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DocuSign Envelope ID:B01E86EC-6FC1-43CE-8E90-79CF68C52249
<br /> or loss is caused by acts or omissions of CLIENT, its employees, agents, staff, Should this meeting fail to result in a mutually agreeable plan for resolution of the
<br /> consultants, contractors, subcontractors or person/entities for whom CLIENT is Dispute,CLIENT and ECS agree that either party may bring litigation.
<br /> legally liable. 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)
<br /> 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this against ECS unless CLIENT shall have first provided ECS with a written certification
<br /> agreement or the services provided as a result of the Proposal be limited to executed by an independent engineer licensed in the jurisdiction in which the
<br /> $500,000. 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 /> 19.0 INDEMNIFICATION shall be a precondition to the institution of any judicial proceeding and shall be
<br /> 19.1 Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from provided to ECS thirty(30)days prior to the institution of such judicial proceedings.
<br /> and against damages arising from ECS'negligent performance of its Services,but 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or
<br /> only to the extent that such damages are found to be Caused by ECS' negligent district in which ECS'office contracting with the CLIENT is located. The parties
<br /> acts,errors or omissions,(specifically excluding any damages Caused by any third agree that the law applicable to these Terms and the Services provided pursuant to
<br /> party or by the CLIENT.) the Proposal shall be the laws of the Commonwealth of Virginia,but excluding its
<br /> 19.2 To the fullest extent permitted by Law,CLIENT agrees to indemnify,and hold ECS choice of law rules. Unless otherwise mutually agreed to in writing by both parties,
<br /> harmless from and against any and all liability,claims,damages,demands,fines, CLIENT waives the right to remove any litigation action to any other jurisdiction.
<br /> penalties,costs and expenditures(including reasonable attorneys'fees and costs of Both parties agree to waive any demand for a trial by jury.
<br /> litigation defense and/or settlement)["Damages']caused in whole or in part by the 24.0 CURING A BREACH
<br /> negligent acts,errors,or omissions of the CLIENT or CLIENT'S employees,agents,
<br /> staff,contractors,subcontractors,consultants,and clients,provided such Damages 24.1 A party that believes the other has materially breached these Terms shall issue a
<br /> are attributable to: (a)the bodily injury, personal injury, sickness, disease and/or written cure notice identifying its alleged grounds for termination.Both parties shall
<br /> death of any person;(b)the injury to or loss of value to tangible personal property; promptly and in good faith attempt to identify a cure for the alleged breach or
<br /> or(c)a breach of these Terms. The foregoing indemnification shall not apply to the present facts showing the absence of such breach. If a cure can be agreed to or
<br /> extent such Damage is found to be caused by the sole negligence, errors, the matter otherwise resolved within thirty(30)calendar days from the date of the
<br /> omissions or willful misconduct of ECS. termination notice, the parties shall commit their understandings to writing and
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay termination shall not occur.
<br /> an amount of Damages disproportional to ECS' culpability. IF CLIENT IS A 24.2 Either party may waive any right provided by these Terms in curing an actual or
<br /> HOMEOWNER,HOMEOWNERS'ASSOCIATION,CONDOMINIUM OWNER,CONDOMINIUM OWNER'S alleged breach; however, such waiver shall not affect future application of such
<br /> ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER,ECS RECOMMENDS THAT CLIENT RETAIN provision or any other provision.
<br /> LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S 25.0 TERMINATION
<br /> RIGHTS AND OBLIGATIONS HEREUNDER,AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED
<br /> BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH 25.1 CLIENT or ECS may terminate this agreement for breach or these terms, non-
<br /> COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON payment,or a failure to cooperate. In the event of termination,the effecting party
<br /> GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT. shall so notify the other party in writing and termination shall become effective
<br /> 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL fourteen(14)calendar days after receipt of the termination notice.
<br /> INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS Shall
<br /> INJURY OR LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT-OWNERS, OR THEIR promptly render to CLIENT a final Invoice and CLIENT shall immediately
<br /> HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY compensate ECS for Services rendered and costs incurred including those Services
<br /> AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. associated with termination itself, including without limitation, demobilizing,
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER modifying schedules,and reassigning personnel.
<br /> THIS SECTION 19.0INCLUDE THE DUTY TO DEFEND. 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any
<br /> 20.0 CONSEQUENTIAL DAMAGES 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 /> consequential damages incurred by either due to the fault of the other or their a court of competent jurisdiction no more than two(2)years from the time the party knew,or
<br /> employees, consultants, agents, contractors or subcontractors, regardless of the should have known,of the facts and conditions giving rise to its claim,and shall under no
<br /> nature of the fault or whether such liability arises in breach of contract or warranty, circumstances shall such lawsuit be initiated more than three(3)years from the date of
<br /> tort,statute,or any other cause of action. Consequential damages include,but are substantial completion of ECS'Services.
