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3B private-label-portal GmbH (hereinafter „3B“), with its primary place of business at Kölner Str. 4, D-56626 Andernach, and registered under the commercial registry A of the Koblenz District Court under HRA 26904, offers matching and marketing solutions for three key players in the private label industry and facilitates such matching via its Online Portal. These key players are either Customers looking for manufacturing partners, Manufacturers looking for retail business, wholesale or other industrial customers and distributors, and, Brand Advocates aiming at facilitating the transactions between such customers and manufacturers, and to expand their own network (all as defined below).
You will subscribe to these “Terms of Use” (hereinafter “ToU”) and the relevant Plan hereunder when you want to work with us as Customer, Manufacturer and/or Brand Advocate. You can subscribe to these ToU electronically via 3B’s online form.
3B offers different levels of matching and marketing services for retail businesses and distributors (together “Customers”) in need of a manufacturer for the products that they want to market. In the same vein, 3B proposes manufacturers with spare manufacturing capacity for the relevant product categories (“Manufacturers”) to help matching them with Customers. In addition, 3B recognizes the need for Brand Advocates. Brand Advocates are persons who -based on their intimate industry knowledge- broker the matching between manufacturers and customers and thus contribute to a more efficient allocation of resources in the private label market (“Brand Advocates”).
These ToU allow you to sign up for various Plans with 3B depending on whether you are a Customer or a Manufacturer and/or a Brand Advocate.
3B offers Customers and Manufacturers three Plans (“Plan”)
1. Publication and acquisition of single leads (Plan Marketplace)
2. Single Lead Promotion for Customers, Product Promotion for Manufacturers (Plan Single Lead/Plan Product Promotion)
3. ndividual Campaign Management Services (Plan Customer Promotion/Plan Manufacturer Promotion)
Independent of the above, 3B offers an extension for the individual network and/or the possibility of a remuneration to Brand Advocates for facilitating the matching of Manufacturers and Customers with the assistance of the 3B platform.
You will have to pay a one-time fee for the Marketplace and recurring subscription fees for Single Lead Promotion, for Product Promotion and for Customer or Manufacturer Promotion Services.
If a Customer concludes a contract with a Manufacturer and vice versa, 3B is entitled to and you (the Customer and the Manufacturer) shall both be obligated to pay 3B Referral Fees.
The Referral Fees shall be calculated on the basis of the net turnover of each order placed between the Customer and Manufacturer and shall amount to a percentage of the total annual net turnover generated by each completed order. The Plans & Pricing Page shows the applicable turnover bases and percentages.
All Subscription, Referral and any other fee amounts due under a Contract are to be paid in the currency, and within the timeframe, as indicated on our Plans & Pricing Page. The Plans & Pricing Page is an integral part of your Contract with 3B.
Fees may vary from time to time and 3B may readjust them at its sole discretion. 3B may readjust the Fees of ongoing contracts and subscriptions once a year to account for the inflation rate of the preceding year based on widely recognized indices, e.g., the Consumer Price Index of the German Federal Statistics Office and the Harmonized Index of Consumer Prices in the Euro area.
4. General Terms
The General Terms sets forth terms applicable to the relationship between you and 3B irrespective of whether you are a Customer, Manufacturer, or Brand Advocate. These terms relate, among others, to the following topics:
a. Definitions
b. Commercial Nature of Partners
c. Registration and Signing Up for the Plan
d. Brand Advocates
e. Platform Use
f. Billing, Payment, and Taxes
g. Intellectual Property Rights
h. Publicity and Confidentiality
i. Compliance with Laws, Export Regulation, Data Protection
j. Limitation of Liability
k. Term and Rights to Terminate
l. Governing Law and Venue
m. Notices and other Terms
0.1 “Attributes” means a set of data which the Customer must provide in order to specify a specific Customer request such that the Manufacturer can immediately evaluate the possibility to deliver the needed services or the desired product.
0.2 “Brand Advocate” is presumed to be a Business Enterprise that is a Customer, a Manufacturer or another market participant who is linking up Leads, Customers, and Manufacturers with 3B or between each other.
0.3. “Business Enterprise” means a business enterprise according to § 14 German Civil Code (“BGB”).
0.4 “Consumer” means a private consumer according to § 14 BGB.
