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ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742
<br />Terms and Conditions of Service
<br />LIMITATIONS, AND RESTRICTIONS IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF
<br />CLIENTTO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL
<br />NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT.
<br />19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL INDEMNIFY
<br />AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO INJURY OR
<br />LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT - OWNERS, OR THEIR HOMEOWNER'S
<br />ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY AGAINST CLIENT WHICH
<br />RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE.
<br />19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER
<br />THIS SECTION 19.0 INCLUDE THE DUTY TO DEFEND.
<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 consequential
<br />damages incurred by either due to the fault of the other or their employees, consultants, agents,
<br />contractors or subcontractors, regardless of the nature of the fault or whether such liability arises in
<br />breach of contract or warranty, tort, statute, or any other cause of action. Consequential damages
<br />include, but are not limited to, loss of use and loss of profit.
<br />20.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by CLIENT, for
<br />any liquidated damages due to any fault, or failure to act, in part or in total by ECS, its employees,
<br />agents, or subcontractors.
<br />21.0 SOURCES OF RECOVERY
<br />21.1 All claims for damages related to the Services provided under this agreement shall be made
<br />against the ECS entity contracting with the CLIENT for the Services, and no other person or entity.
<br />CLIENT agrees that it shall not name any affiliated entity including parent, peer, or subsidiary
<br />entity or any individual officer, director, or employee of ECS, specifically including its professional
<br />engineers and geologists.
<br />21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in connection with
<br />the Project and /or the Services, CLIENT and ECS agree that they will look solely to each other for
<br />the satisfaction of any such dispute or claim. Moreover, notwithstanding anything to the contrary
<br />contained in any other provision herein, CLIENT and ECS' agree that their respective shareholders,
<br />principals, partners, members, agents, directors, officers, employees, and /or owners shall have
<br />no liability whatsoever arising out of or in connection with the Project and /or Services provided
<br />hereunder. In the event CLIENT brings a claim against an affiliated entity, parent entity, subsidiary
<br />entity, or individual officer, director or employee in contravention of this Section 21, CLIENT agrees
<br />to hold ECS harmless from and against all damages, costs, awards, or fees (including attorneys' fees)
<br />attributable to such act.
<br />22.0 THIRD PARTY CLAIMS EXCLUSION - CLIENT and ECS agree that the Services are performed
<br />solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS to benefit any
<br />other person or entity. To the extent that any other person or entity is benefited by the Services,
<br />such benefit is purely incidental and such other person or entity shall not be deemed a third party
<br />beneficiary to the AGREEMENT. No third -parry shall have the right to rely on ECS' opinions rendered
<br />in connection with ECS' Services without written consent from both CLIENT and ECS, which shall
<br />include, at a minimum, the third - party's agreement to be bound to the same Terms and Conditions
<br />contained herein and third -party's agreement that ECS' Scope of Services performed is adequate.
<br />23.1 In the event any claims, disputes, and other matters in question arising out of or relating to
<br />these Terms or breach thereof (collectively referred to as "Disputes'), the parties shall promptly
<br />attempt to resolve all such Disputes through executive negotiation between senior representatives
<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. Should
<br />this meeting fail to result in a mutually agreeable plan for resolution of the Dispute, CLIENT and ECS
<br />agree that either party may bring litigation.
<br />23.2 CLIENT shall make no claim (whether directly or in the form of a third -party claim) against ECS
<br />unless CLIENT shall have first provided ECS with a written certification executed by an independent
<br />engineer licensed in thejurisdiction in which the Project is located, reasonably specifying each and
<br />every act or omission which the certifier contends constitutes a violation of the Standard of Care.
<br />Such certificate shall be a precondition to the institution of any judicial proceeding and shall be
<br />provided to ECS thirty (30) days prior to the institution of such judicial proceedings.
<br />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 />to these Terms and the Services provided pursuant to the Proposal shall be the laws of the
<br />Commonwealth of Virginia, but excluding its choice of law rules. Unless otherwise mutually agreed
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<br />to in writing by both parties, CLIENT waives the right to remove any litigation action to any other
<br />jurisdiction. Both parties agree to waive any demand for a trial byjury.
