Terms and Conditions

The terms and conditions for services carried out by MSK Design Ltd (Company Number 6044594)

1. Our definitions and interpretations

1.1   Brief means the statement of requirements for a project, issued to and approved by the client on the letter of appointment.

  • 1.1.1   A brief forms the integral part of any agreement and will at times be subject to change following:
  • Development of the project brief following :
  • A review of the projects financial and planning feasibility,
  • Altered project objectives,
  • Completion and review of a design, planning or pre-app review,
  • Any subsequent changes made to the project brief at any stage of the works.

A change in the project brief is the client’s responsibility, which can have an impact on the agreed timescales, fees and costs associated with a project. Where a change in the project brief occurs, MSK Design Ltd will review and adjust the agreement where required and reasonable to accommodate any additional work required against the agreed works. Additional works will be charged as outlined under item 4.2.5 of these Terms and Conditions.

1.2   Letter of appointment means the letter of appointment to which these terms and conditions are annexed.

  • 1.21   Company refers to MSK Design Ltd including but not limited to any associated principals, employees and advisors.
  • 1.22   Other persons means any person, consultant, body or company, other than MSK Design Ltd or any sub-consultant of MSK Design Ltd. This is including but not limited to specialist subcontractors, statutory bodies, approving or adopting authorities, consultants and contractors who have performed or will perform work or services in connection with the Project.
  • 1.23   Project is defined in the Letter of Appointment.
  • 1.24   Services means the services to be performed by MSK Design Ltd. This will be specified in the schedule of services annexed to the Letter of Appointment. Services may be varied by written agreement.

1.3   Where works subject to this agreement are required to be completed from a specified and agreed start date, within a set time frame, the works will commence from the specified and agreed start date subject to all other aspects of the agreement being met. These ‘other aspects’ include all associated stage payment being cleared in MSK Design Ltd’s bank account and all information that may be requested/required from the client being provided. The period of days factored into any timescale will not include Saturdays, Sundays and any day that is a public holiday.

1.4   The provisions of this agreement are without prejudice to the respective rights and obligations of all involved parties.The provisions of this agreement are to continue in force as long as necessary to give effect to such rights and obligations.

1.5 This agreement is subject to the law, all parties involved submit to the jurisdiction of the courts of England and Wales.

2. MSK Design Ltd Services

2.1   MSK Design Ltd shall exercise reasonable care, safety, consideration, diligence and skill in accordance with the normal standards typical of an architectural design practice, in performing the agreed services and discharging obligations under these terms and conditions.

2.2  MSK Design Ltd shall:

  • 2.2.1   Advise the client on progress and performance of the agreed services and of any issue that may materially affect the delivery, cost or quality of the project where reasonably possible.
  • 2.2.2   Perform the agreed services with due regard to the client’s requirements.
  • 2.2.3   Collaborate with any other persons appointed by the Client. Where applicable, coordinate and integrate information received and pass relevant information to them.
  • 2.2.4   Act on behalf of the client in matters set out or implied in this agreement.
  • 2.2.5   Where acting as contract administrator of a building contract, exercise honest, independent and impartial judgement when dealing between the client and contractor.
  • 2.2.6   Make no material alteration to the agreed services or the approved design without the consent of the client, except in an emergency.

2.3   MSK Design Ltd shall have the right to publish drawings and photographs of the project with due care to privacy and safety, and the client shall grant reasonable access for this purpose for 18 months after practical completion of the construction works.

3. Our client’s responsibilities

3.1   The client shall:

  • 3.1.1   Advise MSK Design Ltd of all requirements and all subsequent changes required.
  • 3.1.2   Provide free of charge information that is either in possession or reasonably obtainable, necessary for the timely and proper performance of the services agreed and MSK Design Ltd shall be entitled to rely on such information.
  • 3.1.3   Give decisions and approvals necessary for the performance and progress of the Services.
  • 3.1.4   Issue reasonable instructions to MSK Design Ltd.
  • 3.1.5   Appoint and pay any other persons required to undertake work or services under separate agreements.
  • 3.1.6   Hold the contractor/s responsible for the correct and proper carrying out and completion of all construction works, not MSK Design Ltd.
  • 3.1.7   Not instruct, direct, deal or manage contractor/s directly, or interfere with MSK Design Ltd’s duties or actions where MSK Design Ltd are agreed to be operating as a contract administrator or agreed to be administering any aspect of a building contract.

