Terms of Service, Legal & Compliance Documents

A. GENERAL TERMS OF USE

ACCEPTANCE OF TERMS

We are Lymion Group, Inc., a Florida, USA corporation, also doing business as Overproof. We offer access to this Site and the Service (as each is defined below) to you subject to these Terms of Use, which we may revise occasionally without notice, other than posting them at this location on this Site. Please check the Terms of Use periodically. Use of the Service or Site constitutes your acknowledgment and acceptance of these Terms of Use and, as applicable to use of the Site, the accompanying Privacy Policy.

You may not use the Site or the Service in a way that is not specifically permitted by these Terms of Use. Any unauthorized use of the Service or the Site will terminate the permission granted by these Terms of Use and may violate copyright, trademark, and other laws.

In these Terms of Use, we generally refer to ourselves as “Overproof”, “we,” “us,” “our,” etc. We may, however, from time to time, refer to ourselves by using entity names, product names, or service names like, but not limited to “Tastings”, “Overproof Tastings”, “CompanyToast”, “Sixdots“, “BarInsights“, “Lymion”.

Also, throughout these Terms of Use,

the “App” refers to any and all of the iPhone, iPad, or Android-based mobile or tablet applications through which a User can perform field data collection, fill out purchase orders, capture electronic signatures, track expenses, and communicate with other App Users; the App is designed and offered to you to allow you to collect information, transmit information to the Portal and receive information from the Portal;

“Content” means all of the text, pictures, files, links, geolocation data, reports, and other information or material posted, transmitted or stored through the Service;

the “Portal” refers to portions of the Site that you or your employer, prime contractor, agent or other affiliated party remotely accesses through an interface provided by Overproof, to operate the Service, to manage and analyze information submitted by one or more Apps and to communicate with those Apps;

a “Reader” is any User who reads Content through the Service;

a “Sender” is a User who develops, posts, or transmits any Content through the Service;

the “Service” means the full suite of technologies and services that Overproof offers through both the App, the Portal, and the Site;

the “Site” means the websites overproof.com, sixdotsapp.com, overproofteam.com, storetastings.com, or any other webdomain owned and operated by Lymion Group, Inc. or its subsidiaries, through which we conduct our business and operate the Portal; the Site includes both the Portal and other elements of Overproof.com;

“Users” means people who use the Service through the App or the Portal; depending on the context, a User could be you or another User; and

“you” (including “your” and “yours”) means an authorized User of the Service and the business entity that employs the User or asks the User to use the Service, including Users of the App and managers of the Portal, depending on the context.

Later in these Terms of Use, other words are capitalized (and shown in bold the first time they appear) to define terms with specific meanings when they are used again.

Easily explained: These are the legal terms that you agree to. If you don’t agree to them, you can’t use the Overproof Service.

YOUR RESPONSIBILITY FOR YOUR ACTIVITIES AND YOUR CONTENT

You acknowledge and agree that Overproof does not allow any illegal activities. You warrant that you will abide by all applicable local, state, national, and international laws and regulations and are solely responsible for all acts or omissions that occur under your account or password, including the Content of your transmissions through the Service.

You agree to not use the Service to:

Upload, link to, post, email, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, pornographic, defamatory, vulgar, obscene, fraudulent, indecent, lewd, libelous, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;

Upload, link to, distribute or otherwise publish through the Site any Content that would constitute, assist or encourage a criminal offense or harm minors in any way;

Impersonate any person or entity or falsely misrepresent your affiliation with any person or entity;

Upload, link to, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

Upload, link to, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

Upload, link to, post, email or otherwise transmit any Content regarding individuals in violation of applicable privacy or data protection laws;

Interfere with or disrupt the Service or the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

Upload, link to, post, email or otherwise transmit any material that contains software viruses, Trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or intercept or expropriate any system, data or personal information;

Distribute or publish unsolicited promotions, advertising or solicitations for funds, goods or services, including junk mail and spam;

Stalk or harass any other individuals;

Collect or store personal data about other Users, other than what the Users have made publicly available;

Use any data mining, robots, or similar data gathering and extraction methods within the Site; Or to pay for or otherwise compensate for services, goods, commercial commitments, or any form of incentive which are in violation of any local, state, or federal laws and regulations, including but not limited to ‘Tied House’ laws, applicable in the country, state, province, county or specific geographic area in which our software and services are being used.

You agree not to access the Service by any means other than through the Portal or the App.

Easily explained: You agree that you will not use our software for any unlawful purposes or for any other purpose than what the software is designed for. You will also not hack our software, servers or any other systems.

You acknowledge and agree that it is your responsibility to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. The Service is subject to U.S. export control laws, including the Export Administration Regulations, of the Bureau of Industry and Security (“BIS”), U.S. Department of Commerce; and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury. You agree to comply strictly with all such laws and regulations as they relate to the Service, and, to the extent consistent with these Terms of Use, to obtain any necessary license or other authorization to export, re-export, or transfer any software that underlies the Service. Without limiting the foregoing, you agree not to export, re-export, or transfer the Service to Crimea, Cuba, Iran, North Korea, or Syria; to the governments of these countries, wherever located; to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified Lists, or OFAC’s Specially Designated Nationals List, Sectoral Sanctions Identification List, or Consolidated Sanctions List; to any end-user with knowledge or reason to know that the Service will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes; or to any person with knowledge or reason to know that they will export, re-export, or transfer the Service other than in compliance with the foregoing restrictions.

You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials, whether publicly posted or privately transmitted, are the sole responsibility of the Sender from which such Content was originated. This means that you, not Overproof, are entirely responsible for all Content that you upload, post, email, or otherwise transmit via this Service. Overproof does not control the Content posted via the Service, and as such, does not guarantee the accuracy, integrity, or quality of such Content. Each time you provide Content, you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so, and you grant every other User who is authorized by you or your employer to use the Service the right to download and use such Content. You understand that by using the Service, you may be exposed to Content that is offensive, objectionable, or indecent. Under no circumstances will Overproof be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service. Overproof takes no responsibility and assumes no liability for any Content posted or uploaded by any User or third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter. As a provider of interactive services, Overproof is not liable for any statements, representations, or Content provided by its Users in any messages, advertisements, or any other interactive areas of the Site. Overproof cannot and does not edit, modify, or even proofread any Content originating from Senders other than itself.

If Content that you submit to the Service contains personal information about yourself, this constitutes your consent for Overproof and the Service to store, transmit, process and modify that information unless and until you take action to delete or modify that information.

You agree to indemnify and hold Overproof, and its subsidiaries, affiliates, directors, officers, agents, or other partners and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content that you submit, post to or transmit through the Service, your use of the Service, your connection to the Service, your violation of the Terms of Use, or your violation of any rights of another. In the event that you have a dispute with one or more other Users, you release Overproof (and our officers, directors, agents, subsidiaries, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in an way connected with such disputes.

OVERPROOF ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH CONTENT, INCLUDING WITHOUT LIMITATION, THE QUALITY OR ACCURACY OF ANY CONTENT AVAILABLE THROUGH THE SERVICE.

Easily explained: You agree to follow the law and behave responsibly while using our Service. You are responsible for your own Content. You will repair any harm caused to others, including Overproof, by your Content or misbehavior.

OVERPROOF’S RIGHTS TO REMOVE AND DISCLOSE CONTENT

Overproof has the right, but not the obligation, to monitor the activity and Content associated with messages, advertisements and any other areas in the Service. Although Overproof has no obligation to monitor the Service, Overproof may investigate any violation of its policies pursuant to a complaint, or based upon its own discovery, and may take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, and/or removal of posted Content. Overproof reserves the right and has absolute discretion, to remove, screen, or edit any Content that violates its terms or is otherwise objectionable. Overproof also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.

To report any violation of Overproof’s Terms of Use or its Service, please contact us at the listed email address below.

You understand and agree that Overproof maintains the right to preserve Content and may also disclose Content if required by law or in good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process, enforce the Terms of Use, respond to claims that any Content violates the rights of third-parties, or protects the rights, property, or personal safety of Overproof or its Users.

Easily explained: We can protect the integrity of our Service by removing harmful Content. Please tell us if you see any.

REGISTRATION OBLIGATIONS

You understand and agree that Overproof may ask you to register for various reasons. It is expected that you will provide complete and accurate information. If your information is found to be untrue, or incomplete, Overproof has the right to suspend or terminate you from the Service. Overproof reserves the right to terminate any person, group, or company at any time, for any reason.

Overproof strictly prohibits the sharing of account passwords for the purpose of writing Content. Only those individuals who have registered and have accepted and agreed to these Terms of Use may post Content. Therefore, you acknowledge and agree that you will not share your account password with any other individuals or allow any other individuals to write any Content using your account. You also understand and agree that if you do share your account password or allow others to use your account, your account will become eligible for termination.

Overproof is concerned about the safety and privacy of all of its Users, especially children and persons under the legally permitted age for consumption of alcoholic beverages and products applicable in the country or local area he/she is using our Service (“Legal Drinking Age”). For this reason, persons under the Legal Drinking Age are not permitted to use the Service without the supervision of an adult or legal guardian. Overproof requests, but cannot guarantee, that all Users of the Site and Service and all Readers of Content be at least 18 years of age.

All parties involved should use caution and discretion before sharing any credit card information, passwords, account numbers, or any other relevant personal information. You acknowledge and agree that Overproof will not be held responsible or liable for any communications that arise between Senders and Readers from any use of the Service.

YOU AGREE BY REGISTERING AND/OR USING THE SERVICE THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT. AMONG OTHER THINGS, THIS MEANS (1) IF YOU ARE REGISTERING FOR AN INDIVIDUAL LICENSE ACCOUNT, YOU MUST BE AN INDIVIDUAL OF AT LEAST EIGHTEEN (18) YEARS OF AGE ENROLLING UNDER YOUR OWN NAME AND (2) IF YOU ARE A DESIGNATED USER REGISTERING FOR A BUSINESS LICENSE/ACCOUNT, YOU MUST BE A BONA FIDE EMPLOYEE OR INDEPENDENT CONTRACTOR OF THE BUSINESS ENTITY IN WHOSE NAME THE LICENSE/ACCOUNT IS HELD, AND YOU MUST BE AUTHORIZED TO BIND THE BUSINESS ENTITY AND BE AUTHORIZED TO REGISTER UNDER THE NAME OF THE BUSINESS ENTITY.

