Last Updated: June 15, 2022
- General Terms and Conditions
- Registration, Accounts, Passwords and Security
- Intellectual Property and Licenses
- Your Responsibilities
- Mode Points; Bonus Bucks
- Consent to Electronic Communications
- Influencer and Referral Program Rules
- Content Submitted to the Service
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
- Term and Termination
- Disclaimer of Warranty
- Limitation of Liability
- Third Party Disputes
- Force Majeure
- Indemnification and Release
- Third Party Services
- Dispute Resolution
- Governing Law; Choice of Forum
- Open Source Software
- Notice Regarding Apple
Welcome, and thank you for your interest in Mode Mobile, LLC.
Mode Mobile, LLC (together with any affiliates, the “Company,” “Mode,” “we,” “us” or “our”) owns and operates a number of mobile apps and interactive services, including Mode’s Earn App (the “Mode Apps” or “Apps”)). These Terms of Service (“Terms”) apply to the Mode Apps and to all of the features, mobile applications, emails, online services and other functionalities available via or related to the Mode Apps.
These Terms constitute a binding contract between you, an individual user (“you”) and the Company governing your use of the Service (as defined below). BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MUST NOT ACCESS OR USE THE SERVICE.
Material Terms: As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the Service is provided “AS IS” without warranties of any kind and Mode’s liability to you is limited;
- we will resolve disputes arising under these Terms through binding arbitration. By accepting these Terms, as provided in greater detail in Section 17 of these Terms, you and Mode are each waiving the right to a trial by jury or to participate in a class action; and
- if you are using the App (as defined below) on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below
1. General Terms and Conditions.
1.1 Service Description. The “Service” consists of Mode’s website located at https://modemobile.com (the “Website”), the Mode Apps, and all other online properties provided by Mode or any of its affiliates, as each may be updated, relocated, or otherwise modified from time to time, including through networks, embeddable widgets, downloadable software, and mobile device applications, and all intellectual property contained therein. The Service presently enables or in the future may enable Users (as defined in Section 2.1) to access audio only, audio visual and literary content, including when any of the foregoing are made available through Third Party Services (as defined in Section 16) (collectively, “Content”) via streaming for real-time listening and via the use of a record feature provided for personal, time-shifted future listening. The Service may provide an information location tool and presently provides an audio guide service offering access to a selection of indexed radio stations, podcasts, and other streaming content from Third Party Services who are solely responsible for the content included in their transmissions. The Service may include a functionality that permits Users to obtain Products (as defined in Section 5.3) solely for redemption on the Service via the use of Points (as defined in Section 5.1) for the time, attention, and data arising from, during and between User’s consumption of Content (e.g., the viewing of or listening to Content). The Service may also permit Users to record, save, and share certain Content, including by linking the User’s Account (as defined in Section 2.1) to accounts on third-party platforms. To the extent a functionality described herein is not presently provided by Mode, any Terms specifically governing such functionality will not apply until such functionality is made available to you. Nothing in this Service Description guarantees that any functionalities described herein will be made available by Mode at any time or in all territories where the Service is available, and Mode reserves the right to not implement or terminate any implementation of any functionality at any time for any and all users and in all or some territories without notice and without any liability to you. But we aim to offer you some great functionalities so please visit the Service often to see what new and exciting things we provide.
1.2 Changes to these Terms. You understand and agree that Mode may change these Terms at any time without prior notice. Mode will endeavor to provide you with prior notice when there are any material changes, and may require that you subsequently take an affirmative action acknowledging agreement to the revised Terms before continuing to access the Service. You may read a Mode, effective copy of these Terms at any time at https://modemobile.com/terms. The revised Terms will become effective at the time of posting on the Service, and your use of the Service after such time will constitute your acceptance of the revised Terms. If any change to these Terms is not acceptable to you, then your sole remedy is to stop using the Service and terminating your Account (as defined in Section 2.1). Notwithstanding the preceding sentences of this Section 1.2, no revisions to these Terms will apply to any dispute between you and Mode that arose prior to the effective date of those revisions.
1.3 Additional Terms. We may require you to agree to additional terms and/or policies that we make available to you from time-to-time in connection with your use of the Service, including, without limitation, any such terms that apply to contests that we run on the Service (“Additional Terms”). Any such Additional Terms are hereby incorporated into and subject to these Terms, and, absent express language to the contrary, these Terms will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
1.4 Consideration. Mode will provide you with access to the Service for free. In return for enjoying free access to all or any portions of the Service, you acknowledge and agree that Mode may generate revenues, increase goodwill or otherwise increase the value of Mode from your use of the Service, including, but not limited to, through the collection of data and by displaying or performing advertising of any form (e.g., audio-only, display, audiovisual), and, except for your right to earn Points for use of the Service, you will otherwise have no right to share in any such revenues, goodwill or value whatsoever. Mode in its sole discretion may require the exchange of Mode Points to access certain features on the Service. Mode will provide you with advance notice of any such changes or the exchange of Mode Points before they take effect.