3.2 The client acknowledges that MSK Design Ltd does not warrant that:

  • 3.2.1   Planning permission, building control approval and/or any other statutory approval required will be at all granted or, if granted will be done so in accordance with any anticipated or statutory timescale.
  • 3.2.2   The services, performance, work, competence, products or solvency of any other persons.

3.2.3   Compliance with any programme which may need to be reviewed for:

  • (a)  Variations in service or project works requested by the Client.
  • (b)  Variation in property and construction market prices.
  • (c)  The discovery of previously unknown conditions at any time.
  • (d)   Delays caused by any factor beyond the control of the MSK Design Ltd.

3.2.4   Compliance with any target cost for the building work, which may need to be reviewed for:

  • (a)   Variations in service or project works requested by the Client.
  • (b)   Variation in property and construction market prices.
  • (c)   The discovery of previously unknown conditions at any time.
  • (d)   Delays caused by any factor beyond the control of the MSK Design Ltd.

4. Our fees and expenses

4.1   Fees for the performance of services including any additional required services shall be calculated in accordance with item 4of these terms and conditions, and as specified in MSK Design Ltd’s Letter of Appointment.

4.2   The fee for performance of the services relevant to each client/project will be first listed in the Fee Proposal, which will be annexed to the Letter of Appointment. Fees for all types of projects can be calculated as one or more of the following:

  • 4.2.1   An agreed fixed fee based on a fixed time or works charge.
  • 4.2.2  An agreed percentage applied to the final cost of the building work. This is to be applied to the most recent/current approved cost estimates for the building works or the contract sum. Cost shall exclude VAT, fees and any claims made by or against the contractor or contractors.
  • 4.2.3   An agreed percentage applied to each work stage, applied to the final cost of the building work at the end of the previous stage.
  • 4.2.4   An agreed fixed lump sum.Time charge rates, printing costs and mileage shall be reviewed with changes in the Consumer Price index and revised in accordance. Each 12 month period will commence on the anniversary of the date on which MSK Design Ltd commenced performance of the services.
  • 4.2.5   A time charge.This is to be determined by multiplying the time reasonably spent in the performance of the services by the agreed hourly or daily rate for the relevant member of staff. Time ‘reasonably spent’ will comprise of the time spent in connection with performance of the services, and travel from and returning to MSK Design Ltd’s office.
  • 4.2.6   A combination of any of the items listed between 4.2.1 – 4.2.5 and/or
  • 4.2.7   Any other method agreed in writing.

4.4   The basic fee shall:

  • 4.4.1   Be adjusted to include due allowance for any loss and/or expense.
  • 4.4.2   Be adjusted if material changes are made to the project brief and/or the latest approved estimate of the cost of the building work and/or the programme and/or the services are varied by agreement.
  • 4.4.3   Not be adjusted for any reduction due to the cost of the building works arising from deflationary market conditions not prevailing at the date of the agreement. The basic fee shall continue to be based on the approved cost of building works current prior to the date of such reduction.

4.5   Where MSK Design Ltd undertakes extra work or incurs extra expenses for reasons beyond reasonable control, additional fees shall be calculated on a time basis in accordance with condition 4.2.5 where one or more of the following apply:

  • 4.5.1   The cost of any work, installation or equipment for which MSK Design Ltd performs services that is not included in the cost for the building work,
  • 4.5.2   Where MSK Design Ltd is required to vary any aspect of the service and works commenced or completed
  • 4.5.3   Where MSK Design is required to provide an alternative or new design after the client has authorised development of an approved design and subsequent works based on that design (that may be associated with a separate follow on works stage) have progressed and/or any fixed time allocations associated with the agreement (if expressly applied) have been used up.
  • 4.5.4   The performance of services is delayed, disrupted or prolonged.

