|
<br />ECS Proposal 06:24601 Page 3 of 3 Ver. 06/14/13
<br />
<br />19.2 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 />acts, errors, or omissions of the CLIENT or CLIENT’s employees, agents, staff,
<br />contractors, subcontractors, consultants, and clients, provided such Damages are
<br />attributable to: (a) the bodily injury, personal injury, sickness, disease and/or death of
<br />any person; (b) the injury to or loss of value to tangible personal property; or (c) a
<br />breach of these Terms. The foregoing indemnification shall not apply to the extent
<br />such Damage is found to be caused by the sole negligence, errors, omissions or
<br />willful misconduct of ECS.
<br />19.3 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,
<br />CONDOMINIUM OWNER’S ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER,
<br />ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE
<br />ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT’S RIGHTS AND
<br />OBLIGATIONS HEREUNDER, AND THE LIMITATIONS, AND RESTRICTIONS
<br />IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT
<br />TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL
<br />COUNSEL AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY
<br />PROVISION OF THIS AGREEMENT.
<br />19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT
<br />SHALL INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL
<br />CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR MORE
<br />HOMEOWNERS, UNIT-OWNERS, OR THEIR HOMEOWNER’S ASSOCIATION,
<br />COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY AGAINST CLIENT
<br />WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE.
<br />19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY
<br />HARMLESS UNDER THIS SECTION 19.0 INCLUDE THE DUTY TO DEFEND.
<br />20.0 CONSEQUENTIAL DAMAGES
<br />20.1 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 />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
<br />total by ECS, its employees, agents, or subcontractors.
<br />21.0 SOURCES OF RECOVERY
<br />21.1 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 no
<br />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.
<br />21.2 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 will
<br />look solely to each other for the satisfaction of any such dispute or claim. Moreover,
<br />notwithstanding anything to the contrary contained in any other provision herein,
<br />CLIENT and ECS’ agree that their respective shareholders, principals, partners,
<br />members, agents, directors, officers, employees, and/or owners shall have no liability
<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
<br />entity, subsidiary entity, or individual officer, director or employee in contravention of
<br />this Section 21, CLIENT agrees to hold ECS harmless from and against all damages,
<br />costs, awards, or fees (including attorneys’ fees) attributable to such act.
<br />22.0 THIRD PARTY CLAIMS EXCLUSION - CLIENT and ECS agree that the Services are
<br />performed solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS
<br />to benefit any other person or entity. To the extent that any other person or entity is benefited
<br />by the Services, such benefit is purely incidental and such other person or entity shall not be
<br />deemed a third party beneficiary to the Agreement. No third-party shall have the right to rely
<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
<br />bound to the same Terms and Conditions contained herein and third-party’s agreement that
<br />ECS’ Scope of Services performed is adequate.
<br />23.0 DISPUTE RESOLUTION
<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 calendar (15) days of either
<br />party’s written request for executive negotiation or as otherwise mutually agreed.
<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 Project
<br />is located, reasonably specifying each and every act or omission which the certifier
<br />contends constitutes a violation of the Standard of Care. Such certificate shall be a
<br />precondition to the institution of any judicial proceeding and shall be provided to ECS
<br />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 district
<br />in which ECS’ office contracting with the CLIENT is located. The parties agree that
<br />the law applicable to these Terms and the Services provided pursuant to the Proposal
<br />shall be the laws of the Commonwealth of Virginia, but excluding its choice of law
<br />rules. Unless otherwise mutually agreed to in writing by both parties, CLIENT waives
<br />the right to remove any litigation action to any other jurisdiction. Both parties agree
<br />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 present
<br />facts showing the absence of such breach. If a cure can be agreed to or the matter
<br />otherwise resolved within thirty (30) calendar days from the date of the termination
<br />notice, the parties shall commit their understandings to writing and termination shall
<br />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, non-payment, or a failure
<br />to cooperate. In the event of termination, the effecting party shall so notify the other
<br />party in writing and termination shall become effective fourteen (14) calendar days
<br />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 compensate
<br />ECS for Services rendered and costs incurred including those Services associated
<br />with termination itself, including without limitation, demobilizing, modifying schedules,
<br />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 TITLES; ENTIRE AGREEMENT
<br />30.1 The titles used herein are for general reference only and are not part of the Terms.
<br />30.2 These Terms together with the Proposal, including all exhibits, appendixes, and other
<br />documents appended to it, constitute the entire agreement between CLIENT and
<br />ECS (“Agreement”). CLIENT acknowledges that all prior understandings and
<br />negotiations are superseded by this Agreement.
<br />30.3 CLIENT and ECS agree that subsequent modifications to the Agreement shall not be
<br />binding unless made in writing and signed by authorized representatives of both
<br />parties.
<br />30.4 All preprinted terms and conditions on CLIENT’S purchase order, Work Authorization,
<br />or other service acknowledgement forms, are inapplicable and superseded by these
<br />Terms and Conditions of Service.
<br />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 />acceptance of this Proposal and these Terms and their agreement to be fully bound
<br />to them. 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 />
<br />Docusign Envelope ID: 6A9D5D34-5CDF-4B61-99A9-F61CBCEDBF5E
|