Effective Date: March 13, 2015
1. ACCEPTANCE OF TERMS
ACCEPTANCE OF TERMS
These Terms of Service (“Terms”) are an agreement between you and Mode Media Corporation (“Mode Media”, “us”, “our” or “we”) and sets forth the legally binding terms governing your use of the services provided by Mode Media which are available on any sites that link to these Terms (collectively, the “Sites”), including your participation in any public areas of the Sites, such as social networking, user profiles, chat rooms, discussion forums, review areas or bulletin boards (the “Public Areas”), provided through the Sites, as well as our other related services, tools, and other applications that link to these Terms, and any other way in which you connect with us or the services which are available through Mode Media on its behalf and on behalf of its marketing partners (collectively, the “Services”).
Please read these Terms carefully before using the Sites or Services because they are a legally binding document and affect your legal rights and obligations.
ARBITRATION NOTICE: Except if you opt-out and except for certain types of disputes described in the Arbitration Section below, you agree that disputes between you and Mode Media will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
Each time that you access our Sites or use our Services you signify that you have read, understand, and agree to be bound by our privacy and security policy incorporated herein by reference. If you do not agree to any of the terms of the privacy and security policy or these Terms, you must discontinue using the Services. By using the Services, you represent and warrant that you have the right, authority and capacity to enter into this agreement and to abide by its Terms.
UPDATES TO TERMS
Mode Media reserves the right to update or change these Terms at any time by posting the most current version of the Terms on the Sites with a new Effective Date shown. All such changes in the Terms shall be effective from the Effective Date. Your continued use of the Services after we post any changes to the Terms signifies your agreement to any such changes.
By accessing or using the Services, you consent to having these Terms provided to you in electronic form and that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
You have the right to receive these Terms in non-electronic form. To receive a non-electronic copy of these Terms, please email us at email@example.com or send a letter and self-addressed stamped envelope to: Mode Media Corporation, 150 W. 30th St., 10th Fl., New York, NY 10001, Attn: Legal Department.
When you provide us with contact information in connection with a particular activity or product or otherwise when using our Services, including an email address or telephone number in connection with that activity, product or service, you agree that this action constitutes an inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent and you attest that you have the legal authority over any contact information provided to us, including your mobile or other telephone number, and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving). Please keep contact information up to date: you are solely responsible for any contact information you provide to us.
PRIVACY AND SECURITY POLICY
In addition to reviewing these Terms, you should also read our Privacy and Security Policy to understand how we collect and use your personal information. Your use of the Services constitutes your agreement to its terms and conditions.
2. YOUR USE OF THE SERVICES
ELIGIBILITY TO USE THE SERVICES
The Sites and the Services are not intended for users under the age of 18. To register for any Services, you must be 18 years of age or older. Mode Media does not knowingly collect personally identifiable information from users under the age of 18.
USE OF THE SERVICES BY YOU
Except as may be set forth in these Terms, access to the Services does not grant to you any right to use, reproduce, copy, modify, transfer, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method or process any content on the Sites for any purpose other than for use on the Sites and through the Services. Your right to use the Services is personal to you and you are responsible for all use of the Services by you or under your account. You agree to use the Services only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability.
NON-COMMERCIAL USE ONLY
The Sites are for the personal use of individuals only and may not be used in connection with any commercial endeavors. You agree not to make unauthorized use of Services of any information or other content accessible on or through the Sites or Services by publication, re-transmission, distribution, performance, caching, or otherwise, except as permitted by law or as expressly permitted in writing by these Terms. Illegal and/or unauthorized uses of the Services, including efforts to collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Sites, will be investigated and appropriate legal action will be taken, including without limitation, civil, criminal and injunctive redress.
CONTENT THAT YOU POST
You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “User Content”) that you submit, post or display on or via the Services. Accordingly, you represent and warrant that: (i) you own the User Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of your User Content on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Services; and (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction.
MODE MEDIA IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION POSTED ON OR ACCESSIBLE THROUGH THE SITES.
