1.     Purpose.  Buyer desires to purchase from Seller and Seller desires to sell to Buyer certain products that will be specified on an invoice or invoices which may be agreed to by Buyer and Seller from time to time, each in substantially the form attached hereto as Exhibit A, as amended from time to time (each, an “Invoice” and collectively, the “Invoices”). Each Invoice, and all of its terms, is expressly incorporated by reference herein.

2.      Price.  The price for each of the products (the “Price”) shall be listed on each Invoice. Buyer shall also be responsible for applicable shipping and handling charges, credit card transaction fees and such other taxes, fees, assessments or royalties hereinafter enacted that are assessable at the time of shipment by reason of the transactions contemplated by this Agreement, unless otherwise noted on the Invoice (collectively with the Price, the “Total Contract Price”).

3.      Payment.  Buyer shall pay Seller the Total Contract Price in installments as set forth on each Invoice. No payment by offset is permitted. Interest charges will be added to all amounts unpaid from the due date at the rate of 1.5% per month (subject to any limits imposed by applicable law). If Buyer pays by credit card, Seller shall charge a credit card processing fee to Buyer.

4.      Delivery Date. The parties shall mutually agree on a delivery date for the products, which shall be at least 14 days from the date of such agreement. Shipping charges shall apply for each installment.

5.      Title.  Risk of loss and title passes to Buyer upon the earlier of (i) Seller’s delivery of products to a common carrier, (ii) the products’ departure from Seller’s dock or nursery, as applicable or (iii) Seller’s placing the products in storage in accordance with Section 6 below.

6.      Storage. Seller will store the products through December 31st of the delivery year at no charge. After such date, Buyer shall pay Seller a cold storage fee of $1.00 per vine; provided that Seller shall have no obligation to retain such products after April 15th of the following year. Buyer shall be responsible for paying for all products Seller agrees to keep in storage and Seller shall have no liability for any products in storage that do not survive after December 31st of the delivery year. Seller does not recommend planting dormant vines between July 1 and August 31 and shall have no liability for poor performance of products as a result of planting during this timeframe.

7.      Availability.  All orders are subject to conditions at time of delivery; if any loss, damage, injury or shortage in growth of nursery stock prevents filling orders as entered, Seller reserves the right to reduce the number of products to be delivered, or to substitute a smaller or larger grade of product, at its respective price, as determined by the conditions at the time of delivery.

8.      Inspection; Replacement.  Buyer agrees to make full and complete inspection of products, and submit any claims for shortage in quantity or defective products (i.e., vines that do not comply with CDFA standards) within 48 hours of receipt of shipment. Buyer’s failure to deliver a written claim to Seller within 48 hours shall be deemed Buyer’s irrevocable acceptance of the products. If Buyer submits a valid claim with respect to a shortage in quantity, Seller shall, subject to availability, remedy such shortage. Upon return by Buyer of defective vines in their original delivered condition, and after verification of alleged defects, Seller shall, subject to availability, replace defective products or, at Seller’s option, refund the purchase price paid for the defective products. Any returned products that Seller cannot verify as defective or that have been mishandled shall be returned to Buyer without replacement or refund at Buyer’s sole cost and risk, and Buyer shall be responsible for all shipping and handling charges with respect to such returns. In addition to the foregoing, products which received proper care, are part of Buyer’s firstyear planting at a new location and fail to exhibit signs of growth within 90 days of delivery, will be replaced free of charge, subject to availability; provided, however, that total replacements shall not exceed 3% of the total original order. This replacement policy shall not apply to nursery stock purchased for replacements or to stock furnished under this replacement policy.

