Last Updated: September 18, 2023
1. BINDING EFFECT
THIS IS A BINDING AGREEMENT BETWEEN YOU AND THROW APP CO., A DELAWARE CORPORATION, WITH AN ADDRESS AT 3500 SOUTH DUPONT HIGHWAY DOVER, DELAWARE 19901, (“THROW APP”). BY CLICKING ON THE “ACCEPT” BUTTON, YOU AGREE TO BECOME A PARTY TO AND TO ABIDE BY THESE TERMS OF SERVICE (“TERMS”). IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK ON “ACCEPT” AND DO NOT ACCESS OR OTHERWISE USE THE THROW APP INTERNET PLATFORM (“SERVICE”), INCLUDING OUR WEB PAGES AND MOBILE DEVICE APPS. SELECTING “ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. YOU MUST AGREE TO THESE TERMS IN ORDER TO BE ABLE TO INSTALL AND USE THE SOFTWARE AND ACCESS AND USE THE THROW APP PLATFORM (THE “SERVICE”).
This agreement is entered into as of the date that you accept these Terms ("Effective Date").
THROW APP reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide you with notice of such changes through the Service or by updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Service after receiving notice of the changes, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review these Terms frequently to ensure that you understand the terms and conditions that apply when your access or use of the Service and when you collect and use Tokens and redeem and use Rewards. If you do not agree to the revised Terms, you may no longer access or use the Service.
“Answer” means an answer to a Throw provided by a User through the Service.
“Catcher” means a User who provides an Answer in response to a Throw.
“Catcher Points” means amounts received by a Catcher for his or her Answers.
“Fees” means, amounts payable for certain aspects of the Service, including, but not limited to, Thrower Fees and Booster Fees. The applicable Fees for desired transactions will be set forth on and disclosed through the Service.
“Intellectual Property Rights” means copyright, trademark, trade secret and all other intellectual and proprietary rights.
“Boost” means using the Service to highlight Answers.
“Booster Fees” means amounts paid by a Catcher to Boost his or her Answers.
“Service Credits” means prepaid Fees in your account purchased through the Software, whether as one-time packages or through recurring subscriptions, and processed by the applicable app store or payment processor.
“Score” means a Service score of a User, calculated by the Service, based on the User’s behavior, engagement and precision on the Service.
“Software” means THROW APP’S mobile device apps used for accessing the Service.
“Throw” means a solicitation for answers sent by a Thrower using the Service.
“Thrower” means a User who initiates a Throw using the Service.
“Thrower Fees” means amounts paid by a Thrower for obtaining an Answer.
“User” means a user of the Service who accepts these Terms and establishes an account to use the Service.
“User Content” means any communications, images, sounds, and all the material, data, and information that is uploaded or transmitted through the Software or the Service, including but not limited to any Throws, Answers, IP addresses and your personal information.
4. NOT MEDICAL ADVICE
THROW APP and the Service, including User Content, are for informational purposes only. THROW APP is not a licensed medical care provider and THROW APP does not vet, evaluate, or guarantee any of the Catchers providing Answers to your Throws are licensed medical care providers. The Service and User Content are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical or mental condition. Never disregard professional medical advice or delay in seeking medical advice or treatment because of something you have read on the Service. If you think you may have a medical emergency, call your doctor or 911 immediately. THROW APP does not recommend or endorse any specific treatment, tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Service. Reliance on any information provided by THROW APP, THROW APP employees, Catchers providing Answers, or other Users of the Service is solely at your own risk. We disclaim any liability for any errors or omissions, or for any inaccuracies in Answers or any other provided materials, as well as any violation of any ethical or moral standards applicable in your community to any medical or mental advice. Nothing in this agreement excludes or limits in any way our liability to you where it would be unlawful to do so.
