Effective Date: April 17, 2018
These Terms of Service (the "Terms") govern your use of the data analysis platform and associated tools (collectively, the "Service") made available by Mode Analytics, Inc. ("Mode"), including as made available through our website at modeanalytics.com. Your use of the Service indicates that you agree on behalf of yourself or the entity that you represent (collectively, "you") to be bound by these Terms. YOU AGREE THAT THESE TERMS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.
We reserve the right to modify these Terms prospectively at any time. We will post any changes to these Terms on our website and will indicate the date the Terms were last revised. Your continued use of the Service after any such change constitutes your acceptance of the updated Terms.
European Economic Area (EEA) Residents:
The Service contains two primary functions—a "public" function and "private" function. You have the option to use the public function, the private function, or both.
Public function. The "public" function enables users (i) to publicly share their data, as well as queries and associated data analyses, with all other users of the Service, and (ii) to access, manipulate and collaborate on the data, queries and data analyses shared via the public function by other users. The public function is free to all users.
Private function. The "private" function enables users of each private group (i) to share data, as well as queries and associated data analyses, only with other authorized users of that particular private group, and (ii) to access, manipulate and collaborate on the data, queries and data analyses shared by the other users of that private group. Mode offers both free and premium versions of the private function, with the free version having more limited functionality, as described on our website.
All data, queries, comments, analyses or other content is collectively referred to in these Terms as "Content." All Content uploaded or posted to, or otherwise made available on, the Service through your account is collectively referred to in these Terms as "Your Content."
In order to use the Service, you must register and set up a user account. The user registration process requires that you agree to these Terms.
The Service is intended solely for individuals who are at least 13 years of age or older. Any registration on or use of the Service by anyone under 13 is unauthorized. By using the Service, you represent and warrant that you are at least 13 years old.
If you are a government user or otherwise accessing or using the Service in your capacity as an employee of a government or public entity, the Amendment to these Terms (available here
) shall apply to you.
. You are responsible for all activities that occur under your account and for keeping your password and log-in information secure. Please keep in mind that your name and the user name on your account will be viewable by other users of the Service. You agree that you (1) will monitor your account, (2) will not share your account or password with anyone, and (3) will notify Mode immediately of any unauthorized use of your account or password, or any other breach of security.
You agree to provide us with true, accurate and complete information as requested in our registration process. You also agree to update such information promptly as necessary to keep it current and accurate.
The public function is available free of charge for public use and allows you only to view information other Mode users disclose using the public function. When you use the public function, you may disclose or upload Your Content using only the public function. You may also perform analysis on Your Content or on others’ Content.
The private function is available in two versions: (i) free of charge (with limited functionality) and (ii) as a premium paid Service (“Premium Service”).
Our Premium Service allows you not only to view publicly disclosed information, but also to establish and use dedicated private accounts and share content on a private basis, among other things.
The Premium Service is available for a fee. You will be invoiced in accordance with the terms of the applicable Order Form. If applicable, you will be billed monthly, in arrears, for Mode users in your organization for whom you did not already purchase annual licenses, and any other applicable fees.
You agree to pay all fees or charges to your account for the Premium Service in accordance with the fees, charges and billing terms in effect at the time that each fee or charge is due and payable. Unless otherwise indicated in an order form, you must provide Mode with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Premium Service. Your Payment Provider agreement governs your use of the designated credit card account, and you must refer to that agreement and not the Terms to determine your rights and liabilities with respect to your Payment Provider. By providing Mode with your credit card number and associated payment information, you agree that Mode is authorized to verify information immediately, and subsequently invoice your account for all fees and charges due and payable to Mode hereunder and that no additional notice or consent is required. You agree to immediately notify Mode of any change in your billing address or the credit card used for payment hereunder. Mode reserves the right at any time to change its prices and billing methods, either immediately upon posting on our website or by e-mail delivery to your organization’s administrator(s).
Any attorney fees, court costs, or other costs incurred in collection of delinquent undisputed amounts shall be the responsibility of and paid for by you.
All fees for the Services are non-refundable. No contract will exist between you and Mode for the Services until Mode accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
You are responsible for any third-party fees that you may incur when using the Service.
You agree not to upload to or otherwise make available through the Service any of the following:
any Content subject to copyright that is not your original work, unless you have permission from the rightful owner to post such Content and to grant Mode all of the licensed rights granted herein;
any confidential or private information of any third party;
any Content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
any Content that infringes or misappropriates third-party intellectual property rights, or is invasive of privacy or publicity rights.
