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<br /> Terms and Conditions of Service
<br /> agrees to indemnify and hold ECS harmless for any errors,omissions or damage resulting from its 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written notice stating
<br /> contractors'use of ECS'Documents of Service. in detail the facts of the dispute within fifteen(15)calendar days of the invoice.CLIENT agrees to
<br /> 11.3 CLIENT agrees to not use ECS' Documents of Service for the Project if the Project is pay the undisputed amount of such invoice promptly.
<br /> subsequently modified in scope,structure or purpose without ECS'prior written consent.Any reuse 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half(1.5)percent
<br /> without ECS'written consent shall be at CLIENT'S sole risk and without liability to ECS or to ECS' (or the maximum percentage allowed by Law,whichever is lower)of the invoiced amount per
<br /> subcontractor(s).CLIENT agrees to indemnify and hold ECS harmless for any errors,omissions month for any payment received by ECS more than thirty(30)calendar days from the date of the
<br /> or damage resulting from its use of ECS'Documents of Service after any modification in scope, invoice,excepting any portion of the invoiced amount in dispute.All payments will be applied to
<br /> structure or purpose. accrued interest first and then to the unpaid principal amount.Payment of invoices shall not be
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior subject to unilateral discounting or set-offs by CLIENT.
<br /> written authorization of ECS.To the fullest extent permitted by law,CLIENT agrees to indemnify, 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S
<br /> defend,and hold ECS harmless from any damage,loss,claim,liability or cost(including reasonable ability to obtain financing,zoning,approval of governmental or regulatory agencies,permits,final
<br /> attorneys' fees and defense costs) arising out of or in connection with any unauthorized adjudication of a lawsuit,CLIENT'S successful completion of the Project,settlement of a real estate
<br /> modification of the Documents of Service by CLIENT or any person or entity that acquires or transaction,receipt of payment from CLIENT'S client,or any other event unrelated to ECS provision
<br /> obtains the Documents of Service from or through CLIENT.CLIENT represents and warrants that of Services.Retainage shall not be withheld from any payment,nor shall any deduction be made
<br /> the Documents of Service shall be used only as submitted by ECS. from any invoice on account of penalty,liquidated damages,or other sums incurred by CLIENT.It is
<br /> 12.0 SAFETY agreed that all costs and legal fees including actual attorney's fees,and expenses incurred by ECS in
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall have no obtaining payment under this Agreement,in perfecting or obtaining a lien,recovery under a bond,
<br /> responsibility whatsoever for any aspect of site safety other than for its own employees.Nothing collecting any delinquent amounts due,or executing judgments,shall be reimbursed by CLIENT.
<br /> herein shall be construed to relieve CLIENT and/or its contractors,consultants or other parties from 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br /> their responsibility for site safety.CLIENT also represents and warrants that the General Contractor payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS'Services and
<br /> is solely responsible for Project site safety and that ECS personnel may rely on the safety measures is not aware of any defects in those Services.
<br /> provided by the General Contractor. 16.0 DEFECTS IN SERVICE
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues,the 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS during
<br /> acceptance of such responsibilities does not and shall not be deemed an acceptance of active work on any project of any actual or suspected defects in the Services so to permit ECS to
<br /> responsibility for any other non-specified safety issues,including,but not limited to those relating take such prompt,effective remedial measures that in ECS'opinion will reduce or eliminate the
<br /> to excavating,trenching,shoring,drilling,backfilling,blasting,or other construction activities. consequences of any such defective Services.The correction of defects attributable to ECS'failure to
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES perform in accordance with the Standard of Care shall be provided at no cost to CLIENT.However,
<br /> 13.1 CLIENT understands that construction testing and observation services are provided in an ECS shall not be responsible for the correction of any deficiency attributable to CLIENT-furnished
<br /> effort to reduce,but cannot eliminate,the risk of problems arising during or after construction information,the errors,omissions,defective materials,or improper installation of materials by
<br /> or remediation.CLIENT agrees that the provision of such Services does not create a warranty or CLIENT's personnel, consultants or contractors, or work not observed by ECS. CLIENT shall
<br /> guarantee of any type. compensate ECS for the costs of correcting such defects.
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the CLIENT'S 16.2 Modifications to reports,documents and plans required as a result of jurisdictional reviews
<br /> contractor(s) from their responsibilities and obligations for the quality or completeness of or CLIENT requests shall not be considered to be defects.CLIENT shall compensate ECS for the
<br /> construction as well as their obligation to comply with applicable laws,codes,and regulations. provision of such Services.
<br /> 13.3 ECS has no responsibility whatsoever for the means,methods,techniques,sequencing or 17.0 INSURANCE-ECS represents that it and its subcontractors and subconsultants maintain
<br /> procedures of construction selected,for safety precautions and programs incidental to work or Workers Compensation insurance,and that ECS is covered by general liability,automobile and
<br /> services provided by any contractor or other consultant.ECS does not and shall not have or accept professional liability insurance policies in coverage amounts it deems reasonable and adequate.
<br /> authority to supervise,direct,control,or stop the work of any contractor or consultant or any of ECS shall furnish certificates of insurance upon request.The CLIENT is responsible for requesting
<br /> their subcontractors or subconsultants. specific inclusions or limits of coverage that are not present in ECS insurance package.The cost of
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and such inclusions or coverage increases,if available,will be at the expense of the CLIENT.
<br /> testing services on a full time basis to lower the risk of defective or incomplete Work being installed 18.0 LIMITATION OF LIABILITY
<br /> by CLIENT'S contractor(s).If CLIENT elects to retain ECS on a part time basis for any aspect of 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> construction monitoring and/or testing,CLIENT accepts the risks that a lower level of construction ECS'TOTAL LIABILITY TO CLIENT ARISING FROM ECS'PROFESSIONAL LIABILITY,I.E.PROFESSIONAL
<br /> quality may occur and that defective or incomplete work may result and not be detected by ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING NEGLIGENCE,STRICT
<br /> ECS'part time monitoring and testing.Unless the CLIENT can show that the error or omission LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES, DAMAGES, CLAIMS,
<br /> is contained in ECS'reports,CLIENT waives,releases and discharges ECS from and against any LOSSES,EXPENSES,OR CLAIM EXPENSES(INCLUDING REASONABLE ATTORNEY'S FEES)RELATING
<br /> other claims for errors,omissions,damages,injuries,or loss alleged to arise from defective or TO PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT
<br /> incomplete work that was monitored or tested by ECS on a part time basis.Except as set forth PERMITTED BY LAW.THE ALLOCATION IS AS FOLLOWS.
<br /> in the preceding sentence,CLIENT agrees to indemnify and hold ECS harmless from all damages, 18.1.1 If the proposed fees are$10,000 or less, ECS'total aggregate liability to CLIENT
<br /> costs,and attorneys'fees,for any claims alleging errors,omissions,damage,injury or loss allegedly shall not exceed$20,000,or the total fee received for the services rendered,whichever is
<br /> resulting from Work that was monitored or tested by ECS on a part time basis. greater.
<br /> 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require,ECS to provide 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to CLIENT
<br /> a"certification"regarding the Services provided by ECS.Any"certification"required of ECS by the shall not exceed$40,000,or the total fee for the services rendered,whichever is greater.
<br /> CLIENT or jurisdiction(s)having authority over some or all aspects of the Project shall consist of 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of any nature,
<br /> ECS'inferences and professional opinions based on the limited sampling,observations,tests,and/ including bodily injury and property damage, arising directly or indirectly, in whole or in part,
<br /> or analyses performed by ECS at discrete locations and times.Such"certifications"shall constitute from acts or omissions by the CLIENT,its employees,agents,staff,consultants,contractors,or
<br /> ECS'professional opinion ofa condition's existence,but ECS does not guarantee that such condition subcontractors to the extent such injury,damage,or loss is caused by acts or omissions of CLIENT,
<br /> exists,nor does it relieve other parties of the responsibilities or obligations such parties have with its employees,agents,staff,consultants,contractors,subcontractors or person/entities for whom
<br /> respect to the possible existence of such a condition.CLIENT agrees it cannot make the resolution CLIENT is legally liable.18.3 CLIENT agrees that ECS'liability for all non-professional liability arising
<br /> of any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing any out of this agreement or the services provided as a result of the Proposal be limited to$500,000.
<br /> such"certification." 19.0 INDEMNIFICATION
<br /> 15.0 BILLINGS AND PAYMENTS 19.1 Subject Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from and against
<br /> 15.1 Billings will be based on the unit rates,plus travel costs,and other reimbursable expenses damages arising from ECS'negligent performance of its Services,but only to the extent that such
<br /> as stated in the Professional Fees section of the Proposal.Any Estimate of Professional Fees damages are found to be caused by ECS'negligent acts,errors or omissions,(specifically excluding
<br /> stated in these Terms shall not be considered as a not-to-exceed or lump sum amount unless any damages caused by any third party or by the CLIENT.)
<br /> otherwise explicitly stated.CLIENT understands and agrees that even if ECS agrees to a lump sum or 19.2 To the fullest extent permitted by Law,CLIENT agrees to indemnify,and hold ECS harmless
<br /> not-to-exceed amount,that amount shall be limited to number of hours,visits,trips,tests,borings, from and against any and all liability, claims, damages, demands, fines, penalties, costs and
<br /> or samples stated in the Proposal. expenditures (including reasonable attorneys' fees and costs of litigation defense and/or
<br /> 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to settlement)["Damages"]caused in whole or in part by the negligent acts,errors,or omissions of the
<br /> account for inflation based on the most recent 12-month average of the Consumer Price Index CLIENT or CLIENT'S employees,agents,staff,contractors,subcontractors,consultants,and clients,
<br /> (CPI-U)for all items as established bywww.bls.govwhen the CPI-U exceeds an annual rate of 2.0%. provided such Damages are attributable to:(a)the bodily injury,personal injury,sickness,disease
<br /> 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the Changed and/or death of any person;(b)the injury to or loss of value to tangible personal property;or(c)a
<br /> Condition(s).ECS and CLIENT shall promptly and in good faith negotiate an amendment to the breach of these Terms.The foregoing indemnification shall not apply to the extent such Damage is
<br /> Scope of Services,Professional Fees,and time schedule. found to be caused by the sole negligence,errors,omissions or willful misconduct of ECS.
<br /> 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'invoices,and that 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an amount
<br /> timely payment is a material consideration for this agreement.All payment shall be in U.S.funds of Damages disproportional to ECS'culpability. IF CLIENT IS A HOMEOWNER, HOMEOWNERS'
<br /> drawn upon U.S.banks and in accordance with the rates and charges set forth in the Professional ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR
<br /> Fees.Invoices are due and payable upon receipt. RESIDENTIAL OWNER,ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING
<br /> INTO THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS AND OBLIGATIONS HEREUNDER,AND THE
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