B2B INDUSTRIAL PACKAGING GENERAL TERMS AND CONDITIONS OF SALE OF PRODUCTS
1. TERMS AND CONDITIONS GOVERN. The following B2B Industrial Packaging General Terms and Conditions of Sale of Products ("Terms") shall apply to and govern all transactions and purchases of products, tools and materials between B2B Industrial Packaging LLC ("B2B") and B2B's client ("Client"). Except as otherwise excluded by agreement in writing signed by B2B and Client (i) these Terms shall apply to and are incorporated into all agreements, whether written, oral or implied, with respect to the purchase of any products, tools and materials ("Products") from B2B by Client pursuant to any quote, proposal, purchase order, invoice or any other document related to the Products provided by B2B to Client, and into all "Orders" (as defined below), (ii) in the event Client has submitted an order or other Client document with conflicting terms and conditions applicable to Products, these Terms shall control, and (iii) Client's acceptance of the Products is conditioned upon acceptance by Client of these Terms and no others, and reflects Client's assent to B2B's Terms as set forth herein.
2. ORDERS. The specifics of any and all agreements between B2B and the Client will be set forth in an "Order." Client shall order Products through an Order which will include descriptions of Products, price and quantity, and other specific terms between the parties. B2B shall not be bound and no such writing will constitute an Order unless and until such writing is accepted by B2B upon B2B's execution of the Order at B2B headquarters by its President or his designee (when so accepted, an "Order"). However, acceptance by B2B of an Order or performance by B2B is pursuant to these Terms only, and constitutes a rejection of any additional terms and conditions of Client. Each Order is a separate and independent agreement between Client and B2B unless an Order expressly incorporates all or part of another Order. Client agrees and acknowledges that these Terms are incorporated into each Order. B2B's acceptance of any writing from Client is made conditional on Client's assent to these Terms and these Terms shall govern over any Client's conflicting terms and conditions set forth in a writing of Client.
3. CHANGES TO SCOPE OF ORDER. Client may request changes to the Orders by submitting a request in writing to B2B. No change shall be effective until accepted by B2B by its execution of an amended Order. Client agrees and acknowledges that changes accepted by B2B may result in a change in schedule, date of delivery of the Products, pricing, or all of the foregoing.
4. CLIENT REPRESENTATIONS AND WARRANTIES. Client represents and warrants that: (a) it is authorized to enter into these Terms and any applicable Order; (b) all information it has or will provide to B2B is complete and accurate; (c) Client knows how to, and it shall: use, handle, store, transport and dispose of the Products in such a manner as is necessary for the safety and protection of persons and property, in accordance with the manufacturer's recommendations and instructions, and in accordance with all applicable laws and regulations; (d) it will reasonably cooperate with B2B to enable B2B to provide the Products; (e) it has all necessary licenses, leases or rights to use the Products, and (f) it shall abide by all agreements between Client and a third party provider including manufacturers (each, a "B2B Manufacturer") related to the Products. Client acknowledges that B2B is not responsible for services or products provided by B2B Manufacturers or covered by third party agreements between Client and the B2B Manufacturer.
5. PAYMENT AND PRICING. The total pricing charged and invoiced by B2B to the Client shall include the price for the Products as set forth in the specific Order, any applicable transportation, freight and related service charges, and all Taxes (as defined hereinbelow)(collectively, "Purchase Price"). The Purchase Price shall be payable by Client upon the due date set forth in the Order and/or in any invoice issued pursuant to the Order. In addition, in its sole discretion, B2B may require, as a condition of the Order and shipment and Delivery (as defined below) of the Product, the Client to pay B2B a deposit up to and including the Purchase Price. Payments received by B2B from the Client shall be applied, at B2B's sole discretion, including to any invoice or line item of any invoice, Late Fee (as defined below), other charges provided hereunder, or as otherwise designated by B2B. Client shall pay the Purchase Price on or before the specified due date, and shall be deemed delinquent unless it includes all amounts due including the Late Fee as provided below. Time is of the essence with respect to all payments due under an Order or invoice. If Client disputes any fees or charges, Client must notify B2B in writing of the dispute within ten (10) days of the date of the affected invoice. If Client fails to provide such notice, Client waives any such dispute regarding the invoice. B2B may accept credit card payments. In the event Client pays the Purchase Price with a credit card after the Order has been shipped, Client will be charged and shall pay an additional 3% of the Purchase Price.
