SG PROOF TERMS OF SALE

 

To make purchases you must be at least 21 years of age with a valid state alcohol beverage license.

 

1. Acceptance of the Terms of Sale

 

THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR PURCHASE OF PRODUCTS AND SERVICES AND YOUR RELATIONSHIP WITH SOUTHERN GLAZER’S WINE AND SPIRITS, LLC AND ITS APPLICABLE AFFILIATES (COLLECTIVELY "SGWS”, "us”, and "we”). BY ORDERING SGWS PRODUCTS AND SERVICES, AND/OR BY ACCESSING, REGISTERING FOR OR USING SG PROOF, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE AGREEMENTS AND POLICIES INCORPORATED BY REFERENCE HEREIN, INCLUDING WITHOUT LIMITATION OUR Terms of Use, Privacy Policy, and Copyright Policy) (COLLECTIVELY, THE "Agreement”).

 

The Agreement contains important conditions, limitations, exclusions, and waivers, including MANDATORY ARBITRATION and WAIVER OF ANY RIGHT TO JURY TRIALS OR CLASS ACTIONS.

 

As used in this Agreement, "you”, "your”, and "customer” means the Person (defined herein) and "Affiliates” (defined herein) of such Person wishing to access, use or purchase Products (defined herein) and Services (defined herein) through sgproof.com and any platform, portal, web service, application, interface, or other tools provided by or for SGWS (collectively, the "Site”) and  through  telephone, through SGWS sales or any other manner or method (collectively, the "Other Methods”). The Products, Services, Site, and Other Methods shall collectively be referred to herein as "SG Proof”. Capitalized terms have the meanings given to them in this Agreement. If there is a conflict among terms in the Terms of Use and the Terms of Sale, then the Terms of Sale will prevail over any applicable terms in this Agreement.

 

2. Changes to the Agreement

 

We may revise and update the Agreement, including by introducing entirely new terms on subjects not previously addressed, at any time in our sole discretion. Subject to applicable state alcohol beverage laws, all changes are effective immediately when we post them and apply to all purchases, access to and use of SG Proof and your relationship with us thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on SG Proof. If you do not agree to any posted changes, your sole and exclusive remedy is to immediately cease all future purchases and use of SG Proof.

Your continued purchases and/or use of SG Proof following the posting of our revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

 

3. Applicable Terms

 

These Terms of Sale are an integral part of the Terms of Use that apply generally to the use of SG Proof. Our Privacy Policy governs the processing of all personal data collected from you in connection with your purchase of Products or Services from SGWS.

 

4. The Customer Business Administrator (the "CBA”) Role and Responsibilities

 

A CBA must meet all the qualifications set out in the Terms of Use. The CBA has the highest level of administrative authority on SG Proof and is designated at the time your account is created. The CBA is responsible for accurately:

1. Adding and removing users with access to the account;
2. Assigning permissions for the level of user access (e.g., determining who has buying authority and who does not); and
3. Editing user information including name and phone number.

If you have been identified as a CBA by your organization, you agree to adhere to and hereby represent and warrant the following additional requirements:

1. Maintaining accurate Authorized User access information including, but not limited to, immediately deleting access for terminated employees and adding access for additional users;
2. Understanding the varying levels of authority on SG Proof (Customer Business Administrator, Buyer Manager, Buyer, Accounting, Read-only) and assigning appropriate levels of permissions to users;
3. Maintaining accurate account information including names, phone numbers and email addresses for all Authorized Users; and
4. Reviewing the roles and responsibilities of a CBA with individuals before you add them as an additional CBA.

You further agree, represent, and warrant that you will designate "Authorized Representatives” who are at least 21 years of age and permitted by Law to conduct all the following activities on the customer’s behalf:

1. Purchase of Products and Services through our Site and Other Methods;
2. Receive delivery of Products at customer’s licensed location; and
3. Pick up Products from a distribution warehouse (as permitted by Law).