Where item 4.5 of the Terms and Conditions is required to be applied, MSK Design Ltd shall inform the client at the earliest opportunity of becoming aware. Item 4.5 shall not be applied were any extra work, change or expense arises from a breach of this agreement by MSK Design Ltd.

4.6   The client shall reimburse MSK Design Ltd for expenses in the manner specified in the Letter of Appointment and Fee Proposal.

4.7   On projects operating under a time charge/hourly rate, MSK Design Ltd shall maintain records of the time spent on services performed, associated expenses and disbursements to be reimbursed at net cost. MSK Design Ltd shall make such records available to the client on reasonable request.

4.8   MSK Design Ltd shall issue invoices at the intervals as listed under the fee proposal annexed to the Letter of Appointment, setting out any accrued installments of the basic fee and any additional expenses, fees, disbursements or VAT, less amounts paid to date and stating the basis of calculation of the amounts due.

4.9   Payment will be due to MSK Design Ltd from the date of issue of the company’s invoice. The final date for payment of any amount due to MSK Design Ltd shall be 14 days from the issue of the relevant invoice.

4.10   The client shall inform MSK Design Ltd in writing of any intention to withhold payment or part payment on or before the due date of the payment, stating the amount proposed to be withheld and the reason or reasons for doing so. If no notice is received, the amount due shall be the amount stated as due in the account.

4.11   Where the performance of any or all of the services and/or other obligations is suspended or ended, MSK Design Ltd shall be entitled to:

  • 4.11.1   Payment of any stage or part of the fee and other amounts properly due.
  • 4.11.2   Reimbursement of any loss incurred by MSK Design Ltd by reason of the suspension or the termination, except where MSK Design Ltd is in material or persistent breach of the obligations of the agreement.
  • 4.11.3   Reimbursement expense properly and necessarily incurred by MSK Design Ltd by reason of the suspension or the termination, except where MSK Design Ltd is in material or persistent breach of the obligations of the agreement.

4.12   In the event that any amounts are not paid when properly due, the payee shall be entitled to simple interest on such amounts until the date that payment is received at 8% over the dealing rate of the Bank of England Rate current at the date that payment becomes overdue, together with such costs reasonably incurred by the payee (including costs of time spent by principals, employees and advisors) in obtaining payment of any sums due under this agreement.

4.13  The Client or MSK Design Ltd shall pay to the other party who successfully pursues, resists of defends any claim or part of a claim brought by the other:

  • 4.13.1  Such costs reasonably incurred (including costs of time spent by employees and advisors) where the matter is resolved by negotiation or mediation, or
  • 4.13.2  Such costs as may be determined by any tribunal to which the matter is referred.

4.14   In addition to fees and expenses, the Client shall pay any Value Added Tax chargeable on MSK Design Ltd’s fees and expenses.

5. Our copyright licence

  • 5.1  MSK Design Ltd shall own the copyright in the drawings and documents produced in performing the services and generally asserts MSK Design Ltd’s moral rights to be identified as the author of such work.

Providing that all fees and/or other amounts properly due are paid, the Client shall have a licence to copy and use and allow other persons providing services to the project to copy and use hard copies (excluding Auto CAD format files) of the drawings and documents only for purposes related to construction of the project or its subsequent use or sale but may not be used for reproduction of the design for any part of any extension of the project or any other project. MSK Design Ltd shall not be liable for any of the drawings and documents other than for the purpose for which they were prepared.

No part of any design by MSK Design Ltd may be registered by the Client without the written consent of MSK Design Ltd.

6. Our liability and insurance

6.1   No action or proceedings arising from the failure of MSK Design Ltd to keep to this agreement shall be commenced after the expiry of one year from the date of the last services performed under this agreement or practical completion of construction of the project or such earlier date as prescribed by law.

6.2   In any such action or proceedings;

  • 6.2.1   MSK Design Ltd liability for loss or damage shall not exceed the amount of the professional indemnity insurance held, which is either specified under the Letter of Appointment or deemed suitable by our insurers for the project value and type.
  • 6.2.2   No employee of MSK Design Ltd or any agent of the company shall be personally liable to the client for any negligence, default or any other liability whatsoever arising from performance of the services.