0.5 “Contract” means a Registration or a request for subscription that 3B has accepted and which these ToU shall exclusively govern unless the Partner and 3B have agreed otherwise in writing.
0.6 “Customer” means a commercial wholesaler, retailer, start-up or resale business of any kind that intends to use services of 3B that enable it to attract the attention of manufacturers of any Private Label Goods that it can then sell or resell as its own Branded Products.
0.7 “End Customer” means either a Consumer or a Business Enterprise.
0.8 “Lead” means a product request of a Customer and with which the Customer individually assigns Attributes to an individual Product Category; the Attributes describe in a detailed fashions the Customer’s individual needs.
0.9 “Manufacturer” means a commercial manufacturing business which accepts orders for the manufacturing or assembly of White Label Goods and Private Label Products according to recognized industry standards and which then ships such goods to wholesale or commercial retail businesses for further resale to End Customers.
0.10 “Quote” means an offer made by 3B to a Partner for the sale of 3B services according to the selected Plan.
0.11 “Purchase Order” means a legally binding acceptance stated by a Partner of 3B based on a Quote issued by a Manufacturer.
0.12 “Partner” means a Customer, a Manufacturer, or a Brand Advocate, and each as further defined under (b) below.
0.13 “Platform” means 3B’s online portal as accessible under www.private-label-portal.com.
0.14 “Private Label Product” specifies a product solely produced for one specific Customer. The brand of the product, and potentially the development as well as the recipe, are owned by the Customer. When the contract refers to a Private Label Product this always includes White Label Products as defined below.
0.15 “Referral” means the services a Brand Advocate agrees to deliver to 3B by linking up Leads, Customers, and Manufacturers with 3B or between each other.
0.16 “Registration” means sharing the key identity and commercial details by a Partner with 3B and the acceptance of these ToU.
0.17 “Services” means the process (whether interrupted or not) of making the Platform and its functionalities available to Customers, Manufacturers, or Brand Advocates.
0.18 "Taxes" means any form of taxation of whatever nature and by whatever authority imposed, exclusive of any taxes based on the net income of 3B.
0.19 “White Label Product” means a product, usually of smaller quantities, that might be specifically labeled under the brand of the Customer but is manufactured and tailored according to the sole discretion of the Manufacturer (e.g., in stock unit to be labeled).
0.20 "Private Label Production Agreement” means a legally binding agreement for Private Label as well as White Label Goods (acceptance of an offer) that a Manufacturer and a Customer enter into because of a Referral or because of the acceptance of a Lead Request “by a Customer or of an offer by a Manufacturer to a Customer conveyed by 3B.
0.20 “Offer” means an offer for the production of Private or White Label Good that a Manufacturer who has concluded a Contract under these ToU issues to a Customer.
0.21 “Order” means a purchase of a Customer of any product placed to a Manufacturer linked up via the Portal in case the Manufacturer is not known to such Customer beforehand, as well as every purchase of a Product placed where the Lead was transferred via the Portal.
Contractual partners of 3B shall only be Business Enterprises. By issuing an Order, a Customer or Manufacturer confirms that it is such a Business Enterprise and that 3B may rely on this confirmation. You acknowledge that 3B may presume and rely on that you are a Business Enterprise.
1. If a Business Enterprise wishes to sign up for a Plan, only these ToU shall apply. No terms or conditions of purchase from the Partner or of third parties, even if 3B does not dispute their existence, validity, or applicability shall be binding.
2. The Partner may use services at the indicated prices of the Portal after registering with 3B.
3. The Partner must register for an account (“User Account”). To do so, the Partner can either use the online registration at the Portal “3B.com/en/offers”, connect via the Call Center, or request call back functionality of the Portal. Certain product and commercial details of the potential Private Label Product must accompany the request, as well as further Attributes, depending on the selected Plan. The Partner must convey such details within the Portal and may upload additional files in a common file format. The file size must not exceed 25 MB.
4. 3B may choose to provide the Partner with separate credentials necessary to register (a “Login Credential”). The Partner agrees that it will never divulge or share Login Credential with any third party for any reason. The Partner also agrees that it will create, use, and/or access only one User Account or Login Credential and that it will not access the Services using any User Account or Login Credential other than its own.