You agree that SGWS may treat all activities and instructions by CBAs, Authorized Users and Authorized Representatives as expressly authorized by you, unless and until you change the designation. You further agree, represent, and warrant that you are responsible for the activities and instructions of CBAs, Authorized Users, and Authorized Representatives, and SGWS shall have no responsibility or liability to customers for such activities, including without limitation customer’s failure to update or remove CBAs, Authorized Users or Authorized Representatives.

5. Order Acceptance and Cancellation

 

You agree that your order is an offer to buy, under the Agreement, all Products and Services listed in your order. All orders must be accepted by us or, subject to applicable state alcohol beverage law, we will not be obligated to sell the Products to you. Subject to applicable state alcohol beverage law, we may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.

 

Payments must be made from a bank account and/or via a credit card (if a credit card is accepted by us) that belongs to the owner of a state license eligible to make the purchase in accordance with applicable Law (defined herein). Purchases through SG Proof may not be paid for by a personal bank account or credit card unless permitted by applicable Law. You expressly authorize SGWS to maintain these records directly or through a third-party payment processor.  You further agree that, when and if required by applicable Law or if we elect to do so in our sole discretion, we have the right to initiate payment for any purchases.

 

6. Prices and Payment Terms

 

a.  Pricing.Subject to applicable state alcohol beverage laws, all prices, discounts, and promotions posted on SG Proof are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. Price increases will only apply to orders placed after such changes. SGWS does not warrant the accuracy or completeness of pricing or availability of Products on SG Proof. SGWS reserves the right, at any time, to cancel any orders containing pricing or availability errors, with no further obligations to you subject to applicable state alcohol beverage law.

b.  Taxes and Charges. Unless expressly indicated, posted prices do not include taxes or charges for delivery and handling. You agree to pay all taxes, tariffs and other charges of any kind or nature that are added to your merchandise total, and which may be itemized in your shopping cart and/or in your order confirmation email. SGWS reserves the right, but not the obligation, to charge any applicable taxes, tariffs, duties, or levies and remit it to the relevant tax authority. You agree that you will provide SGWS with appropriate documentation as requested by SGWS.

c.  Promotions and Discounts. Subject to applicable state alcohol beverage laws, we may offer from time-to-time promotions that may affect pricing and that are governed by terms and conditions separate from the Agreement. If there is a conflict between the terms for a promotion and the Agreement, the promotion terms will govern for that particular promotion. A discounted price indicates the price is less, by approximately the amount of the discount, than a manufacturer’s recommended price. By way of example only, eligibility, length of offer, and amount of discount will be governed by the terms of the particular promotion or discount and may be discontinued or modified without notice at any time in our sole discretion.

d.  Product Limits. SGWS reserves the right to limit the quantity of items purchased per customer or per order for any reason in its sole discretion.

e.  Authority; Billing Information. You represent and warrant that you have the right to use any credit card or other means of payment that you provide to SGWS, its third-party payment processors, or otherwise in connection with your orders. By providing payment information, you authorize SGWS and its third-party payment processors to store and use the payment information in connection with purchases made through your account with SG Proof. All billing information you provide must be complete and accurate. Verification of information may be required prior to completion or fulfillment of any purchase. Subject to applicable state alcohol beverage laws, terms of payment, including when payment is due, are within our sole discretion. Subject to applicable state alcohol beverage laws, we may accept VISA, Mastercard, and American Express credit cards, or electronic payments (such as Automated Clearing House or wire transfer) for purchases. You represent and warrant that in the event a credit card or electronic payment (including ACH) is acceptable to us, that: (i) the payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such form of payment for the purchase, and (iii) charges incurred by you will be honored by your credit card company or bank. Orders will be reflected on the invoice generated at the time your orders are processed and will include payment terms.

