The Company may make modifications, deletions and/or additions to this Agreement (Changes) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Application or Website user interface, is sent to the email address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
Key Content-related Terms
- "Breather Spaces” means the Company’s physical locations, including entry or access areas, and any common areas, as applicable, which are accessed through the Application, the Website or any other means that Breather implements.
- "Collective Content" means, collectively, Company Content and User Content.
- "Content" means text, graphics, images, software (excluding the Application), video, information or other materials.
- "Company Content" means Content that Company makes available through the Application and/or Website, including any Content licensed from a third party, but excluding User Content.
- "User" means a person who accesses or uses the Breather Spaces, Application or Website.
- "User Content" means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Website or Application.
- "Website” means breather.com or any other website through which the Company makes available the ability to book Breather Spaces and posts this Agreement.
You agree to be bound by and comply with any additional terms, conditions and policies provided by the owner, tenant, and property manager of the Breather Spaces (collectively, the Building Owners) relating to the use of a specific Breather Space(s), including compliance with building security procedures, IT access and use procedures provided by the Building Owner (Venue Policies). The Venue Policies may be provided in electronic format through the Application, Website or in hardcopy format.
You are responsible for all activity that occurs with respect to your Account, including, without limitation, use of the Website, Application, and Breather Spaces. Without limiting the foregoing, for any reservation made through your Account, if other persons are present in the Breather spaces, you do hereby agree to be fully responsible and to indemnify the Company for any violation of this Agreement or applicable laws, by-laws or regulations, even if such violation was caused by such other persons.
If you are using Breather’s services as the owner, manager or representative of a property in which Breather Space(s) are located, through Breather’s Backstage or Onsite web applications, you understand and agree that you may only use information concerning individual users of the Breather Space(s) to facilitate a booking or for security purposes.
Representations and Warranties
By using the Website, Application or Breather Spaces, you expressly represent and warrant that you are legally entitled to enter into this Agreement. If you reside in a jurisdiction which restricts the use of the Breather Spaces because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Website, Application and Breather Spaces. Without limiting the foregoing, the Website, Breather Spaces and Application are not available to persons under the age of 18. By using the Website, Application or Breather Spaces, you represent and warrant that you are at least 18 years old. By using the Website, Application or the Breather Spaces, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. Your participation in using the Website, Breather Spaces and/or Application is for your sole, personal use. You may not authorize others to use your user status and/or password, and you may not assign or otherwise transfer your user account and/or password to any other person or entity. When using the Website, Application or Breather Spaces, you agree to comply with all applicable laws of the nation, the country, state, province and city in which you are present while using the Website, Application or Breather Spaces.
You may only access the Breather Spaces using authorized means. It is your responsibility to check to ensure you download the correct Application for your device. The Company is not liable if you do not have a compatible handset or if you have downloaded the wrong version of the Application for your handset. The Company reserves the right to terminate this Agreement should you be using the Application with an incompatible or unauthorized device.
By using the Website, Application or the Breather Spaces, you agree that:
- You will only use the Website, Breather Spaces or Application for lawful purposes.
- You will not use the Website, Breather Spaces or Application for any illegal or inappropriate purposes, including but not limited to skateboarding, roller-skating, roller blading, jumping rope, spitting, smoking, drug use, alcohol abuse, gambling or prostitution, pornography, sexual activity, violent or threatening behavior, or any other purpose reasonably likely to reflect negatively on Breather or any Building Owner.
- You will not smoke in the Breather Spaces.
- You will not light or allow any candles, incense sticks or naked flames in the Breather Spaces.
- You will not bring or keep any animals in the Breather Spaces, except for service or assistance animals, which shall at all times be harnessed, leashed, or tethered, or controlled through voice, signal, or other effective controls.
- You will not make excessive noise in the Breather Spaces, nor create any noise nor conduct any other activity which would in Breather’s or any Building Owner’s judgment disturb other Breather clients, guests, or other tenants in any building containing a Breather Space.
- You will follow all additional regulations regarding the Breather Spaces, as may be communicated through the Application, Website, posted signs, or otherwise.
- You will not use the Website, Application or Breather Spaces for sending or storing any unlawful material or for fraudulent purposes.
- You will not install, remove or modify any fixtures, equipment, machinery or appliances in the Breather Spaces.
- You are responsible for leaving the Breather Spaces in a clean and tidy condition.
- Neither the Company nor any Building Owner is responsible for any property you may leave behind in a Breather Space. It is your responsibility to ensure that you have retrieved all of your personal items prior to leaving a Breather Space.
