Effective date: July 19, 2020
i. Acceptance Of Terms
Pass the Mustard/Andrew White provides a mobile-based messaging and other functionalities app, a website with messaging and other functionalities, and other online services, (referred to hereafter as "the Service") subject to the following Terms & Conditions (hereinafter referred to as "T&C"). By using the Service in any way, you are agreeing to comply with the T&C. In addition, when using any specific but not limited to Pass the Mustard services, you agree to abide by any applicable additional Terms & Conditions which may be posted for that Pass the Mustard service, which may change from time to time. Should you object to any term or condition of the T&C, any guidelines, or any subsequent modifications thereto or become dissatisfied with Pass the Mustard in any way, your only recourse is to immediately discontinue the use of Pass the Mustard.
ii. Modifications To This Agreement
Pass the Mustard reserves the right, in its sole discretion, to change, modify or otherwise alter these terms and conditions at anytime. Such changes, alterations, updates and modifications shall become effective immediately upon the posting thereof. You must review this agreement regularly to keep yourself apprised of any changes. You can find the most recent version of the T&C at: http://passthemustard.app/terms-of-use.html
USER understands that all postings, messages, text, files, images, photos, video, sounds, or other materials ("Content") posted on, transmitted through, or linked from the Service, are the sole responsibility of the USER from whom such Content originated. More specifically, USER is entirely responsible for each item ("Item") of Content that is posted, emailed or otherwise made available via the Service. USER understands that Pass the Mustard does not control, nor is responsible for Content made available through the Service, and that by using the Service, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, and/or otherwise objectionable. Furthermore, the Pass the Mustard site and Content available through the Service may contain links to other websites, which are completely independent and not affiliated with Pass the Mustard which could expose USER to offensive, indecent, inaccurate, misleading and/or objectionable Content. Pass the Mustard makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such link or its target site. USER'S choice to link to any other websites is at their own risk. USER must agree to bear all risks associated with, the use of any Content. Any reliance upon Content by USER is at USER'S sole discretion and under no circumstances will Pass the Mustard be liable in any way for any Content or for any loss or damage whether actual, consequential or incidental incurred as a result of the use of any Content posted, emailed or otherwise made available via the Service. USER acknowledges USER'S authority to post any web content shared on Pass the Mustard. You acknowledge that Pass the Mustard does not pre-screen or approve Content, but that Pass the Mustard shall have the right (but not the obligation) in its sole discretion to refuse, delete or remove any Content that is available via the Service, for violating the letter or spirit of the T&C or for any other reason, in the sole discretion of Pass the Mustard.
iv. Third Party Content, Sites, And Services
The Pass the Mustard app, website, and Content available through the Service may contain features and functionalities that may have links to third party content which is completely independent of Pass the Mustard and has no affiliation, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products and/or services.
USER'S interaction with organizations and/or individuals found on or through the Service are solely between you and such organizations and/or individuals. Pass the Mustard encourages the USER to make whatever investigation you feel necessary or appropriate when sharing information on the Service.
Pass the Mustard shall not be responsible or liable for any loss or damage whether direct, indirect, incidental, actual or consequential of any sort incurred as the result of any use of the Service. If there is a dispute between participants on this site, or between users and any third party, USER understands and agrees that Pass the Mustard is under no obligation to intercede. In the event of a dispute with one or more other users, USER hereby releases Pass the Mustard, its officers, employees, agents and successors from all claims, demands and damages whether actual, consequential or incidental of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or our Service. If you are a CA resident, you waive CA Civil Code Section 1542, which says: "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."
v. Notification Of Claims Of Infringement
All claims of copyright infringement or violations of Intellectual Property Rights need to be sent to Pass the Mustard's agent for notice of claims of copyright and Intellectual Property Claims which is at: firstname.lastname@example.org
Please provide our Agent with the following Notice:
-a) Identify the material on the Pass the Mustard site that you claim is infringing, with enough detail so that we may locate it on the website;
-b) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
-c) A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (2) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
-d) Your address, telephone number, and email address; and
-e) Your physical or electronic signature.
