MSC Standard Terms and Conditions
1. Nature of Services
McKeever Services Corporation (“MSC”) is a pre‐construction and development management and consulting firm providing a range of professional services to builders, developers and architects through four divisions: Consulting (strategic site planning), Projects (permit process management), Inspections/Commissioning (building inspections for residential and commercial projects) and Environmental (environmental quality requirement consulting and assessment). MSC acts as an independent professional advisory firm, and not as a subcontractor. The specific services that are the subject of this contract (the “Services”) along with work product to be delivered such as consulting work product, jurisdictional approvals and permits and inspections (collectively “Deliverables”) are itemized in the specific proposal (“Proposal”) that has been prepared for the client (“Client”) for a particular project (the “Project”), and that is attached to and fully incorporated within these Standard Terms and Conditions.
2. Validity of Proposal, Creation of Contract
2.1. Acceptance of Proposal and Creation of Agreement. The Proposal is valid for forty‐five (45) days from the date the Proposal is issued (“Validity Period”). Unless extended by MSC, if the Proposal has not been accepted by the Client before the end of the Validity Period, it will become void. The “Effective Date” of the Proposal shall be the earliest to occur of the following:
- 2.1.1. The date of signature on the Proposal by an authorized representative of the Client returned to MSC by fax or pdf attachment to email;
- 2.1.2. The date of receipt by MSC of fee or service charge monies for any work to be performed as set forth in the Proposal;
- 2.1.3. The date of receipt by MSC of plans for permitting (not for pricing) submitted by Client in lieu of a signed proposal; or
- 2.1.4. The date of receipt by MSC of an email confirmation from the Client to proceed.
2.2. As of the Effective Date, an accepted Proposal, together with these Standard Terms and Conditions, shall become a valid and binding agreement between MSC and the Client (the “Agreement”). Any provision of these Standard Terms and Conditions may be superseded only by the express written agreement of MSC.
2.3. Project Costs. The estimated costs set forth in the Proposal (the “Project Costs”) are based upon the information presented to MSC by the Client. MSC reserves the right, in its discretion, to modify the estimates based on any changes to the Project specifications or schedule. Unless specified, the estimated Project Costs do not include the following costs: Resubmissions, Jurisdictional Fees and Reimbursables including but not limited to courier, printing & reproduction, etc.
2.4. Changes. Any changes to the Proposal must be received by MSC in writing and shall be effective thirty (30) working days from date thereof.
3. Fees and Payment Terms
3.1. Jurisdictional Fees. Fees required by jurisdictional authorities for approvals and/or permits (“Jurisdictional Fees”) are excluded from Proposal pricing, even when an estimate of Jurisdictional Fees is offered. Unless specifically agreed by MSC in writing, all Jurisdictional Fees must be paid by the Client to MSC in advance. Any payments not made in advance shall be subject to a ten percent (10%) surcharge. Options for advance payment of Jurisdictional Fees are as follows:
- 3.1.1. Client Direct Payment: Clients will be notified by the MSC Project Manager of the required amount due for Jurisdictional Fees on an as needed basis. Client will pay the necessary amount by check(s) made payable to the jurisdiction and delivered to MSC for submission to the authority.
- 3.1.2. Project Cost Account: Client may establish in advance a Project Cost Account to be maintained by MSC for the payment of Jurisdictional Fees. The amount to be paid into the Account will be determined by MSC according to the Project scope of work, and MSC will submit to Client a “Request for Funds” along with supporting estimated budget. Deposits into the Project Cost Account shall be made by credit card or check, and if by check must be submitted no less than five (5) business days prior to the date the Jurisdictional Fee payment is due to the authority. MSC will pay Jurisdictional Fees directly out of Client’s Project Cost Account and will not advance payment for any Jurisdictional Fees not adequately covered by available Project Cost Account funds. Monthly Statements will be issued to reflect Account activity and any unused funds will be returned after all other related invoices are paid.
3.2. Third Party Fees. By accepting the Proposal, Client agrees to the base fees of third party professionals (e.g., for architectural and engineering peer review) referred to in the Proposal and any subsequent agreed on increases in such fees (“Third Party Fees”).
3.3. Service Charges and Payment Terms. MSC will invoice Client for its professional services and related expenses (“Service Charges”) in accordance with the Deliverable and Payment Schedule specified in the Proposal. Payment on each invoice is due in full within thirty (30) days of the invoice date, regardless of the timing of Client’s receipt of payment from its customer.
3.4. Additional Costs. Any additional cost items or work required by the Client that is not reflected in the Proposal will be billed at the minimum rate of $150 per hour, or priced under separate cover.
4.1. Acceptance of Deliverables. Unless otherwise specified in the Proposal, the sole acceptance criteria for any Deliverables shall be that they conform to the specifications and descriptions set forth in the Proposal. Deliverables shall be deemed accepted unless rejected by the Client in writing with reasonable good cause within the time period specified in the Proposal or if used by Client for commercial purposes. MSC shall have the opportunity to correct and resubmit any rejected Deliverables to Client within a reasonable time.
