Common use of Buyer’s Remedies Clause in Contracts

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.

Buyer’s Remedies. In If the event that Diamond breaches Closing has not occurred due to a breach by Seller in any warranty material respect any of its obligations or representations or warranties contained in this Agreement, or if Seller fails to consummate this Agreement for any reason other provision than Buyer's default or the permitted termination of these Terms and Conditionsthis Agreement by Seller or Buyer as herein expressly provided, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"), Buyer’s exclusive remedy Buyer shall be the repair or replacemententitled, at Diamond's optionas its sole remedy, 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 either (a) within ten (10) days after receipt to terminate this Agreement and receive the return of the goods with respect entire Deposit (including both the First Deposit and Second Deposit, and whether or not the Inspection Period was extended), which return shall operate to terminate this Agreement and release Seller from any claim not covered by the warranty set forth in Section 4 hereinand all liability hereunder, 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 enforce specific performance of Seller's obligation to notify Diamond timely of a claim, execute the goods shall be deemed accepted by Buyer without objection and any such claim by Buyer shall be waived. Defective goods shall be returned documents required to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 to convey the attention of Customer Service Department. [Replacement product shall be made available Property to Buyer, F.O.B., in Upper Sandusky, Ohio. Freight costs, if any, it being understood and agreed that the remedy of specific performance shall not 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 available to any future, present or prior sales transactions involving any new or used goods or enforce any other obligation of Diamond Seller hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (a) above) if Buyer fails to file a cause of action for specific performance against Seller on or before ninety (90) days after written notice of termination from Seller or ninety (90) days after the originally scheduled Closing Date, whichever shall occur first. If specific performance is not available due to the fact that Seller has conveyed the Property to a third party, then upon termination of this Agreement by Buyer, in addition to receiving the immediate return of the Deposit, anything in the Agreement contained to the contrary notwithstanding, Buyer shall also receive from Seller, upon demand, Buyer’s actual, documented out-of-pocket costs and expenses associated with conducting its due diligence related to the Property; provided, however, Seller’s maximum reimbursement liability with respect to the foregoing shall not exceed $300,000.00. The rights and remedies provided to Buyer herein of this Article VI 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 survive Closing 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 ACCRUEStermination of this Agreement. THE EXCLUSION OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIVE, FOREGOING REMEDIES ARE IN ADDITION TO AND ARE NOT INTENDED TO LIMIT SELLER'S OR BUYER’S INDEMNITY OBLIGATIONS UNDER OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYSECTIONS HEREOF.

Buyer’s Remedies. In (a) If Seller breaches this Agreement prior to the event that Diamond breaches Closing for any warranty reason except failure by Buyer to perform its obligations, or other provision if prior to Closing any one or more of these Terms Seller’s representations or warranties are breached in any material respect, Buyer shall elect, as its sole remedy, either to (i) terminate this Agreement by giving notice to Seller of such election prior to or at Closing, whereupon the Deposit shall be returned to Buyer and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"), Seller shall reimburse Buyer for Buyer’s exclusive out-of-pocket costs incurred in connection with the negotiation and performance under this Agreement, but not in excess of One Hundred Thousand Dollars ($100,000); or (ii) waive such breach and proceed to Closing; or (iii) pursue the remedy of specific performance. Notwithstanding anything herein to the contrary, Buyer 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 deemed to have elected to terminate this Agreement if as a result of warranty under Seller’s breach Buyer does not proceed to Closing and thereafter fails to give Seller notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ninety (90) 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 ninety (90) days following the scheduled Closing Date. Buyer’s remedies shall be limited to those described in this Section 4 herein or resulting from rectification, installation, return of goods 7.2. Nothing contained in the foregoing shall serve to Diamond, or otherwise. Under no circumstances shall the liability of Diamond, whether in contract, tort, warranty waive or otherwise exceed the purchase price limit Buyer’s remedies or damages for claims 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 against Seller with respect to any claim not covered obligations of Seller that, by the warranty set forth in Section 4 hereinterms of this Agreement, 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 survive the close 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 Escrow or any affiliate thereof termination of this Agreement before the Closing or its directors, officers or employees, or any affiliate thereof with respect impair buyer’s rights to any future, present or prior sales transactions involving any new or used goods or any other obligation obtain from Seller all costs and expenses 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 PERILenforcing this Agreement. IN NO EVENT SHALL DIAMOND'S AGGREGATE SELLER’S MEMBERS OR ITS OR THEIR DIRECT OR INDIRECT MEMBERS, PARTNERS, SHAREHOLDERS OR AFFILIATES, ANY OFFICER, MANAGER, MEMBER, DIRECTOR, EMPLOYEE, OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY TO BUYER ARISING OUT OFFOR ANY CLAIM, 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. OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXCLUSION OF INDIRECTPROPERTY, INCIDENTALWHETHER BASED ON CONTRACT, CONSEQUENTIALCOMMON LAW, LIQUIDATEDSTATUTE, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYEQUITY OR OTHERWISE.

Buyer’s Remedies. In the event that Diamond breaches If Seller shall default in 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 terms or provisions of any claim regarding defective or nonconforming goods (a) this Agreement prior to the Closing Date, and shall fail to cure such default within ten (10) days after receipt of following written notice thereof given by Buyer to Seller, Buyer may elect as its sole and exclusive remedy to either: (a) terminate this Agreement by written notice to Seller and Escrow Agent, whereupon the goods with respect Deposit and the Extension Deposit (if applicable) shall promptly be returned to any claim not covered by the warranty set forth in Section 4 herein, or Buyer; (b) waive such default and consummate the transaction contemplated hereby in accordance with the terms hereof; or (c) institute all proceedings necessary to specifically enforce the terms of this Agreement; provided, however, any action for specific performance must be instituted within ten thirty (1030) days after a defect is or should have been discovered with respect of any alleged breach of this Agreement by Seller. Buyer agrees that its failure to any claim covered by timely commence such warranty. If Xxxxx fails to notify Diamond timely of a claim, the goods an action for specific performance within such thirty (30) day period shall be deemed accepted a waiver by it of its right to commence such an action. Buyer without objection waives any right to seek or obtain monetary damages in connection with any default by Seller under this Agreement, and any such claim by in no event shall Buyer shall be waived. Defective goods shall be returned entitled 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, consequential or punitive or any other damages. DIAMOND NOTWTHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR APPLICABLE LAW, IN THE EVENT BUYER CLAIMS A DEFECT IN TITLE TO THE PROPERTY, BUYER SHALL NOT BE LIABLE EXHAUST ALL OF ITS RIGHTS AND REMEDIES UNDER THE TITLE POLICY AS A CONDITION PRECEDENT TO ASSERTING ANY CLAIM THAT 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 MAY HAVE 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 THIS AGREEMENT OR IN CONNECTION WITH THE SALE OF ANY GOODS UNDER DEED. 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 SECTION 14 SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYCLOSING.

Buyer’s Remedies. In If the Closing fails to occur by reason of Seller’s improper failure or refusal to perform its obligations hereunder and same is not cured within seven (7) days after Seller’s receipt of written notice thereof from Buyer (but in no event that Diamond breaches any warranty or other provision later than the date of these Terms and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"Closing), Buyer’s exclusive remedy then Buyer 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 entitled 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 its sole remedy either (a) within ten (10) days after receipt to terminate this Agreement and to the return of the goods Deposit, together with respect any and all Buyer’s Costs (as hereinafter defined) incurred as of the date of such termination up to any claim not covered by the warranty set forth in Section 4 hereina maximum of $75,000, 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 seek specific performance of Seller’s obligation to notify Diamond timely of a claim, sell 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 Property to Buyer, F.O.B., in Upper Sandusky, Ohio. Freight costs, if any, it being understood and agreed that the remedy of specific performance shall not 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 available to any future, present or prior sales transactions involving any new or used goods or enforce any other obligation of Diamond Seller hereunder. These remedies are mutually exclusive and Buyer must elect, by notice to Seller and Escrow Holder, which of these remedies it wishes to pursue no later than forty-five (45) days after the date scheduled for the Closing Date. Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit as provided above if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. For purposes of this Agreement, “Buyer’s Costs” shall mean the actual expenses incurred by Buyer and paid (i) to Buyer’s attorneys for reasonable fees in connection with the negotiation of this Agreement or the proposed purchase and/or financing of the Property, (ii) to third party consultants in connection with the performance of examinations, inspections and/or investigations performed by Buyer or Buyer’s Agents, and (iii) to any potential lender in connection with any proposed financing of the Property. 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 equityNOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, including without limitation, INDIRECT, incidental, consequential, liquidated, punitive or any other damages. DIAMOND IN NO EVENT 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, SELLER’S LIABILITY UNDER THIS AGREEMENT AND/OR ANY OTHER DAMAGES), OR ANY CLAIMS OR DEMANDS BROUGHT BY OR AGAINST BUYER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, RELATED DOCUMENTS (INCLUDING, WITHOUT LIMITATION, DIAMOND'S NEGLIGENCEANY AND ALL LIABILITY RESULTING FROM, BREACH OF CONTRACT, CONNECTED WITH 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 : (i) ANY BREACH OR IN CONNECTION WITH THE SALE VIOLATION BY SELLER OF ANY GOODS UNDER REPRESENTATION, WARRANTY, COVENANT, AGREEMENT OR PROMISE OF SELLER SET FORTH IN THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID TO DIAMOND BY BUYER FOR SUCH GOODS. OR 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 RELATED DOCUMENTS, (ii) SELLER’S DEFAULT HEREUNDER OR FAILURE TO COMPLY WITH ANY DUTY, RESPONSIBILITY OR OBLIGATION OF SELLER SET FORTH IN THIS AGREEMENT OR ANY LIMITED REMEDYRELATED DOCUMENT, AND/OR (iii) ANY INDEMNIFICATION OBLIGATIONS OF SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET FORTH IN SECTION 10.16 OF THIS AGREEMENT) OR ANY OF THE CLOSING DOCUMENTS) EXCEED, IN THE AGGREGATE, THE AMOUNT OF THE CAP.