5. SERVICE LICENSE
Subject to all of the terms and conditions herein, THROW APP grants you a non-exclusive, non-transferable, revocable limited license to access and use the Service using a web browser or the Software solely for your own personal purposes. You agree not to use the Service for any other purpose. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Service, including but not limited to payment of all third party fees associated therewith. The term of your license shall commence on the Effective Date and shall end upon your or THROW APP’S termination of this agreement. The Service will not be available for use by you once these Terms are terminated.
6. SOFTWARE LICENSE
Subject to all of the terms and conditions herein, THROW APP hereby grants you a limited, non-transferable, revocable, terminable, non-exclusive license, without the right to sublicense, to install and use the Software solely to access and use the Service and solely for your own personal purposes. The term of your license shall commence on the Effective Date and shall end upon your or THROW APP’S termination of this agreement. The Software will not be available for use by you once these Terms are terminated.
7. PERMITTED INSTALLATION
You may download and install the Software on your mobile devices only. You are entirely responsible for maintaining the confidentiality of your login credentials to use the Software. You may not use the login credentials of someone else at any time nor provide your login credentials to any other person. You agree to notify us immediately on any unauthorized use of your login credentials.
The Software and Service are copyrighted by THROW APP. You acknowledge that the Software and Service (and their respective structures, organization, and source code) constitute valuable trade secrets of THROW APP. Accordingly, you must not: (a) copy, modify, adapt, alter, translate, port or create derivative works of the Software, Service or other THROW APP materials; (b) permit third parties to use the Software or Service using your login credentials; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Software or Service; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the Software or Service; (e) remove, alter, or obscure any proprietary notices (including, without limitation, any copyright and trademark notices) of THROW APP or its licensors and suppliers from the Software or Service; (f) disseminate performance-related information relating to the Software or Service; or (g) otherwise use, reproduce, display or copy the Software or Service. You shall be exclusively responsible for the supervision, management, and control of your use of the Software.
9. ACCEPTABLE USE POLICY
You will only use the Service and Software in accordance with THROW APP’S published guidelines and policies. You agree that you will not, under any circumstances, do any of the following: (a) use, design, or assist in the design of cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or any Software experience; (b) disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server used to offer or support the Service or the enjoyment of the Service by any other person; (c) institute, assist, or become involved in any type of attack, including but not limited to distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service; (d) attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by THROW APP, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service; (e) engage in any act that THROW APP deems to be in conflict with the spirit or intent of the Service, including, but not limited to, circumventing or manipulating these Terms, our application rules, application mechanics or policies; (f) use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation; (g) post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive; (h) post any information that contains nudity, violence, or offensive subject matter or that contains a link to such content; (i) attempt to, or harass, bully, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including THROW APP employees; (j) make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including but not limited to a THROW APP employee; (k) solicit or attempt to solicit personal information from other Users; (l) collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; (m) create an account or access the Service if you are under the age of 18; (n) fail to monitor your account to restrict use by minors or fail to deny access to children under the age of 18; (o) You accept full responsibility for any unauthorized use of the Service by minors in connection with your account. You are responsible for any Fees that become due for any unauthorized use of the Service by minors in connection with your account and such amounts shall be immediately deducted from your Service Credit balance; (p) use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals.
10. DISPUTE POLICY
If you feel that any of the Throws or Answers on the Service are abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, then you are encouraged to report such information to firstname.lastname@example.org. Throwers and Catchers shall be permitted to report offensive Answers or Throws. THROW APP will not mediate any disputes regarding any alleged abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive content and will send the allegedly offensive Answers and Throws to a random sampling of Users who will determine by vote whether the content is offensive. YOU AGREE TO COMPLY WITH THE DETERMINATION OF THE USERS AS IT AFFECTS ANY CONTENT WHICH YOU POST ON THE SERVICE AND ACKNOWLEDGE THAT THROW APP IS NOT RESPONSIBLE FOR ANY SUCH DETERMINATION. YOUR ACCESS TO AND USE OF THE SERVICE IS CONDITIONAL ON YOUR AGREEMENT TO THIS DISPUTE PROCEDURE.
