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DocuSign Envelope ID: AFOFC7DF- FDAD- 4E58- A786- 72F744EA8560
<br />or loss is caused by acts or omissions of CLIENT, its employees, agents, staff,
<br />consultants, contractors, subcontractors or person /entities for whom CLIENT is
<br />legally liable.
<br />18.3 CLIENT agrees that ECS' liability for all non - professional liability arising out of this
<br />agreement or the services provided as a result of the Proposal be limited to
<br />$500,000.
<br />19.0
<br />19.1
<br />IRPX
<br />19.3
<br />19.4
<br />19.5
<br />20.0
<br />20.1
<br />20.2
<br />21.0
<br />21.1
<br />21.2
<br />INDEMNIFICATION
<br />Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from
<br />and against damages arising from ECS' negligent performance of its Services, but
<br />only to the extent that such damages are found to be caused by ECS' negligent
<br />acts, errors or omissions, (specifically excluding any damages caused by any third
<br />party or by the CLIENT.)
<br />To the fullest extent permitted by Law, CLIENT agrees to indemnify, and hold ECS
<br />harmless from and against any and all liability, claims, damages, demands, fines,
<br />penalties, costs and expenditures (including reasonable attorneys' fees and costs of
<br />litigation defense and /or settlement) [ "Damages "] caused in whole or in part by the
<br />negligent acts, errors, or omissions of the CLIENT or CLIENT'S employees, agents,
<br />staff, contractors, subcontractors, consultants, and clients, provided such Damages
<br />are attributable to: (a) the bodily injury, personal injury, sickness, disease and /or
<br />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
<br />extent such Damage is found to be caused by the sole negligence, errors,
<br />omissions or willful misconduct of ECS.
<br />It is specifically understood and agreed that in no case shall ECS be required to pay
<br />an amount of Damages disproportional to ECS' culpability. IF CLIENT Is A
<br />HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S
<br />ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER, ECS RECOMMENDS THAT CLIENT RETAIN
<br />LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT To EXPLAIN CLIENT'S
<br />RIGHTS AND OBLIGATIONS HEREUNDER, AND THE LIMITATIONS, AND RESTRICTIONS IMPOSED
<br />BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH
<br />COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON
<br />GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT.
<br />IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL
<br />INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO
<br />INJURY OR LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT - OWNERS, OR THEIR
<br />HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY
<br />AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE.
<br />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 />CONSEQUENTIAL DAMAGES
<br />CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any
<br />consequential damages incurred by either due to the fault of the other or their
<br />employees, consultants, agents, contractors or subcontractors, regardless of the
<br />nature of the fault or whether such liability arises in breach of contract or warranty,
<br />tort, statute, or any other cause of action. Consequential damages include, but are
<br />not limited to, loss of use and loss of profit.
<br />ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by
<br />CLIENT, for any liquidated damages due to any fault, or failure to act, in part or in
<br />total by ECS, its employees, agents, or subcontractors.
<br />SOURCES OF RECOVERY
<br />All claims for damages related to the Services provided under this agreement shall
<br />be made against the ECS entity contracting with the CLIENT for the Services, and
<br />no other person or entity. CLIENT agrees that it shall not name any affiliated entity
<br />including parent, peer, or subsidiary entity or any individual officer, director, or
<br />employee of ECS, specifically including its professional engineers and geologists.
<br />In the event of any dispute or claim between CLIENT and ECS arising out of in
<br />connection with the Project and /or the Services, CLIENT and ECS agree that they
<br />will look solely to each other for the satisfaction of any such dispute or claim.
<br />Moreover, notwithstanding anything to the contrary contained in any other provision
<br />herein, CLIENT and ECS' agree that their respective shareholders, principals,
<br />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
<br />Services provided hereunder. In the event CLIENT brings a claim against an
<br />affiliated entity, parent entity, subsidiary entity, or individual officer, director or
<br />employee in contravention of this Section 21, CLIENT agrees to hold ECS harmless
<br />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
<br />are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or
<br />ECS to benefit any other person or entity. To the extent that any other person or entity is
<br />benefited by the Services, such benefit is purely incidental and such other person or entity
<br />shall not be deemed a third party beneficiary to the AGREEMENT. No third -party shall
<br />have the right to rely on ECS' opinions rendered in connection with ECS' Services without
<br />written consent from both CLIENT and ECS, which shall include, at a minimum, the third -
<br />party's agreement to be bound to the same Terms and Conditions contained herein and
<br />third - party's agreement that ECS' Scope of Services performed is adequate.
<br />Should this meeting fail to result in a mutually agreeable plan for resolution of the
<br />Dispute, CLIENT and ECS 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)
<br />against ECS unless CLIENT shall have first provided ECS with a written certification
<br />executed by an independent engineer licensed in the jurisdiction in which the
<br />Project is located, reasonably specifying each and every act or omission which the
<br />certifier contends constitutes a violation of the Standard of Care. Such certificate
<br />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
<br />district in which ECS' office contracting with the CLIENT is located. The parties
<br />agree that the law applicable to these Terms and the Services provided pursuant to
<br />the Proposal shall be the laws of the Commonwealth of Virginia, but excluding its
<br />choice of law rules. Unless otherwise mutually agreed to in writing by both parties,
<br />CLIENT waives the right to remove any litigation action to any other jurisdiction.
