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or loss is caused by acts or omissions of CLIENT, its employees,agents, staff, Should[his meeting fail to result In a mutually agreeable plan for resolution of the
<br /> consultants, contractors, subcontractors or person/entities for whom CLIENT is Dispute,CLIENT and ECS agree that either party may bring litigation.
<br /> legally liable. 23.2 CLIENT shall make no claim(whether directly or In the form of a third-party claim)
<br /> 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this against ECS unless CLIENT shall have first provided ECS with a written certification
<br /> agreement or the services provided as a result of the Proposal be limited to executed by an Independent engineer licensed In the jurisdiction in which the
<br /> $500,000. Project is located,reasonably specifying each and every act or omission which the
<br /> certifier contends constitutes a violation of the Standard of Care.Such certificate
<br /> 19.0 INDEMNIFICATION shall be a precondition to the institution of any judicial proceeding and shall be
<br /> 19.1 Subject Section 18.0, ECS agrees to hold harmless and Indemnify CLIENT from provided to ECS thirty(30)days prior to the institution of such judicial proceedings.
<br /> and against damages arising from ECS'negligent performance of its Services,but 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or
<br /> only to the extent that such damages are found to be caused by ECS'negligent district in which ECS'office contracting with the CLIENT is located. The parties
<br /> acts,errors or omissions,(specifically excluding any damages caused by any third agree that the law applicable to these Terms and the Services provided pursuant to
<br /> party or by the CLIENT.) the Proposal shall be the laws of the Commonwealth of Virginia,but excluding its
<br /> 19.2 To the fullest extent permitted by Law,CLIENT agrees to indemnity,and hold ECS choice of law rules. Unless otherwise mutually agreed to in writing by both parties,
<br /> harmless from and against any and all liability,claims,damages,demands,fines, CLIENT waives the right to remove any litigation action to any other jurisdiction.
<br /> penalties,costs and expenditures(including reasonable attorneys'fees and costs of Both parties agree to waive any demand for a trial byjury.
<br /> litigation defense and/or settlement)["Damages'l caused in whole or in part by the 24 0 CURING A BREACH
<br /> negligent acts,errors,or omissions of the CLIENT or CLIENT'S employees,agents,
<br /> staff,contractors,subcontractors,consultants,and clients,provided such Damages 24.1 A party that believes the other has materially breached these Terms shall issue a
<br /> are attributable to: (a)the bodily injury,personal injury,sickness,disease and/or written cure notice identifying its alleged grounds for termination.Both parties shall
<br /> death of any person;(b)the injury to or loss of value to tangible personal properly; promptly and in good faith attempt to identify a cure for the alleged breach or
<br /> or(c)a breach of these Terms. The foregoing indemnification shall not apply to the present facts showing the absence of such breach. If a cure can be agreed to or
<br /> extent such Damage is found to be caused by the sole negligence, errors, the matter otherwise resolved Within thirty(30)calendar days from the date of the
<br /> omissions or willful misconduct of ECS. termination notice, the parties shall commit their understandings to writing and
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay termination shall not occur.
<br /> an amount of Damages disproportional to ECS' culpability. IF CLIENT Is A 24.2 Either party may waive any right provided by these Terms in curing an actual or
<br /> HOMEOWNER,HOMEOWNERS'ASSOCIATION,CONDOMINIUM OWNER,CONDOMINIUM OWNER'S alleged breach; however, such Waiver Shall not affect future application of such
<br /> ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER,ECS RECOMMENDS THAT CLIENT RETAIN provision or any other provision.
<br /> LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S
<br /> RIGHTS AND OBLIGATIONS HEREUNDER,AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED 25,0 TERMINATION
<br /> BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH 25.1 CLIENT or ECS may terminate this agreement for breach or these terms, non-
<br /> COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON payment,or a failure to cooperate. In the event of termination,the effecting party
<br /> GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT, shall so notify the other party in writing and termination shall become effective
<br /> 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL fourteen(14)calendar days after receipt of the termination notice.
<br /> INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO 252 Irrespective of which party shall effect termination,or the cause therefore,ECS shall
<br /> INJURY 08 LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT-OWNERS, OR THEIR promptly render to CLIENT a final invoice and CLIENT shall immediately
<br /> HOMEOWNEH'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY compensate ECS for Services rendered and costs incurred including those Services
<br /> AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. associated With termination itself, including Without limitation, demobilizing,
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER modifying schedules,and reassigning personnel.
<br /> THIS SECTION 19.0 INCLUDETHE DUTY TO DEFEND.
<br /> 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any
<br /> 20.0 CONSEQUENTIAL DAMAGES Statute that may provide additional protection,CLIENT and ECS agree that a lawsuit by
<br /> 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any either party alleging a breach of this agreement,violation of the Standard of Care,non-
<br /> consequential damages incurred by either due to the fault of the other or their payment of invoices,or arising out of the Services provided hereunder,must be initiated in
<br /> employees, consultants, agents, contractors or subcontractors, regardless of the a court of competent jurisdiction no more than two(2)years from the time the party knew,or
<br /> nature of the fault or whether such liability arises in breach of contract or warranty, should have known,of the facts and conditions giving rise to Its claim,and shall under no
<br /> tort,statute,or any other cause of action. Consequential damages include,but are circumstances shall such lawsuit be initiated more than three(3)years from the date of
<br /> not limited to,loss of use and loss of profit. substantial completion of ECS'Services.