9.      Cancellation; Liquidated Damages.   If Buyer desires to cancel this Agreement prior to January 1 of the delivery year for any reason other than a default by Seller hereunder, Seller shall be entitled to receive or retain, as applicable, any out-of-pocket costs incurred by Seller in connection with this Agreement. If Buyer desires to cancel this Agreement after January 1 of the delivery year for any reason other than a default by Seller hereunder, Seller shall be entitled to receive or retain, as applicable, the First Deposit (as defined in the Invoice) and one-half (1/2) of the Second Deposit (as defined in the Invoice) as liquidated damages. The remaining one-half (1/2) of the Second Deposit will be refunded to Buyer within 30 days of cancellation. If Buyer cancels a custom order (as specified on the Invoice) (“Custom Order”) after January 1 of the delivery year for any reason other than a default by Seller hereunder, Seller shall retain 100% of the First Deposit and Second Deposit as liquidated damages. BUYER AGREES THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER MAY SUFFER IF BUYER CANCELS AN ORDER. BUYER THEREFORE AGREES THAT THE PORTION OF THE DEPOSIT ENTITLED TO BE RETAINED BY SELLER REPRESENTS A REASONABLE ESTIMATE OF THE NET DETRIMENTS THAT SELLER WOULD SUFFER IN SUCH EVENT. ACCORDINGLY, UPON CANCELLATION OF AN ORDER, BUYER AND SELLER BOTH AGREE THAT SELLER’S RETENTION OF A PORTION OF THE DEPOSIT AS PROVIDED IN THIS AGREEMENT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY, AS APPLICABLE, FOR THE OCCURRENCE OF SUCH AN EVENT AND SHALL NOT CONSTITUTE A FORFEITURE OR PENALTY. THE PARTIES AGREE THAT NOTHING IN THIS PARAGRAPH SHALL AFFECT OR SERVE TO WAIVE OR OTHERWISE LIMIT SELLER’S RIGHTS TO OBTAIN FROM BUYER ALL COSTS AND EXPENSES OF ENFORCING THE FOREGOING OR THE TERMS OF THIS PROVISION, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES (BASED ON MARKET RATES) AND EXPERT COSTS AND FEES.

10.    AS-IS SALE; NO WARRANTIES.  THE PRODUCTS ARE SOLD IN AN “AS-IS, WHERE IS, WITH ALL FAULTS” CONDITION AND SELLER DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO THE DESCRIPTION, QUALITY, PURITY, GENETIC STABILITY, PRODUCTIVENESS, FREEDOM FROM DISEASE, PATHOGEN OR VIRUS, OR AS TO ANY MATTER OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

11.    Indemnity.  Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, and each of their past, present and future respective officers, directors, shareholders, members, managers, trustees, partners, agents, representatives, employees, attorneys, accountants, insurers, administrators, executors, predecessors in interest, successors in interest and each of their respective successors and assigns from and against all suits, claims, losses, liabilities, damages, settlements, costs and expenses of any nature whatsoever, including, without limitation, attorneys’ fees (based on market rates) and costs, directly or indirectly arising from the use, planting, or resale of the products. Without limiting the generality of the foregoing, Buyer’s indemnification obligation with respect to Custom Orders will include, but is not limited to, claims of infringement, misappropriation of proprietary materials, or any other claims by a third party. This Section 11 will survive the expiration, completion, or the earlier cancellation of this Agreement.

12.    Confidentiality.  The terms of this Agreement, including the pricing information contained herein, shall be maintained as confidential by Buyer and shall not be disclosed to any third party.

13.    Force Majeure.  Seller shall have no liability for a delay or failure to deliver any products if such delay or failure is due to conditions beyond Seller’s reasonable control including, without limitation, by reason of frost, hail, floods, wind, heat, pests, pesticides, funguses, viruses, other acts of God, fire, strike or other difference with workmen, shortage of utility, facility or labor, damage by the elements or drought, unavoidable casualty, any governmental order, state of war, or act of terrorism.

14.    Waiver; Severability; Notice.  Any waiver of any breach of any term or condition contained herein or default hereunder shall be in writing and no such waiver shall operate as a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable, such provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable. Any notice to be given hereunder shall be deemed to be properly given if personally delivered, sent via facsimile with confirmation of delivery, or mailed, postage prepaid, with return receipt requested to the address or facsimile number specified on the Invoice or at such other address or facsimile number as may be specified in writing from time to time.

