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to be caused by ECS'negligent acts,errors or omissions,specifically excluding contracting with the CLIENT is located. CLIENT waives the right to remove any
<br /> any damages caused by any third party or by the CLIENT. litigation action to any other jurisdiction, unless mutually agreed to by both
<br /> 19.2 To the fullest extent permitted by applicable Law,CLIENT agrees to indemnify, parties.
<br /> defend, and hold ECS harmless from and against any and all liability,claims, 23.4 This AGREEMENT including all matters related to performance and remediation
<br /> damages, demands, fines, penalties, costs and expenditures (including shall be interpreted according to the substantive Laws of the state of Virginia(but
<br /> reasonable attorneys' fees and costs of litigation defense and/or settlement) not including its choice of law rules).
<br /> ["Damages"]caused in whole or in part by the negligent acts,errors,or omissions
<br /> of the CLIENT and CLIENT'S employees, agents, staff, contractors, 24.0 CURING A BREACH
<br /> subcontractors,consultants,and clients,provided such Damages are attributable 24.1 A party that believes the other has materially breached this AGREEMENT shall
<br /> to: (a)the bodily injury, personal injury,sickness,disease and/or death of any issue a written termination notice to the other, identifying the cause for
<br /> person;(b)injury to or loss of value to tangible personal property;or(c)a breach termination within five(5)business days of identifying such cause. Both parties
<br /> of this AGREEMENT,except to the extent such Damage is caused by the sole shall then bargain promptly and in good faith to cure such cause. If an
<br /> negligence or willful misconduct of ECS. acceptable cure can be achieved within fourteen (14)calendar days from the
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to date of the termination notice,the parties shall commit their understandings to
<br /> pay an amount of Damages disproportional to ECS'culpability,or any share of writing and termination shall not occur.
<br /> any amount levied to recognize more than actual economic damages,subiect to 24.2 Either party may waive any right provided by this AGREEMENT in curing an
<br /> any limitations of liability and INDEMNIFICATION provisions contained in this actual or alleged breach;however,such waiver shall not affect future application
<br /> AGREEMENT. of such provision or any other provision.
<br /> 19.41F CLIENT IS A HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, 25.0 TERMINATION
<br /> CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER, ECS
<br /> RECOMMENDS THAT LEGAL COUNSEL BE RETAINED BY CLIENT BEFORE ENTERING INTO 25.1 CLIENT or ECS may terminate this AGREEMENT for breach of this
<br /> THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS, AND THE LIMITATIONS, AND AGREEMENT, or for any other reasons which may arise. In the event of
<br /> RESTRICTIONS IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF termination, the party effecting termination shall so notify the other party in
<br /> CLIENT TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL writing,and termination shall become effective fourteen(14)calendar days after
<br /> AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS receipt of the termination notice.
<br /> AGREEMENT. 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS
<br /> 19.51f CLIENT is a residential builder or residential developer, CLIENT shall shall promptly render to CLIENT a final invoice and CLIENT shall immediately
<br /> indemnify,defend and hold harmless ECS against any and all claims or demands compensate ECS for Services rendered and costs incurred,in accordance with
<br /> due to injury or loss initiated by one or more homeowners,unit-owners,or their ECS' prevailing Fee Schedule and expense reimbursement policy. Services
<br /> homeowners' association, cooperative board, or similar entity against CLIENT shall include those rendered up to the time of termination, as well as those
<br /> which results in ECS being brought into the dispute. associated with termination itself, including without limitation, demobilizing,
<br /> modifying schedules,and reassigning personnel.
<br /> 20.0 CONSEQUENTIAL DAMAGES
<br /> 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any 26.0 TIME BAR TO LEGAL ACTION
<br /> consequential damages incurred by either due to the fault of the other, 26.1 Unless prohibited by Law, and notwithstanding any Statute that may provide
<br /> regardless of the nature of the fault,or wherever committed by the CLIENT or additional protection,CLIENT and ECS agree that claims by either party arising
<br /> ECS, their employees, consultants, agents, contractors or subcontractors, or out of this AGREEMENT or the Services provided hereunder shall not be initiated
<br /> whether such liability arises in breach of contract or warranty, tort (including more than two(2)years from the time the party knew,or should have known,of
<br /> negligence), Statute, or any other cause of action. Consequential damages the condition giving rise to its claim, and shall under no circumstances be
<br /> include,but are not limited to,loss of use and loss of profit. initiated more than three (3)years from the date of substantial completion of
<br /> 20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by ECS'Services.