1.6 Links to Third Party Sites. You may be transferred to online merchants or other third party sites through links or frames from your use of the Services, including through direct offers or our offer wall. The Services do not sell any goods or services to consumers and nothing in the Services shall be construed as an offer to sell anything or enter into any kind of business relationship. Any purchases you make will be through other websites and from other companies. You are cautioned to read such websites' terms and conditions and all policies, including policies regarding sales, returns, warranties and privacy before using such sites in order to be aware of the terms and conditions of your use of such sites. Be sure to carefully evaluate and investigate such sites on your own to your satisfaction.
You are also cautioned to carefully read the terms and conditions of any coupons, specials, sweepstakes, promotions, sales or other offers from these merchants. Mode shall not be responsible for any inaccuracies; misrepresentations; product or service liability; offensive, infringing, libelous or illegal materials; lack of availability of other sites, information, promotions, products, or services; viruses or other computer problems resulting from use of such sites; or any liabilities resulting from the terms and conditions of other sites. Mode shall not be responsible for the timing or operation of any expiration dates of coupons, promotions, discounts or other offers published on the Services, which are under the sole and exclusive control of the online merchants or third party sites to which you will be transferred from the Services. Mode does not guarantee any content on such sites or anything offered by third parties, including but not limited to prices, promotions, products, or services.
These other sites are not under the control of Mode, are not monitored or reviewed by Mode, and Mode is not aware of the contents of such sites. Mode does not sponsor, endorse, or recommend these sites and makes no representations or warranties of any kind with regard to any sites, their terms and conditions of use or service, or the way they may collect, save, store, and use information, including your personally identifiable information. You acknowledge that Mode is not responsible for the products, services, accuracy, copyright compliance, legality, decency, or any other aspect of the contents or any transmissions received through such sites. These sites may contain information or material that is illegal, unreasonable or that some people may find inappropriate or offensive. The inclusion of a link or frame to any site does not imply endorsement of that site by Mode or its advertisers or licensors, or any association with its operators, and is provided solely for your convenience. You should review the terms and conditions of use or service of each website you visit. Linking to any service or site is at your sole risk.
If you have any complaint with such sites, contact that site directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
1.7 Jurisdictional Issues. The Service is controlled and operated by Mode from its offices in the State of Illinois. Mode makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
1.8 Mobile Services. The Service is or may be made available through computers, connected mobile devices (e.g., phones, tablet computers), and other connected devices (e.g., smart watches, set-top box, etc.) (collectively, “Mobile Services”). When using the Service through Mobile Services, your Internet Service Provider (“ISP”) or mobile carrier’s normal data, messaging and other fees and rates will apply, and you are solely responsible for paying such fees and rates. Further, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. You are therefore solely responsible for confirming with your ISP or mobile carrier whether the Mobile Services are available to you and your devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and what the cost will be to you for the Mobile Services.
1.9 Messages. You may be able to send messages to others through certain functionality on the Service, including inviting your friends to use the Service by sending them a text message through your mobile device. If you choose to invite your friends, we may ask you to provide us with access to certain contact information in your mobile device’s address book. You represent and warrant that: (i) you will only send messages to others who have given you their express consent to receive messages; (ii) you, and only you, are responsible for sending messages and Mode merely acts as a technology platform; and (iii) you will indemnify and hold Mode harmless from any and all claims arising out of your messages. You are responsible for all fees and charges associated with your messages. If a recipient of messages you send requests that we prevent you from sending additional messages to them through the Service, then we will abide by such recipient’s request and block you (and other users of the Service) from sending messages to such persons.
1.10 Eligibility. IN THE UNITED STATES, THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. FOR USERS OUTSIDE OF THE UNITED STATES, THE SERVICE IS NOT FOR PERSONS UNDER THE AGE FOR WHICH RULES APPLY ON AN AGE-BASED BASIS FOR THE COLLECTION OF DATA (“Restricted Age”). IN ALL CASES, THE SERVICE IS NOT FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY MODE. IF YOU ARE UNDER 13 YEARS OF AGE IN THE UNITED STATES OR THE RESTRICTED AGE IN THE TERRITORY WHERE YOU RESIDE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age and entered into these Terms on your behalf.
2. Registration, Accounts, Passwords and Security.
2.1 Accounts; Mode Members. You may access some parts of the Service without affirmatively registering, in which case an interim membership will be automatically created for you if you open one of our Apps, but in order to access all the features of the Service, you must affirmatively register for an account on the Service (an “Account”). When you create an Account, you must complete the registration process by providing Mode with Mode, complete, and accurate information, as prompted by the applicable registration form. Any person who accesses and/or uses the Service, whether on his or her own behalf or on behalf of any third party, will be referred to herein as a “User,” and Users who have registered Accounts are referred to as “Mode Members.”
2.2 Accuracy of Information. You acknowledge that in the event you provide any information to Mode that is untrue, inaccurate, out of date, or incomplete, Mode may terminate these Terms and your continued access to and use of the Service at any time and without any liability to you. This includes having a lapsed email address on file with Mode. If we attempt to communicate with you via email and the message is rejected as undeliverable, then we may suspend or terminate your account in our sole discretion and without any liability to you. So please be sure to keep your information Mode.