6. LATE FEES; TAXES. If Client fails to make any payment in full on or before its due date, Client shall pay interest on the part of the payment that is late in the amount of 1.5% per month or any part of a month, or the maximum interest rate allowed by law, whichever is less, from the due date to the date paid ("Late Fee"). The Late Fee is without waiver of any of B2B's rights and remedies due to a default as set forth in these Terms and/or any applicable Order. Client is also responsible for and shall pay all taxes and fees associated with the purchase and sale of the Products and materials provided hereunder or otherwise arising from these Terms and/or any applicable Order, including without limitation, sales, use, personal property, excise and value added taxes including all fines, interest or penalties assessed by federal, state, and/or local authorities ("Taxes"). Such Taxes may be added to each invoice provided to the Client or may be invoiced separately at any time, and Client agrees to promptly pay any and all Taxes whether included in the original invoice or invoiced at a later time. In addition, Client authorizes B2B to pay any Taxes when and as they become due, and Client agrees to reimburse B2B promptly and on demand for the full payment for such Taxes.
7. TRANSFER OF TITLE, TRANSPORTATION, DELIVERY AND RISK OF LOSS. Transfer of title of Products occurs upon delivery of the Products to Client, and delivery of Products to Client shall be deemed to have occurred when Products are placed for shipment at B2B's facility or that of its B2B Manufacturer (collectively, "Delivery"). All transportation and freight charges shall be F.O.B. B2B's facility or that of its B2B Manufacturer. Client is responsible for payment of all transportation, freight and related service charges which may be included on Client's invoice. B2B DOES NOT CARRY INSURANCE ON THE PRODUCTS AND CLIENT SHALL BEAR THE RISK OF LOSS AFTER THE PRODUCTS LEAVE B2B'S FACILITY OR THAT OF ITS B2B MANUFACTURER. B2B IS NOT RESPONSIBLE FOR PRODUCTS DAMAGED, STOLEN OR LOST IN TRANSPORTATION.
8. LIMITED WARRANTY. B2B warrants that the Products will conform with the description and quantity set forth in the Order. In addition, to the extent Client purchases any used tools as part of the Products from B2B, B2B warrants that any used manual tools will be operational for a period of 45 days after Delivery and that any used pneumatic tools will be operational for a period of thirty (30) days after Delivery. With respect to any other warranty issue relating to any Product provided hereunder, the manufacturer may provide and B2B shall assign any warranty offered by the manufacturer with respect to the Product to the extent such warranty is assignable or transferable to Client. Client's recourse shall be solely against the manufacturer with respect to any such warranty concerning the Products which is assignable, and not against B2B. Any misuse, abuse, unauthorized repair, or unauthorized disassembly of the Products, or failure to use the Products in accordance with the manufacturer's instructions (collectively, "Misuse") may void any manufacturer's warranty and B2B's limited warranty regarding used tools. Client shall notify B2B in writing of any breach by B2B of its limited warranty (a) with respect to the Products (except for used tools) within ten (10) days of Delivery of the non-conforming Products or (b) with respect to used tools, (i) within fifty-five (55) days of Delivery of any non-conforming used manual tools or (ii) within forty (40) days of Delivery of any non-conforming used pneumatic tools, shall label such notice as notice of a breach of warranty, and shall specify with reasonable detail the Products which are non-conforming and identify how, when and why such Products are non-conforming ("Warranty Notice"). In addition to the Warranty Notice, Client shall return the non-conforming Products within such applicable ten (10), forty (40) or fifty-five (55) day period from Delivery and in compliance with B2B's return policy, including without limitation, returning the non-conforming Products in the B2B Manufacturer's packaging unopened and undamaged (except for used tools) (See Paragraph 15 of these Terms). Along with such Warranty Notice, Client shall provide B2B with all documentation reasonably related to and supporting its claim that B2B breached its limited warranty hereunder or which is requested by B2B. After the aforementioned ten (10), forty (40) or fifty-five (55) day period, the aforesaid limited warranty shall expire. In the event of a timely Warranty Notice by Client, the terms of Paragraph 10 shall provide the sole remedy to Client for such breach.
