Forma Platform Terms & Conditions

These terms and conditions are dated 23 February 2024.

Agreement

In these terms and conditions ("Terms"), "Forma", "us", "we" and "our" means Forma Technology Pty Ltd ACN 668 606 344 of Level 2/20 Mollison St, Abbotsford VIC 3067 and “you” and “your”, means a user of our Platform (as defined below).
These Terms, together with our Privacy Policy, apply to your use of our Platform and any platform or Services that we may provide to you from time to time.
By using the Platform, you agree to these Terms, together with our Privacy Policy (collectively, “Agreement”) which is legally binding and enforceable upon you. If you do not agree with the terms of this Agreement, you must not access, or use this Platform.

Our Services

Our Platform provides an easy way for:

consultants and consultancies, including without limitation HR/recruitment agencies, engineers and operations managers (each a “Contractor”), to list and advertise their skillsets and availability to be connected with builders looking to hire such Contractors where those builders are called “Project Managers”); and
Projects Managers to access and engage Contractors on a secondment basis.

Our Services are limited to the provision of the Platform, and any associated services we may offer from time to time. Forma does not employ the Contractors advertised on the Platform, nor does it hire out those Contractors. We make no representation or warranty as to the quality, expertise or skill of a Contractor or whether they are appropriate for a particular or any secondment.
Forma has no arrangement with Project Managers other than this Agreement. It receives no commission or fee from Project Managers and makes no representation or warranty that the Project Managers will provide an appropriate working environment, conditions and make timely payment of invoices.

Users

To access all our Services, you must register for an account in accordance with clause 3.1.
Registered Users will be able to:

use the Platform as a Contractor or Project Manager in accordance with this Agreement; and
access any other Services we make available to Users from time to time.

Project Managers

If you register as a Project Manager in accordance with clause 3.1 and your registration is accepted by us, you will be able to use the Platform to:

publish information about projects you are running, for which Contractors will be able to search for;
search for and connect with Contractors that you would like to appoint to a project; and
enter into independent contracts between you and the Contractor under which they will provide services to you ("Consultancy Agreement").

As a Project Manager, you are responsible for:

providing Forma with up to date and accurate information about each project, including:

billing address, billing details, accounts team contact details, project ABN;
details of the invoicing process and relevant purchase order number, as applicable;
a copy of each Consultancy Agreement with complete details of the relevant Project terms and conditions within; and
details of the relevant business contact of the Project Manager (“Authorised Representative”).

ensuring that a Consultancy Agreement is signed and in place with each Contractor you appoint; and negotiating and agreeing to the Contractor’s pay rates, including any day rate, and applicable overtime or penalty rates;
confirming or amending bookings of Contractors within 24 hours of appointing each Contractor; and
using all reasonable endeavours to be available for contact by our authorised representatives when bookings and registration require further information or confirmation.

As a Project Manager, you agree to

(a)Not solicit services from Contractors or their consultants listed in shortlists or search results on Forma outside of the platform.

If you are found to have circumnavigated the Platform to appoint a resource, regardless of the relationship, you will be liable to pay damages to Forma;

Damages will be calculated from the consultant’s average day rate x (the greater of) the estimated contract length or a 6-month engagement.

Contractors

If you register as a Contractor in accordance with clause 3.1 and your registration is accepted by us, you will be able to use the Platform to:

search and lodge/submit for projects listed by Project Managers;
enter into Consultancy Agreements with Project Managers under which you agree to provide services to them; and
access the administrative services provided by us, which may include the issuing of timesheets and invoices ("Administrative Services").

As a Contractor, you agree to

(a)Not solicit opportunities found via the platform with Project Managers outside of Forma’s platform.

Where a pre-existing relationship existed before use of the platform you must make Forma aware in writing before entering into agreements with Project Managers
If you are found to have circumnavigated the Platform to secure a opportunity with a project manager you will be liable to pay damages to Forma;

Damages will be calculated using the penalty service fee (25%) of the consultant’s average day rate x (the greater of) the estimated contract length or a default 6-month engagement.