f.  ACH Transactions. The Agreement also governs Automated Clearing House (“ACH”) transactions between the parties. To the extent you authorize ACH transactions or as required by Law, the Agreement will be supplemented by the NACHA Operating Rules as they pertain to such transactions. When and if required by applicable Law, or if we elect to do so in our sole discretion, we will initiate ACH transactions to debit the bank account you have provided during registration or at any other time in the amount of the order placed, and you authorize us to initiate such ACH transactions. You must provide us at least 30 days’ prior notice of any change to your banking or credit card information. Any charges for canceled, refused, overdraft, insufficient fund, or chargeback transactions will be charged to you, to the extent permitted by applicable law.

g.  Violations of this Agreement. In addition to any other remedies available to it, SGWS may in its sole discretion, restrict or terminate your account, or cancel or refuse orders, if SGWS determines: (i) violations of the Agreement or any applicable third-party payment processor terms and conditions; (ii) that your account has been used to engage in fraudulent, deceptive or illegal activity, or (iii) that your actions may result in returns, chargebacks, claims, financial loss, or disputes or other risks to SGWS or any third parties. SGWS may: (a) impose transaction limits, (b) contact your payment method issuer, law enforcement or others and share information relating to your payments with third parties, and (c) take other affirmative action, to prevent a violation of Law or financial loss to SGWS or third parties, or as otherwise determined by SGWS in its sole discretion.

h.  Purchase-Money Security Interest. Upon delivery of any Products, you agree and hereby grant, as security for the payment of the purchase price, a lien on and security interest in all right, title, and interest of the buyer in the products delivered with this invoice. The security interest granted constitutes a PMSI under the UCC. Any terms in conflict with or prohibited by applicable law are void.

 

7. Pickup; Delivery; Title and Risk of Loss

 

We will arrange for delivery of the Products to your licensed premise only. Deliveries and delivery options are subject to the applicable state alcohol beverage laws. In the case of delivery, title and risk of loss pass to you upon our delivery of the Products to you or your representative.  Subject to applicable state alcohol beverage laws and SGWS policies, we may allow you to pick up your order.  In the case of pickup, title and risk of loss pass to you upon our transfer of the Products to you or your representatives at the place of pickup.

 

8. Returns, Refunds and Exchanges

 

Returns, refunds, and exchanges are governed by applicable state alcohol beverage laws. The Customer will be responsible for contacting the sales consultant or customer service to discuss any returns, refunds, or exchanges, all of which must be preapproved by us. 

 

9. ‌Termination; Survival

 

The Agreement shall be effective immediately upon your access to SG Proof or your purchase of Products and Services, whichever occurs first, and shall continue in full force indefinitely until terminated. SGWS may change, suspend or terminate your use of SG Proof with or without cause or notice in its sole discretion, including, without limitation, if SGWS believes that you have violated or acted inconsistently with the Agreement. All provisions of this Agreement which by their nature are meant to extend beyond the expiration or termination of this Agreement, including without limitation, all your representations and warranties and Sections 10 to 33 below. Additionally, the termination or expiration of this Agreement will not prejudice any claim of SGWS or relieve you of any of your obligations (including payment) due at or before the time of such termination or expiration. We may, but have no obligation to, store or keep your account information. SGWS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY(S) FOR ANY LOSS OR DAMAGE THAT IS CAUSED BY, ARISES FROM, OR IS IN CONNECTION WITH ANY TERMINATION.

 

10. Disclaimer; Reliance on Information Posted

The SGWS Materials (defined herein) made available on or through SG Proof are solely for general information purposes. SGWS makes no warranties or representations as to the completeness, accuracy, reliability, validity, or timeliness of any SGWS Materials, including Product Information (defined herein, including any features, specifications, and prices). Such Product Information and the availability of any Product are subject to change at any time without notice. The actual colors of Products you see will depend on your screen/device, and certain descriptions, such weights and measures, are approximate and for convenience only.

 

We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from use occurrences subject to applicable state alcohol beverage laws. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on SGWS Materials by you or any other visitor to SG Proof, or by anyone who may be informed of any of its Content (defined herein).