Buyer’s Remedies. In the event that Diamond breaches Seller fails to perform its obligations pursuant to this Agreement for any warranty or other provision of these Terms reason (unless excused and Conditionsas to Seller’s alleged defaults, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectivelyonly after notice and opportunity to cure, "Agreement"if any, has expired), Buyer’s exclusive remedy then Buyer shall elect, as its sole remedy, either to: (i) terminate this Agreement by giving Seller written notice of such election on or prior to the Closing Date, in which case (a) the entire Deposit shall be promptly delivered to Buyer, and (b) Seller shall reimburse to Buyer its actual out-of-pocket third party costs and expenses incurred in connection with its contemplated acquisition of the repair Property (including, but not limited to, reasonable attorney fees) in an amount not to exceed $100,000.00 and thereafter neither party shall have any further rights or replacementobligations hereunder, except the Surviving Obligations; or (ii) enforce specific performance of this Agreement; provided, however, that Buyer shall bring an action for specific performance, if at Diamondall, no later than ninety (90) days after the date upon which Buyer first delivered written notice of Seller's optionbreach. The remedies set forth in subclauses (i) and (ii) hereinabove are Buyer's sole and exclusive remedies with respect to Seller's default, of and Buyer waives any defective goodsand all other remedies as may be available at law or in equity in connection with such Seller's default. Under Notwithstanding the foregoing, if: (1) specific performance is not available to Buyer due to Seller no circumstances shall Diamond be liable for any reimbursement of labor costs incurred by longer holding title to the Buyer whether Property as a result of warranty under Section 4 herein or resulting from rectification, installation, return of goods conveying the Property 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, an unaffiliated third party purchaser for value; or (b2) within ten Seller's breach is its willful refusal to convey the Property to Buyer at Closing (10with Buyer not being in breach and being ready, willing and able to perform), then Buyer may pursue an action at law for all actual losses and damages (specifically excluding consequential and punitive damages) days after a defect is suffered 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 incurred by Buyer without objection arising out of or relating to Seller’s default. In addition, nothing in this Section shall limit Buyer's right to recover its reasonable attorneys' fees and any such claim by Buyer shall be waived. Defective goods shall be returned court costs pursuant 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 expensethis Agreement.] 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.

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 If Seller fails to perform its obligations pursuant to this Agreement for any reimbursement of labor costs incurred reason except failure by the Buyer whether as a result of warranty under Section 4 herein or resulting from rectification, installation, return of goods to Diamondperform hereunder, or otherwise. Under no circumstances shall if prior to Closing any one or more of Seller’s representations or warranties are breached in any material respect and Buyer was not aware of such breach of such representations and warranties prior to the liability of Diamond, whether in contract, tort, warranty or otherwise exceed the purchase price end of the goods. Inspection Period, then, Buyer must notify Diamond in writing shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of any claim regarding defective such election prior to or nonconforming goods at Closing and recover the Exxxxxx Money and Seller shall pay to Buyer an amount equal to the lesser of (a) within ten (10) days after receipt of the goods Buyer’s out-of-pocket expenditures incurred in connection with respect to any claim not covered by the warranty set forth in Section 4 hereinnegotiating this Agreement and/or conducting due diligence activities contemplated hereunder, or (b) within ten $100,000.00, (10ii) days after a defect is enforce specific performance, or should have been discovered with respect (iii) waive said failure or breach and proceed to any claim covered by such warrantyClosing. If Xxxxx fails Notwithstanding anything herein to notify Diamond timely of a claimthe contrary, the goods Buyer shall be deemed accepted by to have elected to terminate this Agreement if Buyer without objection and any 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 twenty (20) 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. If, however, specific performance is not available to Buyer as the result of the willful and wrongful sale or transfer of the Property by Seller to another party, Buyer shall be waivedhave the right to seek actual damages from Seller in an amount not to exceed $250,000.00. Defective goods For purposes of this provision, specific performance shall be returned considered not available to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 Buyer only if a court of competent jurisdiction determines conclusively that Buyer is entitled to specific performance on the attention merits of Customer Service Departmentits claim but said court is unable to enforce specific performance due to reasons beyond the control of the court. [Replacement product Buyer’s remedies shall be made available limited to Buyer, F.O.B., those described in Upper Sandusky, Ohio. Freight costs, if any, shall be at Buyer’s expense.] Xxxxx acknowledges this Section 10.2 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 Sections 10.3 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 PERIL10.4 hereof. IN NO EVENT SHALL DIAMOND'S AGGREGATE EITHER PARTY’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 TO BUYER ARISING OUT OFFOR ANY CLAIM, 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. OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXCLUSION OF INDIRECTPROPERTY, INCIDENTALWHETHER BASED ON CONTRACT, CONSEQUENTIALCOMMON LAW, LIQUIDATEDSTATUTE, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYEQUITY OR OTHERWISE.

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 If (a) Seller shall default in any of its obligations to be performed on the Scheduled Closing Date or (b) Seller shall default in the performance of any of its material obligations to be performed prior to the Scheduled Closing Date and, with respect to any default under this clause (b) only, such default shall continue for five (5) business days after notice to Seller, Buyer as its sole remedy by reason thereof (in lieu of prosecuting an action for damages or proceeding with any other legal or equitable course of conduct, the right to bring such actions or proceedings being expressly and voluntarily waived by Buyer, to the extent legally permissible, following and upon advice of its counsel) shall have the right, subject to the other provisions of this Paragraph 18.1, (i) to seek to obtain specific performance of Seller’s obligations hereunder, provided that any action for specific performance shall be commenced within ninety (90) days after Buyer obtains actual knowledge of such default, and if Buyer prevails thereunder, Seller shall reimburse Buyer for all reasonable legal fees, court costs and all other reasonable costs of such action or (ii) to terminate this Agreement and receive a return of the Deposit; provided, that if and only if Seller’s affirmative and intentional conduct in violation of this Agreement causes the remedy of specific performance to not be available to Buyer, Seller shall also pay Buyer within ten (10) days after receipt of Buyer’s demand therefor (which shall be accompanied by reasonable back-up documentation) an amount equal to the goods with respect Reimbursable Expenses, it being understood that if Buyer fails to any claim not covered by the warranty set forth in Section 4 herein, or commence an action for specific performance within ninety (b) within ten (1090) days after such default, Buyer’s sole remedy shall be to terminate this Agreement and receive a defect is or should have been discovered with respect return of the Deposit and reimbursement of the Reimbursable Expenses, if applicable. If Buyer elects to seek specific performance of this Agreement, then as a condition precedent to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely suit for specific performance, Buyer shall on or before the Scheduled Closing Date, time being of a claimthe essence, fully perform all of its obligations hereunder which are capable of being performed (other than the goods payment of the Purchase Price, which shall be deemed accepted paid as and when required by Buyer without objection the court in the suit for specific performance). Upon such return and delivery, this Agreement shall terminate and neither party hereto shall have any such claim by Buyer shall be waived. Defective goods shall be returned further obligations hereunder except for those that are expressly provided in this Agreement to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 to survive 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 expensetermination hereof.] 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.

Buyer’s Remedies. If Buyer shall elect to proceed with the performance of this Contract notwithstanding the failure to be satisfied of any conditions to Closing, Buyer shall be deemed to have waived the requirement that those conditions which Seller is unable to perform be satisfied. Notwithstanding anything contained herein, in no event shall Seller, its officers, directors, partners, agents and representatives have any personal liability under this Contract whatsoever except with respect to those provisions of this Contract which expressly survive the Closing, and Buyer's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract shall be to receive a refund of the Downpayment with all accrued interest thereon upon termination of this Contract or, if appropriate, to xxx for specific performance hereunder. In the event that Diamond breaches any warranty or other provision Seller fails to consummate the Closing in accordance with the terms of these Terms this Contract, Buyer may terminate this Contract and Conditions, any Sales Confirmation or any other agreement respecting shall receive a "Termination Fee" in the amount of $750,000 which Termination Fee shall be in addition to the return of the Downpayment plus all accrued interest thereon plus Buyer's out-of-pocket costs and expenses relating to the purchase or of the Properties (including, without, limitation, reasonable attorneys' fees and expenses) to be paid by Seller on demand. Notwithstanding the foregoing, in the event Seller fails to consummate the Closing for failure to obtain the Partnership Consent, so long as the general partners of Seller have recommended and continue to recommend to the limited partners of Seller the sale of goods from Diamond the Properties to Buyer, the Termination Fee shall consist solely of all of Buyer's out-of-pocket costs and expenses relating to the purchase of the Properties (collectivelyincluding, "Agreement"without, limitation, reasonable attorneys' fees and expenses), . Buyer’s exclusive remedy 's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract 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 Termination Fee, as set forth in Section 4 hereinabove, or (b) within ten (10) days after a defect is or should have been discovered upon termination of this Contract, together with respect to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely the return of a claimthe Downpayment plus all accrued interest thereon, 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 costsor, if anyappropriate, shall be at Buyer’s expenseto xxx for specific performance hereunder.] 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.

