Last update: December 08, 2020.
TERMS OF USE
LAST UPDATED DECEMBER 10, 2020
1. INTRODUCTION
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND MUSTARD, INC., A DELAWARE CORPORATION, AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, “MUSTARD,” “WE,” “US,” OR “OUR”).
2. ACCEPTANCE OF THIS AGREEMENT
If you access any of our websites located at https://mustard.love/, install or use our Mustard mobile application, install or use any other software supplied by Mustard, or access any information, function, or service available or enabled by Mustard (each, a “Service” and collectively, the “Services”), or complete the Mustard account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Mustard; and
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.
3. SOFTWARE
Mustard’s software (“Software”) provides an online marketplace connection, using web-based technology that connects you and other consumers, restaurants and/or other businesses and/or independent delivery providers (“Delivery Providers”).
4. MOBILE APPLICATION
An integral part of the Software is Mustard’s mobile application (Application) which provides discovery and purchase of local food experiences through videos uploaded by Users, permits consumers to place orders for food, and/or other goods, from various restaurants and businesses, either for pickup or delivery, directly from the videos. Once a pickup order is made, the Application communicates with the customer regarding the availability of the order for pickup. Once a delivery order is made, the Application communicates with Delivery Providers that a delivery opportunity is available and facilitates the delivery to the consumer by Delivery Providers. Furthermore, the Application distributes Referral Fees to its Users.
Mustard is not a restaurant, delivery service, or food preparation business.
The Application is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Application. You may not use the Application in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
5. USER ACCOUNT
You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Mustard immediately. Mustard will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Mustard or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Mustard has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Mustard has the right to suspend or terminate your account and refuse any and all current or future use of Services. You agree not to create an account or use the Services if you have been previously removed by Mustard, or if you have been previously banned from use of the Services.
6. APPLICATION LICENSE
6.1 You are given a revocable, non-transferable, non-exclusive, non-sublicensable license to install and use the Licensed Application on any Device that you own or control and as permitted by the Usage Rules set forth in this section.
6.2 This license will also govern any updates of the Application provided by Licensor that replace, repair, and/or supplement the first Application, unless a separate license is provided for such update in which case the terms of that new license will govern.
6.3 You may not reverse engineer, translate, disassemble, integrate, decompile, integrate, remove, modify, combine, create derivative works or updates of, adapt, or attempt to derive the source code of the Application, or any part thereof except with Mustard's prior written consent.
6.4 You may not copy (excluding when expressly authorized by this license and the Usage Rules) or alter the Application or portions thereof. You may create and store copies only on devices that you own or control for backup keeping under the terms of this license, the App Store Terms of Service, and any other terms and conditions that apply to the device or software used. You may not remove any intellectual property notices. You acknowledge that no unauthorized third parties may gain access to these copies at any time.
6.5 Licensor reserves the right to modify the terms and conditions of licensing.
6.6 Nothing in this license should be interpreted to restrict third-party terms. When using the Application, you must ensure that you comply with applicable third-party terms and conditions.
7. USE OF DATA
You acknowledge that Licensor will be able to access and adjust your downloaded licensed Application content and your personal information, and that Licensor's use of such material and information is subject to your legal agreements with Licensor and Licensor's privacy policy: https://www.mustard.love/privacy-policy
8. RULES AND PROHIBITIONS
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
8.1 You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Mustard employees, or our community.
8.2 You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
8.3 You will only access the Services using means explicitly authorized by Mustard.
8.4 You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
8.5 You will not use the Services to cause nuisance, annoyance or inconvenience.
8.6 You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, User or Contractor, unless Mustard has given you prior permission to do so in writing.
8.7 You will not copy or distribute the Application or any content displayed through the Services, including Merchants’ menu content and reviews, for republication in any format or media.
8.8 You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
8.9 The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
8.10 You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
8.11 You will use the Application and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
8.12 You will not use the Services in any way that could damage, disable, overburden or impair any Mustard server, or the networks connected to any Mustard server.
8.13 You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Mustard server.
8.14 You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Mustard may use to prevent or restrict access to the Services or use of the Services or the content therein.
8.15 You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.
8.16 You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
8.17 You will not try to harm other Users, Mustard, or the Services in any way whatsoever.
8.18 You will not engage in threatening, harassing, racist, sexist or any other behavior that Mustard deems inappropriate when using the Services.
8.19 You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
8.20 You will not attempt to undertake any of the foregoing.
In the event that Mustard believes or determines that you have breached any of the aforementioned, Mustard reserves the right to suspend and/or permanently deactivate your account at its sole discretion.