15.    Assignment.  Buyer shall not assign or transfer this Agreement, in whole or in part, without prior written consent of Seller.

16.    Governing Law; Dispute Resolution; Arbitration; Attorney’s Fees.  This Agreement shall be interpreted, construed and governed by the laws of the State of California, without regard to any conflict of laws principles. The parties shall attempt to settle any dispute hereunder in a mutually agreeable manner upon written notice of a dispute from one party to the other. Except with respect to claims seeking injunctive relief or other equitable relief, any dispute arising out of or relating to this Agreement or a breach hereof that is not settled by the parties within thirty (30) days of such notice shall be determined by binding arbitration in Kern County, California, before one JAMS arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules. Judgment on the arbitrator’s award may be entered in any court having appropriate jurisdiction. The parties will share equally the administrative costs of the arbitration and the arbitrator’s fees. In the event of any action, proceeding or arbitration arising under or relating to this Agreement, the prevailing party shall be entitled to recover all costs and fees (including without limitation, attorneys’ fees based on market rates and costs) incurred by such party from the nonprevailing party, including any post-trial or appellate proceeding relating thereto.

17.    Ambiguity.  Each party acknowledges that this Agreement has been negotiated and prepared jointly be each party and that in event of ambiguity, it shall not be construed against either party, but shall be given a reasonable interpretation.

18.    Entire Agreement.  This Agreement, any Invoices entered into pursuant hereto and the terms included on the results of any testing performed by Seller constitute the final, complete and exclusive agreement between Buyer and Seller as to the sale of the products identified in any Invoice issued pursuant to this Agreement and may not be altered or modified, except as expressly mutually agreed to in writing by Seller and Buyer.

19.    LIMITATION OF LIABILITY.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, REGARDLESS OF THE FORM OF ACTION, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, OR USE OF THE PRODUCTS, PLANTING AND CULTURAL COSTS, DELAY OR DOWNTIME, AND CLAIMS OF THIRD PARTIES. BUYER AGREES THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH BY SELLER OF ANY PROVISION OF THIS AGREEMENT SHALL BE TO PROVIDE SUBSTITUTE OR REPLACEMENT PRODUCTS (OR, AT SELLER’S OPTION IN ITS SOLE DISCRETION, A REFUND) FOR UP TO 3% OF THE TOTAL PRODUCTS ORDERED WITHOUT FURTHER LIABILITY. BUYER AGREES THAT THE REFUND OF ANY PORTION OF THE PRICE PAID FOR THE PRODUCTS WILL NOT CAUSE THIS REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.

1.     Purpose.  Buyer desires to purchase from Seller and Seller desires to sell to Buyer certain products that will be specified on an invoice or invoices which may be agreed to by Buyer and Seller from time to time, each in substantially the form attached hereto as Exhibit A, as amended from time to time (each, an “Invoice” and, collectively, the “Invoices”). Each Invoice, and all of its terms, is expressly incorporated by reference herein.

2.      Price.  The price for each of the products (the “Price”) shall be listed on each Invoice. Buyer shall also be responsible for applicable shipping and handling charges, credit card transaction fees and such other taxes, fees, assessments or royalties hereinafter enacted that are assessable at the time of shipment by reason of the transactions contemplated by this Agreement, unless otherwise noted on the Invoice (collectively with the Price, the “Total Contract Price”).

3.      Payment.  Buyer shall pay Seller a non-refundable deposit (the “Deposit”) as set forth on each Invoice. Buyer shall pay Seller the balance of the Total Contract Price as set forth on each Invoice. No payment by offset is permitted. Interest charges will be added to all amounts unpaid from the due date at the rate of 1.5% per month (subject to any limits imposed by applicable law).

