Updated March 15, 2023

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 10 TO RESOLVE ANY DISPUTE RELATED TO THE MODE EARN CLUB OR ANY SERVICE PROVIDED BY MODE.

These Mode Earn Club (as defined below) terms and conditions (“Terms and Conditions” or “Agreement”) shall govern the program relationship between an individual (the “Member”) who agrees to participate in Mode Earn Club (as defined below) and Mode Mobile, LLC (together with its affiliates and subsidiaries, including Mode Phone, LLC, “Mode ”) (collectively, the “Parties”).  To the extent applicable, when a Member elects to receive a Mode Earn Phone as part of his/her Mode Earn Club membership, this Agreement includes, and incorporates by reference, the Warranty, Return & Exchange Terms (https://modephone.com/pages/warranty)​, and all amendments and addenda to this Agreement. Further, this Agreement also includes, and incorporates by reference, Mode’s Privacy Policy (https://modephone.com/privacypolicy).

By becoming a Member, you agree to be bound by these Terms and Conditions as they are in their most current form. 

1. Mode Earn Club Summary.

Through its Mode Earn Club, Mode offers special rewards programs for Members, as more thoroughly explained herein in these Terms and Conditions (“Mode Earn Club”). Mode Earn Club allows a Member enjoy benefits included those listed below:

• Mode Earn Club Max (Primary Offering)
• Provides Members enhanced earning opportunities, curated deals and offers, recurring sweepstakes entries, expedited rewards payouts on the Mode Earn App and much more.
• Members are eligible to receive a free Mode Earn Phone after 6 months of continuous membership and a new Mode Earn Phone replacement every eighteen (18) months, provided that a member has maintained a continuous Mode Earn Club Max membership.
• Members are able to earn Cash Back on Qualifying Purchases at select third party retailers.
• In certain limited circumstances, certain Members may qualify to become Members of  Mode Earn Club Lite
• Provides Members enhanced earning opportunities, recurring sweepstakes entries (but in smaller increments than those granted to Mode Earn Club Max Members)  and expedited rewards payouts on the Mode Earn App

Mode  reserves the right to change these Terms and Conditions as well as the offerings provided to Members in each tier of Mode Earn Club from time to time. Mode shall provide written notice of material changes to Mode Earn Club Members. 

2. Eligibility/Registration Requirements.

In order to sign up as a Mode Earn Club member, an individual must, at a minimum, meet the following requirements:

• Be at least eighteen (18) years old, unless otherwise required by law in any applicable jurisdiction to be an age greater than eighteen (18) years old;
• Possess and use for payment of any membership fees owed hereunder a valid bank-issued credit card (no pre-paid cards) issued in Member’s name; and
• Possess a verifiable current email address and, if a Member elects to receive a Mode Earn Phone as part of the Mode Earn Club program, a physical address.

Member agrees to provide Mode with true, current and accurate information, including, but not limited to, Member’s name, email address, and credit card information. If at any time during the term of a Member’s membership, a Member no longer meets the minimum requirements stated in this Section 2, Mode shall be allowed to immediately terminate a Member’s Mode Earn Club membership in accordance with applicable sections herein.

3. Membership Fees & Payment.

Mode Earn Club Max Membership  In order to register for a Mode Earn Club Max membership, Member will need to sign up for a membership and accept this Agreement. Member will ensure that Member (a) provides accurate, truthful, current and complete information when creating a membership; (b) maintain and promptly update all membership information; (c) promptly notify Mode if Member discovers or otherwise suspects any security breaches related to such user’s membership; and (d) take responsibility for all activities that occur under such user’s membership and accept all risks of unauthorized access. 

By (i) checking the box under your credit card number on the checkout page for Mode Earn Club Max that says "Pay Now," and (ii) upon Mode processing Member’s personal information and your specified payment method ("Payment Source"), your Mode Earn Club Max membership shall immediately commence.

Limited Trial. Mode Earn Club may offer you the chance to sign up for a trial period of Mode Earn Club Max ("Trial"). The fees for the Trial and the membership costs for Mode Earn Club Max will be disclosed to you when you sign up. Mode will automatically charge your Payment Source for the Trial fee you authorize to be charged and the Membership fees that were disclosed to you for each service you sign up to receive, each month thereafter, unless you cancel the Trial before the end of the Trial. At the end of your Trial, your Payment Source will be automatically charged the monthly membership fee(s) that you authorize to be charged. Unless you cancel before the end of your Trial, your Mode Earn Club Max membership shall automatically commence and your Payment Source will be charged the monthly fee disclosed to you at sign-up until you terminate your membership in accordance with Section 5 herein.

