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241 DEFAULT AND DISPUTE RESOLUTION 242 13. DEFAULT: (a) Seller Default: If for any reason other than failure of Seller to make Seller's title marketable after diligent 243 effort, Seller fails, refuses or neglects to perform this Contract, Buyer may choose to receive a return of Buyer's deposit 244 without waiving the right to seek damages or to seek specific performance as per Paragraph 14. Seller will also be liable to 245 Broker for the full amount of the brokerage fee. (b) Buyer Default: If Buyer fails to perform this Contract within the time 246 specified, including timely payment of all deposits, Seller may choose to retain and collect all deposits paid and agreed to be 247 paid as liquidated damages or to seek specific performance as per Paragraph 14; and Broker will, upon demand, receive 50% 248 of all deposits paid and agreed to be paid (to be split equally among cooperating brokers except when closing does not occur 249 due to Buyer not being able to secure Financing after providing a Commitment, in which case Broker's portion of the deposits 250 will go solely to the listing broker) up to the full amount of the brokerage fee. 251 14. DISPUTE RESOLUTION: This Contract wiU be construed under Florida law. All controversies, claims, and other matters in 252 question arising out of or relating to this transaction or this Contract or its breach will be settled as follows: 253 (a) Disputes concerning entitlement to deposits made and agreed to be made: Buyer and Seller will have 30 days 254 from the date conflicting demands are made to attempt to resolve the dispute through mediation. If that fails, Escrow Agent 25S will submit the dispute, if so required by Florida law, to Escrow Agent's choice of arbitration, a Florida court or the Florida 2S6 Real Estate Commission. Buyer and Seller will be bound by any resulting award, judgment or order. 257 (b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to 2S8 resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in 259 the county where the Property is located. The arbitrator may not alter the Contract terms or award any remedy not provided 260 for in this Contract. The award will be based on the greater weight of the evidence and will state findings of fact and the 261 contractual authority on which it is based. If the parties agree to use discovery, it will be in accordance with the Florida Rules 262 of Civil Procedure and the arbitrator will resolve all discovery-related disputes. Any disputes with a real estate licensee 263 named in Paragraph 17 will be submitted to arbitration only if the licensee's broker consents in writing to become a party to 264 the proceeding. This clause will survive closing. 265 (c) Mediation and Arbitration; Expenses: "Mediation" is a process in which parties attempt to resolve a dispute by 266 submitting it to an impartial mediator who facilitates the resolution of the dispute but who is not empowered to impose a 267 settlement on the parties. Mediation will be in accordance with the rules of the American Arbitration Association ("AAA") or 268 other mediator agreed on by the parties. The parties will equally divide the mediation fee. if any. "Arbitration" is a process in 269 which the parties resolve a dispute by a hearing before a neutral person who decides the matter and whose decision is 270 binding on the parties. Arbitration will be in accordance with the rules of the AAA or other arbitrator agreed on by the parties. 271 Each party to any arbitration will pay its own fees, costs and expenses. including attorneys' fees, and will equally split the 272 arbitrators' fees and administrative fees of arbitration. In a civil action to enforce an arbitration award, the prevailing party to 273 the arbitration shall be entitled to recover from the non prevailing party reasonable attorneys' fees, costs and expenses. 274 ESCROW AGENT AND BROKER 275 15. ESCROW AGENT: Buyer and SeUer authorize Escrow Agent to receive, deposit and hold funds and other items in escrow 276 and, subject to clearance, disburse them upon proper authorization and in accordance with Florida law and the terms of this 277 Contract. including disbursing brokerage fees. The parties agree that Escrow Agent will not be liable to any person for 278 misdelivery of escrowed items to Buyer or Seller, unless the misdelivery is due to Escrow Agent's willful breach of this 279 Contract or gross negligence. If Escrow Agent interpleads the subject matter of the escrow, Escrow Agent will pay the filing 280 fees and costs from the deposit and will recover reasonable attorneys' fees and costs to be paid from the escrowed funds or 281 equivalent and charged and awarded as court costs in favor of the prevailing party. All claims against Escrow Agent will be 282 arbitrated. so long as Escrow Agent consents to arbitrate. 283 16. PROFESSIONAL ADVICE; BROKER LIABILITY: Broker advises Buyer and Seller to verify all facts and representations 264 that are important to them and to consult an appropriate professional for legal advice (for example. interpreting contracts, 285 determining the effect of laws on the Property and transaction, status of title, foreign investor reporting requirements, etc.) and 266 for tax, property condition, environmental and other specialized advice. Buyer acknowledges that Broker does not reside in the 267 Property and that all representations (oral, written or otherwise) by Broker are based on Seller representations or public 286 records. Buyer agrees to rely solely on Seller, professional inspectors and governmental agencies for verification of 269 the Property condition and facts that materially affect Property value. Buyer and Seller respectively will pay all costs and 290 expenses, including reasonable attorneys' fees at all levels, incurred by Broker and Broker's officers, directors, agents and 291 employees in connection with or arising from Buyer's or Seller's misstatement or failure to perform contractual obligations. 292 Buyer and Seller hold harmless and release Broker and Broker's officers, directors, agents and employees from all liability for 253 loss or damage based on (1) Buyer's or Seller's misstatement or failure to perform contractual obligations; (2) Broker's 294 performance. at Buyer's and/or Seller's request, of any task beyond the scope of services regulated by Chapter 475. F.S., as 295 amended, including Broker's referral. recommendation or retention of any vendor: (3) products or services provided by any 296 vendor: and (4) expenses incurred by any vendor. Buyer and Seller each assume full responsibility for selecting and 297 compensating their respective vendors. This paragraph will not relieve Broker of statutory obligations. For purposes of this 298 paragraph, Broker will be treated as a party to this Contract This paragraph will survive closing. 299 Buyer VAC-8 Rev. Software ,9 ( ) and Seller: I /'~ acknowledge receipt of a copy of this page. which is Page 5 of 7 Pages = 2004 Florida Association of Rea~censed to Alia Star Software. Added Formatting Copyright 2004 Alia Slar Software, Inc. All Rights Reserved. (305) 279-8898