- You may be held liable (and do hereby authorize the Company to charge you) for the repair cost for all damage to the Breather Spaces and items therein during your use thereof.
- You may be held liable (and do hereby authorize the Company to charge you) for any items which are taken from the Breather Spaces.
- You will not use the Website, Breather Spaces or Application to cause nuisance, harassment, annoyance or inconvenience.
- You will not impair the proper operation of the network.
- You will not try to harm the Website, Breather Spaces or Application in any way whatsoever.
- You will not copy, or distribute the Website, Application or other content without written permission from the Company.
- You will only use your password for the Website, Application and Breather Spaces for your own use and will not resell or transfer it to a third party.
- You will keep secure and confidential your account password or any identification we provide you which allows access to the Breather Spaces.
- You will provide the Company and/or the Building Owner with whatever proof of identity we/they may reasonably request.
- You will only use an access point or wireless internet connection which you are authorized to use. Additionally, when using the internet within the Breather Spaces, you shall only use it for lawful purposes, and without restricting the foregoing, you shall not use it for purposes of criminal acts, consumer fraud, etc.
- You will wear clothing appropriate to the building's situation while using the Breather Spaces.
- You do hereby acknowledge that there is a capacity limit as to the number of persons permitted in a Breather Space at any given time, and that such limit shall be posted on the Application or Website. You do hereby agree to adhere to such capacity limit.
You hereby consent to the use of sensors by the Company to track the location of various items in the Breather Spaces, which (without limitation) shall be used by the Company to optimize the Breather Spaces.
You do further acknowledge that your use of the Breather Spaces does not constitute the Company or the Building Owner granting you a lease, but is rather a limited, revocable, non-exclusive, non-transferable contractual license on the terms of this Agreement. In its sole discretion and without limiting any of the Company’s other rights hereunder, the Company may restrict your access to the Breather Spaces in the event of fraud, trespassing, or violation of this Agreement.
Repair or Cleaning Fees
You are responsible for the cost of repair for damage to, or necessary cleaning of, Breather Spaces resulting from your violation of this Agreement or your use of the Website, Application, or Breather Spaces in excess of normal “wear and tear.” In the event that the Company, in its reasonable discretion, determines that excessive repair or cleaning is required, the Company reserves the right to charge the payment method designated in your Account for the reasonable cost of such repair and/or cleaning, as well as an additional service fee which shall not exceed in Canada $500 Canadian Dollars, in the United States of America $500 US Dollars and in the UK £500 GBP per occurrence. Any such amounts are non-refundable and at the reasonable discretion of the Company.
License Grant, Restrictions and Copyright Policy
Subject to your compliance with the terms and conditions of this Agreement, Company grants you a limited, revocable, non-exclusive, non-transferable license to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense or assign the license rights granted in this section.
You will not use, copy, adapt, modify, decompile, reverse engineer, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Website, Breather Spaces, Application or Collective Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in this Agreement or expressly agreed in writing by the Company.
License granted by User
The Company may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Website, Breather Spaces or Application, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content including but without limitation on, through or by means of the Website, Breather Spaces or Application. In connection herewith, you hereby renounce and waive in favour of Company any moral rights you have or might have, now or in the future, with respect to User Content. Nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Website, Breather Spaces or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Website, Breather Spaces or Application or you have all rights, licenses, consents and releases that are necessary to grant to Company the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Company’s use of the User Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Subject to your compliance with this Agreement, Company grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on any mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (App Store Sourced Application), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms and Conditions. Company reserves all rights in and to the Application not expressly granted to you under this Agreement.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
- You acknowledge and agree that (i) this Agreement is concluded between you and Company only, and not Apple, and (ii) Company, 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 Apple App Store Terms and Conditions, which you are responsible to review from time to time.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- 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 for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company 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 Company.
- You and Company acknowledge that, as between Company 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.
- You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Website, Breather Spaces or the Application in any way; (ii) modify or make derivative works based upon the Website, Breather Spaces or the Application; (iii) create Internet "links" to, or "frame" or "mirror" the Website or Application on any other server or wireless or Internet-based device; (iv) reverse engineer the Website or Application, or access the Website or Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Website, Breather Spaces or Application, or (c) copy any ideas, features, functions or graphics of the Website, Breather Spaces or Application, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Website, Breather Spaces or Application.
