Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.
Default by Seller. If Seller, without the right to do so and in default of its obligations hereunder, fails to complete Settlement or otherwise materially breaches any of its representations, warranties or agreements hereunder, which failure is not cured within ten (10) days following receipt of written notice from Purchaser, then Purchaser may elect, as its sole and exclusive remedy, to (i) terminate this Agreement by written notice to Seller and have the Deposit returned to Purchaser as liquidated damages, whereupon Purchaser shall be deemed to have waived any right to recover any other amounts from Seller and the right to pursue any other remedy permitted at law or in equity against Seller, and this Agreement shall have no further force or effect, or (ii) waive the uncured default and proceed to Settlement, or (iii) xxx for the remedy of specific performance to cause Seller to convey title to the Property to Purchaser in accordance with the terms of this Agreement. In no event shall Seller be liable for any damages whatsoever, including, without limitation, consequential, special or punitive damages. As a condition precedent to Purchaser exercising its right to bring an action for specific performance hereunder, Purchaser must commence such an action within ninety (90) days after its receipt of actual knowledge or notice of the occurrence of Seller’s default. Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by it of its right to commence an action for specific performance. Nothing herein shall limit Purchaser’s remedies under Section 18(i) below.
Default by Seller. If Seller, without the right to do so and in default of its obligations hereunder, fails to complete Settlement or otherwise materially breaches any of its representations, warranties or agreements hereunder, which failure is not cured within ten (10) days following receipt of written notice from Purchaser, then Purchaser, as its sole and exclusive remedy, may elect to either: (a) terminate this Agreement and have the Deposit returned to Purchaser as liquidated damages, whereupon Purchaser shall be deemed to have waived any right to recover any other amounts from Seller and the right to pursue any other remedy permitted at law or in equity against Seller, (b) waive the uncured default and proceed to Settlement, or (c) xxx for the remedy of specific performance to cause Seller to convey title to the Property to Purchaser in accordance with the terms of this Agreement. In no event shall Seller be liable for any damages whatsoever including, without limitation, consequential, special or punitive damages. The foregoing shall not limit Purchaser’s remedies under Section 18(i) below.
Default by Seller. If, prior to Closing, Seller fails to keep any of Seller's promises or agreements contained in this Agreement, Buyer, if not in default hereunder, may file a lawsuit for specific performance to require Seller to go through with this Agreement or Buyer may exercise any other remedy to which Buyer is entitled to at law or equity, including canceling this Agreement, if applicable. If Buyer cancels this Agreement because of Seller's default, Seller will repay to Buyer all sums paid by Buyer to Seller or Escrow under this Agreement.
Default by Seller. IF SELLER DEFAULTS PURSUANT TO THIS AGREEMENT BY FAILING TO CONVEY THE LOT TO BUYER IN THE MANNER PROVIDED IN THIS AGREEMENT, BUYER'S SOLE AND EXCLUSIVE REMEDIES ARE TO EITHER: (A) TERMINATE THIS AGREEMENT, IN WHICH EVENT SELLER SHALL NOT BE ENTITLED TO THE DEPOSIT, AND SELLER SHALL PAY ALL OF THE FEES AND COSTS OF ESCROW HOLDER, WHICH SHALL OPERATE TO TERMINATE THIS AGREEMENT AND RELEASE SELLER FROM ANY AND ALL LIABILITY PURSUANT TO THIS AGREEMENT; OR (B) OBTAIN SPECIFIC PERFORMANCE OF THIS AGREEMENT BY SELLER. BUYER SHALL BE DEEMED TO HAVE ELECTED CLAUSE
(A) ABOVE IF BUYER FAILS TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT HAVING JURISDICTION IN ORANGE COUNTY, CALIFORNIA, ON OR BEFORE SIXTY (60) DAYS FOLLOWING THE DATE UPON WHICH THE CLOSING WAS TO HAVE OCCURRED. IN ANY ACTION FOR SPECIFIC PERFORMANCE, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY REASONABLE ATTORNEYS' FEES AND COSTS. THE OBLIGATIONS OF SELLER UNDER THIS AGREEMENT AND UNDER ANY CLOSING DOCUMENTS EXECUTED BY SELLER IN CONNECTION WITH THIS AGREEMENT DO NOT CONSTITUTE THE PERSONAL OBLIGATIONS OF SELLER AND, IF SELLER DEFAULTS PURSUANT TO THIS AGREEMENT BY FAILING TO CONVEY THE LOT TO BUYER IN THE MANNER PROVIDED IN THIS AGREEMENT OR COMMITS ANY OTHER DEFAULT PURSUANT TO THIS AGREEMENT OR ANY OF SUCH CLOSING DOCUMENTS, EXCEPT FOR THE REMEDIES SET FORTH IN THIS SECTION 10.2, BUYER SHALL NOT BE ENTITLED TO ANY OTHER REMEDIES AND NO ASSETS OF SELLER (OTHER THAN THE LOT) SHALL BE SUBJECT TO RECOURSE. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THE PROVISION OF THIS SECTION 10.2 AT THE TIME EACH PARTY EXECUTED THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. Seller Initials Buyer Initials
Default by Seller. In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the permitted termination of this Agreement by Seller or Purchaser as herein expressly provided, Purchaser shall be entitled, as its sole remedy, either (a) to receive the return of the Exxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Exxxxxx Money if Purchaser 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 thirty (30) days following the date upon which Closing was to have occurred.