Entitlement to Receive Mode Earn Phone. Provided that Member has maintained a continuous membership to Mode Earn Club Max for six (6) continuous months, Member shall receive a free Mode Earn Phone and shall be entitled to the benefits of Warranty, Return & Exchange Terms available to Mode Earn Phone users.  Thereafter, and provided that Member maintains a continuous membership in  Mode Earn Club Max at the time of receipt, Member shall receive a new Mode Earn Phone every twelve (12) months thereafter. For purposes of clarification, Member shall receive his/her first replacement Mode Earn Phone after eighteen (18) months of continuous membership and every twelve (12) months thereafter.

To the extent that Member informs Mode that he/she wishes to receive a Mode Earn Phone prior to the six (6) month anniversary of his/her Mode Earn Club Max membership, Member shall be assessed, through its authorized Payment Source, the difference between the retail price of the Mode Earn Phone and the cost of shipping and handling; and the sum of the Mode Earn Club Max membership payments made by Member at the time of election to receive a Mode Earn Phone.

MODE RESERVES THE RIGHT TO CHANGE THE PRICE OF MODE EARN CLUB MAX OR MODE EARN CLUB LITE MEMBERSHIP FEES, INCLUDING THE TRIAL PRICE, AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION. IF MODE CHANGES THE MEMBERSHIP PRICE FOR MODE EARN CLUB MAX OR MODE EARN CLUB LITE, THE MODIFIED MEMBERSHIP PRICE WILL TAKE EFFECT AFTER WE PROVIDE NOTICE TO YOU. THE NEW FEE(S) WILL BE AUTOMATICALLY CHARGED ON YOUR NEXT BILLING CYCLE. MODE RESERVES THE RIGHT TO TERMINATE, DENY, OR MODIFY THE TERMS OF YOUR ACCESS TO YOUR MEMBERSHIP AT ANY TIME IN ITS SOLE DISCRETION AND WITH OR WITHOUT NOTICE TO YOU, PROVIDED, HOWEVER MODE WILL USE REASONABLE EFFORTS TO PROVIDE YOU WITH NOTICE, TO THE EXTENT POSSIBLE, FOR ANY MATERIAL CHANGES. MODE ALSO RESERVES THE RIGHT TO CHANGE ANY FEATURES OR SERVICES PROVIDED IN THE MODE EARN CLUB SERVICE AT ANY TIME IN ITS SOLE DISCRETION WITH OR WITHOUT NOTICE TO YOU.

IF AT ANY TIME THE PROCESSING OF THE MEC MONTHLY FEE FAILS, MODE WILL CHARGE MEMBER’S PAYMENT SOURCE A $3.00(USD) MONTHLY FEE AND MEMBER WILL BECOME A MEMBER TO MODE EARN CLUB LITE AND WILL BE CHARGED THE $3 MONTHLY FEE FOR MODE EARN CLUB LITE UNTIL THE EXPIRATION OF THE TERM AND ANY RENEWAL TERMS UNTIL CANCELED BY MEMBER. 

IF THE PROCESSING OF THE MEC MONTHLY FEE FAILS, AND THE PROCESSING OF THE MODE EARN CLUB LITE PAYMENT FAILS, MEMBER’S MEMBERSHIP AND ANY ENTITLEMENTS TO PARTICIPATION IN A MODE EARN CLUB OFFERING SHALL BE CANCELED IMMEDIATELY. 

4. Earning Cash Back Through Mode Earn Club Max.

Requirements and Limitations. Cash Back is only available through a membership to Mode Earn Club Max.  In order to earn Cash Back through Mode Earn Club Max, all of the following conditions must be met:

(i) MODE MUST HAVE FIRST RECEIVED CASH BACK FROM THE MERCHANT FOR YOUR QUALIFYING PURCHASE AND YOU AGREE YOU WILL NOT RECEIVE PAYMENT IF MODE DOES NOT FIRST RECEIVE PAYMENT FROM THE MERCHANT FOR YOUR QUALIFYING PURCHASE; 

(ii) Cash Back is paid in United States currency, provided that if Mode determines you reside outside the United States, Cash Back may be paid in your local currency, at Mode’s sole discretion; 

(iii) you must be at least eighteen (18) years old; 

(iv) you must have an updated and active Mode Earn App Account with your current and truthful information;  

(v) you must have earned Cash Back for a Qualifying Purchase using the link from a Merchant Ad as supplied by Mode on the Mode Earn App, and which is traced by Mode to you; 

(vi) you must be logged in to your Mode Account at the time you make a Qualifying Purchase; 

(vii) you must not have requested a chargeback from your credit card company and caused Mode or a Third-Party Merchant to incur any fees as a result of submitting a chargeback request.

