Effective as of Nov. 14, 2021
Dalcom Consulting Inc. and its subsidiaries and affiliates ("Dalcom", "we", "our", or "us") own and operate certain websites, mobile device applications, and other tools, technology, and programs (collectively, the "Platform"), as well as services associated with or made available through the Platform (collectively, the "Services"). These Terms of Service ("Terms") govern your access to the Platform and Services and constitute a legal agreement between you and Dalcom. So please read them carefully.
PLEASE REVIEW SECTION 19, TITLED THE “DISPUTE RESOLUTION” CAREFULLY. UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW, THESE TERMS WILL REQUIRE YOU TO RESOLVE DISPUTES WITH Dalcom, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION (WITH LIMITED EXCEPTIONS). YOU ACKNOWLEDGE AND AGREE THAT YOU AND Dalcom EACH WAIVE THE RIGHT TO A TRIAL BY JURY, AND THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
THE PLATFORM AND SERVICES ARE FOR PERSONS 21 YEARS OF AGE AND OLDER. YOU MAY NOT USE OUR PLATFORM OR SERVICES IF YOU ARE UNDER 21. YOU MAY NOT PURCHASE FOR, PICK-UP FOR, RECEIVE OR SEND A DELIVERY OR SHIPMENT TO ANYONE UNDER 21. DO NOT SEND US INFORMATION ABOUT ANYONE UNDER 21.
Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any agreements you may have with Dalcom if you are a Retailer (defined below), advertiser, or other company with which we partner.
1. Shopping with Dalcom (ABCTOGO)
Dalcom does not sell, offer to sell or solicit sales of alcohol: our Services enable you to search online for alcohol and other products available for sale by licensed alcohol retailers that have agreed to use Dalcom’s Platform ("Retailers"). The Services are not meant to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler, or distributor of alcohol beverages to any retailer of alcoholic beverages or to facilitate any improper exclusionary practices by any alcohol beverage licensee. When you search for a product, the Services show you its availability, price and other information based on your location and information provided by the Retailers that service your location; if you prefer, you may sort and filter results based on search criteria. Our Services may be limited or not available at all in some locations due to local law or other restrictions.
Dalcom may charge you a service fee when you place an order. Any service fee will be disclosed to you before you finalize your order and will charged to you in addition to the purchase amount and any required taxes. When you place an order through the Platform, it is an offer to purchase from a Retailer. The total purchase amount (plus any additional service fees and required taxes) may be authorized by your payment card company, but your offer is not accepted by the Retailer at that time. The Retailer reviews your order and decides whether to accept it. If the Retailer decides to accept your order, they will charge your payment card for the purchase amount (plus any additional service fees) and arrange for the delivery, pick-up, or shipment.
Dalcom is not a delivery company or a common carrier. The delivery of your order will be facilitated by the Retailer or a delivery service utilized by the Retailer. Dalcom does not employ, select, or supervise any delivery drivers. Dalcom does not guarantee shipping or delivery times and is not liable for the actions, omissions, products, or content of Retailers or any delivery driver or service.
2. Account registration
You will be required to register an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services. Additionally, you must update your account information to keep it accurate, current, and complete.
You are the sole authorized user of any account you create and responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by any person under the age of 21, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your account and you may not assign or otherwise transfer your account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Dalcom’s Customer Experience Team by clicking here or sending an email to support@Dalcom.com.
Dalcom will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Dalcom or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Dalcom has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Dalcom has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by Dalcom, or if you have been previously banned from use of the Services.
The information you provide must be accurate and complete, and you must keep it current. Use your legal name and actual date of birth on all accounts and orders you create, or your order may be declined
If you wish to deactivate your account for any reason, send a request to our Customer Experience Team. If your account has been deactivated. Dalcom may, but is not obligated to, reactivate your account upon written request to its Customer Experience Team.
