Terms of Service
Last updated June 24, 2019
Yeah, that’s us
This is breathe2 (referred to as “us”, “we” or “our”), a venture of what about kate GmbH registered under the laws of the state of Berlin in Germany with its principal office address at Mueggelstr. 8, 10247 Berlin, Germany (+49) 151 44844844.
About our Services
We strongly believe that the regular practice of meditation can be a key to your general wellbeing. We see breathing as one of the simplest form of meditation. To enable you with an easy approach to meditation and wellbeing, breathe2 provides users (referred to as “Users”, “you”, “your”) a set of diverse breathing workouts, as well as the possibility to create own workouts. These workouts are provided via the breathe2 mobile app for iOS and watchOS (referred to as “Services”) and come as pre-installed workouts plus the option to create your own workouts.
About these Terms of Service
Changes to these Terms of Service
breathe2 may change these Terms of Service from time to time, anytime. We will usually inform you of any changes by posting the updated Terms of Service on the breathe2 website. If we make any material changes to these Terms of Service, we will post a notification on the breathe2 website and will ask you to review the changes to these Terms of Service the next time you access the Services. Your continued use of the Services after the time the changes are communicated will indicate your acceptance of the Terms of Service, including those changes.
Permitted use of Services
The Services are made available to you for your non-commercial use only. Organizations, Businesses or educational institutions such as universities or schools are encouraged to make use of the Services at any time. You agree not to use breathe2
or any of its content to promote a product or service. You may not modify, reproduce, download, store, distribute, publish, license, or create derivative works from the Services or from the Content. You may not access breathe2 in any way that could damage, disable or overburden the Services. You may not use any third-party APIs, software, tools or scripts to access or modify the Services or underlying technology, unless you are authorized in writing by breathe2.
License and Intellectual Property Ownership
breathe2 grants you the personal, revocable, non-transferable, non-exclusive right to use the software and technology that is provided as part of the Services for your use in accordance with these Terms of Service. Noting more, nothing less. You acknowledge that breathe2 owns all right, title and interest in and to the Services. This includes without limitation, all underlying software and technology, and all other Intellectual Property Rights in relation to the Services (other than that owned by 3rd parties). “Intellectual Property Rights” means any and all intellectual property rights existing in any part of the world under applicable law, including without limitation patent law, trade secret law, trademark law, copyright law, unfair competition law and any and all applications, renewals, extensions and restorations of such rights, now or hereafter in effect – and that’s worldwide.
The Services contain different types of Content: breathe2 Content and User Content. In all cases, “Content” means any and all content. This refers to breathing workouts created with inhale / exhale frequencies for each breathing cycle and a name for the workout. In general and in all cases, „Content“ means any text, images, photos, videos, sounds, postings, messages, recommendations, comments, files, feedback, bug reports, or other materials and works of authorship. Each type of Content that you encounter has different rules and restrictions, as set forth below:
a. breathe2 content and ownership. As between breathe2 and you, breathe2 owns or controls all right, title and interest in the Services and in the Content included within the Services, including its logos, trademarks and all other Intellectual Property Rights it controls (“breathe2 Content”).
b. Third party content. Content from third parties may be displayed to you through and as part of the Services (“Third Party Content”). We do not exercise control over Third Party Content and you agree that we are not responsible for any Third Party Content.
c. User content and interactions with other users. We do not claim ownership in any Content that you may add to, post on, deliver to, or otherwise make available to the Services through your comments or other features of the Services that may allow you to post or share your own Content (“User Content”) and you may choose to take down Content that you have posted. By posting User Content, you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display and distribute your User Content in any and all media or distribution method (now known or later developed) throughout the world. The licenses granted under this Section will survive the termination or expiration of these Terms of Service for any reason. You may not post a photograph or video of another person without that person’s permission. You are solely responsible for any and all User Content that you post on the Services and for your interactions with other Users. You represent and warrant that: (i) you own the User Content posted by you on the Service or otherwise have the right to grant the licenses set forth in these Terms of Service, and (ii) your User Content and the use of it by breathe2 as permitted by the license granted in these Terms of Service does not violate the privacy rights, publicity rights, Intellectual Property Rights, or other rights of any person.
d. Content restrictions. You agree not to (i) modify, copy, publish, display, transmit, distribute, perform, sell or create derivative works based on the Content and Services; (ii) rent, lease, loan or sell access to the Services; or (iii) decompile, reverse engineer or copy any Content (other than the Content you post) or the Services. You also agree to not remove, obscure or alter breathe2’s or a third party’s copyright notice, logos, trademarks or other proprietary rights notices affixed to or contained within the Services. You will not interfere with, disrupt or create an undue burden on the Services or the networks or services connected to the Services.