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 Buyer 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 Buyer 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 DIAMOND 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.

Buyer’s Remedies. In the event that Diamond breaches If SELLER fails to perform its obligations pursuant to this Agreement for any warranty reason except failure by BUYER to perform hereunder, or other provision if prior to Closing any one or more of these Terms SELLER’s representations or warranties are breached in any material respect, BUYER shall elect, as its sole remedy (except as provided in this Section and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"Section 9), Buyer’s exclusive remedy either to (i) terminate this Agreement by giving SELLER timely written notice of such election prior to or at Closing and recover the Deposit, (ii) solely enforce specific performance, or (iii) waive said failure or breach and proceed to Closing. Notwithstanding anything herein to the contrary, BUYER shall be the repair deemed to have elected to terminate this Agreement if BUYER fails to deliver to SELLER written notice of its intent to file a claim or replacement, at Diamond's option, assert a cause of any defective goods. Under no circumstances shall Diamond be liable action for any reimbursement of labor costs incurred by the Buyer whether as a result of warranty under Section 4 herein specific performance against SELLER on 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 before ten (10) business days after receipt of following the goods with respect to any claim not covered by the warranty set forth in Section 4 hereinscheduled Closing Date, or (b) within ten (10) days after a defect is or should have been discovered with respect to any claim covered by or, having given such warranty. If Xxxxx notice, fails to notify Diamond timely file a lawsuit asserting such claim or cause of a claim, action in the goods county in which the Property is located within two (2) months following the scheduled Closing Date. BUYER’s remedies shall be deemed accepted by Buyer without objection and any such claim by Buyer shall be waived. Defective goods shall be returned limited 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., those described 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 PERILthis Section hereof. IN NO EVENT SHALL DIAMOND'S AGGREGATE SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, MEMBER, MANAGER OR EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY TO BUYER ARISING OUT OFFOR ANY CLAIM, 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 ACCRUESOR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. THE EXCLUSION OF INDIRECTOther Expenses. If this Agreement is terminated due to the default of a party, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYthen the defaulting party shall pay any fees or charges due to Escrow Agent for holding Deposit as well as any escrow cancellation fees or charges.

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 Seller fails to perform its obligations pursuant to this Agreement for any reimbursement reason (other than a failure on the part 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 satisfy 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 condition set forth in Section 4 herein, this Agreement 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 failure by Buyer without objection and any to otherwise perform hereunder), then Buyer shall elect, as its sole remedy, either to: (i) terminate this Agreement by giving Seller timely written notice of such claim by election prior to or upon the Closing Date, provided that upon such termination, Buyer shall no longer be entitled to purchase the Property, Buyer shall be waived. Defective goods entitled to return of the entire portion of the Deposit then held by Escrow Holder, the parties shall each pay one-half (1/2) of any cancellation fee charged by the Escrow Holder and/or Title Company, and the parties shall be returned relieved of any further obligation to Diamond Roll Up Dooreach other, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 to the attention of Customer Service Department. [Replacement product shall be made available to except for Buyer, F.O.B., in Upper Sandusky, Ohio. Freight costs’s and Seller’s obligations, if any, under Sections 3.2, 3.4.2, 3.4.3, 3.5, 12.2, 12.9 and 12.16; or (ii) enforce specific performance of this Agreement (if and only to the extent permitted by applicable law), in which event there shall be at no reduction of the Purchase Price. Notwithstanding the foregoing, if Seller fails to perform any of its obligations pursuant to this Agreement prior to the end of the Inspection Period and said obligations were required to be performed within said period of time (such that said failure to perform may constitute a material breach or default of this Agreement on the part of Seller), Buyer shall be deemed to have waived such breach or default by Seller if Buyer has elected to approve Buyer’s expense.] Xxxxx acknowledges and agrees that it will not Inspections pursuant to Section 3.6. Furthermore, Buyer shall be deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove if Buyer fails to deliver to Seller written notice of its intent to commence action to assert a claim for specific performance against Seller on or before sixty (60) days following the scheduled Closing Date, or having given such notice fails to commence such action asserting said claim within ninety (90) days following the scheduled Closing Date. Notwithstanding the foregoing to the contrary, no notice of termination given by Buyer hereunder shall be of any force or effect if Seller cures the default within five (5) business days after Seller's receipt of any such termination notice. If Buyer duly elects to terminate or is deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove, then Buyer shall and hereby agrees in such event to waive any and all right of offset to file or recoupment against Diamond record any lis pendens or any affiliate thereof other lien or its directorsencumbrance against the Property or to seek specific performance or other equitable relief or to seek or recover from Seller any damages (including, officers without limitation, any actual direct, indirect, consequential, punitive or employees, or any affiliate thereof other damages). The foregoing remedies set forth in clauses (i) and (ii) hereinabove are Buyer's sole and exclusive remedies with respect to Seller's default, and Buyer waives any futureand all other remedies as may be available at law or in equity in connection with such Seller's default (subject, present or prior sales transactions involving any new or used goods or any other obligation of Diamond however, to Buyer's right to recover its reasonable attorneys' fees and court costs pursuant to Section 12.9). The rights Any and remedies provided to Buyer herein shall be the SOLE all covenants and EXCLUSIVE rights and remedies obligations of Buyer and Buyer hereby waives all other rights and remedies provided by applicable law or equitySeller contained in this Agreement (including, including without limitation, INDIRECTany default by Seller of any such obligations and covenants) shall merge into the Deed and other Closing documents upon the Xx xxxxx, incidentaland shall not survive the Closing, 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 REMEDYexcept to the extent otherwise expressly provided elsewhere in this Agreement.

Buyer’s Remedies. In the event that Diamond breaches Any and all recourse against, and liability of, Seller for any warranty breach, or other provision of these Terms and Conditionsany inaccuracy with respect to, any Sales Confirmation representation or warranty of Seller contained in this Agreement, or each of the other documents and instruments delivered in connection therewith, shall be limited to the return of the Purchase Shares hereunder, and the sole and exclusive remedy by Buyer against Seller for breach, or inaccuracy of, any other agreement respecting such representation or warranty shall be limited to recourse against the purchase Purchase Shares. Further, Buyer shall have no right to seek indemnification, reimbursement, or sale of goods from Diamond defense under this Section 9.2 until its losses exceed $150,000 in the aggregate (collectively, "Agreement"the “Threshold”), Buyer’s exclusive remedy provided, that in such event, Buyer will be entitled to recover its losses, including the Threshold amount. The maximum amount of any liability of Seller to Buyer under this Section 9.2 shall not exceed $2,000,000 in value (the “Cap”). Any action by Buyer against Seller under this Section 9.2, subject to the Threshold and the Cap, 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 recoverable either 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 Seller’s prompt return of the goods Purchase Shares (or a reduction in the number of Additional Shares to be issued by Buyer to Seller) having a value equal to the amount recoverable by Buyer under this Section 9.2 with respect to any claim not covered by such Purchase Shares (or Additional Shares) being valued at the warranty set forth in Section 4 herein, Average Price as of the Anniversary Date for such shares; or (b) within ten (10) days after a defect is or should have been discovered in the event Buyer elects to repurchase the Purchase Shares from Seller in accordance with respect the provisions of Section 2.1, by deducting such amount from the purchase price to any claim covered be paid by such warrantyBuyer to Seller for the repurchase of the Purchase Shares hereunder. If Xxxxx fails Notwithstanding anything to notify Diamond timely of a claimthe contrary contained in this Agreement, 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 Threshold will apply only to Buyer’s direct damages or claims, F.O.B., in Upper Sandusky, Ohio. Freight costs, if any, and shall be at not apply to Buyer’s expenseconsequential damages or possible punitive damage claims against Seller.] 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.

Buyer’s Remedies. In the event that Diamond breaches of a default by Seller under this Agreement prior to or at Closing, Buyer shall provide Sellers written notice of such default and Sellers shall have five (5) Business Days to cure such default. In the event Sellers do not cure such default within such five (5) Business Days, Buyer may, at Buyer's option, subject to the notification and extension options set forth in SECTION 6.1.11, in its absolute and sole discretion, do any warranty one of the following: (i) terminate this Agreement by written notice delivered to Seller at any time on or other provision of these Terms before the Closing in which event Buyer may seek actual damages against Seller in an amount equal to all third party costs incurred by Buyer (and Conditionsnot previously paid by Seller) plus the actual costs and expenses, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond including travel expenses, incurred by Hospital Affiliates Development Corporation (collectively, "AgreementHADC") (not to exceed Five Thousand Dollars ($5,000) plus actual travel expenses), Buyer’s exclusive remedy shall be 's affiliate or third parties, to perform the repair due diligence set forth in the Inspection Period (not including legal or replacementaccounting services) not to exceed Thirty Thousand Dollars ($30,000) dollars in the aggregate, at Diamond's option, (which amount is in addition to the return of any defective goods. Under no circumstances shall Diamond be liable for any reimbursement the Deposit); or (ii) enforce specific performance of labor this Agreement against Seller (including reasonable attorneys' fees and court costs incurred by Buyer in such specific performance action). In the event Buyer whether as elects to terminate this Agreement in accordance with this Section, this Agreement shall terminate and the parties shall have no further obligations to or recourse against each other, except set forth herein and the provisions of SECTION 3.8.2 shall apply. In the event 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 failure of the goods. Buyer must notify Diamond in writing conditions of any claim regarding defective or nonconforming goods SECTION 6.1, is not within the control of Seller, Buyer's remedy shall be: (a) within ten (10) days after receipt to terminate the Agreement, the Deposit shall be returned to Buyer and this termination shall be subject to the provisions of the goods with respect to any claim not covered by the warranty set forth in Section 4 herein, SECTION 3.9 or (b) within ten (10) days after a defect is or should have been discovered with respect proceed to any claim covered by Closing and if Buyer makes such warranty. If Xxxxx fails to notify Diamond timely of a claimelection, the goods Seller shall be deemed accepted released of all liability in connection with those matters waived by Buyer; (c) adjourn the Closing for a reasonable period of time to secure such third party requirements to satisfy the conditions of SECTION 6.1. In the event the default by Seller arises from matters discovered by Buyer without objection and any such claim by subsequent to Closing, Buyer shall be waived. Defective goods shall be returned entitled to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 to the attention pursue all 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 its remedies 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 in 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.

