications to enable the remote professional to deliver work to required standards;
(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; and
(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. To ensure successful project completion, the Client agrees to maintain prompt review processes for all deliverables. Failure to provide feedback within this timeframe will result in the work being deemed accepted, satisfactory, and compliant with all Agreement requirements for billing and payment purposes.
(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

(a) The scope of Work to be performed by each Remote Professional will be documented in writing in the Statement of Work.
(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.
(c) The Client acknowledges that the Remote Professionals are engaged as independent contractors by Philippines Resources Pte Ltd (or an approved Employer of Record). The relevant contracting entity is solely responsible for the Remote Professional’s engagement arrangements, including remuneration, applicable employment or contractor entitlements, payroll, leave and other employment or engagement matters. To the extent permitted by Law, the Client is not responsible for those matters.
(d) All HR, onboarding, engagement, and termination of Remote Professionals is managed through Philippines Resources Pte Ltd or Wingman’s approved Employer of Record providers, as applicable. The Client must not directly engage, terminate, performance manage or otherwise control the engagement of any Remote Professional.

4.3 Selection process

The Client acknowledges that Wingman will undertake a selection process for Remote Professionals in consultation with the Client, and that each Remote Professional must be approved by the Client before being provided to the Client to perform the Services.

4.4 Leave

The Client acknowledges and agrees that:

(a) Remote Professionals may take periods of leave in accordance with their engagement arrangement with Philippines Resources Pte Ltd (or its Affiliate) and applicable local laws;
(b) Wingman will use reasonable endeavors to ensure continuity of Remote Professionals assigned to perform the Work during any period of leave;
(c) the Client remains liable to pay all Fees and other amounts under the Agreement during any period of leave;
(d) the Client must not require any Remote Professional to take leave at any particular time during the Term; and
(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 on leave.

4.5 Resignation

(a) The Client acknowledges and agrees that a Remote Professional may tender their resignation to Wingman (or the approved Employer of Record) in accordance with their engagement arrangement and applicable Laws and labor codes.
(b) If a Remote Professional tenders their resignation, Wingman will promptly notify the Client in writing of such resignation. The Client will be responsible to maintain payment of the Fees in full while Wingman finds a suitable Remote Professional as a replacement. Once a replacement Remote Professional has been appointed and their commencement date confirmed, Wingman will provide the Client with a credit for any Fees paid in respect of the period during which no Remote Professional was providing the Services to the Client.
(c) The resignation of a Remote Professional does not terminate or otherwise affect the Agreement or the Client’s obligations under the Agreement. Wingman will use reasonable endeavours to source a reasonably suitable replacement in accordance with the requirements of the applicable Statement of Work.

4.6 Serious misconduct or underperformance

(a) If the Client considers that a Remote Professional has:
1. (i) engaged in serious misconduct in performance of the Work; or
2. (ii) consistently failed to perform the Work to a reasonable standard, the Client may give Wingman written notice particularizing the misconduct or failure to perform (as the case may be), seeking Wingman’s intervention to manage the behavior or underperformance of the Remote Professional.
(b) If Wingman receives a notice from the Client under clause 4.6(a), the parties must meet to discuss the particulars of the issue within 7 Business Days of such notice being received.
(c) Following the meeting under clause 5.5(b), the parties will agree the process to manage the misconduct or underperformance which may include additional training and observation, and/or without limitation, performance management or termination.
(d) For clarity, any misconduct, underperformance, or other issues concerning a Remote Professional shall not impact the validity or duration of the Agreement. The Agreement will remain in full force and effect for its agreed term. In such cases, Wingman will act promptly and in good faith to address the matter, including, where appropriate, managing the issue directly or facilitating the placement of a suitable Replacement Remote Professional, with minimal disruption to the Client.

4.7 Performance Management

(a) If the Client considers that a Remote Professional is not performing the Work to a standard required by the Client in circumstances where clause 4.6 does not apply, the Client must notify Wingman in writing, particularising the failure to perform and including supporting evidence (as the case may be).
(b) Upon receipt of a notice under clause 4.7(a), the Parties will, acting in good faith, agree in writing within 5 Business Days on a Performance Improvement Plan (PIP) for the Remote Professional. The PIP will:
1. (i) specify the performance deficiencies with reference to objective, measurable standards;
2. (ii) set clear Key Performance Indicators (KPIs) and milestones, with defined review dates (at minimum, fortnightly);
3. (iii) outline the support, coaching, tools, and access the Remote Professional will be provided to achieve the required standards;
4. (iv) allocate responsibilities between Wingman and the Client for implementing and monitoring the PIP; and
5. (v) state the consequences of non-achievement, which may include replacement of the Remote Professional or other contractual remedies available to Wingman.
(c) The Parties will cooperate reasonably and provide timely information, feedback, and approvals necessary to implement the PIP. Failure by the Remote Professional to meet the KPIs or milestones within the PIP timeframes will entitle Wingman, at its discretion and without limiting any other rights, to:
1. (i) propose and implement a Replacement Remote Professional on commercially reasonable terms, or
2. (ii) take such other steps as are available under the Agreement.
(d) For the avoidance of doubt, implementation of a PIP does not waive any party’s rights under the Agreement.

4.8 Replacement of Remote Professional

(a) If the Client believes a Remote Professional is not meeting the performance standards required by the Client, or following a process under clauses 4.6 or 4.7, the Client may request in writing that Wingman provide a Replacement Remote Professional. Wingman will take reasonable steps to either improve the Remote Professional’s performance or replace them and will advise the Client of the revised Fees, if applicable.
(b) The Client must provide not less than 30 days’ written notice to Wingman when requesting a Replacement Remote Professional or removal of a Remote Professional. Wingman may, at its discretion, waive this notice period in cases of serious misconduct by the Remote Professional.
(c) If the Client elects to have a Remote Professional removed immediately, the Fees payable by the Client during the 30-day notice period will be reduced to 62.5% of the applicable monthly service fee for that Remote Professional.
(d) The transition fees under clause 4.8(a) reflect Wingman’s genuine pre-estimate of costs arising from the early removal of a Remote Professional, including but not limited to, the Remote Professional’s billable hours contribution during transition, knowledge transfer time, lost income from redeployment delays, and administrative costs. The Client’s liability for transition fees in respect of a removed Remote Professional will be limited to a maximum period of four (4) weeks, after which no further transition fees will be payable in respect of that Remote Professional.
(e) For the avoidance of doubt, a request to replace or remove a Remote Professional under this clause is a personal adjustment only and shall not constitute, nor be interpreted as, termination of the Agreement. The Agreement remains in full force and effect and continues to be subject to the separate 90 days’ notice requirement for termination set out in clauses 1.4(c) and 9.1. The Client remains fully obligated to pay the Fees (less any transition fees already paid under clause 4.8(a) for a Replacement Remote Professional.
(f) Upon removal of a Remote Professional under this clause, Wingman will, acting in good faith and in accordance with the Client’s requirements, use reasonable endeavors to source and provide a suitable Replacement Remote Professional on the same terms as the original engagement.
(g) The notice period under this clause is not an employment notice period and does not create an employment or labor hire relationship between the Client and the Remote Professional or between the Client and Wingman.

4.9 Delay to Commencement

(a) Where a start date for a Remote Professional has been and confirmed in writing, and the Client requests a delay to the Commencement Date for any reason, the Client agrees to pay a holding fee of $300 per week (plus GST) (Holding Fee), if applicable, for the duration of the delay.
(b) The Holding Fee is intended to cover Wingman’s costs associated with retaining the Remote Professional for the Client during the delay, including contractor payments, redeployment costs and associated administration.
(c) The Holding Fee applies from the original agreed Commencement Date until the earlier of:
1. (i) the revised Commencement Date; or
2. (ii) termination of the engagement.
(d) The Holding Fee is payable by the Client in accordance with the Payment Terms and is in addition to any other Fees payable under the Agreement.
(e) A delay to the Commencement Date does not change the Term or otherwise affect the Client’s obligations under clause 7. The Term commences on the original Commencement Date, and the Client remains liable for the Fees payable for the Initial Term and any Renewal Term, notwithstanding any delay requested by the Client.