2.3 Credentials. As part of the registration process, your account will be registered by the basic information you provide to us, including your name and email address. We reserve the right, in our sole discretion, to disallow, cancel, remove, suspend or terminate your Account, without liability to you or any third party, and with or without prior notice to you including, without limitation, if activities occur on your Account that we believe would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Mode, or violate any applicable laws or regulations. You are entirely responsible for maintaining the security and confidentiality of your Account and password. You agree to notify Mode immediately of any unauthorized use of your Account or any other breach of security. To notify us, contact us at email@example.com. You are responsible for all use of the Service occurring under your Account. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Mode will not be liable for any loss that you may incur as a result of someone else using your Account or password, either with or without your knowledge. You may be held liable for any losses incurred by Mode or another party due to someone else using your Account or password.
3. Intellectual Property and Licenses.
3.2 Trademarks. You acknowledge that Mode has acquired, and is the owner of, the Mode trademarks, service marks, design marks, or other indicia of origin (“Marks”) displayed on the Service. You will not, at any time or for any reason, challenge the validity of, or Mode’s ownership of, the Marks, and you waive any rights you may have at any time to do so. All goodwill generated from the use of the foregoing Marks by you will inure exclusively to the benefit of Mode. All trademarks, service marks, design marks, or other indicia of origin shown on the Service but not owned by Mode are the property of their respective owners (“Third Party Marks”). Except as otherwise permitted by law, you may not use the Marks or the Third Party Marks to disparage Mode or the applicable owner of such Third Party Marks, Mode’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Marks or Third Party Marks.
3.3 License. Subject to your complete and ongoing compliance with these Terms, Mode hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to access and use the Service, solely for your non-commercial use and strictly in the manner set forth in these Terms. Unless otherwise specified in writing, the Service is solely for your personal use and not for resale. Mode reserves the right at all times and without notice to: (i) restrict and/or terminate your access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion, features or functionalities thereof). You acknowledge and agree that, except as required by law, Mode will not be liable to you or to any third party for any modification, suspension or discontinuance of all or any portion of the Service. If you are dissatisfied with any changes to the Service, then your sole option is to discontinue or terminate your use of the Service as described herein.
4. Your Responsibilities.
You may use the Service solely for lawful purposes and solely as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, Mode Member Accounts, or computer systems or networks, through hacking, password mining, or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
4.1 use, copy, install, transfer, or distribute the Service, except as specifically permitted by these Terms;
4.2 modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or its content;
4.3 remove or alter any copyright, trademark, or other proprietary rights notices contained in or on the Service or in or on any content (including Content) or other material obtained through the Service or the use of the Service;
4.4 create Mode Member Accounts by automated means or under false or fraudulent pretenses;
4.5 use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process, or means to access, retrieve, or index any portion of the Service or any Content available through the Service;
4.6 use any automated means or create multiple Accounts to engage with the Service in an attempt to artificially increase your consumption of Content on the Service or to obtain Mode Points;
4.7 probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
4.8 reformat, mirror, or frame any portion of the web pages or web services that are part of the Service;
4.9 express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
4.10 transmit (i) any content or information that is abusive, defamatory, libelous, fraudulent, obscene, threatening, unlawful, or otherwise objectionable (“Objectionable Content”), or infringes on our or any third party’s intellectual property or other rights; (ii) any material, non-public information about individuals or companies without the authorization to do so; (iii) any trade secret of any third party; and/or (iv) any advertisements, chain letters, investment opportunities, pyramid schemes, solicitations, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
4.11 transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
4.12 harvest or collect information about other Users without their prior written consent;
4.13 undertake, cause, permit, or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including content, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the Service’s authorized features, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Mode;
4.14 access, tamper with, or use non-public areas of the Service, Mode’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Mode’s providers;
4.15 harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Mode employees and other Users, through Objectionable Content or otherwise;
4.16 create a new Account with Mode, without Mode’s express written consent, if Mode previously disabled an Account of yours;
4.17 solicit, or attempt to solicit, personal information from other Users, except as permitted through the Service’s functionality;
4.18 restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users;
4.19 gain unauthorized access to the Service, to other Users’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
4.20 use the Service for any commercial purpose, except with Mode’s prior express written consent;
4.21 violate any applicable federal, state, or local laws, applicable regulations or these Terms;
4.22 use the Service for any illegal, inappropriate, and/or unauthorized conduct, including without limitation, using the Service to contact other Mode Users for sexual or other inappropriate purposes, or using the Service in violation of Mode’s or any third party’s intellectual property or other proprietary or legal rights;
4.23 use or access the Service to build a competing service; or
4.24 assist, encourage, or permit any person in engaging in any of the activities described above.
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms. We may disclose violations of these Terms to governmental authorities in our sole discretion in order to enforce our rights, the rights of third parties, or to prevent injury or harm to any person.
