Terms & Conditions

These Terms and Conditions (the “Agreement”) govern the relationship between you (“You”, “Partner” or “Customer”) ) and Absence Of Proof LLC, having an address at Po Box 364, New York, Ny 10013 ("AoP"). Partner and AoP are also referred to as “Party” or jointly as “Parties.”

Please read this Agreement carefully. It constitutes a legal agreement that governs your relationship with AoP, your use of our website located at https://absenceofproofwholesale.com, https://absenceofproof.myshopify.com/ or any other online wholesale store offered by AoP (the “Website”), and Product you offer or purchase via the Website. 

You must accept this Agreement to use the Website. By accepting this Agreement, registering for the Website, accessing or using the Website, placing an order for a Product, you represent that: (1) you have read, understand, and agree to be bound by the Agreement and any future amendments and additions to the Agreement as published from time to time; (2) you are of legal age in the jurisdiction in which you reside and are authorized to form a binding contract with AoP for these Products; and (3) you have the authority to enter into the Agreement. If you do not agree to be bound by this Agreement, you may not access or use the Website. 

PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND AoP HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. 

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

This Agreement may only be supplemented or changed through a written agreement executed by the relevant Parties, in a term sheet or other written agreement specifically referencing this Agreement. 

In consideration of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Wholesale & Products.

“Partner” is a manufacturer and/or distributor of certain non-alcoholic drinks and other products (“Products”) to be offered for sale via the Website or otherwise by AoP. “Customer” is a restaurant, bar, hotel or other wholesale customer purchasing Products, through AoP’s Website or otherwise. 

AoP agrees to offer Partner’s Products on its Website for sale to Customers, and AOP agrees to list Partner’s Products on its Website. For a listing on the Website, Partner needs to register on the Website, providing name, address and email address and other information necessary for the transactions or reasonably requested by AoP, and Partner agrees to keep such information current. For a purchase, Customer needs to register on the Website, providing name, address and email address, and other information necessary for the transaction or reasonably requested by AoP and Customer agrees to keep such information current. 

AoP shall list the Products in the form and format provided by Partner, with prices for Products subject to AoP and Partner’s mutual written agreement, using images and text provided by Partner. If no images or text are provided, Partner agrees that AoP is entitled to copy and use product images and listings from Partner’s website. AoP may choose the presentation of the Products in its sole discretion, and is free to make changes to images and text provided by Partner for purposes of presentation on its Website, in its sole discretion. AoP shall not make any false or misleading statements about the Products or Partner. AoP is under no obligation to list or keep listing any Partner Products on its Website. 

1. Orders & Shipping.

Once Customer orders Products, the order will be transmitted to Partner instantaneously. Partner agrees to pack and ship the ordered Products to a Customer within two (2) business days of its receipt of an Order. Shipping, insurance, and related risks, costs or expenses are Partner’s sole responsibility. 

Partner warrants and guarantees that any Products shipped to Customers do not expire for at least twelve (12) months from the shipping date. Partner agrees to notify AoP with reasonable advance written notice before any Products are not available or out of stock. 

Unless otherwise agreed to in writing and signed by the Parties, Customers shall be responsible to report to AoP any missing or broken Products within no more than three (3) business days from its receipt of an Order. AoP shall relay these messages to Partner without undue delay, and Partner shall be solely responsible to Customer to remedy any issues raised by Customer.

1. Responsibilities

For the avoidance of doubt, AoP shall not be responsible for shipping or fulfillment of an order, and AoP’s sole responsibility is to facilitate transactions between Partner and Customer on its Website or otherwise. Partner shall be solely responsible for the integrity of the Products, their quality and the shipping of the Products. Customer shall be solely responsible for any communication with Partner if a Product is late or not of sufficient quality, and Customer shall further be solely responsible for payment for the Products via AoP’s Website.

