Terms of Use
Last Updated: March 8, 2024
IMPORTANT – READ CAREFULLY: These terms and conditions form a binding agreement between you and Throne, Inc., a Delaware corporation (“Throne”). Capitalized terms have the meanings given in this Agreement, including in Section 14 below. Your use of the Throne Prototype, or other indication of consent, constitutes your acceptance of this Agreement.
This Agreement contains a mandatory individual arbitration and class action and jury trial waiver provision that, as further set forth below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Agreeing to arbitration is an important decision which you should carefully consider.
Please note that you are solely responsible for ensuring that each Unregistered User is informed of the presence and nature of the Throne Prototype, and of the potential collection and use of Your Content as further described in this Agreement, and that each Unregistered User who uses the Throne Prototype accepts and complies with the applicable terms and conditions of this Agreement.
1. SCOPE
This Agreement governs your use of the Throne Prototype. Unless agreed otherwise in writing, all Order Forms will be governed only by the terms of this Agreement. We may update this Agreement from time to time, upon reasonable notice (which may include posting an updated version of this Agreement on our website or mobile app). Your use of the Throne Prototype after any such update constitutes your acceptance of the changes. If you do not agree to any update, you must stop using the Throne Prototype. No update will apply to any dispute that arises before we made the update. The “Last Updated” legend above indicates when this Agreement was last modified.
2. PARTICIPATION
You will actively use and test the Throne Prototype as often as reasonably necessary to provide valuable and timely Feedback to Throne regarding the utility and effectiveness of the Throne Prototype. You will provide accurate Feedback to Throne promptly in a manner specified by Throne.
3. LICENSE
3.1 Limited License. Subject to your compliance with the terms of this Agreement, Throne hereby grants to you, during the Term, a non-exclusive, limited, revocable, non-transferable, non-sublicensable, non-exclusive license to (a) access and use the Throne Prototype, and (b) access and use Reports in the form made available by Throne.
3.2 License Restrictions. Except as expressly permitted under this Agreement, you must not (and will not authorize, encourage or cooperate with any third party to):
(a) access or use the Throne Prototype (i) in violation of this Agreement or any applicable laws, rules or regulations or (ii) in a manner that would cause a material risk to the security or operations of Throne;
(b) reproduce, modify, adapt, translate, port or create derivative works of all or any portion of the Throne Prototype;
(c) sublicense, distribute, transmit, sell, lease, rent, loan or otherwise make available all or any portion of the Throne Prototype (including any functionality of the Throne Prototype) to a third party, or provide any functionality of the Throne Prototype to a third party (whether on a service bureau basis or otherwise);
(d) engage in any decompiling, disassembling or other reverse engineering, or otherwise attempt to discover, learn or study the structure or organization, underlying algorithms or other internals, protocols, data structures or other externals, or the source code of the Throne Prototype;
(e) remove any copyright, trademark, confidentiality or other proprietary rights notice from the Throne Prototype or related documentation and materials;
(f) remove, disable or otherwise limit the effectiveness of any technical protections, including those used by Throne to (i) manage, monitor, control or analyze the installation of, access to, or use of the Throne Prototype, or (ii) protect Throne’s intellectual property rights; or
(g) use the Throne Prototype for competitive analysis (including benchmark testing), or to create, train or improve (directly or indirectly) a product or service that substantially replicates any feature or functionality of Throne Prototype.
3.3 Reservation of Rights. Throne hereby reserves all other rights not expressly granted in this Agreement. Except as expressly set out in this Agreement, you will not have any licenses or other rights with respect to the Throne Prototype or any improvements, modifications or derivative works of the foregoing, or other materials or intellectual property rights of Throne, whether by implication, estoppel, statute, or otherwise. You will not sell, transfer or distribute the Throne Prototype without Throne’s prior written consent.