<br /> CLIENT,for any liquidated damages due to any fault,or failure to act,in part or in 27.0 ASSIGNMENT
<br /> total by ECS,its employees,agents,or subcontractors. 27.1 Except for Services normally or customarily subcontracted by ECS in the
<br /> 21.0 SOURCES OF RECOVERY performance of its Services including, but not limited to surveyors,specialized
<br /> 21.1 All claims for damages related to the Services provided under this AGREEMENT consultants, drilling and excavating subcontractors, and testing laboratories,
<br /> shall be made against the ECS entity contracting with the CLIENT for the neither the CLIENT nor ECS may delegate,assign,sublet or transfer its duties,
<br /> responsibilities or interests in this AGREEMENT without the written consent of
<br /> Services,and no other person or entity. CLIENT agrees that it shall not name the other party.
<br /> any affiliated entity including parent,peer,or subsidiary entity or any individual
<br /> officer, director, or employee of ECS, unless such claims are based on acts 28.0 SEVERABILITY
<br /> unrelated to the provision of Services under this AGREEMENT. 28.1 Any provision of this AGREEMENT later held to violate a Law, Statute, or
<br /> 21.2 CLIENT agrees that it will not seek Damages from any individual associated with Regulation,shall be deemed void,and all remaining provisions shall continue in
<br /> ECS as an officer,principal,partner,employee,or owner,from any and all claims full force and effect. CLIENT and ECS shall endeavor to quickly replace a voided
<br /> or liability for injury or loss that would require such individual to relinquish provision with a valid substitute that expresses the intent of, or at least
<br /> personal assets to satisfy such claim. addresses,the issues covered by the original provision.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION 29.0 TITLES
<br /> 22.1 This AGREEMENT shall not create any rights or benefits to parties other than 29.1 The titles used in this AGREEMENT are for general reference only and are not
<br /> CLIENT and ECS. No third-party shall have the right to rely on ECS'opinions part of the AGREEMENT.
<br /> rendered in connection with ECS' Services without both CLIENT'S and ECS'
<br /> written consent and the third-party's agreement to be bound to the same terms 30.0 SURVIVAL
<br /> and conditions contained in this AGREEMENT as CLIENT, and third-party's 30.1 All obligations arising prior to the termination of this AGREEMENT and all
<br /> agreement that ECS'Scope of Services performed is adequate. provisions of this AGREEMENT allocating responsibility or liability between the
<br /> 23.0 DISPUTE RESOLUTION CLIENT and ECS shall survive the substantial completion of Services and the
<br /> termination of this AGREEMENT.
<br /> 23.1 All claims,disputes or controversies["Disputes"]arising out of,or in relation to
<br /> the interpretation, application or enforcement of this AGREEMENT shall be 31.0 ENTIRE AGREEMENT
<br /> decided as follows: 31.1 This AGREEMENT including the Scope of Services and Professional Fees and
<br /> 23.1.1 CLIENT and ECS agree to attend a dispute resolution meeting within all exhibits, appendixes, and other documents appended to it, constitute the
<br /> fourteen(14)days of identification of a Dispute by either party. CLIENT and entire AGREEMENT between CLIENT and ECS. CLIENT acknowledges that all
<br /> ECS agree to negotiate in good faith to resolve the Dispute. prior understandings and negotiations are superseded by this AGREEMENT.
<br /> CLIENT acknowledges acceptance of these terms by submitting a CLIENT Work
<br /> 23.1.2 Should negotiation fail to resolve the dispute,CLIENT and ECS agree to Authorization to ECS.
<br /> mediate their dispute via a mediator selected by either party, and
<br /> acceptable to both parties. 31.2 CLIENT and ECS agree that subsequent modifications to this AGREEMENT
<br /> shall not be binding unless made in writing and signed by authorized
<br /> 23.1.3 Should mediation fail to result in resolution of the Dispute,CLIENT and ECS representatives of both parties.
<br /> agree that litigation may be brought by either party.
<br /> 31.3 All preprinted Terms and Conditions on CLIENT'S purchase order or Work
<br /> 23.2 Should third-party dispute resolution be required,through mediation or litigation, Authorization, or other service acknowledgement forms, are inapplicable and
<br /> the non-prevailing party shall reimburse the prevailing party for the prevailing superseded by this AGREEMENT.
<br /> party's documented legal costs, in addition to whatever other judgments or
<br /> settlement sums may be due. Such legal costs include,but are not be limited to, 31.4 If CLIENT fails to provide ECS with a signed copy of this AGREEMENT or a
<br /> reasonable attorney's fees,court costs,forensic consultants and expert witness Work Authorization,by the act of authorizing and accepting the services of ECS,
<br /> fees,and other documented expenses. CLIENT agrees to be fully bound by the terms of this AGREEMENT as if signed
<br /> 23.3 Where legal action is brought by either party to resolve a dispute,the claim shall by CLIENT.
<br /> be brought and tried in the judicial jurisdiction of the county in which ECS'office
<br /> <END OF TERMS AND CONDITIONS OF SERVICE>
<br /> ECS Proposal No: Page 3 of 3 Ver.03-03-06
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