Buyer’s Remedies. In If, on the event that Diamond breaches Closing Date, (i) Seller is in default of any warranty of its obligations hereunder, or other provision (ii) any of these Terms Seller’s Warranties are, in the aggregate, untrue, inaccurate or incorrect in any material respect, as specified in Section 11.3(b), or (iii) the Closing otherwise fails to occur on the Closing Date by reason of Seller’s failure or refusal to perform its obligations hereunder in a prompt and Conditionstimely manner or a failure of a condition to Buyer’s obligation to close, which failure arises as a consequence of a default by Seller hereunder, and any Sales Confirmation such circumstance described in any of clauses (i), (ii) or any other agreement respecting (iii) continues uncured for five (5) business days after written notice from Buyer to Seller, which written notice shall detail such default, untruth or failure, as applicable, then Buyer may elect, as its sole and exclusive remedy, to: (a) terminate this Agreement by written notice to Seller, in which case (A) the purchase or sale Base Building Deposit shall be returned to Buyer, and (B) Seller shall pay to Buyer (x) the entire amount deposited from time to time by Buyer in the Buyer Directed Change Order Escrow Account (the “Buyer Change Order Funds”), (y) the accrued and unpaid Penalty Amount, and (z) the actual out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement and the actions undertaken by Buyer in connection therewith, including, without limitation, the actual out-of-pocket costs of goods from Diamond (collectively, "Agreement")Buyer’s Due Diligence, Buyer’s exclusive remedy Representatives, Construction Consultant, and Change Orders, but in no event shall be Buyer’s recovery under this clause (z) exceed Five Hundred Thousand Dollars ($500,000) (the repair “Cost Cap”), and, thereafter, the parties shall have no further rights or replacement, at Diamond's option, obligations hereunder except for obligations which expressly survive the termination 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, this Agreement; or (b) within ten enforce specific performance of Seller’s obligation to satisfy the Completion Requirements and convey the Property (10in which case (a) days after a defect if Buyer is or should have been discovered with respect to any claim covered by the prevailing party in 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 action Buyer shall be waived. Defective goods entitled to recover from Seller its reasonable attorneys’ fees and costs incurred in such action for specific performance and (b) if Seller is the prevailing party, Seller shall be returned entitled 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., recover from Buyer its reasonable attorneys’ fees and costs incurred in Upper Sandusky, Ohio. Freight costs, if any, shall be at Buyer’s expensesuch action for specific performance).] 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.

Buyer’s Remedies. If Buyer shall elect to proceed with the performance of this Contract notwithstanding the failure to be satisfied of any conditions to Closing, Buyer shall be deemed to have waived the requirement that those conditions which Seller is unable to perform be satisfied. Not withstanding anything contained herein, in no event shall Seller, its officers, directors, partners, agents and representatives have any personal liability under this Contract whatsoever except with respect to those provisions of this Contract which expressly survive the Closing, and Buyer's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract shall be to receive a refund of the Downpayment with all accrued interest thereon upon termination of this Contract or, if appropriate, to xxx for specific performance hereunder. In the event that Diamond breaches any warranty or other provision Seller fails to consummate the Closing in accordance with the terms of these Terms this Contract, Buyer may terminate this Contract and Conditionsshall receive a "Termination Fee" in the amount of $750,000, any Sales Confirmation or any other agreement respecting which Termination Fee shall be in addition to the return of the Downpayment plus all accrued interest thereon plus Buyer's out of pocket costs and expenses relating to the purchase or of the Property (including, without, limitation, reasonable attorneys' fees and expenses) to be paid by Seller on demand. Notwithstanding the foregoing, in the event Seller fails to consummate the Closing for failure to obtain the Partnership Consent, so long as the general partners of Seller have recommended and continue to recommend to the limited partners of Seller the sale of goods from Diamond the Property to Buyer, the Termination Fee shall consist solely of all of Buyer's out-of-pocket costs and expenses relating to the purchase of the Property (collectivelyincluding, "Agreement"without, limitation, reasonable attorneys' fees and expenses), . Buyer’s exclusive remedy 's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract 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 Termination Fee, as set forth in Section 4 hereinabove, or (b) within ten (10) days after a defect is or should have been discovered upon termination of this Contract, together with respect to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely the return of a claimthe Downpayment plus all accrued interest thereon, 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 costsor, if anyappropriate, shall be at Buyer’s expenseto xxx for specific performance hereunder.] 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.

Buyer’s Remedies. In If there is an Event of Default (as defined in Section 16.1) of Seller under this Agreement (and Buyer does not elect to waive such Event of Default) or Seller fails or refuses to consummate the transaction contemplated hereby on the Closing Date for any reason other than Buyer’s material default, failure of any condition to Seller’s obligation to close, or the exercise by Seller of an express right of termination granted herein, then Buyer, as its sole and exclusive remedy at law and in equity in the event of a breach or default by Seller hereunder (and all other claims for other remedies at law or equity are expressly waived by Buyer hereunder), may either (i) terminate this Agreement, in which event the Deposit shall be immediately returned to Buyer and neither party shall have any further Liability hereunder except for those Liabilities that expressly survive termination of this Agreement, or (ii) commence an action for specific performance of Seller’s obligations under this Agreement other than its obligations with respect to the First Mortgage Loan Approvals (except that if Buyer is the prevailing party in any such action for specific performance, then the court that conducts such action shall award to Buyer all costs and expenses that it incurs in connection with such action, including, without limitation, reasonable attorneys’ fees and costs). As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder for purposes of conveyance of the Property, Buyer must commence such an action within one hundred twenty (120) days after the Closing Date. Except for any such action for specific performance for purposes of conveyance of the Property, any action for specific performance under or with respect to this Agreement must be commenced prior to the Closing. Buyer agrees that its failure to timely commence an action for specific performance within the applicable time period set forth above shall be deemed a waiver of its right to commence such an action as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of an action or similar notice against all or any portion of the Property. If this Agreement is terminated pursuant to clause (i) above as the result of a Seller default hereunder, then Seller agrees to (x) reimburse Buyer for its reasonable and verifiable out of pocket due diligence expenses and attorney’s fees paid in connection with the transactions contemplated in this Agreement up to a maximum of $250,000, and (y) in the event that Diamond breaches any warranty specific performance for the purpose of conveyance of the Property is unavailable because Seller sold OR CONTRACTED TO SELL one or other provision more of these Terms the Developments to a third-party, then Seller shall also pay to Buyer an amount equal to Five Million Six Hundred Thousand Dollars ($5,600,000) as liquidated damages. The parties acknowledge that if Seller defaults hereunder and Conditions, any Sales Confirmation specific performance for the purpose of conveyance of the Property is unavailable because Seller sold OR CONTRACTED TO SELL one or any other agreement respecting more of the purchase or sale of goods from Diamond (collectively, "Agreement")Developments to a third-party, Buyer’s exclusive remedy shall damages will 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 costsdifficult, if any, shall be at Buyer’s expense.] Xxxxx acknowledges not impossible to ascertain and agrees therefore agree that it will not assert a right the payment of offset or recoupment against Diamond or any affiliate thereof or its directors, officers or employees, or any affiliate thereof with respect $5,600,000 to any future, present or prior sales transactions involving any new or used goods or any other obligation of Diamond Buyer as liquidated damages is fair and reasonable compensation to Buyer. The rights and remedies provided SUCH PAYMENT BY THE SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO BUYER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION. Buyer’s Initials: /s/ SE Seller’s Initials (on behalf of each Seller): /s/ BP In no event shall Seller or any Seller Party be liable 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 equityany Permitted Title Nominee for any indirect, including without limitationconsequential, INDIRECTexemplary, incidental, consequential, liquidated, punitive or any other special 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.