3. Privacy and data
By accessing the Platform, using the Services, or registering for an account, you agree that we may collect, process, and disclose your personal information in accordance with our Privacy Notice, available at https://Dalcom.com/privacy/.
4. Restrictions on use
You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Services except as expressly permitted by Dalcom; (c) decompile, reverse engineer or disassemble the Platform except as may be permitted by applicable law; (d) link to, mirror or frame any portion of the Platform; (e) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Platform or Services; or (f) attempt to gain unauthorized access to or impair any aspect of the Platform, Services, or their related systems or networks.
5. Prices, taxes, and fees
Retailers set the price of their products on Dalcom, and Retailers and their delivery providers may charge you additional fees such as shipping and delivery fees, redelivery fees, and restocking fees (. Your order, including delivery fees, may be subject to tax. The amount of the tax depends on things like the products ordered, delivery location, and the legal obligations of the Retailer.
Dalcom reserves the right to charge a service fee for Dalcom’s administrative costs. If a service fee is charged by Dalcom you will be made aware of any such service fees and such fees will be collected by Dalcom.
In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Dalcom reserves the right to initiate an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Dalcom’s designated payment processor, using the preferred payment method designated in your account. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.
6. Returns, refunds, and exchanges
Retailers and the laws in your state determine whether a return, refund or exchange is available to you. For example, you may be able to return a tainted or damaged product for a refund or credit, or exchange it for something else. In some states, you can exchange a product you bought (or received as a gift) if you want something else. Dalcom makes no representations concerning your ability to return a product.
7. Promotional and referral codes
Dalcom and Retailers, at their sole discretion, may make promotional offers available to you. You agree that promotional offers: (a) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (b) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Dalcom; (c) are subject to the specific terms that Dalcom and Retailers establish for such promotional offer; (d) cannot be redeemed for cash or cash equivalent; and (e) are not valid for use after the date indicated in the offer or one year.
Dalcom and Retailers reserve the right to modify or cancel an offer at any time. If you attempt to evade restrictions on offer redemption, Dalcom and Retailers may decline to redeem your code.
8. Changes to orders
If you wish to change your order for any reason after it has been placed, you may contact our Customer Experience Team, but we cannot guarantee that your changes will be accepted by the Retailer. If they are accepted, you will be responsible for any difference in charges and fees resulting from the change(s).
9. ID verification; other safety checks
It is the responsibility of the Retailer and any delivery provider they use to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish you with alcohol. They may require a valid form of photo identification with birthdate and a signed acknowledgment confirming acceptance at the time of pick-up or delivery. If they cannot verify your age or identity, if you appear intoxicated, or if the situation is otherwise unsafe or inappropriate (for example, you are 25 but appear to be in the company of only 18 year olds), they may refuse to furnish you with alcohol.
Alcohol cannot be left unattended—someone 21 or older must be present to accept and sign for it. If a Retailer is unable to deliver your product for this or a similar reason, the Retailer may charge a restocking fee (see Section 7b). Subsequent delivery attempts are at the discretion of the Retailer and are subject to redelivery fees (see Section 7b).
If we believe that your order is fraudulent or unlawful, we may alert the Retailer and suspend your use of the Platform.
10. Retailer right to refuse
Retailer right to refuse, cancel and adjust orders
A Retailer may refuse, cancel or adjust your order for any reason. If the product you want is not available, the Retailer will notify you and offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.
Some Retailers limit where they deliver (for example, some Retailers will not deliver to hotels and restaurants). If a Retailer policy prohibits delivery to your address, the Retailer will notify you, cancel your order and issue a refund.
Sometimes the law requires Retailers to limit the number or type of product(s) in your order. If this happens, the Retailer will notify you and offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.
Retailer right to refuse multiple delivery attempts and charge restocking and re-delivery fees
A Retailer or their delivery provider may refuse to deliver your order if they believe that furnishing alcohol to you or the person accepting the delivery on your behalf is illegal, unsafe or inappropriate. If a delivery cannot be made for this or any other reason, you may be charged a restocking fee. Subsequent delivery attempts are at the discretion of the Retailer and are subject to redelivery fees.
11. Errors
Sometimes product information—such as images, descriptions, availability, pricing and reviews—contains errors. If a Retailer identifies such an error, they will notify you and either offer a reasonable substitute or refund your money. If you accept the substitute, the order total will be adjusted accordingly.
If you receive a product that is not as described (or that you did not order), your sole remedy is to notify the Retailer and the Retailer will in its sole discretion either allow you to return the unused product (within the time period specified by the Retailer) for a refund or provide you with a reasonable substitute. If you accept the substitution, the order total will be adjusted accordingly.
12. Gift orders
When you send a gift order, provide the full name, email address, delivery address and phone number of the gift recipient. If you choose to keep the gift a surprise, we will not inform your gift recipient of the order, and you assume the risk that they will not be present to receive the order, including any redelivery or restocking fees. If you choose to notify your gift recipient of the gift, they will receive a message informing them of their gift and have the opportunity to schedule the delivery or pick the gift order up from the Retailer (the name of the Retailer will be shown on the gift order notice). If permitted by the Retailer, the gift recipient can also designate someone to pick up or receive the gift on their behalf.
Your gift recipient or their designate may be required to present a valid form of photo identification with birth date and a signed acknowledgment confirming acceptance at the time of pick-up or delivery. As with any order, a Retailer (or their delivery provider) may refuse or cancel a gift order or delivery for any reason.
13. Platform ownership, license, and access
The Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the "Content") is owned by or licensed to Dalcom. The Platform and the Content are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to Dalcom
We grant you a limited, personal, nonexclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Platform. You may use the Platform only as permitted by these Terms and law. All rights not expressly granted in these Terms are reserved. You may not resell or otherwise make commercial use of the Platform, the Content, or the Services; collect and use any product listings, descriptions, or prices; make any derivative use of the Platform, the Content, or the Services; download, copy, or otherwise use account information for the benefit of any third party; use data mining, robots, or similar data gathering and extraction tools; or otherwise misuse the Platform. This license will terminate if you do not comply with these Terms.
14. User content
User content
Dalcom may, in its sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Dalcom textual, audio, and/or visual content and information, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Dalcom, you grant Dalcom a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Dalcom's business and on third party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Dalcom the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Dalcom's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Dalcom in its sole discretion, whether or not such material may be protected by law. Dalcom may, but shall not be obligated to, review, monitor, and remove User Content, at Dalcom's sole discretion and at any time and for any reason, without notice to you.
Retailer and product reviews
You may be asked to rate and post reviews of Retailers or products ("Reviews"), which will be considered User Content. Reviews are not endorsed by Dalcom and do not represent the views of Dalcom. Dalcom shall have no liability for Reviews or for any claims for economic loss resulting from such Reviews. Because we strive to maintain a high level of integrity with respect to Reviews posted or otherwise made available through the Services, you agree that: (i) you will base any Review on first-hand experience with the Retailer or product; (ii) you will not provide a Review for any Retailer or product for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit a Review in exchange for payment, free food items, or other benefits from a Retailer or product; (iv) any Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your Review will comply with these Terms. If we determine, in our sole discretion, that any Review could diminish the integrity of the Reviews or otherwise violates these Terms, we may remove such Reviews without notice.
15. Copyright dispute policy
Please review our Copyright Dispute Policy to report potentially infringing content to us.
16. Communications and text messages
When you use the Services, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Services, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Your voluntary provision to Dalcom of your cell phone number represents your consent that Dalcom, Retailers with which you place an order, delivery drivers, and delivery services may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes. When you provide your phone number to Dalcom, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from Dalcom at any time. To revoke your consent to receiving SMS or MMS messages from Dalcom, you must reply “STOP” from the mobile device receiving the messages.
If you unsubscribe from receiving text messages from Dalcom, you may continue to receive text messages for a short period while Dalcom processes your request(s). If you change or deactivate the phone number you provided to Dalcom, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Dalcom’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
17. App stores
You acknowledge and agree that the availability of the Platform may be dependent on the third party from which you download the Dalcom app, e.g., the Apple iPhone or Android app stores ("App Store"). You acknowledge and agree that these Terms are between you and Dalcom and not with the App Store and that Dalcom is responsible for the provision of Services as described in these Terms. However, if you downloaded the Dalcom app from the Apple App Store, Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple shall have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. These Terms incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and these Terms, these Terms will control.
18. Other third-party offerings
The Platform may be made available or accessed in connection with other third-party services and content (including advertising) that Dalcom does not control. Once you click on a link to third party services or content, you will be subject to the terms and conditions and privacy policy of that website, destination, or third-party service provider. Dalcom will not warn you that you have left the Platform or that you are subject to the terms and conditions (including privacy policies) of another website, destination, or third-party service provider. You use all links in third party websites and advertisements at your own risk as these are not part of the Services and are not controlled by Dalcom. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Dalcom does not endorse such third-party services and content and in no event shall Dalcom be responsible or liable for any products or services of such third party providers.
19. Dispute resolution
PLEASE READ THIS “DISPUTE RESOLUTION” SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT.
Informal dispute resolution procedure.
A dispute might arise between you and Dalcom. If that happens, Dalcom is committed to working with you to reach a reasonable resolution. For any issue or dispute that arises between you and Dalcom, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: legal@Dalcom.com. For any dispute that Dalcom initiates, we will send our written description of the dispute to the email address associated with your account. The written description must be on an individual basis and provide at least the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought.
You and Dalcom then agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party's counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. If the dispute is not resolved satisfactorily through this informal process within sixty (60) days after receipt of the written description of the dispute, you and Dalcom agree to the further dispute resolution provisions below.
The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Failure to engage in this process could result in the award of fees against you in arbitration.
Mutual arbitration agreement.
You and Dalcom agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of these Terms (including their formation, performance, and breach) or payments by or to Dalcom, or that in any way relate to the provision or use of the Platform or Services, your relationship with Dalcom, or any other dispute with Dalcom, shall be resolved exclusively through binding arbitration in accordance with this Section 19 (the "Agreement"). This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior Agreement as well as claims that may arise after the termination of this Agreement. This Agreement is governed by the Federal Arbitration Act ("FAA") in all respects, and evidences a transaction involving interstate commerce. You and Dalcom expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in this Section 19(b), the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and this Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the parties' decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction; (ii) bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action. For clarity, this "Dispute Resolution" provision does not alter, amend, or affect any of the rights or obligations of the parties to any Dalcom Delivery Partner Agreement.
You and Dalcom agree to submit to the personal jurisdiction of any federal or state court in Greensboro, North Carolina, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in Section 19(c) below, if any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PRE-HEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND Dalcom ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Class action and collective relief waiver.
YOU AND Dalcom ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT IN SECTION 19(g) BELOW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED ON A CLASS, JOINT, COLLECTIVE OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF). EXCEPT AS SET OUT IN SECTION 19(g) BELOW, UNLESS BOTH YOU AND Dalcom OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT PRESIDE OVER ANY FORM OF ANY CLASS, JOINT, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING ANY DECLARATORY OR INJUNCTIVE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE PROCEEDING.
This Class Action and Collective Relief Waiver and the provisions in Section 19(g) are an essential part of this "Dispute Resolution" section, and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Dalcom may arbitrate such claim or dispute. Notwithstanding the foregoing, if a court or arbitrator (or where applicable, JAMS) determine that either the Class Action and Collective Relief Waiver or the provisions in Section 19(g) are not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or Dalcom from participating in a class-wide settlement of claims.
Arbitration rules.