Easily explained: We require you to register to use the Overproof Service, and you must be of Legal Drinking Age. You are responsible for protecting your password so others can’t use it maliciously.

PAYMENT AND PAYMENT TERMS

Charges applicable to the Service are set forth in the registration process at the Site and in any registration processes for premium services and supplemental services. In the future, current charges, including billing methods, rates, and surcharges for using Overproof’s Service, may be obtained by completing a registration process for the Service. Overproof may now or in the future offer trial periods without certain fees and charges with specific details provided in the registration process for the Service. Overproof reserves the right to change, revise or modify any charges and to institute any new charges. Such changes, revisions, modifications or institutions of new charges will be effective upon notice but will not apply retroactively to any agreement in effect with you.

If you do not pay by credit card, we will invoice you periodically, as described in your order or our other agreements with you. Accounts which are more than thirty (30) days past due may be subject to deactivation at Overproof’s discretion.

If you pay by credit card, we will charge your credit card in advance on a monthly basis. This is done automatically after you enroll for the Service, until we or you terminate your access to the Service. If you add users in later months, the addition to your monthly charge will be pro-rated through the end of your established monthly billing period. You agree to pay all fees and other charges incurred by you or on your account at the rates in effect during the billing period in which the charges were incurred, including any surcharges incurred while using any premium or supplemental services or features for which a surcharge is made upon you or us. You will pay any and all applicable sales, use and like taxes which accrue as a result of a use of the Service by you or on your account. Delinquent charges (in the event that the credit card lender you selected refuses full payment) are subject to immediate suspension and/or termination without notice. Until Overproof is notified, you will remain responsible for any unauthorized use of Overproof’s service and systems occurring on your license and account, including without limitation all charges.

After termination of your account, we will not charge you again when the next payment is due, but you will not be entitled to a refund for any pre-paid fees.

All payments must be made in United States Dollars or the equivalent in other currencies and net of foreign exchange fees.

Easily explained: This section describes how we charge and collect our fees.

MODIFICATIONS TO SERVICE; TERMINATION

The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Overproof’s reasonable control, but Overproof will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Service. Notwithstanding anything else in the Agreement or otherwise, Overproof may monitor your use of the Service and use your Content in an aggregated and anonymous manner, compile statistical and performance information related to the provision and operation of the Service, and may make such information publicly available, provided that such information does not incorporate your Content or identify your confidential information. Overproof retains all intellectual property rights in such aggregated information.

You acknowledge and agree that Overproof, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, block or prevent future access to the Service, and remove and discard any Content within the Service at any time for lack of use or if you have violated or acted inconsistently with the nature of these Terms of Use. You agree that any such termination can be effected without any prior or written notice to you and that Overproof will not be held liable to you or any third-party for any termination of access to the Service.

You can terminate the Service at any time. Just log-in and click on ‘Close Account’ in the ‘Manage Subscriptions’ section of the Portal. You will not be entitled to a refund for any pre-paid monthly fees, but we will not charge you again when the next monthly or annual payment is due. You will be able to access the Service until the last day of your subscription.

If any provision of these Terms of Use is determined to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of the remaining provisions.

Easily explained: You can quit anytime if you are on a monthly plan without a term. If you have agreed to a term, you are liable for the fees due until the end of this term. We can terminate your account, stop providing the Service generally or make changes to the Service, all at our discretion.

DEALINGS WITH ADVERTISERS; LINKS TO THIRD PARTY SITES; DATA SUB-PROCESSORS

You acknowledge and agree that any correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser. You agree that Overproof will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.

You understand and agree that the Service may provide, or third parties may provide, links to other websites or resources. Because Overproof has no control over those sites and resources, you acknowledge and agree that Overproof is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources or for the sites that these sites may link to, including any changes or updates to such sites. You also agree that Overproof will not be held responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. Overproof allows these links as a convenience to the User, and the inclusion of any link does not imply endorsement by Overproof of the Site or any association with its operators.

Easily explained: We may tell you about unrelated websites and services as a favor to you. We are not responsible for what happens between you and them.

PERSONAL DATA PROCESSING AND PROTECTION

Your use of, and our provision of, the Service are subject to our Privacy Policy, which is incorporated into these Terms of Use. In the event of a conflict between these Terms of Use and the Privacy Policy, the Privacy Policy will take precedence and control.

Because we value your privacy, we have taken the necessary precautions to be in compliance with the California Consumer Privacy Act (“CCPA”). We therefore will not sell your personal data to outside parties without your consent. You have the right not to receive discriminatory treatment by the business for the exercise of the privacy rights conferred by California law.

When we receive information directly from visitors to our website who are citizens or residents of the European Union, that information is likely to include “personal data,” as regulated by the European Union’s General Data Protection Regulation (“GDPR”). As the recipient of this information before the provider subscribes to the Service, we are a “data controller” under the GDPR. As such, we will use that information only for the limited purpose of providing information about our products and services until the person who submitted the information no longer wishes that to occur, and anyone who submits personal data to our website consents to our use of that data for those purposes. As mandated by the GDPR, we will respond to the provider’s requests to delete, correct, transfer, provide information about, and otherwise manage the data you have submitted. You may opt out of any future contacts from us at any time. We provide these rights to anyone who submits information to our website, whether or not he or she is a citizen or resident of the European Union.

If you are using the Service as a customer, you have either enrolled in the Service directly or received authorization to do so from your employer (or if you are not an employee, from a business to which you provide services in another capacity). In those situations, for the avoidance of doubt, in the context of the provision and use of the Service, you are the “data controller” and Overproof is a “data processor” under the GDPR and other applicable privacy or data protection laws and regulations.

You understand and agree that Overproof may engage third parties to process Content on our behalf (sub-processors) in connection with the provision of the Service. List of sub-processors that we have engaged can be found here: List of sub–processors. This list may be updated from time-to-time, so we suggest that you check it periodically.

We will have entered into, and will enter into, agreements with our sub-processors that impose materially equivalent data protection obligations as set forth in these Terms of Use and the Privacy Policy; we will remain obligated to you for our responsibilities under these Terms of Use for the acts or omissions of our sub-processors.

Easily explained: We will comply with the CCPA and the GDPR. We are responsible for third parties that manage your personal data for us. We make every effort to maintain our Site, App, and Portal compliant with ADA guidelines. If we must do better, let us know via overproof.com/ADA

RESPECT OF COPYRIGHT AND OTHER PROPRIETARY RIGHTS

You acknowledge and agree that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that may or may not be protected by applicable intellectual property rights and other laws. Some of the information provided to you through the Service, by advertisers and other parties, may be protected by copyrights, trademarks, patents, service marks, or other proprietary rights and laws. You agree not to (or allow any third party to) copy, modify, create any derivative works of, reverse engineer or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service or the software that operates the Site and the Service (the “Software”), in whole or in part. You may not copy any portion of the Site for the purpose of developing any similar websites.

Except as expressly stated in these Terms of Use, you are not given any right or license in or under any patent, trademark, copyright, or proprietary right of Overproof or any third party. Elements of the Site, including page headers, custom graphics, logos, sounds, images and button icons are protected by copyright, trademark, trade dress and other laws and may not be copied or imitated in whole or in part. You may not use, frame, or utilize framing techniques to enclose any Overproof trademark, logo, or other proprietary information (including the images and photographs found at the Site, the content of any text and/or the layout or design of any page of the Site) without Overproof’s express written consent.

Overproof does not own any Content. Overproof will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content. In the event this Agreement is terminated (other than by reason of your breach), Overproof will make available to you a file of the Content if you so request at the time of termination. The file is delivered via e-mail to your registered e-mail address in unencrypted form. You agree that this is a reasonable form of transmission. Overproof reserves the right to withhold, remove and/or discard Content without notice for any breach, including, without limitation, your non-payment.

Overproof owns the anonymized data, analytics, and insights derived from any Content or from the usage of our Apps, Portal or Site.

You understand and agree that you will have no recourse against Overproof for any alleged or actual infringement or misappropriation of any proprietary right in any Content you submit to us.

If you believe that any Content on the Service infringes on your copyright, or otherwise violates Overproof’s Terms of Use, please contact us to report irregularities with the following information:

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
2. A description of the copyrighted work that you claim has been infringed.
3. A description of where the material that you claim is infringing is located on the Site.
4. Your address, telephone number and email address.
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Send notice of claims of copyright infringement by registered mail to:

Attn: Legal Department

Lymion Group, Inc.

425 NW 26th Street

Miami, FL 33127

United States

Easily explained: We own our Site and its content, and you own your Content. We own the anonymized data, analytics, and insights derived from any Content or the usage of our Services or Software. This section also tells you how to ask us to take down content supplied by someone else, if you believe you are the rightful owner.

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

By using the Service or accessing the Site, you expressly understand and agree that:

1. Your use of the Service is at your sole risk. The Service is provided on an AS IS and AS AVAILABLE basis to the fullest extent permissible pursuant to applicable law. Overproof EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
2. Overproof makes no warranty that (1) the Service will meet your needs, (2) the Service will be uninterrupted, timely, secure, or error-free, (3) the results that may be obtained from the use of the Service will be accurate or reliable, (4) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, (5) any errors in the Software will be fixed, and (6) or that the Site or the servers that make the Site available are free of viruses or other harmful components.
3. Any material downloaded or otherwise obtained through the use of the Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT OVERPROOF SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF OVERPROOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY OF USE OF THE SERVICE, OR THE MATERIALS OR CONTENT ON THE SITE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY CONTENT, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO OR FROM THE SERVICE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF CONTENT; (4) STATEMENTS OF CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (5) ANY OTHER MATTER RELATING TO THE SERVICE. IN ADDITION, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL MONTHLY RECURRING REVENUE OVERPROOF RECEIVED IN THE 12 MONTHS PRECEDING THE CLAIM.

Overproof will not be held liable for the consequences of any interruptions, errors, or loss of any data.

You acknowledge and agree that Overproof will not be held responsible or liable for any unlawful or otherwise improper acts performed by any third parties. This includes, but is not limited to, acts of hacking or any other means of disrupting data or preventing access to Service, transmitting viruses, deleting files, obtaining or misusing personally identifiable data, corrupting data, or otherwise interfering with the Site.