11. OWNERSHIP; RESERVATION OF RIGHTS
You agree that THROW APP shall own and retain all right, title, and interest to the Software and to the Service, to enhancements, improvements, and derivatives, and to all Intellectual Property Rights related thereto. Except as expressly licensed to you herein, THROW APP on its behalf and on behalf of its licensors reserves all right, title and interest in the Software, the Service and all associated copyrights, trademarks, and other Intellectual Property Rights therein. These licenses are limited to the Intellectual Property Rights of THROW APP and its licensors in the Software and the Service and does not include any rights to other patents or Intellectual Property Rights. Notwithstanding anything to the contrary herein, all rights not specifically granted in the licenses set forth above shall be reserved and remain always with THROW APP.
All title and copyrights in and to the Software and the Service are owned by THROW APP or its licensors. The Software and the Service are protected by copyright laws and international treaty provisions. Therefore, when using the Software and Service, you agree to obey the law and to respect the Intellectual Property Rights of others. Your use of the Software and Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights.
13. USER CONTENT
14. USER INTERACTIONS
You are solely responsible for your interactions with other Users of the Service and any other parties with whom you interact through the Service or the Software. If you have a dispute with one or more Users, you release THROW APP (and our officers, directors, agents, parents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including, but not limited to, damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
If you are a resident of another state, you hereby waive any similar provision in your state law applicable to releases.
You agree to pay all Fees and applicable taxes incurred by you or anyone using an account registered to you in accordance with the billing terms in effect at the time such Fees are due and payable. Fees will be deducted from your Service Credits balance. THROW APP uses the applicable app store or a third party payment processor to process your purchases of Service Credits. You hereby authorize the applicable app store or payment processor to charge all your Service Credit purchases to the credit or debit card you provide them for such purchases. In addition, you acknowledge that the applicable app store or third party payment processor, as applicable, may have a processing feeand that you will be charged the processing fee amount in addition to the amount due for Service Credits. You hereby authorize the applicable app store or payment processor to charge such processing fee amount. Accordingly, you assume all responsibility for notifying the applicable app store or payment processor of changes in credit card numbers and/or expiration dates. Service Credits are non-refundable and have no value other than for payment of Fees on the Service. When you owe Fees on the Service, your Service Credit balance will be reduced in the amount of Fees due. All purchases on the Service and corresponding Fees are final. Your Service Credit balance will also be adjusted to reflect any payment reversal and you will be responsible for any deficit balance. You shall immediately pay THROW APP, on demand, any payments that are made to us that are subject to a subsequent reversal. Questions regarding charges must be brought to the attention of our billing department within ninety (90) days after the end of the questioned billing period. Charges beyond ninety (90) days old are not subject to review, reversal or refund. YOU REPRESENT AND WARRANT THAT (I) THE CREDIT CARD INFORMATION SUPPLIED TO THE APPLICABLE APP STORE OR THIRD PARTY PROCESSOR IS TRUE, CORRECT AND COMPLETE AND THAT YOU ARE AUTHORIZED TO PROVIDE AND USE IT, (II) PAYMENTS MADE BY YOU FOR PURCHASES OF SERVICE CREDITS WILL BE HONORED BY YOUR CREDIT CARD COMPANY, AND (III) YOU SHALL BE RESPONSIBLE FOR ALL FEES INCURRED THROUGH USE OF YOUR LOGIN CREDENTIALS. THROW APP will not keep or store any of your personally identifiable financial information.