 

SG Proof includes content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by SGWS, are solely the opinions and the responsibility of the Person providing those materials. These materials do not necessarily reflect the opinion of SGWS. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

11. Confidentiality

 

Confidential Information Defined. With respect to this Agreement, "Confidential Information” means any confidential, proprietary information, in any form or any medium, that is provided by or on behalf of SGWS to you, including any information provided under this Agreement or made available in SG Proof, any information which SGWS designates as confidential, and/or any information that is communicated to you by or on behalf of SGWS regarding pricing, Products and Services under this Agreement. For clarity, any information made available after you enter your login credentials is Confidential Information.

Confidentiality Obligations. You shall treat as confidential SGWS’s Confidential Information and shall protect it from unauthorized access, use, or disclosure. You shall not use SGWS’s Confidential Information for any purpose other than in furtherance of authorized purposes under this Agreement. You shall restrict disclosure of, and access to, SGWS’s Confidential Information solely to your personnel, agents or contractors who need to know such Confidential Information solely in furtherance of the authorized purpose under this Agreement to purchase Products and Services for you, and only after you advise such personnel, agents or contractors as to, and they have acknowledged and agreed to comply with, the restrictions as to such Confidential Information under this Agreement. For clarity, all your personnel, agents or contractors are expressly bound by the obligations and restrictions of the Agreement. Without limiting any other remedies available at law or equity, SGWS shall be entitled to seek injunctive relief to enjoin any threatened or continuing disclosure or unauthorized use of its Confidential Information in violation of this Agreement. Upon SGWS’s written request or upon the termination or expiration or this Agreement, you shall return all Confidential Information of SGWS in your possession or control.

Survival of Confidentiality Obligations. The confidentiality obligations hereunder are continuing in nature. You agree that you shall keep any Confidential Information and trade secrets of SGWS confidential as long as such information is deemed confidential or a trade secret by SGWS.

 

Other Confidentiality Obligations. You may have entered into a separate confidentiality agreement with SGWS. The parties acknowledge and agree that the confidentiality obligations herein shall not modify any separate confidentiality agreement entered into by you and SGWS. This Agreement does not limit your obligations under any separate agreement with SGWS.

 

12. Disclaimer of Warranties; Release of Claims

 

We do not manufacture or control any of the Products offered on or through SG Proof. The availability of Products on or through SG Proof does not indicate an affiliation with or endorsement of any Product, Service or manufacturer. Accordingly, we do not provide any warranties with respect to the Products or Services offered on or through SG Proof. However, the Products offered on our or through SG Proof may be covered by warranties from the manufacturer, please check with the manufacturer directly for specific information.  Furthermore, you agree that any tampering with packaging or Products may invalidate the manufacturer warranty, if any.

 

YOU AGREE AND AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.

 

You understand that we cannot and do not guarantee or warrant that data available for downloading from the internet or SG Proof will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our SG Proof for any reconstruction of any lost data.

 

SG PROOF, SGWS MATERIALS, PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE” BASIS. ANY USE OF SG PROOF, SGWS MATERIALS, PRODUCTS AND SERVICES ARE AT YOUR OWN RISK. SGWS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (II) THAT SG PROOF, SGWS MATERIALS, PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (III) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SGWS DISCLAIMS ANY AND ALL SUCH WARRANTIES. SGWS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SG PROOF WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, NOR WILL SGWS BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.