In using the Service, you also agree not to do any of the following:
represent or imply that you are a representative of Mode or that any of Your Content is endorsed by Mode;
impersonate any other person or entity in your account, or falsely state or otherwise misrepresent yourself or your affiliation with any other person or entity in your account;
use or attempt to use another user's account;
intimidate or harass another user of the Service;
conduct any activities that could damage, disable, overburden or impair the Service, including by writing any malicious code or attempting to alter any of the raw data available through the Service;
modify another online offering or service so as to suggest that it is affiliated with the Service; or
use the Service in a way that is not in compliance with any applicable law, rule or regulation.
While we believe in accurate and truthful analysis, we cannot moderate all Content on the Service. Accordingly, you acknowledge that Mode does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any Content uploaded to or otherwise made available on the Service, whether by Mode or by or on behalf of any user, or any opinion or result derived from any such Content. You further acknowledge that Mode does not provide any warranty for any Content uploaded to or otherwise made available through the Service.
Mode does not assert ownership over any of Your Content. Rather, subject to the rights granted to Mode and our users in these Terms, you retain full ownership of all of Your Content and any intellectual property rights or other proprietary rights thereto.
You understand and agree that you are solely responsible for all of Your Content. This means that you are responsible for all comments and analysis added through your account to any Content made available on the Service by other users. It also means that such other users (and Mode) are not responsible for any comments or analysis added through your account to their Content. And you (and Mode) are not responsible for any comments or analysis added to Your Content by other users.
For any of Your Content that you designate for Mode's public function (thereby viewable by all users of the Service), you grant Mode a non-exclusive, irrevocable, perpetual, transferable, fully paid, worldwide license to use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and publicly display Your Content on the Service. For any of Your Content that you designate for a private function, you grant Mode a non-exclusive, irrevocable, perpetual, transferable, fully paid, worldwide license to use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and publicly display Your Content solely on such private function of the Service. You also grant Mode a non-exclusive, irrevocable, perpetual, transferable, fully paid, worldwide sublicensable license to authorize users of the Service to use any of Your Content obtained via the Service. You authorize Mode to store copies of any or all of Your Content as we deem necessary in order to facilitate the operation of the Service. You acknowledge and agree that these licenses will survive any termination of your account or these Terms.
You represent and warrant that you have all rights, consents and/or permissions necessary to grant the licenses in the previous paragraph, including under any and all copyright, trademark, and other intellectual property rights, as well as any moral rights, rights of privacy, rights of publicity and similar rights of any type in or to Your Content. You may not upload to or otherwise make available on the Service any Content for which you do not have all necessary rights, licenses, consents or permissions needed to so make available such Content on the Service.
You should exercise caution, good sense and sound judgment in uploading or otherwise providing any Content to the Service. You should not provide any Content to the public function of the Service that is confidential or proprietary to you, your employer or any third party for which you do not have permission to disclose such Content. Please keep in mind that any content that you upload to or otherwise make available to the public function of the Service will be publicly available (to all registered users of the Service), and any content that you upload to or otherwise make available to a private group on the Service will be available to other users of that particular private group. Registered users not only have access to view Your Content made available on the public function, but they may also perform analyses on Your Content. For any of Your Content that you intend to disclose to a private group using Mode’s private function, you are responsible for ensuring that you properly designate and use the private function for Your Content. Mode will not be responsible if you incorrectly designate Your Content for Mode’s public function, and publicly disclose Your Content that you intended to remain confidential or private. The Premium Service has certain functionality (“secret embeds”) that allows you to expose Your Content created in Mode’s private function to people who are not authenticated to the Service. Mode will not be responsible if you expose private information using this or similar features.
You understand and agree that Mode has no obligation to pre-screen Content (including, but not limited to Your Content), but Mode reserves the right to pre-screen, refuse or remove any Content. Mode may, but is not obligated to, review Content posted to the Service from time to time, and may delete or remove (without notice) from the Service any of Your Content in our sole discretion, for any reason or no reason, including if in our judgment such Content violates these Terms, might be offensive or illegal, or might harm or violate the rights or threaten the safety of our users or third parties.
You are solely responsible for your interactions with other users of the Service and any other third party, including any disputes between you and any other user of the Service. YOU AGREE THAT MODE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING FROM ANY DEALINGS BETWEEN YOU AND ANY OTHER USER OF THE SERVICE OR OTHER THIRD PARTY.
We reserve the right, but have no obligation, to monitor or attempt to mediate any dispute between you and any other user of the Service.
You agree to indemnify, defend and hold harmless Mode, and its directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable attorney's fees) arising out of or in connection with (i) any allegation that any of Your Content infringes or misappropriates any intellectual property or other proprietary right of a third party or violates any applicable law, (ii) your conduct in connection with the Service, and/or (iii) any violation by you of these Terms.
Except as otherwise provided elsewhere in these Terms, the Service (including the layout and organization of the Service and the Content available thereon) is the intellectual property of Mode or our licensors, with all rights reserved.