5. The Partner agrees to notify 3B immediately upon becoming aware of or suspecting any unauthorized use of its User Account or Login Credential.
6. Additional information may be required to confirm the Partner’s identity, and different or additional information may be required depending on its use of the Services. The Partner warrants that all such information provided by you that Partner is accurate, current, complete, and complies with its obligations under the Contract. The Partner also agrees to maintain and update such information to keep it accurate, current and complete. You acknowledge that if any such information provided by you is untrue, inaccurate, not current or complete, we reserve the right to terminate your use of any or all of the Services, at our sole discretion.
7. Contractual partners can contact 3B’s customer service for questions, claims and complaints via e-mail to [customercare@3b-plp.com]. 3B attempts to answer any such questions, claims and complaints within 3 (three) business days (Frankfurt/Main).
1. Brand Advocates shall comply with the following key obligations:
1. Provide only up-to-date and accurate information to the Portal and maintain the information current, in particular relating to a Manufacturer’s certifications, admissions or licenses.
2. To timely share within the Portal any news and relevant data about Quotes and Purchase Orders issued as a result of a Brand Advocate’s activity.
3. Not to act on behalf or pretend to be able to act on behalf of 3B.
4. Not to collect (i) any outstanding Fees due to 3B under a Contract and (ii) any payments to be made between Partners.
5. To assume full responsibility for all cost, expenses, taxes, fees and (stamp) duties incurred as a result of or connection with the formation or operation of its business.
6. To acquire at its own cost the technical and commercial knowledge required to act as a Brand Advocate.
7. Share any knowledge about significant doubts as to the creditworthiness of Partners within the Portal as well as knowledge about any other circumstances that may cast significant doubt on a Partner’s ability to fulfill the Partner’s obligations under this Agreement or vis-á-vis another Partner.
8. To deliver commercially best advice to Partners in a non-discriminatory fashion.
9. Not to harm the interests of 3B or the Portal.
10. To comply with all laws, regulations, and public agencies’ administrative instructions or decisions that apply to the Brand Advocate (including data protection laws and regulations).
11. To delete all documents and erase all data relating to services rendered under these ToU upon termination unless the Agent is required by law to preserve documents or to maintain copies.
2. Brand Advocates shall comply with any other instructions which 3B may issue to Brand Advocates from time to time to specify the key obligations stated above.
1. THE FOLLOWING IS INFORMATION THAT YOU MUST PROVIDE (“REQUIRED PARTNER CONTENT”):
1. Complete and accurate Requests
2. Negotiation updates and arrangements that you have concluded with other Partners
3. Timely information about Orders made
2. THE FOLLOWING KINDS OF CONTENT (“PROHIBITED CONTENT”) ARE STRICTLY PROHIBITED ON THE Platform:
1. Content that defames, harasses, discriminates against, harms or threatens others.
2. Content that discusses illegal activities with the intent to commit them.
3. Content that infringes or misappropriates intellectual property rights.
4. Content that you do not have the right to disclose.
5. Profane, pornographic, obscene, indecent or unlawful content.
6. Content related to any kind of political activities whether partisan or not.
7. Content that contains intentionally inaccurate information or is posted with the intent of misleading others.
3. 3B reserves the right to remove Prohibited Content of which it becomes aware, but is under no obligation to do so.
4. In addition, Partner agrees not to
(a) use any of the Services in any manner intended to damage, disable, overburden or impair any part of any of the Services, computer equipment, or network(s) connected to any of the Services, or to disrupt or interfere with any Program, any other user's use and enjoyment of any of the Services;
(b) attempt to gain unauthorized access to any of the Services, other accounts, computer equipment or networks connected to any of the Services through hacking, password mining or any other means;
(c) obtain or attempt to obtain any materials or information on or via any of the Services not intentionally made available through the Services;
(d) copy, or use any portion of any of the Services, other than as expressly allowed under the Contract;
(e) use any high-volume, automated, or electronic means to access any of the Services (including without limitation to: robots, spiders and or scripts);
(f) frame any of the Services, place pop-up windows over its pages, or otherwise affect the display of its pages; or
(g) force headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through any of the Services.
1. Invoicing of Fees and Amounts Due.
3B will invoice Partner for the Fees according to the applicable price schedule. Partner must pay all sums due to 3B net thirty (30) days from the date of invoice.