4.2. Delivery and Right to Use Deliverables.
- 4.2.1. Permits may not be delivered to Client unless and until all Jurisdictional Fees, Third Party Fees, Service Charges, Additional Costs, Late Fees and Collection Costs have been paid.
- 4.2.2. All right title and ownership to all Deliverables that constitute MSC work product, including without limitation all originals and copies of documents, designs and reports shall be held by MSC and shall pass to Client upon receipt by MSC of payment in full of all amounts due for the Project, including but not limited to all Jurisdictional Fees, Third Party Fees, Service Charges, Additional Costs and Late Fees and Collection Costs. MSC shall retain all right title and interest to any Work Product that is not accepted or paid for by the Client for any reason. Unless and until Client pays the full amount due, Client is not authorized to claim any rights to, or make any public or commercial use of, the Work Product.
5. Representation and Warranties
5.1. Agreement Authorized. Each Party represents and warrants that it has the legal right to enter into this Agreement and perform its obligations hereunder, that its signature is duly authorized and that it agrees to be bound hereby and is liable for all payments due hereunder.
5.2. No Conflicts. Each Party further represents and warrants that its entry into and performance under this Agreement does not conflict with or violate any other obligation or agreement to which it is bound and will not cause it to be in violation of any federal, state or local law or regulation.
5.3. Insurance. Each Party maintains appropriate insurance in adequate amounts to cover its potential liabilities under this Agreement.
5.4. Standard of Care and Disclaimers. MSC Corporation and its agents will perform the Services on a “best efforts” basis which, for the purpose of this Agreement, means efforts consistent with the skill, diligence and care required by industry standards during normal business hours for members of MSC’s profession in the same or similar location. All other warranties are expressly excluded. No guarantee is made with respect to any outcome. MSC is not responsible for the content, information, or materials used in any submission or reviews. MSC is not responsible for any defects or deficiencies in Client’s performance of its obligations to third parties or for the satisfaction of Client’s customer(s).
Client shall fully cooperate with MSC as necessary to fulfill the assumptions underlying the Proposal. By way of example, and not limitation, Client agrees to promptly provide full and accurate information regarding the Project and to complete and return all required paper work from the jurisdiction, the peer reviewers or MSC as a condition for maintaining the proposed timeline. Client also shall ensure that MSC has timely access to subject sites, facilities and accurate Project documents. MSC will not be liable for any failure to perform due to Client delays, or Client actions or omissions that impair the delivery of the Services or Deliverables. In the event of any such delay or impairment, the costs for MSC’s additional time and/or expenses incurred shall be Additional Costs fully chargeable to the Client.
6. Client Obligations
For the purposes of this Agreement, “Proprietary Information” includes any proprietary, competitively sensitive or personally identifiable information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”). Proprietary Information includes but is not limited to all of the material contained in the Proposal, including but not limited to strategy, approach, pricing, methodology and scope, and business, financial, strategy or customer information of either party. Receiving Party shall use the Proprietary Information only for its own internal purposes in connection with the Project, shall keep it strictly confidential, and shall not provide the Proprietary Information to any other company or person for any purpose without the express written consent of the Disclosing Party or unless required by any applicable law or judicial or governmental order. It is agreed that the unauthorized use or disclosure of any Proprietary Information will cause severe and irreparable damage to the Disclosing Party, and in the event of such disclosure, the Disclosing Party shall be authorized and entitled to seek from any court of competent jurisdiction preliminary and/or permanent injunctive relief, as well as any other relief permitted by applicable law.
7. Proprietary Information
8.1. Term. Unless earlier terminated, this Agreement shall be in full force and effect from the Effective Date until the date of receipt by MSC of final full payment of all amounts due hereunder.
8.2. Termination by Either Party. The Agreement may be terminated by Client on thirty (30) days notice to MSC, and MSC shall use its best efforts to halt all work immediately upon receipt of such notice.
8.3. Suspension or Termination for Cause.
- 8.3.1. In its sole discretion, MSC may suspend work and/or terminate this Agreement: (i) if Client has not cured a breach of this Agreement within ten (10) business days of written notice of such breach; (ii) on five (5) business days notice if Client is subject to a voluntary or involuntary petition for bankruptcy, subject to a transfer of control, is dissolved or liquidated, or otherwise ceases to have the capacity to meet its obligations under the Agreement; or (iii) on five (5) business days notice if Client unreasonably withholds acceptance of Deliverables.
- 8.3.2. In its sole discretion, Client may terminate this Agreement: (i) if MSC has not cured a breach of this Agreement within ten (10) business days of written notice of such breach; of (ii) on five (5) business days notice if MSC is subject to a voluntary or involuntary petition for bankruptcy, subject to a transfer of control, is dissolved or liquidated, or otherwise ceases to have the capacity to meet its obligations under the Agreement.