LICENSE TO USE USER CONTENT
Mode Media does not claim ownership of any User Content that you post on or through the Services. Instead, you hereby grant to Mode Media a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the User Content that you post on or through the Services.
REPORTING COPYRIGHT AND OTHER IP VIOLATIONS
Mode Media has adopted and implemented the Mode Media Copyright Policy in accordance with the Digital Millennium Copyright Act (“DMCA”).
We provide you with tools to help you protect your intellectual property rights. To learn more about how to report claims of intellectual property infringement, visit our Copyright Policy.
REGISTRATION WITH THE SITE
To register on the Sites and use the Services, you may be required to create an account and provide certain information about yourself including, without limitation, your name, email address, date of birth/age, and create a username, password, and a user profile. You may not (i) select a username of another person with the intent to impersonate that person, or (ii) select a username that Mode Media deems, in its sole discretion, to contain Unacceptable User Content. If you choose to create an account, you agree to provide (i) true, accurate, current and complete information about yourself, and (ii) maintain and properly update the information in your account as needed. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your account. Mode Media reserves the right to refuse the registration of an account, or cancel an account, in its sole discretion.
You will be responsible for maintaining the confidentiality of your password that you use to access the Sites and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. Mode Media will not be liable for any loss or damage arising from your failure to comply with the above requirements.
UNACCEPTABLE USER CONTENT
Mode Media may make certain Services available to registered users and facilitate such users’ ability to post User Content to Public Areas and/or private portions of the Sites, subject to the restrictions set forth in these Terms. If you post any User Content to any portion of the Sites, you agree not to post any unacceptable User Content, which determination will be in Mode Media’s sole discretion (“Unacceptable User Content”).
The following list generally outlines what is deemed Unacceptable User Content by Mode Media but does not set forth a comprehensive listing of Unacceptable User Content and practices prohibited by Mode Media. Mode Media reserves the right, at any time, without notice, to delete, edit, and/or remove from the Sites any User Content and to bar any user from posting User Content to the Sites. Further, Mode Media may revise these restrictions at any time without prior notice.
Unacceptable User Content includes, but is not limited to, content that:
- is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
- offers or disseminates any fraudulent goods, services, schemes or promotions, including any “make money fast” schemes or pyramid schemes;
- promotes an illegal or unauthorized copy of another person’s copyrighted work, or infringes upon the intellectual property rights or other proprietary rights of any third party, including the copyrights, trademarks, trade names, trade secrets, patents or rights of publicity of such third party;
- includes any material that is encrypted or that involves the transmission of “junk mail,” unsolicited mass mailing or spamming;
- is harmful to Mode Media’s or any other party’s systems and networks, including any transmissions which may damage, surreptitiously intercept, or expropriate any system, program, data or personal information;
- violates any obligation of confidentiality or violates the privacy, publicity, moral or any other right of any third party;
- is intended to offer professional legal, medical, investment, or other such advice;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
In addition you may not use the Sites or Services for the following purposes determined in Mode Media’s sole discretion:
- to reverse engineer, decompile or disassemble any software accessed through the Services, including any proprietary communications protocol used by Mode Media or to use or copy any content or data you view on and/or obtain from the Services to provide any product or service that is competitive to Mode Media;
- to engage in spamming, “chain letters”, “pyramid schemes”, advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms, any applicable laws, regulations or generally-accepted best practices;
- in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
- in a manner that is libelous or defamatory, or in a way that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another’s privacy;
- in a manner that is harmful to minors in any way;
- to impersonate any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to the Services without authorization;
- to interfere or attempt to interfere with the proper working of the Sites or Services or prevent others from using the Sites or Services, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Sites, or that otherwise negatively affects other persons’ ability to use the Sites or Services;
- by use of automated means, including agents, robots, scripts, or spiders;
- in a manner that includes personal or identifying information about another person without that person’s explicit consent;
- in a manner that constitutes or contains any form of advertising or solicitation;
- to stalk or otherwise harass anyone;
- to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Mode Media server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
- to collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of applicable law or regulations;
- to request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any user of the Services for the purposes of automating logins to our Sites;
- to post any content whatsoever that is false, defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind;
- to attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Sites;
- to develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Sites or Services; or
- post content that contains links to other sites that contain the kind of content, which falls within the descriptions prohibited by this section.
