MODE PHONE AGREEMENT

Updated:  May 1, 2021

 

This Agreement (the “​Agreement​”) is an agreement between Nativ Mobile, Inc., a Delaware corporation, through its wholly-owned subsidiary, Mode Phone, LLC (“​Mode,​ ” “​we”​ or “​us​”) and you (“Customer​” or “​you​”), dated as of the date you indicate acceptance (“​Effective Date”​). This Agreement includes, and incorporates by reference, the ​Mode Terms of Use Policy​ (https://modephone.com/pages/terms-of-service), and the Mode Warranty, Return & Exchange Terms (https://modephone.com/pages/warranty)​, any ordering document between Mode and Customer referencing this Agreement (“​Order”​ ) and all amendments and addenda to this Agreement. Mode and Customer are sometimes referred to collectively as the “​Parties​” and individually as a “​Party​.”

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR USE OF THE MODE SUBSCRIPTION PROGRAM (defined below) AND INCLUDES A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 17 OF THE ​MODE TERMS OF USE POLICY​. By indicating acceptance of this Agreement and executing an Order, via click through or other electronic means offered by Mode, or otherwise using or accessing the Mode Subscription Program, you agree to be bound by the terms and conditions of this Agreement and all terms incorporated by reference.

Mode reserves the right to change any of the terms and conditions contained in this Agreement, any Policies, the Site or the Mode Subscription Program, at any time and in its sole discretion. If Mode makes any changes, it will use reasonable efforts to notify you, the Customer, that this Agreement or the Policies have changed. Customer’s continued use of the Mode Subscription Program will confirm Customer’s acceptance of such changes. Mode encourages Customer to frequently review this Agreement and any other applicable policies and guidelines to ensure Customer understands the terms and conditions that apply to Customer’s use of the Mode Subscription Program. If Customer does not agree to the amended terms, policies or guidelines, Customer must stop using the Mode Subscription Program. Mode and Customer agree as follows:

Section 1. Definitions

Words used in this Agreement with their initial letters capitalized will have the meanings specified in ​Appendix 1​.

Section 2. Customer’s Rights in the Mode Subscription Program.​ ​​Mode’s offering includes use of the Mode Licensed Device through a subscription program that allows subscribers to obtain a Mode Licensed Device through a subscription plan offered by Mode pursuant to the terms and conditions set forth herein (the “​Mode Subscription Program​” or “Subscription”).

2.1 Rights to Use the Mode Licensed Device.​ During the Term, Mode hereby grants to Customer:

(a) a revocable, personal, non-commercial license to use the Mode Licensed Device, as specified in the Order; and

(b)a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the Mode Subscription Program.

(c) Provided Customer’s Mode Subscription is active and in good standing, Customer will be eligible to (i) receive a new Mode Licensed Device every twelve (12) months; and (ii) retain a revocable, personal, non-commercial license to use the old Mode Licensed Device (“​Decommissioned Hardware​”). Customer shall not remove, alter or destroy in any way any Mode Licensed Device and Decommissioned Hardware, or any label or Mode Mark on the unit. Customer will keep the Mode Licensed Device and Decommissioned Hardware in good repair, appearance and condition, subject to normal wear and tear.

(d) With respect to the Customer’s options after every twelve (12) month period, Customer has the following options:

(i) Phone Refresh. Customer may remain on his/her existing Subscription plan and receive a new Mode Licensed Device of equal or lesser value as his/her current Mode Licensed Device; or

(ii)  Subscription Refresh. Customer shall have the option to choose a new Subscription plan from one of the available Subscription plans offered at that time.  In connection therewith, Customer shall receive a new Mode Licensed Device that is associated with the chosen new Subscription plan and shall be required to pay any upfront fees associated with that plan.

Once a Customer elects to exercise either of the above two (2) options, a new twelve (12) month Subscription term shall commence.

2.2 Restrictions; Limitations. ​Customer may not use the Mode Subscription Program in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Mode Licensed Device or any Accessories or using or accessing the Mode Subscription Program to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the Mode Subscription Program or Accessories; (c) performing or disclosing any benchmarking or performance testing of the Mode Subscription Program; (d) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the Mode Subscription Program except as authorized in this Agreement; or (e) using the Mode Subscription Program other than for its intended use. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the Mode Parties, any patent infringement or other intellectual property infringement claim regarding the Mode Licensed Device or any Accessory that Customer or any Household User has used. The rights granted under this Section 2 are conditioned on Customer’s continued compliance with this Agreement (including, without limitation, Household Users’ compliance with this Agreement), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.