4.      Delivery; Shipping.  The parties shall mutually agree on a delivery date for the products, which shall be at least 14 days from the date of such agreement. Shipping charges shall apply for each delivery installment. If Seller’s bins are used in shipping and not returned, a $75 per bin charge will apply. Freight on returning Seller’s bins is the responsibility of Buyer.

5.      Title.  Risk of loss and title passes to Buyer upon the earlier of (i) Seller’s delivery of products to a common carrier, (ii) the products’ departure from Seller’s dock or nursery, as applicable or (iii) Seller’s placing the products in storage in accordance with Section 6 below.

6.      Storage. Seller will store the products through December 31st of the delivery year at no charge. After such date, Buyer shall pay Seller a holdover fee of $2.50 per tree; provided that Seller shall have no obligation to retain such products after April 15th of the following year. Buyer shall be responsible for paying for all products Seller agrees to keep in storage.

7.      Availability.  All orders are subject to conditions at time of delivery; if any loss, damage, injury or shortage in growth of pistachio trees prevents filling orders as entered, Seller reserves the right to reduce the number of products to be delivered, or to substitute a different product, at its respective price, as determined by the conditions at the time of delivery.

8.      Inspection; Replacement.  Buyer agrees to make full and complete inspection of products, and submit any claims for shortage in quantity or defective products within 48 hours of receipt of shipment. Buyer’s failure to deliver a written claim to Seller within such 48 hours shall be deemed Buyer’s irrevocable acceptance of the products. If Buyer submits a valid claim of a shortage in quantity, Seller shall, subject to availability, remedy such shortage. If Buyer submits a valid claim of defective products, Seller will inspect the products to verify the source of such alleged defect. After verification of alleged defects and return by Buyer of defective trees in their original delivered condition, Seller shall, subject to availability, replace defective products or, at Seller’s option, refund the purchase price paid for the defective products. Any products that Seller cannot verify as defective or that have been mishandled shall remain with Buyer without replacement or refund. In addition to the foregoing, products which received proper care and fail to exhibit signs of growth within 90 days of delivery, will be replaced free of charge, subject to availability; provided, however, that total replacements shall not exceed 2% of the total original order. This replacement policy shall not apply to nursery stock purchased for replacements or to stock furnished under this replacement policy. For the avoidance of doubt, any replacement of products shall consist solely of Seller delivering the replacement products to Buyer’s designated delivery location. Seller shall have no obligation to remove the affected products, replant products or provide labor to Buyer, and Seller shall have no liability whatsoever for the condition of the soil or ground. Seller does not recommend planting products from November through January and shall have no liability for poor performance of products as a result of planting during this timeframe.

9.      Pistachio Bushy Top Syndrome.   Notwithstanding the limitations set forth in Section 8 above, if any product fails to grow or produce due solely to “Pistachio Bushy Top Syndrome” within two (2) years of the date of receipt of shipment at Buyer’s designated delivery location, Buyer shall promptly notify Seller of the problem and Seller shall perform an inspection of the affected products. If Seller determines, in its reasonable discretion, that the products have received proper care from Buyer and that the cause of the problem with the products is “Pistachio Bushy Top Syndrome”, then Seller shall replace the affected trees free of charge, subject to availability; provided, however, that this replacement policy shall not apply to nursery stock purchased for replacements or to stock furnished under this replacement policy. Seller does not recommend replanting trees at the same planting site where trees infested with “Pistachio Bushy Top Syndrome” or other Rhodococcus bacteria were removed. Replacement trees should be planted in an area where they will not contact soil or plant material from the removed infected trees. For the avoidance of doubt, any replacement of products shall consist solely of Seller delivering the replacement products to Buyer’s designated delivery location. Seller shall have no obligation to remove the affected products, replant products or provide labor to Buyer, and Seller shall have no liability whatsoever for the condition of the soil or ground.

