IN NO EVENT SHALL DIY POLE BARNS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE SALE OF THE POLE BARN KIT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL DIY POLE BARNS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO DIY POLE BARNS BY CUSTOMER.
EXCEPT FOR THE TWO (2) WEEK PERIOD TO REPORT MISSING OR DAMAGED MATERIALS, THE POLE BARN KIT IS SOLD ON A WHERE AS / WHERE IS BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, DIY POLE BARNS WILL PASS THROUGH TO CUSTOMER, TO THE EXTENT POSSIBLE, ANY APPLICABLE SUPPLIER WARRANTIES.
DIY Pole Barns shall be excused for delay in the performance of any obligations hereunder when such delay is the result of or attributable to acts of God, governmental authority, delays in transportation or materials, or any other cause beyond DIY Pole Barns’ control.
This Agreement shall be governed by the laws of the State of Ohio without giving effect to any conflict of law provision or rule. Any dispute or claim concerning this Agreement, including whether such dispute or claim is subject to arbitration, shall be settled by arbitration. The arbitration proceedings shall be conducted before one arbitrator under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration under the rules is made. The decision of the arbitrator, including determination of the amount of damages suffered, if any, shall be final and binding on all parties, their heirs, executors, administrators, successors and assigns. Each party shall bear its own expense in the arbitration for arbitrators’ fees and attorneys’ fees, for its witnesses or other expenses of presenting the case. Other arbitration costs, including administrative fees, and fees for records or transcripts, shall be paid equally by the parties. The location of such arbitration shall be in Darke County, Ohio.
If any term or provision of this Agreement is held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement.