LYMION GROUP, INC.
Effective: January 23rd, 2023
The parties to this Agreement shall be defined as follows:
a) COMPANY: The Company, as the creator, operator, and publisher of the Site, makes the Site and certain products/Services on it available to users. Lymion Group Inc., Company, Overproof, us, we, our, ours, and other first-person pronouns will refer to the Company, as well as all employees and affiliates of the Company.
b) USERS: You, as the user (the “User”) of the Service through the Site, app, or the portal, will be referred to throughout this Agreement with second-person pronouns such as you, your, yours, or as User, but depending on the context, a User could be another User. “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 application and managers of the portal, depending on the context.
c) APP: The application (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.
d) PORTAL: The portal (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 Company, to operate the Service, to manage and analyze information submitted by one or more Apps and to communicate with those Apps.
e) PARTIES: Collectively, the parties (the “Parties”) to this Agreement will refer to the Company and User.
f) CONTENT: The content (the “Content”) means all of the text, pictures, files, links, geolocation data, reports, and other information or material posted, transmitted, or stored through the Service.
g) SITE: The Site means the Sites overproof.com, sixdotsapp.com, overproofteam.com, storetastings.com, or any other web domain 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.
h) READER: A reader (“Reader”) is any User who reads Content through the Service.
i) SENDER: A sender (“Sender”) is a User who develops, posts, or transmits any Content through the Service.
j) SERVICE(S): The Service(s) means the full suite of technologies and services that Company offers through the App, the Portal, and the Site.
2. ASSENT & ACCEPTANCE
3. ACCESS TO THIS SITE
4. LICENSE TO USE SITE
The Company may provide you with certain information as a result of your use of the Site and the Services. Such information may include, but is not limited to, documentation, data, software, technology, or information developed by the Company, and other materials which may assist in your use of the Site (“Company Materials”). Subject to this Agreement, the Company grants you a non-exclusive, limited, non-transferable and revocable license to use the Company Materials solely in connection with your use of the Site and the Services. The Company Materials may not be used for any other purpose, and this license terminates upon your cessation of use of the Site and Services or at the termination of this Agreement.
5. INTELLECTUAL PROPERTY
You agree that the Site and all Services provided by the Company are the exclusive property of the Company, including all copyrights, trademarks, trade secrets, patents, software, know-how, systems, processes, anonymized data, analytics, and insights derived from any Content or from the usage of our Apps, Portal or Site, and any other Company intellectual property (“Company IP”). You agree that the Company owns all right, title, and interest in and to the Company IP and that you will not use the Company IP for any unlawful or infringing purpose. You agree not to reproduce or distribute the Company IP in any way, including but not limited to electronically or via registration of any new trademarks, copyrights, trade names, service marks, or Uniform Resource Locators (URLs), without express written permission from the Company. You may not use, replicate, modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, or sell in any form or by any means, in whole or in part, any Company IP without our prior written consent, which may be withheld in our sole discretion. You must never download or republish any Company IP on any internet website, and you must not incorporate any related information into any other database or compilation. Any other use of the Company IP is strictly prohibited.
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 Company IP 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 Company’s express written consent.
Company does not own any Content. Company 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), Company 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. Company reserves the right to withhold, remove and/or discard Content without notice for any breach, including, without limitation, your non-payment.
Company will take legal action in connection with any violation of this Agreement. Any use of the Site, the Service, Company IP, or any Content, other than as may be specifically authorized herein, without our prior written consent (which may be withheld in our sole discretion), is strictly prohibited. Such unauthorized use might also violate applicable laws, including copyright or trademark laws and communications statutes and regulations. This Agreement does not purport to transfer any license to any intellectual property right, whether by grant, estoppel, implication, or otherwise. At any time and from time to time, and without your consent, we may unilaterally revoke any license that we grant, in our sole discretion and without any notice or cause.
You shall indemnify and hold harmless Company, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and representatives of such parties, from all damages, liabilities, claims, causes of action, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with: (a) any use of the User IP pursuant to this Agreement; and (b) any infringement or violation by you of any patent or registered design, copyright, trademark, trade name, license or other proprietary right of any third party in connection with the Agreement. You understand and agree that you will have no recourse against Company for any alleged or actual infringement or misappropriation of any proprietary right in any Content or User IP you submit to us.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the material that you claim is infringing is located on the Site.
- Your address, telephone number, and email address.
- 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.
- 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
6. PAYMENT AND PAYMENT TERMS
Charges applicable to the Service are set forth in the registration process via the Site and in any registration processes for premium services and supplemental services. Current charges, including billing methods, rates, and surcharges for using the Service, may be obtained by completing a registration process for the Service. Company 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. Company 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 Company’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 sales, use, and other applicable taxes which accrue as a result of your use of the Service by you or from 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. 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.
7. USER OBLIGATIONS
YOU AGREE THAT BY REGISTERING AND USING THE SITE AND/OR SERVICE YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT. AMONG OTHER THINGS, THIS MEANS (A) IF YOU ARE REGISTERING FOR AN INDIVIDUAL ACCOUNT, YOU MUST BE AN INDIVIDUAL OF AT LEAST TWENTY-ONE (21) YEARS OF AGE ENROLLING UNDER YOUR OWN NAME; AND (B) IF YOU ARE A DESIGNATED USER REGISTERING FOR A BUSINESS ACCOUNT, YOU MUST BE A BONA FIDE EMPLOYEE OR AGENT 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.
8. ACCEPTABLE USE
You agree not to use the Site or Services for any unlawful purpose, or any purpose prohibited under this clause. You agree not to use the Site or Services in any way that could damage the Site, Services, or general business of the Company.
9. PRIVACY INFORMATION
10. ASSUMPTION OF RISK
You acknowledge and agree that any information posted on our Site is not intended to be legal advice and no fiduciary relationship has been created between you and the Company. The Company does not assume responsibility or liability for any advice or other information given on the Site.
11. DATA LOSS
The Company does not accept responsibility for the security of your account. You agree that your use of the Site is at your own risk.
You agree to defend and indemnify the Company and any of its subsidiaries, affiliates, directors, officers, agents, or other partners and employees (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to (a) your use or misuse of the Site; (b) your breach of the obligations, representations, or warranties herein, including but not limited to a breach of applicable alcohol beverage control laws, regulations, advisories or opinions; (c) your conduct or actions; (d) Content that you submit, post to or transmit through the Service; (e) your use of the Service; or (f) your violation of any rights of another. In the event that you have a dispute with one or more other Users, you release Company (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 any way connected with such disputes. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense if the Company wishes.
13. SPAM POLICY
You are strictly prohibited from using the Site for illegal spam activities, including gathering email addresses and personal information from others, or sending any mass commercial emails.
14. THIRD-PARTY LINKS & CONTENT
The Company may occasionally post links to third-party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of your use of any third-party services that may be linked from our Site now or in the future. The Company provides third-party links as a convenience only and does not sponsor or endorse any of these websites or their content. Company is not responsible for the content of and does not make any representations or warranties regarding the content or materials on, such linked third-party websites. If you decide to access or rely on information at a linked third-party website, you do so at your own risk. Company has no control over these linked websites, all of which have separate privacy and data collection practices, independent of Company. Nonetheless, the Company seeks to protect the integrity of its Site, and therefore requests any feedback on websites to which it links, including if a specific link does not work.
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 Company 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.
15. CONDITIONS OF USE AND ACCEPTABLE USAGE POLICY RELATING TO PUBLIC FORUMS
The Site may contain interactive services, including but not limited to discussion groups, news groups, bulletin boards, chat rooms, blogs, and other social networking features, such as the display of linked content from interfacing sites (collectively, “Public Forums”), which may allow you to post, transmit or submit information, including but not limited to writings, images, illustrations, audio recordings, and video recordings (“Postings”). We may or may not actively monitor Postings on Public Forums. Similarly, we may or may not exercise editorial control over Postings on any Public Forum. You may be exposed to content on Public Forums that is inaccurate, fraudulent, or deceptive, or that you find offensive or objectionable. Your use of Public Forums is at your own risk.
We reserve the right, but not the obligation, to monitor Public Forums and to remove or alter any Postings that we consider, in our sole discretion, to constitute misuse of these rules. We may restrict, suspend or terminate your use of these services or the Site where, in our sole discretion, we believe that there may have been such a misuse.
Any Postings you make will be deemed not to be confidential or secret. You understand that personal and other information (e.g., username, email address, phone number) that you post on or through Public Forums is generally accessible to, and may be collected and used by, others and may result in unsolicited messages or other contact from others. You should not include any personally identifiable information about yourself or any other person in any Postings. We reserve the right, but not the obligation, to remove any Postings that contain personally identifiable information. We shall not be liable for the use or misuse of any information or data, including personal information, that you post on our Public Forums.
You represent and warrant that your Postings are original to you, do not infringe on another party’s intellectual property rights, are not obscene, vulgar, offensive, malicious, discriminatory, defamatory, or otherwise unlawful, that no other party has any rights thereto, and that any “moral rights” in your Postings have been waived, and you grant us a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive, and fully transferable, assignable, and sub-licensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Postings (in whole or part) and/or to incorporate them in other works in any form, media, or technology now known or later developed for any editorial, commercial, non-commercial, promotional, or other purpose.
We are not responsible for maintaining your Postings and we may delete or destroy them at any time.
Content, information, and materials posted by users to Public Forums are not endorsed by us. It is your responsibility to evaluate and confirm the accuracy of information provided by other users on or through Public Forums. The opinions expressed in Public Forums are not necessarily ours. Any statements, advice, and opinions made by participants are those of such participants only. We shall not be held responsible for any statements, advice, opinions, or other content or materials on Public Forums. You release us from all claims and demands of every kind and nature, known and unknown, howsoever arising out of or in any way connected with a dispute with another user of the Site.
16. YOUR RESPONSIBILITY FOR YOUR ACTIVITIES AND YOUR CONTENT
You acknowledge and agree that Company 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:
- Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on the Site or Service;
- 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
- 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 Site, Portal, or the App.
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 Company, are entirely responsible for all Content that you upload, post, email, or otherwise transmit via this Service. Company 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 Company 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. Company 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, Company 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. Company 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 Company and the Service to store, transmit, process and modify that information unless and until you take action to delete or modify that information.
COMPANY ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH CONTENT, INCLUDING WITHOUT LIMITATION, THE QUALITY OR ACCURACY OF ANY CONTENT AVAILABLE THROUGH THE SERVICE.
17. EXPORT CONTROLS
18. MODIFICATION & VARIATION
The Company may, from time to time and at any time without notice to you, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Site and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement. You agree that your continued use of the Site after any modifications to this Agreement is a manifestation of your continued assent to this Agreement. In the event that you fail to monitor any modifications to or variations of this Agreement, you agree that such failure shall be considered an affirmative waiver of your right to review the modified Agreement.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to any and all use of this Site and the Service. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the use of this Site and the Services.
20. SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Site to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access to the Site may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
21. TERMINATION & SUSPENSION
The Company may terminate this Agreement with you at any time for any reason, with or without cause. The Company specifically reserves the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material. You agree that any such termination can be affected without any prior or written notice to you and that Company will not be held liable to you or any third party for any termination of access to the Service. If you have registered for an account with us, you may also terminate this Agreement at any time by contacting us and requesting termination. Upon termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
To terminate the Service:
Log into your account 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.
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND ITS RELATED PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, NONINFRINGEMENT, COMPLIANCE WITH APPLICABLE LAWS, AND USEFULNESS, WITH RESPECT TO ANY SERVICE, THE SITE, ANY SITE CONTENT, OR ANY INFORMATION CONTAINED ON THE SITE (COLLECTIVELY, “WORKS”). THE WORKS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU RELY ON THE WORKS SOLELY AT YOUR OWN RISK. WE DO NOT REPRESENT OR WARRANT THAT ANY WORKS WILL BE UNINTERRUPTED OR ERROR-FREE. THERE COULD BE DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE WORKS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR DOWNLOADING OR USE OF THE WORKS. ALTHOUGH WE MAY TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO OR THROUGH THE WORKS, WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE WORKS OR MATERIALS THAT MAY BE DOWNLOADED FROM THE WORKS ARE FREE OF SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO ANY OF THE FOREGOING.
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.
23. LIMITATION ON LIABILITY
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT COMPANY AND ITS RELATED PARTIES ARE NOT LIABLE FOR ANY INJURY, LIABILITY, CLAIM, LOSS, DAMAGE, EXPENSE, COST (INCLUDING ATTORNEYS FEES INCURRED AT TRIAL, ON APPEAL, OR OTHERWISE), DEBT, FINE, CHARGE, OR LIEN, WHETHER DIRECT OR INDIRECT, INCLUDING CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, LOST PROFITS, OR OTHERWISE, THAT ARISES OUT OF OR RELATES TO (A) THIS AGREEMENT; (B) YOUR USE OR INABILITY TO ACCESS THE SITE; (C) INABILITY TO USE THE SERVICE; (D) ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA; (E) 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; OR (F) ANY OTHER MATTER RELATING TO THE SITE OR SERVICE.
YOU DO HEREBY WAIVE ANY AND ALL CLAIMS WITH RESPECT TO THE FOREGOING, WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY FOR ANY AND ALL CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER CLAIMS ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT; (B) YOUR USE OF THE SITE; OR (C) INABILITY TO USE THE SERVICE. ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA IS LIMITED TO THE SUM OF $10. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES; AND, IF ANY OF THOSE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU.
24. ALCOHOL BEVERAGE COMPLIANCE
Company understands and appreciates that various laws and regulations, including but not limited to alcohol beverage control laws, govern retailers, wholesalers and suppliers of alcohol beverages. Company will do its part to assist Users with compliance, though compliance with applicable laws does ultimately rest with the Users. Users may not use Company’s Services in violation with of 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 those administered by the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) or any state alcohol beverage control board. The Service may not be used to in any way to request or influence a retailer of alcohol beverages to purchase, sell, or serve any particular alcoholic beverages.
Company represents and warrants that it holds no retail license for the sale of alcohol beverage products, no officer, director, manager, owner, or employee of any retail licensee has any ownership interest in Company, Company, nor any officer, director, manager, owner, or employee of Company, owns or has any direct or indirect interest in any alcohol beverage retailer, except for ordinary investments in publicly-traded companies.
All Users of the Services, including but not limited to alcohol beverage retailers, wholesalers and suppliers, each represents and warrants that any fees paid or received, including for use of and through the Company’s Services, is not conditioned in any way upon any alcohol beverage retailer’s purchase or agreement to purchase any alcohol beverage products produced, sold or offered for sale by any alcohol beverage supplier or wholesaler and any funds received/paid or services provided/received is not and will not be used to induce any alcohol beverage retailer to purchase any alcohol beverage supplier or wholesaler’s products to the exclusion of any competitive products.
25. GENERAL PROVISIONS
a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
b) JURISDICTION, VENUE & CHOICE OF LAW: Through your use of the Site and the Service, you agree that the laws of the State of Florida shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts in Miami-Dade County, Florida. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
c) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of the State of Florida and shall occur in Miami, Florida. Each Party shall pay its own costs and fees. Claims necessitating arbitration under this section include, but are not limited to contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes, or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
d) CLASS ACTION WAIVER: YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. CLAIMS AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION ARE SUBJECT TO ARBITRATION ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS, AND THE ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.
e) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased, or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
f) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
g) NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
h) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
i) NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
j) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, pandemics and epidemics, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
k) ELECTRONIC COMMUNICATIONS PERMITTED: We may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically or post on the Site satisfy any legal requirement, if any, that such communications be in writing.
NOTICES BY MAIL:
All notices sent by mail should be sent to:
Lymion Group, Inc.
425 NW 26th Street
Miami, FL 33127
Notice will be deemed given twenty-four (24 hours) after being sent by email 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 three (3) days after the date of mailing.
26. YOUR CONSENT
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