SUSPENSION OR TERMINATION OF YOUR USE
Your failure to follow these Terms may result in suspension or termination of your access to the Services, without notice, in addition to Mode Media’s other remedies. Mode Media further reserves the right to terminate, without notice, any user’s access to or use of the Sites for any reason.
If you encounter something you find objectionable and in violation of these Terms, you can report it to firstname.lastname@example.org.
You agree to indemnify Mode Media and its affiliates, employees, agents, representatives and third party service providers, and to defend and hold each of them harmless, from any and all claims and liabilities (including attorneys’ fees) which may arise from your postings of User Content or other communications, from your unauthorized use of User Content, from your unauthorized use of the Services or Site Content, or from your breach of or other non-compliance with these Terms.
3. PROPRIETARY RIGHTS
OWNERSHIP OF THE SITES AND SITE CONTENT
The Services, and all content published on or accessible through the Sites or Services (which includes but is not limited to text, tests, photographs, video, graphics, music, images, animations, audio, software, plug-ins, incorporated into the software, data, sounds, messages, comments) (collectively, “Site Content”) is owned by Mode Media or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. Mode Media owns a copyright in the selection, coordination, arrangement and enhancement of such Site Content and a copyright in the Sites. All trademarks, logos, service marks, trade names, and trade dress appearing on the Sites (“Marks”), are proprietary to Mode Media or its licensors. You acknowledge that you do not acquire any ownership rights in any Site Content or Marks downloaded from the Sites. You may not frame or utilize framing techniques to enclose any Mark or Site Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing Mode Media’s name or Marks without the prior express written consent of Mode Media. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any Sites, Services or any of the Marks or Site Content, in whole or in part, without the prior written consent or Mode Media. Mode Media grants you a limited, revocable, non-sublicenseable license to access (but not through scraping, spidering, crawling or other technology or software used to access data), and display the Site Content and User Content (excluding any software code) solely for your use in connection with and as reasonably necessary to use the Sites or Services for their intended purpose. Mode Media reserves all rights not expressly granted in and to the Marks, Site Content, Sites and Services.
NO OTHER LICENSE GRANTED
Except for allowing you to use the Sites and Services for your use as set forth herein, when you use the Sites or Services, you are not receiving a license or any other rights from Mode Media, including intellectual property or other proprietary rights of Mode Media. You understand that you have no rights to the Site Content, User Content or Services or any other Mode Media’s or its licensees’ property except as indicated.
TERMINATION OF SERVICES
Mode Media reserves the right without notice, at any time and for any reason, to terminate the Sites or any portion thereof or any Services offered through the Sites.
4. LEGAL NOTICES
USE OF THE SITES IS AT YOUR OWN RISK
Any User Content disclosed in Public Areas is public information that may be viewed and collected by any party. Mode Media cannot control the use of information disclosed through the posting of User Content on Public Areas. We urge you to protect your privacy by not disclosing personally identifiable information. You acknowledge that your posting and use of User Content is at your own risk. You agree that Mode Media and its third party service providers are not responsible and will have no liability to you, with respect to any User Content posted to the Sites by you or others, including any Unacceptable Content that violates these Terms.
CONTENT POSTED BY USERS IS NOT ENDORSED BY MODE MEDIA
Mode Media does not necessarily endorse, support, sanction, encourage, verify, or agree with the User Content posted by users on the Sites. Any User Content posted on the Site, including advice and opinions, are the views and responsibility of those who post the User Content and does not represent the views of Mode Media. Mode Media reserves the right, but undertakes no duty or obligation, to review, edit, move or delete any User Content posted on the Sites, in its sole discretion, without notice and you may bear legal responsibility for User Content you post.