Platform Use

To access certain content on the Platform, you must first become a Registered User by creating a User Account.
To create a User Account you will be asked to provide certain Registration Data and you will be required to nominate a password. You must ensure that all Registration Data is accurate and up to date at all times.
You must be 18 years of age or older to create an account or access the Platform.
You may not use one email address to register for multiple User Accounts and you must not hold more than one User Account at the same time. We reserve the right to refuse registration requests in our sole discretion.
Your User Account will also store any other information you elect to provide us, or that is generated through your use of, or activities on, the Platform. This may include personal contact information. Any such data that is personal information will be collected, stored, used and otherwise dealt with in accordance with our Privacy Policy.
While we take steps to protect the security of the information on our Platform, you have sole responsibility for any activity that occurs on or via your User Account.
You must keep your password secure and you must not grant access to your User Account to any other person.
You must notify us immediately if you become aware of any security breach or any unauthorised use of your password or User Account.
You warrant and represent that your access to, or use of, the Platform or our Services is not unlawful or prohibited by any laws which apply to you. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
We may, in our absolute discretion, terminate your User Account, disable your User Account or restrict your access to the Platform and/or our Services (temporarily or permanently) where you have breached this Agreement or for any reasonable reason and at any time. Under these circumstances, you may be prevented from accessing all or parts of the Platform, your User Account details, or any other content associated with your User Account. We will not be liable to you or any third party if this occurs. We may impose limits or restrictions on the use you may make of the Platform. Further, we may, for any reason, at any time and without notice to you, change or remove Platform functionality.
The Platform contains links to third party websites. Any links to such websites provided on the Platform are for convenience only. We do not represent that we have any relationship with any linked websites nor recommend or endorse any goods, services or third party content appearing on, or via, other websites linked to the Platform. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.
You may not use the Platform other than for its intended purpose. You agree that you will not engage in any activity that interferes with or disrupts the Platform or the servers and networks that host it. You agree not to, circumvent, disable or otherwise interfere with security-related features of the Platform or attempt to do so or otherwise interfere with, or restrict, any person or visitor from accessing or using the Platform.
Unless otherwise expressly stipulated in this Agreement, you must not copy, adapt, distribute, display, reproduce or transmit any content displayed or published on the Platform.
You must take your own precautions to ensure that the telecommunications equipment and computer systems used by you to access and use the Platform do not expose your telecommunications equipment and computer systems to any viruses, malicious computer code or other forms of interference which may damage your computer system. We accept no responsibility for any loss or damage to you or anyone else which may arise out of, or in connection with, your access to, and use of, the Platform.

Fees and Payment

Unless otherwise agreed, Contractors and Project Managers may create user accounts and access the Platform with no charges applied. This is subject to change at any time with prior written notice to Registered Users.
In consideration for the Administrative Services provided by Forma, when a Contractor enters into a contract with a Project Manager that arose from a listing on the Platform, the Contractor agrees to pay Forma 10% of the project fee that the Contractor will receive from the Project Manager ("Service Fee").
On behalf of the Contractor, following submission of timesheets from the Project Manager in relation to the Contractor, Forma will issue the Project Manager an invoice at the end of each calendar month for the applicable project fees incurred during that month (“Contractor’s Monthly Fee").
The Project Manager agrees to pay Forma the Contractor’s Monthly Fee within 30 days of a valid tax invoice, unless otherwise agreed in writing, and in accordance with the payment terms set out on the relevant invoice and no later than 30 days of a valid tax invoice.
Forma will deduct the Service Fee from the Contractor’s Monthly Fee payment received from the Project Manager and will transfer the balance of the Contractor’s Monthly Fee to the Contractor as soon as possible after receiving payment from the Project Manager.
If payment of the Contractor’s Monthly Fee is not received by any due date on a tax invoice provided to Project Manager, we will be entitled (without prejudice to any other right or remedy available to us under this Agreement or at law) to:

(a)withhold provision of the Services to the Project Manager, or suspend the Project Manager’s access to any or all of the Software of the Services, until payment of the outstanding invoice (including interest) is received by us in full;
(b)charge interest on the outstanding amount at the rate of three per cent (3%) per annum above the base-lending rate of the Westpac Banking Corporation Bank; and
(c)terminate this Agreement pursuant to clause 10.