Buyer’s Remedies. This section sets forth the sole and exclusive rem- edies of Buyer in conformity with Sections 10 (“Warranties”) and 11 (“Limitation of Damages”) herein, and is expressly in lieu of any other rights or remedies which might be available to Buyer by law. The Buyer hereby accepts the bene!t of the consignor’s warranty of title and any other representations and warranties made by the consignor for the Buyer’s bene!t. In the event that Diamond breaches Buyer proves in writing to Pro!les’ satisfaction that there was a breach of the consignor’s warranty of title concerning a lot purchased by Buyer, Pro!les shall make demand upon the consignor to pay to Buyer the Purchase Price (including any warranty premiums, taxes, or other provision of these Terms and Conditionsamounts paid or due to Pro!les). Should the consignor not pay the Purchase Price to Buyer within thirty days after such demand, any Sales Confirmation or any other agreement respecting Pro!les shall disclose 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 identity of the goods. consignor to Buyer must notify Diamond in writing and assign to Buyer all of any claim regarding defective or nonconforming goods (a) within ten (10) days after receipt of Pro!les’ rights against the goods consignor with respect to any claim not covered by the warranty set forth in Section 4 hereinsuch lot or prop- erty. Upon such disclosure and assignment, 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 all responsibility 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 costsliability, 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 Pro!les with respect to any future, present said lot or prior sales transactions involving any new or used goods or any property shall automatical- ly terminate. Pro!les shall be entitled to retain the premiums and other obligation of Diamond amounts paid to BuyerPro!les - this remedy is as to the consignor only. The rights and remedies provided to herein are for the original Buyer herein shall only and they may not be assigned or relied upon by any transferee or assignee under any circumstances. Lots containing ten or more items are not returnable under any circumstances. The exercise of rights under this Section 13 must be made, if at all, within thirty (30) days of the SOLE and EXCLUSIVE rights and remedies date 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 REMEDYsale.

Buyer’s Remedies. Seller will be in default under this Agreement if, after written notice from Buyer, Seller fails to perform any of Seller’s obligations under this Agreement within ten days of receipt of such notice (or such longer period as is reasonably required in the exercise of due diligence not to exceed an additional ten days, provided Seller commences such cure within the initial ten-day period). In the event of a default by Seller not cured within the applicable cure period, Buyer may: (i) waive the effect of such matter and proceed to consummate the Closing (provided that Diamond breaches in no event will Buyer have the right to waive any warranty of Seller’s conditions precedent hereunder); (ii) terminate this Agreement in which case the Xxxxxxx Money Deposit (together with any accrued interest thereon) will be returned to Buyer; or other provision (iii) bring an appropriate action for specific performance of these Terms this Agreement. Notwithstanding the foregoing, if after completion of all Pre Closing Conditions waivable by Seller, Seller shall willfully default in its obligation to close the transaction hereunder on the Closing Date, including by initiating a Condemnation Act and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"), Buyer’s exclusive specific performance shall not be a legally available 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 to Buyer whether as a result of warranty under Section 4 herein or resulting from rectificationthereof, installation, then Buyer shall: (x) have the right to receive a return of goods the Xxxxxxx Money Deposit; and (y) be entitled to Diamond, or otherwise(and Seller shall reimburse Buyer for) Xxxxx's Costs (which reimbursement obligation shall survive the termination of this Agreement). Under no circumstances shall The term "Buyer's Costs" is defined for the liability purpose of Diamond, whether in contract, tort, warranty or otherwise exceed this Agreement as 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 costsexpenses, if any, shall be at actually incurred by Buyer for: (x) title examination, survey, and municipal searches, including the issuance of the Title Commitment and any continuation thereof, without issuance of a title insurance policy; (y) fees paid to Buyer’s expense.] Xxxxx acknowledges 's engineer and agrees that it will not assert a right of offset or recoupment against Diamond or architect for preparing any affiliate thereof or its directors, officers or employees, or any affiliate thereof environmental and engineering reports with respect to any futurethe Property and all Project design work; and (z) the actual and reasonable third-party costs incurred by Xxxxx in connection with the negotiation of this Agreement and Xxxxx's due diligence with respect to the Property, 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 equityincluding, including without limitation, INDIRECTreasonable attorneys' fees. In the event Seller pays the above costs, incidentalto the extent Buyer is permitted to assign, consequentialSeller shall have the right to obtain from Buyer all plans, liquidateddesigns, punitive or and project documents related to any other damages. DIAMOND SHALL NOT BE LIABLE TO BUYER FOR ANY LOST PROFITSimprovement contemplated for the Property and have the right to use the same for any purpose whatsoever (and Buyer shall be obligated to convey the same to Seller upon demand, 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 DAMAGESand assign any rights to Seller to authorize the use of such documents by Seller), 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.

Buyer’s Remedies. 8.5.6 If Seller breaches a material obligation under this Agreement, and Buyer is notified of or becomes aware of such breach prior to the Closing (a “Seller Default”), then Buyer’s sole and exclusive remedy shall be either to: (i) terminate this Agreement, in which event the Deposit and all interest accrued thereon shall be returned to Buyer and Seller shall reimburse Buyer to a maximum of Two Hundred Thousand and No/100 Dollars ($200,000.00) for the actual out-of-pocket costs incurred by Buyer in connection with the transaction contemplated by this Agreement, including, without limitation, actual attorney’s fees and expenses and costs incurred in connection with Buyer’s evaluation and inspection of the Property and fees or deposits forfeited to any lender providing financing to Buyer in connection with the transaction; or (ii) commence and pursue an action for specific performance (and an action for Delay Damages (as defined below)). If Buyer elects to seek specific performance of Seller’s obligation to close Escrow hereunder, Buyer must stand ready and able to tender the Purchase Price and all other sums and documents to be delivered into Escrow by Buyer hereunder but for the Seller Default. In the event that Diamond breaches any warranty or other provision intentional acts of these Terms and ConditionsSeller, any Sales Confirmation or any other agreement respecting after a Seller Default, renders specific performance unavailable to the purchase or sale Buyer, the foregoing cap on the amount of goods from Diamond (collectively, "Agreement"), Buyer’s exclusive remedy recoverable costs shall be not apply, and Buyer shall have 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 right to pursue damages related to 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 delay in the liability of Diamond, whether in contract, tort, warranty or otherwise exceed the purchase price conveyance of the goodsProperty due to Seller’s intentional acts (“Delay Damages”). Buyer must notify Diamond Notwithstanding the foregoing, nothing 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 this provision 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 limit Buyer’s expenserights to receive reimbursement for attorneys’ fees pursuant to Section 14, nor waive or affect Seller’s and Buyer’s indemnity obligations under other sections of this Agreement, which expressly survive the termination of this Agreement.] 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.

Buyer’s Remedies. In Buyer acknowledges that 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 a breach of goods from Diamond (collectively, "Agreement")this Purchase Agreement by Seller, Buyer’s exclusive right to collect damages for such breach constitutes an adequate remedy shall be at law. To induce Seller to enter into this Purchase Agreement, Buyer hereby irrevocably and expressly waives: (i) any right of specific performance under this Purchase Agreement; (ii) any right under the repair or replacementprovisions of California Civil Code Sections 3384 to 3395 inclusive; and (iii) any other claim affecting claim of title to the Property, at Diamond's option, whether by filing a notice 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, pending action or otherwise. Under no circumstances shall If, notwithstanding 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 waivers set forth in Section 4 hereinthe preceding sentence, Buyer institutes an action for specific performance 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 other relief against Seller relating to the attention Property or any portion thereof and records a notice of Customer Service Department. [Replacement product shall be made available to Buyeraction concerning such action as provided in California Code of Civil Procedure Section 405.20, F.O.B.then Buyer agrees, 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 addition 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 of Seller for Buyer’s breach of this Paragraph 30, that pending a determination by applicable law a court of competent jurisdiction of the merits of such action, Seller may, without limitation upon its other rights and remedies, bring a motion to expunge such notice of pendency of action pursuant to California Code of Civil Procedure Section 405.30 et seq. and, in connection with such notice to expunge, Buyer agrees that damages constitute adequate relief and that the financial condition of Seller is more than adequate to respond in damages to any recovery which Buyer could reasonably obtain against Seller and, therefore, Buyer waives any requirement or equity, including without limitation, INDIRECT, incidental, consequential, liquidated, punitive right that a bond or other undertaking be given or required as a condition to expunging such notice of pendency of action. If Buyer violates this provision by recording a lis pendens against the Property or any other damagesportion thereof, the court shall expunge any such notice forthwith without bond or undertaking and shall award damages to Seller. DIAMOND SHALL LIQUIDATED DAMAGES; BY PLACING THEIR INITIALS IMMEDIATELY BELOW, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTABLE OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY SELLER TO CONVEY THE PROPERTY AS REQUIRED HEREIN, THAT THE AMOUNT OF $500,000 IS THE PARTIES’ REASONABLE ESTIMATE OF BUYER’S DAMAGES IN THE EVENT OF SUCH DEFAULT BY SELLER, AND IN THE EVENT OF SUCH DEFAULT NOT BE LIABLE TO BUYER FOR CAUSED BY 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 BREACH 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 BUYER SHALL HAVE NO OBLIGATION BE RELEASED FROM ITS OBLIGATIONS 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 BUY 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 PROPERTY AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.WITHIN THREE (3) BUSINESS DAYS BE PAID SAID SUM BY SELLER AS LIQUIDATED DAMAGES, WHICH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY IN LAW OR AT EQUITY FOR SELLER’S DEFAULT. Buyer’s Initials _/s/ RH_ Seller’s Initials _/s/ GD_

