|
DocuSi n Envelope ID: 12E28A19 -47D1- 4964- 983E- 1BE3535E0848
<br />Orange . ECS Southeast, LLP
<br />Management 4• •
<br />Terms and Conditions of Service
<br />LIMITATIONS, AND RESTRICTIONS IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF
<br />CLIENT TO 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 />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 />24.1 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 />19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER and termination shall not occur.
<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 ofthe nature ofthe fault orwhether 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 25.2 Irrespective of which party shall effect termination, or the cause therefore, ECS shall promptly
<br />any liquidated damages due to any fault, or failure to act, in part or in total by ECS, its employees, render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for Services
<br />agents, or subcontractors. rendered and costs incurred including those Services associated with termination itself, including
<br />21.0 SOURCES OF RECOVERY without limitation, demobilizing, modifying schedules, and reassigning personnel.
<br />24.2 Either parry may waive any right provided by these 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 />25.1 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 />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, orfees (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 -party 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 agreementto 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 />23.0 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 parry 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 ofthe 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 -parry claim) against ECS
<br />unless CLIENT shall have first provided ECS with a written certification executed by an independent
<br />engineer licensed in the jurisdiction 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 />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 parry alleging a
<br />breach of this agreement, violation ofthe Standard of Care, non - payment of invoices, or arising out
<br />ofthe Services provided hereunder, must be initiated in a court of competent jurisdiction no more
<br />than two (2) years from the time the party knew, or should have known, ofthe 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 />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 effect.
<br />CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute that
<br />expresses the intent ofthe 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 ofthe 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 CLIENT's 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 />which ECS' office contracting with the CLIENT is located. The parties agree that the law applicable accepting the services of ECS, it will be fully bound by these Terms as if they had been signed by
<br />to these Terms and the Services provided pursuant to the Proposal shall be the laws of the CLIENT.
<br />Commonwealth of Virginia, but excluding its choice of law rules. Unless otherwise mutually agreed Ver. 06/04/13
<br />Page 9
<br />ErCK"'
<br />
|