Default by Seller. If Purchaser shall not be in default hereunder and if Seller refuses or fails to consummate the Closing under this Contract other than due to a termination permitted hereunder or a failure of a condition precedent to Seller's obligation to close as set forth in Section 7.2 hereof, Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies, either (a) terminate this Contract in which event neither party shall have any further rights, duties or obligations hereunder except for provisions of this Contract which expressly survive the termination hereof, and Purchaser shall be entitled to a refund of the Xxxxxxx Money Deposit, or (b) enforce specific performance of this Contract. Notwithstanding anything contained in this Section to the contrary, in the event of (x) (i) any breach by Seller of any representation or warranty under this Contract which survives the Closing, and (ii) the Closing occurs under this Contract or (y) any breach by Seller of any indemnity under this Contract which survives the Closing or termination of this Contract, in either the case of (x) or (y), Purchaser shall have any rights and remedies available at law or in equity by reason of such breach, excluding, however, any punitive, speculative or consequential damages or damages for loss of opportunity or lost profit. Except as otherwise provided in this Section 10.2, in no event shall Seller be liable to Purchaser for any damages, including, without limitation, any actual, punitive, speculative or consequential damages or damages for loss of opportunity or lost profit.
Default by Seller. If Seller fails to perform any of the covenants of this Agreement, or if Seller otherwise defaults hereunder, Buyer may elect to terminate this Agreement in which event the Deposit shall be returned to Buyer on written demand pursuant to the escrow provisions herein, and because of the difficulty, inconvenience and uncertainty of ascertaining actual damages, no other damages, rights or remedies shall in any case be collectible, enforceable or available to Buyer other than as provided in this paragraph.
Default by Seller. If (i) the Closing does not occur due to Seller’s failure to proceed to Closing notwithstanding the satisfaction (or written waiver by Seller) of all conditions precedent which exist for the benefit of Seller hereunder, (ii) on or before the Closing, any of the Article III Representations and Warranties or any of the Article IV Representations and Warranties is inaccurate in any material respect when made or deemed made by Seller, or (iii) on or before the Closing, Seller shall be in default in respect of performing its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the earlier of (x) the date such default is cured, or (y) expiration date of such fifteen (15) day period), then provided Purchaser shall not otherwise be in default performing any of its obligations hereunder in any material respect (subject to any notice and/or cure rights set forth herein), Purchaser, as its sole and exclusive remedy, shall elect either (in Purchaser’s sole and absolute discretion) (x) to terminate this Agreement, in which event, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder shall terminate immediately except to the extent expressly deemed to survive termination; (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing without reduction in the Unadjusted Gross Purchase Price or the Adjusted Gross Purchase Price; or (z) to commence an action for specific performance (which action for specific performance must be filed in a court of competent jurisdiction and served on Seller within thirty (30) days after the alleged default occurs). Notwithstanding anything to the contrary contained in this Agreement, if the material default on the part of Seller to which the above provisions of this
Section 10.1 applies arises solely out of a material breach of a representation, warranty or covenant set forth in Sections 3.1 through 3.5, inclusive, Section 4.1, Section 4.3 or Section 7.5(l), or, in the event specific performance is unavailable to Purchaser as a remedy under this Section 10.1 solely due to the fraud of Seller (with such unavailability and any determination of fraud being determined by a final, non-appealable judgment of a court of competent jurisdiction), then, provided Purchaser shall not...
Default by Seller. If Seller shall fail to perform any of the conditions as provided herein or shall cause a material breach to occur of any term or representation herein contained, then Buyer may either seek to enforce this Contract by specific performance or elect to terminate this Contract and receive a refund of the xxxxxxx money deposit.
