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DocuSign Envelope ID:4D07A756-4236-4526-A1 D2-89F0777755FB
<br /> 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of any nature, 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)against
<br /> including bodily injury and property damage,arising directly or indirectly,in whole or in part,from ECS unless CLIENT shall have first provided ECS with a written certification executed by an
<br /> acts or omissions by the CLIENT,its employees,agents,staff,consultants,contractors,or independent engineer licensed in the jurisdiction in which the Project is located,reasonably
<br /> subcontractors to the extent such injury,damage,or loss is caused by acts or omissions of CLIENT, specifying each and every act or omission which the certifier contends constitutes a violation of
<br /> its employees,agents,staff,consultants,contractors,subcontractors or person/entities for whom the Standard of Care.Such certificate shall be a precondition to the institution of any judicial
<br /> CLIENT is legally liable. proceeding and shall be provided to ECS thirty(30)days prior to the institution of such judicial
<br /> 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this proceedings.
<br /> agreement or the services provided as a result of the Proposal be limited to$500,000. 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or district in
<br /> which ECS'office contracting with the CLIENT is located.The parties agree that the law applicable
<br /> 19.0 INDEMNIFICATION to these Terms and the Services provided pursuant to the Proposal shall be the laws of the
<br /> 19.1 Subject Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from and against Commonwealth of Virginia,but excluding its choice of law rules. Unless otherwise mutually agreed
<br /> damages arising from ECS'negligent performance of its Services,but only to the extent that such to in writing by both parties,CLIENT waives the right to remove any litigation action to any other
<br /> damages are found to be caused by ECS'negligent acts,errors or omissions,(specifically excluding jurisdiction. Both parties agree to waive any demand for a trial by jury.
<br /> any damages caused by any third party or by the CLIENT.)
<br /> 19.2 To the fullest extent permitted by Law,CLIENT agrees to indemnify,and hold ECS harmless 24.0 CURING A BREACH
<br /> from and against any and all liability,claims,damages,demands,fines,penalties,costs and 24.1 A party that believes the other has materially breached these Terms shall issue a written
<br /> expenditures(including reasonable attorneys'fees and costs of litigation defense and/or cure notice identifying its alleged grounds for termination.Both parties shall promptly and in good
<br /> settlement)["Damages")caused in whole or in part by the negligent acts,errors,or omissions of faith attempt to identify a cure for the alleged breach or present facts showing the absence of such
<br /> the CLIENT or CLIENT'S employees,agents,staff,contractors,subcontractors,consultants,and breach. If a cure can be agreed to or the matter otherwise resolved within thirty(30)calendar
<br /> clients,provided such Damages are attributable to:(a)the bodily injury,personal injury,sickness, days from the date of the termination notice,the parties shall commit their understandings to
<br /> disease and/or death of any person;(b)the injury to or loss of value to tangible personal property; writing and termination shall not occur.
<br /> or(c)a breach of these Terms. The foregoing indemnification shall not apply to the extent such 24.2 Either party may waive any right provided by these Terms in curing an actual or alleged
<br /> Damage is found to be caused by the sole negligence,errors,omissions or willful misconduct of breach;however,such waiver shall not affect future application of such provision or any other
<br /> ECS. provision.
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an
<br /> amount of Damages disproportional to ECS'culpability. IF CLIENT IS A HOMEOWNER,HOMEOWNERS' 25.0 TERMINATION
<br /> ASSOCIATION,CONDOMINIUM OWNER,CONDOMINIUM OWNER'S ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER,ECS 25.1 CLIENT or ECS may terminate this agreement for breach or these terms,non-payment,or a
<br /> RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S failure to cooperate. In the event of termination,the effecting party shall so notify the other party
<br /> RIGHTS AND OBLIGATIONS HEREUNDER,AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED BY THIS AGREEMENT. in writing and termination shall become effective fourteen(14)calendar days after receipt of the
<br /> CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL termination notice.
<br /> AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT. 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall
<br /> 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER,CLIENT SHALL INDEMNIFY AND HOLD promptly render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for
<br /> HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR MORE Services rendered and costs incurred including those Services associated with termination itself,
<br /> HOMEOWNERS,UNIT-OWNERS,OR THEIR HOMEOWNER'5 ASSOCIATION,COOPERATIVE BOARD,OR SIMILAR GOVERNING including without limitation,demobilizing,modifying schedules,and reassigning personnel.
<br /> ENTITY AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any Statute
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER THIS SECTION 19.0 that may provide additional protection,CLIENT and ECS agree that a lawsuit by either party
<br /> INCLUDE THE DUTY TO DEFEND. alleging a breach of this agreement,violation of the Standard of Care,non-payment of invoices,or
<br /> 20.0 CONSEQUENTIAL DAMAGES arising out of the Services provided hereunder,must be initiated in a court of competent
<br /> jurisdiction no more than two(2)years from the time the party knew,or should have known,of
<br /> 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any consequential the facts and conditions giving rise to its claim,and shall under no circumstances shall such lawsuit
<br /> damages incurred by either due to the fault of the other or their employees,consultants,agents, be initiated more than three(3)years from the date of substantial completion of ECS'Services.