Pass the Mustard will remove the infringing posting(s), subject to the procedures outlined in the Digital Millenium Copyright Act (DMCA).
vi. Privacy And Information Disclosure
USER agrees not to post, email, or otherwise make available Content:
-a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or is harmful to minors in any way;
-b) that is pornographic or depicts a human being engaged in actual sexual conduct including but not limited to (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or (ii) bestiality, or (iii) masturbation, or (iv) sadistic or masochistic abuse, or (v) lascivious exhibition of the genitals or pubic area of any person;
-c) that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
-d) that violates the Fair Housing Act by stating, in any notice or ad for the sale or rental of any dwelling, a discriminatory preference based on race, color, national origin, religion, sex, familial status or handicap (or violates any state or local law prohibiting discrimination on the basis of these or other characteristics);
-e) that violates federal, state, or local equal employment opportunity laws, including but not limited to, stating in any advertisement for employment a preference or requirement based on race, color, religion, sex, national origin, age, or disability.
-f) with respect to employers that employ four or more employees, that violates the anti-discrimination provision of the Immigration and Nationality Act, including requiring U.S. citizenship or lawful permanent residency (green card status) as a condition for employment, unless otherwise required in order to comply with law, regulation, executive order, or federal, state, or local government contract.
-g) that impersonates any person or entity, including, but not limited to, a Pass the Mustard employee, or falsely states or otherwise misrepresents your affiliation with a person or entity (this provision does not apply to Content that constitutes lawful non-deceptive parody of public figures.), including but not limited to pretexting;
-h) that includes personal or identifying information about another person without that person's explicit consent;
-i) that is false, deceptive, misleading, deceitful, misinformative, or constitutes "bait and switch";
-j) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
-k) that constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement;
-l) that constitutes or contains any form of advertising or solicitation if: posted in areas of the Pass the Mustard sites which are not designated for such purposes; or emailed to Pass the Mustard users who have not indicated in writing that it is permissible to contact them about other services, products or commercial interests.
-m) that includes links to commercial services or web sites, except as allowed in "services";
-n) that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law, including without limitation items the sale of which is prohibited or regulated by Tennessee law.
-o) that 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;
-p) that disrupts the normal flow of dialogue with an excessive amount of Content (flooding attack) to the Service, or that otherwise negatively affects other users' ability to use the Service; or
-q) that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Service.
Additionally, USER agrees not to:
-r) contact anyone who has asked not to be contacted;
-s) "stalk" or otherwise harass anyone;
-t) collect personal data about other users for commercial or unlawful purposes;
-u) use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service - unless expressly permitted by Pass the Mustard;
-v) post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
-w) post the same item or service in more than one classified category or forum, or in more than one metropolitan area;
-x) attempt to gain unauthorized access to Pass the Mustard's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Pass the Mustard website; or
-y) use any form of automated device or computer program that enables the submission of postings on Pass the Mustard without each posting being manually entered by the author thereof (an "automated posting device"), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.
viii. Posting Agents
A "Posting Agent" is a third-party agent, service, or intermediary that offers to post Content to the Service on behalf of others. To moderate demands on Pass the Mustard's resources, you may not use a Posting Agent to post Content to the Service without express permission or license from Pass the Mustard. Correspondingly, Posting Agents are not permitted to post Content on behalf of others, to cause Content to be so posted, or otherwise access the Service to facilitate posting Content on behalf of others, except with express permission or license from Pass the Mustard.
ix. No Spam Policy
USERS may not send unsolicited email advertisements to Pass the Mustard email addresses or through Pass the Mustard computer systems, which is expressly prohibited by these T&C, will use or cause to be used servers. Any unauthorized use of Pass the Mustard computer systems is a violation of the T&C and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. 1030 et seq.). Such violations may subject the sender and his or her agents to civil and criminal penalties.
x. Paid Postings
Pass the Mustard may charge a fee to post Content in some areas of the Service. The fee is an access fee permitting Content to be posted in a designated area. Each party posting Content to the Service is responsible for said Content and compliance with the T&C. All fees paid will be non-refundable in the event that Content is removed from the Service for violating the T&C.