You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights and material that could be considered as sexual or psychological harassment or of a discriminatory nature; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Website, Application or Breather Spaces or the data contained therein; or (v) attempt to gain unauthorized access to the Website, Application or Breather Spaces or its related systems or networks.
Company will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Company may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that Company has no obligation to monitor your access to or use of the Website, Breather Spaces, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Website, Breather Spaces and Application, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Company reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Company, at its sole discretion, considers to be in violation of this Agreement or otherwise harmful to the Website, Breather Spaces or Application.
The Company respects copyright law and expects its Users to do the same. It is Company’s policy to terminate in appropriate circumstances Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
Any fees which the Company may charge you for the use of the Website, Application or Breather Spaces, will be as set out on the Website or Application at the time of purchase, are inclusive of any taxes payable, are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, the Company's decision to terminate your usage, disruption caused to our Website, Application or Breather Spaces either planned, accidental or intentional, or any reason whatsoever. The Company reserves the right to determine final prevailing pricing.
You do hereby agree that you shall be charged fees based on the length of time of your booking of the Breather Spaces (regardless if you only make use of the Breather Spaces for less than your booked time). If you exceed the amount of time for which you booked a Breather Space, then you shall be charged for such excess time, as well as an overage charge if such excess time conflicts with another User’s booked time. You do hereby consent to such excess time charges and to such overage charge.
The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Company may change the fees for our Website, Breather Spaces or Application as we deem necessary for our business. We encourage you to check back at our Website periodically to find out about how we charge for the Website, Breather Spaces or Application.
If you have provided your consent, Company may send you SMS messages in relation to your bookings and use of Breather Spaces and for promotional purposes. Message and data rates may apply.
If you change your mobile phone service provider, you might have to re-enroll with the Company in order to receive future SMS messages. Company reserves the right to stop sending SMS messages at any time; you may at all times opt-out by replying from your mobile phone to any text from the Company with the word STOP , which opt-out will become effective within seven (7) days.
It is important to note that opting out of SMS messaging may prevent you from receiving information necessary to properly use the Breather service, such as room access codes and other important information.
Intellectual Property Ownership
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website, Application and the Breather Spaces and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website, Application or the Breather Spaces (collectively, “Feedback”). You are not required to provide any Feedback to the Company. To the extent you do provide any Feedback to the Company, you agree to assign and hereby do assign to the Company all right, title and interest in and to such Feedback and agree that the Company may freely utilize such Feedback without compensation to you. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, Application or the Breather Spaces, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Website, Application and Breather Spaces are trademarks of the Company or third parties, and no right or license is granted to use them.
Third Party Interactions
During use of the Website, Application and Breather Spaces, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Website, Application or Breather Spaces. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction, services or promotion between you and any such third party. The Company does not endorse any sites on the Internet that are linked through the Website, Breather Spaces or Application, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. The Company provides the Website, Application and Breather Spaces to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.
The Company may rely on third party advertising and marketing supplied through the Website, Application or Breather Spaces and other mechanisms to subsidize the Website, Application or Breather Spaces. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising, you must notify us in writing. The Company reserves the right to charge you a higher fee for the Website, Breather Spaces or Application, as the case may be, should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on the Company's website located at http://breather.com. The Company may compile, release and disclose non-nominative information regarding you and your use of the Website, Application or Breather Spaces as part of a customer profile or similar report or analysis, including, without limitation to third party service providers. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Breather Spaces.
By entering into this Agreement and using the Website, Application or Breather Spaces, you agree that you shall defend, indemnify and hold the Company, its licensors, applicable Building Owners and each of their parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, or (c) your use or misuse of the Website, Application or Breather Spaces, except in each case solely to the extent any of the foregoing arises directly from the gross negligence or willful misconduct of the Company or a Building Owner.
Disclaimer of Warranties
THE COMPANY AND BUILDING OWNERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SAFETY, ACCURACY OR COMPLETENESS OF THE WEBSITE, BREATHER SPACES OR APPLICATION. THE COMPANY AND BUILDING OWNERS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEBSITE, BREATHER SPACES OR APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE WEBSITE, BREATHER SPACES OR APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF THE BREATHER SPACES, AS WELL AS ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE, BREATHER SPACES OR APPLICATION WILL BE CORRECTED, OR (F) THE WEBSITE, APPLICATION OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WEBSITE, BREATHER SPACES AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMANCE WITH DESCRIPTION OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY AND BUILDING OWNERS. THE COMPANY AND BUILDING OWNERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE BREATHER SPACES, AS WELL AS ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE WEBSITE, BREATHER SPACES OR APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WEBSITE, APPLICATION AND BREATHER SPACES, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
FOR GREATER CERTAINTY: (A) THE LOCKING MECHANISM USED ON THE BREATHER SPACES IS PROVIDED BY A THIRD PARTY, AND THE COMPANY AND BUILDING OWNERS SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY FAILURE OF THE LOCKING SYSTEM TO WORK IN ITS INTENDED MANNER, INCLUDING WITHOUT LIMITATION ANY LOSS OR THEFT OF YOUR PROPERTY; (B) THE BREATHER SPACES ARE LOCATED IN BUILDINGS WHICH ARE NOT OWNED OR MANAGED BY THE COMPANY, AND THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES RELATING THERETO.
ADDITIONALLY, THE COMPANY AND BUILDING OWNERS MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OF ANY BREATHER SPACE FOR ANY PARTICULAR ACTIVITY NOR ANY ACTIVITIES THAT ARE CARRIED ON IN THE BREATHER SPACES, AND SHALL NOT BE LIABLE IN ANYWAY FOR SUCH ACTIVITIES.
THE COMPANY AND BUILDING OWNERS MAKES NO REPRESENTATION REGARDING THE WIFI ACCESSIBLE IN THE BREATHER SPACES, INCLUDING WITH REGARD TO ACCESS THERETO.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
THE WEBSITE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OF WHATSOEVER NATURE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY'S, ITS LICENSORS’ OR ANY BUILDING OWNER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) A BREATHER SPACE, THE WEBSITE OR APPLICATION EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO THE COMPANY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR THE AMOUNT OF FIFTY CANADIAN DOLLARS (50$) (IF THE LIABILITY ARISES IN CANADA), FIFTY US DOLLARS (IF THE LIABILITY ARISES IN THE US) OR FIFTY GB POUNDS (IF THE LIABILITY ARISES IN ENGLAND), WHICHEVER IS GREATER. IN NO EVENT SHALL THE COMPANY, ITS LICENSORS AND/OR ANY BUILDING OWNER BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE, BREATHER SPACES OR APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, BREATHER SPACES OR APPLICATION, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON OR WITHIN THE WEBSITE, APPLICATION OR BREATHER SPACES. THE FOREGOING EXCLUSIONS SHALL APPLY EVEN IF THE COMPANY AND/OR ITS LICENSORS OR ANY BUILDING OWNER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING BREATHER SPACES OFFERED VIA THE WEBSITE OR APPLICATION (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. THE COMPANY WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH BUILDING OWNERS OR OTHER THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY AND BUILDING OWNERS, TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, APPLICATION OR BREATHER SPACES, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE WEBSITE, APPLICATION OR BREATHER SPACES. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "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".
THE QUALITY OF THE BUILDINGS IN WHICH THE BREATHER SPACES ARE LOCATED ARE ENTIRELY THE RESPONSIBILITY OF THE BUILDING OWNERS. YOU UNDERSTAND THAT BY USING THE WEBSITE, APPLICATION AND THE BREATHER SPACES, YOU MAY BE EXPOSED TO LOCATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE WEBSITE, APPLICATION AND THE BREATHER SPACES AT YOUR OWN RISK.
TO THE EXTENT APPLICABLE UNDER LOCAL LAW, NOTHING IN THIS AGREEMENT SHALL LIMIT THE COMPANY'S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY'S NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, OR (B) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You may be required to rate certain aspects of your overall experience of the Breather Spaces, which rating will be prompted through the Website or Application. If you do not participate in such rating when requested, the Company reserves the right (without limiting any of Company’s other rights hereunder) to restrict your access to the Breather Spaces.
Additionally, if the Company, or if other Users, rate your usage of the Breather Spaces as being below a threshold acceptable to the Company, in its sole discretion, then (without limiting any of Company’s other rights hereunder) the Company may restrict your access to the Breather Spaces.
The Company may give notice by means of email to your email address on record in the Company's account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice, and address any complaint or claim to the Company (such notice, complaint or claim shall be deemed given when received by the Company) at any time by means of email to email@example.com.
This Agreement may not be assigned by you (whether in whole or in part) without the prior written approval of the Company. This Agreement may be assigned without your consent (in whole or in part) by the Company, including to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
Controlling Law and Jurisdiction – Canadian Users
If you are a resident of Canada, this Section 20 applies to you. If you are a resident of the U.S.A., Section 21 applies to you instead of this Section 20. If you are a resident of the United Kingdom, Section 22 applies to you instead of this Section 20.