2.3 Lost, Damaged or Stolen Mode Licensed Device. Customer will notify Mode without undue delay in the event that the Mode Licensed Device is lost or stolen. Mode will remotely deactivate such lost or stolen Mode Licensed Device rendering the device useless. If at any point Customer recovers such lost or stolen Mode Licensed Device after receiving a replacement from Mode, Customer will notify Mode in writing (via email) and Mode will determine whether Customer should return or dispose of the recovered unit. In the event of accidental damage, loss or theft of the Mode Licensed Device, Customer is entitled to one (1) replacement every twelve (12) months (“One Time Replacement”) that Customer’s Mode Subscription is active and in good standing, with a new Mode Licensed Device of equal or lesser value, provided that Customer enters into a new twelve (12) month Subscription with Mode. In the event that Customer experiences accidental damage, loss or theft with respect to a Mode Licensed Device after Customer receives its One Time Replacement, Customer will have the option to replace such Mode Licensed Device for a replacement fee of $49.00 USD plus shipping and handling costs, provided that Customer enters into a new twelve (12) month Subscription with Mode. Further, Mode reserves the right to provide replacement Mode Licensed Devices with reconditioned phones supplied by the manufacturer. Customer authorizes Mode to charge Customer’s payment method provided under Section 4 for any such repair or replacement costs. Customer is required to present a police report to validate a stolen hardware claim.

2.4 Changes to Mode Subscription Program. ​Mode may change the Mode Subscription Program from time to time, including changing or removing features or functionality from the Mode Licensed Device. Mode will notify Customer of any discontinuation of the Mode Subscription Program.

2.5 Suspension of Mode Subscription Program. Mode may, in its sole discretion, immediately temporarily suspend access to or use of the Mode Subscription Program by Customer or any Household User if Customer or any Household User violates a material restriction or obligation of Customer or Household Users in this Agreement (including any Policies), or if in Mode’s reasonable judgment, the Mode Subscription Program or any component thereof is about to suffer a significant threat to security or functionality. Mode will provide advance notice to Customer of any such suspension in Mode’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Mode will use reasonable efforts to re-establish the affected Mode Subscription Program promptly after Mode determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Mode may terminate access to the Mode Subscription Program if any of the foregoing causes of suspension are not cured within thirty (30) days after Mode’s initial notice thereof. Any suspension or termination by Mode under this Section 2.5 will not excuse Customer from its obligation to make payment(s) under this Agreement. If any Household User breaches any term or condition of the Policies, then, in addition to any other remedies available to Mode, Mode will have the right, in its sole discretion, to immediately suspend access to the Mode Subscription Program by the Household User who failed to comply with the terms and conditions of the Policies. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.

Section 3. Eligibility; Registration; Support; Data Practices; Mode Responsibilities

3.1 Eligibility. ​Customer and any Household Users must be at least 18 years old(or the age of both legal majority and the age at which the Customer and Household User can consent to collection of Customer Data where you reside) to purchase a Mode Subscription (defined below) to the Mode Subscription Program. Customer represents and warrants that it and all Household Users are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.

3.2 Registration. ​In order to access and use the Mode Subscription Program,Customer and each Household User will need to register for an Account and accept this Agreement. Customer will ensure that Customer and each Household User that registers for an Account: (a) provide accurate, truthful, current and complete information when creating an Account; (b) maintain and promptly update all Account information; (c) maintain the security of the Account by not sharing its password with others and restricting access to the Account and their mobile device; (d) promptly notify Mode if Customer or a Household User discovers or otherwise suspects any security breaches related to such user’s Account; and (e) take responsibility for all activities that occur under such user’s Account and accept all risks of unauthorized access. Mode may prohibit a Household User’s access to and use of Mode Subscription Program at any time for any reason, including upon request from Customer. If a Household User’s right to access and use the Mode Subscription Program is terminated, the terms set forth in Section 5.4 will continue to apply to the terminated Household User.

3.3 Violations. ​Customer is responsible for any access or use of the Mode Subscription Program under each Household User’s Account, including by any third parties that use any Household User’s Account. The acts or omissions of any Household User or third party under a Household User’s Account are considered the Household User’s acts or omissions, as applicable.

