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DocuSign Envelope ID: DEE004B4-A2DB-42BB-8896-BA1873942328
<br /> 19.0 INDEMNIFICATION 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)
<br /> 19.1 Subject to Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from against ECS unless CLIENT shall have first provided ECS with a written certification
<br /> and against damages arising from ECS'negligent performance of its Services,but executed by an independent engineer licensed in the jurisdiction in which the
<br /> only to the extent that such damages are found to be caused by ECS' negligent Project is located,reasonably specifying each and every act or omission which the
<br /> acts,errors or omissions,(specifically excluding any damages caused by any third certifier contends constitutes a violation of the Standard of Care. Such certificate
<br /> party or by the CLIENT.) shall be a precondition to the institution of any judicial proceeding and shall be
<br /> 19.2 To the fullest extent permitted by law,CLIENT agrees to indemnify,and hold ECS provided to ECS thirty(30)days prior to the institution of such judicial proceedings.
<br /> harmless from and against any and all liability,claims,damages,demands,fines, 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or
<br /> penalties,costs and expenditures(including reasonable attorneys'fees and costs of district in which ECS'office contracting with the CLIENT is located. The parties
<br /> litigation defense and/or settlement)("Damages")caused in whole or in part by the agree that the law applicable to these Terms and the Services provided pursuant to
<br /> acts, errors, or omissions of the CLIENT or CLIENT's employees, agents, staff, the Proposal shall be the laws of the Commonwealth of Virginia,but excluding its
<br /> contractors,subcontractors,consultants, and clients,provided such Damages are choice of law rules. Unless otherwise mutually agreed to in writing by both parties,
<br /> attributable to:(a)the bodily injury,personal injury,sickness,disease and/or death CLIENT waives the right to remove any litigation action to any other jurisdiction.
<br /> of any person;(b)the injury to or loss of value to tangible personal property;or(c)a Both parties agree to waive any demand for a trial by jury.
<br /> breach of these Terms. The foregoing indemnification shall not apply to the extent 24.0 CURING A BREACH
<br /> such Damage is found to be caused by the sole negligence,errors,omissions or
<br /> willful misconduct of ECS. 24.1 A party that believes the other has materially breached these Terms shall issue a
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay written cure notice identifying its alleged grounds for termination.Both parties shall
<br /> an amount of Damages disproportional to ECS' culpability. IF CLIENT IS A promptly and in good faith attempt to identify a cure for the alleged breach or
<br /> HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, present facts showing the absence of such breach. If a cure can be agreed to or
<br /> CONDOMINIUM OWNER'S ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER, the matter otherwise resolved within thirty(30)calendar days from the date of the
<br /> ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE termination notice, the parties shall commit their understandings to writing and
<br /> ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS AND termination shall not occur.
<br /> OBLIGATIONS HEREUNDER, AND THE LIMITATIONS, AND RESTRICTIONS 24.2 Either party may waive any right provided by these Terms in curing an actual or
<br /> IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT alleged breach; however, such waiver shall not affect future application of such
<br /> TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL provision or any other provision.
<br /> COUNSEL AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY 25.0 TERMINATION
<br /> PROVISION OF THIS AGREEMENT.
<br /> 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, 25.1 CLIENT or ECS may terminate this Agreement for breach,non-payment,or a failure
<br /> CLIENT SHALL INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND to cooperate. In the event of termination,the effecting party shall so notify the other
<br /> ALL CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR party in writing and termination shall become effective fourteen(14)calendar days
<br /> MORE HOMEOWNERS, UNIT-OWNERS, OR THEIR HOMEOWNER'S after receipt of the termination notice.
<br /> ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall
<br /> AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE promptly render to CLIENT a final invoice and CLIENT shall immediately
<br /> DISPUTE. compensate ECS for Services rendered and costs incurred including those Services
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY associated with termination itself, including without limitation, demobilizing,
<br /> HARMLESS UNDER THIS SECTION 19.0INCLUDE THE DUTY TO DEFEND. modifying schedules,and reassigning personnel.
<br /> 20.0 CONSEQUENTIAL DAMAGES 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any
<br /> shall not be liable to CLIENT for any Statute that may provide additional protection,CLIENT and ECS agree that a lawsuit by
<br /> 20.1 CLIENT shall not be liable to ECS and ECS
<br /> consequential damages incurred by either due the fault le the other or their 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 /> employees, consultants, agents, contractors or subcontractors, regardless of the a court of competent jurisdiction no more than two(2)years from the time the party knew,or
<br /> nature of the fault or whether such liability arises in breach of contract or warranty, should have known,of the facts and conditions giving rise to its claim,and shall under no
<br /> tort,statute,or any other cause of action. Consequential damages include,but are circumstances shall such lawsuit be initiated more than three(3)years from the date of
<br /> not limited to,loss of use and loss of profit. substantial completion of ECS'Services.