5. Mode Points; Bonus Bucks.
5.1 Introduction; Not Currency. In order to reward Users for certain activities on the Service and to enable Users to obtain certain premium Services, Mode, in its sole discretion, may offer Users the ability to purchase a license to our in-app virtual currency (“Mode Points” or “Points”) that may be used to acquire virtual goods and services solely within the Service. Mode Points earned on any of the Mode Apps will be credited to your Account, provided that the information supplied during the registration process for any Mode App is consistent with other Mode Apps. If you are receiving Mode Points in more than one Account, would like to link such Accounts, and Mode has not discovered suspicious or fraudulent activity on account of your use of multiple Accounts, please contact Mode at firstname.lastname@example.org (Reference: Linking Mode Accounts) for assistance. While we may use terms like “buy,” “purchase,” or “sell” in reference to Mode Points, such terminology is merely for convenience and does not mean that Mode Points has any particular value. When you earn Mode Points, you obtain a license to Mode Points, which operate as virtual currency solely within the Service, and Mode Points do not (i) have an equivalent value in fiat currency; (ii) act as a substitute for fiat currency; or (iii) earn interest. Mode only transmits Mode Points as required to provide the Service as described in these Terms, which does not include money transmission services.
5.2 Obtaining Mode Points. Mode may also allow you to obtain Mode Points: (i) when you consume advertisements in video, image, or audio form that appears before, during or after Content transmitted to you; (ii) performing Activities associated with a Rewards Program; (iii) when you provide data to Mode in the form of saves, votes, skips, or optional information such as your age, country or city, tastes and preferences, and answers to other survey questions; (iv) by referring others to the Service; (v) by creating User Content (as defined in Section 7.1) for the Service; and (vi) through such other methods as Mode may offer from time to time. If Mode offers you the opportunity to acquire Mode Points, and you accept such offer, Mode hereby grants you a non-exclusive, revocable, limited, non-transferable (except as expressly provided herein) right and license to use such Mode Points only in connection with the Service as permitted by us, subject to these Terms and your compliance with these Terms. Mode will credit to your Account any Mode Points acquired by you. Your license to use Mode Points will terminate upon termination of these Terms or your account and as otherwise provided herein, except as otherwise required by applicable law.
5.2.1 Lock-Screen & Charge-Screen Advertisements. Mode displays lock-screen and charge-screen advertisements on Android devices by default unless a User opts out of such functionality by updating the advertisement settings in the App. We offer this functionality to reward you for having installed the App on your mobile device. For so long as you enable the functionality to receive lock-screen and charge-screen advertisements, you will be eligible to earn a fixed number of Mode Points for every day on which lock-screen advertisements are enabled regardless of whether you view or engage with the lock-screen and charge-screen advertisements. Mode will determine the number of Mode Points provided in connection with the receipt of lock-screen and charge-screen advertisements in its sole discretion. You may find information on how many Mode Points you earn each day by reviewing your Mode Credit history in the App.
5.3 Redeeming Mode Points. Mode may offer an opportunity to redeem Mode Points for (i) gift cards for use with participating third party merchants, and (ii) hard goods offered directly by Mode (collectively, “Products”). We will, in our sole discretion, determine and communicate the availability and exchange rate for any Mode Points, which may be modified at any time. You must comply with any individual redemption limitations as indicated via the Service. We reserve the right to cancel, restrict or terminate Mode Points or the ability to redeem Mode Points for Products at any time for any reason. All Products are subject to availability. You may choose a Product that is still available for which you have accumulated sufficient Mode Points for redemption. Select the Product you wish to use and follow the instructions to complete the redemption process.
5.3.1 Third-Party Merchants. When you receive a Product, you will be able to utilize that Product in accordance with the terms and conditions of the third-party merchant and you will be bound by the terms and conditions of that merchant. If you would like information regarding any of third-party merchants and the terms and conditions that govern such Products, please contact us at email@example.com. You will indemnify and hold Mode harmless from any liability arising from your redemption of Mode Points for a Product or the use of any services accessed through the redemption of the Product. You are responsible for filing any claims with carriers for damaged or lost shipments. The redemption of Mode Points for any Products shall not transfer any intellectual property rights in any Products unless specifically noted.
5.4 Bonus Bucks. “Bonus Bucks” are a form of Service credit, where, upon receipt by a User, allows a User to accumulate Mode Points at an accelerated rate (“Accelerated Earning”) while consuming Content (i.e., streaming media content) on the Service only. Enhanced earning through a User holding Bonus Bucks in an Account does not apply to other forms of Points’ earning through the Service, including the completion of rewarded activities such as survey completion; consuming rewarded video, and completing tasks and offers on the offer wall contained in the Service.
5.4.1 A User is eligible to receive Bonus Bucks when redeeming Mode Points for gift cards and products. Each Bonus Buck will expire in thirty (30) day increments after the issue date depending on the number of Bonus Bucks held by a User in an Account. By way of example, if a User holds one Bonus Buck, Accelerated Earning will cease after 30 days; if a User holds two Bonus Bucks, Accelerated Earning will cease after 60 days; and so on. There is no limit on the number of Bonus Bucks that a User can hold in an Account at one time.