<br /> contractors or subcontractors,regardless of the nature of the fault or whether such liability arises
<br /> in breach of contract or warranty,tort,statute,or any other cause of action. Consequential 27.0 ASSIGNMENT-CLIENT and ECS respectively bind themselves,their successors,assigns,
<br /> damages include,but are not limited to,loss of use and loss of profit. heirs,and legal representatives to the other party and the successors,assigns,heirs and legal
<br /> 20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by CLIENT,for representatives of such other party with respect to all covenants of these Terms. Neither CLIENT
<br /> any liquidated damages due to any fault,or failure to act,in part or in total by ECS,its employees, nor ECS shall assign these Terms,any rights thereunder,or any cause of action arising therefrom,
<br /> agents,or subcontractors. in whole or in part,without the written consent of the other. Any purported assignment or
<br /> transfer,except as permitted above,shall be deemed null,void and invalid,the purported assignee
<br /> 21.0 SOURCES OF RECOVERY shall acquire no rights as a result of the purported assignment or transfer and the non-assigning
<br /> 21.1 All claims for damages related to the Services provided under this agreement shall be made party shall not recognize any such purported assignment or transfer.
<br /> against the ECS entity contracting with the CLIENT for the Services,and no other person or entity.
<br /> 28.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,or
<br /> CLIENT agrees that it shall not name any affiliated entity including parent,peer,or subsidiary entity regulation,shall be deemed void,and all remaining provisions shall continue in full force and
<br /> or any individual officer,director,or employee of ECS,specifically including its professional effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute
<br /> engineers and geologists. that expresses the intent of the issues covered by the original provision.
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in connection
<br /> with the Project and/or the Services,CLIENT and ECS agree that they will look solely to each other 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement represented by
<br /> for the satisfaction of any such dispute or claim. Moreover,notwithstanding anything to the these Terms and all provisions allocating responsibility or liability between the CLIENT and ECS
<br /> contrary contained in any other provision herein,CLIENT and ECS'agree that their respective shall survive the substantial completion of Services and the termination of the agreement.
<br /> shareholders,principals,partners,members,agents,directors,officers,employees,and/or owners
<br /> shall have no liability whatsoever arising out of or in connection with the Project and/or Services 30.0 TITLES;ENTIRE AGREEMENT
<br /> provided hereunder. In the event CLIENT brings a claim against an affiliated entity,parent entity, 30.1 The titles used herein are for general reference only and are not part of the Terms and
<br /> subsidiary entity,or individual officer,director or employee in contravention of this Section 21, Conditions.
<br /> CLIENT agrees to hold ECS harmless from and against all damages,costs,awards,or fees(including 30.2 These Terms and Conditions of Service together with the Proposal,including all exhibits,
<br /> attorneys'fees)attributable to such act. appendixes,and other documents appended to it,constitute the entire agreement between
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services are performed CLIENT and ECS. CLIENT acknowledges that all prior understandings and negotiations are
<br /> solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS to benefit any superseded by this agreement.
<br /> other person or entity.To the extent that any other person or entity is benefited by the Services, 30.3 CLIENT and ECS agree that subsequent modifications to the agreement represented by
<br /> such benefit is purely incidental and such other person or entity shall not be deemed a third party these shall not be binding unless made in writing and signed by authorized representatives of both
<br /> beneficiary to the AGREEMENT. No third-party shall have the right to rely on ECS'opinions parties.
<br /> rendered in connection with ECS'Services without written consent from both CLIENT and ECS, 30.4 All preprinted terms and conditions on CLIENT'S purchase order,Work Authorization,or
<br /> which shall include,at a minimum,the third-party's agreement to be bound to the same Terms other service acknowledgement forms,are inapplicable and superseded by these Terms and
<br /> and Conditions contained herein and third-party's agreement that ECS'Scope of Services Conditions of Service.
<br /> performed is adequate. 30.5 CLIENT's execution of a Work Authorization,the submission of a start work authorization
<br /> 23.0 DISPUTE RESOLUTION (oral or written)or issuance of a purchase order constitutes CLIENT's acceptance of this Proposal
<br /> and its agreement to be fully bound the foregoing Terms. If CLIENT fails to provide ECS with a
<br /> 23.1 In the event any claims,disputes,and other matters in question arising out of or relating to signed copy of these Terms or the attached Work Authorization,CLIENT agrees that by authorizing
<br /> these Terms or breach thereof(collectively referred to as"Disputes"),the parties shall promptly and accepting the services of ECS,it will be fully bound by these Terms as if they had been signed
<br /> attempt to resolve all such Disputes through executive negotiation between senior representatives by CLIENT
<br /> of both parties familiar with the Project.The parties shall arrange a mutually convenient time for
<br /> the senior representative of each party to meet.Such meeting shall occur within fifteen(15)days
<br /> of either party's written request for executive negotiation or as otherwise mutually agreed.
<br /> Should this meeting fail to result in a mutually agreeable plan for resolution of the Dispute,CLIENT
<br /> and ECS agree that either party may bring litigation.
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