DISCLAIMER OF ALL OTHER WARRANTIES BY B2B. EXCEPT FOR THE LIMITED WARRANTY FOR PRODUCTS SET FORTH ABOVE, B2B MAKES NO WARRANTY AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY APPLICABLE LAW OR OTHERWISE, OF ANY KIND OR NATURE WITH RESPECT TO ALL PRODUCTS, EQUIPMENT, DEVICES, USED TOOLS, OR ANY OTHER PRODUCT PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, THAT ANY EQUIPMENT, PRODUCT, DEVICE, OR USED TOOLS WILL ACHIEVE SPECIFIC RESULTS OR WILL MEET CLIENT'S NEEDS OR REQUIREMENTS, AND WARRANTIES OF RESULTS OR PERFORMANCE. B2B EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS CONCERNING ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS BY A B2B MANUFACTURER RELATING TO ITS PRODUCT, EQUIPMENT, MEANS OR MEDIUM.
9. NOTICE TO B2B OF NON-WARRANTY BREACHES. Client shall provide written notice to B2B of any alleged breach of these Terms or any applicable Order by B2B (other than a Warranty Notice by B2B as provided in Paragraph 8 above) within ten (10) days of said breach, and shall specify with reasonable detail the breach ("Breach Notice"). In the event of a timely Breach Notice by Client, the terms of Paragraph 10 shall provide the sole remedy to Client for such breach.
10. CLIENT'S SOLE REMEDIES AND LIMITATION OF B2B'S LIABILITY.
10.1 WARRANTY REMEDY AND BREACH REMEDY. In the event of an alleged breach by B2B of the limited warranty regarding Products and a timely Warranty Notice to B2B from Client, B2B's sole responsibility shall be to provide Client replacement or repaired Products for non-conforming Products within thirty (30) days after the timely Warranty Notice or, if the replacement or repaired Products cannot reasonably be delivered within thirty (30) days, then B2B will provide such replacement or repaired Products within a reasonable period thereafter as long as B2B has commenced and is proceeding with such repaired or replacement Products ("Warranty Remedy"). In the event of an alleged breach by B2B of any other non-warranty term of these Terms and/or any Order and a timely Breach Notice to B2B from Client, B2B's sole responsibility shall be to cure such breach within thirty (30) days after the date of the Breach Notice or such longer period as may be required as long as B2B has commenced the cure within the 30-day period and is using commercially reasonable efforts to cure the breach ("Breach Remedy").
10.2 CLIENT'S SOLE REMEDIES IF FAILURE OF WARRANTY REMEDY/BREACH REMEDY. In the event B2B fails to correct an alleged breach of warranty by providing a Warranty Remedy as set forth in Paragraph 10.1 above or fails to correct any other non-warranty breach, including a failure to provide the Products, by providing a Breach Remedy as set forth in Paragraph 10.1 above, Client's sole remedy shall be to terminate any applicable Order and to receive a refund of any amount actually paid for the Product which was non-conforming or which was not provided by B2B, or a credit for such non-conforming Product if Client has not yet paid for it. Notwithstanding the foregoing, even in the event of such termination, Client shall be responsible for and shall pay B2B for all other Products previously provided by B2B pursuant to any Order which were conforming or for which no Warranty Notice or Breach Notice was provided B2B. However, Client's right to terminate any applicable Order must occur by written notice to B2B within sixty (60) days of the Warranty Notice or Breach Notice and prior to completion of the Warranty Remedy or Breach Remedy.