5.4.2 Mode reserves the right to discontinue Bonus Bucks and may modify these Terms at any time. To accumulate and keep Bonus Bucks, you must maintain an Account in good standing, as required under the “Registration, Accounts, Passwords and Security” section of these Terms. Unless required by law, Bonus Bucks are non-transferrable and are not redeemable for cash. If you have an Account, you can receive Bonus Bucks solely in connection with the redemption of Mode Points. Your Bonus Bucks cannot be resold or otherwise transferred. Your Bonus Bucks cannot be combined or merged with Bonus Bucks in another Account. Unauthorized or fraudulent use, resale or distribution of Bonus Bucks is prohibited. Mode reserves the right to cancel, revoke or otherwise prevent the issuance of Bonus Bucks in cases of mistake and in any suspected case of unauthorized or fraudulent use. In addition, notwithstanding anything to the contrary, if your account is not maintained with Mode information, it is a violation of these Terms, and you may forfeit any Bonus Bucks in your Account.
5.5 Restrictions. All redemptions of Mode Points are final, and Mode does not offer refunds for any Mode Points redeemed for the acquisition of Products, except as required by applicable law. Mode Points are not redeemable or exchangeable for fiat currency, monetary value, or convertible for other virtual currency from Mode or any other third party, except as expressly provided in these Terms or otherwise required by applicable law. You are expressly prohibited from transferring, assigning, selling, gifting, exchanging, trading, converting, leasing, sublicensing, renting, or distributing Mode Points, whether directly or through an intermediary, except through the Service and as expressly permitted by Mode. Mode Points are provided to you for entertainment purposes only unless otherwise expressly provided for in these Terms. Mode Points are not property, and you have no right, title or interest in any Mode Points.
5.6 Additional Limitations. Mode does not recognize or condone any third-party service that may be used to sell, exchange, transfer, or otherwise dispose of Mode Points, and Mode does not assume any responsibility for, and will not support, such transactions. Neither Mode nor any third party has any obligation to exchange Mode Points for anything of value, including, but not limited to, fiat currency, except as expressly provided in these Terms or otherwise required by applicable law. Mode makes no guarantee as to the nature, quality, or value of Mode Points or the availability or supply thereof.
5.7 Expiration of points.
5.7.1 Free and Promotional Points. Any unredeemed free or promotional Mode Points deposited into your Account will expire one year after such Mode Points are deposited into your Account.
5.7.2 Earned Points. Any unredeemed Mode Points deposited into your Account after January 15, 2019 on account of your use of the Service will expire one (1) year after such Mode Points are deposited into your Account.
5.7.3 Legacy Points. Any unredeemed Mode Points deposited into your Account prior to January 15, 2019 on account of your use of the Service will expire five (5) years after such Mode Points are deposited into your Account.
5.7.4 Status of Mode Points. If you have any questions regarding the status of your Mode Points, then please contact us at firstname.lastname@example.org.
5.8 Reserved Rights. Mode, in its sole discretion, may impose limits on the use of Mode Points, including, but not limited to, the amount that may be obtained or redeemed. You acknowledge and agree that Mode may engage in actions that may impact the perceived value or purchase price of Mode Points at any time, except as prohibited by applicable law. Except as otherwise prohibited by applicable law and except for the limited licenses granted under these Terms, Mode reserves and retains all rights, title, and interest in and to all Mode Points. Mode, in its sole discretion, has the absolute right to manage, modify, suspend, revoke, and terminate your license to use Mode Points without notice, refund, compensation, or liability to you, except as otherwise prohibited by applicable law.
6. Consent to Electronic Communications.
6.2 SMS Text Messages and; Push Notifications. When you register with Mode, Mode may send you an SMS text message containing a code in order to verify your phone number and may send SMS text messages and push notifications (“Messages and Notifications”) in order to keep you informed about the Service. By using the Service, you agree to receive Messages and Notifications regarding your use of the Service. SMS text messages are for informational purposes only. While Messages and Notifications are intended to enhance your use of the Service, you may (i) disable push notifications on your device; and/or (ii) reply to the message “STOP” to remove yourself from our text message database.
6.3 If you wish to remove yourself from any list (other than as set forth in Section 6.2), then please follow the unsubscribe instructions provided in any of our communications.
6.4 Depending on your Mode Carrier plan, you may incur charges for these Messages and Notifications and agree to not hold Mode liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of Mode, and that Mode is not responsible for any failure of warranty by any such third party.
6.5 Mode cannot control certain factors relating to message delivery. You acknowledge that, depending on your Carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
7. Mode Influencer and Referral Program Rules
From time to time, Mode may invite you to participate as an influencer (“Influencer”) or referrer (“Referrer”) in one of their Referral programs (“Mode Influencer and Referral Program”) to encourage people to use the Mode App. Participating in the Mode Influencer and Referral Program may enable you to earn Mode Points (“Referral Rewards”) by creating content that compels people to sign up for the Mode App.
Mode Influencer and Referral Program rules (the "Referral Rules") apply to Influencer programs that are administered solely by Mode. By accepting and sharing your referral link (“Referral Link”), you are agreeing to be bound by the Referral Rules. Any violation of the Referral Rules will not only prevent you from participating in any Mode Influencer and Referral Program (now or in the future), but could also result in the forfeiture or retraction of Mode Points or other rewards earned through the Services and even the deactivation of your account.
7.1 Referral Link
In order to participate in the Mode Influencer and Referral Program and obtain Referral Rewards, you must satisfy the following conditions:
a. Have an existing Account that is in good standing.
b. Create content that discusses and promotes the Mode App.
c. Share your content on your social media profiles (e.g., TikTok, YouTube, Instagram, etc.).
d. Add the Referral Link found on the “Invite” tab in the Mode App to the bio within your applicable social media pages and encourage your followers to hit the Referral Link.
With respect to your Referral Link and the Mode Influencer and Referral Program, you agree that you will not:
a. Attempt to secure referrals by spamming, bulk emailing, or sending large numbers of unsolicited emails, which, in each case, would include your Referral Link.
b. Use, display, or manipulate Mode intellectual property (such as Mode's logos, trademarks, and copyright-protected works) in any way, except as to identify yourself as a Mode user or Mode Influencer.
c. Create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include the word "Mode" or any of Mode's other trademarks or any words that are confusingly similar to Mode's trademarks.
d. Use Mode's trademarks as your social media profile picture or wallpaper or use any of Mode's copyright-protected works (such as graphics, photos, images, drawings, and screenshots from Mode's website or app) without Mode's express written permission.
e. Use automated systems or bots through any channel to distribute, post, or otherwise share your Referral Link.
f. Make misleading claims about Mode, use offensive/abusive content, create fake websites/webpages/social media profiles/apps, misrepresent your connection to Mode, or otherwise make any false or misleading statements to get people to use your Referral Link.
g. Use your Referral Link in any manner that violates the law or the rights of anyone else.
7.2 Eligibility: Influencers and Referred Users
Anyone may be an Influencer or Referrer who (a) is a legal resident of his/her country, (b) is of legal age where they live, and (c) has a Mode App account in good standing. However, Influencers and Referrers cannot have more than one Mode account.
To receive a Referral Reward for referring someone who becomes a registered user of the Mode App, your referred user must (a) be a new user of the Service; (b) meet the conditions Mode has for using the App, including, without limitation, agreeing to Mode’s Terms of Service and be at least the minimum age to use the Service in the territory where the referred user resides.
7.3 Earning Referral Rewards
Provided that an Influencer abides by the Referral Rules and the Terms governing use of the Mode Apps, an Influencer or Referrer should receive his/her Referral Reward after referred users use your Referral Link to sign up with Mode. Referral Rewards in the form of Mode Points will be reflected in your Mode Points balance. Please take note that redemptions from Mode Points accrued on account of the Mode Influencer and Referral Program may not be available for immediate redemption. In order to verify that Accounts established by your referred users are not created under false or fraudulent pretenses, it may take as long as thirty (30) days to confirm your entitlement to such Referral Rewards. To the extent that Mode establishes that fraud may exist with respect to your referred users, Mode will contact you in writing and reserves all of its rights under applicable law with respect to the foregoing.
Referral Rewards shall be calculated solely based on Mode’s accounting and shall be deemed final. The calculation of Referral Rewards shall take into consideration the level of usage, engagement and retention of a referred user. Mode reserves the right at any time to change the amount of Referral Rewards for referred users for any reason, including, with limitation, by-territory market changes that may affect the amount of revenue generated per user.
Mode will maintain a chart on its Apps delineating the amounts of Referral Rewards that you may be paid for each referred user. The requirements for receiving, and the amounts of, Referral Rewards are subject to change at Mode's sole discretion. Influencer Rewards in the form of Mode Points are not transferable, have no cash value, and may expire.
7.4 Influencer Content
By your participation in the Mode Influencer and Referral Program and your use of the Referral Link, you hereby grant Mode and its designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, and irrevocable right to reproduce, distribute, create derivative works of, publicly display, make available, retransmit from Third Party Services, and otherwise use and exploit all or any part of such (i) content that you create with respect to the promotion of the Mode App; and/or (ii) any other information used or created by an Influencer or Referrer in connection with the promotion of the Mode App, including, without limitation, an Influencer or Referrer’s (w) likeness, (x) activity, (y) Mode App earnings, and (z) number of Mode App referrals, in any media now known or hereafter developed (collectively,“Referral Content”), for the purposes of (i) advertising, marketing, and promoting Mode and the Service; and (ii) displaying and sharing your Influencer Content to other Users of the Service.
7.5 Termination & Changes
Mode reserves the right to change, end, or pause, in whole or in part, any Referral program at any time for any reason, including suspected fraud, abuse, or any violation of these Terms.
8. Content Submitted to the Service.
8.1 License. If we permit you to send or transmit to us information, images, media, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “User Content”), then, by uploading, posting, or transmitting (collectively, “Posting”) such User Content to any area of the Service, you hereby grant Mode and its designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, and irrevocable right to reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make available, retransmit from Third Party Services, and otherwise use and exploit (collectively, “Use”) all or any part of such User Content in any media now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Mode and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by these Terms, without compensation to you. Except as set forth in the foregoing sentence, no User Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. Mode may remove or alter any User Content at any time for any reason and without any liability to you. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any User. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or postings, or for any results obtained from the use of such information. Under no circumstances will Mode and/or its affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
8.2 Screening User Content. The opinions expressed on the Service by Users reflect solely the opinions of the Users who Post thereon and do not reflect the opinions of Mode. Mode does not guarantee the accuracy, integrity, appropriateness, availability or quality of any User Content, and under no circumstances will Mode be liable in any way for any User Content. Mode does not pre-screen any User Content, but you acknowledge and agree that we have the right (but not the obligation) to monitor the Service and User Content and to remove, disallow, block, delete, or disclose User Content and the circumstances surrounding its transmission to any third party in our sole discretion, including in order to operate the Service properly; to protect ourselves, our sponsors, and our Users; and to comply with legal obligations or governmental requests. If you believe an item of User Content violates these Terms or our other member policies, then please contact Mode immediately at email@example.com so that we can consider its editing or removal. We recommend that you save copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content.