xi. Limitations On Service
Pass the Mustard may establish limits concerning use of the Service, including the maximum number of days that Content will be retained by the Service, the maximum number and size of postings, email messages, or other Content that may be transmitted or stored by the Service, and the frequency with which USERS may access the Service. USERS agree that Pass the Mustard has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. Pass the Mustard reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice, and that Pass the Mustard shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
xii. Access To The Service
Pass the Mustard grants USER a limited, revocable, nonexclusive license to access the Service for personal use. This license does not include: (a) access to the Service by Posting Agents; or (b) any collection, aggregation, copying, duplication, display or derivative use of the Service nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by Pass the Mustard. A limited exception to (b) is provided to general purpose internet search engines and non- commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Service, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with any Pass the Mustard robots.txt file which may exist.
Pass the Mustard permits USERS to display on USERS websites, or to create hyperlinks on USERS website to, individual postings on the Service so long as such use is for noncommercial and/or news reporting purposes only (e.g., for use in personal web blogs or personal online media). If the total number of such postings displayed or linked to on a USERS website exceeds one hundred (100) postings, said USER will be presumed to be in violation of the T&C, absent express permission granted by Pass the Mustard to do so. USER may also create a hyperlink to the home page of Pass the Mustard sites so long as the link does not portray Pass the Mustard, its employees, or its affiliates in a false, misleading, derogatory, or otherwise offensive matter.
Pass the Mustard may offer various parts of the Service in RSS or another format (RSS) so that users can embed individual feeds into a personal website or blog, or view postings through third party software news aggregators. Pass the Mustard permits USERS to display, excerpt from, and link to the RSS feeds on your personal website or personal web blog, provided that (a) your use of the RSS feed is for personal, non-commercial purposes only, (b) each title is correctly linked back to the original post on the Service and redirects the user to the post when the user clicks on it, (c) USER provide, adjacent to the RSS feed, proper attribution to 'Pass the Mustard' as the source, (d) the use or display does not suggest that Pass the Mustard promotes or endorses any third party causes, ideas, web sites, products or services, (e) you do not redistribute the RSS feed, and (f) USERS use does not overburden Pass the Mustard's systems. Pass the Mustard reserves all rights in the content of the RSS feeds and may terminate any RSS feed at any time.
Any use of the Service beyond the scope of the T&C granted by Pass the Mustard immediately terminates said permission or license. In order to collect, aggregate, copy, duplicate, display or make derivative use of the Service or any Content made available via the Service for other purposes (including commercial purposes) not stated herein, you must first obtain a license from Pass the Mustard.
xiii. Termination Of Service
Pass the Mustard, in its sole discretion, has the right to delete or deactivate any USERS account, block USERS email or IP address, or otherwise terminate any access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any Content within the Service, for any reason, including, without limitation, if Pass the Mustard believes that any USER has acted inconsistently with the letter or spirit of the T&C. Pass the Mustard shall not be liable for any damages whether actual, incidental or consequential to USER or any third-party for any termination of your access to the Service. Further, USER agrees not to attempt to use the Service after said termination. Sections 2, 4, 6 and 12-18 shall survive termination of the T&C.
xiv. Proprietary Rights
The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Pass the Mustard. USERS may not to reproduce, duplicate or copy Content from the Service without the express written consent of Pass the Mustard, and agree to abide by any and all copyright notices displayed on the Service. USERS may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, USERS agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service.
Although Pass the Mustard does not claim ownership of content that its users post, by posting Content to any public area of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to Pass the Mustard an irrevocable, perpetual, non- exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Content to any public area of the Service, you automatically grant Pass the Mustard all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Service by any party for any purpose.
xv. Disclaimer Of Warranties
USER AGREES THAT USE OF THE Pass the Mustard SITE AND THE SERVICE IS ENTIRELY AT USERS OWN RISK. THE Pass the Mustard SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, Pass the Mustard DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE Pass the Mustard APP, SITE, AND THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, Pass the Mustard DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE Pass the Mustard SITE OR THE SITES OR SERVICE, OR ACCESSED THROUGH ANY LINKS ON THE Pass the Mustard SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, Pass the Mustard DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE Pass the Mustard SITE OR THE SERVICE.