Some jurisdictions do not allow the exclusion of certain warranties, or the limitation or exclusion of liability for incidental, or consequential damages, accordingly, some of the above limitations of the sections above may not apply to you.

Easily explained: We don’t give a warranty about our service or your ability to use it. If you don’t think our service does what you need, no problem: quitting is easy.

NOTICES

Except as explicitly stated otherwise, any notices should be sent to us by postal mail to:

Lymion Group, Inc.

425 NW 26th Street

Miami, FL 33127

United States

We will send our notices by email to the email address you specified during registration. Notice will be deemed given 24 hours after sent, unless we are notified that the email was returned to us as undeliverable. Alternatively, we may give notice by certified mail, to the mailing address you provided during registration. In such cases, notice will be deemed given 3 days after the date of mailing.

MISCELLANEOUS

You understand and agree that these Terms of Use constitute the entire agreement between you and Overproof. The Terms of Use and the relationship between you and Overproof will be governed by the laws of the State of Florida without regard to its conflict of law provisions. The failure of Overproof to exercise or enforce any right or provision of the Terms of Use will not constitute a waiver of such right or provision. If any provision of the Terms of Use are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of the Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Overproof may assign its rights and duties under these Terms of Use to any party at any time without notice to you. You acknowledge that the provisions, disclosures and disclaimers set forth above are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. Both parties agree that there are no representations, promises, warranties or undertakings by you or Overproof contrary to those set above.

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B. MANAGED SERVICES (OVERPROOF TEAM)

WHEN PAYING FOR, USING, OR VERBALLY ACCEPTING MANAGED SERVICES OR CONTRACTING OVERPROOF TEAM FOR MANAGED SERVICES, YOU AGREE TO THE GENERAL TERMS OF USE OF THE OVERPROOF SOFTWARE AND TO THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION B. (MANAGED SERVICES).

IN THE EVENT THE CUSTOMER REQUIRES THE SIGNING OF A SERVICE AGREEMENT, A NON-DISCLOSURE AGREEMENT, CONFIDENTIALITY AGREEMENT, NON-SOLICITATION AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN OVERPROOF AND THE CUSTOMER (THE “CUSTOMER AGREEMENT”), THIS CUSTOMER AGREEMENT SHALL SUPPLEMENT, AND IN NO WAY LIMIT OR CHANGE, THE GENERAL TERMS OF USE, TERMS OF MANAGED SERVICES, CODES AND POLICIES (THE “OVERPROOF AGREEMENTS”) AS PUBLISHED ON OUR OVERPROOF TEAM WEBSITE AND AGREED TO BY ACCEPTING OUR SERVICES. IF A CONFLICT EXISTS BETWEEN THE CUSTOMER AGREEMENT AND THE OVERPROOF AGREEMENTS, THE OVERPROOF AGREEMENTS WILL SUPERSEDE THE CUSTOMER AGREEMENT.

NATURE OF MANAGED SERVICES

The Managed Services are offered, managed and delivered by Overproof TEAM, LLC, a full subsidiary of Lymion Group, Inc.. Overproof TEAM, LLC, including its parent company and its subsidiaries, any and all of its officers, directors, employees, independent contractors, agents, licensors, and suppliers (“Overproof TEAM”) is in the business of offering, within the limitations of local, state, and federal laws and regulations, the following services (the “Managed Services”):

1. Brand-Market Fit analyses using the Overproof Software;
2. Consultation on and (co-)development of local market plans and/or brand strategies;
3. Execution, or partial execution of local market plans and/or brand strategies, which we offer as dedicated programs with defined goals and terms (“OPT Program”). An OPT Program may include the following services:

1. Engaging with beverage distributors and retailers concerning the products represented or owned by the Customer (the “Product(s)”), with the aim of increasing the visibility and sales of the Products;
2. Consulting with and on behalf of the Customer on the Products and on recipes featuring the Products;
3. Education (e.g. consumer sampling, product training, and mixology seminars) for the Customer and for distributors and retailers of the Products, and their guests and customers;
4. Any other ‘brand activation’ event production requested by or tailored for its Customers;

4. The full-service setup and implementation of the Overproof Software
5. A review of a setup of the Overproof Software
6. In-field training the Customer on Overproof Software
7. Recruitment and in-field training of brand ambassadors or other staff for the Customer.

QUALITY OF MANAGED SERVICES

Overproof TEAM aims to perform such Managed Services in a diligent and workmanlike manner and, when applicable, in compliance with our Code of Conduct, which can be found on www.overproofteam.com/code. Overproof’s Code of Conduct is intended as a guideline and does not serve as a commitment or guarantee that Overproof shall execute its Managed Services in full compliance with its own Code of Conduct. Overproof holds the right to update or change its Code of Conduct from time to time.

GENERAL TERMS OF THE MANAGED SERVICES

Unless otherwise specified in each order form connected to the Managed Services (the “OPT Order Form”), the following terms and conditions apply:

Some goals defined in an OPT Program may include monthly phasing of the goals. This monthly phasing is intended for tracking, planning, and visibility purposes only. Though we task our team to plan their work in accordance with the monthly planning, the aggregate of any monthly phased goals is the final goal for each OPT Program.

Unless a goal in the Order Form is assigned specifically to a Product or selection of Products, the goals set forth in an Order Form may be accomplished with one Product or any combination of the Products included in the program specified in the Order Form.

Some Order Forms may include sales estimates. Our sales estimates are based on our in-field experience with executing market activations and benchmarked by Overproof’s data on the current consumer, menu, and sales trends for specific product categories in each of the targeted markets. Our sales estimates typically vary based on the composition and the duration of the agreed Managed Services for each market and the maturity of a market.

We also factor in specific customer requirements, as target accounts or signature serves. In compliance with federal, state, and local laws, we cannot guarantee the desired sales effect as a result of any of our Managed Services. Therefore, we cannot commit to a sales volume; however, our data-backed projections are typically more accurate than most other agencies. Please be aware that any changes to the program during the execution of a program will inevitably affect our initial sales estimate.

OVERPROOF TEAM PAYMENT TERMS

One-month programs

For one-month programs, the total program fee shall be payable prior to the Start Date of the program, as defined in the OPT Order Form.

Two-month programs

For two-month programs, fifty percent (50%) of the total program fee shall be payable prior to the Start Date of the program. The remaining fifty percent (50%) of the total program fee shall be payable on the first day of the second month.

Programs longer than two months

For programs longer than two months, forty percent (40%) of the total program fee shall be payable prior to the Start Date of the program. The remaining balance shall become payable in equal parts over the months following the first month of the program. Each part shall be payable on the first day of the month.

Overdue consequences

Overproof TEAM’s relationships in the markets are among the biggest assets of Overproof TEAM. On behalf of your brand(s), we commit to consumer and trade activations, brand training and sampling events 30-45 days in advance. Sometimes longer. To deliver on these commitments, we rely on the budgets made available for the Products. Therefore, Overproof TEAM shall not engage, or immediately cease to engage with its partners and customers when a payment is late by more than 5 business days. This policy serves both Overproof TEAM as well as our Customer and the reputation of its Products.

INDEMNIFICATION

Customer shall indemnify, defend and hold Overproof TEAM harmless from and against any and all third party claims, liability, suits, losses, damages and judgments, joint or several, and shall pay all costs and expenses (including counsel’s fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising there from, that Overproof TEAM incurs as a result of having performed consulting services for or on behalf of Customer.

The Customer confirms it is knowledgeable and fully up-to-date on any local, state, and federal regulations, including but not limited to ‘Tied House’ laws, applicable to the markets or areas in which the Customer contracts Overproof TEAM to perform Managed Services.

The Customer shall never knowingly contract Overproof TEAM to perform any Managed Services that violate or may violate any law or regulation. In case of doubt, the Customer warrants it shall seek legal consultation prior to contracting or requesting Overproof TEAM to execute any Services on behalf of the Customer. The Customer warrants that any and all of its officers, directors, employees, and affiliates refrain from asking, suggesting, or indirectly requesting Overproof TEAM to perform any Managed Services that may violate any applicable laws or regulations.

Customer agrees to defend, indemnify and hold Overproof TEAM harmless from and against any claims, actions or demands, liabilities, and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, any and all contracted brand activations and events hosted by, executed by or managed by Overproof TEAM.

SOLICITATION OF EMPLOYEES

Unless otherwise approved in writing, for the term of any Order and twelve (12) months beyond, the Customer will not offer employment to any employee or individual subcontractor of Overproof or Overproof TEAM who performed professional services under this Agreement or any related Order, or contract with, either individually or through a third party, any such employee or individual subcontractor of Overproof or Overproof TEAM.

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C. BARINSIGHTS

ACCEPTANCE OF TERMS

These Terms of Service for BarInsights, previously sold as Sixdots, (this “Agreement“) constitute a binding agreement by and between the party accepting this Agreement (the “Customer“) and Lymion Group, Inc., doing business as Overproof (“Overproof“) regarding the use of “BarInsights Service” as defined in this Agreement and the BarInsights Order Form. Any capitalized terms used in this Agreement or the connected BarInsights Order Form(s) that are not defined in this Agreement or BarInsights Order Form, shall have a meaning in the General Terms of Use as published on www.overproof.com/legal/.

The parties will also enter into a separate agreement that governs the amount the Customer will pay for the BarInsights Service (an “BarInsights Order Form“) and this Agreement is incorporated by reference into any such BarInsights Order Form. If any of the terms of the BarInsights Order Form differ from a term in this Agreement, the terms in the BarInsights Order Form will control. Agreeing to this Agreement and/or any BarInsights Order Form, constitutes your acknowledgment and acceptance of the General Terms of Use for the Overproof Software, and, as applicable to use our websites, the accompanying Privacy Policy. 

IT IS UNDERSTOOD BETWEEN THE PARTIES THAT 

1. THE INDIVIDUAL ACCEPTING OR SIGNING THIS AGREEMENT HAS THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT.
2. THE STANDARD PRICING AND TERMS AS DEFINED IN THIS AGREEMENT WILL APPLY IF THIS AGREEMENT IS EXECUTED WITHOUT AN BARINSIGHTS ORDER FORM.

1. Definitions

For the purpose of this Agreement and any BarInsights Order Form connected to this Agreement, the following definitions shall apply. 