8.3 Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS. You are solely responsible for your User Content and the consequences of Posting it on the Service. By Posting User Content, you represent, warrant, and covenant that: (i) you are the creator and owner of the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (ii) the Posting and Use of your User Content does not and will not (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, or libel any other person; or (C) require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; (iii) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party; and (v) unless you have received prior written authorization, your User Content specifically does not contain any confidential information of any third party. We reserve all rights and remedies against any Users who breach these representations and warranties.
9. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
9.1 Respect of Third Party Rights. Mode respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
9.2 Repeat Infringer Policy. Mode’s intellectual property policy is to (i) remove or disable access to material that Mode believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; (ii) remove any User Content uploaded to the Service by “repeat infringers”; and (iii) terminate the accounts of repeat infringers in appropriate circumstances. Mode considers a “repeat infringer” to be any User that has uploaded User Content or Feedback (as defined in Section 18) to or through the Service and for whom Mode has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Mode has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Mode’s own determination.
9.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Mode with the User alleged to have infringed a right you own or control, and you hereby consent to Mode making such disclosure. Your communication must include substantially the following:
9.3.1 A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
9.3.2 Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
9.3.3 Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mode to locate the material;
9.3.4 Information reasonably sufficient to permit Mode to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
9.3.5 A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
9.3.6 A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
9.4 Designated Agent Contact Information. Mode’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Mode Mobile LLC
ATTN: Justin M. Hines
One East Erie, Suite 525
Chicago, IL 60611
9.5 Counter Notification. If you receive a notification from Mode that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Mode with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Mode’s Designated Agent through one of the methods identified in Section 8.4 and include substantially the following information:
9.5.1 A physical or electronic signature of the subscriber;
9.5.2 Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
9.5.3 A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
9.5.4 The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Mode may be found, and that the subscriber will accept service of process from the person who provided notification under Section 8.4 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
9.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Mode in response to a Notification of Claimed Infringement, then Mode will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Mode will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Mode will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Mode’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Mode’s system or network.
9.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Mode] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
Mode reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
10. Term and Termination.
10.2 Termination. Mode may terminate your Account at any time for a breach of these Terms with or without notice. Notwithstanding the preceding sentence, if your Account has any Mode Points associated with it, then prior to termination of your Account, Mode may communicate with you about the termination and possible loss of your Mode Points. You hereby consent to our communicating with you in such circumstances and as otherwise set forth in these Terms.
10.4 Survival. The following Sections of these Terms will survive termination or expiration of these Terms: 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 2.2, 2.3, 3, 4, 5, 6, 7, 8, 10.4, 11-13 and 15-20.
11. Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMITTED BY LAW:
11.1 THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO, AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD PARTY INTERCEPTION AND MODIFICATION. Mode DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR NON-INFRINGEMENT; AND ANY WARRANTY ARISING OUT OF A COURSE OF DEALING, USAGE, OR TRADE. Mode DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE OR ANY CONTENT OFFERED THROUGH THE SERVICE, WILL BE SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Mode DOES NOT WARRANT THAT ANY OF THOSE WILL BE CORRECTED. NONE OF THE Mode PARTIES WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. Mode CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES, OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE OR THE INTERNET, OR FOR YOUR MISUSE OF ANY OF CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. Mode IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE SERVICE AND YOUR DEALING WITH ANY OTHER USER. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE PROPRIETARY MATERIALS, THE SERVICE, OR THE CONTENTS THEREOF IS AT YOUR SOLE RISK AND THAT Mode IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
11.2 ALL PRODUCTS ACQUIRED THROUGH THE REDEMPTION OF Mode Points ON THE SERVICE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. Mode HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS LISTED OR ACQUIRED THROUGH THE REDEMPTION OF Mode Points ON THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Mode HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. Mode MAKES NO WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT.
12. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW:
12.1 EACH USER IS SOLELY RESPONSIBLE FOR (I) HIS OR HER USE OF THE SERVICE; AND (II) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE. THE AGGREGATE LIABILITY OF THE Mode PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND WILL NOT EXCEED THE AMOUNT PAID BY YOU TO Mode FOR THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NONE OF THE Mode PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF Mode OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICE AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICE. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
13. Third Party Disputes.
Mode IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE Mode AND ITS AFFILIATES AND Mode’S AND ITS AFFILIATES’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND ASSIGNS (THE “Mode PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14. Force Majeure.