2. Collection of Overdue Amounts.
Partner will reimburse 3B for all costs and expenses incurred by 3B in connection with the collection of overdue amounts, including without limitation to reasonable attorneys’ and/or legal fees. All amounts payable shall be exclusive of any Taxes. Partner will pay to 3B, in addition to any amounts due to 3B for Services, an amount equal to any Taxes arising from or relating to a Contract hereunder that are paid or are payable by 3B, unless Partner presents 3B with a valid tax exemption or resale certificate.
3. Cross-Border Transactions.
In the event of a cross-border transaction, if Partner is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to 3B, then the sum payable to 3B will be increased by the amount necessary for 3B to receive an amount equal to the sum it would have received had no withholdings or deductions been made, unless Partner provides 3B with the original withholding tax documentation that is sufficient for 3B to apply for and obtain a tax credit for the full withheld amount. The Parties will work together in good faith to minimize adverse tax consequences to 3B created by cross-border transactions. Any payments more than thirty (30) days past due will be subject to a late fee of one and one-half percent (1½%) per month, or the maximum rate allowable by law, whichever is less.
1. Ownership.
Partner agrees that all trade name, trademark, service mark, copyright, patent, trade secret, domain name and all other intellectual and industrial property rights anywhere in the world, including moral rights, and all applications, provisional applications, registrations, continuations and renewals thereof, and all associated goodwill (present or future) in and to 3B’s Services, are and will, as among the Parties, be owned by 3B or its licensors, notwithstanding any use of terms such as "Offer," "Acceptance" or the like within these ToU.
2. Feedback.
Partner shall provide prompt electronic or written notice to 3B of any comments or complaints about products that are made or resold by other Partners, and of any problems with products or their use of which Partner becomes aware. Any information provided by Partner to 3B in connection with the foregoing shall be the property of 3B and shall be 3B’s Confidential Information.
1. Publicity.
Partner will keep confidential and will not disclose, market, or advertise to third parties any data transferred between a Customer or a Manufacturer or a Brand Advocate, and any data relating to Leads. Partner or 3B may reference its relationship with the other, in the normal course of business including during earnings calls, discussions with analysts, meetings with the press, customer briefings, general marketing activities, and in regulatory filings, as well as on the Portal itself. Neither Party will issue formal press releases or other similar activities referencing the other Party or Partner without the written consent of the other Party or Partner.
2. Confidential Information.
“Confidential Information” means all information disclosed by a Partner to or via 3B or vice versa (“Disclosing Party”) to the respective other party (“Receiving Party”), whether orally or in writing that is marked as confidential or proprietary, or the Receiving Party should reasonably know to be confidential in nature. Confidential Information of 3B includes, among others, the Services and the provisions of the Contract (including any pricing information). Confidential Information includes, for both parties, their trade secrets, know-how, data, customer lists, financial information, business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not, however, include any information (including know-how) that
(i) is or becomes generally known to the public without a breach committed by the Receiving Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without a breach committed by the Receiving Party,
(iii) is received from a third party without a breach committed by the Receiving Party or any duties of confidentiality owed to 3B by such third party,
(iv) was independently developed by the Receiving Party, or
(v) is disclosed with the prior written consent of the Disclosing Party or is otherwise permitted to be disclosed pursuant to this Contract; or
(vi) is software code in either object code or source code form that is licensed under an open source license. Except in relation to Partner's obligations pursuant to Section (f) 4 below, both Parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the relevant Confidential Information, or any period that is stated in a Registration.
3. Ownership Rights in Confidential Information.
Each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own information of like kind (but not less than reasonable care) towards
(i) any Confidential Information of the Disclosing Party, to which usage is prohibited, for any purpose outside the scope of the Contract and (ii), except as otherwise authorized by the Disclosing Party in writing, Confidential Information of the Disclosing Party, of which access is limited, to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Contract, and who have signed confidentiality Contracts with the Receiving Party containing protections not less protective of the Confidential Information than those herein, or are under statutory duties of confidentiality. Neither party may disclose the terms of this Contract to a third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent. In case that a party that makes any such disclosure to its Affiliate, legal counsel or accountants, it will remain responsible for such person’s compliance with this Section. However, 3B may disclose the terms of this Contract to a subcontractor or provider of services to the extent necessary to perform 3B’s obligations under this Contract, under reasonable terms of confidentiality.