The arbitration will be administered by JAMS and resolved before a single arbitrator. If JAMS is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this "Dispute Resolution" provision, JAMS will administer the arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in each case applying the rules and procedures in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class or representative actions. You can find the JAMS rules and procedures here at this link. The Applicable JAMS rules and procedures are available at https://www.jamsadr.com/adr-rules-procedures/ or by calling JAMS at (800) 352-5267.
Initiating arbitration.
Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims. A party who desires to initiate arbitration must deliver to JAMS and the other party a demand for arbitration which satisfies the following requirements: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration (if you are seeking arbitration, you must provide the email address associated with your Dalcom account); (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and a good-faith calculation of the amount in controversy (requests for injunctive relief or attorneys' fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); (4) the party's original signature; and (5) the party's portion of the applicable filing fee. If the party seeking arbitration is represented by counsel, the demand for arbitration must also include counsel's name, firm, telephone number, mailing address, email address, and original signature.
If you are initiating arbitration, hard-copy service of the demand to Dalcom shall be made in accordance with JAMS's rules and procedures to the following address: Dalcom Consulting Inc., Attn: Legal, 8D Oak Branch Dr., Greensboro, NC 27407, and a copy of the same shall also be emailed to legal@Dalcom.com. If Dalcom is initiating arbitration, it will serve a copy of the demand to the email address associated with your Dalcom account, as well as in hard copy if Dalcom knows your mailing address.
The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. Where a party is represented by counsel, counsel's signature on the demand for arbitration or any other paper submitted to JAMS or the arbitrator constitutes a certification that such paper complies with the standard set forth in Federal Rule of Civil Procedure 11(b). The arbitrator has the right to impose sanctions in accordance with the JAMS rules and procedures for any claims or submissions the arbitrator determines to violate such standard, as well as for a party's failure to comply with the Informal Dispute Resolution Procedure contemplated by this Agreement.
Arbitration location and procedure.
Unless you and Dalcom otherwise agree, if you are a resident of the United States the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States the arbitration shall be conducted in Greensboro, North Carolina, United States of America. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Dalcom submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable JAMS rules and procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited, cost-efficient nature of the arbitration. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Dalcom, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
Batch arbitration.
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to JAMS (or another arbitration provider selected in accordance with Section 19(d) if JAMS is unavailable) against Dalcom within reasonably close proximity, the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable JAMS rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Dalcom and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This "Batch Arbitration" provision shall in no way be interpreted as authorizing class arbitration of any kind. Dalcom does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section 19(g).
Arbitrator's decision.
The arbitrator will render an award within the time frame specified in the applicable JAMS rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Agreement. The arbitrator's award of damages and/or other relief must be consistent with section 19(c) above and also must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
Fees.
Pursuant to the applicable JAMS Rules and Consumer Arbitration Minimum Standards, you will be required to pay $250 to initiate an arbitration against Dalcom. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Dalcom to pay the portion of that fee that exceeds the cost of filing suit. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Dalcom will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $15,000. For claims above $15,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorneys’ fees in certain cases.
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS's Rules where it deems appropriate (including as specified in Section 19(g)), provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 19 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
Right to opt-out of arbitration.
Dalcom's updates to these Terms do not provide you with a new opportunity to opt out of arbitration if you agreed to a previous version of the Terms and did not validly opt out of arbitration. Dalcom will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms. If you create a Dalcom account for the first time on or after Nov 14, 2021, you may opt out of arbitration. To opt out, you must notify Dalcom in writing no later than 30 days after first becoming subject to the Dispute Resolution provisions of these Terms. Your notice must include your full name, mailing address, the email address associated with your Dalcom account, a clear statement that you want to opt out of this Mutual Arbitration Agreement, and your original signature. The notice cannot be signed by your attorney, agent, or other representative, and you may only opt out on behalf of yourself individually. You must send your opt-out notice by U.S. Postal Service certified mail to: Dalcom Consulting Inc, Attn: Legal, 8D Oak Branch Dr., Greensboro, NC 27407.