THIRD PARTY LINKS
NO LIABILITY FOR ACCUMULATED CONTENT
Mode Media reserves the right to remove any User Content from the Services for any reason, without prior notice. User Content removed from the Services may continue to be stored by Mode Media, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable. Consequently, Mode Media encourages you to maintain your own backup of your User Content. In other words, Mode Media is not a backup service and you agree that you will not rely on the Services for the purposes of User Content backup or storage. Mode Media will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any User Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of User Content or other information may not be secure. MODE MEDIA DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY USER CONTENT RESIDING ON ITS SERVERS AND HAS THE RIGHT TO DELETE ANY CONTENT AT ANY TIME FOR ANY REASON.
DISCLAIMER OF WARRANTIES
YOU UNDERSTAND THAT YOUR USE OF THE SITES AND SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING OR ACCESSING THE SITES AND SERVICES) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE SITES AND SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SITES OR SERVICES, ARE PROVIDED ON AN “AS IS”, “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. IN ADDITION TO THE PRECEDING PARAGRAPH AND OTHER PROVISIONS OF THESE TERMS, ANY ADVICE THAT MAY BE POSTED ON THE SITES IS FOR INFORMATIONAL OR ENTERTAINMENT PURPOSES ONLY AND IS NOT INTENDED TO REPLACE OR SUBSTITUTE FOR ANY PROFESSIONAL OR MEDICAL ADVICE. YOU ACKNOWLEDGE THAT MODE MEDIA MAKES NO WARRANTY THAT THE SITES OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND THAT MODE MEDIA DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF MODE MEDIA WILL MEET YOUR EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OR THE DISCLAIMERS SET FORTH IN THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY OF THE SERVICES OR CONTENT ACCESSIBLE OR CONTAINED ON THE SITES OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES AND SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, MODE MEDIA DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE) AS TO THE SITES, SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS, AND CONTENT) INCLUDED ON OR ACCESSIBLE FROM THE SITES AND SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODE MEDIA, ITS AFFILIATES AND ITS THIRD PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS, THE PROVISION OF SERVICES HEREUNDER, YOUR ACCESS TO OR INABILITY TO ACCESS THE SITES OR ITS SERVICES, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICES, YOUR USE OF OR RELIANCE ON THE SERVICES, THE SITE CONTENT, USER CONTENT OR OTHER MATERIALS AVAILABLE THROUGH THIRD PARTY SITES LINKED TO THE SITES, ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
YOU HEREBY AGREE TO RELEASE MODE MEDIA, ITS AFFILIATES AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (“CLAIMS”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITES AND SERVICES.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF MODE MEDIA’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY MODE MEDIA, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY MODE MEDIA.
If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
THE SITES ARE FOR USE IN THE UNITED STATES.
The Sites are hosted in the United States and is intended for users located in the United States. If you are a non-U.S. user of the Sites or Services and/or providing us with any User Content, you agree to comply with all federal and state U.S. laws governing the Sites and Services, online conduct and acceptable User Content.
Software related to or made available by the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list
NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in these Terms, there will be no third party beneficiaries to these Terms.
DATA COLLECTION POLICY
All data generated by or collected from us or our users while visiting our Sites or accessing our Services is our property. Any third party collecting or attempting to collect data from us or our users (a “Data Collector”) is hereby notified that it is subject to the following Data Policy. No party unaffiliated with us may collect or use, or direct, authorize or assist other persons or entities to collect or use, any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission. For example, no data may be collected, used or transferred for purposes of retargeting, behavioral remarketing, or targeting any advertisements, segment categorization or any form of syndication which is related to our Services, the Site Content, or our users or User Content without our prior express written permission of in each instance. The data covered by this policy includes, but is not limited to, data collected via any advertising unit, widget, pixel tag, cookie, script or other data collection process.
It is Mode Media’s policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, Mode Media does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that Mode Media is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
5. ARBITRATION FOR RESOLUTION OF DISPUTES
Governing Law. Mode Media makes no representation that the User Content, Site Content, the Services or any other services or products offered through the Sites or Services are appropriate, available or legal in any particular location. Those who choose to access the Site Content, the Services and products offered through the Sites do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. These Terms shall be governed by and construed in accordance with the laws of the New York without application of conflict of laws rules, except that the Arbitration provision shall be governed by the Federal Arbitration Act.