In connection with any obligations or payments arising from this Agreement, the Project Manager agrees not to make any direct payments to Contractor, its agents, employees, or any third parties associated with a Contractor, without the prior written consent of Forma.
All payments, including but not limited to fees, expenses, and reimbursements, must be made through a mechanism or account specified by Forma.
In the event that the Project Manager breaches clause 4.7 by making direct payments to Contractor, without the required written consent, Forma shall have the right to seek damages, injunctive relief, or any other remedies available under applicable law.

Intellectual Property

You acknowledge that we or our licensors are the owners of all Intellectual Property Rights in the Platform, and we retain all rights, title and interest in the Platform (including Intellectual Property Rights contained therein) irrespective of any licence we may grant to you to access, and use, the Platform.
You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display any part of the Platform on another website or create derivative works from any part of the Platform or commercialise any information obtained from any part of the Platform without our prior written consent.
By uploading, posting, transmitting or otherwise making available any content or material via the Platform (“Your Content”), you:

grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and sub-licensable licence to use, publish, reproduce and otherwise exploit Your Content in any form for any purpose and unconditionally waive any moral rights that you might have in respect of Your Content; and
represent and warrant that you either own the Intellectual Property Rights in Your Content and that Your Content does not infringe upon any third party’s’ rights and that you have the necessary permission to upload, post, transmit or otherwise make available Your Content via the Platform.

You agree that you will not modify or copy the layout or appearance of the Platform nor any computer software or code contained in the Platform, and that you will not decompile, disassemble, reverse engineer or otherwise attempt to discover, interfere with or access any source code related to the Platform.
You agree that we may refer to you, your business name, publish your logo and/or trade marks (if any) and refer to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business and in accordance with our Privacy Policy. You may revoke your consent at any time, by writing to us at jwhelan@forma.tech

Warranties

We will use reasonable endeavours to provide constant, uninterrupted access to the Platform, but with any software-based or internet-based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses, damages, costs or expenses suffered, sustained or incurred by you as a result of, or in connection with, any interruption or delay in accessing and using the Platform.
To the maximum extent permitted by law, no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Platform is provided on ‘as is’ basis and that you will make your own investigations into whether or not this is fit for your purposes.
We make no representations, warranties or guarantees:

that content available on, or produced by or via, the Platform is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an ‘as is’ basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or
as to the availability of the Platform or that the Platform is or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking your own precautions in this respect.

Liability and Exclusions

You assume sole responsibility for your use of the Platform (including any content contained therein) and for any reliance on, and use of, conclusions drawn or actions taken from such use.
We will have no liability for any losses, damages, losses, costs, expenses or liabilities suffered or incurred caused by errors or omissions in any information or instructions provided to us by you in connection with the Platform or any actions taken by us at your direction.
To the extent permitted by law, we will not be liable for any loss, expenses, liabilities, costs or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, programs, data or other material due to your use of any part of the Platform or on any website linked to these. We recommend you ensure you have up-to-date virus checking software installed.
To the extent permitted by law, we are not responsible for dealing with, and not liable for, any claims, disputes or complaints made by you in relation to your dealings with a Project Manager or Contractor (as applicable) or any third parties you interact with as a result of accessing our Services or Platform. You should address such complaints directly to the Project Manager or Contractor (as applicable) or to those third parties.
In no event will a party be liable to another party (“Another Party”) or any third party for any:

loss of profits, revenue, goodwill or business, business interruption, corruption, loss or alteration of data, downtime costs, loss of use, failure to realise anticipated savings or for any indirect or consequential loss or damage of whatsoever nature, however caused;
breach by Another Party or any third party of the Intellectual Property Rights of a third party or any laws, regulations or any relevant industry codes;
viruses, worm, trojan or other malicious code introduced by, or transmitted to, Another Party or any third party during the course of using the Platform; or
loss of or damage to any property belonging to Another Party or any third party or any personal injury or death arising out of or in connection with this Agreement.

