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DocuSign Envelope ID:OE71AC55-698C-4D9A-B848-92OF1816167B
<br /> .i=111111 11M.-AW111111111 Is I WMAILIWIG11c1_> wutnedSt, LLP
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<br /> Terms and Conditions of Service
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or district in
<br /> amount of Damages disproportional to ECS' culpability. IF CLIENT IS A HOMEOWNER, which ECS'office contracting with the CLIENT is located. The parties agree that the law applicable
<br /> HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S to these Terms and the Services provided pursuant to the Proposal shall be the laws of the
<br /> ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER,ECS RECOMMENDS THAT CLIENT RETAIN Commonwealth of Virginia,but excluding its choice of law rules. Unless otherwise mutually agreed
<br /> LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS AND to in writing by both parties,CLIENT waives the right to remove any litigation action to any other
<br /> OBLIGATIONS HEREUNDER,AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED BY THIS jurisdiction. Both parties agree to waive any demand for a trial by jury.
<br /> AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH COUNSEL SHALL BE 24.0 CURING A BREACH
<br /> A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON GROUNDS OF 24.1 A party that believes the other has materially breached these Terms shall issue a written
<br /> AVOIDING ANY PROVISION OF THIS AGREEMENT. cure notice identifying its alleged grounds for termination.Both parties shall promptly and in good
<br /> 19.4 IF CLIENT IS A(RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL faith attempt to identify ure for the alleged breach or present facts showing the absence of such
<br /> INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE breach. If a cure can be agreed to or the matter otherwise resolved within thirty(30)calendar days
<br /> TO INJURY OR LOSS INITIATED BY ONE OR MORE HOMEOWNERS,UNIT-OWNERS,OR THEIR from the date of the termination notice,the parties shall commit their understandings to writing
<br /> HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY and termination shall not occur.
<br /> AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. 24aa Either party y ive any right provided by these Terms in curing an actual or alleged
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS breach;however,such waiver shall not affect future application of such provision or any other
<br /> UNDER THIS SECTION 19.0INCLUDE THE DUTYTO DEFEND. provision.
<br /> 20.0 CONSEQUENTIAL DAMAGES 25.0 TERMINATION
<br /> 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any consequential 25.1 CLIENT or ECS may terminate this Agreement for breach, non-payment, or a failure to
<br /> damages incurred by either due to the fault of the other or their employees,consultants,agents, cooperate. In the event of termination,the effecting party shall so notify the other party in writing
<br /> contractors or subcontractors,regardless of the nature of the fault orwhether such liability arises in and termination shall become effective fourteen(14)calendar days after receipt of the termination
<br /> breach of contract or warranty,tort,statute,or any other cause of action. Consequential damages notice.
<br /> include,but are not limited to,loss of use and loss of profit. 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall promptly
<br /> 20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by CLIENT,for render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for Services
<br /> any liquidated damages due to any fault,or failure to act,in part or in total by ECS,its employees, rendered and costs incurred including those Services associated with termination itself,including
<br /> agents,or subcontractors. without limitation,demobilizing,modifying schedules,and reassigning personnel.
<br /> 21.0 SOURCES OF RECOVERY 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any Statute
<br /> 21.1 All claims for damages related to the Services provided under this Agreement shall be made that may provide additional protection,CLIENT and ECS agree that a lawsuit by either party alleging
<br /> against the ECS entity contracting with the CLIENT for the Services,and no other person or entity. a breach of this Agreement,violation of the Standard of Care,non-payment of invoices,or arising
<br /> CLIENT agrees that it shall not name any affiliated entity including parent,peer,or subsidiary entity out of the Services provided hereunder,must be initiated in a court of competent jurisdiction no
<br /> or any individual officer,director,or employee of ECS. more than two(2)years from the time the party knew,or should have known,of the facts and
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in connection with conditions giving rise to its claim,and shall under no circumstances shall such lawsuit be initiated
<br /> the Project and/or the Services,CLIENT and ECS agree that they II look solely to each other for more than three(3)years from the date of substantial completion of ECS'Services.