9. USER GENERATED CONTRIBUTIONS
The Application may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or in the Application, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other Users of the Application and through third-party websites or applications. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
9.1 The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
9.2 You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Application, and other users of the Application to use your Contributions in any manner contemplated by the Application and these Terms of Use.
9.3 You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness or each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Application and these Terms of Use.
9.4 Your Contributions are not false, inaccurate, or misleading.
9.5 Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
9.6 Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by Mustard).
9.7 Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
9.8 Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
9.9 Your Contributions do not violate any applicable law, regulation, or rule.
9.10 Your Contributions do not violate the privacy or publicity rights of any third party.
9.11 Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
9.12 Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
9.13 Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
9.14 Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
Any use of the Application in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Application.
10. CONTRIBUTION LICENSE
By posting your Contributions to any part of the Application or making Contributions accessible to the Application by linking your account from the Application to any of your social networking accounts, you automatically grant, and you represent and warrant that you have the right to grant, to Mustard an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use copy, reproduce, disclose, sell, resell, publish, broad cast, retitle, archive, store, cache, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial advertising, or otherwise, and to prepare derivative works of, or incorporate in other works, such as Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. Mustard is not liable for any statements or representations in your Contributions provided by you in any area in the Application. You are solely responsible for your Contributions to the Application and you expressly agree to exonerate Mustard from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
Mustard has the right, in its sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations in the Application; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. Mustard has no obligation to monitor your Contributions.
11. DISCLAIMER - THIRD PARTY CONTENT
Mustard’s social media page(s) or feed(s) will occasionally link to user or third-party content to share the most up-to-date information with the community. Following these links may take you to materials or content that does not necessarily reflect the views of Mustard and was not originated by Mustard. Content that makes up these sites and articles is not the responsibility of Mustard and does not necessarily represent the opinions, beliefs or endorsement of the company. Mustard disclaims all liability concerning the accuracy and reliability of any such content.
12. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
Materials may be made available through Mustard’s page(s) or (s) by third parties not within Mustard’s control. Mustard is under no obligation to, and does not, scan content used in connection with its page(s) or feed(s) for the inclusion of illegal or impermissible content. However, Mustard respects the copyright interests of others. It is Mustard’s policy not to permit materials known by it to infringe another party’s copyright to remain on its page(s) or feed(s).
If you believe any materials on Mustard’s social page(s) or feed(s) infringe a copyright, you should feel free to reach out to the platform, and to provide Mustard with written notice that at a minimum contains:
12.1 An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
12.2 A description of the copyrighted work that you claim has been infringed;
12.3 A description of the location on the social page(s) or feed(s) of the material that you claim is infringing;
12.4 Your address, telephone number and e-mail address;
12.5 A written 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; and
12.6 A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
For notice of claims of copyright infringement contact: Mustard, Inc.1290 Howard Ave.Suite 323Burlingame, CA 94010 United States contact@mustard.love
It is Mustard’s policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
13. PAYMENT TERMS
13.1. Prices & Charges. You understand that: (a) the prices for menu or other items displayed through the Application may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold; (b) Mustard has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) Mustard reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in-store totals. In those situations, Mustard reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Application provided under this Agreement. In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Mustard reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Mustard or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.
13.2 No Refunds. Charges paid by you for completed orders are final and non-refundable. Mustard has no obligation to provide refunds or credits, but may grant them, in each case in Mustard’s sole discretion.
13.3 Fees for Services. Mustard may change the fees for our Services as we deem necessary or appropriate for its business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, Surge Fees, and Withdrawal Fees. Mustard may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as it deems necessary or appropriate for our business or to comply with applicable law.
13.4 Referral Cash-Back Program. Mustard generates a Referral Link for each video uploaded by You. To refer a friend, simply share your video with your friend. When your friend clicks and posts an order in the Application, Mustard attributes the sales from that Referral Link to You. You will receive 5% cash-back for every purchase your Referral Link has generated, posted to your Application Account. Mustard, at its complete discretion, might award up to 3.5% additional bonus cash-back from the sale, subject to sales performance of the Referral Link, distributed once a month. Mustard is not responsible for any event beyond the control of Mustard that would prevent you from receiving your Mustard referral bonuses. Such an event may include, but is not limited to, an error or omission made by a friend during the signup process. Mustard reserves the right to withhold payment of Mustard referral bonuses indefinitely for any reason including, but not limited to, suspected fraud accounts, merchant concerns, unusual activity. Mustard also reserves the right to reclaim referral bonuses if any of the above mentioned issues are discovered after a Mustard referral bonus payment is issued. You can choose to withdraw your cash-back by paper check or directly to your bank account in your Application Profile.
