1. General Conditions

Metamorph adopts in general the Terms of Engagement currently promulgated by the Association of Consulting Engineers Australia.

Not withstanding the above mentioned terms, and codes, Metamorph brings the following specific conditions to the notice of the Client.

Specific Conditions

Scope of Work Instruction (WI) and Quotation
  1. The WI scope, and its price and timing, are as described in the proposal/quotation. These are based on the information available to Metamorph at the time, and on these Conditions.
  2. These Standard Conditions of Contract shall apply to the works and to any variations. They may be varied only by Metamorph in writing.
  3. Unless stated otherwise, Metamorph’s quote remains valid for a period of 30 days.
  4. Work will commence only after receipt of the Client’s official purchase order.
  5. Metamorph shall undertake no obligation other than its best efforts to achieve for the Client usable results within the scope and timing as proposed.
  6. Variations to the WI may be made from time to time, and agreed with Metamorph. Metamorph will endeavour to provide the Client with earliest written advice as to the consequences of such variations.
  7. Where services are to be provided against a Regular Schedule, the monthly fee is agreed to apply for the actual duration up to the nominated completion milestone.
Secrecy
  1. Unless it is agreed otherwise at the time the WI’s are given, Metamorph reserves the right to use data which it collects for purposes of testing and training artificial intelligence algorithms and other purposes. This commitment to secrecy does not apply to calculation methods, programming and experimental methods and techniques which Metamorph brings to the project.
  2. Designated confidential data belonging of the Client to which Metamorph has access when carrying out the WI’s is subject to a term of secrecy of one year. If required, this term may be extended by a separate written agreement.
  3. Metamorph’s undertaking as to secrecy shall not apply where it would be contrary to Metamorph’s legal functions, obligations and its own defence.
  4. Proposals for works or variations or extension of WI’s, are made on the condition that the exclusive knowledge of Metamorph is only used by the Client for forming an opinion on Metamorph’s proposals and is not passed to third parties without the express written permission of Metamorph.
  5. At no time, unless agreed in writing, will Metamorph refrain from accepting WI’s from third parties which are within the scope of the Client’s instructions. Should either Metamorph or the Client consider there to be significant potential for a direct conflict of interest, they must inform the other party at the earliest opportunity.
Rights Concerning Results
  1. The Client is entitled to use all data specifically connected with the WI’s and being within the scope of the instructions, as referred to in para 1.
  2. For the term of secrecy pursuant to para 8, Metamorph shall be entitled to use, for its own purposes, the new specific data which has been obtained.
  3. Metamorph shall have exclusive rights and interest to and therefore be entitled to use for its own purposes, and for the purposes of third parties and to allow third parties to use:
    1. all knowledge and experience available to Metamorph at the acceptance of the instructions;
    2. the new specific knowledge and data which have been obtained by carrying out the WI’s but which are outside the scope of the WI’s;
    3. calculation methods, programming and experimental methods of working, arising from carrying out of the instructions.
  4. Reports, drawings and other material things which are the Results of the instructed works and conform to para 1 will become the property of the Client, subject to Metamorph’s copyright.
  5. Ownership of the Results will only pass to the Client upon full payment of all sums as noted at para 18 through para 25 below.
  6. Delivered reports shall only be reproduced verbatim and in full by the Client, excepting with the prior written consent of Metamorph. Reproduction shall also include submitting to the inspection of the third parties.
Price and Payment
  1. By providing a purchase order to authorise commencement of the work, the Client is deemed to be the sole Principal and as such is solely responsible for payment, regardless of any separate contract that may exist between the Client and other parties.
  2. Should no “fixed price” or “limiting fee” or “lump sum” be specifically mentioned in the quotation, then the total sum to be invoiced shall be determined afterwards by way of calculation, based on the WI and Metamorph’s current normal rates and methods. All prices, including fixed prices, shall be subject to variation if material changes occur in tax or other government charges or in relevant currency exchange rates.
  3. Metamorph will generate monthly invoices for works in progress, partial deliveries of contract items, and/or as per a regular schedule, at its discretion. Invoices are considered due and payable within seven (7) days from the date of invoice submission to the Client.
  4. The Client shall pay rendered accounts in full, within seven (7) days from the invoice date. Also, the Client shall be liable to pay statutory interest (viz. Reserve Bank Rate plus 2 percent) in addition to the costs of recovery, should the 7 days payment period be exceeded.
  5. If the Client foresees that the 7 day terms cannot be met, an alternative period shall be proposed to Metamorph in writing. Should Metamorph accept a different period there may be a commensurate variation in the quoted cost.
  6. Metamorph reserves the right to cease work – with no consequential liability – for any Client being delinquent in respect of the 7 days term of payment.
  7. In the event of a change to the work scope or timing as a result of the Client’s (or his agent’s) information, instructions or lack thereof, or due to material changes caused by others in the Client’s employ, or due to forces outside Metamorph’s control, then Metamorph’s final price and delivery will also change correspondingly. Ongoing Regular Schedule work shall continue and shall be paid for unless notice of suspension is given to Metamorph in writing. Recommencement of suspended works shall be at Metamorph’s discretion.
  8. The Client shall be responsible for the payment of any GST charges that result from this work scope whether or not the GST component was specifically included within the quoted price.
Liability
  1. Subject to the provisions in para 26, Metamorph shall be liable for damage suffered by the Client as a result of Metamorph’s default, but only up to the price payable by the Client for those work instructions pursuant to para 19.
  2. Metamorph shall not be liable for damage which the Client suffers when applying or using the results of Metamorph’s works.
  3. The Client shall indemnify Metamorph against any claims of third parties arising from damage suffered by those third parties as a result of application or use of the result of Metamorph’s works by the Client or any other person to whom the Client has made that result available.
  4. The Client shall be liable for damages suffered by Metamorph employees during the time spent on the premises of the Client or third parties in connection with the WI’s.
  5. Metamorph shall not be liable for any risk of damage suffered by the Client or his staff during the time spent on Metamorph’s premises.
Miscellaneous
  1. If the client should not fulfil any essential obligations arising from the agreement, Metamorph shall notify the Client hereof in writing and allow him a reasonable further period, normally 7 days, to fulfil his obligations. In the event that the Client should still not fulfil his obligations within the further period allowed, then Metamorph shall be entitled by notice in writing to terminate the Contract forthwith but without prejudice to any right of action or remedy which shall have occurred or which shall accrue thereafter in favour of either party.
  2. Metamorph retains the right to reference past works performed, citing them on websites and marketing materials, as long as such references do not violate the confidentiality provisions stated above or unless otherwise explicitly agreed upon in writing.
Disputes
  1. All disputes arising from the present agreement, or from any further agreements resulting there from, shall be determined by a competent Court within the State of Victoria of the Commonwealth of Australia.