10.3 LIMITATION OF LIABILITY. B2B SHALL NOT BE LIABLE TO CLIENT FOR PERSONAL INJURY, DEATH AND/OR PROPERTY DAMAGE ARISING FROM OR RELATING TO THE DESIGN, SPECIFICATIONS, OR MANUFACTURING OF THE PRODUCTS AND/OR FROM CLIENT'S USE OF THE PRODUCTS. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL B2B'S TOTAL LIABILITY TO CLIENT FOR ANY CAUSE OR CLAIM WHATSOEVER EXCEED THE ITEMIZED PURCHASE PRICE FOR THE NON-CONFORMING OR UNDELIVERED PRODUCTS AS SET FORTH IN THE APPLICABLE INVOICE AND/OR ORDER; THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, NEGLIGENCE ACTIONS. CLIENT AGREES AND ACKNOWLEDGES THAT THIS IS AN ADEQUATE REMEDY. IN NO EVENT SHALL B2B BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE IN ANY WAY ARISING OUT OF OR RELATING TO ANY ORDER OR THESE TERMS INCORPORATED IN THE ORDER, INCLUDING WITHOUT LIMITATION, DELAY OR SUSPENSION IN PROVISION OF PRODUCTS, LOSS OF BUSINESS, LOSS OF PROFITS, SAVINGS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT, LOSS OF USE OF PRODUCTS, LOSS OR CORRUPTION OF DATA, COSTS OF SUBSTITUTE PRODUCTS, EQUIPMENT, OR GOODS, OTHER COSTS OR LOST OPPORTUNITY COSTS, INABILITY TO RESTORE DATA FOR ANY REASON, ANY LOSS RELATED TO NON? PERFORMANCE OR DELAY, OR ANY OTHER TYPE OF LOSS EVEN IF SUCH DAMAGES WERE FORESEEABLE AND THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAID HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH HEREIN AND THAT B2B WOULD NOT ENTER INTO THESE TERMS AND/OR ANY APPLICABLE ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
10.4 ENTIRE REMEDY AND LIMITATION OF LIABILITY. B2B's entire liability and Client's sole remedies, whether pursuant to contract, tort, statute or otherwise or in any way related to or otherwise concerning these Terms, any applicable Order and/or the Products delivered pursuant to any Order, are limited as set forth in this Paragraph 10.
11. TERMINATION; DEFAULT. Client shall be deemed to be in default of any applicable Order (and/or these Terms) and B2B may, in addition to all other remedies available to it at law, equity or by these Terms and/or any Order, terminate these Terms and any applicable Order immediately without notice or opportunity of Client to cure if Client (a) fails to make any payment due under any Order or invoice from B2B within ten (10) days of the date the payment is due; provided that any late payment shall not be deemed cured unless it includes all delinquent amounts including the Late Fee (any failure to pay including any failure to pay all amounts due, is a "Payment Default"); (b) breaches any other term of these Terms or applicable Order (other than payment terms), which is not cured by Client within ten (10) days of written notice by B2B; (c) terminates or suspends business operations unless Client is succeeded by a permitted assignee under these Terms; or (d) makes an assignment for the benefit of creditors, files for protection under the U.S. bankruptcy code or similar law or has a bankruptcy petition filed against Client which is not discharged within thirty (30) days of filing. Default in paying any sum due under these Terms and/or any applicable Order will be remedied only if the payment also includes the accrued Late Fee payable as described above. In addition, B2B may terminate any Order (and these Terms) or the delivery of any Products provided hereunder immediately upon written notice to Client without liability if, in B2B's sole reasonable discretion, providing the Products, or any Product, may be prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body, or if for any reason beyond B2B's reasonable control the Products, or any of them, cannot be delivered for reasons including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving B2B's employees), weather of exceptional severity, acts of local or central government or other authorities or regulatory bodies, natural disaster, terrorism, riot, sabotage, transportation delays, computer failure, hardware failure, telecommunications failure, electronic mail failure, power failure, or failure of Client to cooperate with the reasonable requests of B2B. B2B may also terminate any Order for any reason at any time upon thirty (30) days prior written notice to Client.
12. CLIENT OBLIGATIONS UPON TERMINATION. Upon termination of any applicable Order, at B2B's request, Client shall: immediately but no later than five (5) days of B2B's request, at Client's expense, deliver to B2B and forthwith remove and/or return all Products to B2B for which Client has not paid which are in Client's possession or control; and provide an officer's certificate attesting to such delivery, removal and/or return as is satisfactory to B2B in its reasonable discretion at the address set forth above, and remit the Purchase Price and all Late Fees payable for Products due prior to the date of such termination and any other charges due hereunder.