3.4 Support. ​During the Term, Mode will provide online support to Customer and Household Users relating to the use and operation of the Mode Subscription Program.  To request support, please contact Mode at earn@modephone.com with the subject line “Mode Phone Support.”

3.5 Data Privacy and Security

(a) For information about Mode’s data privacy and security practices, please see our Privacy Policy.

(b) Customer is solely responsible for the content of any data or materials that Customer or Household Users use, process, submit, provide to, or make available through the Mode Subscription Program, including, without limitation, Customer Data. Customer has provided legally required notice of its use of the Mode Subscription Program and Accessories to all relevant data subjects including, but not limited to, all Household Users, and obtained consent for Customer to transfer personal information and other Customer Data to Mode for processing in the United States.

(c) Customer represents and warrants to Mode that: (i) Customer has all rights in the Customer Data necessary to grant the rights contemplated by this Agreement; and (ii) none of the Customer Data or use of the Mode Subscription Program or any Accessories by Customer or any Household Users will violate the Policies or applicable law.

3.6 Mode Responsibilities.

Mode is responsible for the performance of its employees and contractors and their compliance with Mode’s obligations under this Agreement. Mode may use non-employee contractors or agents for the purpose of providing the Mode Subscription Program hereunder.

Section 4. Payments and Taxes

4.1 Mode Subscriptions. Mode offers different subscription plans for access and use of the Mode Subscription Program (each, a “​Mode Subscription” or “Subscription”) on a periodic basis, all as specified on the Mode website. The Mode Subscription is a quarterly recurring subscription and your Subscription fee is due and payable each quarter (billed every 12 weeks) for as long as you have possession of the Mode Licensed Device.  Should your Mode Licensed Device become temporarily suspended due to non-payment, your Mode Subscription balance shall become overdue and continue to accrue for every billing date that occurs thereafter. The outstanding balance shall be required to be paid in full in order to reactivate your Mode Subscription and will remain due in the event of formal termination.

4.2 Continuous Subscriptions.​WHEN CUSTOMER REGISTERS FOR A MODE SUBSCRIPTION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) MODE (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE CUSTOMER AT THE BEGINNING OF EVERY QUARTER OR OTHER PERIODIC BASIS (AS SELECTED BY CUSTOMER VIA THE MODE SUBSCRIPTION PROGRAM ORDER) FOR CUSTOMER’S MODE SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS CUSTOMER’S MODE SUBSCRIPTION CONTINUES, AND (B) CUSTOMER’S MODE SUBSCRIPTION IS CONTINUOUS UNTIL CUSTOMER CANCELS IT OR MODE SUSPENDS OR STOPS PROVIDING ACCESS TO THE MODE SUBSCRIPTION PROGRAM IN ACCORDANCE WITH THIS AGREEMENT.

4.3 Cancellation Policy. ​CUSTOMER MAY CANCEL THEIR MODE SUBSCRIPTION AT ANY TIME BY EMAILING MODE AT earn@modephone.com INDICATING CUSTOMER’S WISH TO CANCEL THE MODE SUBSCRIPTION WITH A SUBJECT LINE OF “MODE PHONE CANCELLATION.” UPON CANCELLATION, CUSTOMER MAY CONTINUE TO USE HIS/HER DEVICE UP TO THE START OF THE NEXT QUARTERLY BILLING CYCLE. CUSTOMER WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO FEES PROCESSED PRIOR TO THE CANCELLATION OF CUSTOMER’S MODE SUBSCRIPTION. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE SET FORTH IN SECTION 5.4, WITH RESPECT TO CUSTOMER’S TERMINATION FOR MODE’S MATERIAL BREACH OF THIS AGREEMENT, CUSTOMER WILL NOT RECEIVE A REFUND FOR ANY PARTIAL MONTH. For instructions on where and how to return the Mode Licensed Device after cancellation, please contact us via email at ​earn@modephone.com​.

4.4 Payment and Billing Information. ​By providing a payment method that Mode accepts, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer permits Mode (or our third party payment processor) to charge Customer’s payment method for the total amount of Customer’s Mode Subscription or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Customer’s Order or Mode Subscription may be suspended or cancelled. Customer must resolve any problem Mode encounters in order to proceed with Customer’s Order. In the event Customer wants to change or update payment information associated with Customer’s account, Customer  should contact Mode customer service at earn@modephone.com to request a change to Customer’s payment information. Customer acknowledges that the amount billed may vary due to promotional offers, changes to your Mode Subscription or changes in applicable taxes or other charges, and Customer authorizes Mode (or our third party payment processor) to charge Customer’s payment method for the corresponding amount.