1. Customer Supplier. A Customer Supplier shall mean each supplier or vendor to whom Overproof has successfully charged and received a payment on behalf of the Customer for the delivery of a BarInsights Menu Report.
2. Customer Revenue. The Customer Revenue shall mean the aggregate of payments received each month from Customer Suppliers on behalf of the Customer in exchange for the delivery of a BarInsights Menu Report.
3. Customer Profits. The Customer Profits shall mean the balance of Customer Revenue at the end of each calendar month less all applicable fees of the same month. 
4. Ghost Kitchen. A Ghost Kitchen (also known as a delivery-only restaurant, virtual kitchen, shadow kitchen, commissary kitchen, cloud kitchen or dark kitchen) is a professional food preparation and cooking facility set up for the preparation of delivery-only meals.  
5. Offline Testing. Offline testing shall mean the testing of an integration or connection between the Overproof Software and the Customer’s POS system. The purpose of Offline testing is to establish the proper functioning of bidirectional data transfer between Overproof Software and the Customer’s POS System(s).
6. Location. A Location shall mean each one (1) physical location of the Customer using one (1) dedicated POS-system setup for this Location. In the event the Customer operates Ghost Kitchens, each physical kitchen dispatching food to delivery services shall be deemed one (1) Location. Subsequently a “Pilot Location” means any or all Locations designated to the Pilot Program. 

2. Term and Termination.

Contract Term.

If there is no BarInsights Order Form, or there is no ‘Contract Term’ defined in an BarInsights Order Form, then the “Contract Term” of this Agreement shall be twelve (12) calendar months starting on the first day of activating the BarInsights Service. asasa

Termination for material breach.

Either party may terminate this Agreement if the other party fails to cure any material breach within thirty (30) days after receipt of written notice of such breach.

Suspension for Ongoing Harm.

Overproof reserves the right to suspend delivery of the service if Overproof reasonably concludes that Customer is causing immediate and ongoing harm to Overproof or the security, integrity, or availability of the Overproof Software. Overproof will use commercially reasonable efforts under the circumstances to provide the Customer with notice and an opportunity to remedy such violation or threat prior to such suspension. In the extraordinary case that Overproof must suspend delivery of the Overproof Software, Overproof promptly notify Customer of the suspension and the parties will diligently attempt to resolve the issue. Overproof will not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the service in accordance with this Section. Nothing in this Section will limit Overproof’s other rights under this Agreement.

Effect of Termination.

In the event that this Agreement is terminated for any reason, all license rights with respect to the Overproof Software will immediately terminate, and the Customer will: (i) cease use of the Overproof Software; (ii) return to Overproof all copies or other embodiments of any of Overproof’s Confidential information (defined in Section 8) received or obtained by the Customer under this Agreement; and (iii) pay to Overproof all amounts due and owing under this Agreement or any BarInsights Order Form. If the Customer has given Overproof the permission to use its logo and/or trademarks, then such right will terminate when this Agreement is terminated. The Customer will cease referencing Overproof in any public communications if Overproof has granted the Customer a right to do the same. Overproof will delete and discard the Customer Data (except for Aggregated Data) within thirty (30) days of termination or expiration of this Agreement.

Survival.

Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that the following Sections will survive: 

1. Customer’s Consent to Use;
2. Feedback;
3. Late Payment;
4. Non-Cancelable and Non-refundable;
5. Net of Taxes;
6. Survival;
7. Confidentiality;
8. No Warranty;
9. Limitation of Liability;
10. Indemnification;
11. General.

3. Payment and Payout Terms

Monthly Service Fee

The Monthly Service Fee defined in the last executed BarInsights Order Form shall apply to the aggregate of Locations of all BarInsights Order Forms connected to the Customer and this Agreement. If there is no BarInsights Order Form, the aggregate of the following applicable fees per location shall be the “Monthly Service Fee” for this Agreement:

Fee description	Fee per Location
Data Connection Fee	$75 /month, or as agreed in the Quote
QR-Code digital menu	$15 /month, or as agreed in the Quote
The first BarInsights report delivered each month	No charge
Each next BarInsight Report delivered to Customer Supplier	$ 30 /each, or as agreed in the Quote
Credit Card Processing fee for the collection of Customer                           Supplier fees	2.8% of the aggregate amount of each transaction plus $0.25 per transaction.

Setup fee

Fee description	Fee per Location
One-time setup fee	$500

Ancillary Costs and Fees

Unless otherwise defined by reference to a specific cost or fee in an Order Form, the BarInsights service fees do not include network equipment, servers, cabling, trunking, software utilities, related hardware peripherals, or third-party integration fees and services assessed by POS and/or other essential service providers.

Payout of Customer Profits

In the event the monthly balance of the Customer Revenue is sufficient to withhold all fees of the same month, Overproof shall pay out the remaining balance (the Customer Profits) to the Customer within 5 business days of the following month. 

The Customer shall have the option to receive the Customer Profits via ACH or via Check. Overproof shall charge to the Customer a processing fee of $25 per check (the “Check Processing Fee”). Payments via check may take up to 20 business days. 

Payment of BarInsights Services 

In the event the monthly Customer Revenue is insufficient to withhold the Monthly Service Fee and any other applicable fees as defined in this Agreement or the BarInsights Order Form, the Customer has the option to pay the remaining balance via: 

Automatically via Credit Card

Overproof will have the right to charge the credit card on the day the invoice is created by Overproof.  

Automatically via ACH

If the Customer is paying via ACH, Overproof will have the right to debit the Customer’s bank account on the day the invoice is created by Overproof. No processing fees shall be charged. 

We do not accept payments via Check.

Accurate Information.

The Customer is responsible for providing complete and accurate billing and contact information (including the email address for invoicing purposes) to Overproof and notifying Overproof of any changes to such information. Any delay in payment by the Customer due to Overproof having inaccurate billing information will be subject to the terms of Section 3

Invoice Dispute.

The Customer must notify Overproof’s billing department within three (3) business days of receipt of an invoice that it disputes amounts stated on an invoice (the “Dispute Notice Period“). If the Customer fails to notify Overproof before the end of the Dispute Notice Period, then the invoice is considered to be accepted. The parties agree to negotiate in good faith the resolution of any dispute within thirty (30) days of the date of the disputed invoice. If the parties are unable to agree, then Overproof has the right to suspend the Customer’s access to the Overproof Software until the dispute is resolved or terminate this Agreement and any BarInsights Order Form.

Customer Supplier Disputes.

Any disputes between the Customer and Customer Suppliers are the sole responsibility of the Customer. Any chargebacks initiated by Customer Suppliers will automatically be deducted from the same month’s payments received from Customer Suppliers. In the event insufficient funds are available to withhold all or a portion of a chargeback from the received Customer Supplier payments, or a portion of it, Overproof shall add the balance of this chargeback to the first following invoice.

Late Payment.

Unless specified otherwise in an BarInsights Order Form, Customer will pay all undisputed invoices within thirty (30) days of invoice date. If any undisputed amounts invoiced hereunder are not received by Overproof by the due date, then at Overproof’s discretion, all unpaid fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any past due payment has not been received by Overproof within thirty (30) days from the time such payment is due, Overproof may suspend access to the Overproof Software without notice to the Customer until such payment is made, or, at its discretion, immediately terminate this Agreement and any BarInsights Order Form for cause. If access to the Overproof Software is suspended due to the terms of the preceding sentences, and the Customer wishes to reinstate access, then the Customer must pay to Overproof all amounts owed PLUS a reinstatement fee equal to one (1) month of the support fees set forth in the BarInsights Order Form that was in effect at the time of suspension.

Non-Cancelable and Non-refundable.

Payment obligations are non-cancelable and all fees paid are non-refundable; provided however, that if the Customer terminates this Agreement or any BarInsights Order Form because Overproof no longer can make the Overproof Software available to the Customer, then Overproof will refund to the Customer a pro-rata amount of any pre-paid fees.

Net of Taxes.

All amounts payable by the Customer to Overproof hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). The Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Overproof.

Limited Purpose License Grant.

Subject to the Customer’s compliance with the terms and conditions of this Agreement and any BarInsights Order Form, Overproof hereby grants to the Customer a nonexclusive, revocable, worldwide, non-assignable, non-transferable, and non-sublicensable right and license, during the Contract Term, to access or install, run and use the Overproof Software that may be provided by Overproof to the Customer, and/or a service provider of the Customer.

License Restrictions.

The Customer will not use the Overproof Software for any purpose other than the purposes expressly set forth herein without Overproof’s prior written consent. Except as expressly set forth herein, the Customer may not: (i) copy, rent, lease, sell, transfer, assign, disassemble, reverse engineer or decompile (except to the limited extent such restrictions are expressly prohibited by applicable statutory law), modify or alter any part of the Overproof Software; (ii) use the Overproof Software on behalf of any unauthorized third party; or (iii) use the Overproof Software in order to build a competitive product; (iv) use the Overproof Software in violation with the trade practices as defined in the Federal Alcohol Administration Act of 1935, as amended, or any other federal, state or local laws and regulations, including but not limited to the Tied House Laws.

Ownership and Reservation of Rights.

Rights in Overproof Software.

The Customer acknowledges and agrees that, as between the parties, Overproof retains all right, title and interest in and to the Overproof Software, including any copies thereof, by whomever produced, and all intellectual property rights therein and thereto. Overproof grants no rights, and reserves any and all rights other than the rights expressly granted to the Customer under this Agreement, with respect to the Overproof Software. The Customer will acquire no right, title, or interest in and to the Overproof Software or any copies thereof (by whomever produced) other than the limited licensed rights expressly granted under this Agreement. The Customer will not remove, obscure, or alter any intellectual property rights or notices relating to the Overproof Software.

Rights in Customer Data.

As between Overproof and Customer, Customer owns the Customer Data. Customer hereby grants and agrees to grant to Overproof a limited-term, worldwide, non-exclusive, non-transferable, non- sublicensable, royalty-free license to host, copy, transmit, display, process and use for any business purpose the Customer Data for the sole and exclusive purpose of providing the Overproof Platform Services and as required by Overproof to comply with its obligations under this Agreement (except that Overproof may not use Customer Personal Data). “Customer Data” will mean all data and other information that Customer provides or makes available to Overproof in connection with this Agreement. “Customer Personal Data” will mean all Customer Data relating to an identified or identifiable natural person.

Customer’s Consent to Use.

Application or Service Provider.