<br /> 20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by 27.0 ASSIGNMENT- LI ENT and ECS respectively bind themselves,their
<br /> CLIENT,for any liquidated damages due to any fault,or failure to act,in part or In successors,assigns,heirs,and legal representatives to the other party and the successors,
<br /> total by ECS,Its employees,agents,or subcontractors. assigns,heirs and legal representatives of such other party with respect to all covenants of
<br /> 21.0 SOURCES OF RECOVERY these Terms, Neither CLIENT nor ECS shall assign these Terms,any rights thereunder,or
<br /> any cause of action arising therefrom,in whole or in part,without the written consent of the
<br /> 21.1 All claims for damages related to the Services provided under this agreement shall other. Any purported assignment or transfer,except as permitted above,shall be deemed
<br /> be made against the ECS entity contracting with the CLIENT for the Services,and null,void and invalid,the purported assignee shall acquire no rights as a result of the
<br /> no other person or entity. CLIENT agrees that it shall not name any affiliated entity purported assignment or transfer and the non-assigning party shall not recognize any such
<br /> including parent, peer, or subsidiary entity or any individual officer, director, or purported assignment or transfer.
<br /> employee of ECS,specifically including its professional engineers and geologists.
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in 26.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,
<br /> connection with the Project and/or the Services,CLIENT and ECS agree that they or regulation,shall be deemed void,and all remaining provisions shall continue in full force
<br /> will look solely to each other for the satisfaction of any such dispute or claim. and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
<br /> Moreover,notwithstanding anything to the contrary contained in any other provision valid substitute that expresses the intent of the issues covered by the original provision.
<br /> herein, CLIENT and ECS' agree that their respective shareholders, principals, 29,0 SURVIVAL-All obligations arising prior to the termination of the agreement
<br /> partners,members,agents,directors,officers,employees,and/or owners shall have represented by these Terms and all provisions allocating responsibility or liability between
<br /> no liability whatsoever arising out of or In connection with the Project and/or the CLIENT and ECS shall survive the substantial completion of Services and the
<br /> Services provided hereunder. In the event CLIENT brings a claim against an termination of the agreement.
<br /> affiliated entity, parent entity, subsidiary entity, or individual officer, director or
<br /> employee in contravention of this Section 21,CLIENT agrees to hold ECS harmless 30.0 TITLES:ENTIRE AGREEMENT
<br /> from and against all damages, costs, awards, or fees(including attorneys'fees) 30.1 The titles used herein are for general reference only and are not part of the Terms
<br /> attributable to such act. and Conditions.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services 30.2 These Terms and Conditions of Service together with the Proposal,Including all
<br /> are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or exhibits, appendixes, and other documents appended to it, constitute the entire
<br /> ECS to benefit any other person or entity. To the extent that any other person or entity Is agreement between CLIENT and ECS. CLIENT acknowledges that all prior
<br /> benefited by the Services,such benefit Is purely incidental and such other person or entity understandings and negotiations are superseded by this agreement.
<br /> shall not be deemed a third party beneficiary to the AGREEMENT. No third-party shall 30.3 CLIENT and ECS agree that subsequent modifications to the agreement
<br /> have the right to rely on ECS'opinions rendered in connection with ECS'Services without represented by these shall not be binding unless made in writing and signed by
<br /> written consent from both CLIENT and ECS,which shall include,at a minimum,the third- authorized representatives of both parties.
<br /> party's agreement to be bound to the same Terms and Conditions contained herein and 30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work
<br /> third-party's agreement that ECS'Scope of Services performed is adequate. Authorization, or other service acknowledgement forms, are inapplicable and
<br /> 23.0 DISPUTE RESOLUTION superseded by these Terms and Conditions of Service.
<br /> 23.1 In the event any claims,disputes,and other mailers in question arising out of or 30.5 CLIENT's execution of a Work Authorization, the submission of a start work
<br /> relating to these Terms or breach thereof(collectively referred to as"Disputes"),the authorization(oral or written)or issuance of a purchase order constitutes CLIENT's
<br /> parties shall promptly attempt to resolve all such Disputes through executive acceptance of this Proposal and its agreement to be fully bound the foregoing
<br /> negotiation between senior representatives of both parties familiar with the Project. Terms. If CLIENT fails to provide ECS with a signed copy of these Terms or the
<br /> The parties shall arrange a mutually convenient time for the senior representative of attached Work Authorization,CLIENT agrees that by authorizing and accepting the
<br /> each party to meet. Such meeting shall occur within fifteen (15) days of either services of ECS,it will be fully bound by these Terms as if they had been signed by
<br /> party's written request for executive negotiation or as otherwise mutually agreed. CLIENT.
<br /> ECS Proposal No:06:17061 Ver.06/04/13
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