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DocuSign Envelope ID:254EEE07-4235-430E-AB86-8BA7FDCF270B
<br /> litigation defense and/or settlement)("Damages")caused in whole or in part by the contends constitutes a violation of the Standard of Care.Such certificate shall be a
<br /> acts, errors, or omissions of the CLIENT or CLIENT's employees, agents, staff, precondition to the institution of any judicial proceeding and shall be provided to ECS
<br /> contractors,subcontractors,consultants, and clients, provided such Damages are thirty(30)days prior to the institution of such judicial proceedings.
<br /> attributable to:(a)the bodily injury,personal injury,sickness,disease and/or death of 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or district
<br /> any person;(b)the injury to or loss of value to tangible personal property;or(c)a in which ECS'office contracting with the CLIENT is located. The parties agree that
<br /> breach of these Terms. The foregoing indemnification shall not apply to the extent the law applicable to these Terms and the Services provided pursuant to the Proposal
<br /> such Damage is found to be caused by the sole negligence,errors,omissions or shall be the laws of the Commonwealth of Virginia,but excluding its choice of law
<br /> willful misconduct of ECS. rules. Unless otherwise mutually agreed to in writing by both parties,CLIENT waives
<br /> 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay the right to remove any litigation action to any other jurisdiction. Both parties agree
<br /> an amount of Damages disproportional to ECS' culpability. IF CLIENT IS A to waive any demand for a trial by jury.
<br /> HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER,
<br /> CONDOMINIUM OWNER'S ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER, 24.0 CURING A BREACH
<br /> ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE 24.1 A party that believes the other has materially breached these Terms shall issue a
<br /> ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS AND written cure notice identifying its alleged grounds for termination.Both parties shall
<br /> OBLIGATIONS HEREUNDER, AND THE LIMITATIONS, AND RESTRICTIONS promptly and in good faith attempt to identify a cure for the alleged breach or present
<br /> IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT facts showing the absence of such breach. If a cure can be agreed to or the matter
<br /> TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL otherwise resolved within thirty(30)calendar days from the date of the termination
<br /> COUNSEL AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY notice,the parties shall commit their understandings to writing and termination shall
<br /> PROVISION OF THIS AGREEMENT. not occur.
<br /> 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER,CLIENT 24.2 Either party may waive any right provided by these Terms in curing an actual or
<br /> SHALL INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL alleged breach; however, such waiver shall not affect future application of such
<br /> CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR MORE provision or any other provision.
<br /> HOMEOWNERS, UNIT-OWNERS, OR THEIR HOMEOWNER'S ASSOCIATION,
<br /> COOPERATIVE BOARD,OR SIMILAR GOVERNING ENTITY AGAINST CLIENT 25.0 TERMINATION
<br /> WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. 25.1 CLIENT or ECS may terminate this Agreement for breach,non-payment,or a failure
<br /> 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY to cooperate. In the event of termination,the effecting party shall so notify the other
<br /> HARMLESS UNDER THIS SECTION 19.0INCLUDE THE DUTYTO DEFEND. party in writing and termination shall become effective fourteen(14)calendar days
<br /> after receipt of the termination notice.
<br /> 20.0 CONSEQUENTIAL DAMAGES 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall
<br /> 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any promptly render to CLIENT a final invoice and CLIENT shall immediately compensate
<br /> consequential damages incurred by either due to the fault of the other or their ECS for Services rendered and costs incurred including those Services associated
<br /> employees, consultants, agents, contractors or subcontractors, regardless of the with termination itself,including without limitation,demobilizing,modifying schedules,
<br /> nature of the fault or whether such liability arises in breach of contract or warranty, and reassigning personnel.
<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. 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any
<br /> 20.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by Statute that may provide additional protection,CLIENT and ECS agree that a lawsuit by
<br /> CLIENT,for any liquidated damages due to any fault,or failure to act,in part or in either party alleging a breach of this Agreement,violation of the Standard of Care,non-
<br /> total by ECS,its employees,agents,or subcontractors. 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 /> 21.0 SOURCES OF RECOVERY should have known,of the facts and conditions giving rise to its claim,and shall under no
<br /> 21.1 All claims for damages related to the Services provided under this Agreement shall circumstances shall such lawsuit be initiated more than three(3)years from the date of
<br /> be made against the ECS entity contracting with the CLIENT for the Services,and no substantial completion of ECS'Services.