Buyer’s Remedies. In the event that Diamond breaches Close of Escrow does not occur by reason of any warranty breach or other provision default by Seller under this Agreement, including any breach or inaccuracy in any representation made by Seller pursuant to paragraph 8 below as of these Terms and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale date of goods from Diamond this Agreement (collectively, "Agreement"as opposed to a failure of such representation due to changed circumstances not caused by an act of Seller), Buyer’s exclusive remedy remedies shall be limited to either (i) the repair termination of this Agreement, in which event Buyer shall be entitled to the return of the Deposit, and all accrued interest thereon, and Seller shall reimburse Buyer for Buyer’s reasonable out-of-pocket costs and expenses incurred by Buyer in entering into this Agreement and conducting its due diligence investigation of the Property and the processing of Buyer’s Entitlements, up to but not in excess of $250,000.00, as evidenced by reasonable documentation with respect thereto, which return and recovery shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or replacement(ii) an action for specific performance; provided, at Diamond's optionhowever, that if an action for specific performance is not available solely because of any defective goods. Under no circumstances act of Seller in breach of this Agreement, and at the time of such act Buyer is not then in breach or default under this Agreement, Buyer shall Diamond be liable have the right, in lieu thereof, to bring an action for any reimbursement of labor costs incurred by the Buyer whether as a result of warranty under Section 4 herein or its monetary damages resulting from rectification, installation, return of goods Seller’s default hereunder in an amount not 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 goodsThree Million Dollars ($3,000,000.00). Buyer must notify Diamond shall be deemed to have elected to terminate this Agreement and receive back the Deposit (if applicable) and reimbursement for Buyer’s reasonable out-of-pocket costs as described herein if Buyer fails to file suit for specific performance against Seller in writing of any claim regarding defective a court having jurisdiction in the county and state in which the Property is located, on or nonconforming goods before ninety (a) within ten (1090) days after receipt following the date upon which the Closing Date was to have occurred. Except for, and in consideration of, the foregoing right of Buyer to sxx for specific performance (or to bring an action for monetary damages, where specific performance is not available solely for the goods with respect to any claim not covered by the warranty reason set forth in Section 4 hereinsubparagraph (ii) above), or (b) within ten (10) days after alternatively, to obtain a defect is or should have been discovered with respect to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely refund of a claim, the goods shall be deemed accepted by Buyer without objection Deposit 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 reimbursement 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 documented and reasonable out-of-pocket expenses incurred in performing its inspections, investigations and other due diligence review of the Property, Buyer hereby waives any other remedies available at law or in equity. Except as expressly provided above, Buyer expressly waives its rights to seek damages if the Closing does not occur in the event of Seller’s default hereunder. Buyer acknowledges and agrees that it will the limitation of Buyer’s remedies to those set forth in this paragraph 6.2 was negotiated by Seller as an integral and material part of the transaction contemplated by this Agreement and that Seller would not assert a right of offset or recoupment against Diamond or any affiliate thereof or have entered into this Agreement but for Buyer’s agreement to limit 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 remedies as provided herein. 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.’s Initials: /s/ ES/DH

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 and sale of goods from Diamond (collectivelythe Property is not consummated because of a default by Seller, "Agreement")and provided that Buyer is not in default hereunder, Buyer’s 's sole and exclusive remedy shall be either (a) to terminate this Agreement and receive an immediate return of the repair Deposit, or replacement(b) to seek specific performance of Seller's obligation to sell the Property to Buyer. These remedies are mutually exclusive and Buyer must elect, at Diamondby notice to Seller and Escrow Holder, which of these remedies it wishes to pursue no later than thirty (30) days after the date scheduled for the Closing Date. If Buyer elects to terminate this Agreement pursuant to clause (a), Buyer shall be entitled to seek damages caused by Seller's optionbreach, which shall (i) be limited to the actual, out-of-pocket third party costs incurred by Buyer in connection with the transaction contemplated hereby, and (ii) in no event exceed Seventy Five Thousand Dollars ($75,000). Seller shall have no liability to Buyer under any circumstances for any consequential or punitive damages. If any condition precedent to Buyer's obligation to close contained in SECTION 7.2 has not been satisfied or waived by Buyer in writing by the Closing Date, Buyer's sole and exclusive remedy shall be to terminate this Agreement and receive an immediate return of the Deposit. Notwithstanding anything to the contrary herein, Buyer shall not seek a personal judgment against Seller nor its members, managers, employees or agents of Seller, nor the shareholders, officers, directors, employees or agents of any defective goodsof them nor the Property for any Claims under or related to this Agreement or the Property. Buyer shall look solely to the Seller's interest in the Property for the payment of any Claim or performance of any obligation by Seller hereunder. Under no circumstances shall Diamond be liable for any reimbursement of labor costs incurred by Buyer have the Buyer whether as a result of warranty under Section 4 herein or resulting from rectificationright, 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 any right it may have, to record a lis pendens or equity, including without limitation, INDIRECT, incidental, consequential, liquidated, punitive notice of any lawsuit against the Project 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 REMEDYportion thereof.

Buyer’s Remedies. If Buyer shall elect to proceed with the performance of this Contract notwithstanding the failure to be satisfied of any conditions to Closing, Buyer shall be deemed to have waived the requirement that those conditions which Seller is unable to perform be satisfied. Notwithstanding anything contained herein, in no event shall Seller, its officers, directors, partners, agents and representatives have any personal liability under this Contract whatsoever except with respect to those provisions of this Contract which expressly survive the Closing, and Buyer's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract shall be to receive a refund of the Downpayment with all accrued interest thereon upon termination of this Contract or, if appropriate, to xxx for specific performance hereunder. In the event that Diamond breaches any warranty or other provision Seller fails to consummate the Closing in accordance with the terms of these Terms this Contract, Buyer may terminate this Contract and Conditionsshall receive a "Termination Fee" in the amount of $750,000, any Sales Confirmation or any other agreement respecting which Termination Fee shall be in addition to the return of the Downpayment plus all accrued interest thereon plus Buyer's out of pocket costs and expenses relating to the purchase or of the Property (including, without, limitation, reasonable attorneys' fees and expenses) to be paid by Seller on demand. Notwithstanding the foregoing, in the event Seller fails to consummate the Closing for failure to obtain the Partnership Consent, so long as the general partners of Seller have recommended and continue to recommend to the limited partners of Seller the sale of goods from Diamond the Property to Buyer, the Termination Fee shall consist solely of all of Buyer's out-of-pocket costs and expenses relating to the purchase of the Property (collectivelyincluding, "Agreement"without, limitation, reasonable attorneys' fees and expenses), . Buyer’s exclusive remedy 's sole recourse for Seller's failure to consummate the Closing in accordance with the terms of this Contract 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 Termination Fee, as set forth in Section 4 hereinabove, or (b) within ten (10) days after a defect is or should have been discovered upon termination of this Contract, together with respect to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely the return of a claimthe Downpayment plus all accrued interest thereon, 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 costsor, if anyappropriate, shall be at Buyer’s expenseto xxx for specific performance hereunder.] 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.

Buyer’s Remedies. In the event that Diamond breaches Seller fails to perform its obligations pursuant to this Agreement for any warranty or other provision reason (except due to a failure of these Terms and Conditions, any Sales Confirmation condition set forth in this Agreement or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"failure by Buyer to perform hereunder), Buyer’s exclusive remedy then Buyer shall elect, as its sole remedy, either to: (i) terminate this Agreement by giving Seller and the Escrow Holder timely written notice of such election prior to or upon the Closing Date, in which case Buyer shall be the repair or replacement, at Diamond's option, of any defective goods. Under no circumstances shall Diamond be liable for any entitled to a 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) the entire Deposit, and (b) its actual, documented out-of-pocket third parties costs incurred in connection with its proposed acquisition of the Property, up to a maximum of Twenty Five Thousand Dollars ($25,000); or (ii) provided that Buyer has previously tendered full performance of all of its obligations under this Agreement, enforce specific performance of this Agreement, in which event there shall be no reduction of the Purchase Price and Buyer shall not be entitled to recover any damages (whether actual, direct, indirect, consequential, punitive or otherwise) notwithstanding such failure or breach by Seller. Buyer shall be deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove if Buyer fails to deliver to Seller written notice of its intent to commence an action to assert a claim for specific performance against Seller within ninety days after the scheduled Closing Date, or having given such notice fails to commence such action asserting said claim within ninety (90) days after the date of such notice. Notwithstanding the foregoing to the contrary, no notice of termination given by Buyer hereunder shall be of any force or effect if Seller cures the default within ten (10) business days after Seller's receipt of any such termination notice. If Buyer duly elects to terminate or is deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove, then Buyer shall and hereby agrees in such event to waive any and all right to file or record any lis pendens or any other lien or encumbrance against the goods Property or to seek specific performance or other equitable relief or to seek or recover from Seller any damages (including, without limitation, any actual direct, indirect, consequential, punitive or other damages). The foregoing remedies set forth in subclauses (i) and (ii) hereinabove are Buyer's sole and exclusive remedies with respect to Seller's default, and Buyer waives any claim not covered by the warranty set forth and all other remedies as may be available at law or in Section 4 hereinequity in connection with such Seller's default (subject, 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 claimhowever, 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's right to recover attorneys' fees and court costs pursuant to Section 6.3 below). Any and all covenants and obligations of Seller contained in this Agreement (including, 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, INDIRECTany default by Seller of any such obligations and covenants) shall merge into the Deed and other Closing documents upon the Closing, incidentaland shall not survive the Closing, 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 REMEDYexcept to the extent otherwise expressly provided elsewhere in this Agreement.

