- We reserve the right to change these Terms from time to time. Any updates to these Terms shall be posted on this website. You acknowledge responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to use any of the New/Mode Sites or Services after we post any such changes, you accept these Terms, as modified. By accessing one of the New/Mode Sites or our Services, you accept these Terms and certify that you have reviewed these Terms and are within or have reached the age of majority or age 18 (whichever is greater) in your jurisdiction. IF YOU DO NOT INTEND ON USING THE SERVICES IN ACCORDANCE WITH THESE TERMS, DO NOT UTILIZE THE SERVICES PROVIDED BY NEW/MODE.
New/Mode subscribers are not permitted to:
- promote or undertake illegal activity;
- promote the limitation of civil, democratic or minority rights;
- promote non-renewable resource extraction;
- promote low wages, precarious work or the undermining of employment rights;
- promote homophobic, transphobic, racist, sexist, classist or otherwise hateful speech;
- promote regressive taxation and privatization of services; and / or
- promote violence, warfare, or colonization.
- New/Mode is mission-driven to make a fairer, more sustainable world. In using the Services, you agree not to:
- Any violation of the above terms is grounds for removal of the offending material, access to your account and data, or your account in its entirety.
SOFTWARE SERVICES AND SUPPORT
- The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, Direct Inward Dialing Numbers (“DIDs”), messaging applications, voice broadcast applications, SMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable Customer to transmit and/or facilitate one-to-one and one-to-many transmission of emails, faxes, phone calls, social media messages, text messages, voice broadcasts and/or other forms of communication to recipients designated by you (collectively, the “Services”).
- Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services and Implementation Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
- Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth above.
RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
- Further, Customer may not remove or export from Canada or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the Government of Canada, or any other Canadian or foreign agency or authority.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (“Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. If Customer is unfamiliar or unclear on the legalities of any use of the Services, Customer must consult with its attorney prior to use of the Services.
- Customer represents and warrants that those Customer initiates messages to through the Company services have consented or otherwise opted-in to the receipt of such communications as required by any applicable law or regulation. Customer agrees that Customer will include clear opt-out/unsubscribe information on all messages or broadcasts when required to do so by any applicable law or regulation and otherwise adhere to the consumer best practices guidelines, if applicable to Customer’s communications. Customer further agrees that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on Customer’s DNC accounts list and further agrees that Customer will not initiate any subsequent messages or broadcasts to any individuals after they request DNC status.
- Customer shall schedule campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international communications time rules and regulations. Customer is solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, for inclusion in any use of the Services.
- Customer agrees to provide legal contact information in any outbound campaign within the initial greeting message. Customer further agrees that Company is, under no circumstances, responsible for the contents and/or accuracy of messages or broadcasts and Company will only transmit them on a basis of good faith that Customer uses the Services in accordance with these Terms. Customer will provide its own sound files for all outbound campaigns. Company will not be liable for any misuse of the Services by Customer. Company is not responsible for the views and opinions contained in any of Customers use of the Services.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY AND PROPRIETARY RIGHTS
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Company as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
- Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
- Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Company shall indemnify and save harmless Customer, its affiliates and their respective directors, officers, employees and agents (collectively, the “Indemnified Parties”) from and against all damages, liabilities, costs and expenses (including legal fees and costs) claimed against or incurred by any of the Indemnified Parties in connection with any claim that the Services or Software infringe or violate the intellectual property or other rights of any third party.
LIMITATIONS OF LIABILITY
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Government of Canada without regard to its conflict of laws provisions.
SERVICE LEVEL TERMS
The Services shall be available 99.9%, measured monthly, excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 2.5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Company only provides that communications services (including but not limited to phone, fax, SMS and email) are processed correctly and delivered by Company to the applicable network or server. Company is not responsible for the final delivery of any communication initiated through Company’s Services, as this is out of Company’s control and is the responsibility of the communications carrier.
Company transmits and receives text messages and voice broadcasts via major telecommunications companies and mobile network operators, and thus Company’s influence over the timing of the transmission of Customer’s messages and broadcasts is within the technical constraints imposed upon Company. While Company shall use commercially reasonable efforts to transmit messages and broadcasts to the applicable network for final delivery to designated recipients as fast as possible, Company cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of messages and broadcasts across the public switched telephone network and/or Internet. Customer should know that communications carriers assign text messages and voice broadcasts with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Company is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and Customer acknowledges that damages for financial or other loss resulting from delivery failure cannot be claimed from Company for any such non-deliveries. Furthermore, Customer agrees that message and broadcast contents are deemed to have zero value.
MOBILE SHORT CODE TERMS OF SERVICE
The following terms apply to all users interacting with New/Mode’s short code services. New/Mode customers using New/Mode’s short code features may adopt additional terms of service between themselves and their users, but the following minimum terms apply to all users. In the event of any conflict between these terms and the mobile terms of service of a specific New/Mode customer using New/Mode’s short code features, these terms prevail. Any customer found to be in violation of these terms will be issued a compliance notice by New/Mode, and will be given one (1) business day to comply. Failure to comply will result in removal of access to the short code services without compensation.
1 . When a user opts in to the service, they will be sent an SMS message to confirm their signup.
2 . Opted in individuals will receive messages exclusively from the New/Mode customer(s) that they have opted-in to communicate with. This may include one-time broadcast messages or a series of questions to collect information needed to put individuals in direct contact with their elected representatives so that they can voice opinions regarding policy issues.
3 . A user can opt out of receiving messages at any time by texting "STOP" to 32223 . After a user sends the SMS message "STOP" to 32223 they will be sent an SMS message to confirm that they have been unsubscribed. After this, they will no longer receive SMS messages from 32223 unless they opt back in via New/Mode’s sign up process.
4. If at any time a user forgets what keywords are supported, they can text "HELP" to 32223 . After they send the SMS message "HELP" to 32223 they will receive instructions on how to use the service as well as how to unsubscribe.
5 . New/Mode is able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for delayed or undelivered messages *** New/Mode is not Liable for delayed or undelivered messages once they have been passed on to MS service providers and carriers for sending.
6 . As always, message and data rates may apply for any messages sent to a user from 32223 and to 32223 from the user. The number of messages that a user receives from New/Mode SMS services will vary depending on the terms and conditions outlined in the SMS campaigns that they have agreed to participate in. If a user has any questions about their text plan or data plan, it is best to contact their wireless provider. For all questions about the services provided by this short code, users can send an email to firstname.lastname@example.org.