Buyer never ordered appraisal

[Linda Goldinger]

Residential contract included a special stipulation that the appraisal must be completed within 21 days of the binding agreement date. Made it through the due diligence period but, on the 21st day following the agreement date, learned that the appraisal had never been ordered. Concerned that the property had been off the market for several weeks, two days later we (seller) submitted a unilateral termination notice requesting the earnest money, based on the buyer's failure to satisfy/remove the special stipulation. A week later, the buyer submitted a unilateral termination notice, based on inability to secure financing. Who should receive the earnest money, in this case?