 

IF A DISPUTE ARISES BETWEEN ONE OR MORE USERS, EACH USER RELEASES SGWS 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, RELATING TO OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

 

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER MATERIAL DUE TO YOUR USE OF SG PROOF OR ANY SERVICES OR PRODUCTS OR TO YOUR DOWNLOADING OR USE OF ANY SGWS MATERIALS, OR ON ANY LINKED WEBSITES.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13. Limitation of Liability

 

IN NO EVENT SHALL SGWS, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, TREBLE, STATUTORY OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH, ANY BREACH OF THE AGREEMENT, YOUR ACCESS OR USE OR INABILITY TO USE SG PROOF, YOUR PURCHASES OR INABILITY TO MAKE OR RECEIVE PURCHASES, YOUR CONTENT, OUR SERVICES OR THE PRODUCTS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

 

IN NO EVENT SHALL SGWS’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY, FOR ANY REASON, AND THE SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM WHATSOEVER, SHALL BE THE GREATER OF EITHER THE AMOUNTS ACTUALLY PAID TO SGWS WITHIN THE LAST SIXTY DAYS OR $100.00 USD. IN THE EVENT SUCH AMOUNT IS DEEMED UNENFORCEABLE FOR ANY REASON, THEN THE AMOUNT SHALL BE REFORMED TO THE LOWEST ENFORCEABLE AMOUNT.

 

THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL ONLY APPLY TO THE EXTENT PERMITTED BY LAW.

 

14. Indemnification

 

You agree to defend (at our option), indemnify, and hold harmless SGWS, its affiliates, licensors, and service providers, and its and their respective officers, directors, shareholders, employees, contractors, agents, licensors, suppliers, representatives, successors, and assigns from and against any claims, actions, allegations, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation, inquiries, audits, investigations,  liabilities, damages, judgments, awards, deficiencies, losses, costs, expenses of any kind, interest, penalties, fines, or fees (including without limitation reasonable attorneys’ fees, the cost of enforcing any right under this indemnification clause) (the "Claims”) arising out of, or relating to, or in connection with any actual or alleged (i) violation of the Agreement, breach of your representations and warranties, or your access or use of SG Proof, including, but not limited to, Your Content, (ii) any use of SGWS Materials, Services, and Products other than as expressly authorized in these Terms of Use, (iii) violation, misappropriation or infringement of any Intellectual Property Rights (defined herein) or other legal rights by you; (iv) death of or injury to any Person, damage to any property; (v) any other damage or loss, by whomsoever, suffered, resulting or alleged to result in whole or in part from your use of SG Proof, the Products, or Your Content; (vi) your use of any Content from SG Proof and (vii) your acts or omissions arising out of or relating to your use of SG Proof.

 

Indemnification Procedure. Upon receipt of notice from SGWS of a Claim, you shall immediately take control of the defense and investigation of such Claim and shall employ counsel to handle and defend the same, at your sole cost and expense. You shall not settle any Claim in a manner that adversely affects the rights of SGWS without our prior written consent, which may be withheld in our sole and absolute discretion. SGWS’s failure to perform any obligations under this subsection shall not relieve you of your obligations under this section.  SGWS may participate in and observe the proceedings at its own cost and expense.

 

15. Export Control

 

You represent and warrant that you are buying Products from SGWS for sale at your premises pursuant to applicable alcohol beverage law, and that you will not transfer the products to a retail account in another state or country.  You further represent and warrant that you will not use SG Proof to directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any Products or commodities, software or technology to any country, state or Person to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.

 

16. Geographic Restrictions

 

The owner of SG Proof is based in the state of Florida in the United States. We provide SG Proof for use only by persons located in the United States. We make no claims that SG Proof, any of its Content or SGWS Materials is accessible or appropriate outside of the United States. Access to SG Proof may not be legal by certain Persons or in certain countries. If you access SG Proof from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

17. Governing Law and Venue

 

The parties agree that all Claims shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida, unless otherwise void under applicable law.

For any and all matters not subject to mandatory, binding arbitration as set forth below, all Claims arising out of, relating to or in connection with this Agreement or SG Proof, will be litigated exclusively in the federal or state courts of City of Miami and County of Miami-Dade. The Agreement is fully performable in Miami. The parties consent to personal jurisdiction in County of Miami-Dade and hereby waive any challenge to venue and personal jurisdiction they may have to a lawsuit filed in a state or federal court. Notwithstanding the foregoing, we may institute proceedings for equitable relief in any court of competent jurisdiction.