Subject to the terms and conditions of these Terms, Mode grants you a non-exclusive, revocable, limited license to access and use the Service, and to access, use, export and download the Content available thereon, all solely as enabled by the Service and subject to these Terms. Any use of the Service or any Content available thereon other than as specifically authorized in these Terms, without the prior written permission of Mode, is strictly prohibited and will automatically terminate the foregoing license granted to you. Also, this license will terminate upon any suspension, termination or cancellation of your access to the Service.
You agree not to do any of the following:
Reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Service, or any part thereof.
Attempt to derive the source code or structure of the Service, or any part thereof.
Remove from the Service, or alter, any of Mode's or any of our licensors' trademarks, trade names, logos, patent or copyright notices, or other notices or markings.
Distribute, sublicense or otherwise transfer access to the Service to others.
The U.S. Digital Millennium Copyright Act ("DMCA") provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that any Content uploaded or otherwise made available on the Service infringes upon any copyright which you own or control, you may so notify us in accordance with our DMCA process available here
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, the accounts of users of the Service who are deemed to be repeat infringers. Mode may also at its sole discretion limit access to the Service or terminate the account of any user who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
All trademarks, service marks, logos and trade names associated with Mode and/or the Service, whether registered or unregistered, are proprietary to Mode (or to other companies where so indicated). Such marks may not be used, including as part of others' trademarks or domain names, in connection with any product or service in any manner that is likely to cause confusion, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Mode.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW). MODE DOES NOT GUARANTEE ANY SPECIFIC RESULT FROM USE OF THE SERVICE, AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ERROR-FREE OR WILL PROVIDE ACCURATE, COMPLETE, RELIABLE, OR CURRENT INFORMATION.
Without limiting the foregoing, you acknowledge that Mode is not responsible or liable in any manner to you for any Content uploaded to or otherwise made available on the Service, whether uploaded or made available by users of the Service, by Mode, by a third party, or by any of the equipment or software underlying the Service. Mode shall not be responsible for any deletion, correction, destruction, damage, loss, failure to store, or theft of (or unauthorized access to) any of Your Content.
In connection with making the Service available, we engage certain third-party vendors that provide hardware, software, networking, storage, and/or related technology necessary for the operation of the Service. Accordingly, our operation of the Service, including making Your Content available on the Service, may involve (i) transmissions of Your Content over various networks; (ii) changes to Your Content to conform and adapt it to technical requirements of connecting networks or devices, and (iii) transmission of Your Content to third-party vendors. In light of the foregoing, you acknowledge that you will be solely responsible for the security of Your Content and for protecting and backing up Your Content.
The Service may be temporarily unavailable from time to time for maintenance or other reasons. Mode is not responsible for any technical malfunction or any other problem with any network or service, server or other equipment, software, or any other system associated with your use of the Service. Under no circumstance will Mode be responsible for any loss or damage to your equipment, software or other technology resulting from your use of the Service or any Content available on the Service, or for any loss or damage you incur from any interactions with another user of the Service (whether online or offline).
Mode reserves the right to modify the Service at any time without notice.
IN NO EVENT WILL MODE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, PARTNERS OR AGENTS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER SPECIAL OR INDIRECT DAMAGES (INCLUDING FOR ANY LOST BUSINESS PROFITS) OR FOR PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE SERVICE, EVEN IF MODE IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Mode may terminate your access to the Service, delete your account and/or prohibit you from using or accessing the Service for any reason or no reason at any time in its sole discretion, with or without notice. You may cancel your account at any time by electing the account cancellation option in the account settings functionality of the Service.
Your use of the Service and these Terms shall be governed by, and construed in accordance with, the internal laws of the State of California without reference to the choice of law or conflicts of law principles thereof, and all claims relating to or arising out of your use of the Service or these Terms, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of California without reference to the choice of law or conflicts of law principles thereof.
Any dispute, claim or controversy arising out of or relating to the Service or these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before a panel of three neutral arbitrators, unless the matter in controversy is within the scope of an applicable small claims court's jurisdiction. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude Mode or you from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Note that there is no judge or jury in an arbitration proceeding and the decision of the arbitrator shall be binding upon both parties.
These Terms constitute the entire agreement between you and Mode regarding the use of the Service, superseding any prior agreements between you and Mode relating to your use of the Service. The failure of Mode to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms is held invalid, the remainder of these Terms shall continue in full force and effect. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
The following provisions shall apply only if you are located in the countries listed: United Kingdom: A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act. Germany: Notwithstanding anything to the contrary in Section 14, Mode is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
If you have any questions regarding these Terms, please contact us by sending an email to email@example.com