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DocuSign Envelope ID: 59E8E223- 3519- 4CD9- B63D- 6B5A82C32C26
<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, from
<br />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.
<br />18.3 CLIENT agrees that ECS' liability for all non-professional liability arising out ofthis
<br />agreement or the services provided as a result of the 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 of
<br />the CLIENT or CLIENT'S employees, agents, staff, contractors, subcontractors, consultants, and
<br />clients, provided such Damages are attributable to: (a) the bodily injury, personal injury, sickness,
<br />disease and /or death of any person; (b) the injury to or loss of value to tangible personal property,
<br />or (c) a breach of these Terms. The foregoing indemnification shall not apply to the extent such
<br />Damage is found to be caused by the sole negligence, errors, omissions or willful misconduct of
<br />ECS.
<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'
<br />ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER, ECS
<br />RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S
<br />RIGHTS AND OBLIGATIONS HEREUNDER, AND THE LIMITATIONS, AND RESTRICTIONS IMPOSED BY THIS AGREEMENT.
<br />CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL
<br />AND SHALL 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 AND HOLD
<br />HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR MORE
<br />HOMEOWNERS, UNIT- OWNERS, OR THEIR HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING
<br />ENTITY AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE.
<br />19.5 IN NO EVENT SHALL THE DUN TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER THIS SECTION 19.0
<br />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
<br />in breach of contractor warranty, tort, statute, or any other cause of action. Consequential
<br />damages 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 entity
<br />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
<br />with the Project and /or the Services, CLIENT and ECS agree that they will look solely to each other
<br />for the satisfaction of any such dispute or claim. Moreover, notwithstanding anything to the
<br />contrary contained in any other provision herein, CLIENT and ECS' agree that their respective
<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
<br />provided hereunder. In the event CLIENT brings a claim against an affiliated entity, parent entity,
<br />subsidiary entity, or individual officer, director or employee in contravention of this Section 21,
<br />CLIENT agrees to hold ECS harmless from and against all damages, costs, awards, or fees (including
<br />attorneys' fees) 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 -party shall have the right to rely on ECS' opinions
<br />rendered in connection with ECS' Services without written consent from both CLIENT and ECS,
<br />which shall include, at a minimum, the third - party's agreement to be bound to the same Terms
<br />and Conditions contained herein and third - party's agreement that ECS' Scope of Services
<br />performed is adequate.
<br />23.0 DISPUTE RESOLUTION
<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.
<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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<br />23.2 CLIENT shall make no claim (whether directly or in the form of a third -party claim) against
<br />ECS unless CLIENT shall have first provided ECS with a written certification executed by an
<br />independent engineer licensed in the jurisdiction in which the Project is located, reasonably
<br />specifying each and every act or omission which the certifier contends constitutes a violation of
<br />the Standard of Care. Such certificate shall be a precondition to the institution of any judicial
<br />proceeding and shall be provided to ECS thirty (30) days prior to the institution of such judicial
<br />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
<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
<br />cure notice identifying its alleged grounds for termination. Both parties shall promptly and in good
<br />faith 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
<br />days from the date of the termination notice, the parties shall commit their understandings to
<br />writing and termination shall not occur.
<br />24.2 Either party may waive any right provided by these Terms in curing an actual or alleged
<br />breach; however, such waiver shall not affect future application of such provision or any other
<br />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 party
<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
<br />promptly render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for
<br />Services rendered and costs incurred including those Services associated with termination itself,
<br />including without limitation, demobilizing, modifying schedules, and reassigning personnel.
<br />26.0 TIME BAR TO LEGAL ACTION -Unless prohibited bylaw, and notwithstanding any Statute
<br />that may provide additional protection, CLIENT and ECS agree that a lawsuit by either party
<br />alleging a breach of this agreement, violation of the Standard of Care, non - payment of invoices, or
<br />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 />the facts and conditions giving rise to its claim, and shall under no circumstances shall such lawsuit
<br />be initiated more than 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,
<br />heirs, 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 of the other. Any purported assignment or
<br />transfer, except as permitted above, shall be deemed null, void and invalid, the purported assignee
<br />shall acquire no rights as a result of the purported assignment or transfer and the non - assigning
<br />party shall not recognize any such purported assignment or transfer.
<br />28.0 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
<br />effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute
<br />that expresses the intent of the issues covered bythe 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
<br />shall 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
<br />CLIENT and ECS. CLIENT acknowledges that all prior understandings and negotiations are
<br />superseded by this agreement.
<br />30.3 CLIENT and ECS agree that subsequent modifications to the agreement represented by
<br />these 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
<br />other service acknowledgement forms, are inapplicable and superseded by these Terms and
<br />Conditions of Service.
<br />30.5 CLIENT's execution of a Work Authorization, the submission of a start work authorization
<br />(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 />signed copy of these Terms or the attached Work Authorization, CLIENT agrees that by authorizing
<br />and accepting the services of ECS, it will be fully bound by these Terms as if they had been signed
<br />by CLIENT
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