<br />Both parties agree to waive any demand for a trial by jury.
<br />24.0 CURING A BREACH
<br />24.1 A party that believes the other has materially breached these Terms shall issue a
<br />written cure notice identifying its alleged grounds for termination. Both parties shall
<br />promptly and in good faith attempt to identify a cure for the alleged breach or
<br />present facts showing the absence of such breach. If a cure can be agreed to or
<br />the matter otherwise resolved within thirty (30) calendar days from the date of the
<br />termination notice, the parties shall commit their understandings to writing and
<br />termination shall not occur.
<br />24.2 Either party may waive any right provided by these Terms in curing an actual or
<br />alleged breach; however, such waiver shall not affect future application of such
<br />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-
<br />payment, or a failure to cooperate. In the event of termination, the effecting party
<br />shall so notify the other party in writing and termination shall become effective
<br />fourteen (14) calendar days after receipt of the 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
<br />compensate ECS for Services rendered and costs incurred including those Services
<br />associated with termination itself, including without limitation, demobilizing,
<br />modifying schedules, and reassigning personnel.
<br />26.0 TIME BAR TO LEGAL ACTION - Unless prohibited by law, and notwithstanding any
<br />Statute that may provide additional protection, CLIENT and ECS agree that a lawsuit by
<br />either party alleging a breach of this agreement, violation of the Standard of Care, non-
<br />payment of invoices, or arising out of the Services provided hereunder, must be initiated in
<br />a court of competent jurisdiction no more than two (2) years from the time the party knew, or
<br />should have known, of the facts and conditions giving rise to its claim, and shall under no
<br />circumstances shall such lawsuit be initiated more than three (3) years from the date of
<br />substantial completion of ECS' Services.
<br />27.0 ASSIGNMENT - CLIENT and ECS respectively bind themselves, their
<br />successors, assigns, heirs, and legal representatives to the other party and the successors,
<br />assigns, heirs and legal representatives of such other party with respect to all covenants of
<br />these Terms. Neither CLIENT nor ECS shall assign these Terms, any rights thereunder, or
<br />any cause of action arising therefrom, in whole or in part, without the written consent of the
<br />other. Any purported assignment or transfer, except as permitted above, shall be deemed
<br />null, void and invalid, the purported assignee shall acquire no rights as a result of the
<br />purported assignment or transfer and the non - assigning party shall not recognize any such
<br />purported assignment or transfer.
<br />28.0 SEVERABILITY - Any provision of these Terms later held to violate any law, statute,
<br />or regulation, shall be deemed void, and all remaining provisions shall continue in full force
<br />and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
<br />valid substitute that 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
<br />represented by these Terms and all provisions allocating responsibility or liability between
<br />the CLIENT and ECS shall survive the substantial completion of Services and the
<br />termination of the agreement.
<br />30.0
<br />30.1
<br />30.2
<br />30.3
<br />30.4
<br />23.0 DISPUTE RESOLUTION 30.5
<br />23.1 In the event any claims, disputes, and other matters in question arising out of or
<br />relating to these Terms or breach thereof (collectively referred to as "Disputes "), the
<br />parties shall promptly attempt to resolve all such Disputes through executive
<br />negotiation between senior representatives of both parties familiar with the Project.
<br />The parties shall arrange a mutually convenient time for the senior representative of
<br />each party to meet. Such meeting shall occur within fifteen (15) days of either
<br />party's written request for executive negotiation or as otherwise mutually agreed.
<br />ECS Proposal No. 06:20895 Page 3 of 3
<br />TITLES: ENTIRE AGREEMENT
<br />The titles used herein are for general reference only and are not part of the Terms
<br />and Conditions.
<br />These Terms and Conditions of Service together with the Proposal, including all
<br />exhibits, appendixes, and other documents appended to it, constitute the entire
<br />agreement between CLIENT and ECS. CLIENT acknowledges that all prior
<br />understandings and negotiations are superseded by this agreement.
<br />CLIENT and ECS agree that subsequent modifications to the agreement
<br />represented by these shall not be binding unless made in writing and signed by
<br />authorized representatives of both parties.
<br />All preprinted terms and conditions on CLIENT'S purchase order, Work
<br />Authorization, or other service acknowledgement forms, are inapplicable and
<br />superseded by these Terms and Conditions of Service.
<br />CLIENT's execution of a Work Authorization, the submission of a start work
<br />authorization (oral or written) or issuance of a purchase order constitutes CLIENT's
<br />acceptance of this Proposal and its agreement to be fully bound the foregoing
<br />Terms. If CLIENT fails to provide ECS with a signed copy of these Terms or the
<br />attached Work Authorization, CLIENT agrees that by authorizing and accepting the
<br />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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