If the Customer provides an application or service (the “Service”), the Customer agrees that Overproof may: (i) process Customer Data from the Service via the Overproof Software; and (ii) contact any merchant operator that is connected to the Service via the Overproof Software to seek permission to use the merchant operator’s data that is processed through the Overproof Software. The Customer may not set-up an account with Overproof for any of its customers nor accept Overproof’s terms of service (the “TOS”) for or on behalf of its customers and will direct its customers to Overproof’s website to set-up an account and to accept the TOS.

Merchant Operators; Aggregated Data.

If the Customer is a merchant operator, the Customer agrees that Overproof may: (i) process the merchant operator’s Customer Data via the Overproof Software; and (ii) collect the merchant operator’s transaction and configuration data (which will not include any Customer Personal Data, or sensitive credit card information, of the merchant operator’s customers or employees) that is processed via the Overproof Software. Overproof may, interpret, analyze, sell or license Customer Data to a third party, provided that such party uses it on an anonymized and aggregated basis.

Feedback.

The Customer may, from time to time, provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Overproof with respect to the Overproof Software. If the Customer provides any Feedback Overproof will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. The Customer hereby grants to Overproof a royalty free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to: (i) copy, distribute, transmit, display, reproduce, license, and create derivative works of the Feedback; and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to commercialize, develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

Confidentiality.

Existing NDA.

If the parties have executed a non-disclosure agreement, then the terms of that agreement will control the confidentiality obligations of the parties.

No Existing NDA.

Each party acknowledges that the existence of this Agreement and any BarInsights Order Form, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that the other party has received or will receive in connection with this Agreement and non-public information designated by the disclosing party as “confidential’ or “proprietary” prior to or at the time of disclosure or that a reasonable person would understand to be confidential or proprietary given the nature of the information and the circumstances of the disclosure, are considered private and confidential (the “Confidential Information”). Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of any person or entity under an obligation of non-disclosure with respect to such information; (ii) is in the receiving party’s possession prior to receipt from the disclosing party; or (iii) is acquired by the receiving party from a third party without breach of any confidentiality obligation.

Each party will use reasonable diligence and in no event less than reasonable care to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Receiving party will only disclose Confidential Information to the receiving party’s personnel who have a need to know such Confidential Information in order for such person to perform duties related to this Agreement and any BarInsights Order Form, and agree to keep such Confidential Information confidential. Each party may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder and is prohibited from disclosing or otherwise making the Confidential Information available to other persons in violation of this Agreement.

The obligations of non-disclosure and non-use will continue through the Term and for three (3) years thereafter.

The receiving party acknowledges and agrees that: (i) the Confidential Information of the disclosing party has commercial value and is not in the public domain, (ii) unauthorized use or disclosure of same is likely to cause injury not readily measurable in monetary damages and is therefore irreparable, and (iii) in the event of unauthorized disclosure or use, the disclosing party will be entitled, without prejudice to any other rights, recourses or remedies, be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction to enforce the obligations set forth in this Agreement, without obligation to post bond.

PCI Compliance; Privacy.

PCI Compliance.

Overproof does not store or process Cardholder Data directly via the Overproof Software. Customer acknowledges and agrees that the Customer understood that the Third Party Processor is solely responsible for the security of Cardholder Data which it processes, transmits or otherwise possesses. The Customer also acknowledges and agrees that it is the sole responsibility of the Third Party Processor to perform payment transactions and services in compliance with the requirements described in the PCI DSS. “PCI DSS” means the Payment Card Industry Data Security Standard, as amended from time to time. “Cardholder Data” has the meaning given to such a term in PCI DSS, to the extent that Third Party Processor transmits, stores or provides access to such data for Overproof customers.

Privacy.

This Agreement incorporates by reference the terms of Overproof’s Privacy Policy which can be found at https://overproof.com/legal/

NO WARRANTY

THE CUSTOMER ACKNOWLEDGES AND AGREES THAT CERTAIN THIRD-PARTY INTEGRATION SOFTWARE (THE “INTEGRATION SOFTWARE”) MAY BE NECESSARY TO EXERCISE ITS RIGHTS HEREUNDER AT AN ADDITIONAL COST. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER IS SOLELY RESPONSIBLE FOR THE SELECTION OF ANY SUCH INTEGRATION SOFTWARE. OVERPROOF IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF THE INTEGRATION SOFTWARE OR ANY OTHER THIRD-PARTY SOFTWARE, HARDWARE OR PRODUCTS (“THIRD-PARTY MATERIALS”). OVERPROOF MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT REGARDING ANY SUCH THIRD-PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OVERPROOF Software IS PROVIDED ON AN “AS-IS” BASIS AND OVERPROOF DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. OVERPROOF MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. OVERPROOF PROVIDES NO WARRANTY THAT THE OVERPROOF SOFTWARE PROVIDED BY OVERPROOF ARE ERROR-FREE OR THAT OPERATION OF SUCH OVERPROOF SOFTWARE WILL BE SECURE OR UNINTERRUPTED.

2.14 LIMITATION OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY THE OTHER PARTY, FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE OVERPROOF SOFTWARE REGARDLESS OF WHETHER THE PARTY HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT. EXCEPT FOR OVERPROOF’S OBLIGATIONS UNDER SECTION 12.2, IN NO EVENT WILL OVERPROOF BE LIABLE UNDER THIS AGREEMENT IN CONNECTION WITH THE OVERPROOF SOFTWARE, IN TORT OR OTHERWISE FOR AN AMOUNT EXCEEDING THE AGGREGATE FEES ACTUALLY RECEIVED BY OVERPROOF IN CONNECTION WITH THE OVERPROOF SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.

Indemnification.

The Customer will defend Overproof against any claim, demand, suit or proceeding made or brought against Overproof by a third party alleging: (i) a violation of its customer’s or third party’s rights arising from or related to the Customer Data, including the Customer’s provision of the Customer Data to Overproof or the authorized use by Overproof of the Customer Data in connection with providing the Overproof Software in accordance with this Agreement; (ii) that the combination of the Overproof Software with a third party’s intellectual property is an infringement of a third party’s intellectual property rights; and/or (iii) that the Customer’s use of the Overproof Software caused harm to a third party (each, an “Overproof Claim“) and will indemnify Overproof for any damages, attorney fees and costs finally awarded as a result of, and for any amounts paid by Overproof under a court-approved settlement of an Overproof Claim; provided that Overproof: (a) promptly gives the Customer written notice of such Overproof Claim; (b) gives the Customer sole control of the defense and settlement of the Overproof Claim (provided that Customer will not consent to entry of any judgment or admission of any liability of Overproof without the prior written approval of Overproof); and (c) provides to the Customer reasonable assistance, at Customer’s expense.

General.

Severability.

The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

Assignment.

The Customer may not assign any rights and duties under this Agreement to any third party at any time without Overproof’s written permission. A change of control (any change of ownership of the Customer of more than 50%) will be deemed an assignment. This Agreement will inure to the benefit of and will be binding on Overproof and Overproof’s respective successors and permitted assigns. Overproof will have the right to transfer and assign its rights and obligations hereunder to any third party, upon written notice to the Customer. Any assignment or attempted assignment other than in accordance with this Section will be null and void.

Relationship of the Parties.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever.

Notice.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Governing Law; Venue.

This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The parties expressly consent to the exclusive jurisdiction and venue of the state and federal courts located in Miami, Florida.

Costs of Litigation.

If a dispute should arise relating to this Order From or any right or license granted hereunder, and should that dispute result in litigation or arbitration, the prevailing party in any such proceeding is entitled to recover all reasonable costs incurred in the defense or prosecution of the claim, including court costs and reasonable attorney, paralegal, litigation vendor, and expert fees.

Malware.

Each party warrants that it has taken, and will take, commercially reasonable measures to prevent any unplanned interruption of the operations of, or accessibility to the Overproof Software through any device, method or means including, without limitation, the use of any “virus,” “lockup,” “time bomb,” “key lock,” “Trojan horse,” or other device or program, or disabling code, which has the potential or capability of causing any unplanned interruption of the operations of, or accessibility of the Overproof Software, or which could alter, destroy, or inhibit the use thereof, or the data contained therein, which could block access to, or prevent the use of the Overproof Software.

No Waiver.

Failure by Overproof to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

Entire Agreement.

This Agreement and any applicable BarInsights Order Form, are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written (including online) and oral agreements, communications and other understandings relating to the subject matter of this Agreement and any applicable BarInsights Order Form, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

Force Majeure.

Notwithstanding any other provision of this Agreement, no party to this Agreement will be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure of performance (except for the payment of money) due to any cause beyond the reasonable control of, and without the fault or negligence by, such party or its officers, directors, employees, agents or contractors.

Publication.

Overproof will have the right to use the Customer’s trade and/or legal name and logo(s) in its promotional materials stating that the Customer uses the Overproof Software.

The Customer may not issue any press release or other public communication referencing Overproof without first obtaining Overproof’s written consent.

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D. CUSTOM SOFTWARE SERVICES

ACCEPTANCE OF TERMS

If you have ordered customized services or other professional services from Overproof, the following professional services terms shall govern your purchase and Overproof’s provision of those services. These Professional Services Terms supplement, and in no way limit or change, the General Terms of Use that govern your use of Overproof’s website and software as a service, as defined in Sections A., B., and C. ( collectively “Overproof Terms”). Unless otherwise stated in these Professional Services Terms, the Overproof Terms shall also apply to Overproof’s provision of professional services, including confidentiality, notice, termination and other terms.

In these Professional Services Terms, we refer to ourselves as “Overproof,” “we,” “us,” “our,” etc. Also, throughout these Professional Services Terms, “you” (including “your” and “yours”) means the business entity or individual that executed the sales order form or statement of work (each a “Custom Service Order”) for professional services from Overproof. Capitalized terms that are not defined in these Professional Services Terms have the meanings given to them in the Overproof Terms.

OWNERSHIP (NON-SOFTWARE WORK PRODUCT)

1. Work product created by Overproof that is not software will become and remain the sole property of Overproof, including all associated copyright and other intellectual property rights. Upon payment of all required Fees, Overproof hereby grants you a worldwide, non-exclusive, fully-paid, non-transferable perpetual license to use the non-software work product for your internal business purposes.
2. In furtherance of the foregoing, Overproof will retain all rights in its proprietary methodologies for delivery of its professional services used by Overproof during the course of a relevant Order including, but not limited to, descriptions of the methodology, document templates and project tools (“Methodology”). You acknowledge that the Methodology is Confidential Information. Overproof grants you at no additional charge a worldwide, non-exclusive, fully-paid, non-transferable perpetual license to use the Methodology internally in connection with the Deliverables.

OWNERSHIP (SOFTWARE)

“Developed Software” means software created or owned by Overproof identified as a Deliverable in a Custom Service Order and delivered by Overproof in accordance with specifications developed during the professional services or set forth in the relevant Custom Service Order. Developed Software may consist of Custom Software and/or Overproof Software, as defined below.

1. “Custom Software” means that portion of the Developed Software first created by Overproof under the relevant Order.
2. “Overproof Software” means pre-existing software owned by Overproof incorporated into the Developed Software.

Overproof retains all rights to Developed Software. Upon payment of all required Fees, Overproof hereby grants you a non-exclusive, fully-paid, non-transferable, perpetual license to use the Developed Software in the United States of America for your internal business purposes.

“Third Party Software” means software owned by a third party and delivered by Overproof to you. Third-Party Software is either licensed directly by you from the third party or through Overproof as the sublicensor. Your rights in the Third Party Software are set forth in the license agreement between you and the third party or the sublicense from Overproof, as applicable.

LIMITED WARRANTY

Overproof warrants that the professional services provided hereunder will be of a professional quality conforming to generally accepted industry standards. In addition, Overproof represents and warrants that (a) none of the professional services or any part of this Agreement is or will be inconsistent with any obligation Overproof may have to others; (b) the professional services as they are delivered to you will not infringe, misappropriate or violate any copyright or trade secret of any person or entity; (c) Overproof has the full right to provide you with the assignments and rights provided for herein (including without limitation, through execution of appropriate written agreements with its employees, agents, and contractors).

IN ADDITION, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE PROFESSIONAL SERVICES (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL MONTHLY RECURRING REVENUE OVERPROOF RECEIVED FOR ITS PROFESSIONAL SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

THE FOREGOING WARRANTY IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY DISCLAIMED.

INFRINGEMENT INDEMNIFICATION

Overproof, at its expense, will defend you against any claim that the Developed Software provided hereunder infringes or violates any copyright or trade secret of a third party, and will pay all costs and damages finally awarded or agreed upon in settlement; provided that you give Overproof prompt written notice of such claim, sole authority to defend or settle the claim and reasonable assistance in defending the claim. Overproof will obtain for you the right to continue using the Developed Software, or replace or modify the Developed Software so that it becomes non-infringing. Overproof will not have any liability under this Section if the alleged infringement is based upon your modification of the Developed Software or your combination of the Developed Software with other technology not provided or approved by Overproof or any use of the Developed Software by you, which is in violation of the Overproof Terms. This Section states your sole and exclusive remedy with respect to third-party infringement claims.

INDEPENDENT CONTRACTOR

Overproof is an independent contractor. You will have no responsibility to provide fringe benefits or to withhold taxes normally withheld from an employee’s pay on behalf of Overproof’s employees. Overproof shall be permitted to use subcontractors to provide services under this Agreement, provided that Overproof shall be responsible for the performance of its subcontractors.

SOLICITATION OF EMPLOYEES

Unless otherwise approved in writing, for the term of any Order and twelve (12) months beyond, you will not offer employment to any employee or individual subcontractor of Overproof who performed professional services under this Agreement or any related Custom Service Order, or contract with, either individually or through a third party, any such employee or individual subcontractor of Overproof.

— END OF TERMS OF SERVICES —

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I.  Privacy Policy

Your use of Overproof’s website (the “Site”) is voluntary. By using the Site, you consent to this Privacy Policy.

What information do we collect?

You may electronically submit data or information to the Site that identifies or may be used in combination with other information to identify you (“Personal Data”). By using the Site, you are agreeing to disclose such Personal Data , and you are authorizing us to use and disclose your Personal Data pursuant to the provisions of this Privacy Policy.

We collect Personal Data from you:

1. When you register or request additional information on the Site;
2. When you download Overproof’s application or purchase our service;
3. When you transmit information through the Site, our application or service;
4. When you register for or attend corporate events.

When using our Site, downloading our application or purchasing our service, as appropriate, you may be asked to enter your name, e-mail address, mailing address, phone number or credit card information. You may, however, visit our Site anonymously.

While you use our Site, we may collect information based on your interaction with our Site or from the devices or computers you use to access the Site, including web log information, page views, IP addresses, geographic location (if detectable from a mobile device).

How do we use your information?

Any of the Personal Data we collect from you on the Site may be used in any of the following ways:

1. To provide you with additional information about our service and Overproof’s partners, promotions, and events;
2. To improve the Site, our application, and service;
3. To personalize your experience (your information helps us to better respond to your individual needs);
4. To send periodic e-mails; and
5. To improve customer service (your information helps us to more effectively respond to your customer service requests and support needs).

Other than as specified in this Privacy Policy, Overproof will not review, share, distribute, or reference any of your Personal Data except as may be required by law.

Note: If at any time you would like to unsubscribe from receiving future emails, we include detailed unsubscribe instructions at the bottom of each email. If you would like to have your contact profile deleted from our system, you can do so here.

How do we protect your information?

We implement a variety of industry-standard security measures to maintain the safety and security of your Personal Data. Your Personal Data will be accessible by those authorized with special access rights to our systems and are required to keep your Personal Data confidential.

Do we use cookies?

Overproof may use browser cookies on the Site to keep track of your visit. A “cookie” is a small amount of data that is sent from a web server to your browser and stored on your computer’s hard drive, which may include an anonymous unique identifier. Use of cookies may allow Overproof to provide a higher quality, more relevant, customer experience. We may also use cookies to track which areas of the Site are most popular with our users. With most internet browsers, however, you can erase cookies from your computer hard drive, block all cookies, or receive a warning before a cookie is stored on your computer. Please refer to your browser instructions or a help screen to learn more about these functions and how to use them. Please be advised that certain sections or functionalities of the Site may be inaccessible to you if your browser does not accept cookies. When visitors come to our Site, third parties (such as AdRoll) may place cookies on your browsers for targeted advertising purposes. You can learn more about our cookie policy here.

Do we disclose any information to outside parties?

We do not sell, trade, or otherwise transfer to outside parties your Personal Data. This does not include trusted third parties who assist us in operating our Site or service, conducting our business, or servicing you, so long as those parties agree to keep this information confidential. We may also release your information when we believe release is appropriate to comply with the law, enforce our Site policies, or protect our or others’ rights, property, or safety.  We may also share your Personal Data with another organization that buys our business assets.

Where is your information stored?

We store your Personal Data on our servers located in the US.

Transfer of information to other countries

We may transfer your Personal Data to the following countries:

1. United States of America

And only for the following reasons:

1. To provide the Overproof service to you, if you are a customer
2. To store your Personal Data
3. To communicate with you

You hereby consent to the trans-border transfer of your Personal Data as set out above.

Security of your Personal Data

We have implemented appropriate technical and organizational controls to protect your Personal Data against unauthorized processing and against accidental loss, damage or destruction. You are responsible for choosing a secure password when we ask you to set up a password to access parts of the Site or our service. You should keep this password confidential and you should choose a password that you do not use on any other website. You should not share your password with anyone else.

How long do we keep your Personal Data?

We keep your Personal Data for only as long as we need to. How long we need your Personal Data depends on what we are using it for, as set out in this privacy policy. For example, we may need to use it to answer your queries about a product or service and as a result, may keep Personal Data while you are still using our product or services.

California Online Privacy Protection Act Compliance

Because we value your privacy we have taken the necessary precautions to be in compliance with the California Online Privacy Protection Act. We therefore will not distribute your Personal Data to outside parties without your consent.

Information for European data subjects

Contact information submitted to the Site

When we receive information directly from visitors to the Site who are citizens or residents of countries in the European Economic Area (“EEA”), that information is likely to include “personal data,” as regulated by the European Union’s General Data Protection Regulation (“GDPR”). As the recipient of this information (generally, just contact information), we are a “data controller” under the GDPR.  As such, we will use that information only for the limited purpose of providing information about our products and services until the person who submitted the information no longer wishes that to occur, and anyone who submits personal data to the Site consents to our use of that data for those purposes.

Other data submitted to, and processed through, the Overproof service

If you are using the Overproof service as a customer, you have either enrolled in the Overproof service directly or received authorization to do so from your employer (or if you are not an employee, from a business to which you provide services in another capacity).  

If you have enrolled in the Overproof service directly, then we are a “data controller” under the GDPR with respect to any Personal Data you submit through the Overproof service.  

If you have received authorization to use the Overproof service from your employer, we have entered into a contract with the business you work for, and that contract will govern how we handle any information that you submit to our services on behalf of the business you work for.  Under the GDPR, we are the “data processor” of this information, and the business you work for is the data controller. We comply with our agreements with data controllers, which generally give the data controllers full decision-making power regarding the collection, storage, processing, modification, deletion, and transfer of any information submitted to our products.  

As mandated by the GDPR, you can contact us with regard to the following rights in relation to your Personal Data:

1. If you would like to have a copy of the Personal Data we hold on you or if you think that we hold incorrect Personal Data about you, please email [email protected]
2. Where you have provided us with consent to use your Personal Data, you can withdraw this at any time (unless you use the Overproof service, in which case we may continue to use your Personal Data, including to contact you in connection with the service for as long as you use it).
3. You also have the right to ask us to delete your Personal Data or restrict how it is used. There may be exceptions to the right to erasure for specific legal reasons which, if applicable, we will set out for you in response to your request. Where applicable, you have the right to object to the processing of your Personal Data for certain purposes.
4. If you want to make any of these requests, please contact [email protected]

Whenever we transfer your Personal Data out of the EEA, we put in place at least one of these safeguards:

1. We will only transfer your Personal Data to countries that have been found to provide an adequate level of protection for Personal Data.
2. If you use the Overproof service on behalf of your employer, we will comply with any contractual  requirements between us and your employer governing our use of any Personal Data you submit.
3. We may also use specific approved contracts with our service providers that are based in countries outside the EEA. These contracts give your Personal Data the same protection it has in the EEA .

Children’s Online Privacy Protection Act Compliance

We are in compliance with the requirements of the Children’s Online Privacy Protection Act, and we do not collect any information from anyone under 13 years of age. Our Site is directed to people who are at least 13 years old. By using the Site, you represent and warrant that you are at least 13 years old, or have the permission of your parent or guardian, and otherwise have the right, authority, and capacity to agree to and accept this Privacy Policy.

Your consent; Opting Out

By using the Site or our service, you consent to this Privacy Policy.  You may opt out of receiving future communications from us  (with the exception of service information when you continue to use the Overproof service) by logging into your account and editing your profile.   You may also opt out of receiving commercial e-mail from us, or other target advertising, by following the instructions in each e-mail.

Changes to our Privacy Policy; Questions or Concerns

Overproof reserves the right to change this Privacy Policy, and does so from time to time. Overproof will provide notification of the material changes to this Privacy Policy through the Site.  If you have questions or concerns about this Privacy Policy, or our collection and use of your Personal Data, you may contact us by email at [email protected]; or by postal mail at 425 NW 26th Street, Miami, FL33127, United States.

This Privacy Policy was last modified on Aug 22, 2021

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II.  Cookie Policy

What are cookies?

Cookies are pieces of data, normally stored in small text files that are placed on your computer by the websites that you visit. They are widely used in order to make websites work, or work more efficiently, as well as to provide range of information to the owners of the site. The use of cookies is now standard for most websites and you can find more about cookies here (external link).

Cookies do not typically contain any information that personally identifies a user, but personal information that websites store about you may be linked to the information stored in and obtained from cookies. If you are uncomfortable with our use of cookies, you can manage and control them through your browser, including removing cookies by deleting them from your ‘browser history’ (cache) when you leave the site. You can find more information on managing cookies here.

Types of cookies

Cookies can roughly be divided according to their functionality. Most commonly used are the following types of cookies:

Necessary cookies

They are essential in order to enable you to move around the website and use its features, such as accessing secure areas of the website. Without these cookies services you have asked for, like shopping baskets or e-billing, cannot be provided. We use, e.g., cfduid cookie to identify trusted web traffic and m-b cookie to ensure visitor browsing security by preventing cross-site request forgery.

Functionality cookies

This type of cookies allow the website to remember any choices you make about the website (such as changes to text size, customized pages) or enable services such as commenting on a blog. We use these cookies e.g. to identify visitor across devices and visits to optimize chat-box function on the web-site or to remember user’s language version of website.

Performance cookies

Performance cookies collect information about how visitors use a website, for instance which pages visitors go to most often, and if they get error messages from web pages. These cookies don’t collect information that identifies a visitor. All information these cookies collect is aggregated and therefore anonymous. It is only used to improve how a website works. We use them e.g. to control loading of Google Analytics script tag, generate statistical data how visitor uses website and to optimize website’s relevance towards visitor.

Marketing cookies

They are set by digital advertising businesses for the prime or sole purpose of managing the performance of adverts, displaying adverts, and/or building user profiles to determine the display of adverts elsewhere. They remember that you have visited a website and this information is shared with other organisations such as advertisers. On our website we use both marketing cookies placed by Overproof, Inc. and those placed by third parties (e.g. Google, d.adroll.com, LinkedIn, Facebook)

Some cookies remain in your browser during your browser session only, i.e. until you leave the website after what they are destroyed. These are called “session cookies”. Other cookies can remain in your browser for various times, depending on their set expiry date (hours, days, years). These are “persistent cookies”. Persistent cookies are used to remember e.g. log in details. Also, they are used to track visitor behavior as you move around a site, and this data is used to try and understand what people do and don’t like about a site so it can be improved. You can delete them any time before expiry date.

Please notice that by using this website, you agree that we can place these cookies on your computer/device for the stated purposes.

Managing cookies

Most browsers allow you to refuse to accept cookies and to delete cookies. The methods for doing so vary from browser to browser, and from version to version. You can however obtain up-to-date information about blocking and deleting cookies via these links:

• Google Chrome
• Internet Explorer
• Microsoft Edge
• Mozilla Firefox
• Opera
• Safari

Please beware that blocking all cookies will have a negative impact on the usability of many websites. Consequently, if you block all cookies, maybe you will not be able to use all the features on our website.

Contact details

We may update this Cookie Policy from time to time in order to reflect, for example, changes to the cookies we use or for other operational, legal or regulatory reasons. We advise you to therefore re-visit this Cookie Policy regularly to stay informed about our use of cookies and related technologies. For more information you can reach us at:

Lymion Group, Inc. (Overproof)

425 NW 26th Street

Miami, FL 33127

United States

or via e-mail at:

[email protected]

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III.  Code of Conduct

GENERAL ACKNOWLEDGMENTS

1.1           Purpose

The purpose of this Code of Conduct is to define standards and guidelines governing work undertaken by Lymion Group Inc. employees and its third-party providers.

1.2           Scope

1. This policy applies to Lymion Group Inc., dba Overproof, and all products, platforms, and brands that fall under Lymion Group Inc., including but not limited to the Overproof platform and app, the Sixdots platform and app, Tastings, CompanyToast and Overproof TEAM (“Overproof”).
2. This policy applies to all full-time, part-time and temporary employees (“employee(s)”) of Overproof and any contractors, consultants, third-party providers, representatives, brand ambassadors and/or vendors that Overproof has contracted for a limited time, for a specific project or a Scope of Work, or for a specific service, (“contractor(s)”).
3. By means of an employee’s employment agreement or a contractor’s service, project, Scope of Work or any other form of agreement with Overproof, the employee or contractor is bound to and consents with this Code of Conduct.

1.3           Guiding Principles

1. This Code of Conduct describes specific situations, behaviors and requirements for employees and contractors. However, it is impossible to describe and cover each and every potential situation, behavior or requirement in this Code of Conduct. Overproof will always assume common sense, good judgment and a professional, courteous disposition from any employee or contractor in any situation, even if not (entirely) covered in this Code of Conduct.

1.4           Employee Handbook and Company Policies

1. This Code of Conduct exists in addition to the Overproof Employee Handbook and company policies, including the Corporate Credit Card Policy and Travel & Expense Policy. If a conflict exists between this Code of Conduct and the Overproof Employee Handbook and policies, the Overproof Employee Handbook and policies will supersede this Code of Conduct.

1.5           Changes to the Code of Conduct

1. Overproof has the right to update or change this Code of Conduct at any time and for any reason, with or without prior notifications to employees or contractors.

2. GENERAL POLICIES

2.1           Social and Digital Media

1. Overproof respects the right of any employee or contractor to maintain social media accounts, blogs or web pages or to participate in social networking through LinkedIn, Facebook, Instagram, Twitter or similar providers.
2. Overproof will respect the protection of an employee and contractor’s privacy in regards to Social and Digital Media usage by careful processing of information on the use of Social and Digital Media in accordance to applicable laws governing the protection of personal and private information.
3. All rules regarding confidential and proprietary business information as stated in this Code of Conduct and in the Employee Handbook apply in full to blogs, web pages and social networking platforms, such as Twitter, Facebook, LinkedIn or similar providers.
4. Any information that cannot be disclosed through a conversation, a note or an e-mail also cannot be disclosed in a blog, on a web page or through social networking sites and applications.
5. The Overproof Employee Handbook contains additional guidelines regarding Social and Digital Media, and can be requested from the Human Resources Department.

2.1.1        General Guidelines

1. Regardless of platform, all content, posts, stories or other publications on Social and Digital Media must comply with the following:
2. always advocate responsible drinking, whether related to Overproof or Overproof TEAM, or any client brand or product.
3. never advocating excessive drinking at any Overproof or Overproof TEAM event.
4. where appropriate and possible, include language prohibiting underage drinking.

2.1.2        Social and Digital Media Usage during Work Hours

1. Internet access is generally and readily available to employees and contractors during work hours, whether provided by Overproof, a third-party, or through the employee or contractor’s owned internet or mobile subscription. When on Overproof premises, or on location for Overproof or Overproof TEAM business, internet connection is primarily intended for business use in connection with the performance of the duties of the employee or contractor.
2. Limited personal use of Social and Digital media is allowed during work hours, but this should never interfere with an employee or contractor’s job performance or the execution of a (temporary) assignment.
3. Employees or contractors are not allowed to use Social and Digital Media for:
4. negative content, comments or posts about Overproof which may damage Overproof or any Overproof clients.
5. publication of confidential and proprietary information involving Overproof. No distinction is made between information on products and on individuals of Overproof.
6. releasing confidential and/or damaging information on clients, partners, distributors or suppliers of Overproof.
7. publishing about or entering into a discussion with a client or competitor without prior approval by Overproof.
8. visiting websites or other Social and Digital Media, containing pornographic, racist, discriminating, insulting or otherwise offensive material or to play (gambling) games.
9. damaging Overproof or third parties in any other way.

2.1.3        Social and Digital Media Usage outside Work Hours

1. If an employee or a contractor uses Social and Digital Media in private outside working hours, the use of Social and Digital Media may not be harmful to Overproof in any way. The employee is not permitted to use Social and Digital Media in private for:
2. negative statements about Overproof which may be harmful to Overproof, including negative statements on other employees of Overproof.
3. publication of confidential or proprietary information regarding Overproof. No distinction is made between information on products and on individuals of Overproof.
4. releasing confidential and/or harmful information on clients, partners or suppliers of Overproof.
5. publishing about or entering into a discussion with a client or competitor without prior approval by Overproof.
6. damaging Overproof or third parties in any other way.

2.1.4        Social and Digital Content

1. When an employee publishes an article or content on a website or other Social and Digital Media channels, other than Overproof owned websites or channels, about a subject that may concern Overproof, it should be clear that this is done in a personal capacity.
2. When in the aforementioned case the employee has an online discussion and this discussion threatens to derail, or in the worst case has already done so, he/she should contact the VP Marketing and/or COO for consultation on the strategy to be followed.
3. The employee is personally responsible for the content which he/she publishes on Social and Digital Media, in as far as it does not belong to his/her daily job. The employee should be aware of the fact that whatever he/she publishes will be public for a considerable period and may have consequences for his/her privacy.
4. If the employee holds a management or other senior position he/she has an exceptional responsibility when using Social and Digital Media. In this capacity the employee will first and foremost be considered to be part of Overproof, also when he/she publishes a private opinion. The employee is therefore obligated to consider his/her position carefully when deciding whether he/she can publish in a private capacity.
5. When in the slightest doubt about a publication or other possible interfaces with Overproof, the employee should contact the VP Marketing and/or COO immediately.

2.2           Attire

1. All employees and contractors must represent themselves in a professional, clean matter that is in line with Overproof standards, and when applicable, with client brand standards for appearance and behavior.
2. When representing Overproof and/or a client brand on location, baseline standards include:
3. no tank-tops or sleeveless shirts for men
4. no ripped garments
5. clean, close-toed shoes
6. clean pants or shorts
7. for women, clean and professional attire including sleeveless shirts are appropriate
8. If the client provides branded materials, please wear or use these as per client brand guidelines, unless these guidelines violate this Code of Conduct.
9. The Overproof Employee Handbook contains additional guidelines regarding Attire and can be requested from the Human Resources Department.

2.3           Confidentiality

During the course of work, an employee or contractor may become aware of confidential information about Overproof’s business, including but not limited to information regarding pricing, products, and new product development, software and computer programs, marketing strategies, suppliers and customers, and potential customers. An employee or contractor also may become aware of similar confidential information belonging to Overproof’s clients. It is extremely important that all such information remains confidential, and particularly not be disclosed to any Overproof competitors. Any employee or contractor who improperly copies, removes (whether physically or electronically), uses or discloses confidential information to anyone outside of Overproof may be subject to disciplinary action up to and including termination of employment or contract. Provisions of the Employment Agreement or a contractor’s Scope of Work, assignment or contract related to Confidential and Proprietary Information, Non-Solicitation, Non-Compete and Non-Disclosure supersede this Section.

2.4           Expense reporting

1. Any employee or contractor will need to adhere to the Overproof Travel & Expense Policy, which is available upon request from the Human Resources Department.
2. As noted in the Travel & Expense Policy, the following applies to contractors that have entered into a temporary work arrangement, project, assignment or Scope of Work with Overproof TEAM:
3. If applicable, an Overproof TEAM program or activation will have a set budget that is brand, program/activation and contractor specific.
4. Any expenses incurred for the program or activation will be allocated to this budget. The total of expenses can not exceed the budget unless approved by Overproof TEAM before the expense is incurred.
5. Expense reimbursement will only be granted if every expense item is in line with the Overproof Travel & Expense policy, and is accompanied by a receipt that includes the expense type, amount, date and payment method.

PROGRAM-SPECIFIC POLICIES

3.1           On-Premise Activations, including Tastings or Samplings

3.1.1        Definition

1. On-premise activations constitute any event where alcoholic beverage may be consumed in a licensed and appropriate venue, that is organized, led, or executed by Overproof employees, including those employees assigned to Overproof TEAM, and/or Overproof contractors with the specific assignment to the event or events (“on-premise activation(s)”).
2. On-premise activations include, but are not limited to product tastings and samplings, and bartender trainings, seminars and events.

3.1.2        Age Verification and Restrictions

1. Any employee or contractor involved in an on-premise activation must be certified for serving and checking identification that is compliant with any local, state and/or federal ATF Laws.
2. Overproof employees and contractors, client brand employees and representatives, and venue employees involved in Overproof and Overproof TEAM on-premise activations, must be 21+ years of age.
3. All attendees of an on-premise activation must be of Legal Drinking Age (“LDA”) in the respective market, which will be verified by a member of the venue or establishment.
4. Any promotional material for on-premise activations will include age-specific language (example: “21+ to attend, please enjoy responsibly”) in a visible matter. Promotional materials include Social and Digital media, links to QR codes and/or menus, printed/physical materials and any other marketing materials
5. On-premise activations will only be promoted to age-appropriate clientele (21+ in the USA) and promoted only on appropriate channels.

3.1.3        On-premise Product Promotion and Usage

1. Under no circumstances will any employee or contractor hired by Overproof Team pressure anyone into drinking any alcohol.
2. Under no circumstances is any additional purchase required for sampling or tasting of a product outside of any admission fees for events.
3. No requirements shall be made by Overproof or the host venue forcing or coercing aggressively a purchase of the brands or products included in the on-premise activation.
4. Sample sizes of the product will be no larger than .25oz regardless if they are a “straight spirit”, “neat” or “mixed” sample.
5. No on-premise activation will promote excessive drinking or offer oversized sampling (over .25oz)
6. No Overproof promotional material, whether digital or physical, for any on-premise activation will promote alcoholic strength or potency as the dominant theme of these materials.
7. No on-premise activation shall promote any games or promotional materials that contribute or lead to excessive drinking
8. Employees or contractors involved with executing on-premise activations will make every effort to avoid overserving guests of the event, or serving any guest/attendee of the event that is visibly intoxicated.
9. Overproof employees and any Overproof TEAM contractor will not be allowed to consume any alcohol during on-premise activations. This includes the time needed for setup immediately before the event.
10. Overproof marketing and promotional materials will follow any additional guidelines provided by participating client brands unless these guidelines violate this Code of Conduct or other Overproof policies.
11. Overproof will not be held liable for any marketing materials provided by the client or venue.

3.2           Off-Premise Activations

3.2.1        Definition

1. Off-premise activations constitute any event where alcoholic beverage may be sampled or tasted in a licensed and appropriate venue, that is organized, led, or executed by Overproof employees, including those employees assigned to Overproof TEAM, and/or Overproof contractors with the specific assignment to the event or events (“off-premise activation(s)”).
2. Off-premise activations include, but are not limited to, retail venue tastings and samplings, and retail staff training, seminars, and events.

3.2.2        Age Verification and Restrictions

1. Any employee or contractor involved in an off-premise activation must be certified for serving and checking identification that is compliant with any local, state and/or federal ATF Laws.
2. All attendees of an off-premise activation must be of Legal Drinking Age (“LDA”) in the respective market, which will be verified by a member of the venue or establishment.
3. Any promotional material for on-premise activations will include age-specific language (example: “21+ to attend, please enjoy responsibly”) in a visible matter. Promotional materials include Social and Digital media, links to QR codes and/or menus, printed/physical materials and any other marketing materials
4. On-premise activations will only be promoted to age appropriate clientele (21+ in the USA) and promoted only on appropriate channels.

3.2.3        Off-premise Product Promotion and Usage

1. Sample sizes of product will be no larger than .25oz regardless if they are a “straight spirit”, “neat” or “mixed” sample.
2. Employees and contractors will only serve samples according to the guidelines of the retail venue and/or any state or local laws.
3. Under no circumstances is any additional purchase required for a sampling or tasting of a product.
4. Overproof employees or contractors, or brand client agents, will adhere to the exact pricing of the brands they are sampling based on pricing by the retailer. No “deals” or outside arrangements with customers/consumers will be made at any time.
5. No Overproof employee or contractor, or brand client agent will in any way coerce, cajole or impose samples on anyone who declines.
6. No Overproof employee or contractor, or brand client agent will ever serve anyone who appears to have overconsumed or is visibly intoxicated.
7. Overproof employees and contractors will not be allowed to consume any alcohol during off-premise activations. This include the time needed for setup immediately before the event.
8. Overproof marketing materials will in no way, shape or form promote the alcoholic strength or effects thereof on any sort of performance, social ability or anything else.
9. Overproof marketing and promotional materials will follow any additional guidelines provided by participating client brands, unless these guidelines violate this Code of Conduct or other Overproof policies.
10. Overproof will not be held liable for any marketing materials provided by the client or venue.

3.3           Overproof technology usage

1. Overproof has made its products and platforms available for use by employees and contractors during on-premise and off-premise activations, with the goal of enhancing service to clients and customers. These products and platforms include the Overproof app and platform, Sixdots app and platform and Tastings app (“platforms”).
2. Employees and contractors will always ensure proper usage of the platforms in line with this Code of Conduct and the client or customer’s needs.
3. If there are discrepancies between the current use and abilities of the platforms, and specific needs for activations, clients or customers, the employee or contractor will bring this to the attention of Overproof’s Chief Product Officer first, before making undue or unsustainable promises or guarantees to the client or customer.

3.4           Travel to and from Activations

1. Overproof’s Travel & Expense Policy, which is available upon request from the Human Resources Department, governs employee and contractor travel requirements and needs. In line with the Travel & Expense Policy, the following is of particular importance for employee and contractor travel requirements and needs regarding on-premise and off-premise activations:
2. Employees and contractors are free to choose their means of transportation to and from activations, if this is in line with the Travel & Expense Policy. Employees and contractors are expected to take the nature of the activation into account when choosing a means of transportation, including the likelihood of alcohol being consumer during or after the activation.
3. An employee or contractor must have a valid driver’s license in his or her possession while operating a rental or private car. It is the responsibility of every employee or contractor to drive safely and obey all traffic, vehicle safety, and parking laws or regulations.
4. If you are involved in an accident with your privately owned vehicle, the cost involved for the repair or any claims are the responsibility of the employee or contractor.
5. Employees and contractors are prohibited from driving if under the influence of alcohol or drugs which impair judgment, slow reflexes, distort decision-making and/or hinder coordination. Because both prescription and over-the-counter medications have side effects that can affect a driver’s ability to drive safely, whenever taking medication a pharmacist or physician should be consulted about being able to drive safely.
6. In the exceptional case that an employee or contractor for any reason is not able to drive after an activation, it may be requested from, or determined by, an Overproof Manager or Director, to have the employee or contractor drive home by taxi or ride-sharing service. In that case, the cost of the ride is reimbursable, or in the case of Overproof TEAM will be assigned to the budget set for the activation. It is the employee or contractor’s responsibility to retrieve his/her private car when safe and appropriate. Any parking cost incurred will not be reimbursable if the reason for the inability of driving was caused by alcohol or drugs usage.
7. Overproof will not reimburse parking tickets, or any fees, tickets or fines that result from traffic violations or otherwise, including speeding tickets and traffic light violations.

FAILURE TO ADHERE TO THE CODE OF CONDUCT

If an employee or contractor fails to adhere to and/or violates this Code of Conduct or general norms and values, he or she may be subject to disciplinary action, up to and including termination of employment or contract, depending on the nature, severity and frequency of the violation.

FINAL PROVISION

In all cases not covered by this Code of Conduct, the Executive Board of Overproof will decide.

CONTACT

For any questions about this Code of Conduct, please contact the Human Resources Department at: [email protected]