 

18. Mandatory Arbitration

 

1. Agreement to Binding Arbitration. You (on behalf of yourself and any of your employees or contractors) agree that you are required to resolve any claim that you have against SGWS on an individual basis in binding arbitration as set forth herein, and not as a class, collective, consolidated, coordinated, mass, or representative action (including without limitation any representative claim under the California Private Attorney General Act “PAGA” alleging violations suffered by individuals other than the claimant in such arbitration). You agree this precludes you from bringing, participating in, or recovering relief in any current or future class, collective, consolidated, mass, or representative action, with the sole exception of Section 18(d) regarding settlement of claims.

2. Dispute Rules. You and SGWS agree that any dispute, controversy, or Claim (i) arising out of, relating to, or in connection with this Agreement or SG Proof, or (ii) between you and SGWS (or between any party to this Agreement and an affiliate, employee, agent, independent contractor, representative, successor, or assign of the other party) shall be submitted to and resolved by confidential and binding arbitration in accordance with this arbitration agreement. The parties agree that this Agreement involves interstate commerce and that the Federal Arbitration Act ("FAA”) governs for all purposes, including without limitation the interpretation, implementation, enforcement, and administration of this Agreement. The arbitration shall be held in Miami, Florida. The arbitration will be conducted according to the Commercial Arbitration Rules of the American Arbitration Association then in effect, subject to the provisions of this Agreement. The American Arbitration Association ("AAA”) will administer the arbitration. The FAA and the AAA’s rules shall preempt state laws to the fullest extent permitted by law. The parties expressly agree that any such arbitration and the contents of the same, including, but not limited to, any motion, pleading, discovery, and testimony, is to be held strictly confidential and the arbitrator(s) shall issue an order to such effect. The arbitrator(s) may enter a default decision against any party who fails to participate in the arbitration proceedings. Any award of the arbitrator(s) will be final and binding on each of the parties. A judgment may be entered on the arbitrator(s)’ final award in any court of competent jurisdiction; provided, that, any such award shall be kept confidential and filed under seal with the appropriate court. The prevailing party, as determined by the arbitrator(s), will be awarded its attorney’s fees and all expenses of arbitration, including fees paid to experts and arbitrator(s). Any party may submit an offer of judgment to the other party prior to an arbitration hearing, and (i) if accepted, the judgment shall be entered by the arbitrator, and (ii) if not accepted before the arbitration hearing or within thirty (30) days of the offer, whichever is earlier, then (x) such rejected offer may not used as evidence in the arbitration and (y) if the rejecting party does not obtain a more favorable judgment than the one offered, then the rejecting party shall not be entitled to recover post-offer of judgment costs and shall pay the offering party’s costs incurred after the time of the offer. Notwithstanding the foregoing, an action by a party to obtain emergency temporary injunctive or equitable relief relating to the unauthorized disclosure of Confidential Information under this Agreement will be permitted and will not constitute a waiver of its right to arbitrate.

3. Process. The parties agree that, before demanding arbitration, the parties will (i) meet and confer via telephone, video, or in-person conference in a good-faith effort to resolve any dispute, controversy, or Claim covered by this arbitration agreement, (ii) that multiple individuals initiating claims cannot participate in the same conference, and (iii) you agree that while your counsel may participate in the conference, you shall fully and personally participate in the conference. Formal written notice shall be provided pursuant to Section 32. Once notice is provided, the parties agree to hold the required conference within thirty (30) days, unless otherwise agreed upon by the parties. The notice and conference are a condition precedent to bringing any arbitration, and the arbitrator(s) shall dismiss any arbitration demand that is filed prior to compliance with this process. In addition to any AAA requirements to initiate a demand of arbitration, the claimant must personally sign the arbitration demand.