Resolution Of Any Dispute. In the event a dispute arises between you and Mode Media, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most user concerns can be resolved quickly and to the user’s satisfaction by contacting us via email at email@example.com. If, however, there is an issue that needs to be resolved, these Terms describe how both of us will proceed:
Timing Of Dispute. Any claim you may have with respect to Sites, the Services, or the content accessed through the Sites and Services must be commenced within two (2) years after the claim arises or it will be barred.
Limitation Of Legal Remedies. INSTEAD OF SUING IN COURT, YOU AND MODE MEDIA EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS. You and Mode Media agree that any dispute, controversy or claim arising out of or relating to any aspect of our relationship; the User Content or Site Content; claims that may arise after the termination of your use of our Services; and claims related to marketing efforts, including complaints concerning unsolicited text messages and emails (“Claim(s)”) which cannot be settled through our internal processes will be resolved by one arbitrator through binding arbitration. These Terms to arbitrate is intended to be broadly interpreted. It includes Claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Class Action Waiver. We each agree that each of us are waiving the right to a trial by jury and may bring claims against the other only in an individual capacity and not in a class action or representative proceeding. All arbitrations under these Terms will be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others or joining in any arbitration proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought. All Notices to Mode Media will be sent to the following address: Mode Media Corporation, 150 W. 30th St., 10th Fl., New York, NY 10001, Attn: Legal Department. All notices to users will be sent to the email and/or address provided by the user upon registration. Upon receipt of such Notice, the other party will have a sixty (60) day period in which it may satisfy the Claim against it by fully curing the Claim and/or providing all the relief requested in the Notice, and/or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or Mode Media may commence an arbitration proceeding. The arbitration of any Claim under these Terms will be referred to the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures are available by calling the AAA or by visiting its websites at www.adr.org. The arbitration of any Claim will be conducted in the State of New York, and for any non-frivolous claim that does not exceed $1,000 Mode will: (1) pay all costs of the arbitration; (2) if you prefer will conduct the arbitration by telephone, and (3) will not seek attorney’s fees in the event Mode prevails. Each party will pay the fees and costs of its own counsel, experts and witnesses.
Choice Of Law. These Terms concerns a transaction in interstate commerce, and therefore will be governed by the United States Federal Arbitration Act, 9 U.S.C. Â§ 1 et seq. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Exception. All parties, including related third parties, will retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, will be resolved by binding arbitration, with the exception of any claim or action for indemnification, contribution, interpleader, or injunctive relief arising out of a Claim, which claims or actions will not be subject to arbitration. Any appeal of a judgment from a small claims tribunal will be resolved by binding arbitration.
Survival. This arbitration provision will survive termination of these Terms and/or the termination of your account.
Severability. If any provision of these Terms is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable except that if for some reason this prohibition on Class Action Waiver cannot be enforced, then these Terms to arbitrate will not apply.
These Terms and policies incorporated herein are the entire agreement between you and Mode Media. They supersede any and all prior or contemporaneous agreements between you and Mode Media relating to your use of the Sites or the Services. Mode Media may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and will not affect the interpretation or construction of these Terms. The failure of Mode Media to partially or fully exercise any rights or the waiver of Mode Media of any breach of these Terms by you, will not prevent a subsequent exercise of such right by Mode Media or be deemed a waiver by Mode Media of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Mode Media under these Terms and any other applicable agreement between you and Mode Media will be cumulative, and the exercise of any such right or remedy will not limit Mode Media’s right to exercise any other right or remedy.
7. CONTACTING MODE MEDIA
If you have any questions about these Terms please email us at firstname.lastname@example.org, or write to us at
Mode Media Corporation,
150 W. 30th St., 10th Fl.,
New York, NY 10001.
Copyright © 2015 Mode Media Corporation. All Rights Reserved.