4.10 Independent contractor relationship

(a) The Client acknowledges and agrees that all Remote Professionals are independently engaged as contractors by Philippines Resources Pte Ltd, a Singapore-registered entity, or, where applicable, an alternative Employer of Record provider approved by Wingman, under separate contracting arrangements. Nothing in these Terms shall be construed to create an employment, partnership, joint venture, or agency relationship between the Client and any Remote Professional.
(b) To preserve the independent contractor relationship 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) issue formal performance reviews, warnings, or disciplinary actions, which remain solely within the remit of Wingman, that can be recommended or requested by the Client when an incident requiring such response is required;
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 and or resourcing, and quality expectations;
4. (iv) integrate Remote Professionals into internal employment systems, benefits platforms, payroll systems, or HR frameworks of the Client.
(c) The Client’s communications and dealings with Remote Professionals must be strictly limited to task-related direction, output quality, and delivery timelines. Oversight of general conduct, livelihood, performance improvement, and contractor compliance rests exclusively with Wingman and/or Philippines Resources Pte Ltd (or an alternative approved Employer of Record provider).
(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 Client direct engagement of Remote Professionals

(a) If:
1. (i) after the Commencement Date, a Remote Professional, or potential Remote Professional introduced to the Client by Wingman, is subsequently engaged or employed by the Client during the Term or for the period of 12 months after the effective date of termination of the Agreement or the Expiry Date; or
2. (ii) the Client otherwise breaches its obligations in clause 14(a),
the Client must:
1. (iii) promptly notify Wingman in writing of this; and
2. (iv) pay a fee of $10,000 to Wingman upon the Remote Professional accepting an offer of direct employment or engagement with the Client or otherwise commencing provision of any services to the Client (Placement Fee).
(b) The Placement Fee is payable whether the Remote Professional is engaged or employed by the Client directly or through a related body corporate, intermediary, contractor, agency or other third party.
(c) The Client must pay any Placement Fee due and payable within 14 days after the date of Wingman’s invoice.
(d) The Client’s payment of the Placement Fee does not relieve the Client of any other liability or obligation under these Terms.
(e) If Wingman is required to take legal action to enforce this clause, the Client must pay Wingman’s reasonable legal costs and expenses incurred in connection with that enforcement, on a solicitor-client basis.
(f) The parties acknowledge that the Placement Fee represents a genuine pre-estimate of the Loss likely to be suffered by Wingman as a result of the Client directly or indirectly employing or engaging a Remote Professional or prospective Remote Professional introduced by Wingman.
(g) A breach of this clause does not limit or affect the Client’s obligation to pay the Placement Fee under this clause

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

(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 applicable Term solely for the Client’s internal business operations pursuant to the applicable Statement of Work.
(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.
(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

(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.
(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.
(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.
(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.
(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.
(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

(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.
(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.
(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.
(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

(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.
(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.
(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.

5.6 Third-party systems and integrations

(a) WingmanX may integrate with or connect to third-party software, platforms or services (Third-Party Systems).
(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.
(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.
(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.
(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.
(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.
(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.
(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

5.7 Service continuity

(a) Wingman will maintain commercially reasonable backup, disaster recovery and service continuity measures appropriate to the nature and scale of WingmanX.
(b) Wingman will use reasonable endeavours to restore access to WingmanX following an interruption affecting Wingman’s systems.
(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 / 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.

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

(a) The Client must pay the Fees specified in the applicable Statement of Work and any other amounts payable under these Terms.
(b) Unless otherwise stated, the Fees are exclusive of GST and other applicable taxes.
(c) Wingman may issue invoices in advance and at the frequency specified in the applicable Statement of Work.
(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 – Condition of Commencement

(a) The Fees payable for set-up and the first month of the Services are payable in full prior to the scheduled Commencement Date as set out in the applicable Statement of Work.
(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.
(c) Any delay in payment will result in corresponding delay to commencement of the Services, without liability to Wingman.
(d) The fee for the first month of the Services will be applied as a credit against the fees owing by the Client to Wingman.