You acknowledge and agree that you are solely responsible for understanding and complying with all relevant federal, state, and local laws, regulations, and licensing requirements governing the sale, distribution, and service of non-alcoholic beverages within your relevant jurisdiction. This responsibility includes, but is not limited to, ensuring proper licensing, adherence to age restrictions for sale and consumption of the Products, accurate labeling, and any other legal obligations related to the sale of non-alcoholic spirits.

1. Payment & Taxes.

Unless otherwise agreed to in writing, AoP shall pay Partner within thirty (30) days of its receipt of payment from a Customer. Partner acknowledges and agrees that AoP may offer invoice-based or other payment methods to its Customers, and requires payment within sixty (60) days from an order as is customary in the industry.

Partner is solely responsible for the collection, reporting and remittance of any sales or similar tax or fees due for the sale of the Products, and is solely responsible to ensure compliance with applicable sales or similar taxes. 

1. TERM AND TERMINATION

1. Term.

This Agreement is effective as of the Effective Date and shall continue until the first anniversary of the Effective Date (“Initial Term”) unless and until terminated as set out below. Following the Initial Term, this Agreement will automatically renew for subsequent one year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless terminated as provided herein.

1. Termination. 

Either Party may terminate this Agreement at any time upon thirty (30) calendar days’ written notice for any reason. Either Party may terminate this Agreement immediately if the other Party breaches a material term of this Agreement and the breach is not cured within ten (10) calendar days after the allegedly breaching Party receives written notice of the breach. This Agreement may be terminated by either Party effective immediately and without any requirement of notice, in the event that: (i) the other Party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of the other Party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against the other Party and not stayed, enjoined, or discharged within sixty (60) days; or (iv) the other Party adopts a resolution for discontinuance of its business or for dissolution. 

1. Effect of Termination.  

Upon termination of this Agreement, the following shall apply: (i) all rights and licenses under this Agreement will immediately terminate; (ii) the Parties agree to destroy or make inaccessible any Confidential Information of the other Party, (iii) Partner shall fulfill any Order placed but not fulfilled at the time of termination, and (iv) AoP shall remain liable for payment of any amounts not yet paid to Partner as set out in this Agreement.

1. Confidentiality.

In connection with this Agreement, each Party (the “Disclosing Party”) will need to disclose to the other Party (the “Receiving Party”) and have disclosed to the Receiving Party certain information relating to the Disclosing Party, its Affiliates, its products, concepts, plans, processes, customers, sources, intellectual property, business plans, its businesses, business contacts and partners, as well as certain other information regardless of its form or the format of its disclosure or transmission (the “Confidential Information”). Each Receiving Party undertakes and agrees (i) to hold the Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information (including, without limitation, to take all precautions each Receiving Party applies with respect to its own confidential materials), (ii) not to disclose any Confidential Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of the Confidential Information except to evaluate internally its relationship with the other Parties in connection with the Collaboration and (iv) not to copy or reverse engineer any Confidential Information beyond the extent necessary for the Collaboration. 

Without granting any right or license, each Party agrees that the foregoing will not apply with respect to any information that (i) is or becomes (through no improper action or inaction by the Receiving Party or any Affiliate, agent, consultant, employee or other party acting on behalf of or with authorization of the Receiving Party) generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party as evidenced in writing, except to the extent that such information was unlawfully appropriated, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided it uses diligent and reasonable efforts to limit disclosure and has allowed the Disclosing Party reasonable time to seek a protective order prior to such disclosure. This Section 6 shall survive the expiration or termination of this Agreement.

1. Rights, Ownership and Usage.

Neither Party will have the right to use the other Party’s marks, intellectual property or materials unless explicitly specified herein, or agreed to in writing. Unless otherwise specified in writing, AoP and Partner own and retain their respective rights to any trademarks, copyrights, patents, materials, recipes and background elements, files and features incorporated into or utilized for the Products, to the extent these were in existence prior to the Term or developed independently by a Party during the Term. AoP shall be entitled to use Partner Trademarks, registered or unregistered, solely in connection with the terms and conditions set out herein, on its Website and the listing of the Products and related promotional and advertising materials. “Trademarks” means trademarks, trade names, service marks, logos, proprietary designs and slogans, together with all translations, adaptations, derivations and combinations thereof. 