10.    Rhodococcus.  Buyer acknowledges and agrees that Rhodococcus bacteria is a known bacteria that can affect the products and Seller cannot control the bacteria. Seller makes no representations, warranties or guarantees that the products are free from Rhodococcus bacteria. Seller has no obligation to replace any product that has the Rhodococcus bacteria unless such product otherwise qualifies for replacement pursuant to Section 8 or 9 above.

11.    Cancellation; Liquidated Damages.  All sales are final. If Buyer desires to cancel an Invoice for any reason other than a default by Seller hereunder, Seller shall be entitled to receive or retain, as applicable, the Deposit, as liquidated damages. BUYER AGREES THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER MAY SUFFER IF BUYER CANCELS AN ORDER. BUYER THEREFORE AGREES THAT THE DEPOSIT ENTITLED TO BE RETAINED BY SELLER REPRESENTS A REASONABLE ESTIMATE OF THE NET DETRIMENTS THAT SELLER WOULD SUFFER IN SUCH EVENT. ACCORDINGLY, UPON CANCELLATION OF AN ORDER, BUYER AND SELLER BOTH AGREE THAT SELLER’S RETENTION OF THE DEPOSIT AS PROVIDED IN THIS AGREEMENT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY, AS APPLICABLE, FOR THE OCCURRENCE OF SUCH AN EVENT AND SHALL NOT CONSTITUTE A FORFEITURE OR PENALTY. THE PARTIES AGREE THAT NOTHING IN THIS PARAGRAPH SHALL AFFECT OR SERVE TO WAIVE OR OTHERWISE LIMIT SELLER’S RIGHTS TO OBTAIN FROM BUYER ALL COSTS AND EXPENSES OF ENFORCING THE FOREGOING OR THE TERMS OF THIS PROVISION, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES (BASED ON MARKET RATES) AND EXPERT COSTS AND FEES.

12.    AS-IS SALE; NO WARRANTIES.  THE PRODUCTS ARE SOLD IN AN “AS-IS, WHERE IS, WITH ALL FAULTS” CONDITION AND, EXCEPT AS PROVIDED IN THIS AGREEMENT, SELLER DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO THE PRODUCTIVENESS, DESCRIPTION, QUALITY, PURITY, LENGTH OF LIFE, GENETIC STABILITY, FREEDOM FROM DISEASE, PATHOGEN OR VIRUS, OR AS TO ANY MATTER OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

13.    Indemnity.   Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, and each of their past, present and future respective officers, directors, shareholders, members, managers, trustees, partners, agents, representatives, employees, attorneys, accountants, insurers, administrators, executors, predecessors in interest, successors in interest and each of their respective successors and assigns from and against all suits, claims, losses, liabilities, damages, settlements, costs and expenses of any nature whatsoever, including, without limitation, attorneys’ fees (based on market rates) and costs, directly or indirectly arising from the use, planting or resale of the trees or any crop harvested therefrom. This Section 13 will survive the expiration, completion, or the earlier cancellation of this Agreement.

14.    Confidentiality.  The terms of this Agreement, including the pricing information contained herein, shall be maintained as confidential by Buyer and shall not be disclosed to any third party.

15.    Force Majeure.  Seller shall have no liability for a delay or failure to deliver any products if such delay or failure is due to conditions beyond Seller’s reasonable control including, without limitation, by reason of frost, hail, floods, wind, heat, pests, pesticides, funguses, viruses, other acts of God, fire, strike or other difference with workmen, shortage of utility, facility or labor, damage by the elements or drought, unavoidable casualty, any governmental order, state of war, or act of terrorism.

16.    Waiver; Severability; Notice.  Any waiver of any breach of any term or condition contained herein or default hereunder shall be in writing and no such waiver shall operate as a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable, such provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable. Any notice to be given hereunder shall be deemed to be properly given if personally delivered, sent via facsimile with confirmation of delivery, or mailed, postage prepaid, with return receipt requested to the address or facsimile number specified on the Invoice or at such other address or facsimile number as may be specified in writing from time to time.

17.    Assignment.  Buyer shall not assign or transfer this Agreement, in whole or in part, without prior written consent of Seller.