xvi. Limitations Of Liability
UNDER NO CIRCUMSTANCES SHALL Pass the Mustard BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF Pass the Mustard HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF USERS USE OF THE Pass the Mustard SITE OR THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE Pass the Mustard SITE OR THE SERVICE, FROM INABILITY TO USE THE Pass the Mustard SITE OR THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE Pass the Mustard SITE OR THE SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE Pass the Mustard SITE OR THE SERVICE OR ANY LINKS ON THE Pass the Mustard SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE Pass the Mustard SITE OR THE SERVICE OR ANY LINKS ON THE Pass the Mustard SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
USERS indemnify and hold Pass the Mustard, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of Content USER submits, posts or makes available through the Service, the use of the Service, any violation of the T&C, any breach of any of the representations and warranties herein, or any violation of any rights of another.
xviii. General Information
The T&C constitute the entire agreement between USER and Pass the Mustard and govern the use of the Service, superseding any prior agreements between USER and Pass the Mustard. The T&C and the relationship between USER and Pass the Mustard shall be governed by the laws of the State of Tennessee without regard to its conflict of law provisions. USER and Pass the Mustard agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Shelby, Tennessee. The failure of Pass the Mustard to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision. If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the T&C must be filed within one (1) year after such claim or cause of action arose or be forever barred.
xiv. Violation Of Terms And Liquidated Damages
Please report any violations of the T&C, by flagging the posting(s) for review, or by emailing to: email@example.com
Our failure to act with respect to a breach by a USER or others does not waive the right of Pass the Mustard to act with respect to subsequent or similar breaches.
Because damages are often difficult to quantify, if it becomes necessary for Pass the Mustard to pursue legal action to enforce the T&C, USER will be liable to pay Pass the Mustard the following amounts as liquidated damages, which USER accepts as reasonable estimates of Pass the Mustards' damages for the specified breaches of the T&C:
-a. If USER posts a message that (1) impersonates any person or entity; (2) falsely states or otherwise misrepresents an affiliation with a person or entity; or (3) that includes personal or identifying information about another person without that person's explicit consent, USER agrees to pay Pass the Mustard one thousand dollars ($1,000) for each such message. This provision does not apply to messages that are lawful, non-deceptive parodies of public figures.
-b. If Pass the Mustard establishes limits on the frequency with which USER may access the Service, or terminates USERS access to or use of the Service, USER agrees to pay Pass the Mustard one hundred dollars ($100) for each message posted in excess of such limits or for each day on which USER access Pass the Mustard in excess of such limits, whichever is higher.
-c. Each unsolicited email advertisements to Pass the Mustard email addresses or through Pass the Mustard computer systems by USER, USER agrees to pay Pass the Mustard twenty five dollars ($25) for each such email.
-d. Any posts Content in violation of the T&C, other than as described above, USER agrees to pay Pass the Mustard one hundred dollars ($100) for each Item of Content posted. In its sole discretion, Pass the Mustard may elect to issue a warning before assessing damages, and does not waive any right to assess damages at a later time for another violation of the T&C.
-e. A Posting Agent that uses the Service in violation of the T&C, in addition to any liquidated damages under clause (d), you agree to pay Pass the Mustard one hundred dollars ($100) for each and every Item of Content posted in violation of the T&C. A Posting Agent will also be deemed an agent of the party engaging the Posting Agent to access the Service (the "Principal"), and the Principal (by engaging the Posting Agent in violation of the T&C) agrees to pay Pass the Mustard an additional one hundred dollars ($100) for each Item of Content posted by the Posting Agent on behalf of the principal in violation of the T&C.
-f. If a USER aggregates, displays, copies, duplicates, reproduces, or otherwise exploits for any purpose any Content (except for your own Content) in violation of the T&C without Pass the Mustard's express written permissions, and USER agrees to pay Pass the Mustard three thousand dollars ($3,000) for each day USER engaged in such conduct.
Otherwise, USER agrees to pay Pass the Mustard's actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of the T&C, Pass the Mustard retains the right to seek the remedy of specific performance of any term contained in the T&C, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in the T&C, or any combination thereof.
We welcome your questions and comments on this document: firstname.lastname@example.org