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

(a) The Fees will automatically increase by 5% on each anniversary of the Commencement Date.
(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.
(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.

7.6 GST

(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, such amount to be calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.
(b) 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.

7.7 Failure to pay

(a) Wingman may charge interest on any overdue amount at a rate of 2% per month, calculated daily from the due date until payment.
(b) Wingman may recover its reasonable costs of recovering overdue amounts, to the extent permitted by Law.
(c) If an undisputed amount remains overdue, Wingman may suspend the Services pursuant to clause 8.

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:

(a) the Client has failed to pay an undisputed amount that is overdue following written notice;
(b) the Client is using the Services unlawfully or in breach of these Terms;
(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
(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.

9. TERMINATION

9.1 Termination for cause

(a) Either party may terminate the Agreement immediately without notice if the other party:
1. (i) materially breaches the 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 the Agreement where such breach is incapable of being remedied; or
2. (ii) suffers an Insolvency Event.
(b) For clarity:
1. (i) resignation or non-performance 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 Professionals under clause 4 does not constitute a material breach of the Agreement; and
3. (iii) the Client must not terminate the Agreement due to dissatisfaction with any individual Remote Professional.

9.2 Obligations on termination or expiry

(a) On termination or expiry of the 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;
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) 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. (v) each party must cease using the other party’s Confidential Information.
(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.
(c) Termination or expiry of the Agreement will not affect clauses 9 to 13, 15 and 17 or any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or the Expiry Date.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Right to use IP

(a) Wingman grants the Client a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable licence for the Term to use the Wingman IP solely to the extent necessary for, the Client to receive the benefit of the Work and the Services.
(b) The Client grants Wingman a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable licence for the Term to use the Client IP during the Term solely to the extent necessary for Wingman to perform the Work and Services.

10.2 Ownership of Intellectual Property

(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.
(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.
(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 Work or Services (Created IP).
(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.
(e) For the avoidance of doubt, Created IP does not include Client Data or materials independently created and provided by the Client.
(f) Any Wingman-created processes, configurations or automations implemented in the Client’s systems remain the property of Wingman. On termination or expiry of the Agreement, the Client must cease using such IP and, where reasonably practicable, remove or roll back those processes, configurations or automations.
(g) If, following termination or expiry of the Agreement, the Client:
1. (i) continues to use any Wingman IP 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 Wingman-created processes, configurations or automations as required under clause 10.2(f),
the Client must pay Wingman $100 for each day that the relevant breach continues. The parties acknowledge that this amount is intended to protect Wingman’s legitimate interests in maintaining control over, and preventing unauthorised use of, its proprietary Intellectual Property, including having regard to the licensing value of that Intellectual Property and the costs associated with monitoring and enforcing Wingman’s Intellectual Property Rights.

10.3 Restrictions

(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.
(b) These restrictions do not apply to the extent prohibited by applicable law.

11. CONFIDENTIALITY

11.1 Obligations of confidence

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

(a) hold in strict confidence all, and not disclose or permit the disclosure of any, Confidential Information of the other party;
(b) use the Confidential Information solely to perform or to exercise its rights under these Terms;
(c) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
(d) use its reasonable endeavors, 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:

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

11.3 Injunctive relief

Each party acknowledges that:

(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
(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

(a) The Client retains ownership of all Client Data.
(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.
(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.
(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.
(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.
(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.
(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

(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.
(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.
(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.
(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.
(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.
(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

The Client acknowledges and agrees that, except to the extent resulting from a breach of these Terms by Wingman:

(a) As a representation of Wingman’s brand and commitment to excellence, Wingman shall provide comprehensive security onboarding and ongoing support to Clients, including:
1. (i) security awareness training for Remote Professionals during onboarding;
2. (ii) cybersecurity best practices guidance and documentation;
3. (iii) direct engagement with Wingman’s security providers to assist with Client security assessments;
4. (iv) ongoing security updates and recommendations throughout the engagement; and
5. (v) access to security resources and consultation as part of the Services,
(together, the Security Services).
(b) While Wingman provides the security support outlined in clause 12.3(a) to enhance Wingman’s service and working community, this does not transfer primary security responsibility from the Client. The Client remains solely responsible for:
1. (i) ensuring all equipment and devices meet the Client’s security requirements;
2. (ii) implementing and maintaining appropriate cybersecurity protocols;
3. (iii) ensuring Remote Professionals receive Client-specific security training to the Client’s satisfaction; and
4. (iv) engaging with, responding to, and implementing security recommendations provided by Wingman.
(c) The Client is responsible for considering, implementing and maintaining appropriate security measures in relation to its use of the Services and the devices supplied to Remote Professionals. 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 expressly set out in clause 12.3(a), Wingman is not responsible for reviewing, monitoring or maintaining any minimum or particular level of security on devices supplied to Remote Professionals.
(d) 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 by a Remote Professional placed with the Client.

12.4 Data Back Up and Responsibility

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

(a) is not responsible for the back-up of any Client Data or Client IP in connection with the Services; and
(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 same.

12.5 Privacy

(a) Each party must, and must ensure that its Personnel must, comply with their obligations under all relevant Privacy Laws.
(b) If the Client discloses any third-party’s Personal Information to Wingman and/or a Remote Professional, the Client must warrant that it has obtained consent and made any necessary disclosures from the relevant third-party before collecting and disclosing their Personal Information to Wingman and/or the Remote Professional.
(c) Where Personal Information is transferred to Philippines Resources Pte Ltd or Remote Professionals in the Philippines, the Client acknowledges that such information will be subject to Philippines privacy Laws and the Client consents to such cross-border transfer.
(d) In the event of a data breach involving Personal Information, the party becoming aware of the breach must notify the other party within 24 hours and cooperate in any required breach notifications to regulatory authorities or affected individuals.
(e) 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.
(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.
(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.
(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

(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 these Terms (whether under contract, in tort, under statute or otherwise at Law or in equity) is limited to an amount equal to the lesser of:
1. (i) The total Fees paid by the Client to Wingman in the 12 months preceding the date of the relevant Claim; and
2. (ii) The total Fees payable by the Client under the relevant Statement of Work giving rise to the relevant Claim.
(b) Clause 13.1(a) will 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;
3. (iii) in the case of the Client:
  1. (A) its obligation to pay the Fees and any other amounts under these Terms;
  2. (B) any liability arising from or in connection with a Remote Professional in the performance of any Work or Services for the Client; or
  3. (C) a breach of clause 14; or
  4. (D) its indemnity under clause 13.5.

13.2 Exclusions

As far as the law permits:

(a) neither party nor any of its Personnel will be liable to the other party for any Consequential Loss;
(b) the Client shall be 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 (if applicable);
(c) Wingman shall have no liability for:
1. (i) any deemed employment relationship that arises between a Remote Professional and the Client;
2. (ii) 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 (if applicable); 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 (if applicable).
(d) Except for the warranties expressly set out in these Terms, Wingman makes no warranties or representations in relation to the Remote Professionals, Work, the Services, the Security Services or WingmanX (if applicable) and disclaims, to the maximum extent permitted by Law, 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.

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 a warranty provided under these Terms (including where such Loss gives rise to an indemnity).

13.4 Australian Consumer Law

If the Australian Consumer Law applies to the supply of the Services under these Terms, Wingman acknowledges and agrees that the Services come with a guarantee that cannot be excluded under the Australian Consumer Law. The following notice is provided to the Client as required by section 102(1) of the Australian Consumer Law:

Wingman’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, the Client is entitled to:

cancel its Agreement with Wingman; and
a refund for the unused portion of the Services, or to compensation for its reduced value.

The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, the Client is entitled to have the problem rectified within a reasonable time. If the problem is not rectified within a reasonable time, the Client is entitled to cancel the Agreement and obtain a refund for the unused portion of the Services.

