Terms of Sale
Effective Date: October 18, 2019
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
These Terms of Sale (this “Agreement”) apply to your purchase of products sold by Mode (“Product”) in retail stores or through the www.mode.co website or app (“Site”). You agree to these terms by placing your order. If you have already placed your order and no longer want to be bound to this Agreement then you must either promptly cancel your order or return your purchase. Please act promptly and note that these options may carry restocking or other fees.
1. Binding Agreement
This Agreement may NOT be altered, supplemented or amended by any other document unless the new document is signed by both you and Mode. In order to purchase from the Site you must complete the registration process to obtain a user account and only persons 21 years of age and that have been age verified can purchase products and participate in any promotions or offers from the Site. Our Terms of Service, incorporated into this Agreement by reference, describe further the account creation process and restrictions.
2. Orders, Pricing and Payments
Mode strives to communicate accurate pricing and product information but will not be held responsible for any pricing, typographical, or other errors in such communications. Except where noted otherwise, the prices displayed for Product represent the full retail price listed on the Product itself. All prices are quoted and payable in US dollars, regardless of where an order is placed or shipped. Foreign exchange rates apply and may depend on the date your order was placed. Your order is subject to cancellation by Mode, in Mode’s sole discretion. Unless otherwise agreed to by Mode, payment must be received by Mode prior to Mode’s acceptance of an order. Mode may process payment for and ship parts of an order separately.
Product title passes to you when the Product is shipped. You have 21 days to notify Mode of any missing, wrong, or damaged portion of your purchase or Mode cannot be held responsible for these issues. Unless you provide Mode with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales, VAT, and other taxes associated with the order. Domestic orders are generally processed in 2 to 3 business days. You should receive an email notification once your order has shipped. Product generally arrives in 5 to 7 business days via USPS First Class mail. Successful age verification will ensure timely processing and shipment of your order.
The Mode support team will answer all inquiries as soon as possible. Mode will exchange or refund any Product that is not up to your standard so long as such Product is unused and undamaged with the original hangtags attached, and the return to Mode is initiated within 14 days of receiving your Product with all original packaging and the receipt of purchase. Product must be undamaged to be able to be returned according with the prior requirement. Product must be purchased directly from www.mode.co to be eligible for a return. Should you purchase any Mode branded product from an authorized reseller or other retail outlet, your return will be governed by the return policy of such reseller or retailer. You may not return Mode branded products purchased from resellers directly to Mode. If you would like to return a Product, please email email@example.com and Mode will assist you from there. When Mode’s warehouse accepts your return, they will process the refund for your order. PLEASE NOTE THAT ALL REFUNDS ARE EXCLUSIVE OF SHIPPING COSTS, HANDLING, GIFT BOX, RESTOCKING FEE AND OTHER APPLICABLE CHARGES. All sales in connection with international orders (i.e. orders outside the continental United States) ARE FINAL, as such, Mode does not offer returns or exchanges with respect to international sales. For any questions, comments or concerns regarding RETURNS OR EXCHANGES please email firstname.lastname@example.org. Notwithstanding any provision to the contrary herein, all sale for Products that contain customization and/or personalization, ARE FINAL and cannot be returned.
EXCEPT AS EXPRESSLY MADE BY MODE IN WRITING, MODE MAKES NO WARRANTIES WHATSOEVER FOR PRODUCT. SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
6. Telephone Communications
Telephone communications with us, including calls with any of our agents or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing us with a phone number (including mobile) as your contact number, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
7. Limitation of Liability
MODE DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, OR LOSS OF BUSINESS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MODE WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, MODE IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. SOME JURISDICTIONS MAY NOT ENFORCE ALL OF THESE LIMITATIONS, AND ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY.
8. No Resale or Exploitation
Purchasnes may not be resold or exported. Your purchase is for your own use, not for resale, export, or otherwise for any commercial purposes (including, without limitation, in contests, sweepstakes and/or giveaways). Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws. Any person or entity that sells, resells, distributes or makes available to others, or otherwise uses or exploits any Products or services for commercial purposes without prior written permission of an authorized representative of Mode will void the Product warranty and may be subject to civil action and/or criminal penalty, as prescribed by law.
9. Governing Law
THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES HEREUNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND MODE arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships that result from this agreement, Mode’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW. If any provision in these Terms of Sale is held invalid, the remainder of these Terms of Sale shall continue to be enforceable. If any provision in these Terms of Sales is deemed unlawful, void or unenforceable, then that provision is deemed severable from these Terms of Sale and the remaining provisions are still valid and enforceable.
10. Dispute Resolution and Binding Arbitration
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Mode. For any dispute with Mode, you agree to first contact us via email and attempt to resolve the dispute with us informally. In the unlikely event that Mode has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration. YOU AND MODE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND VAPOR DOSING TECHNOLOGIES, INC., its members, managers, agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (collectively “Mode”) arising from or relating in any way to your purchase of Product, your use of the Site, this Agreement, its interpretation or the breach, termination or validity thereof, the relationships that result from this Agreement (including relationships with third parties who are not signatories to this Agreement), Mode’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable) in Los Angeles County, California. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the customer’s individual dispute or controversy. You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR MODE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be class arbitration). The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Payment for all filing, administration and arbitrator fees will be governed by the rules of the applicable arbitration administrator, provided, that Mode will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If you prevail on any claim that affords the prevailing party statutory attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: (i) American Arbitration Association: (800) 778-7879, www.adr.org; and (ii) JAMS: (800) 352-5267, www.jamsadr.com. If for any reason a claim proceeds in court rather than in arbitration each of you and Mode waive any right to a jury trial. Nothing in this Section shall be deemed as preventing Mode from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.