Terms of Service
End-User License Agreement for DEVICES DISTRIBUTED BY
MODE Phone LLC
IMPORTANT-READ CAREFULLY: This End-User Licensing Agreement for Devices Distributed by MODE Phone LLC (“Device EULA”) is a legal agreement between you (either an individual or a single entity) and MODE Phone LLC (“MODE Phone LLC”) with the respect to the cellular phones distributed by MODE Phone LLC (“Device”). By purchasing the Device, you agree to be bound by the terms of this Device EULA and other applicable terms and conditions incorporated herein by reference below. It is your responsibility to read and fully understand all terms of this Device EULA. If you do not understand and agree to the terms of this Device EULA, you may not use the Device.
- DISCLAIMER OF WARRANTIES
MODE Phone LLC is a distributer of the Device. The Device(s) sold by MODE Phone LLC are not manufactured or shipped by MODE Phone LLC. You acknowledge and agree that your and exclusive recourse regarding any defects with the Device is the warranty provided by the manufacturer of the Device. MODE Phone LLC makes no representations or warranties regarding the Device, including and without limitation, the implied warranties of merchantability and fitness for a particular purpose and any implied warranties arising from statute, trade usage, course of dealing, or course of performance.
- LIMITATION OF LIABILITY
You are solely responsible for (i) your purchase and use of the Device; and (ii) any damages incurred by you or any third party that arise from or are related to the purchase or use of the Device. The aggregate liability of MODE Phone LLC for any damages will be limited to actual damages proved and will not exceed the amount paid by you to MODE Phone LLC for the Device. To the fullest extent permitted by law, and notwithstanding anything on the contrary set forth herein, MODE Phone LLC parties will not be liable for any punitive, special, indirect, loss of profits, or consequential damages, even if MODE Phone LLC has been advised of the possibility of such damages.
- DISPUTE RESOLUTION
You and MODE Phone LLC agree that any dispute arising out of or in any way related to your purchase of the Device or this Device EULA will be resolved by binding arbitration, and not by a court or jury. This agreement does not 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. The arbitration between you and MODE Phone LLC will be governed by the Federal Arbitration Act, and by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”). The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
You and MODE Phone LLC 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. Further, unless both you and MODE Phone LLC agree, 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.
- GOVERNING LAW; CHOICE OF FORUM
The law of the state of Delaware, excluding its conflicts of law rules, govern your purchase of the Device and this Device EULA. 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.
- THIRD PARTY DISPUTES
MODE Phone LLC 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 is directly between you and such third party, and you irrevocably release MODE Phone LLC and its affiliates from any and all claims, demands and damages of every kind and nature, known and unknown arising out of or in any way connected with such disputes.
- ENTIRE AGREEMENT SEVERABILITY
If any provision of this Device EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.