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:

(a) Client Data provided, submitted, stored or processed by or on behalf of the Client in connection with the Third-Party System; or
(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.

14. NON-SOLICITATION

(a) During the Term and for a period of 12 months after the effective date of termination or expiry of the Agreement (Restraint Period), the Client must not, and must ensure that none of its Affiliates:
1. (i) directly or indirectly solicit, entice away or attempt to solicit or entice away any:
  1. (A) Remote Professional involved in providing the Work or Services to the Client; or
  2. (B) Personnel of Wingman who are involved in, or introduced to the Client in connection with, the provision of the Services,
  (each a Protected Person);
2. (ii) directly or indirectly engage, employ or otherwise contract with any Protected Person without the prior written consent of Wingman, where that person was employed or engaged by Wingman at the time of, or within 12 months before, the relevant engagement, employment or contract;
3. (iii) directly or indirectly induce, encourage or attempt to induce or encourage any Protected Person to cease or materially alter their employment or engagement with Wingman; or
4. (iv) directly or indirectly induce or encourage any client of Wingman to terminate or materially alter its relationship with Wingman by reason of the Client’s dealings with that Client.
(b) The Client acknowledges that:
1. (i) the restraints in clause 14(a) are reasonable in their scope and duration and go no further than is reasonably necessary to protect Wingman’s legitimate interests, including its relationships with its employees, contractors and clients and its ability to retain its employees, contractors and clients; and
2. (ii) the restraints in clause 14(a)(i) are separate from one another and if any of them is unenforceable the rest are unaffected.
(c) If the Client breaches clause 14(a) in respect of an employee of Wingman, the Client acknowledges that Wingman may suffer loss that is difficult to quantify precisely, including costs associated with recruiting, training and replacing the relevant employee and loss of revenue and business opportunities. Accordingly, the Client must, within 14 days after written demand by Wingman, pay Wingman an amount equal to 30% of the employee’s annual base salary (excluding superannuation, bonuses and other benefits) as at the date of the breach or, if the employee has ceased employment with Wingman, immediately before their employment ceased, whichever is higher, as liquidated damages representing a genuine pre-estimate of the loss likely to be suffered by Wingman as a result of the breach and not as a penalty.

15. FORCE MAJEURE

15.1 Force Majeure Event

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

15.2 Notification

(a) If a Force Majeure Event occurs, the party that is or may be delayed in performing its obligations under the Agreement (Affected Party) shall notify the other party without delay and giving the full particulars of the Force Majeure Event and must use its best endeavours to remedy the situation without delay.
(b) 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.
(c) Following notice under clause 15.2(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.
(d) If a Force Majeure event continues for more than 60 consecutive days and materially prevents a party from performing its obligations under the Agreement, either party may terminate the Agreement by written notice to the other party.

16. GENERAL

16.1 Variation

(a) Wingman may vary these Terms by providing at least 90 days’ written notice prior to the variation coming into effect.
(b) Where Wingman’s variation would materially affect the Client, the parties must meet within 30 days from the date of the notice to discuss the variation in good faith and seek mutually acceptable modifications.
(c) Variations take effect as notified unless Wingman voluntarily withdraws or modifies them following discussions.

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:

(a) if it is hand delivered, on the day it is given;
(b) if it is sent by post, three Business Days after posting; and
(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.

16.3 Assignment and subcontracting

(a) Subject to clause 16.3(c), 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).
(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.
(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

Wingman does not directly engage or employ any Remote Professional. Remote Professionals are independently engaged as independent contractors by Philippines Resources Pte Ltd, or via an approved Employer of Record provider, under separate contracting 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.

16.7 Entire Agreement

Subject to clause 1.3, these Terms supersede all previous agreements about its subject matter. These Terms embody the entire agreement between the parties.

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.

17. DEFINED TERMS & INTERPRETATION

17.1 Defined terms

In these Terms:

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

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

API means an application programming interface.