4. CONFIDENTIALITY
You hereby acknowledge the confidential nature and competitive value of the Confidential Information disclosed to you under this Agreement. You will: (a) not use, or permit any other party to use, any Confidential Information for any purpose except to perform your obligations or exercise your rights under this Agreement; (b) not disclose, or permit any other party to disclose, any of the Confidential Information to any third party; and (c) exercise reasonable care to protect the confidential nature of the Confidential Information. You will return to Throne, at Throne’s request, all Confidential Information, including all copies. You acknowledge and agree that you have not acquired, and that Throne will retain, all right, title and interest in and to the Confidential Information. Notwithstanding anything to the contrary, the following will not be deemed Confidential Information: (i) information which is or becomes part of the public domain through no wrongful act by you; or (ii) information which is rightfully received by you from a third party without restriction and without breach of this Agreement, or any other duty of confidentiality.
5. YOUR CONTENT
5.1 Responsibility. You will be solely responsible for all matters relating to Your Content.
5.2 Ownership. You acknowledge that Throne owns all right, title and interest in and to Your Content, including intellectual property rights, and you hereby assign and agree to assign (on behalf of yourself and any Unregistered User) all such right, title and interest to Throne.
5.3 Use of Your Content. To the extent not assigned to Throne for any reason, you hereby grant (on behalf of yourself and any Unregistered User) to Throne and its affiliates an exclusive, worldwide, fully paid-up, royalty-free, sublicensable (through multiple tiers), perpetual, irrevocable license to use, copy, transmit, index, store, modify, model, analyze, display and otherwise exploit Your Content.
5.4 Disclaimer. You acknowledge and agree that due to the nature of the Throne Prototype, Your Content may contain sensitive, graphic, anatomical or explicit photos, videos, audio, or audiovisual materials. If you are do not wish such materials to be collected and used as provided in this Agreement, you must not use the Throne Prototype. In addition, you represent and warrant that (a) before each Unregistered User’s use of the Throne Prototype, you will inform the Unregistered User of the potential for the collection of such sensitive, graphic, anatomical or explicit materials, and of Throne’s rights to use such materials, and obtain his or her consent to such collection and use; and (b) you will not permit any Unregistered User to use the Throne Prototype if he or she does not consent to such collection and use.
6. USAGE ANALYTICS
Throne may develop, modify, improve, support, customize and operate its products and services (including the Throne Prototype) based on use of the Throne Prototype, including by freely using any data and information regarding, gathered through or otherwise generated from Your Content or your access to and use of the Throne Prototype.
7. FEES
7.1 Fees. By the payment date set forth in the Order Form, you will pay to Throne all Fees due in the manner specified in the Order Form. Unless otherwise specified in an Order Form, all payments under this Agreement will be in U.S. Dollars.
7.2 Taxes. You will be responsible for, and will pay promptly, all taxes, levies, imports, duties, charges and fees of any kind (including but not limited to sales, use and withholding taxes) associated with any purchase, receipt or use of the Throne Prototype, except for taxes based on Throne’s net income.
7.3 Billing. If you provide billing information to Throne or its third-party payment processor, you (a) represent and warrant that you are authorized to provide and use the billing information, and (b) authorize Throne or its third-party payment processor to charge your payment card or otherwise process your payment for any fees incurred by you. If you are directed to Throne’s third party payment processor, you may be subject to terms and conditions governing use of that third party’s service and that third party’s privacy policy.
7.4 Right of Return or Refund. All sales are final, and except as expressly provided in this Agreement or as otherwise required by applicable law, no refunds will be allowed.
8. FEEDBACK
You acknowledge that Throne owns all Feedback, data, or contributions made during the testing program, which may be used for educational, promotional, or other purposes, and you hereby assign and agree to assign to Throne all right, title and interest in such Feedback, data or contributions. To the extent not assigned to Throne for any reason, you hereby grant to Throne and its affiliates an exclusive, worldwide, fully paid-up, royalty-free, sublicensable (through multiple tiers), perpetual, irrevocable license to use, copy, publicly display, modify, publicly perform, publish, reproduce and otherwise exploit such Feedback, data or contributions.