14.1 Mode will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Mode’s reasonable control, such as, by way of example and not limitation, strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action, in so far as such an event prevents or delays Mode in fulfilling its obligations hereunder.
15. Indemnification and Release.
15.1 To the fullest extent permitted by law, you will defend, indemnify, and hold the Mode Parties harmless against any loss or damage of any kind (including, without limitation, reasonable accounting and attorneys’ fees and lost revenues) arising from: (i) any and all breaches by you of these Terms or any representation, warranty, or covenant contained herein; (ii) any and all use of the Service, Proprietary Materials, Marks, and Third Party Marks; (iii) your User Content; and (iv) any and all claims and actions against Mode by other parties to whom you allow access to the Service.
15.2 We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
16. Third Party Services.
The Service may contain content or information about content, products, and services provided by third parties, and links (including, but not limited to, advertisements and sound recordings of musical works) to third party content or web sites (“Third Party Services”). This content and information and these links for Third Party Services are provided only as a convenience to Users, and may not be appropriate or suitable for all audiences. Mode does not review or control the content and information available from Third Party Services or these Third Party Services, and Mode does not make any representations or warranties, express or implied, regarding this content and information or these Third Party Services. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Mode with respect to any third party or its web site or content, or any information, products, or services provided by that third party. Mode is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever. YOU LISTEN TO AND CONSUME ALL CONTENT ON THIRD PARTY SERVICES AT YOUR OWN RISK, AND IF YOU ARE EASILY OFFENDED BY MATURE, CRUDE, RUDE OR INAPPROPRIATE CONTENT, THEN YOU SHOULD NOT USE THE SERVICE OR CHOOSE THE THIRD PARTY SERVICES YOU LISTEN TO CAREFULLY. THIS APPLIES EVEN MORE SO IF YOU ARE ACCESSING THIRD PARTY SERVICES WHILE IN THE PRESENCE OF MINORS. IF YOU REDEEM A GIFT CARD FOR A SUBSCRIPTION OR ACCESS TO A THIRD PARTY SERVICE, YOU ARE RESPONSIBLE FOR COMPLYING WITH THE REQUIREMENTS FOR ACCESS TO SUCH THIRD PARTY SERVICE. YOU INDEMNIFY AND HOLD Mode HARMLESS FROM ANY LIABILITY ARISING FROM YOUR USE OF THE THIRD PARTY SERVICE.
17. Dispute Resolution.
17.1 Generally. In the interest of resolving disputes between you and Mode in the most expedient and cost effective manner, you and Mode agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Mode ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
17.2 Exceptions. Despite the provisions of Section 16.1 above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim.
17.3 Arbitrator. Any arbitration between you and Mode will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Mode. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). Mode’s address for Notice is: Mode Mobile, LLC, One East Erie, Suite 525, Chicago, IL, 60611, United States of America. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Mode may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Mode must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Mode prior to selection of an arbitrator, then Mode will pay you the highest of the following: (X) the amount awarded by the arbitrator, if any; (Y) the last written settlement amount offered by Mode in settlement of the dispute prior to the arbitrator’s award; or (Z) $15,000.
17.5 Fees. If you commence arbitration in accordance with these Terms, then Mode will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Chicago, Illinois, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Mode for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions. YOU AND Mode AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN CLAIMS WHICH ARE NOT COVERED BY THIS SECTION 17). Further, unless both you and Mode agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if Mode makes any future change to this arbitration provision, other than a change to Mode’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Mode’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Mode. If you do not send such written notice, then your continued use of the Service following any such change means that you have consented to such change.
17.8 Enforceability. If Section 16.6 above is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Service.
18. Governing Law; Choice of Forum.
The laws of the State of Delaware, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Chicago, Illinois and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments, and suggestions. If you choose to contribute by sending Mode or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Mode, you agree that:
19.1 Mode has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
19.2 Feedback is provided on a non-confidential basis, and Mode is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
19.3 You irrevocably grant Mode perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
20.1 Entire Agreement; Variation. These Terms set forth the entire agreement between Mode and you with respect to the Service. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. Except as set forth in Section 1.2, these Terms may be changed only by a written amendment signed by an authorized agent of each party.
20.2 Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, then such provisions will be modified, or, if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby.
20.3 Relationship of Parties. Nothing herein will be deemed to create an employer-employee relationship between Mode and you, nor any agency, joint venture, or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
20.4 Waiver. No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
20.5 Headers. The Section headings are provided merely for convenience and will not be given any legal import.
20.6 Assignment. Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Mode and any attempt to do so will be null and void. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting any the App from your device prior to such disposition. However, Mode may assign or transfer these Terms at any time without your permission. These Terms will inure to the benefit of our successors and assigns.
20.7 Contact Us. If you would like to contact us in connection with your use of the Service, then please contact us by mail at Mode Mobile LLC, One East Erie, Suite 525, Chicago, IL, 60611, United States of America, and by email at firstname.lastname@example.org.
21. Open Source Software.
The Apps may contain certain open source software. Each item of open source software is subject to its own applicable license terms, which can be found here.
22. Notice Regarding Apple.
You acknowledge that these Terms are between you and Mode only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Mode provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.