4. Court Orders.
The Receiving Party may disclose Confidential Information of the Disclosing Party if compelled by law to do so, provided the Receiving Party notifies the Disclosing Party prior to the compelled disclosure (if legally permitted) and reasonably assists, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party must disclose the Disclosing Party’s Confidential Information in any civil or criminal legal proceeding, regulatory proceeding or any similar process to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party must reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
5. Without prejudice to Clauses (g) 2 and (h) 1 above, 3B may cite the performance of its Portal to its Customers and Manufacturers as an indication of its experience.
1. Controlled Materials.
As between 3B and Partner, Partner (a) understands that countries, including the U.S. and countries within the European Union, may restrict the import, use, export, re-export or transfer of products and other controlled materials (which may include (“Controlled Materials”); (b) will be solely responsible for compliance with any such import, use, export, re-export, or transfer restrictions in connection with Partner’s use of 3B’s Services; and (c) will be the importer and exporter of record of the Controlled Materials that Partner uses, sells and/or distributes, and is responsible for all associated obligations, including but not limited to, paying all import duties and tariffs, and obtaining any required regulatory approvals, registrations, and export and import licenses.
2. Weapons, Illegal Drugs, and Counterfeit Goods.
At 3B’s discretion, 3B may reject the coming into existence of a Contract, if a Partner’s activities relates to the production of weapons (including for sporting purposes), arts of weapons, illegal drugs or other forbidden products/materials or to products/materials that cannot be exported or imported based on U.S. or EU Export Control Laws, or if the Partner’s activities are related to counterfeit goods or other goods of which one can reasonably assume that they violate a third party’s trade name, trademark, service mark, copyright, patent, trade secret, domain name and all other intellectual and industrial property rights anywhere in the world, including moral rights.
3. Boycott Regulations.
Partner will not engage in any activity that is prohibited under the U.S. Anti-boycotting Act (50 USCA 2407) and the U.S. Restrictive Trade Practices or Boycotts Regulations of the EAR (set forth in 15 CFR Part 760) and shall comply with any applicable reporting requirements thereunder.
4. Data protection.
Partner undertakes that it will, at all times, comply with the provisions of all domestic and foreign data protection, data security, privacy laws, and regulations applicable to its obligations arising under or pursuant a Contract hereunder (including without limitation, Regulation (EU) 2016/679 of 27 April 2016, General Data Protection Regulation), and will ensure that its Affiliates and its and their employees, agents and Service Partners do likewise.
5. Termination for Cause.
If 3B later becomes aware of any violation by Partner of its foregoing obligations, it may terminate its services immediately for cause. In such event, the Partner shall not be entitled to any compensation for damages incurred because of such termination and 3B shall be entitled to recover all costs that it has incurred because of such termination.
1. Unlimited Liability.
The Parties shall be mutually liable without limitation (a) in the event of willful misconduct or gross negligence, (b) within the scope of a guarantee taken over by the respective party, (c) in case of an injury to life, body or health, (de) according to the German Product Liability Law.
2. Liability for Breach of Essential Contractual Obligations.
If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of the Contract is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the Contract, 3B’s liability shall be limited to foreseeable damage typical for the contract. Essential contractual obligations are those which grant the Parties the rights which the Contract must grant according to its content and purpose, particularly obligations whose fulfilment are essential for due implementation of the Contract and on which a contractual partner can reasonably expect to be able to rely on. In all other respects, any liability for damage caused by slight negligence shall be excluded.
3. 3B’s Platform Role.
Partner is aware that 3B merely provides a platform. The effective linking up of Leads, Customers, and Manufacturers largely depends on the quality of data provided by the Partners, on market conditions, and the Partners’ effort to enter into binding agreements among themselves. 3B does not control the quality of such data, the market conditions, and the Partners’ level of effort. Partners acknowledge that 3B cannot assume any responsibility for the quality of services or products or for the behavior of parties with whom Partners link up through the Portal.
1.Term.
A Contract begins on the date of the dispatch of the Order Confirmation by 3B and continues until the expiration or termination of all Services under a Plan ("Term"). The term of each specific Plan Terms is independent of the term of any other Plan specific Terms.