Buyer’s Remedies. In the event that Diamond breaches If Seller fails to perform any warranty or other provision obligation pursuant to this Agreement for any reason (except due to a failure of these Terms and Conditions, any Sales Confirmation condition set forth in this Agreement or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"failure by Buyer to perform hereunder), then Buyer shall elect, as its sole remedy, either to: (i) terminate this Agreement by giving Seller and the Title Company timely written notice of such election prior to or upon the Closing Date, in which case Buyer shall be entitled to a reimbursement of the Deposit; or (ii) enforce specific performance of this Agreement, in which event there shall be no reduction of the Purchase Price and Buyer shall not be entitled to recover any damages (whether actual, direct, indirect, consequential, punitive or otherwise) notwithstanding such failure or breach by Seller, but Buyer shall be entitled to recover from Seller Buyer’s exclusive remedy reasonable attorney’s fees if it is successful in any such action. Notwithstanding the foregoing, if after any willful default by Seller Buyer is unable to obtain specific performance of Seller’s obligations hereunder because Seller has conveyed title to the Property to a third party, then, and only then, Buyer shall also 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 entitled to recover from Seller all out-of-pocket costs incurred by Buyer in connection with the Buyer whether Property, not to exceed Two Hundred Thousand Dollars ($200,000.00). For purposes of this Section 6.2, a willful default by Seller shall mean that, except as otherwise expressly permitted by this Agreement, Seller intentionally takes an action contrary to its obligations under this Agreement, or intentionally fails to take an action it is obligated to take under this Agreement, and as a direct result thereof conditions to the Closing are not met and the transaction does not close. Buyer shall be deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove if Buyer fails to deliver to Seller written notice of warranty under Section 4 herein or resulting from rectification, installation, return of goods its intent to Diamondcommence an action to assert a claim for specific performance against Seller within ninety (90) days after the scheduled Closing Date, or otherwisehaving given such notice fails to commence such action asserting said claim within ninety (90) days after the date of such notice. Under Notwithstanding the foregoing to the contrary, no circumstances notice of termination given by Buyer hereunder 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 be of any claim regarding defective force or nonconforming goods (a) effect if Seller cures the default within ten (10) days after Seller’s receipt of any such termination notice. If Buyer duly elects to terminate or is deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove, then Buyer shall and hereby agrees in such event to waive any and all right to file or record any lis pendens or any other lien or encumbrance against the goods Property or to seek specific performance or other equitable relief or to seek or recover from Seller any damages (including, without limitation, any actual direct, indirect, consequential, punitive or other damages). The foregoing remedies set forth in subclauses (i) and (ii) hereinabove are Buyer’s sole and exclusive remedies with respect to any claim not covered by the warranty set forth in Section 4 hereinSeller’s default, 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 any and all other rights and remedies provided by applicable as may be available at law or equityin equity in connection with such Seller’s default. Any and all covenants and obligations of Seller contained in this Agreement (including, including without limitation, INDIRECTany default by Seller of any such obligations and covenants) shall merge into the Deed and other Closing Documents upon the Closing, incidentaland shall not survive the Closing, 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 REMEDYexcept to the extent otherwise expressly provided elsewhere in this Agreement.

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 If Seller fails to perform its obligations pursuant to this Agreement for any reimbursement of labor costs incurred reason except failure by the Buyer whether as a result of warranty under Section 4 herein or resulting from rectification, installation, return of goods to Diamondperform hereunder, or otherwise. Under no circumstances shall if prior to Closing any one or more of Seller’s representations or warranties are breached in any material respect and Buyer was not aware of such breach of such representations and warranties prior to the liability of Diamond, whether in contract, tort, warranty or otherwise exceed the purchase price end of the goods. Inspection Period, then, Buyer must notify Diamond in writing shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of any claim regarding defective such election prior to or nonconforming goods at Closing and recover the Exxxxxx Money and Seller shall pay to Buyer an amount equal to the lesser of (a) within ten (10) days after receipt of the goods Buyer’s out-of-pocket expenditures incurred in connection with respect to any claim not covered by the warranty set forth in Section 4 hereinnegotiating this Agreement and/or conducting due diligence activities contemplated hereunder, or (b) within ten $100,000.00, (10ii) days after a defect is enforce specific performance, or should have been discovered with respect (ill) waive said failure or breach and proceed to any claim covered by such warrantyClosing. If Xxxxx fails Notwithstanding anything herein to notify Diamond timely of a claimthe contrary, the goods Buyer shall be deemed accepted by to have elected to terminate this Agreement if Buyer without objection and any 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 twenty (20) 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. If, however, specific performance is not available to Buyer as the result of the willful and wrongful sale or transfer of the Property by Seller to another party, Buyer shall be waivedhave the right to seek actual damages from Seller in an amount not to exceed $250,000.00. Defective goods For purposes of this provision, specific performance shall be returned considered not available to Diamond Roll Up Door, Inc., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxx 00000 Buyer only if a court of competent jurisdiction determines conclusively that Buyer is entitled to specific performance on the attention merits of Customer Service Departmentits claim but said court is unable to enforce specific performance clue to reasons beyond the control of the court. [Replacement product Buyer’s remedies shall be made available limited to Buyerthose described in this Section 10.2 and Sections 10.3, 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 PERIL10.4 hereof. IN NO EVENT SHALL DIAMOND'S AGGREGATE EITHER PARTY’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 TO BUYER ARISING OUT OFFOR ANY CLAIM, 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. OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXCLUSION OF INDIRECTPROPERTY, INCIDENTALWHETHER BASED ON CONTRACT, CONSEQUENTIALCOMMON LAW, LIQUIDATEDSTATUTE, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYEQUITY OR OTHERWISE.

Buyer’s Remedies. In the event that Diamond breaches any warranty Close of Escrow is not consummated because of default under or other provision breach of these Terms this Agreement on the part of either or both of the Selling Parties, Buyer shall have the option, as its sole and Conditionsexclusive remedy at law or in equity, any Sales Confirmation or any other agreement respecting to either (i) terminate this Agreement by delivery of written notice of termination to the Selling Parties, the Selling Parties shall, jointly and severally, reimburse Buyer for Buyer’s reasonable out of pocket costs incurred in connection with the prospective purchase or sale of goods from Diamond the Plant, not to exceed a maximum aggregate reimbursement of Three Hundred Thousand Dollars (collectively, "$300,000.00) within thirty (30) days following receipt of a request for reimbursement accompanied by reasonable supporting documentation with respect thereto (which reimbursement obligation shall survive the termination of this Agreement"), Buyer’s exclusive remedy and Buyer and the Selling Parties shall each be released from all liability hereunder (except for those provisions which recite that they survive termination) and 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 Deposit (atogether with all accrued interest thereon) 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 DoorBuyer; or (ii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Buyer at law or in equity in the event of the default under or breach of this Agreement by one or more of the Selling Parties. Buyer hereby waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by one or more of the Selling Parties, Inc.including, 000 Xxxxxxxx Xxxwithout limitation, Xxxxx Xxxxxxxxloss of bargain, Xxxx 00000 to the attention of Customer Service Departmentspecial, punitive, compensatory or consequential damages. [Replacement product Buyer shall be made available deemed to Buyer, F.O.B., have elected its remedy under clause (i) of this paragraph if Buyer fails to file suit for specific performance against the Selling Parties in Upper Sandusky, Ohioa court having jurisdiction on or before sixty (60) days following the date upon which Closing was to have occurred or if such court fails to grant specific performance and the Closing does not occur within sixty (60) days of filing such suit. Freight costs, if any, shall be at Buyer’s expense.] Xxxxx Each of the Parties hereto acknowledges and agrees that it will the agreement contained in this Section 11.2 is an integral part of the transactions contemplated hereby, that without this agreement the Parties hereto would not assert have entered into this Agreement, and that any amount payable to the Buyer pursuant to this Section 11.2 does not constitute 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 REMEDYpenalty.

Buyer’s Remedies. In If any of the event that Diamond breaches any warranty or other provision of these Terms conditions specified in section 3.1 are not satisfied, Buyer shall have the right, at its exclusive election, either to waive the condition in question and Conditions, any Sales Confirmation or any other agreement respecting proceed with the purchase of the Assets or sale of goods from Diamond (collectivelyto terminate this Agreement; provided that the Closing Date may be extended to any date not later than December 31, "Agreement")2004, at Buyer’s exclusive remedy election, for a reasonable period to allow all of such conditions to be satisfied, subject to Buyer’s further right to terminate this Agreement on the expiration of the period of the extension if all of such conditions shall not then have been satisfied. If Buyer so elects to terminate this Agreement, neither Buyer nor Sellers shall have any further rights or obligations under this Agreement, except that the covenants and agreements in sections 4.5.4 and 4.12 shall survive any termination of this Agreement. Notwithstanding any of the foregoing provisions of this section 3.3.1 to the contrary, in the event of any material breach by any Seller of any covenant or agreement herein or hereunder, Buyer may elect nevertheless either (a) to proceed with the purchase of the Assets, it being understood that the consummation of the Closing shall be the repair or replacement, at Diamond's option, deemed a waiver of any defective goods. Under no circumstances shall Diamond be liable for breach of 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, tortrepresentation, warranty or otherwise exceed the purchase price covenant required to be performed prior to Closing and of Buyer’s rights and remedies with respect thereto, if Sellers shall have notified Buyer of the goods. Buyer must notify Diamond in writing breach or lack of any claim regarding defective performance thereof at least five days prior to the Closing, or, if later, within twenty-four hours from the occurrence of such breach or nonconforming goods (a) within ten (10) days after receipt lack of the goods with respect to any claim not covered by the warranty set forth in Section 4 hereinperformance, or (b) within ten (10) days after a defect is subject to section 4.3, to terminate this Agreement by notice to Sellers on or should have been discovered with respect prior to any claim covered by the Closing Date, and on such warranty. If Xxxxx fails to notify Diamond timely of a claimtermination, 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 relieved 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 all obligations 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 liabilities hereunder and Buyer hereby waives all other rights and remedies provided may proceed against Sellers to recover any damages occasioned 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 REMEDYsuch breach.

Buyer’s Remedies. 8.5.6 If Seller breaches a material obligation under this Agreement, and Buyer is notified of or becomes aware of such breach prior to the Closing (a “Seller Default”), then Buyer’s sole and exclusive remedy shall be either to: (i) terminate this Agreement, in which event the Deposit and all interest accrued thereon shall be returned to Buyer and Seller shall reimburse Buyer to a maximum of Two Hundred Thousand and No/100 Dollars ($200,000.00) for the actual out-of-pocket costs incurred by Buyer in connection with the transaction contemplated by this Agreement, including, without limitation, actual attorney’s fees and expenses and costs incurred in -23- connection with Buyer’s evaluation and inspection of the Property and fees or deposits forfeited to any lender providing financing to Buyer in connection with the transaction; or (ii) commence and pursue an action for specific performance (and an action for Delay Damages (as defined below)). If Buyer elects to seek specific performance of Seller’s obligation to close Escrow hereunder, Buyer must stand ready and able to tender the Purchase Price and all other sums and documents to be delivered into Escrow by Buyer hereunder but for the Seller Default. In the event that Diamond breaches any warranty or other provision intentional acts of these Terms and ConditionsSeller, any Sales Confirmation or any other agreement respecting after a Seller Default, renders specific performance unavailable to the purchase or sale Buyer, the foregoing cap on the amount of goods from Diamond (collectively, "Agreement"), Buyer’s exclusive remedy recoverable costs shall be not apply, and Buyer shall have 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 right to pursue damages related to 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 delay in the liability of Diamond, whether in contract, tort, warranty or otherwise exceed the purchase price conveyance of the goodsProperty due to Seller’s intentional acts (“Delay Damages”). Buyer must notify Diamond Notwithstanding the foregoing, nothing 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 this provision 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 limit Buyer’s expense.] Xxxxx acknowledges rights to receive reimbursement for attorneys’ fees pursuant to Section 14, nor waive or affect Seller’s and agrees that it will not assert a right Buyer’s indemnity obligations under other sections of offset or recoupment against Diamond or any affiliate thereof or its directorsthis Agreement, 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 which expressly survive the termination of Diamond to Buyerthis Agreement. 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.8.5.7

Buyer’s Remedies. In If Seller fails to perform its obligations pursuant to this Agreement for any reason except failure by Buyer to perform hereunder, or if prior to Closing any one or more of Seller’s representations or warranties are breached in any material respect and Buyer was not aware of such breach of such representations and warranties prior to the event that Diamond breaches any warranty end of the Inspection Period, then, Buyer shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of such election prior to or other provision of these Terms at Closing and Conditionsrecover the Xxxxxxx Money, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from Diamond (collectively, "Agreement"), in addition to Buyer’s exclusive remedy shall be the repair or replacementactual out-of-pocket costs, at Diamond's optionnot to exceed an aggregate of $50,000.00, 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 (aii) within ten (10) days after receipt of the goods with respect to any claim not covered by the warranty set forth in Section 4 hereinenforce specific performance, or (biii) within ten (10) days after a defect is waive said failure or should have been discovered with respect breach and proceed to any claim covered by such warrantyClosing. If Xxxxx fails Notwithstanding anything herein to notify Diamond timely of a claimthe contrary, the goods Buyer shall be deemed accepted by to have elected to terminate this Agreement if Buyer without objection and any 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 thirty (30) days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim by Buyer or cause of action in the county in which the Property is located within ninety (90) days following the scheduled Closing Date. Buyer’s remedies shall be waived. Defective goods shall be returned limited 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., those described in Upper Sandusky, Ohio. Freight costs, if any, shall be at Buyer’s expense.] Xxxxx acknowledges this Section 10.2 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 Sections 10.3 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 PERIL10.4 hereof. IN NO EVENT SHALL DIAMOND'S AGGREGATE 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 TO BUYER ARISING OUT OFFOR ANY CLAIM, 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. OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXCLUSION OF INDIRECTPROPERTY, INCIDENTALWHETHER BASED ON CONTRACT, CONSEQUENTIALCOMMON LAW, LIQUIDATEDSTATUTE, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDYEQUITY OR OTHERWISE.

Buyer’s Remedies. In Buyer agrees to inspect the event that Diamond breaches any warranty or other provision of these Terms Products prior to acceptance 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 upon receipt and 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 give written notice within 15 days to Lydall of any claim regarding defective or nonconforming goods (a) within ten (10) days after receipt of that the goods with respect Products breach any warranty provided herein. Lydall will be afforded a prompt opportunity to any claim not covered by inspect 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 warrantyProducts. If Xxxxx fails Buyer shall fail to notify Diamond timely of a claimgive such notice or provide such opportunity to inspect, the goods Products shall be deemed accepted by Buyer without objection and any such claim by to conform to the terms of the contract and Buyer shall be waivedbound to accept and pay for the Products in accordance with the terms of the Agreement. Defective goods Use or processing of the Products shall be returned deemed an unconditional acceptance. Defects in part of the Products shipped do not entitle rejection of the entire shipment. Complaints do not affect Buyer’s obligation to Diamond Roll Up Doorpay for the Products. Buyer’s failure to provide timely notice shall constitute a waiver of its claims. Buyer expressly waives any rights Buyer may have to revoke or refuse acceptance after such 15 day period. For a breach of warranty claim, Inc.Lydall may, 000 Xxxxxxxx Xxxat its option, Xxxxx Xxxxxxxxrepair or replace the nonconforming Products, Xxxx 00000 credit the account for the value of the nonconforming Products or repay the amount paid. The aforesaid obligations of Lydall Products are expressly agreed by the parties to be the limit of Lydall's liability and Buyer's sole and exclusive remedy. Notwithstanding anything herein contained to the attention contrary, the liability of Customer Service Department. [Replacement product Lydall for any and all claims for direct damages arising out of or in connection with the Products and the use thereof shall be made available to Buyer, F.O.B., in Upper Sandusky, Ohio. Freight costs, if any, shall be at under no circumstances exceed the sum of Buyer’s expense.] Xxxxx acknowledges and agrees payments for the Goods that it will not assert a right are the subject 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 PERILclaim. IN NO EVENT SHALL DIAMOND'S AGGREGATE LIABILITY TO BUYER ARISING OUT OFLYDALL BE LIABLE FOR LOSS OF USE OR FOR ANY INDIRECT, 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 INDIRECTSPECIAL, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIVE, AND OTHER MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.FOR

Buyer’s Remedies. In The remedy of issuing appropriate credit or replacement provided by the event that Diamond breaches any above warranty or other provision of these Terms is the sole 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 afforded for breach of the repair above written or replacement, at Diamond's option, for breach of any defective goodsexpress or implied warranties arising under state law. Under no circumstances Seller shall Diamond not be liable for any reimbursement of labor costs incurred by the Buyer whether as or other expenses in replacing a result of warranty under Section 4 herein nonconforming or defective product; nor for any incidental or consequential damages resulting from rectificationor contributed to by any defect in materials or workmanship, installation, return of goods to Diamondnegligence in manufacture or design, or otherwisefailure to warn. 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 Seller makes NO WARRANTY with respect to any claim product which has been altered or subjected to misuse, abuse or use for which it was not covered by the warranty set forth designed. Seller shall in Section 4 hereinno way be liable for any losses, costs, forfeitures, or damages (b) within ten (10) days after a defect is or should have been discovered with respect including loss of profits, liabilities of Buyer to any claim covered by such warranty. If Xxxxx fails to notify Diamond timely of a claimits customers, 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 third persons, and all incidental or consequential damages) whether direct or indirect and whether or not resulting from or contributed to by the default, negligence, whether in manufacturing or design, or failure to warn on the part of Seller, its agents, employees and subcontractors, which might be claimed as the result of, or use (with respect to any futureor without an active malfunction) or malfunction of the products covered by this warranty. THE EXTENT OF LIABILITY OF SELLER (EXCEPT AS TO TITLE) ARISING OUT OF THE SUPPLYING OF SAID PRODUCTS, 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 equityOR THEIR USE, including without limitationWHETHER ARISING FROM WARRANTY, INDIRECTCONTRACT, incidentalNEGLIGENCE OR OTHERWISE, consequential, liquidated, punitive or any other damages. DIAMOND SHALL NOT IN ANY CASE EXCEED THE COST OF ISSUING APPROPRIATE CREDIT OR CORRECTING NONCONFORMITIES OR DEFECTS IN THE PRODUCT AS HEREIN PROVIDED; AND UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD SPECIFIED HEREIN, ALL SUCH LIABILITIES SHALL TERMINATE. THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE LIABILITY OF SELLER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTIAL DAMAGES, WHETHER BASED UPON LOST GOODWILL, LOST RESALE PROFITS, ANY INDIRECTWORK STOPPAGE, INCIDENTAL, CONSEQUENTIAL, SPECIALIMPAIRMENT OF OTHER GOODS, OR SIMILAR DAMAGES (INCLUDING LOSS OTHERWISE AND WHETHER ARISING OUT OF CARGO, LOSS OF OTHER PROPERTY ANY EXPRESS 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 NEGLIGENCEIMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR BREACH OF WARRANTYOTHERWISE. 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 Any litigation to assert a claim under the above warranty must be commenced within twelve (1812) 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 REMEDYmonths from the date of shipment by Seller of such products claimed to be nonconforming or defective.