If you opt out of this Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with Dalcom or may enter into in the future with Dalcom. If you do not timely opt out of this Agreement, such action shall constitute mutual acceptance of the terms of this Agreement by you and Dalcom.
Changes.
Dalcom will provide 30 days' notice of any changes to this "Dispute Resolution" section, but any such changes will not apply to any individual claim(s) of which Dalcom already has actual notice. If Dalcom changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Platform or Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Dalcom written notice of such rejection by certified mail to: Dalcom Consulting Inc, Attn: Legal, 8D Oak Branch Dr., Greensboro, NC 27407, or by email from the email address associated with your account to: legal@Dalcom.com, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. If you reject changes pursuant to this paragraph and were already bound by an existing agreement to arbitrate disputes under a previous version of the Terms, then that existing arbitration agreement shall remain in full force and effect.
20. Disclaimer of warranties
THE PLATFORM AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." Dalcom DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, Dalcom MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM AND SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE PLATFORM AND SERVICES, OR THAT THE PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Dalcom DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF ANY THIRD PARTY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM OR SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Dalcom DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS INCLUDING RETAILERS, DELIVERY SERVICES, AND DELIVERY DRIVERS. THIRD PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF Dalcom.
Dalcom DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY THE PLATFORM OR SERVICES. Dalcom CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, SERVICES, OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
21. Limitation of liability
Dalcom SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE PLATFORM OR SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF Dalcom, EVEN IF Dalcom HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Dalcom SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE PLATFORM OR SERVICES OR YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF Dalcom HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Dalcom SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND Dalcom'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT RETAILERS, DELIVERY SERVICES, AND DELIVERY DRIVERS ARE NOT OSTENSIBLE AGENTS, APPARENT AGENTS, ACTUAL AGENTS, OR EMPLOYEES OF Dalcom.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, Dalcom’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON Dalcom’S CHOICE OF LAW PROVISION SET FORTH BELOW.
22. Indemnification
You agree to indemnify and hold Dalcom and its affiliates and their officers, directors, employees, and agents harmless from and against any and all actions, claims, demands, losses, liabilities, costs, damages, and expenses (including attorneys' fees), arising out of or in connection with: (a) your use of the Platform and Services or goods obtained through your use of the Platform and Services; (b) your breach or violation of any of these Terms; (c) Dalcom's use of your User Content; or (d) your violation of the rights of any third party, including Retailers, delivery services, and delivery drivers.
23. Applicable law
The laws of the North Carolina, excluding its conflicts of law rules, govern these Terms to the extent not preempted by The Federal Arbitration Act. The state and federal courts located in North Carolina shall have jurisdiction over all claims or disputes that are not subject to arbitration. Solicitations, offers, advertisements and communications are void where prohibited.
You must comply with any local, state or national laws applicable to your use of the Platform and Services, such as rules and regulations regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages. You must comply with all applicable U.S. or other export and re-export restrictions.
24. Notice
Where Dalcom requires that you provide an e-mail address, you are responsible for providing Dalcom with your most current e-mail address. In the event that the last e-mail address you provided to Dalcom is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, Dalcom's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Dalcom by sending an email to legal@Dalcom.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by Dalcom.
25. Other terms
You may not assign these Terms without Dalcom's prior written approval. Dalcom may assign these Terms without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of Dalcom's equity, business or assets; or (c) a successor by merger. Any purported assignment by you in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Dalcom or any third party as a result of these Terms or use of the Platform and Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Dalcom's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Dalcom in writing.
26. Updates
Dalcom may make changes to these Terms from time to time. If Dalcom makes changes, it will provide you with notice of such changes, such as by sending an email, providing a notice through the Platform, or updating the date at the top of these Terms. Unless Dalcom says otherwise in its notice, the amended Terms will be effective immediately and your continued access to and use of the Platforms after Dalcom provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using the Platform.