<br />24.0 CURING A BREACH
<br />24.1 A party that believes the other has materially breached these Terms shall issue a written cure
<br />notice identifying its alleged grounds for termination. Both parties shall promptly and in good faith
<br />attempt to identify a cure for the alleged breach or present facts showing the absence of such
<br />breach. If a cure can be agreed to or the matter otherwise resolved within thirty (30) calendar days
<br />from the date of the termination notice, the parties shall commit their understandings to writing
<br />and termination shall not occur.
<br />24.2 Either party maywaive any right provided bythese Terms in curing an actual or alleged breach;
<br />however, such waiver shall not affect future application of such provision or any other provision.
<br />25.0 TERMINATION
<br />25.1 CLIENT or ECS may terminate this agreement for breach or these terms, non - payment, or a
<br />failure to cooperate. In the event of termination, the effecting party shall so notify the other parry
<br />in writing and termination shall become effective fourteen (14) calendar days after receipt of the
<br />termination notice.
<br />25.2 Irrespective of which party shall effect termination, or the cause therefore, ECS shall promptly
<br />render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for Services
<br />rendered and costs incurred including those Services associated with termination itself, including
<br />without limitation, demobilizing modifying schedules, and reassigning personnel.
<br />26.0 TIME BAR TO LEGAL ACTION - Unless prohibited by law, and notwithstanding any Statute that
<br />may provide additional protection, CLIENT and ECS agree that a lawsuit by either party alleging a
<br />breach of this agreement, violation of the Standard of Care, non - payment of invoices, or arising out
<br />of the Services provided hereunder, must be initiated in a court of competent jurisdiction no more
<br />than two (2) years from the time the parry knew, or should have known, of the facts and conditions
<br />giving rise to its claim, and shall under no circumstances shall such lawsuit be initiated more than
<br />three (3) years from the date of substantial completion of ECS' Services.
<br />27.0 ASSIGNMENT - CLIENT and ECS respectively bind themselves, their successors, assigns, heirs,
<br />and legal representatives to the other party and the successors, assigns, heirs and legal
<br />representatives of such other party with respect to all covenants of these Terms. Neither CLIENT
<br />nor ECS shall assign these Terms, any rights thereunder, or any cause of action arising therefrom,
<br />in whole or in part, without the written consent ofthe other. Any purported assignment or transfer,
<br />except as permitted above, shall be deemed null, void and invalid, the purported assignee shall
<br />acquire no rights as a result of the purported assignment or transfer and the non - assigning party
<br />shall not recognize any such purported assignment or transfer.
<br />2R.0 SEVERABILITY - Any provision of these Terms later held to violate any law, statute, or
<br />regulation, shall be deemed void, and all remaining provisions shall continue in full force and effect.
<br />CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute that
<br />expresses the intent of the issues covered by the original provision.
<br />29.0 SURVIVAL - All obligations arising prior to the termination of the agreement represented by
<br />these Terms and all provisions allocating responsibility or liability between the CLIENT and ECS shall
<br />survive the substantial completion of Services and the termination of the agreement.
<br />30.0 TITLES, ENTIRE AGREEMENT
<br />30.1 The titles used herein are for general reference only and are not part of the Terms and
<br />Conditions.
<br />30.2 These Terms and Conditions of Service together with the Proposal, including all exhibits,
<br />appendixes, and other documents appended to it, constitute the entire agreement between CLIENT
<br />and ECS. CLIENT acknowledges that all prior understandings and negotiations are superseded by
<br />this agreement.
<br />30.3 CLIENT and ECS agree that subsequent modifications to the agreement represented by these
<br />shall not be binding unless made in writing and signed by authorized representatives of both
<br />parties.
<br />30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work Authorization, or other
<br />service acknowledgement forms, are inapplicable and superseded by these Terms and Conditions
<br />of Service.
<br />30.5 CLIENT's execution of a Work Authorization, the submission of a start work authorization (oral
<br />or written) or issuance of a purchase order constitutes CLIENTS acceptance of this Proposal and
<br />its agreement to be fully bound the foregoing Terms. If CLIENT fails to provide ECS with a signed
<br />copy of these Terms or the attached Work Authorization, CLIENT agrees that by authorizing and
<br />accepting the services of ECS, it will be fully bound by these Terms as if they had been signed by
<br />CLIENT.
<br />Ver. 06/04/13
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