You are limited to a maximum of one (1) Mode Account on the Mode Earn App. If Mode determines in its sole discretion that you have more than one account on the Mode Earn App, or otherwise have engaged in any fraudulent or suspicious behavior, Mode reserves the right to immediately terminate all of your Accounts without any liability to you, and you agree to forfeit all payment credits in your Mode Account. Cash Back is only offered as part of the services provided as part of your Mode Earn Club Max membership and on the Mode Earn App and is paid on the net purchase amount of a Qualifying Purchase, which excludes fees, discounts, coupon codes, rebates, taxes, shipping costs, return and cancellation costs. All Cash Back payments are further conditioned on verification methods to prove your identity as may reasonably be requested by Mode. Without limiting any of Mode’s other rights in this Agreement, Mode shall not be liable to pay for any untracked Cash Back caused by conditions beyond its control.

MODE RESERVES THE RIGHT TO CHANGE THE CASH BACK PROGRAM AND CASH BACK AMOUNTS OFFERED THROUGH MERCHANT ADS AT ANY TIME. MODE WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE YOU WITH NOTICE, TO THE EXTENT POSSIBLE, FOR ANY CASH BACK AMOUNT CHANGES. ALL CASH BACK IS SUBJECT TO MERCHANT EXCLUSIONS. EXCLUSIONS VARY AND ARE DETERMINED BY THE MERCHANTS. MODE IS UNABLE TO DETERMINE THE EXACT AMOUNT OF CASH BACK YOU WILL EARN BEFORE YOU MAKE YOUR QUALIFYING PURCHASE, OR IF ITEMS YOU PURCHASE ARE ELIGIBLE FOR ANY CASH BACK, UNTIL THE MERCHANT PAYS MODE FOR ANY EARNED CASH BACK AMOUNTS DIRECTLY TRACED BY MODE TO YOUR QUALIFYING PURCHASE(S), YOU WILL NOT BE ELIGIBLE FOR CASH BACK. IF YOU ARE ELIGIBLE FOR CASH BACK AND THE MERCHANT HAS PAID MODE A COMMISSION FOR YOUR QUALIFYING PURCHASE, YOUR CASH BACK AMOUNT WILL BE THE AMOUNT DISPLAYED IN YOUR MODE ACCOUNT. NO CASH BACK WILL BE EARNED IF ITEM(S) PURCHASED ARE INELIGIBLE FOR CASH BACK OR IF MODE HAS NOT BEEN PAID A COMMISSION BY THE MERCHANT FOR YOUR PURCHASE.

How Cash Back Works. Mode works with third party networks and vendors to offer Cash Back for Qualifying Purchases from a Merchant's Third Party Store after clicking through a Merchant Ad on the Mode Earn App. The Mode Earn App displays Merchant Ads and offers, which may show you Cash Back opportunities and the amount of Cash Back being offered by a Merchant if you complete a Qualifying Purchase of a service or product as more fully described in the Merchant Ad. 

Each Qualifying Purchase must be directly tracked by Mode to your click of the Merchant Ad, and the Qualifying Purchase must be completed in the same session while you are logged in to your Mode Account. Mode is paid directly by its affiliate networks and vendors for specific purchases you make from Third Party Merchants within Mode's network of Merchants. Once Mode receives full and complete payment for your Qualifying Purchase by the affiliate network and/or Merchant, Mode will display the Cash Back credit in your Mode Account. It may take up to ninety (90) days from the date Mode receives payment from the Merchant for your Qualifying Purchase for your Cash Back to display in your Mode Account. No Cash Back will display in your Mode Account if Mode does not receive any amounts from the Merchant for your Qualifying Purchase.