6.3   MSK Design Ltd shall maintain until at least the expiry of the period specified in Item 10.1 professional indemnity insurance with a limit of indemnity not less than the amount or amounts specified in the Letter of Appointment or deemed required by our insurers, provided such insurance continues to be offered on commercially reasonable terms to MSK Design Ltd at the time when the insurance is taken out or renewed.

6.4   MSK Design Ltd, when reasonably requested by the client shall produce for inspection a broker’s letter or certificate confirming that such insurance has been obtained and/or is being maintained.

6.5  Nothing in this agreement confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it, other than lawful assignees.

7. Assignment

7.1  Neither MSK Design Ltd nor the client shall assign the benefit of this agreement or any rights arising under it at any time without the prior written consent of the other. Where consent is required, consent shall not be unreasonably withheld or delayed.

7.2  MSK Design Ltd shall not subcontract performance of any part of the agreed services without the prior consent of the client. This is excluding the structural design aspect of any construction detailing package, which is to be subcontracted to one of our partnered structural engineering consultants matched to the client’s project requirements and budget. Where consent is required, consent shall not be unreasonably withheld or delayed.

8. Dispute resolution

8.1   In the event of any dispute or difference arising under the agreement, the parties may:

  • 8.1.1   Attempt to settle the matter by negotiation or mediation, or
  • 8.1.2   Start court proceedings to settle the dispute at any time,

9. Consumer’s right to cancel

9.1   The consumer client has the right to cancel this agreement for any reason by delivering or sending (including by electronic mail) a cancellation notice to the Company at any time within the period of 7 days starting from the date when this agreement was made.

9.2  The notice of cancellation is deemed to be served as soon as it is posted or sent to MSK Design Ltd or in the case of electronic communication on the day it is sent to MSK Design Ltd.

9.3   If MSK Design Ltd was instructed to perform any services before the agreement was made or before the end of the 7 day period and the instruction or instructions were confirmed in writing, MSK Design Ltd shall be entitled to any fees and expenses (as listed under item 10.4 of these terms and conditions) properly due before MSK Design Ltd receives the notice of cancellation.

9.4  Fees and expenses schedule:

  • 9.4.1   Time charges:Director = £80.00 per hour
    Technologist/Technician/Assistant = £40.00 per hour
  • 9.4.2   Expenses and Disbursements:
    Expenses and disbursements made on behalf of the client, will be charged at net cost plus a handling charge of 10%
  • 9.4.3   Where applicable, travel will be charged at 0.40p per mile
  • 9.4.4   Printing/Plotting Rates for hard copy prints:Black and white
    A4 = 20p
    A3 = 40p
    A2 = £2.00
    A1 = £4.00
    A0 = £8.00
    Colour
    A4 = £1.50
    A3 = £2.50
    A2 = £10.00
    A1 = £15.00
    A0 = £30.00
    Electronic PDF = No charge
  • 9.4.5   Invoices for stage payments issued either at the end or unpaid on commencement the relevant work stage, as addressed under the fee proposal.

9.5   The notice of cancellation is to be addressed to MSK Design Ltd and state:

The Client [insert name of client] hereby gives notice that the agreement with MSK Design Ltd and [insert name of client] for the development to [enter site address and or project reference here] on [date of signature/s] is cancelled.

Client signature/s:
[address]
[date]

10. Suspension or termination

10.1   The client may suspend or end performance of the services and other obligations by giving at least 7 days’ notice and stating the reason for doing so.

10.2  MSK Design Ltd may suspend or end performance of the services and other obligations by giving at least 7 days’ notice and stating the reason for doing so. Such reasons include, but are not limited to, the client’s failure to pay any fees or other amounts due by date when payment is due.

If the reason for a notice of suspension arises from a default:

  • 10.2.1   Which is remedied, MSK Design Ltd shall resume performance of the services and other obligations within a reasonable period or,
  • 10.2.2   Which is not remedied by the defaulting party, the agreement will end by giving at least 7 days’ further written notice.

10.3   Where Services are suspended by the client and not resumed within 3 months, MSK Design Ltd has the right to treat performance of the services affected as ended on giving at least 7 days’ further written notice to the client.