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 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:

(a) data provided by the Client to Wingman in connection with the Services;
(b) data generated, compiled, arranged or developed by either party while providing the Services that relates to the Client’s business;
(c) the Client’s Confidential Information; or
(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 that party), and any Improvements to such Materials.

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.

Commencement Date means the commencement date set out in the applicable 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:

(a) relates to the business and affairs of a party;
(b) relates to Wingman, its clients, employees, contractors or other persons doing business with a party;
(c) relates to the Agreement including without limitation with respect to the Services;
(d) relates to the Intellectual Property Rights of a party;
(e) relates to the terms and existence of the Agreement;
(f) is by its nature confidential;
(g) is designated as confidential by a party; or
(h) 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 has the meaning given to it in clause 10.2(a).

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

Effective Date means the date on which the Client accepts these Terms or enters into the applicable Statement of Work.

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.

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

Fees means the fees and other 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 or a general and continued energy shortage, power or utilities interruption, internet or telecommunications failures affecting service delivery in Australia or the Philippines, and political instability in the Philippines, 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) 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:

(a) 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;
(b) if the party is unable to pay their debts when they become due and payable;
(c) if the party ceases to carry on business; or
(d) 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:

(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;
(b) trade, business, or company name, indication, source or appellation of origin;
(c) applications for, or rights to apply for registration of any of those rights;
(d) rights under licenses and consents in relation to any of them; and
(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.

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.

Materials means material in whatever form, including:

(a) literary, dramatic, musical, artistic works, sound recordings, cinematographic films, broadcasts, and published editions of works as defined by the Copyright Act 1968 (Cth);
(b) anything capable of being registered as a trade mark under the Trade Marks Act 1995 (Cth);
(c) anything capable of being registered as a design under the Designs Act 2003 (Cth);
(d) anything capable of being registered as a patent under the Patents Act 1990 (Cth);
(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
(f) 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.

Partnership Agreement means the agreement 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.

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)(iv).

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.

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

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

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

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

(a) the provision of Remote Professionals to perform the Work specified in the applicable Statement of Work; and/or
(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.

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.

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 the Initial Term and any Renewal Term(s) as described in clause 1.4.

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:

(a) WingmanX and its software, source code, object code, APIs, integrations, connectors, workflows, automations, interfaces and underlying technology;
(b) all documentation, templates, processes, methodologies, systems, configurations, reports, dashboards, database structures, schemas and data models relating to the Services or WingmanX; and
(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 Personnel means Wingman’s employees, contractors, agents and other personnel engaged or appointed by Wingman in connection with the provision of the Services, including any Remote Professionals.

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:

(a) no rule of construction applies to disadvantage of a party because that party prepared these Terms;
(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;
(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;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(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;
(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;
(g) a reference to ‘$’ or ‘dollar’ is to Australian currency; and
(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

(a) This Schedule only applies where the applicable Statement of Work provides that direct debit applies to payments.
(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.
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 Client’s nominated Account for payment of amounts payable by the Client to Wingman under the Terms.

2. Authorisation

(a) By authorising a Direct Debit Request, the Client has authorised Wingman to arrange for funds to be debited from the Client’s account.
(b) The Client should refer to the Direct Debit Request and this Schedule for the terms of the arrangement between Wingman and the Client.
(c) Wingman will only arrange for funds to be debited from the Client’s account as authorised in the Direct Debit Request.
(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 Client’s account on the following Banking Day.
(e) 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

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:

(a) the Client may be charged a fee and/or interest by the Client’s Financial Institution or Wingman; and
(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 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:

(a) 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;
(b) the Client account details which the Client has provided to Wingman are correct by checking them against a recent account statement; and
(c) 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; and
(d) the Client’s account statement to verify that the amounts debited from the Client’s account are correct.

7. Confidentiality

(a) Without limiting Wingman’s obligations under 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 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.
(b) Wingman will only disclose information held about the Client:
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 Client’s Financial Institution); and
3. (iii) in accordance with the Terms and this Schedule.

8. Notice

Notwithstanding clause 15.1 of these Terms:

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