4. Class Action Waiver. NEITHER YOU NOR SGWS WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST SGWS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN A CLASS, COLLECTIVE, CONSOLIDATED, COORDINATED, MASS, OR REPRESENTATIVE ACTION (COLLECTIVELY A "CLASS ACTION WAIVER”). THIS INCLUDES WITHOUT LIMITATION YOUR AGREEMENT TO EXPRESSLY WAIVE ANY RIGHT TO SERVE OR PARTICIPATE AS A CLASS REPRESENTATIVE, PAGA REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.  You agree to an arbitration on an individual basis. The arbitral tribunalmay not consolidate more than one person’s claims and may not otherwise preside over any form of a class, collective, consolidated, coordinated, mass, or representative proceeding. The arbitral tribunal has no power to consider the enforceability of this class action waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. The arbitrator(s) will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including unconscionability, formation, recovacability or any other challenge that the arbitration provisions or the Agreement is void, voidable, or otherwise invalid. Notwithstanding the above or any portion of this arbitration agreement, this class action waiver does not prevent the parties from participating in a class wide, collective, and/or representative settlement of claims.

5. Severability; Survival; Stay of Claims. If any portion of this arbitration agreement is found unenforceable or unlawful for any reason, then the unenforceable or unlawful portion will be severed and the remaining arbitration terms shall be binding and enforceable, including the ability to compel arbitration on an individual basis. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because any portion of the class action waiver is unenforceable or unlawful with respect to such claims, the parties agree that litigation of those claims shall be stayed pending the outcome of any claims in arbitration (this includes without limitation that any representative claim pursuant to PAGA shall be stayed pending the outcome of the individual arbitration claims).

6. CALIFORNIA RETAILERS: This Mandatory Arbitration section, including the class action waiver, applies to all claims that you or SGWS may assert in the future, including claims about past transactions or future transactions, except it does not apply to the claims currently pending in the case of Roma Mikha, Inc. et al. v. Southern Glazer’s Wine and Spirits, LLC , Civil Action No. 8:22-cv-01187-FWS-ADS in the United States District Court for the Central District of California, for which prior agreements will govern.

 

19. Waiver of Trial by Jury

 

YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION OR CLAIM THAT MAY ARISE UNDER, RELATE TO OR IN CONNECTION WITH THIS AGREEMENT OR SG PROOF IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE YOU IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY. YOU CERTIFY AND ACKNOWLEDGE THAT YOU UNDERSTAND AND HAVE CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, AND YOU MAKE SUCH WAIVERS VOLUNTARILY.

20. Claim Limitation Period

 

EXCEPT FOR PAYMENT OF MONIES DUE TO SGWS, ANY CAUSE OF ACTION OR CLAIM THAT MAY ARISE UNDER, RELATE TO OR IN CONNECTION WITH THIS AGREEMENT OR SG PROOF MUST BE COMMENCED WITHIN THIRTEEN (13) MONTHS AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED, UNLESS OTHERWISE VOID BY APPLICABLE LAW.

 

21. Force Majeure

 

SGWS shall not be liable or responsible to you, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by or results from acts beyond SGWS’s reasonable control, including, without limitation: acts of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; compliance with any Law, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, tariff, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; shortage or failure of adequate power or telecommunications or transportation facilities; or any other event which is beyond the reasonable control of SGWS.

 

 

 

 

22. Entire Agreement

 

The Agreement (the Terms of Use, Privacy Policy, Terms of Sale, and Copyright Policy), and any documents linked or referenced herein (such as SGWS invoices), which are incorporated by reference, constitute the sole and entire agreement between you and Southern Glazer’s Wine and Spirits, LLC regarding SG Proof (the Products, Services, Site and Other Methods) and all sales and purchases of any kind, nature or through any channel, means or medium and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.  For clarity, the Agreement shall override any terms, conditions, purchase orders, or other agreements of customer or any third-party service provider or agent acting for or on behalf of customer.

 

23. Waiver and Severability

No waiver by SGWS of any term or condition set out in the Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SGWS to assert a right or provision under the Agreement shall not constitute a waiver of such right or provision.