<br /> 20.2 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 27.0 ASSIGNMENT-CLIENT and ECS respectively bind themselves,their
<br /> total by ECS,its employees,agents,or subcontractors. 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 /> 21.0 SOURCES OF RECOVERY these Terms. Neither CLIENT nor ECS shall assign these Terms,any rights thereunder,or
<br /> 21.1 All claims for damages related to the Services provided under this Agreement shall any cause of action arising therefrom,in whole or in part,without the written consent of the
<br /> be made against the ECS entity contracting with the CLIENT for the Services,and other. Any purported assignment or transfer,except as permitted above,shall be deemed
<br /> no other person or entity. CLIENT agrees that it shall not name any affiliated entity null,void and invalid,the purported assignee shall acquire no rights as a result of the
<br /> including parent, peer, or subsidiary entity or any individual officer, director, or purported assignment or transfer and the non-assigning party shall not recognize any such
<br /> employee of ECS. purported assignment or transfer.
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in 28.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,
<br /> connection with the Project and/or the Services,CLIENT and ECS agree that they or regulation,shall be deemed void,and all remaining provisions shall continue in full force
<br /> will look solely to each other for the satisfaction of any such dispute or claim. and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
<br /> Moreover,notwithstanding anything to the contrary contained in any other provision valid substitute that expresses the intent of the issues covered by the original provision.
<br /> herein, CLIENT and ECS' agree that their respective shareholders, principals,
<br /> partners,members,agents,directors,officers,employees,and/or owners shall have 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement
<br /> no liability whatsoever arising out of or in connection with the Project and/or represented by these Terms and all provisions allocating responsibility or liability between
<br /> Services provided hereunder. In the event CLIENT brings a claim against an the CLIENT and ECS shall survive the substantial completion of Services and the
<br /> affiliated entity, parent entity, subsidiary entity, or individual officer, director or termination of the Agreement.
<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) 30.0 TITLES;ENTIRE AGREEMENT
<br /> attributable to such act. 30.1 The titles used herein are for general reference only and are not part of the Terms.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services 30.2 These Terms together with the Proposal, including all exhibits, appendixes, and
<br /> are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or other documents appended to it,constitute the entire agreement between CLIENT
<br /> ECS to benefit any other person or entity. To the extent that any other person or entity is and ECS("Agreement"). CLIENT acknowledges that all prior understandings and
<br /> benefited by the Services,such benefit is purely incidental and such other person or entity negotiations are superseded by this Agreement.
<br /> shall not be deemed a third party beneficiary to the Agreement. No third-party shall have 30.3 CLIENT and ECS agree that subsequent modifications to the Agreement shall not
<br /> the right to rely on ECS'opinions rendered in connection with ECS'Services without written be binding unless made in writing and signed by authorized representatives of both
<br /> consent from both CLIENT and ECS,which shall include,at a minimum,the third-party's parties.
<br /> agreement to be bound to the same Terms and Conditions contained herein and third- 30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work
<br /> 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 /> relating to these Terms breach thereof(collectively referred to as"Disputes"),the authorization(oral or written)or issuance of a purchase order constitutes CLIENT's
<br /> acceptance of this Proposal and these Terms and their agreement to be fully bound
<br /> parties shall promptly attempt to resolve all such Disputes through executive
<br /> them. If CLIENT fails t
<br /> negotiation between senior representatives of both parties familiar with the Project. t tached Work Authorization,provide ECS with a signed copy of these Terms or the
<br /> a
<br /> The parties shall arrange a mutually convenient time for the senior representative of attached CLIENT agrees that by authorizing and accepting the
<br /> each party to meet.Such meeting shall occur within fifteen calendar(15)days of services of ECS,it will be fully bound by these Terms as if they had been signed by
<br /> CLIENT.
<br /> either party's written request for executive negotiation or as otherwise mutually
<br /> agreed. Should this meeting fail to result in a mutually agreeable plan for resolution
<br /> of the Dispute,CLIENT and ECS agree that either party may bring litigation.
<br /> ECS Proposal No:06:22468 Page 3 of 3 Ver.06/14/13
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