Seller’s Remedies If Purchaser fails to perform its obligations pursuant to this Contract at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior to Closing any one or more of Purchaser's representations or warranties are breached in any material respect, and this failure or breach is not cured within three (3) Business Days after written notice from Seller to Purchaser (other than failure to close for any reason unrelated to a default by Seller, for which there shall be no notice or cure period), then Seller, as its SOLE and EXCLUSIVE remedy (except as provided in Sections 6(c) and 9), may (i) terminate this Contract and receive the Xxxxxxx Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder, or (ii) waive Purchaser’s failure or breach and proceed to Closing. Seller and Purchaser agree that Seller's damages resulting from Purchaser's default are difficult, if not impossible, to determine, and the Xxxxxxx Money is a fair estimate of those damages and has been agreed to in an effort to cause the amount of damages to be certain. Notwithstanding anything in this Section 11(a) to the contrary, in the event of Purchaser's default or termination of this Contract, Seller shall have all remedies available at law or in equity if Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property other than as a result of Purchaser’s exercise of its remedies under subsection (b) hereof. If Closing is consummated, then Seller shall have all remedies available at law or in equity if Purchaser fails to perform any post-closing obligation of Purchaser under this Contract.
Buyer’s Remedies In the event that Diamond breaches any warranty or other provision of these Terms and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"), Buyer’s exclusive remedy shall be the repair or replacement, at Diamond's option, of any defective goods. Under no circumstances shall Diamond be liable for any reimbursement of labor costs incurred by the Buyer whether as a result of warranty under Section 4 herein or resulting from rectification, installation, return of goods to Diamond, or otherwise. Under no circumstances shall the liability of Diamond, whether in contract, tort, warranty or otherwise exceed the purchase price of the goods. Buyer must notify Diamond in writing of any claim regarding defective or nonconforming goods (a) within ten (10) days after receipt of the goods with respect to any claim not covered by the warranty set forth in Section 4 herein, or (b) within ten (10) days after a defect is or should have been discovered with respect to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely of a claim, the goods shall be deemed accepted by Buyer without objection and any such claim by Buyer shall be waived. Defective goods shall be returned to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 to the attention of Customer Service Department. [Replacement product shall be made available to Buyer, F.O.B., in Upper Sandusky, Ohio. Freight costs, if any, shall be at Buyer’s expense.] Xxxxx acknowledges and agrees that it will not assert a right of offset or recoupment against Diamond or any affiliate thereof or its directors, officers or employees, or any affiliate thereof with respect to any future, present or prior sales transactions involving any new or used goods or any other obligation of Diamond to Buyer. The rights and remedies provided to Buyer herein shall be the SOLE and EXCLUSIVE rights and remedies of Buyer and Buyer hereby waives all other rights and remedies provided by applicable law or equity, including without limitation, INDIRECT, incidental, consequential, liquidated, punitive or any other damages. DIAMOND SHALL NOT BE LIABLE TO BUYER FOR ANY LOST PROFITS, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR SIMILAR DAMAGES (INCLUDING LOSS OF CARGO, LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUES, COST OF CAPITAL, COST OF BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES), OR ANY CLAIMS OR DEMANDS BROUGHT BY OR AGAINST BUYER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, DIAMOND'S NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF WARRANTY. DIAMOND SHALL HAVE NO OBLIGATION TO REPLACE OR REPAIR ANY GOODS WHICH ARE LOST OR STOLEN OR DESTROYED OR DAMAGED BY FIRE OR ANY OTHER PERIL. IN NO EVENT SHALL DIAMOND'S AGGREGATE LIABILITY TO BUYER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THE SALE OF ANY GOODS UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID TO DIAMOND BY BUYER FOR SUCH GOODS. ANY ACTION AGAINST XXXXXXX MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THE EXCLUSION OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Purchaser’s Remedies If Seller fails to perform its obligations pursuant to this Agreement for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one or more of Seller's representations or warranties are breached in any material respect, Purchaser shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, (ii) enforce specific performance, or (iii) waive said xxxxxxx or breach and proceed to Closing. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is not available, Purchaser may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's liability exceed the lesser of (i) $50,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and incurred directly in connection with the negotiation of this Agreement or the due diligence activities performed by Purchaser or at Purchaser's direction in connection with the performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Seller’s Default Buyer may elect to treat this Agreement as cancelled, in which case all Xxxxxxx Money paid by Buyer hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect to treat this Agreement as being in full force and effect and Buyer shall have the right to specific performance or damages, or both.