Cash Back Modifications and Withholdings. Mode, in its sole discretion, may modify or remove the amount of Cash Back credited to your Mode Account at any time in its sole discretion if Mode determines you are engaged in suspicious activity, fraud, and/or have violated any term in this Agreement. Mode may delay or withhold payment as a result of suspicion of fraud, violation of any term in this Agreement, or any change to the Third Party Store's policies. YOU AGREE THAT YOU WILL IMMEDIATELY FORFEIT ALL CASH BACK IN THE EVENT YOU HAVE INITIATED A CHARGE BACK REQUEST WITH YOUR CREDIT CARD COMPANY AND MODE INCURRED FEES AS A RESULT OF THE CHARGE BACK REQUEST. YOU AGREE TO SUBMIT ALL FEE DISPUTES TO MODE PRIOR TO CONTACTING YOUR CREDIT CARD COMPANY TO ATTEMPT TO RESOLVE ANY FEE DISPUTES.

Cash Back Expiration. All Cash Back credited to your Mode Account on the Mode Earn App, and which has not been withdrawn will expire if you have not completed a Qualifying Purchase within one (1) year after your last Qualifying Purchase. Mode deems your Mode Account on the Mode Earn App and/or on the Mode Earn App to be inactive and abandoned if you have not made a Qualifying Purchase in each one (1) year period after your last Qualifying Purchase. You agree that you will forfeit all Cash Back, if one (1) year has passed since you have made a Qualifying Purchase on the Mode Earn App.  

Taxes. You are solely liable for any taxes, levies, duties, or fees owed to any applicable government authority as a result of the Cash Back, refunds, or rebates are paid to you by Mode.

Mode Links Only. To qualify to receive any Cash Back, you must use the links to Third Party Merchant products and services in Third Party Stores that are provided in the Mode Earn App. If you access a Third Party link prior to a purchase transaction, and/or use any Third Party discount code, you may not be paid any Cash Back, because your purchase might be associated with an outside service that was not provided by Mode. 

Cash Back Exclusions. Cash Back is only available for Qualifying Purchases and only after Mode receives the Cash Back from the Merchant you made a Qualifying Purchase from after clicking a Merchant Ad on the Mode Earn App. ALL CASH BACK IS SUBJECT TO ADDITIONAL TERMS AND EXCLUSIONS LISTED ON THE MODE EARN APP, IN EACH MERCHANT'S THIRD PARTY STORE, IN THE TERMS OF THE OFFER IN THE MERCHANT AD, AND/OR ON THE THIRD PARTY STORE'S CHECKOUT PAGE.

5. Term and Termination.

Member’s Mode Earn Club Max or, as applicable, Mode Earn Club Lite membership, and the applicability of these Terms and Conditions, shall commence immediately upon the processing by Mode of Member’s personal information and Payment Source. The term of Member’s membership and these Terms and Conditions shall continue in full force and effect until the one (1) year anniversary from the date of the processing by Mode of Member’s personal information and Payment Source (the “Term”). 

Following the Term, Member’s membership and these Terms and Conditions shall AUTOMATICALLY renew for additional, successive one (1) year terms unless terminated in accordance with the terms set forth below in this section.

Member may terminate his/her membership at any time by providing notice to Mode by email at earn@modephone.com and by using the email heading “Mode Earn Club Cancellation.” Any termination shall go into effect on the first day of the next monthly billing cycle.

Mode may, in its sole discretion, terminate this Agreement immediately upon written notice to Member if Member materially breaches these Terms and Conditions and fails to cure such breach, if curable, within ten (10) days, including, without limitation, on account of repeated failures to process payments through Member’s Payment Source. 

6. Mode  Is Not Responsible for Third Parties

Mode is not responsible for any products and offers from third parties provided to you as part of your Mode Earn Club membership, including emailed offers or displayed through the Mode Earn App. You agree that your purchase from a third-party merchant is subject to such merchant's own terms and conditions applicable to such purchase. You agree that Mode  is in no way responsible or liable to you for any products you purchase through third parties, including for any product liability claim, improper charges, delivery failures, pricing errors, or inaccurate product descriptions. You further acknowledge and agree that Mode is not liable or otherwise responsible for any breaches of credit card or debit card security or privacy by any third-party merchants.

Mode  does not endorse, warrant or guarantee the products or services that are displayed through offers and other advertised links to third-party websites. Mode is not an agent, distributor, re-seller, broker or otherwise responsible for third-party merchants or the activities or policies of those merchant websites, or the products or services available on them. Mode  does not promise or guarantee that the product details, prices, coupon availability or other service terms, rates or rewards offered by any particular advertiser or other third party are the best prices, best terms or lowest rates available in the market.