16. CATCHER POINTS
When you are acting as a Catcher, you will receive Catcher Points in accordance with the terms in effect at the time that you provide the applicable Answer to a Throw. YOU UNDERSTAND THAT YOUR CATCHER POINTS SHALL BE BASED IN PART ON YOUR SCORE IN THE SERVICE AND ACCORDINGLY SHALL VARY DEPENDING ON YOUR SCORE AT THE TIME THAT YOU CATCH THE THROW IN QUESTION. Catcher Points have no monetary value and may not be auctioned, traded, bartered or sold and are not transferrable upon death, by gift, as part of a domestic relations matter, or otherwise, except by operation of law. Catcher Points may be redeemed for cash only in accordance with these Terms. For the avoidance of doubt, Catcher Points are an incentive to encourage a Catcher to provide an Answer to a Throw and are not compensation for time spent and are not calculated based on time spent by you. Similarly, any Catcher Points received by you for providing an Answer is not pro-rated on an hourly basis or otherwise. ALL CATCHER POINTS POSTED TO YOUR ACCOUNT EXPIRE ONE (1) YEAR FOLLOWING POSTING. Your Catcher Points account is not a bank or financial account and does not accrue or accumulate interest of any kind. Catcher Points are personal to you, cannot be combined or aggregated with any Catcher Points accumulated by any other Catcher, and cannot be transferred at any time, by operation of law or otherwise, and have no value until presented by you for redemption in accordance with these Terms. Any Catcher Points posted to your account in error or through fraud, violation of these Terms or other misconduct shall be removed from your account.
17. REDEMPTION OF CATCHER POINTS
Current Catcher Points in your account, can be redeemed for a U.S. Dollar payment pursuant to these Terms. THE MINIMUM CATCHER POINTS REDEMPTION THRESHOLD IS THE EQUIVALENT OF TWENTY FIVE U.S. DOLLARS ($25). You can request a redemption of your Catcher Points, at any time that your Catcher Points amount is greater than the minimum threshold, using the functionality provided on the Service. Redemptions of Catcher Points are processed once per month and payments to you of the redemption amount shall be processed by THROW APP’s third party payment processor. You acknowledge that the third party payment processor may charge a processing fee for redeeming Catcher Points and that the amount to be paid to you will be net of such processing fee amount. All redemptions are final and upon payment to you by THROW APP’s third party payment processor of the corresponding amount (less any processing fees), your Catcher Points balance will be reduced by the amount of Catcher Points redeemed. You hereby authorize any payment processor engaged by THROW APP to credit to your designated bank account or debit card account all corresponding amounts due (less any processing fees) upon your redemption of Catcher Points. You assume all responsibility for notifying our payment processor of changes in credit card numbers and/or expiration dates. THROW APP will not keep or store any of your personally identifiable financial information. PLEASE NOTE THAT ONCE YOU HAVE RECEIVED PAYMENTS OF $599 DURING A TAX YEAR FROM REDEMPTIONS OF YOUR CATCHER POINTS, YOU WILL NOT BE ABLE TO REDEEM ANY FURTHER CATCHER POINTS FOR THE REMAINDER OF THE APPLICABLE TAX YEAR UNLESS AND UNTIL YOU PROVIDE THROW AP WITH A COMPLETED AND VERIFIED W-9 FORM.
You shall be responsible for all income and other taxes and all applicable duties, levies and fees and similar charges imposed by any federal, state or local government entity on your use of the Software and Service, including, but not limited to, any taxes due on payments received when you redeem your Catcher Points and or on Fees that you pay through the Service. We require all Catchers who attempt to redeem Catcher Points greater than $599 in any tax year to provide us a W-9 tax form so that we can file a 1099-Misc form with the United States Internal Revenue Service covering such redemption payments.
19. CONSENT TO USE OF DATA
You shall maintain as confidential all THROW APP proprietary and confidential information disclosed or learned during the term of these Terms (“Confidential Information”). The Software shall be deemed to be THROW APP’S Confidential Information. You shall not use the Confidential Information for any other purpose or disclose, transfer or otherwise convey such Confidential Information to any third party without the prior written consent of THROW APP. The foregoing obligations of confidentiality and non-use shall continue in effect, with respect to each item of Confidential Information, for so long as none of the below exceptions apply thereto.