Our total liability to you in connection with an event or a series of related events, will be limited to the total amount of our Service Fee paid by you in the three (3) months prior to the claim.
The parties acknowledge that the limitations of liability contained in this clause 7 are a fair and reasonable allocation of the commercial risk between the parties.
This clause 7 survives termination or expiry of this Agreement.

Indemnity

Each party (the “Indemnifier”) agrees to indemnify and hold each other party, their Related Bodies Corporate and their officers, directors, employees and consultants (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:

breach by the Indemnifier of any third party’s Intellectual Property Rights or the warranty in clause 5.3(b); or
breach by the Indemnifier of any law (including Privacy Laws).

This clause 8 survives termination or expiry of this Agreement.

Confidentiality

Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of this Agreement, save for such use or disclosure necessary and required to perform their respective obligations under this Agreement. Disclosure will be, in any event, only made to the receiving party's employees, officers or agents to whom it is necessary to do so and who are directly involved in performing the receiving party's obligations.
In making disclosure to persons as permitted under this clause 9, the receiving party will ensure that persons receiving the disclosing party’s confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.
Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the disclosing party, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.
Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

Term and Termination

This Agreement will commence when you create an account through which to access the Platform or Services, or when you otherwise access our Platform.
This Agreement will continue in force until it is terminated in accordance with this clause 10.
You may terminate this Agreement without cause at any time by providing us with 14 days written notice to support@forma.tech.
In addition to the rights outlined under clause 3, we may terminate this Agreement, or terminate or suspend your access to the Services, or Platform in our absolute discretion, and without providing notice to you, including without limitation where:

it transpires that you have provided false or misleading information to us, or on the Platform, including without limitation in respect of Registration Data;
you fail to pay any fees or charges payable (if applicable) by you on time or at all;

you cancel our Services with us within 72 hours or less of the start date of a Contractor commencing work; or

we determine that you are in breach of your obligations under clause 4.7 in relation to direct payments to the Contractor.

Upon termination of this Agreement and for the avoidance of doubt, we will be entitled to payment of our Service Fee up to the termination date.

Support Services

We may, at our absolute discretion, provide you support in relation to your use of the Platform.
You may access support services via the Platform and by submitting enquiries through the “Help” section provided on the Platform or via the email sent to jwhelan@forma.tech.
We will endeavour to provide support on Business Days during Business Hours, however this cannot be guaranteed.

Dispute Resolution

If you have a complaint in connection with this Agreement or the Services:

And the complaint relates to a payment of a Service Fee or an issue with a Contractor, you should contact the relevant party directly about the complaint (and not us); or
for any other complaints, you should contact us at jwhelan@forma.tech in the first instance and allow us reasonable time to consider your complaint, determine a possible solution and notify you of the solution.

If a dispute arises in connection this Agreement, a party (“Provider”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).
Within 10 days of the Provider giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring the dispute to be referred to mediation (“Mediation Notice”).
If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.
The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.
If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may commence litigation.
No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.
Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
This clause 12 survives the expiry or termination of this Agreement.

Unavoidable Events

We will not be liable to you if we are prevented from, or delayed in, providing the Platform due to acts, events, omissions or accidents beyond our reasonable control (“Unavoidable Events”).
Where an Unavoidable Event occurs, we will attempt to recommence provision of the Platform as soon as reasonably practicable.

Linking to the Platform

You may link to the Platform, provided that you notify us of this, and also establish the link in a way that is fair, legal and does not damage, or take advantage of our reputation or any third parties. You must not establish any link in a way that suggests any form of association, approval or endorsement by us.
You must not establish a link to the Platform from any website that is not owned by you (except with the website owner’s express permission).
The Platform must not be framed on any other website or platform without our prior written consent in our absolute discretion.
We reserve the right to withdraw linking permission under this clause 14 at any time.