9. PHOTO/VIDEO RELEASE
9.1 Permitted Use. You hereby grant to Throne and its affiliates the non-exclusive, worldwide right and authorization to record and make use of your identity, likeness, voice and name (and any biographical or other material concerning you that you may provide to Throne, or that Throne may collect) gathered during the testing program in all media and manner, whether now known or later developed, throughout the world in perpetuity, including for promotional and educational purposes. You further acknowledge that such use may (i) be in connection with any works Throne may develop, publish or distribute, or have developed, published or distributed, for any related promotional or educational purposes, (ii) be alone or in combination with other material, and (iii) include or not include use of your name and biographical information about you. You understand that Throne may share your name and (to the extent necessary) other identifying information with Throne’s service providers, such as advertising agencies, who may use it to perform services for Throne. You understand that the intent of this photo/video release is to convey to Throne all rights you may have, on a nonexclusive basis, to such identity, likeness, voice and name (and any biographical or other material concerning you), to the maximum extent, so that Throne may use those interests for promotional and educational purposes throughout the world without additional approval from or compensation to you.
9.2 Ownership of Works. You acknowledge that Throne is the exclusive owner of the Works, and you hereby assign and agree to assign to Throne any right, title or interest you may have in or to the Works. You agree that the Works and the use of your identity, likeness, voice or name (or any biographical or other material concerning you) in them may be modified (intentionally or otherwise) in any manner. You hereby waive any right of inspection or approval of the uses of your identity, likeness, voice and name (and any biographical or other material concerning you) and you hereby waive any and all “moral rights” and any similar rights with respect to attribution of authorship or integrity that you may have in connection with any such uses. You will (whether during or after your relationship with Throne), at Throne’s expense, execute such written instruments and do other such acts as may be necessary in the opinion of Throne to effect an assignment of, register, enforce or otherwise exercise rights with respect to a trademark, copyright or other intellectual property right relating to the Works or with respect to the use of your identity, likeness, voice or name (or any biographical or other material concerning you) in connection therewith.
9.3 Release. You hereby release Throne and its contractors, directors, officers, employees and representatives from any claims that you may have as to use of your identity, likeness, voice and name (and any biographical or other material concerning you) for any promotional or educational purposes, including (but not limited to) claims based on rights of publicity or privacy, defamation or intellectual property rights infringement. If you are a California resident, you waive your rights with respect to California 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 or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
10. DISCLAIMER; NO HEALTH ADVICE; LIABILITY RELEASE
10.1 Disclaimer. The Throne Prototype is provided “AS IS” without warranty of any kind. Throne will have no obligation to maintain, correct, update, change, modify or otherwise support the Throne Prototype. You further acknowledge and agree that the Throne Prototype may contain defects, and a primary purpose of the test is to obtain Feedback on the Throne Prototype and identify potential defects. The Throne Prototype may malfunction or unexpectedly operate in an unintended manner and may present unforeseen hazards that are not currently known or understood. You are advised to use caution and not to rely in any way on the correct functioning or performance of the Throne Prototype or Throne materials. You understand that you are solely responsible for your own safety and the safety of others while using the Throne Prototype. Accordingly, any testing that you perform regarding the Throne Prototype, or regarding any software associated with the Throne Prototype, is done entirely at Your own risk.
10.2 No Medical Advice. All of the material provided through the Throne Prototype, including Reports, such as text, graphics, photographs, images, messages, forum postings, and any other materials, are for informational purposes only and are not a substitute for professional medical advice or treatment. Please seek the advice of your physician or other qualified health care provider for any questions you may have regarding your medical status. Throne does not promise any particular results with regards to your health in connection with use of the Throne Prototype. If you think you have a medical emergency, call your doctor or your local emergency phone number immediately.