21. USER COMMUNICATION
THROW APP reserves the right to send service e-mails notifying you of operational or other changes that may affect or change the Software or Service. Please note that you cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of the Software. YOU HEREBY GRANT US PERMISSION TO SEND YOU ALL SERVICE EMAILS AS DESCRIBED ABOVE.
22. WARRANTY DISCLAIMER
THE SOFTWARE AND SERVICE ARE PROVIDED ON AN “AS IS” BASIS. THROW APP MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, THE SERVICE OR REGARDING YOUR SCORE ON THE SERVICE. THROW APP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE FOREGOING INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. UNDER NO CIRCUMSTANCE SHALL THROW APP BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM MISUSE, ABUSE OR MOBILE DEVICE MALFUNCTION, OR IF THE SOFTWARE HAS BEEN INSTALLED, USED, MODIFIED OR OPERATED OTHER THAN IN ACCORDANCE WITH INSTRUCTIONS FURNISHED BY THROW APP OR OTHER THAN AS PERMITTED BY THESE TERMS OR WITH RESPECT TO ANY THROWER OR ITS THROWS OR ANY CATCHER AND ITS ANSWERS. THROW APP DOES NOT WARRANT THAT THE SOFTWARE OR SERVICE OR ANY ANSWERS RECEIVED THROUGH SUCH USE WILL BE ADEQUATE FOR YOUR PURPOSES OR THAT USE OF THE SOFTWARE OR SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES FROM THROW APP OR ANY THIRD PARTY. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOUR SCORE IS DETERMINED THROUGH AN ALGORITHM BASED ON YOUR BEHAVIOR, ENGAGEMENT AND PRECISION ON THE SERVICE AND THAT SUCH SCORE WILL DETERMINE THE CATCHER POINTS THAT YOU WILL RECEIVE FOR YOUR ANSWER.
23. LIMITATIONS ON LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR YOUR VIOLATION OF THROW APP’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THESE TERMS, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, ALL ANSWERS OR OTHER RESULTS GENERATED FROM THE USE OF THE SOFTWARE OR THE SERVICE, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. IN ANY CASE, THROW APP’S ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS SHALL BE LIMITED TO U.S. $100.00; BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
These Terms and the license granted herein shall automatically terminate without notice upon the occurrence of any of the following: (i) Your breach of any of the terms contained herein, which is not cured within ten (10) days after THROW APP’S notice to you; or (ii) You attempt to use, copy, license, or convey the Software in any manner contrary to the terms of these Terms or in derogation of THROW APP’S Intellectual Property Rights therein. You can also terminate these Terms by sending us a notice to such effect. Immediately upon termination of these Terms, whether or not you receive notice of such termination, the license shall be immediately and automatically terminated and you shall not have any further rights to use the Software. Upon a termination, you shall immediately delete the Software from your mobile devices. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
25. GOVERNING LAW
These Terms will be governed by and interpreted in accordance with the law of the State of California without reference to its choice of law rules. This agreement shall be deemed to be performed in Sunnyvale, CA. Both parties irrevocably submit to the exclusive jurisdiction of the state or federal courts located in Santa Clara County, CA. for enforcement of any arbitral award or for any intermediate equitable relief, and both parties waive any right to object to the exclusive jurisdiction or venue of the courts Santa Clara County, CA. In the event of any action being filed to enforce an arbitral award, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. YOU EXPRESSLY AGREE THAT ANY DISPUTE WITH THROW APP IS PERSONAL TO YOU, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL COURT PROCEEDING. NEITHER PARTY AGREES TO CLASS ACTION OR PROCEEDING WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL COURT PROCEEDING AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING
26. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ENFORCEABILITY OF THIS AGREEMENT IS GOVERNED BOTH PROCEDURALLY AND SUBSTANTIVELY BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-9 (“FAA”), TO THE MAXIMUM EXTENT PERMITTED BY LAW. You agree that any dispute or claim arising out of or in any way relating to these Terms (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration. Arbitration Procedures. Before commencing arbitration you must first present any claim or dispute to us in writing to allow us the opportunity to resolve the dispute. If the claim or dispute is not resolved within 60 days, you may request arbitration by serving a completed Commercial Demand for Arbitration Form on us and the American Arbitration Association (“AAA“). You can contact the AAA