Each Party recognizes the great value of the goodwill associated with the other Party’s Trademarks and acknowledges that the other Party’s Trademarks and all rights therein and goodwill pertaining thereto belong exclusively to the other Party. Each Party further recognizes and acknowledges that a breach by the other Party of any the covenants, agreements or other undertakings hereunder will cause such Party irreparable damage, which cannot be adequately remedied in damages in an action at law, and may, in addition thereto, constitute an infringement of such Party’s rights in Trademarks, thereby entitling such Party to seek equitable remedies, costs and reasonable attorney’s fees. Any rights in and to Trademarks related to or resulting from a Party’s use on or in connection with the Products, or otherwise, are deemed to accrue to the Party owning such Trademarks.

During the Term of this Agreement, neither Party shall challenge the validity of the other Party’s ownership in and to its Trademarks or any application for registration thereof, or any trademark registration thereof. Each Party shall, at any time, anywhere in the world, during the Term of the Agreement, execute any documents reasonably requested by the other Party to confirm such Party’s ownership rights in its Party Trademarks. All rights in a Trademark other than those specifically granted herein are reserved by such Party for its own use and benefit. 

1. Indemnification:

1. Indemnification. 

Each party (the “Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other party, its officers, directors, and employees (the “Indemnified Party”), from and against any claim, suit or proceeding of a third party (“Claim”) that is based on or arises out of the Indemnifying Party’s (i) breach of this Agreement, (ii) negligence or willful misconduct, or (iii) failure to comply with applicable laws and regulations. 

Partner further agrees to defend, indemnify, and hold harmless an Indemnified Party from Partner’s improper use of the AoP Services. Partner and Customer agree to indemnify, defend and hold harmless AoP against any claims, damages, liabilities, losses, or expenses arising from their respective failure to comply with applicable laws and regulations regarding the sale and service of non-alcoholic wine, beer, and spirits. By using the Website or purchasing a Product, the Customer acknowledges that it has familiarized itself with the laws governing the sale and service of non-alcoholic beverages in its locality and agrees to operate in full compliance with said laws.

1. Obligations relating to indemnity.  

The Party seeking indemnification shall provide prompt written notice of the Claim, allow the Indemnifying Party to have control of the litigation and settlement, and cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such Claim. Further, an Indemnifying Party shall not take any action to settle or defend any such claim, suit, or proceeding that would in any manner impose obligations (monetary or otherwise) on the Indemnified Party without the Indemnified Party's written consent, not to be unreasonably withheld or delayed. In connection with any such Claim, the indemnified Party may, at its own expense, have its own counsel in attendance at all public interactions and substantive negotiations at its own cost and expense. The obligation of either Party to indemnify the other shall be reduced to the extent that any loss claimed by the Party seeking indemnification was caused by that Party.

1. Representations & Warranties.

1. Both Parties:

Each Party represents, warrants and covenants that (i) it has full power and authority to enter into and perform this Agreement, (ii) its execution and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party or by which it is bound and (iii) it is not engaged in and will not engage in any activities which are in material violation of any applicable domestic, foreign or international laws, rules or regulations, including without limitation laws, rules or regulations governing labor, the environment, the manufacture and sale of goods, U.S. Customs laws or illegal transshipment. The representations and warranties contained in or made under or in connection with this Agreement shall survive the Effective Date, and shall be deemed to have been made by each Party upon entering into this Agreement and each amendment or supplement hereto.

1. Partner Representations & Warranties:

Partner additionally represents and warrants that (i) the Products will conform to the descriptions and specifications provided by Partner, (ii) the Products will be merchantable and fit for the ordinary purposes for which similar products are used, (iii) the Products are legal and safe for consumption, and (iv) will not infringe upon the intellectual property rights of any third party.