18.    Governing Law; Dispute Resolution; Arbitration; Attorney’s Fees.  This Agreement shall be interpreted, construed and governed by the laws of the State of California, without regard to any conflict of laws principles. The parties shall attempt to settle any dispute hereunder in a mutually agreeable manner upon written notice of a dispute from one party to the other. Except with respect to claims seeking injunctive relief or other equitable relief, any dispute arising out of or relating to this Agreement or a breach hereof that is not settled by the parties within thirty (30) days of such notice shall be determined by binding arbitration in Kern County, California, before one JAMS arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules. Judgment on the arbitrator’s award may be entered in any court having appropriate jurisdiction. The parties will share equally the administrative costs of the arbitration and the arbitrator’s fees. In the event of any action, proceeding or arbitration arising under or relating to this Agreement, the prevailing party shall be entitled to recover all costs and fees (including without limitation, attorneys’ fees based on market rates and costs) incurred by such party from the non-prevailing party, including any post-trial or appellate proceeding relating thereto.

19.    Ambiguity.  Each party acknowledges that this Agreement has been negotiated and prepared jointly be each party and that in event of ambiguity, it shall not be construed against either party, but shall be given a reasonable interpretation.

20.    Additional Terms Applicable to Wonderful Pistachio Rootstock Orders.  The following additional terms shall apply to any orders for Wonderful Pistachio Rootstock products (each, a “WPR Order”): 

a. The parties acknowledge that Wonderful Orchards LLC (“WO”), a licensor of Seller, holds granted patents for the following new and distinct varieties of pistachio rootstock trees: Wonderful Pistachio Rootstock #1 – PP26816, Wonderful Pistachio Rootstock #2 – PP26915, Wonderful Pistachio Rootstock #3 – PP27318, Wonderful Pistachio Rootstock #4 – PP27319, and Wonderful Pistachio Rootstock #5 – PP27436. 

b. In connection with any WPR Order, Seller and Buyer shall enter into a Non-Propagation Agreement in the form to be provided by Seller. 

c. BUYER ACKNOWLEDGES AND AGREES THAT LIMITED INDIVIDUAL TREE LEVEL DATA IS AVAILABLE REGARDING THE PRODUCTS AND THAT SELLER MAKES NO GUARANTEE THAT ANY WPR ORDER WILL REPLICATE SUCH LIMITED INDIVIDUAL TREE LEVEL DATA.

21.    Entire Agreement.  This Agreement, any Invoices entered into pursuant hereto, and, if applicable, any Non-Propagation Agreement entered into pursuant hereto, constitute the final, complete and exclusive agreement between Buyer and Seller as to the sale of the products identified in any Invoice issued pursuant to this Agreement and may not be altered or modified, except as expressly mutually agreed to in writing by Buyer and Seller. If there is a conflict or inconsistency between any Invoice or Non-Propagation Agreement and the terms of this Agreement, the terms of this Agreement shall control.

22.    LIMITATION OF LIABILITY.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, REGARDLESS OF THE FORM OF ACTION, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, PRODUCTION OR REVENUE, OR USE OF THE PRODUCTS, PLANTING AND CULTURAL COSTS, DELAY OR DOWNTIME, AND CLAIMS OF THIRD PARTIES. BUYER AGREES THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH BY SELLER OF ANY PROVISION OF THIS AGREEMENT SHALL BE TO PROVIDE SUBSTITUTE OR REPLACEMENT PRODUCTS (OR, AT SELLER’S OPTION IN ITS SOLE DISCRETION, A REFUND) IN ACCORDANCE WITH, AND SUBJECT TO THE LIMITATIONS SET FORTH IN, SECTIONS 8 AND 9, WITHOUT FURTHER LIABILITY. BUYER AGREES THAT THE REFUND OF ANY PORTION OF THE PRICE PAID FOR THE PRODUCTS WILL NOT CAUSE THIS REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.