<br /> 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 27.0 ASSIGNMENT - CLIENT and ECS respectively bind themselves, their
<br /> CLIENT,for any liquidated damages due to any fault,or failure to act,in part or in successors,assigns,heirs,and legal representatives to the other party and the successors,
<br /> total by ECS,its employees,agents,or subcontractors. 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 /> 21.0 SOURCES OF RECOVERY any cause of action arising therefrom,in whole or in part,without the written consent of the
<br /> 21.1 All claims for damages related to the Services provided under this agreement shall other. Any purported assignment or transfer,except as permitted above,shall be deemed
<br /> be made against the ECS entity contracting with the CLIENT for the Services,and null, void and invalid, the purported assignee shall acquire no rights as a result of the
<br /> no other person or entity. CLIENT agrees that it shall not name any affiliated entity purported assignment or transfer and the non-assigning party shall not recognize any such
<br /> including parent, peer, or subsidiary entity or any individual officer, director, or purported assignment or transfer.
<br /> employee of ECS,specifically including its professional engineers and geologists. 28.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in or regulation,shall be deemed void,and all remaining provisions shall continue in full force
<br /> connection with the Project and/or the Services,CLIENT and ECS agree that they and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
<br /> will look solely to each other for the satisfaction of any such dispute or claim. valid substitute that expresses the intent of the issues covered by the original provision.
<br /> Moreover,notwithstanding anything to the contrary contained in any other provision
<br /> herein, CLIENT and ECS' agree that their respective shareholders, principals, 29.0 SURVIVAL - All obligations arising prior to the termination of the agreement
<br /> partners,members,agents,directors,officers,employees,and/or owners shall have represented by these Terms and all provisions allocating responsibility or liability between
<br /> no liability whatsoever arising out of or in connection with the Project and/or the CLIENT and ECS shall survive the substantial completion of Services and the
<br /> Services provided hereunder. In the event CLIENT brings a claim against an termination of the agreement.
<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 30.0 TITLES;ENTIRE AGREEMENT
<br /> from and against all damages, costs, awards, or fees (including attorneys' fees) 30.1 The titles used herein are for general reference only and are not part of the Terms
<br /> attributable to such act. and Conditions.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services 30.2 These Terms and Conditions of Service together with the Proposal, including all
<br /> are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or exhibits, appendixes, and other documents appended to it, constitute the entire
<br /> ECS to benefit any other person or entity. To the extent that any other person or entity is agreement between CLIENT and ECS. CLIENT acknowledges that all prior
<br /> benefited by the Services,such benefit is purely incidental and such other person or entity understandings and negotiations are superseded by this agreement.
<br /> shall not be deemed a third party beneficiary to the AGREEMENT. No third-party shall 30.3 CLIENT and ECS agree that subsequent modifications to the agreement
<br /> have the right to rely on ECS'opinions rendered in connection with ECS'Services without represented by these shall not be binding unless made in writing and signed by
<br /> written consent from both CLIENT and ECS,which shall include,at a minimum,the third- authorized representatives of both parties.
<br /> party's agreement to be bound to the same Terms and Conditions contained herein and 30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work
<br /> third-party's agreement that ECS'Scope of Services performed is adequate. Authorization, or other service acknowledgement forms, are inapplicable and
<br /> 23.0 DISPUTE RESOLUTION superseded by these Terms and Conditions of Service.
<br /> 23.1 In the event any claims,disputes, and other matters in question arising out of or 30.5 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 /> relating to these Terms or breach thereof(collectively referred to as"Disputes"),the acceptance of this Proposal and its agreement to be fully bound the foregoing
<br /> parties shall promptly attempt to resolve all such Disputes through executive Terms. If CLIENT fails to provide ECS with a signed copy of these Terms or the
<br /> negotiation between senior representatives of both parties familiar with the Project. attached Work Authorization,CLIENT agrees that by authorizing and accepting the
<br /> The parties shall arrange a mutually convenient time for the senior representative of services of ECS,it will be fully bound by these Terms as if they had been signed by
<br /> each party to meet. Such meeting shall occur within fifteen (15) days of either CLIENT.
<br /> party's written request for executive negotiation or as otherwise mutually agreed.
<br /> ECS Proposal No. 06:21174 Page 1 of 3 Ver.06/04/13
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