13. B2B'S REMEDIES. Upon a default by Client, B2B reserves the right to exercise any and all remedies available to B2B under these Terms and/or any Order and applicable law and equity, without waiver of B2B's right to exercise any other remedy provided herein, including but not limited to any or all of the following: (a) termination of any applicable Order as provided above; (b) upon a Payment Default by Client, cease delivery of Products on any Order; (c) to demand and collect payment to B2B by Client in an amount equal to: (i) an amount equal to the sum of all amounts then due and past due, and (ii) all other amounts that may thereafter become due hereunder including the Late Fee and to the extent that B2B will be obligated to collect and pay such amounts to a third party; (d) cancel all pending Orders and recover any cancellation charges from Client; (e) repossess any Products pursuant to its security interest; (f) sell any of the Products subject to the security interest described above; (g) to seek and obtain injunctive relief (without the requirement of posting a bond) with regard to any breach by Client other than for failure to pay; and (h) reimbursement by Client to B2B for all reasonable expenses of enforcement of these Terms and any applicable Order (including, without limitation, reasonable attorneys' fees and other legal costs) and including all such costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments or with collecting or enforcing these Terms and any applicable Order including in any Client bankruptcy proceeding.
14. PURCHASE MONEY SECURITY INTEREST. If the full Purchase Price for Products provided by B2B to Client is not paid prior to Delivery, B2B hereby retains and Client hereby grants B2B an unconditional purchase money security interest in the Products purchased by Client, all additions and accessions thereto, and the proceeds thereof, to secure payment and performance of all of the Client's obligations to B2B. Client agrees and acknowledges that B2B is authorized to immediately file a UCC-1 financing statement in the appropriate jurisdictions, evidencing its security interest in the Products. Client shall provide all information requested by B2B and shall otherwise cooperate with B2B to enable it to perfect its security interest.
15. RETURN POLICY. Client shall indemnify and hold harmless B2B and B2B Manufacturers upon demand against any and all costs, expenses (including, without limitation, legal costs and reasonable attorneys' fees), liabilities, losses, damages, claims, demands and judgments ("Losses") incurred, suffered or related to any breach by Client of any Order (and/or these Terms), any Misuse of the Products, or any claim by any B2B Manufacturer arising from or related to Client's use of such B2B Manufacturer's products, software or services. Client further waives and releases B2B from and against all claims for personal injury, death and property damage arising from or relating to the design, specifications or manufacture of the Products and/or from Client's use of the Products, and Client shall indemnify and hold harmless B2B from and against all Losses arising from or related to any claim by any third party for personal injury, death and/or property damage arising from or relating to the design, specifications or manufacture of the Products and/or from Client's use of the Products.
16. INDEMNIFICATION; RELEASE. Client shall indemnify and hold harmless B2B and B2B Manufacturers upon demand against any and all costs, expenses (including, without limitation, legal costs and reasonable attorneys' fees), liabilities, losses, damages, claims, demands and judgments ("Losses") incurred, suffered or related to any breach by Client of any Order (and/or these Terms), any Misuse of the Products, or any claim by any B2B Manufacturer arising from or related to Client's use of such B2B Manufacturer's products, software or services. Client further waives and releases B2B from and against all claims for personal injury, death and property damage arising from or relating to the design, specifications or manufacture of the Products and/or from Client's use of the Products, and Client shall indemnify and hold harmless B2B from and against all Losses arising from or related to any claim by any third party for personal injury, death and/or property damage arising from or relating to the design, specifications or manufacture of the Products and/or from Client's use of the Products.
17. ASSIGNMENT. CLIENT SHALL NOT SELL, ASSIGN, OR OTHERWISE TRANSFER (collectively, "Transfer") ANY ORDER, IN WHOLE OR IN PART, WITHOUT B2B'S PRIOR WRITTEN CONSENT which B2B may grant, withhold or condition in its sole discretion. Any attempted Transfer without B2B's prior written consent shall be void. B2B shall have the right to Transfer any Order to any successor or assignee of B2B.