14. NO WARRANTY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF THE LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MUSTARD MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
MUSTARD DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, MUSTARD SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
15. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT OF LAW, MUSTARD SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE).
16. INDEMNIFICATIONYou agree to indemnify and hold harmless Mustard and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Mustard reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mustard in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
17. INTELLECTUAL PROPERTY RIGHTS
Mustard and the End-User acknowledge that, in the event of any third-party claim that the licensed Application or the End-User's possession and use of that licensed Application infringes on the third party's intellectual property rights, Mustard, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge or any such intellectual property infringement claims.
18. GENERAL
18.1 No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Mustard or any third-party provider as a result of this Agreement or use of the Software or Services.
18.2 Choice of Law. This Agreement is governed by the laws of the State of Delaware consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
18.3 Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
18.4 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints at complaint@mustard.love or by telephone at 731 200-1131.
18.5 Accessing and Downloading the Application from iTunes. The following applies to any Software accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
1. You acknowledge and agree that (i) the Agreement is concluded between you and Mustard only, and not Mustard, and (ii) Mustard, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Mustard and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mustard.
4. You and Mustard acknowledge that, as between Mustard and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and Mustard acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Mustard and Apple, Mustard, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
6. You and Mustard acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
8. Notice. Where Mustard requires that you provide an email address, you are responsible for providing Mustard with your most current email address. In the event that the last email address you provided to Mustard is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Mustard’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
9. Electronic Communications. For contractual purposes, you (1) consent to receive communications from Mustard in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mustard provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
10. Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mustard without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and Mustard relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.
19. DISPUTE RESOLUTION PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH MUSTARD AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Mustard or the Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with Mustard as a User of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Mustard may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
CASES HAVE BEEN FILED AGAINST MUSTARD—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.
IF YOU AGREE TO ARBITRATION WITH MUSTARD, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MUSTARD IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
(b) Informal Resolution. You and Mustard agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Mustard therefore agree that, before either you or Mustard demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Mustard that you intend to initiate an informal dispute resolution conference, email Informal.Resolution@mustard.love, providing your name, telephone number associated with your Mustard account (if any), the email address associated with your Mustard account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
(c) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 17(b). If this notice is being sent to Mustard, it must be sent by email to Informal.Resolution@mustard.love. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Arbitration demands filed with JAMS must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available as of November 6, 2020 at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available as of November 6, 2020 at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules, including JAMS’ Consumer Arbitration Minimum Standards, if applicable. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, Mustard will pay them for you. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.
(d) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and Mustard. Except as expressly agreed to in Section 19(g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Mustard.
(e) Waiver of Jury Trial. YOU AND MUSTARD WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Mustard are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 19(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(f) Waiver of Class or Consolidated Actions. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 19(G) OF THIS AGREEMENT, YOU AND MUSTARD AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN SECTION 19(G). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 19(G) . This clause shall constitute a class preclusion clause for the purposes of JAMS Class Action Procedures Rule 1(a). If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Mustard is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court.. This provision does not prevent you or Mustard from participating in a class-wide settlement of claims.
(g) Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands presented by or with the assistance of the same law firm or organization are submitted to JAMS or another arbitration provider against Mustard within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one filing fee due per side and one arbitrator assigned per batch. You agree to cooperate in good faith with Mustard and the arbitration provider to implement such a batch approach to resolution and fees.
(h) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Mustard can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Mustard in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Mustard username (if any), the email address you currently use to access your Mustard account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: opt-out@mustard.love. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
(i) No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND Mustard RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 19 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH MUSTARD.
(j) Survival. This Arbitration Agreement will survive any termination of your relationship with Mustard.
(k) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Mustard makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Mustard.
20. TERMINATION
If you violate this Agreement, Mustard may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, Mustard may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Mustard reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
21. THIRD-PARTY TERMS OF AGREEMENTS AND BENEFICIARY
21.1 App Stores. You acknowledge and agree that the availability of the Software and the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Mustard and not with the App Store. Mustard, not the App Store, is solely responsible for the Software and the Services, including the mobile application(s), the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Software and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Software or the Services. You agree to comply with, and your license to use the Software and the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
21.2 Mustard represents and warrants that Mustard will comply with applicable third-party terms of agreement when using the licensed Application.
22. CONTACT INFORMATION
For general inquiries, complaints, questions or claims concerning the Terms, please contact: Mustard, Inc.1290 Howard Ave.Suite 323Burlingame, CA 94010United Statescontact@mustard.love
Effective as of December 08, 2020.