When you access third-party websites through us, you accept that there are risks in doing so, and that Mode  is not responsible for such risks. We encourage you to be aware when you are on a third-party merchant website and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize.

Mode has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices or opinions expressed in any third-party websites or by any third-party. In addition, Mode will not and cannot monitor, verify, censor or edit the content of any third-party site or service.

7. Privacy

The information a Member provides or otherwise makes available to Mode  is stored and used in accordance with Mode’s privacy policy, which may be amended from time to time in Mod ’s sole discretion. Mode ’s privacy policy can be found at https://www.modemobile.com/privacy.

8. Electronic Consent and Communication.

To the fullest extent permitted by applicable law, these Terms and Conditions and any notices or other communications (including, without limitation, by e-mail and/or SMS) regarding access to and/or use of the Mode Earn Club, may be provided to Member electronically, and Member hereby agrees to receive electronic communications from Mode  in an electronic form. Electronic communications may, and will, be delivered to the email address that Member provided to Mode  when he/she signed up for Mode Earn Club. All Communications in electronic format will be considered to be in “writing.” Member expressly agrees that any notice or other communications required under these Terms and Conditions may be given in email form. In addition, Member expressly agrees that it is Member's sole responsibility to keep Member’s email address accurate and up-to-date by providing Mode  with written notice of any changes to the same, and that Mode  may reasonably assume that any communications sent to an email address provided will be received by Member. Member’s consent to receive communications electronically is valid until Member revokes his/her consent.

9. Limitation of Liability

EXCEPT FOR OBLIGATIONS TO MAKE PAYMENTS UNDER THESE TERMS AND CONDITIONS OR LIABILITY FOR INDEMNIFICATION, IN NO EVENT SHALL MODE, OR ANY OF ITS REPRESENTATIVES, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT MODE  WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT LIMITS OR DISCLAIMS ANY WARRANTY OR LIABILITY THAT CANNOT BE LIMITED OR DISCLAIMED PURSUANT TO APPLICABLE LAW. 

10. Dispute Resolution.

10.1 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 and Conditions, your participation in the Mode Earn Club or your use of the Services 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 and Conditions, your participation in the Mode Earn Club or your use of the Services, 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 and Conditions.  YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS AND CONDITIONS, 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.  

10.2 Exceptions.  Despite the provisions of Section 10.1 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.

10.3 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 Conditions, 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.

10.4 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 or legal@modemobile.com. 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. 

10.5 Fees.  If you commence arbitration in accordance with these Terms and Conditions, 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.

10.6 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 10).  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.  

10.7 Modifications to this Arbitration Provision.  Except as otherwise provided in these Terms and Conditions, 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.

10.8 Enforceability.  If Section 10.6 above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 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 and Conditions, your participation in Mode Earn Club, or your use of the Service.

11. Governing Law; Choice of Forum.

The laws of the State of Delaware, excluding its conflicts of law rules, govern these Terms and Conditions, your participation in Mode Earn Club 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. 

12. Amendments

Mode reserves the right to change these Terms and Conditions from time to time. We will give notice of material changes to Members. Notice to the Member will be considered given in the first instance of when such notice is provided by email to the Member's email address on file with Mode  (the email Member indicated when he/she signed up for Mode Earn Club). Members agree that all changes to the Terms and Conditions will be effective and binding on the effective date indicated in the notice. 

13. Assignment

Member may not assign or transfer the rights of their Mode Earn Club membership in whole or in part under any circumstances. Doing so without the consent of Mode  will be void and of no force and effect.

14. Survival

The expiration or termination of Member’s Mode Earn Club membership, shall not relieve either party from the obligations contained herein which accrue prior to the expiration or termination of the same, all of which shall survive the Agreement.

15. Waiver

Any waiver by any party hereto of a breach of any provision of these Terms and Conditions shall not operate or be construed as a waiver of any other provision hereof and shall not be effective at all unless in writing. A waiver of any of the terms hereof shall not be construed as a general waiver by either party and such waiving party shall be free to reinstate any such term or condition with or without notice to the other party.

16. Entire Agreement

These Terms and Conditions, and Mode’s Privacy Policy (as described in the preamble of this Agreement), sets forth the entire and exclusive agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous understandings, negotiations and agreements, whether written or oral, between the Parties regarding the subject matter hereof. 

17. Definitions

Words used in this Agreement with their initial letters capitalized and not otherwise defined herein will have the meanings specified in ​Appendix 1​.