18. NOTICES. Notices must be in writing and will be deemed given five (5) days after mailing, or two (2) days after sending by nationally recognized overnight courier, to the other party's business address, or to such other address designated by either party to the other by written notice given pursuant to this sentence ("Standard Notice"). Notwithstanding the foregoing, notice may be made by e-mail to the e-mail address provided by the other party but shall only be deemed notice for purposes hereof if the recipient acknowledges receipt of the e-mail notice by a return e-mail within two (2) days of receipt of the original e-mail. The notice will be deemed given upon the date the original sender receives the acknowledgment. If the original sender does not receive an e-mail acknowledging receipt within the two-day period, the e-mail notice shall not be effective and the sender shall use the Standard Notice procedure.
19. SEVERABILITY. Each term hereof shall be interpreted to the maximum extent possible so as to be enforceable under applicable law. A determination by any court of competent jurisdiction that any provision in any Order and/or these Terms is void or unenforceable shall not affect the enforcement or enforceability of any other provision in any Order and/or these Terms; all provisions other than the provision which is determined to be void or unenforceable are and shall remain in full force and effect.
20. APPLICABLE LAW; VENUE; JURISDICTION. Any action related to any Order shall be governed by the laws of Illinois without regard to choice of law principles, and jurisdiction and venue for any litigation arising from or related to any Order and/or these Terms shall be exclusively proper, if in state court, in the Circuit Court for the Eighteenth Judicial Circuit, DuPage County, Illinois, and if exclusively within the jurisdiction of a federal court, in the U.S. District Court for the Northern District of Chicago, Eastern Division, Chicago, Illinois. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to any Order.
21. EXPORT CONTROLS. Client agrees to comply with all applicable U.S. export control laws and regulations as from time to time amended, including without limitation, those administered by the U.S. Department of Commerce and the U.S. Department of State. Client shall not export, import or transfer any of the Products contrary to U.S. or other applicable laws, whether directly or indirectly, and shall not cause, approve or otherwise facilitate others, such as agents or any third parties in doing so. Client represents that neither the U.S. Department of Commerce nor any other federal agency has suspended, revoked or denied its export privileges. Client further agrees not to use or transfer any of the Products for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. government by regulation or specific license.
22. LIMITATION OF CLAIMS AGAINST B2B. All actions by Client including any claims or lawsuits brought by Client for breach or enforcement of these Terms or any Order must be filed: (a) within one (1) year of the Delivery of the Products which are the subject of, or are involved in or related to the claim, or (b) within one (1) year of the alleged breach of these Terms or Order, whichever is earlier, or Client shall be forever barred from bringing such action.
23. JOINT AND SEVERAL LIABILITY. If the Client shall consist of more than one person or entity, the obligations hereunder of such persons or entities shall be joint and several.
24. MISCELLANEOUS. These Terms along with all Orders constitute the entire agreement between Client and B2B with respect to the Products, and supersede all prior negotiations, agreements and understandings between the parties with respect to same, whether oral or written, including but not limited to any quotes, proposals, purchase orders, invoices or similar documents. These Terms or any Order may not be modified or changed except by a writing signed by both parties which specifically mentions these Terms or the Order. B2B shall not be liable for any failure to provide Products due to circumstances beyond its control including but not limited to acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving B2B's employees), weather of exceptional severity or acts of local or central government or other authorities or regulatory bodies, natural disaster, terrorism, riot, sabotage, transportation delays, computer failure, hardware failure, telecommunications failure, electronic mail failure, power failure, or failure of Client to cooperate with the reasonable requests of B2B. Any Order may be executed in counterparts, all of which together with the Terms shall constitute the same document. The parties agree that a facsimile or other copy containing the signatures of both parties shall be as enforceable as the original executed Order. The failure of either party to enforce at any time any provision of any Order or these Terms shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision hereof. No waiver by either party, either express or implied, or any breach of any Order or these Terms shall be construed as a waiver of any other term or condition. The provisions of any Order and these Terms that by their nature continue in effect shall survive the termination or expiration of any Order, including but not limited to Paragraph 10 (Client's Sole Remedies and Limitation of B2B's Liability), Paragraph 12 (Client Obligations Upon Termination), Paragraph 13 (B2B's Remedies), Paragraph 14 (Purchase Money Security Interest), Paragraph 16 (Indemnification; Release), and Paragraph 22 (Limitation of Claims Against B2B). Client hereby represents to B2B that any Order and these Terms are legally binding and enforceable against Client in accordance with its terms.