2.Termination for Convenience by 3B or Partner.
3B may (without prejudice to any other right or remedy) terminate a Contract in whole or in part for any reason at any time upon sixty (60) days prior written notice to Partner. If Partner or 3B breaches the terms of a Contract, and the breach is not cured within thirty (30) days after written notice of the breach is given to the breaching Party (except for payment obligations, in which case five (5) days), then the other Party may, by giving electronic or written notice of termination to the breaching Party, terminate a Contract in whole or in part without prejudice to any other right or remedy.
3. Fees and Termination.
Partner acknowledges that termination of the Contract with 3B does not void Partner’s obligation to pay Fees under a Contract hereunder: As long as Partner benefits from use of the Portal’s Services or solicits business with another Partner with whom he linked up via the Portal, Partner is subject to an obligation to pay Fees.
1. Applicable Law.
The substantive law of the Federal Republic of Germany (with the exclusion of its conflicts of law provisions) shall apply to these ToU and any Contract or contractual dispute thereunder.
2. Jurisdiction and Venue.
To the extent permissible by law, exclusive jurisdiction and venue shall be with the courts in Koblenz, Germany.
1. Notices.
Where these ToU provide that a party has to be notified electronically or in writing, such notices must be served personally or sent by email or prepaid registered post to the address of the other party specified in the completed Registration, or to such other address as is notified by that party in writing during the term of a Contract. Any notice sent by post shall be deemed to have been received two (5) working days after being posted. Any notice served personally or sent by email shall be deemed to have been received one (1) working day after being sent. For Partner: the most current address number indicated by Partner to 3B in writing; For 3B: backoffice@3b-plp.com, 3B private-label-portal GmbH, Kölner Str. 4, D-56626 Andernach.
2. No Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, that either party may assign a Contract hereunder in its entirety, without the other party’s consent, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Notwithstanding the foregoing, if a Partner is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of 3B, then 3B may terminate any Contract upon written notice. In the event of such a termination, 3B will refund the Partner any prepaid fees covering Services not yet rendered after the effective date of such termination. Subject to the foregoing, a Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
3. No Partnership in Law.
Partners and 3B are independent Business Enterprises for all purposes, without express or implied authority to bind the other. Each Party will be responsible for all costs and expenses incident to performing its business. Nothing in these ToU or under a Contract shall be deemed to constitute a partnership or to create a relationship of a principal and a commercial agent between the Parties for any purpose.
4. Force Majeure.
Neither party shall be liable for, nor shall either party be considered in breach of a Contract hereunder, due to any failure to perform its obligations under a Contract hereunder resulting from Force Majeure (other than Partners’ payment obligations, which shall be suspended only for so long as the Force Majeure event renders a Partner unable by any means to transmit payments when due pursuant to a Contract. An event of Force Majeure will extend the time of performance for the affected party for a period of maximum 30 cumulative calendar days, or such other period as may be agreed to in writing between the parties (the “Force Majeure Period”). Neither party will be liable for any loss, damage, detention, or delay resulting from a Force Majeure. Either party may terminate a Contract hereunder if a Force Majeure event continues to materially impact the affected party beyond the Force Majeure Period. “Force Majeure” means circumstances beyond a party’s reasonable control, including, for example, an act of god, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic with government ordered, widespread quarantines, strike or other labor problem (other than involving 3B employees), internet service provider failure or delay, or denial-of-service attack.
5. Severability.
If any part of these ToU or any Contract is for any reason found to be invalid, illegal, or unenforceable, all other parts will remain in effect. Should any part of these ToU, or the Contract and its attachments, be void or otherwise ineffective, the rest of these ToU, or the Contract, will remain valid. The parties will then interpret and modify the applicable section to this Agreement, in good faith, to achieve as closely as possible the original purpose of the parts which are to be held void or ineffective.
6. Conflicts.
If there is a conflict between these ToU and any Plan specific terms, the terms will be interpreted in the following order (1) the Plan specific terms, (2) these ToU, and (3) any exhibits delivered by a Partner.
7. Additions, Deletions or Modifications.
Any subsequent additions, deletions, or modifications to these ToU are not binding unless agreed upon in electronic form, or in writing by authorized representatives of both parties.