If any provision of the Agreement is held by an arbiter, court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be limited to the minimum extent and modified to effect the original intent of the parties as closely as possible in order that the transactions contemplated herein be consummated as originally contemplated to the greatest extent possible, and all the remaining provisions of the Agreement will continue in full force and effect.

 

24. Responsibility for Affiliates and Agents

 

You will be responsible for any actions taken by your affiliates, agents, or other third parties on your behalf under this Agreement or SG Proof.

 

25. Independent Contractors

 

You and SGWS are acting as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Terms of Sale.

26. Assignment

 

You may not assign this Agreement or any of your rights or obligations under this Agreement without SGWS’s prior written consent by an SGWS authorized agent, which may be withhold in SGWS’s sole discretion. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under the Agreement.

 

 

27. No Third-Party Beneficiaries

 

The Agreement does not and is not intended to confer any rights or remedies upon any Person other than you.

 

28. Further Actions

 

You shall, upon SGWS’s reasonable request, and at your sole cost and expense, execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

 

29. Interpretation

 

For purposes of this Agreement, (i) the words "include,” "includes” and "including” shall be deemed to be followed by the words "without limitation”; (ii) the word "or” is not exclusive; and (iii) the words "herein,” "hereof,” "hereby,” "hereto” and "hereunder” refer to this Agreement as a whole.  Unless the context otherwise requires, references herein: (A) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (B) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

 

30. Headings

 

The headings herein are for reference only and shall not affect the interpretation of this Agreement.

 

31. Defined Terms

 

Capitalized terms used in this Agreement have the meaning specified in this section or as elsewhere defined in this Agreement or in the Terms of Use.

 

1. "Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control” (including the terms "controlled by” and "under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
2. "Agreement” means any policies or terms linked or referenced herein or otherwise made available through SG Proof, including the SGWS Terms of Use, SGWS Terms of Sale, SGWS Privacy Policy and SGWS Copyright Policy.
3. "Content” means any and all information or materials, including, without limitation, any Product Information, descriptions, reviews, comments, messages, communications, feedback, submissions, suggestions, questions, data, and other information, in any format, including images, text, video, music clips, or otherwise.
4. "Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world, including rights of publicity and privacy.
5. "Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, and any generally accepted industry standards and self-regulatory principles.
6. "Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
7. "Product Information” means any and all information, materials, links, images and other content related to Products, including without limitation: (a) descriptions, including as applicable, location-specific availability and options; (b) information regarding in-stock status and availability and shipping information; (c) categorization within each SGWS product category and browse structure; (d) images; (e) purchase, sale or discount pricing; (f) shipping, handling and other charges; (g) any text displayed in connection with the offer, merchandising, advertising, or sale of the Product.
8. "Products” means any and all goods provided or offered by SGWS.
9. "Services” means any and all services provided or offered by SGWS.
10. “SGWS Materials” means any and all SGWS Content made available on, through or linked to SG Proof.

 

32. Notices
    
    

To You. We may provide any notice to you under the Agreement by (i) sending a message to the email address you provided or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current and to check SG Proof.

 

To Us. To give us notice under the Agreement, you must contact us as follows: by personal delivery, overnight courier, or registered or certified mail to (i) General Counsel, Southern Glazer’s Wine and Spirits, LLC, 1600 NW 163^rd St., Miami, FL 33169 and with copy to (ii) General Counsel, Southern Glazer’s Wine and Spirits, LLC, 14911 Quorum Dr, Dallas, TX 75254. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

 

33. Contact Us
    
    

SG Proof is operated by Southern Glazer’s Wine and Spirits, LLC, located at 1600 NW 163rd St., Miami, FL 33169 and support@sgproof.com.  Legal or constructive notice of Claims, request for dispute resolution, and/or arbitration demands are not effective under this section and must be provided in compliance with Section 18 Mandatory Arbitration and Section 32 Notices to be effective.

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Last updated on September 24, 2025