Buyer’s Default Seller’s remedies shall be limited to liquidated damages in the amount of the Xxxxxxx Money set forth in Section IV. It is agreed that such payments and things of value are liquidated damages and are Seller’s sole and only remedy for Buyer’s failure to perform the obligations of this Agreement. The Parties agree that Seller’s actual damages in the event of Buyer’s default would be difficult to measure, and the amount of the liquidated damages herein provided for is a reasonable estimate of such damages.
Purchaser’s Default If Purchaser fails to consummate this transaction for any reason other than Seller’s intentional and willful default, failure of a condition to Purchaser’s obligation to close, or the exercise by Purchaser of an express right of termination granted herein, Seller shall be entitled, as its sole remedy hereunder, to terminate this Agreement and to receive and retain the Xxxxxxx Money as full liquidated damages for such default of Purchaser, the parties hereto acknowledging that it is impossible to estimate more precisely the damages which might be suffered by Seller upon Purchaser’s default, and that said Xxxxxxx Money is a reasonable estimate of Seller’s probable loss in the event of default by Purchaser. Seller’s retention of said Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to retain the Xxxxxxx Money as full liquidated damages is Seller’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx the Purchaser: (a) for specific performance of this Agreement, or (b) to recover actual damages in excess of the Xxxxxxx Money. The foregoing liquidated damages provision shall not apply to or limit Purchaser’s liability for Purchaser’s obligations under Sections 3.1(b), 3.1(c), 3.7 and 10.1 of this Agreement. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of said Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages.
Seller Default If a Seller defaults (i) in its obligations hereunder to deliver to Escrow Agent the deliveries specified under Section 5.2 with respect to such Seller on the date required thereunder, or (ii) to close on the sale of such Seller’s Property on the Closing Date, then, provided that Purchaser is not in default under this Contract, at Purchaser's election and as Purchaser's sole and exclusive remedy, Purchaser may exercise its rights set forth in this Section 10.2 without any further opportunity of such Seller to receive notice or to cure such default. If a Seller, prior to the Closing, defaults in its other covenants or obligations under this Contract (other than such Seller’s obligation to close on the sale of such Seller’s Property on the Closing Date), and such default continues for more than ten (10) days after written notice from Purchaser, then, provided that Purchaser is not in default under this Contract, at Purchaser's election and as Purchaser's sole and exclusive remedy, Purchaser may either (a) subject to the conditions below, seek specific performance of the defaulting Seller’s obligation to deliver its Deed pursuant to this Contract (but not damages), or (b) give a Termination Notice to Sellers’ Representative of Purchaser’s decision to terminate this Contract for the Property for which there was such a default and receive a return of the Allocated Deposit Amount for such Property from Escrow Agent. If Purchaser, pursuant to any provision of this Section 10.2, elects to terminate this Contract for the Property for which there was a default, then Purchaser may recover, as its sole recoverable damages (but without limiting its right to receive a refund of the Allocated Deposit Amount for such terminated Property), its direct and actual out-of-pocket expenses and costs (documented by paid invoices to third parties) in connection with the Property for which this Contract has been terminated, which damages shall not exceed $75,000 per terminated Property. Purchaser may seek specific performance of defaulting Seller’s obligation to deliver the Deed pursuant to this Contract only if, as a condition precedent to initiating such litigation for specific performance, Purchaser first shall (i) not otherwise be in default under this Contract and (ii) file suit therefor with the court on or before the ninetieth (90th) day after the Closing Date. Purchaser agrees that it shall promptly deliver to each Seller an assignment of all of Purchaser’s right, title and interest in and to (together with possession of) all plans, studies, surveys, reports, and other materials paid for with the out-of-pocket expenses reimbursed by Sellers pursuant to the foregoing sentence. SELLERS AND PURCHASER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE PURCHASER’S EXCLUSIVE REMEDY AGAINST SELLERS, BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY ANY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLERS FOR ANY BREACH BY A SELLER, OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY LIEN AGAINST ANY PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AND IS DILIGENTLY PURSUING AN ACTION SEEKING SUCH REMEDY.