1. Customer Representations & Warranties:

Customer additionally represents and warrants that Customer is solely responsible for understanding and complying with all relevant federal, state, and local laws, regulations, and licensing requirements governing the sale, distribution, and service of non-alcoholic beverages within its jurisdiction. This responsibility includes, but is not limited to, ensuring proper licensing, adherence to age restrictions for sale and consumption of the Products, and any other legal obligations related to the sale of non-alcoholic spirits.

1. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, AOP DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOP WEBSITE AND AOP SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. THE AOP WEBSITE AND AOP SERVICES ARE PROVIDED “AS-IS,” AND AOP MAKES NO WARRANTY THAT THE AOP WEBSITE AND AOP SERVICES ARE, OR WILL BE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

1. LIMITATION OF LIABILITY.  

EXCEPT FOR LIABILITY ARISING OUT OF (I) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY, OR (II) PARTNER’S OBLIGATIONS RELATED TO VIOLATIONS OF LAW OR INDEMNIFICATION, IN EACH CASE WHICH SHALL BE UNCAPPED, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST OPPORTUNITIES, LOST PROFITS FROM THIS AGREEMENT, OR LOST SAVINGS, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR RESULT FROM A BREACH OF THIS AGREEMENT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT AOP’S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF PAYMENTS DUE TO PARTNER UNDER THIS AGREEMENT.

1. Misc. 

1. The Parties intend to bind themselves, and any parent, subsidiary or other entity that controls, is controlled by, or is under common control of a Party. For purposes of the prior sentence, “control” means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, (ii) direct or indirect ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity or (iii) identity of managers and executives between the respective entities, where no other connection exists.

1. Partner and AoP are independent contractors and shall have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement shall not be construed to create or imply any partnership, agency or joint venture.

1. Partner may not transfer or assign any rights or obligations Partner has under this Agreement without AoP’s prior written approval. AoP reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement by providing Partner with written notice of such transfer or assignment. 

1. Any notice, demand or report required or permitted under this Agreement will be given in writing by personal delivery, by certified or registered mail return receipt requested, or by overnight courier, directed to the address of the Party stated herein or to such other address as may be substituted by notice to the other party. All notices will be effective upon actual receipt or refusal of delivery.  

1. No failure or delay by either Party in enforcing any provision of this Agreement will be deemed a waiver of such Party’s ability to enforce the same provision of this Agreement at a future date. 

1. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.

1. Neither Party is responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, terrorism, civil insurrection, acts of militia or military, strikes, pandemic or other public health emergencies, revolutions, lack or failure of transportation or communications facilities, laws or governmental regulations, or other causes that are beyond the relevant Party’s reasonable control. In the event of such a failure, the relevant Party’s obligations shall be suspended until such time as the cessation of any cause of such failure.

1. This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning this subject matter. This Agreement sets forth the entire understanding between Partner and AoP with respect to the matters covered herein. 

1. This Agreement may only be modified, or any rights under it waived, by a written document executed by the Parties.

1. The terms which by their nature should survive termination of this Agreement shall survive termination of this Agreement. 

1. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one agreement. A photographic or electronic copy of the signature evidencing a Party’s execution of this Agreement shall be effective as an original signature and may be used in lieu thereof.

1. This Agreement will be interpreted and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in New York County, New York for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement.

The Parties agree to attempt to resolve any dispute amicably, in direct communication at management level. If the Parties cannot find a resolution within two weeks from the initial contact, the Parties agree to attempt to resolve such a dispute by binding arbitration administered by JAMS, under the optional expedited arbitration procedures then in effect for JAMS, and available at www.jamsadr.com, in New York City. Each Party will bear its own costs, fees, and expenses associated with any arbitration, except that the Parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. In the event AoP does not elect to submit a dispute under this Agreement to arbitration, the Parties agree that any civil action to decide such dispute shall be brought in State and Federal courts sitting in New York County, New York.