<br /> other person or entity. CLIENT agrees that it shall not name any affiliated entity 27.0 ASSIGNMENT-CLIENT and ECS respectively bind themselves,their
<br /> including parent, peer, or subsidiary entity or any individual officer, director, or successors,assigns,heirs,and legal representatives to the other party and the successors,
<br /> employee of ECS. assigns,heirs and legal representatives of such other parry with respect to all covenants of
<br /> 21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in these Terms. Neither CLIENT nor ECS shall assign these Terms,any rights thereunder,or
<br /> connection with the Project and/or the Services,CLIENT and ECS agree that they will any cause of action arising therefrom,in whole or in part,without the written consent of the
<br /> look solely to each other for the satisfaction of any such dispute or claim. Moreover, other. Any purported assignment or transfer,except as permitted above,shall be deemed
<br /> notwithstanding anything to the contrary contained in any other provision herein, null,void and invalid,the purported assignee shall acquire no rights as a result of the
<br /> CLIENT and ECS' agree that their respective shareholders, principals, partners, purported assignment or transfer and the non-assigning party shall not recognize any such
<br /> members,agents,directors,officers,employees,and/or owners shall have no liability purported assignment or transfer.
<br /> 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 28.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,
<br /> entity,subsidiary entity,or individual officer,director or employee in contravention of or regulation,shall be deemed void,and all remaining provisions shall continue in full force
<br /> this Section 21,CLIENT agrees to hold ECS harmless from and against all damages, and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
<br /> costs,awards,or fees(including attorneys'fees)attributable to such act. valid substitute that expresses the intent of the issues covered by the original provision.
<br /> 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services are 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement
<br /> performed solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS represented by these Terms and all provisions allocating responsibility or liability between
<br /> to benefit any other person or entity.To the extent that any other person or entity is benefited the CLIENT and ECS shall survive the substantial completion of Services and the
<br /> by the Services,such benefit is purely incidental and such other person or entity shall not be termination of the Agreement.
<br /> deemed a third party beneficiary to the Agreement. No third-party shall have the right to rely 30.0 TITLES:ENTIRE AGREEMENT
<br /> on ECS'opinions rendered in connection with ECS'Services without written consent from
<br /> both CLIENT and ECS,which shall include,at a minimum,the third-party's agreement to be 30.1 The titles used herein are for general reference only and are not part of the Terms.
<br /> bound to the same Terms and Conditions contained herein and third-party's agreement that 30.2 These Terms together with the Proposal,including all exhibits,appendixes,and other
<br /> ECS'Scope of Services performed is adequate. documents appended to it,constitute the entire agreement between CLIENT and
<br /> 23.0 DISPUTE RESOLUTION ECS ("Agreement'). CLIENT acknowledges that all prior understandings and
<br /> negotiations are superseded by this Agreement.
<br /> 23.1 In the event any claims, disputes,and other matters in question arising out of or 30.3 CLIENT and ECS agree that subsequent modifications to the Agreement shall not be
<br /> relating to these Terms or breach thereof(collectively referred to as"Disputes"),the binding unless made in writing and signed by authorized representatives of both
<br /> parties shall promptly attempt to resolve all such Disputes through executive parties.
<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 30.4 All preprinted terms and conditions on CLIENT'S purchase order,Work Authorization,
<br /> each party to meet.Such meeting shall occur within fifteen calendar(15)days of either or other service acknowledgement forms,are inapplicable and superseded by these
<br /> party's written request for executive negotiation or as otherwise mutually agreed. Terms and Conditions of Service.
<br /> Should this meeting fail to result in a mutually agreeable plan for resolution of the 30.5 CLIENT's execution of a Work Authorization, the submission of a start work
<br /> Dispute,CLIENT and ECS agree that either party may bring litigation. authorization(oral or written)or issuance of a purchase order constitutes CLIENT's
<br /> 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim) acceptance of this Proposal and these Terms and their agreement to be fully bound
<br /> against ECS unless CLIENT shall have first provided ECS with a written certification to them. If CLIENT fails to provide ECS with a signed copy of these Terms or the
<br /> executed by an independent engineer licensed in the jurisdiction in which the Project attached Work Authorization,CLIENT agrees that by authorizing and accepting the
<br /> is located,reasonably specifying each and every act or omission which the certifier services of ECS,it will be fully bound by these Terms as if they had been signed by
<br /> CLIENT.
<br /> ECS Proposal No:22345 Page 3 of 3 Ver.06/14/13
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