Due Diligence box missing question

Question:  Here is the scenario,  Let’s say you represent the Seller.  The Buyers agent writes an offer and does not mark section 8.1 (Due Diligence condition) either ( ) Is or ( ) Is not conditioned upon Buyers Due Diligence.  However he does mark section 24b and puts in the same date as settlement.  Now Buyer wants to cancel prior to settlement and retain the Earnest Money.  Who does the Earnest money belong to?

Answer:  Because section 8.1 was not marked in either box and Section 24b did have a date for Due Diligence, now there is some ambiguity of the intent of the offer.  There could be some argument either direction and this is not cut and dried.  Seller may win the argument, however Buyer could prove Intent by putting in the date in section 24.  My suggestion would be to perhaps splitting the Earnest money between the parties.  Make sure you clarify dates with other Realtor before your client accepts an offer.  This would solve the mystery of missing dates.