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ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742
<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
<br />subsequently modified in scope, structure or purpose without ECS' prior written consent. Any reuse
<br />without ECS' written consent shall be at CLIENTS sole risk and without liability to ECS or to ECS'
<br />subcontractor(s). CLIENT agrees to indemnify and hold ECS harmless for any errors, omissions
<br />or damage resulting from its use of ECS' Documents of Service after any modification in scope,
<br />structure or purpose.
<br />11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior
<br />written authorization of ECS. To the fullest extent permitted by law, CLIENT agrees to indemnify,
<br />defend, and hold ECS harmless from any damage, loss, claim, liability or cost (including reasonable
<br />attorneys' fees and defense costs) arising out of or in connection with any unauthorized
<br />modification of the Documents of Service by CLIENT or any person or entity that acquires or
<br />obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that
<br />the Documents of Service shall be used only as submitted by ECS.
<br />12.0 SAFETY
<br />12.1 Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall have no
<br />responsibility whatsoever for any aspect of site safety other than for its own employees. Nothing
<br />herein shall be construed to relieve CLIENT and /or its contractors, consultants or other parties from
<br />their responsibility for site safety. CLIENT also represents and warrants that the General Contractor
<br />is solely responsible for Project site safety and that ECS personnel may rely on the safety measures
<br />provided by the General Contractor.
<br />12.2 In the event ECS assumes in writing limited responsibility for specified safety issues, the
<br />acceptance of such responsibilities does not and shall not be deemed an acceptance of
<br />responsibility for any other non - specified safety issues, including, but not limited to those relating
<br />to excavating, trenching, shoring, drilling, backflling, blasting, or other construction activities.
<br />13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES
<br />13.1 CLIENT understands that construction testing and observation services are provided in an
<br />effort to reduce, but cannot eliminate, the risk of problems arising during or after construction
<br />or remediation. CLIENT agrees that the provision of such Services does not create a warranty or
<br />guarantee ofanytype.
<br />13.2 Monitoring and /or testing services provided by ECS shall not in any way relieve the CLIENTS
<br />contractor(s) from their responsibilities and obligations for the quality or completeness of
<br />construction as well as their obligation to comply with applicable laws, codes, and regulations.
<br />13.3 ECS has no responsibility whatsoever for the means, methods, techniques, sequencing or
<br />procedures of construction selected, for safety precautions and programs incidental to work or
<br />services provided by any contractor or other consultant. ECS does not and shall not have or accept
<br />authority to supervise, direct, control, or stop the work of any contractor or consultant or any of
<br />their subcontractors or subconsultants.
<br />13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and
<br />testing services on a full time basis to lower the risk of defective or incomplete Work being installed
<br />by CLIENTS contractor(s). If CLIENT elects to retain ECS on a part time basis for any aspect of
<br />construction monitoring and /or testing, CLIENT accepts the risks that a lower level of construction
<br />quality may occur and that defective or incomplete work may result and not be detected by
<br />ECS' part time monitoring and testing. Unless the CLIENT can show that the error or omission
<br />is contained in ECS' reports, CLIENT waives, releases and discharges ECS from and against any
<br />other claims for errors, omissions, damages, injuries, or loss alleged to arise from defective or
<br />incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth
<br />in the preceding sentence, CLIENT agrees to indemnify and hold ECS harmless from all damages,
<br />costs, and attorneys fees, for any claims alleging errors, omissions, damage, injury or loss allegedly
<br />resulting from Work that was monitored or tested by ECS on a part time basis.
<br />14.0 CERTIFICATIONS - CLIENT may request, or governing jurisdictions may require, ECS to provide
<br />a "certification" regarding the Services provided by ECS. Any "certification" required of ECS by the
<br />CLIENT or jurisdiction(s) having authority over some or all aspects of the Project shall consist of
<br />ECS' inferences and professional opinions based on the limited sampling, observations, tests, and/
<br />or analyses performed by ECS at discrete locations and times. Such "certifications" shall constitute
<br />ECS' professional opinion of a condition's existence, but ECS does not guarantee that such condition
<br />exists, nor does it relieve other parties of the responsibilities or obligations such parties have with
<br />respect to the possible existence of such a condition. CLIENT agrees it cannot make the resolution
<br />of any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing any
<br />such "certification."
<br />15.1 Billings will be based on the unit rates, plus travel costs, and other reimbursable expenses
<br />as stated in the Professional Fees section of the Proposal. Any Estimate of Professional Fees
<br />stated in these Terms shall not be considered as a not -to- exceed or lump sum amount unless
<br />otherwise explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or
<br />not -to- exceed amount, that amount shall be limited to number of hours, visits, trips, tests, borings,
<br />or samples stated in the Proposal.
<br />15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to
<br />account for inflation based on the most recent 12 -month average of the Consumer Price Index
<br />(CPI -U) for all items as established bywww.bls.gov when the CPI -U exceeds an annual rate of 2.0 %.
<br />15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the Changed
<br />Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the
<br />Scope of Services, Professional Fees, and time schedule.
<br />15.4 CLIENT recognizes that time is ofthe essence with respect to payment of ECS' invoices, and that
<br />timely payment is a material consideration for this agreement. All payment shall be in U.S. funds
<br />drawn upon U.S. banks and in accordance with the rates and charges set forth in the Professional
<br />Fees. Invoices are due and payable upon receipt.
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<br />pay the undisputed amount of such invoice promptly.