8.4. Effect of Termination. In the event of any termination of this Agreement Client shall be responsible for payment of Service Fees for all work actually performed by MSC and/or its subcontractors and other Third Party Fees, up to and including the effective date of termination, as well as for Jurisdictional Fees, Additional Costs and Late Fees and Collection Costs, if any.
8. Term and Termination
9.1. Governing Law, Jurisdiction, Attorneys Fees. The construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement shall be governed by the internal law of the District of Columbia, without regard to its conflicts of law principles. The Parties agree that the courts seated in the District of Columbia shall have exclusive jurisdiction over any enforcement action or disputes arising under this Agreement, and the prevailing party in any such proceedings shall be entitled to recover all of its costs, attorney fees, and expert witness fees, including any costs or attorney fees in connection with any appeals. In the event that legal remedies would be inadequate, the affected party shall be entitled to seek injunctive or other equitable relief.
9.2. Waiver of Jury Trial. To the maximum extent permitted by law, each Party knowingly, voluntarily and intentionally waives its right to a trial by jury.
9.3. Indemnities. Except in the case of the gross negligence of the indemnified Party and subject to the limitations of liability set forth below, each Party agrees to defend, indemnify and hold harmless the other Party and its owners, directors, officers, employees, successors and assigns against all third party claims or actions for damage, liability, costs or losses, relating to or arising from breach of this Agreement or the negligent actions or omissions or willful misconduct of the indemnifying Party or its employees or agents in the course of performance under this Agreement.
9.4. Limitations of Liability.
- 9.4.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, COSTS OR LOSSES INCURRED BY THE OTHER PARTY, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS, FINANCING, REPUTATION OR OPPORTUNITY, EVEN IF SUCH COSTS OR LOSSES WERE REASONABLY FORESEEABLE AT THE TIME OF THE EXECUTION OF THIS AGREEMENT.
- 9.4.2. MSC’s liability for proven damages due to error, omission, breach of contract or negligence will be limited to an amount not to exceed the total amount due under the Agreement. No employee or agent of MSC shall have any individual professional liability to the Client in addition to, or in excess if, the liability described under this Agreement.
9. Disputes, Indemnities and Limitations of Liability
10.1. Relationship of the Parties. MSC is an independent contractor. Nothing in this Agreement shall create a joint venture, partnership or agency relationship between MSC and Client and neither Party may represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party.
10.2. Time of the Essence. Time is of the essence in the performance of this Agreement.
10.3. Notices. All notices, requests and demands given to or made upon the Parties shall be in writing and shall be properly addressed, postage prepaid, sent via mail, sent electronically via facsimile or email with independent verification of receipt, or personally delivered to the contacts designated above.
10.4. Severability. Any provision of this Agreement held by a competent legal authority to be invalid, illegal or unenforceable in any respect shall be deemed to be deleted, and the remainder of the Agreement shall continue in full force and effect.
10.5. No Waiver. No delay or omission by either Party to exercise any right it has under this Agreement shall be construed as a waiver of such right. A waiver by either Party of any breach shall not be construed to be a waiver of any succeeding breach. All waivers must be in writing and signed by the Party waiving its rights.
10.6. Assignment and Subcontractors. This Agreement and the rights and obligations hereunder are not transferable or assignable other than to an affiliate under common ownership or control of the assigning Party. MSC may, in its discretion, subcontract any portion of the project to a third party vendor, but MSC shall at all times remain ultimately responsible to Client for performance under this Agreement.
10.7. Force Majeure. Other than for the obligation to pay, neither Party shall be liable for any delay or default in its performance of any obligation under this Agreement caused not by its negligence but directly or indirectly by events or causes reasonably beyond such Party’s control, including but not limited to fire, flood, act of God, acts of Government, acts of terrorism, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, failures of suppliers or subcontractors, failures of transportation or energy, war, riot, embargo or civil disturbance. Performance interrupted by a force majeure event shall be resumed as soon as practicable.
10.8. Entire Agreement and Modification. This Agreement constitutes the entire agreement between the Parties on its subject matter and supersedes all prior oral or written agreements and understandings. No modification of this Agreement, including without limitation any proposed change in the scope of Services, shall be contractually binding on any Party unless agreed in writing and signed by both Parties.
10.9. Survival. The obligations of the Parties under this Agreement which by their nature would continue beyond the expiration or termination of this Agreement shall survive any expiration or termination of this Agreement, including but not limited to the provisions pertaining to: Proprietary Information, Representations and Warranties, Indemnities and Limitations of Liability, Governing Law, Jurisdiction, Waiver of Jury Trial and Attorneys Fees, and the applicable provisions of this Miscellaneous Section.