General - This Agreement and any action related thereto will be governed by the laws of the Province of Quebec without regard to its conflict of laws provisions. Subject to the rest of this Section 20, the exclusive jurisdiction and venue of any action in relation to this Agreement will be the District of Montreal and each of the parties hereto waives any objection to jurisdiction and venue in such courts. However, in the event of the actual or threatened infringement, misappropriation or violation of Company’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, Company may, at its discretion, institute legal proceedings in any jurisdiction (s) which is (are) deemed necessary or advisable.
Arbitration - You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website, Breather Spaces or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you are waiving the right to participate as a plaintiff in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrators may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
Arbitration Rules - The arbitration will be subject to article 940 and following of the Code of civil Procedure (Quebec).
Decision - The arbitrators will render an award within the time frame specified in the Code of civil Procedure (Quebec). Such decision will include the essential findings and conclusions upon which the arbitrators based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Any damages granted by the arbitrators must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable.
Fees - The arbitrators shall determine who is responsible to pay the fees associated with the arbitration.
Controlling Law and Jurisdiction – United States Users
If you are a resident of the United States of America, this Section 21 applies to you. If you are a resident of Canada, Section 20 applies to you instead of this Section 21. If you are a resident of the United Kingdom, Section 22 applies to you instead of this Section 21.
General - This Agreement and any action related thereto will be governed by the laws of the state of New York without regard to its conflict of laws provisions. Subject to the rest of this Section 21, the exclusive jurisdiction and venue of any action in relation to this Agreement will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. However, in the event of the actual or threatened infringement, misappropriation or violation of Company’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, Company may, at its discretion, institute legal proceedings in any jurisdiction (s) which is (are) deemed necessary or advisable.
Arbitration - Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at http://www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) 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; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
Class Action Waiver - YOU AGREE THAT ANY CLAIMS SUBJECT TO ARBITRATION UNDER THIS SECTION 21 MUST BE MADE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Time Limits - YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE, APPLICATION OR BREATHER SPACES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Controlling Law and Jurisdiction – English Users
If you are a resident of England and Wales, this Section 22 applies to you. If you are a resident of Canada Section 20 applies to you and if you are a resident of the U.S.A., Section 21 applies to you.
General - This Agreement and any action related thereto will be governed by the laws of England and Wales. Subject to the rest of this Section 22, the exclusive jurisdiction and venue of any action in relation to this Agreement will be the courts of England and Wales, save where you are a consumer and you live in a part of the UK other than England and Wales, the applicable law of that part of the UK will govern and any Dispute will only be dealt with by the courts there. In the event of the actual or threatened infringement, misappropriation or violation of Company’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, Company may, at its discretion, institute legal proceedings in any jurisdiction which is deemed necessary or advisable.
Arbitration - You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website, Breather Spaces or Application (collectively, "Disputes") will be referred to and finally resolved by arbitration under the rules of the London Court of Arbitration (LCIA), which rules are deemed incorporated by reference to this clause. The number of arbitrators shall be, unless determined by the LCIA otherwise, one and the seat of arbitration shall be London, England. The language use in the proceedings shall be English. If you are a consumer, you may in your discretion decide whether to resolve any Dispute by arbitration or whether to exercise any other legal remedy which may be available to you.
By using the Website or Application, you represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree that the Company, in its sole discretion and for any or no reason, may terminate any member or customer account (or any part thereof) you may have with the Company or your use of Breather Space, and remove and discard all or any part of your account or any of your User Content, at any time. The Company may also in its sole discretion and at any time discontinue providing access to the Website, Application and Breather Spaces, or any part thereof, with or without notice. You agree that any termination of your access to the Website, Breather Space, Application or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you. These remedies are in addition to any other remedies Company may have at law or in equity.
You may terminate this Agreement at any time by deleting the Application from your device, ceasing all use of the Website and Breather Spaces and requesting the Company to cancel your account via email sent to firstname.lastname@example.org.
No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this Agreement or use of the Website, Breather Spaces or Application. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing. This Agreement comprises the entire agreement between you and the Company and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Nothing in this Agreement allows any party who is not a party to this Agreement to have any rights under this Agreement nor be able to enforce this Agreement.
You have requested and agreed that this Agreement be drafted in English.
Vous avez demandé et accepté que cette convention soit rédigée en anglais.
You hereby agree to the terms and conditions contained in the present Agreement.