e. Prohibited content. You agree that you will not post or share through the Services any Prohibited Content. “Prohibited Content” includes, without limitation, Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind; (ii) harasses or advocates harassment of another person; (iii) involves the transmission of “junk mail,” “chain letters,” unsolicited mass mailing or “spamming”; (iv) is false, misleading, libelous, defamatory or promotes, endorses or furthers illegal activities; (v) infringes the Intellectual Property Rights of another person; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under thirteen (13); (vii) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, spyware, malware or other harmful content or code; or (viii) otherwise violates applicable law, the terms of these Terms of Service or potentially creates liability for breathe2. Any accounts posting, hosting or recommending Prohibited Content are subject to termination. We reserve the right to remove Content or links to Content that we determine in our sole discretion is unlawful, fraudulent, threatening, libelous, defamatory, obscene or otherwise objectionable. We also reserve the right to remove Content that we determine in our sole discretion is primarily intended to promote a product or service. We have the right (but not the obligation) to investigate or review any Content and delete (or modify) any Content that in our sole judgment violates these Terms of Service or which is Prohibited Content, or may otherwise violate the rights, harm or threaten the safety of any User or any other person, or create potential liability for us or any User.
9. COPYRIGHT POLICY
breathe2 respects the Intellectual Property Rights of creators. If you believe that your work has been displayed, posted, copied or included within the Services in a way that constitutes copyright infringement, please first check to see if the work originated from a third party service. You may notify such third party service directly about alleged copyright violations. For all other copyright notifications, please provide our Copyright Agent with the following information: (i) a digital or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number and e-mail address; (v) 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; (vi) 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. Contact information for our Copyright Agent for notice of claims of copyright infringement is as follows:
what about kate GmbH
Telephone: (+49) 0151 44844844
We reserve the right to remove Content alleged to be infringing in our sole discretion and without notice. It is our policy to terminate the account of any User who repeatedly is accused of infringing copyrights.
10. SUBSCRIPTION SERVICES & OTHER CHARGES
Certain features of the breathe2 Service may require a subscription which may be charged in advance or periodically, according to the plan you selected when you began your subscription (the “Subscription Services”). Other features may allow for purchases of premium Content. Your payment may be charged directly by breathe2 through its payment processor, or through your mobile application provider, in which case you should look to the provider’s terms regarding in –app payments.
a. Your subscriber account. If you purchase Subscription Services, you agree that your subscription is personal to you and the members of your household, and you may not share your account and password with others. Any such sharing by you of your account and password is a violation of these Terms of Service and may result in the cancellation of your subscription without refund. Most subscriptions will automatically renew at the end of the subscription period with a charge to the credit card that breathe2 has on file for you, or through the payment provider you have chosen. For an annual subscription, you will be notified in advance of that renewal. For all subscription plans, if you do not wish your subscription to renew, you may cancel at any time through your account. breathe2 will not refund any unused or inadvertently renewed subscriptions, and it is always within breathe2’s sole discretion whether to grant any refunds. Child Users may not sign up for Subscription Services. If the parent or guardian of a Child User wishes to purchase a Subscription Service for the Child User, the parent or guardian must create an account and gift the subscription to the Child User. In that event, all account information will relate to the parent or guardian and no personal information will be retained for the Child User.
11. YOUR BREACH OF THESE TERMS OF SERVICE
Any breach by you of these Terms of Service may result in, among other things, termination or suspension of your rights to use the Services and deactivation of your account, along with the cancellation of your subscription, if applicable.
12. LEGAL OBLIGATIONS
In order to cooperate with legitimate government or regulator requests, subpoenas or court orders, to protect our systems and Users, to protect the property and rights of breathe2 or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, unethical or legally actionable, we may access and disclose any information and Content we consider necessary or appropriate, including, without limitation, account information, device ID, IP address, usage history and other information and data. We will not disclose any information or data of a Child User, without first notifying, and, if appropriate, getting permission from the parent or guardian.
13. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. breathe2 MAKES NO CLAIMS WHATSOEVER ABOUT ANY MEDICAL OR HEALTH BENEFITS FROM THE USE OF THE breathe2 SERVICES AND DOES NOT PURPORT TO GIVE MEDICAL ADVICE. IT IS SOLELY YOUR RESPONSIBILITY TO CONSULT WITH YOUR OWN MEDICAL AND HEALTH PRACTITIONERS ABOUT YOUR OWN PHYSICAL AND MENTAL HEALTH AND THE MENTAL AND PHYSICAL HEALTH OF ANY CHILD USER FOR WHOM YOU ARE RESPONSIBLE. NO DOCTOR-PATIENT RELATIONSHIP IS CREATED BY YOUR USE OF THE breathe2 SERVICES. breathe2 EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF PROPRIETARY RIGHTS. breathe2 DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY, QUALITY AND PERFORMANCE OF THE CONTENT AND THE SERVICES. breathe2 DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR VIEWING OF THE CONTENT AND USE OF THE SERVICES, AND DOES NOT GUARANTEE THAT YOU WILL RECEIVE ANY BENEFIT FROM YOUR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU VIEW THE CONTENT AND USE THE SERVICES AT YOUR OWN DISCRETION AND RISK. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
14. LIMITATION OF LIABILITY
Under no circumstances shall breathe2 be liable to any User in connection with that User’s use or misuse of the Content or the Services. Such limitation of liability shall apply to prevent recovery of indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise (even if breathe2 has been advised of the possibility of such damages). This limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the Content or Services, from inability to use the Content or Services, from any claim relating to the user of the Content or the Services, or from the interruption, suspension, or termination of the Content or Services. Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.
You hereby release us, our officers, employees, investors, agents and successors from claims, demands, any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, emotional distress, death and property damage, that is either directly or indirectly related to or arises from (i) any interaction you have with other Users, (ii) your use of the Services or (iii) your participation in any offline events. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
You agree to defend, indemnify and hold breathe2, their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Content or Services or your violation of these Terms of Service.
Your interaction with other Users on the Services or with third parties, including any payment or delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User, advertiser or third party. You agree that breathe2 will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any third party’s use or disclosure of your personal information that you make available to them. If there is a dispute between you and any third party (including any User), we are under no obligation to become involved and you agree not to involve us unless we request otherwise in writing; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users or third parties.
18. THIRD PARTY SERVICES AND PARTNER COMMUNITIES
The Services may contain links to third party applications, websites or services, and also may be accessed via a plug-in through third party applications, websites or services (“Third Party Services”). We may also enable sharing and interoperability to Third Party Services, Partner Communities and other Users or use other means that allow you to connect the breathe2 Services to Third Party Services, Partner Communities and other Users. You use all such connections to Third Party Services and Partner Communities at your own risk. To the extent such links are provided by us, they are provided only as a convenience and do not imply our endorsement of or affiliation with such Third Party Service or Partner Community. While we will always strive to select the best partners, we accept no responsibility for the quality, content, policies or reliability of Third Party Services or Partner Communities or for links back to the breathe2 Services. You should review applicable terms and policies, including privacy and data gathering practices, for any Third Party Services or Partner Communities and should make whatever investigation you feel necessary or appropriate and choose appropriate settings for sharing your personal information before proceeding with any interaction with a Third Party Service or Partner Community.
If you have comments on the breathe2 Services or ideas on how we might improve, please contact us at firstname.lastname@example.org. If you submit any comments or ideas to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all Intellectual Property Rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the comments and ideas for any purpose. The licenses granted under this Section shall survive the termination or expiration of these Terms of Service.
20. INITIAL RESOLUTION OF QUESTIONS OR DISPUTES
If you have any questions or concerns about the Services or these Terms of Services, we strongly encourage you to first contact us email@example.com directly.
For any claim where the total amount of the award sought is less than $10,000 (excluding claims for injunctive or other equitable relief), either party may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action.
22. LAW AND JURISDICTION
These Terms of Service shall be governed by the laws of the State Berlin, Germany without giving effect to any conflicts of laws principles that would require the application of the law of a different jurisdiction. You agree that any claim or dispute you may have against breathe2 must be resolved by a court located in Berlin, Berlin, Germany, except as otherwise agreed by the parties or as in the arbitration option. You agree to submit to the personal jurisdiction of the courts located within Berlin, Berlin, Germany for the purpose of litigating all such claims or disputes.
23. MISCELLANEOUS PROVISIONS
If for any reason a court finds any provision or portion of this Terms of Service to be unenforceable, the remainder of the Terms of Service will continue in full force and effect. The provisions of these Terms of Service that by their nature are continuing will survive any termination. This Terms of Service is the entire agreement between the parties with respect to the use of the Services and supersedes and replaces all prior or contemporaneous communications or agreements, written or oral. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by breathe2.