Privacy

You must, in connection with this Agreement:

ensure that you and your employees, and agents are aware of your obligations under all applicable Privacy Laws;
at all times comply with your obligations under applicable Privacy Laws; and
take reasonable steps to assist us to comply with our obligations under applicable Privacy Laws as may be notified to you from time to time.

We are committed to protecting your privacy and personal information. Please see our Privacy Policy (www.forma.tech.co - https://docs.google.com/document/d/16AZJSTv6C_kxUWKnpojsaML4omfZGBjYzuaYDx-N74U/edit?usp=sharing ) for further details about our practices relating to the collection, use, disclosure and storage of your personal information.

Notices

Any notice required to be given pursuant to this Agreement will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in this Agreement (or to such other address as either party may from time to time notify the other in accordance with this clause).
A notice given under clause 16.1 will be deemed to have been delivered 24 hours after the email is received by the recipient.
Notices sent to Forma must be sent to jwhelan@forma.tech.

General

We reserve the right to make changes to this Agreement at any time by publishing them on the Platform. If you don’t accept the changes, you must advise us within 7 days of the changes being published on the Platform and, unless otherwise agreed, the Agreement will be deemed to be terminated under clause 10.3. By continuing to use the Platform after any changes are published, or after 7 days of the date of publication (whichever is earlier), you are deemed to agree to those changes. Subject to the above, any changes to this Agreement will have immediate effect from the time that they are published on the Platform.

You must not assign any of your rights or obligations under this Agreement to a third party without our prior written approval which may not be unreasonably withheld. We may transfer, assign and novate our rights and obligations under this Agreement in whole or part at any time in our absolute discretion without your approval.
Any provision of this Agreement that is found to be void or unenforceable will, to the extent that it is void or unenforceable, be severed from this Agreement without affecting the enforceability or validity of any other provisions.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.
This Agreement are governed by the laws of Victoria, Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts exercising jurisdiction there.

Definitions and Interpretation

In this Agreement, the following expressions have the following meanings, unless otherwise stated:

"Administrative Services" is defined in clause 2.8(c);

“Authorised Representative” is defined in clause 2.7(a)(iv);

“Agreement” is defined in clause 1.3;

“Authorised User” means your employees and agents who are authorised by you to use the Platform;

“Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;

“Business Hours” means 9.00am to 5.00pm Australian eastern standard time;

“Commencement Date” means the date that you register to use the Platform;

"Consultancy Agreement" is defined in clause 2.6(c);

"Contractor" is defined in clause 2.1(a);

“Contractor’s Monthly Fee” is defined in clause 4.3;

“Indemnified” is defined in clause 8.2;

“Dispute Notice” is defined in clause 12.2;

“Indemnified” is defined in clause 8.2;

“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;

“Mediation Notice” is defined in clause 12.3;

“Platform” means the platform currently hosted on the website located at www.forma.tech or any other website, platform, or application nominated by us from time to time, and any associated services, software, networks or processes;

“Privacy Laws” means the Privacy Act 1988 (Cth), and any other applicable Australian privacy legislation;

“Privacy Policy” is defined in clause 15.2;

"Project Manager" is defined in clause 2.1(b);

“Provider” is defined in clause 12.2;

“Recipient” is defined in clause 12.2;

“Registration Data” means information provided by you to us for the purposes of your registration to access certain sections of the Platform;

"Registered User" means a user of the Platform who has provided us with Registration Data and such Registration Data has been accepted by us;

“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);

"Service Fee" is defined in clause 4.2;

“Services” refers to making the Platform available and any associated services we provide pursuant to this Agreement, including the Administrative Services;

“Terms” means these terms and conditions, under which we provide access to the Services and Platform, as amended by us from time to time;

"Unavoidable Events" is defined in clause 13.1;

"User Account" means an account you create to use the Platform, which contains your Registration Data; and

“Your Content” is defined in clause 5.3.

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