<br />15.6 ECS reserves the right to charge CLIENT an additional charge of one - and - one -half (1.5) percent
<br />(or the maximum percentage allowed by Law, whichever is lower) of the invoiced amount per
<br />month for any payment received by ECS more than thirty (30) calendar days from the date of the
<br />invoice, excepting any portion of the invoiced amount in dispute. All payments will be applied to
<br />accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be
<br />subject to unilateral discounting or set -offs by CLIENT.
<br />15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENTS
<br />ability to obtain financing, zoning, approval of governmental or regulatory agencies, permits, final
<br />adjudication of a lawsuit, CLIENTS successful completion ofthe Project, settlement of a real estate
<br />transaction, receipt of payment from CLIENTS client, or any other event unrelated to ECS provision
<br />of Services. Retainage shall not be withheld from any payment, nor shall any deduction be made
<br />from any invoice on account of penalty, liquidated damages, or other sums incurred by CLIENT. It is
<br />agreed that all costs and legal fees including actual attorney's fees, and expenses incurred by ECS in
<br />obtaining payment under this Agreement, in perfecting or obtaining a lien, recovery under a bond,
<br />collecting any delinquent amounts due, or executing judgments, shall be reimbursed by CLIENT.
<br />15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br />payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS' Services and
<br />is not aware of any defects in those Services.
<br />16.0 DEFECTS IN SERVICE
<br />16.1 CLIENT, its personnel, its consultants, and its contractors shall promptly inform ECS during
<br />active work on any project of any actual or suspected defects in the Services so to permit ECS to
<br />take such prompt, effective remedial measures that in ECS' opinion will reduce or eliminate the
<br />consequences of any such defective Services. The correction of defects attributable to ECS' failure to
<br />perform in accordance with the Standard of Care shall be provided at no cost to CLIENT. However,
<br />ECS shall not be responsible for the correction of any deficiency attributable to CLIENT - furnished
<br />information, the errors, omissions, defective materials, or improper installation of materials by
<br />CLIENTS personnel, consultants or contractors, or work not observed by ECS. CLIENT shall
<br />compensate ECS for the costs of correcting such defects.
<br />16.2 Modifications to reports, documents and plans required as a result of jurisdictional reviews
<br />or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the
<br />provision of such Services.
<br />17.0 INSURANCE - ECS represents that it and its subcontractors and subconsultants maintain
<br />Workers Compensation insurance, and that ECS is covered by general liability, automobile and
<br />professional liability insurance policies in coverage amounts it deems reasonable and adequate.
<br />ECS shall furnish certificates of insurance upon request. The CLIENT is responsible for requesting
<br />specific inclusions or limits of coverage that are not present in ECS insurance package. The cost of
<br />such inclusions or coverage increases, if available, will be at the expense ofthe CLIENT.
<br />18.0 LIMITATION OF LIABILITY
<br />18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br />ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E. PROFESSIONAL
<br />ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING NEGLIGENCE, STRICT
<br />LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES, DAMAGES, CLAIMS,
<br />LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) RELATING
<br />TO PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT
<br />PERMITTED BY LAW. THE ALLOCATION IS AS FOLLOWS.
<br />18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to CLIENT
<br />shall not exceed $20,000, or the total fee received for the services rendered, whichever is
<br />greater.
<br />18.1.2 If the proposed fees are in excess of $10,000, ECS'total aggregate liability to CLIENT
<br />shall not exceed $40,000, or the total fee for the services rendered, whichever is greater.
<br />18.2 CLIENT agrees that ECS shall not be responsible for any injury, loss or damage of any nature,
<br />including bodily injury and property damage, arising directly or indirectly, in whole or in part,
<br />from acts or omissions by the CLIENT, its employees, agents, staff, consultants, contractors, or
<br />subcontractors to the extent such injury, damage, or loss is caused by acts or omissions of CLIENT,
<br />its employees, agents, staff, consultants, contractors, subcontractors or person /entities for whom
<br />CLIENT is legally liable.18.3 CLIENT agrees that ECS' liability for all non - professional liability arising
<br />out of this agreement or the services provided as a result ofthe Proposal be limited to $500,000.
<br />19.0 INDEMNIFICATION
<br />19.1 Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from and against
<br />damages arising from ECS' negligent performance of its Services, but only to the extent that such
<br />damages are found to be caused by ECS' negligent acts, errors or omissions, (specifically excluding
<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
<br />from and against any and all liability, claims, damages, demands, fines, penalties, costs and
<br />expenditures (including reasonable attorneys' fees and costs of litigation defense and /or
<br />settlement) [ "Damages"] caused in whole or in part by the negligent acts, errors, or omissions ofthe
<br />CLIENT or CLIENTS employees, agents, staff, contractors, subcontractors, consultants, and clients,
<br />provided such Damages are attributable to: (a) the bodily injury, personal injury, sickness, disease
<br />and /or death of any person; (b) the injury to or loss of value to tangible personal property; or (c) a
<br />breach of these Terms. The foregoing indemnification shall not apply to the extent such Damage is
<br />found to be caused by the sole negligence, errors, omissions or willful misconduct of ECS.
<br />19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an amount
<br />of Damages disproportional to ECS' culpability. IF CLIENT IS A HOMEOWNER, HOMEOWNERS'
<br />ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR
<br />RESIDENTIAL OWNER, ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING
<br />INTO THIS AGREEMENT TO EXPLAIN CLIENTS RIGHTS AND OBLIGATIONS HEREUNDER, AND THE
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