10.3 Release of Liability. In consideration of being allowed to use the Throne Prototype, you hereby release, waive, and forever discharge Throne, its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from all liabilities, claims, actions, damages, losses, costs, and expenses (including attorneys' fees) of any kind or nature, whether arising in law or equity, directly or indirectly related to or arising from use (including any Unregistered User’s use), of the Throne Prototype, including, but not limited to, personal injury and property damage. If you are a California resident, you waive your rights with respect to California 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 or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
11. INDEMNITY; LIMITATION OF LIABILITY
11.1 Indemnity. You agree to defend, indemnify and hold harmless Throne and its affiliates and service providers, and their respective successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to attorneys’ fees) arising from: (i) use of and access to the Throne Prototype (including by you and any Unregistered User), including any data or content transmitted or received; (ii) your violation of any term of this Agreement, including your breach of any of the representations and warranties; (iii) your violation of any third-party right, including any right of privacy or intellectual property; (iv) your violation of any applicable law, rule or regulation; (v) Your Content; (vi) your negligence or willful misconduct; or (vii) any claim by any Unregistered User in connection with the Throne Prototype or Your Content.
11.2 Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Throne or its affiliates be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including damages for loss of profits, loss of goodwill, loss of use, loss of data or other intangible losses, arising out of or relating to the use of, or inability to use, the Throne Prototype. To the maximum extent permitted by applicable law, Throne and its affiliates assume no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content or information; (ii) personal injury or property damage, of any nature whatsoever; (iii) any unauthorized access to or use of our servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Throne Prototype; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Throne Prototype; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content in connection with the Throne Prototype; (vii) Your Content; and/or (viii) use of or inability to use the Throne Prototype. In no event shall Throne or its affiliates be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, and even if Throne or its affiliates have been advised of the possibility of such damage.
12. TERMINATION
12.1 The term of this Agreement will continue until terminated in accordance with its terms (the “Term”).
12.2 You or Throne may terminate this Agreement at any time for any reason immediately upon written notice. Throne may also suspend or restrict your access to or use of the Throne Prototype at any time.
12.3 Upon any such termination, suspension or restriction, you will immediately cease using the Throne Prototype. No termination of this Agreement will affect the rights and obligations of the parties accrued before termination. Sections 1, 3.2, 3.3, 4, 5, 6, 7 (with respect to any Fees accrued during the Term) and 8–14 will survive any termination of this Agreement.
12.4 Upon termination of this Agreement, you will promptly return the Throne Prototype and cease using any associated software.
13. GENERAL
13.1 Trade Rules. You acknowledge that the Throne Prototype may be subject to trade control laws and regulations of the United States and other national governments, and you will comply with them, as applicable.
13.2 No Partnership. The parties expressly agree that they do not intend for this Agreement to be interpreted as an employment, agency, joint venture or partnership relationship.
13.3 Governing Law; Dispute Resolution; Arbitration. This Agreement is governed in accordance with the laws of the State of Texas, U.S.A., without reference to conflict of laws principles. We each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof, or the Throne Prototype or Your Content (collectively, “Claims”), by binding arbitration by JAMS. Additionally, we each agree to use the optional expedited arbitration procedures then in effect for JAMS, except as provided below. Contact information and a description of JAMS’ arbitration process may be found at www.jamsadr.com. The arbitration will be conducted in Austin, Texas, unless you and Throne agree otherwise. JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS. The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses. You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not relieve you of your obligation to engage in the arbitration process described in this section. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This section shall not be interpreted as preventing Throne from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights. You agree that this arbitration provision will survive the termination of your relationship with Throne. All Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Agreement, you and Throne are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceedings of any kind.
13.4 Notices.
(a) To Throne. You will send any notices to Throne by any of the following: email; prepaid first class recorded delivery by U.S. postal mail; overnight delivery; or service of process to 310 Comal Ste. 217, Austin TX 78702.
(b) To You. Throne will send any notices to You by any of the following: email; prepaid first class recorded delivery by U.S. postal mail; overnight delivery; or service of process to any address on file.
13.5 Force Majeure. Throne will not be liable under this Agreement to the extent caused by any event or occurrence beyond Throne’s control.