at 800-778-7879 or www.adr.org. The arbitration shall be conducted by the AAA in accordance with its Commercial Arbitration Rules, and, when deemed appropriate by the arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes, except as expressly set forth in these Terms. There shall be one arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, you and we are unable to agree upon an arbitrator, the AAA will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of California, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in the State of California. Arbitration is final and binding. In making any award, the arbitrator will be restricted by the “Limitation On Liability” provision in these Terms and will not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitations on Liability” provision. You expressly agree that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable. The party requesting arbitration must pay the applicable AAA filing fee. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys’ fees. THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY TRIAL OR RIGHT TO A JURY TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. NEITHER PARTY AGREES TO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
You shall not assign or otherwise transfer your rights or obligations under these Terms to a third party. IF YOU TRANSFER POSSESSION OF THE SOFTWARE TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be deleted and re-interpreted to the extent necessary to comply with law and interpreted and substituted to accomplish the objectives of such provision to the greatest extent possible under applicable law. The remaining provisions of these Terms will continue in full force and effect.
29. FORCE MAJEURE
Other than for your payment obligations, neither party shall be liable for any delay or nonperformance due to acts of God, natural casualties, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a party (a “Force Majeure Event”). If a Force Majeure Event occurs, the party whose performance is affected shall give the other party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance. The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of the Force Majeure Event. Performance shall be promptly resumed upon termination of the Force Majeure Event.
30. ENTIRE AGREEMENT
These Terms constitutes the entire agreement between the parties with respect to the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. THROW APP shall have the right, at any time and without notice, to add to or modify these Terms, simply by delivering such amended Terms to you by email at the address provided to THROW APP by you or by posting the changes on the Service. Your access to or use of the Service after the date such amended Terms are delivered to you shall be deemed to constitute acceptance of such amended Terms.
31. LEGAL RELATIONSHIP
You hereby acknowledge and agree that you are an independent contractor and are free to choose to participate or not participate in the Service and, if you choose to participate, your scope and frequency of participation, and that you can modify any of the foregoing in your sole discretion. You further acknowledge that THROW APP does not and shall not monitor, direct or participate in your participation or scope and frequency of participation in the Service and that you are free to participate in other endeavors and services without restriction. You hereby further acknowledge and agree that you shall not pursuant to these Terms be, and shall not be considered, an agent or an employee of THROW APP and that you shall have no right or authority at any time to make any contract or binding promise of any nature on behalf of THROW APP or to hold yourself out as such.
The Software and the Services are not intended for users under the age of 18. If you are a minor under the age of 18, you may not use the Software or the Services. THROW APP does not knowingly collect personally identifiable information from users under the age of 13. Children under age 13 should not send any information about themselves to THROW APP. If a child under age 13 submits information through any part of the Service, and THROW APP becomes aware that the person submitting the information is a child, we will attempt to delete this information as soon as possible.
33. WARRANTY AND ACKNOWLEDGEMENT
BY CLICKING “ACCEPT” AND INSTALLING THE SOFTWARE AND USING THE SERVICE, YOU ACKNOWLEDGE, WARRANT AND AGREE THAT (i) YOU ARE 18 YEARS OF AGE OR OLDER; (ii) THE INFORMATION YOU PROVIDE ON THE REGISTRATION FORM IS TRUE, ACCURATE, COMPLETE AND CURRENT; AND (III) YOU HAVE READ THESE TERMS AND YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU MUST AGREE TO THESE TERMS IN ORDER TO INSTALL AND USE THE SOFTWARE AND THE SERVICE.