<br /> the satisfaction of any such dispute or claim. Moreover,notwithstanding anything to the contrary 27.0 ASSIGNMENT-CLIENT and ECS respectively bind themselves,their successors,assigns,
<br /> contained in any other provision herein,CLIENT and ECS'agree that their respective shareholders, heirs,and legal representatives to the other party and the successors,assigns,heirs and legal
<br /> principals,partners,members,agents,directors,officers,employees,and/or owners shall have representatives of such other party th respect to all covenants of these Terms. Neither CLIENT
<br /> no liability atsoever arising out of or in connection with the Project and/or Services provided nor ECS shall assign these Terms,any rights thereunder,or any cause of action arising therefrom,in
<br /> hereunder. In the event CLIENT brings a claim against an affiliated entity,parent entity,subsidiary whole or in part,without the written consent of the other. Any purported assignment or transfer,
<br /> entity,or individual officer,director or employee in contravention of this Section 21,CLIENT agrees except as permitted above,shall be deemed null,void and invalid,the purported assignee shall
<br /> to hold ECS harmless from and against all damages,costs,awards,or fees(including attorneys'fees) acquire no rights as a result of the purported assignment or transfer and the non-assigning party
<br /> attributable to such act. shall not recognize any such purported assignment or transfer.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services are performed 29.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,or
<br /> solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS to benefit any regulation,shall be deemed void,and all remaining provisions shall continue in full force and effect.
<br /> other person or entity. To the extent that any other person or entity is benefited by the Services, CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute that
<br /> such benefit is purely incidental and such other person or entity shall not be deemed a third party expresses the intent of the issues covered by the original provision.
<br /> beneficiary to the Agreement. No third-party shall have the right to rely on ECS'opinions rendered 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement represented by
<br /> in connection with ECS'Services without written consent from both CLIENT and ECS,which shall these Terms and all provisions allocating responsibility or liability between the CLIENT and ECS shall
<br /> include,at a minimum,the third-party's agreement to be bound to the same Terms and Conditions survive the substantial completion of Services and the termination of the Agreement.
<br /> contained herein and third-party's agreement that ECS'Scope of Services performed is adequate. 30.0 TITLES;ENTIRE AGREEMENT
<br /> 23.0 DISPUTE RESOLUTION 30.1 The titles used herein are for general reference only and are not part of the Terms.
<br /> 23.1 In the event any claims,disputes,and other matters in question arising out of or relating 30.2 These Terms together with the Proposal, including all exhibits, appendixes, and other
<br /> to these Terms or breach thereof(collectively referred to as"Disputes"),the parties shall promptly documents appended to it, constitute the entire agreement between CLIENT and ECS
<br /> attempt to resolve all such Disputes through executive negotiation between senior representatives ("Agreement"). CLIENT acknowledges that all prior understandings and negotiations are
<br /> of both parties familiar with the Project.The parties shall arrange a mutually convenient time for the superseded by this Agreement.
<br /> senior representative of each party to meet.Such meeting shall occur within fifteen calendar(15) 30.3 CLIENT and ECS agree that subsequent modifications to the Agreement shall not be binding
<br /> days of either party's written request for executive negotiation or as otherwise mutually agreed. unless made in writing and signed by authorized representatives of both parties.
<br /> Should this meeting fail to result in a mutually agreeable plan for resolution of the Dispute,CLIENT 30.4 All preprinted terms and conditions on CLIENT'S purchase order,Work Authorization,or
<br /> and ECS agree that either parry may bring litigation. other service acknowledgement forms, are inapplicable and superseded by these Terms and
<br /> 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)against ECS Conditions of Service.
<br /> unless CLIENT shall have first provided ECS with a written certification executed by an independent 30.5 CLIENT's execution of a Work Authorization,the submission of a start work authorization
<br /> engineer licensed in the jurisdiction in which the Project is located,reasonably specifying each and (oral or written)or issuance of a purchase order constitutes CLIENT's acceptance of this Proposal
<br /> every act or omission which the certifier contends constitutes a violation of the Standard of Care. and these Terms and their agreement to be fully bound to them.If CLIENT fails to provide ECS with
<br /> Such certificate shall be a precondition to the institution of any judicial proceeding and shall be a signed copy of these Terms orthe attached Work Authorization,CLIENT agrees that by authorizing
<br /> provided to ECS thirty(30)days prior to the institution of such judicial proceedings. and accepting the services of ECS,it will be fully bound by these Terms as if they had been signed
<br /> by CLIENT.
<br /> Ver.06/14/13
<br /> Page 10 Ec.S
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