13.6 Injunctive Relief. You acknowledge and agree that due to the unique nature of Throne’s Confidential Information and the Throne Prototype, there will be no adequate remedy at law for any breach of your obligations under this Agreement. You further acknowledge that any such breach will result in irreparable harm to Throne and, therefore, that upon any such breach or any threat thereof, Throne will be entitled to appropriate equitable relief, including but not limited to injunctive relief, without the necessity of posting any bond, in addition to whatever other remedies Throne may have.
13.7 Assignment. You will not assign or transfer any rights or obligations under this Agreement without the prior written consent of Throne; any such attempted assignment or transfer will be void. Throne may assign or transfer this Agreement, in whole or in part, without restriction.
13.8 Waiver, Modification. Neither party’s waiver of any breach of this Agreement constitutes a waiver of that provision in any other instance. This Agreement may not be modified, nor any rights under it waived, in whole or in part, except in writing signed by the parties.
13.9 Entire Agreement. This Agreement contains the entire understanding of the parties relating to its subject matter, supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding its subject matter.
13.10 Publicity. Throne may identify you on Throne’s testing program participation lists, marketing and advertising materials, including use of your name, likeness, Feedback, or other designations. In addition, upon reasonable request, you will provide Throne with publishable quotes and other reasonable assistance in support of Throne’s marketing initiatives, such as press releases, case studies, and other marketing collateral. You agree to serve as a reference for potential media and analyst inquiries.
13.11 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.
14. DEFINITIONS
The following terms have the following meanings:
14.1 “Agreement” means this Terms of Use, together with any supplemental Order Forms or exhibits which may be included with the Throne Prototype.
14.2 “Confidential Information” means all information that is (a) labeled or otherwise identified as “confidential” by Throne, or should reasonably be understood to be confidential, or (b) disclosed by Throne to you concerning Throne’s products, programs, business, marketing and product development plans, system architecture, data collection and reporting functionalities, technical information, pricing, discount and cost information, contractual terms and conditions, correspondence and other proprietary information, including without limitation any and all data, technology, research, inventions, tools, prototypes, intellectual property, trade secrets, know-how, formulations, files, software, compositions, works of authorship, samples, processes, methods and the like, your participation in the screening, the screening attendee list, program content, and all information relating to Throne’s past, present and future research, development and business activities of a nature generally considered confidential or proprietary. The Throne Prototype and Feedback will be deemed Confidential Information.
14.3 “Feedback” means any evaluative information, comments, feedback, suggestions or equests regarding the Throne Prototype, including but not limited to: (a) problems or defects you encounter while using the Throne Prototype; (b) requests for additional features, functionality, software or technology, or (c) evaluations, usability, software or hardware compatibility, interoperability, performance, bug reports, test results and documentation requirements. For the avoidance of doubt, Feedback includes your responses in interviews, questionnaires, photographs, videos, or testimonials regarding use of the Throne Prototype.
14.4 “Fees” means the amounts payable by you to Throne under this Agreement or any Order Form.
14.5 “Order Form” means a written agreement for the purchase and/or provision of Throne Prototype to Throne that is executed by Throne and You.
14.6 “Report” means any graphical or numerical display of results or usage of the Throne Prototype by you.
14.7 “Throne Prototype” means (a) the Throne pre-commercial release of the service made available to you under this Agreement, (b) any pre-commercial environment Throne makes available to you under this Agreement, which may include, but is not limited to, Throne’s mobile application, hosted computing environments, cloud computing environments, hosted storage environments, cloud storage environments, or combinations thereof, (c) any pre-commercial release of any Throne devices and associated software, which may include, but is not limited to, the downward-facing camera, or (c) the combination of the foregoing.
14.8 “Unregistered User” means any of your household members or guests, or other users or potential users of any facilities where your Throne device is located.
14.9 “Your Content” means any photos, videos, audio, audiovisual materials, data or other information or materials generated by use (including by you or any Unregistered User) of the Throne Prototype.