4.5 Pricing and Availability​. All Orders must be accepted by Mode. Your Order is only accepted when you are sent confirmation of shipping information with a tracking number. All prices are shown in USD or another local currency, as applicable, and applicable taxes and other charges, if any, are additional. Mode reserves the right to adjust prices as Mode may determine in its sole discretion, at any time and without notice; provided, however, that if Mode changes the amounts or other charges associated with your Mode Subscription, Mode will use reasonable efforts to provide advance notice of such changes in accordance with this Section 4. Mode will not, however, be required to notify Customer of changes in any applicable taxes. The Mode Subscription Program, Accessories and Mode Subscriptions are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, or to discontinue offering certain Accessories or Mode Subscriptions without prior notice, even if Customer has already placed an Order.

4.6 Taxes. Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s purchase of a Mode Subscription or other Accessories. Mode will collect applicable sales tax if it determines that Mode has a duty to collect sales tax. Mode will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.

4.7 Risk of Loss​. Risk of loss to any Mode Licensed Device, Decommissioned Hardware and Accessories will pass to Customer when Mode places such Mode Licensed Device, Decommissioned Hardware and Accessories in the possession of the carrier for shipment. Risk of loss will remain with Customer until or unless Mode receives such Mode Licensed Device, Decommissioned Hardware or Accessories on the basis of cancellation or repairs.

Section 5. Term and Termination

5.1 Term. ​The term of this Agreement will commence on the Effective Date and will continue for the period set forth in the Order describing the Mode Subscription period or otherwise agreed upon by the Parties unless and until terminated pursuant to Section 2.4, 5.2, or 5.3 of this Agreement (the “​Initial Term​”). After the expiration of the Initial Term, the Agreement will automatically renew for ongoing 12-week periods (collectively, with the Initial Term,  the “​Term”​ ).

5.2 Termination for Convenience. ​ Customer may terminate the Term for convenience at any time prior to the next Mode Subscription billing cycle by emailing ​earn@modephone.com clearly indicating Customer’s wish to cancel the Mode Subscription and with the subject line “Mode Subscription Cancellation. In the event Customer terminates under this Section 5.2, Customer must return all Mode Licensed Device and Decommissioned Hardware received during the Term no later than thirty (30) days from the date of the next 12-week billing cycle. Customer is entitled to keep any Accessories associated with the terminated Mode Subscription as described in the applicable Order. Mode reserves the right to continue charging Customer the Mode Subscription fee if Customer does not return all Mode Licensed Device and Decommissioned Hardware within the thirty (30) days from the date of the next quarterly billing cycle.

5.3 Termination for Material Breach. ​If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.3 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate.

5.4 Effect of Termination. ​In the event of any termination of the Term:

(a) all of Customer’s and each Household User’s rights under this Agreement will immediately terminate, the license granted to Customer in this Agreement will terminate and Customer and all Household Users will immediately cease any access or use of the Mode Subscription Program;

(b) Customer must return all Mode Licensed Device and Decommissioned Hardware received during the Term no later than thirty (30) days from the date of the next quarterly billing cycle. Unless otherwise specified in the Order, Customer is responsible for all return shipping fees and any damage beyond reasonable wear and tear to the returned Mode Licensed Device and Decommissioned Hardware. Customer authorizes Mode to charge Customer’s payment method for repair or replacement costs associated with damage beyond reasonable wear and tear;

(c) If Customer terminates the Term for convenience under Section 5.2, then Customer will be responsible for that billing quarter’s Mode Subscription fees. If Mode terminates the Term for material breach by Customer under Section 5.3, then Customer will remain responsible for the remaining balance of the Mode Subscription fees in Customer’s Order and Customer must pay within thirty (30) days all such amounts, as well as all sums remaining unpaid under the Agreement plus related taxes and expenses;

(d) Mode will have no obligation to maintain any Customer Data or to forward any Customer Data to Customer or any third party; and

(e) Sections 1, 2.2, 3.3, 4, 5.4, 6, 7, 8.3, 9, and 10 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.

If Customer terminates the Term for material breach by Mode under Section 5.3, then Mode shall refund to Customer within thirty (30) days of termination any unused pre-paid fees on a pro rata basis for the remaining Term following the month in which the termination is effective.

Section 6. Indemnification

6.1 General. Customer will defend, indemnify, and hold harmless the Mode Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party or Household User claim concerning: (a) Customer’s or Household Users’ Unauthorized Use of the Mode Subscription Program including, without limitation, any use of any Accessories and the Mode Subscription Program other than as permitted under this Agreement or in a manner that is illegal, tortious, or violates the rights of another; (b) any Customer Data or other data or content related to Customer, Household Users or other users which Customer provides, uploads, or inputs into the Mode Subscription Program; or (c) your breach of this Agreement or the rights of a third party. If Mode is obligated to respond to a third party subpoena or other compulsory legal order or process related to the topics described above, Customer will also reimburse Mode for reasonable attorneys’ fees, as well as the time and materials spent by Mode’s employees and contractors responding to the third party subpoena or other compulsory legal order or process at Mode’s then-current hourly rates.

6.2 Process. Mode will promptly notify Customer of any claim subject to Section 6.1 of this Agreement, but Mode’s failure to promptly notify Customer will only affect Customer’s obligations under Section 6.1 of this Agreement to the extent that such failure prejudices Customer’s ability to defend the claim. Customer may: (i) use counsel of its own choosing (subject to Mode’s written consent) to defend against any claim; and (ii) settle the claim as Customer deems appropriate, provided that Customer obtain Mode’s prior written consent before entering into any settlement. Mode may also assume control of the defense and settlement of the claim at any time.

Section 7. Proprietary Rights

7.1 The Mode Subscription Program. ​As between Mode and Customer, Mode owns all right,title,and interest in and to the Mode Subscription Program, including the Mode Licensed Device. Except as otherwise specified in Sections 2.1, 5.2 and 7.5 of this Agreement, Customer does not obtain any rights under this Agreement from Mode to the Mode Licensed Device, including any related Intellectual Property Rights. Upon receipt of Customer’s complete payment, all right, title and interest in any Accessories purchased by Customer shall pass to Customer.

7.2 Feedback. Customer and Household Users may voluntarily provide Mode with Feedback. Customer will not, and will ensure Household Users do not, provide any such Feedback to any third party without Mode’s prior written consent in each instance. Any Feedback that Customer or Household Users provide to Mode may or may not be treated confidentially by Mode and will become the sole property of Mode. Mode will own, and Customer and Household Users hereby assign, all exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and Mode will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

7.3 Trademarks. ​As between Mode and Customer, Mode owns all right, title and interest in and to the Mode Marks and any goodwill arising out of the use of the Mode Marks will remain with and belong to Mode and its licensors. The Mode Marks may not be copied, imitated or used without the prior written consent of Mode or the applicable trademark holder.

7.4 Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the Mode Subscription Program or any Accessories and related Intellectual Property Rights referred to in Section 7.1. Customer will immediately notify Mode of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer, Household Users or any other user, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify Mode of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. Mode may, at its option and expense, assume control of such proceeding. If Mode assumes such control, Mode will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as Mode may reasonably request. Customer will assist Mode in enforcing any settlement or order made in connection with such proceeding.

 

Section 8. Limited Warranties and Remedies

8.1 Warranty. Mode warrants that the Mode Licensed Device will be free from defects in materials and workmanship, under normal use in accordance with the applicable Documentation during the Term of your Mode Subscription. In the event Customer is eligible for a new Mode Licensed Device as described in Section 2.1, any warranties provided under this Agreement will transfer from the Decommissioned Hardware to the new Mode Licensed Device. Any license to continue to use any Decommissioned Hardware will be provided “as is” without warranties of any kind (express or implied).

8.2 Remedy. Subject to this Section 8.2, Mode will use commercially reasonable efforts to correct any manufacturing or workmanship nonconformance of the Mode Licensed Device, which may include repair or replacement at Mode’s sole discretion, with new or refurbished hardware or parts. Unless otherwise stated in the Order, Customer will be responsible for all shipping charges to and from Mode for any warranty claims made during the Mode Subscription. For the avoidance of doubt, the warranties and remedies listed under this Section 8 do not apply to Decommissioned Hardware.

THE REMEDIES DESCRIBED IN THIS SECTION 8 SHALL BE MODE’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE FOREGOING WARRANTY.

8.3 DISCLAIMER. EXCEPT FOR THE MODE LICENSED HARDWARE WARRANTY EXPRESSLY SET FORTH HEREIN AND SUBJECT TO ANY LEGAL RIGHTS YOU MAY HAVE UNDER ANY LAW THAT APPLIES TO YOU WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT (“​YOUR CONSUMER RIGHTS​”), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE MODE SUBSCRIPTION PROGRAM AND ALL ACCESSORIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE MODE SUBSCRIPTION PROGRAM, SITE OR ANY ACCESSORIES, INCLUDING ANY WARRANTY THAT THE MODE SUBSCRIPTION PROGRAM, SITE OR ANY ACCESSORIES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, MODE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

NOTHING IN THIS AGREEMENT LIMITS, EXCLUDES, RESTRICTS, MODIFIES OR PURPORTS TO LIMIT, EXCLUDE, RESTRICT OR MODIFY YOUR CONSUMER RIGHTS. IF ANY PART OF THIS AGREEMENT CONTRADICTS YOUR CONSUMER RIGHTS OR ANY OTHER APPLICABLE LAW, THEN YOUR CONSUMER RIGHTS OR OTHER APPLICABLE LAW WILL PREVAIL OVER THAT PART. IF YOU SUFFER ANY LOSS IN CONNECTION WITH THE MODE SUBSCRIPTION PROGRAM, SITE OR ACCESSORIES, YOU MUST TAKE ALL REASONABLE STEPS TO MINIMISE YOUR LOSS, INCLUDING NOTIFYING US WITHOUT DELAY IF THERE ARE STEPS WE CAN TAKE TO HELP MINIMIZE YOUR LOSS.

Section 9. Limitations of Liability

9.1 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.

9.2 Limitation of Liability. IN NO EVENT SHALL ANY OF THE MODE PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE MODE SUBSCRIPTION PROGRAM, ANY ACCESSORIES OR THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE MODE PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF (1) THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO MODE FOR SUCH MODE SUBSCRIPTION PROGRAM FOR THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (2) $100.

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF THE OTHER MODE PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE RELATIONSHIP BETWEEN Mode AND YOU.

Section 10. Miscellaneous

10.1 Reference Program. ​If Customer or a Household User volunteers any quotes or statements about Customer’s experience with the Mode Subscription Program, Mode may, at its option, use such quotes and statements in connection with its sales and marketing activities.

10.2 No Third Party Beneficiaries. ​This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to this Agreement.

10.3 Assignment. Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Mode. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.

10.4 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.

10.5 Dispute Resolution Procedures​.

The Parties hereby incorporate by reference into this Agreement the “Dispute Resolution; Binding Arbitration” provision listed in the Terms of Sale. ​Please read the the ​Terms of Use Policy carefully because it requires you to arbitrate certain disputes and claims with Mode and limits the manner in which you can seek relief from us.

You and Mode agree that any dispute arising out of or related to this Agreement or the Mode Subscription Program is personal to you and Mode and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding as provided in the Terms of Use Policy​.

10.6 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.

10.7 Applicable Law​.

This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, without reference to its choice of law principles to the contrary. Subject to Section 10.5, Customer hereby consents to the jurisdiction and venue of the state and federal courts located in Cook County, Illinois with respect to any claim arising under or by reason of this Agreement.

10.8 Entire Agreement. This Agreement, together with any agreement, Order, policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.

 

Appendix 1 Definitions

“​Account”​ means a single user electronic account permitting Customer or Household Users to access and use the Mode Subscription Program.

“​Customer Data”​ means any information about Customer collected through use of Mode Subscription Program and Site as described in the Privacy Policy.

“​Documentation​” ​means the online documentation relating to the Mode Subscription Program or any Accessories furnished or made available by Mode to Customer.

“​Feedback​” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the Mode Subscription Program or any Accessories.

“​Intellectual Property Rights”​ means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).

“​Mode Marks​” means any trademarks, service marks, service or trade names, logos, and other designations of Mode and its affiliates.

“​Mode Parties”​ means Mode and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.

“​Party”​ means Mode or Customer.

“​Accessories​” means any cords, ear buds or others accessories used in connection with Mode Licensed Device made available by Mode through the Mode Subscription Program or Site.

“​Policies”​ means Mode’s Privacy Policy, all restrictions described on the Site related to the Mode Subscription Program, and any other policies and procedures related to Customer’s and Household Users’ access and use of the Mode Subscription Program.

“​Site”​ means www.Modephone.com, and any successor or related website designated by Mode.

“​Unauthorized Use​” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the Mode Subscription Program, Site, Accessories, or Documentation of Mode that is not expressly authorized under the Agreement or otherwise in writing by Mode.