Date of Last Revision: July 1, 2019.
1. Introduction
1.1 This Consumer Agreement (“Agreement”) governs your relationship with Breathe OnDemand, Inc. (collectively “BODI” or “us” or “our” or “we”) when you register on our Service as a Consumer and establish a Consumer account (“Account”).
1.2 By registering as a Consumer on our Service you agree to be bound by the entirety of this Agreement.
1.3 PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING A CONSUMER’S LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. BY CLICKING “I AGREE” YOU ARE ACCEPTING ALL THE TERMS AND CONDITIONS THAT ARE CONTAINED HEREIN.
1.4 With respect to the acceptance of this Agreement “you” or “Consumer” means you as an individual unless you are accepting this Agreement on behalf of your employer or other entity, in which case “you” or “Consumer” means that employer or entity.
2. Account Management
2.1 The Account established upon registration on our Service as a Consumer will be referred to as the Consumer’s business account (“Business Account”).
2.2 Consumer agrees to assume full responsibility for managing its Business Account, including updating and/or deleting information in the Business Account to maintain its validity.
3. Definitions
3.1 Operational
Appointment: means a Massage that has been scheduled on our Service to be completed by a Therapist.
Cancellation: Consumer may cancel and effectively terminate its usage of our Service at will by deleting the app.
Consumer: means a member of the public that has scheduled and paid for a Massage on our Service.
Credentials: means the user identifier and password provided by our Service, or selected by the Consumer, for a Consumer to obtain access to its Business Account.
Information: means designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement, all of which is the property of BODI or its licensors with all rights reserved.
License: means a Therapist’s massage credentials as defined by the jurisdiction in which the Therapist resides.
Massage: means the worked performed and completed by a Therapist as a result of an Appointment made by a Consumer.
Payment: means a financial transaction made by a Consumer using our Service, using a Payment Method supported by our Payment Processor and/or Service. A Payment may include a Tip for the Therapist.
Payment Processor: means the third-party entity that our Service uses to process weekly Payments to a Consumer and Charges from Consumers.
Registration: means the process that our Service provides for establishing a Business Account on our Service.
Registration Date: means the date that the Consumer completed the Registration process on our Service.
Service: means BODI’s mobile app, products, software, processes, services, website and servers, all of which collectively constitute a marketplace for matching a Consumer’s demand for massages with the availability of a Therapist.
Therapist: means a licensed massage therapist that has created a Business Account on our Service and whose background check has been conducted and approved.
3.2 Intellectual Property & Confidentiality
Confidential Information: means any written information or information that is stored by electronic means which (i) relates to this Agreement, (ii) is received by one of the parties from the other and (iii) is marked “Confidential,” “Proprietary” or bears a marking of like import or which the Disclosing Party states in writing at the time of transmittal to, or receipt by, the Receiving Party is to be considered confidential.
Disclosing Party: means the party providing Confidential Information.
Intellectual Property Rights: means all rights of design and authorship, all copyrights, all trademark and service mark rights, all patent rights, all rights in trade secret and proprietary information, all rights of attribution and integrity and other moral rights, and all other intellectual property rights of any type.
Moral Rights: means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty.
Receiving Party: means the party receiving confidential information.
Trade Secret: means any oral, written, or documentary information or information that is stored by electronic means that: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
4. Term and Duration
4.1 The term of this Agreement shall commence on the date a Consumer first accepts this Agreement or accepts a modified Agreement. This Agreement will remain in full force and effect until it is terminated by either party as provided for herein.
4.2 Consumer acknowledges and agrees that each Massage completed pursuant to our Service is a separately enforceable addendum to this Agreement and shall survive the termination of this Agreement to the extent that Service is due a Payment from the Consumer.
4.3 Consumer acknowledges and agrees that the mutual obligations to maintain Trade Secrets and Confidential Information are in effect in perpetuity or to the extent allowed by applicable law.
5. Compensation
5.1 Consumer acknowledges and agrees that it will make a Payment on our Service each time the Consumer schedules an Appointment for a Massage.
5.2 Consumer acknowledges and agrees that all Payments are FINAL, although BODI, at its sole discretion, will attempt to reschedule an Appointment at a time when a Therapist is reasonably available.
6. Transmissions & Feedback
6.1 As defined herein, transmissions (“Transmissions”) may take the form of questions, comments, suggestions, ideas, feedback, notes, messages, e-mails, postings, letters, or other written materials about, or concerning, our Service, provided by you to BODI. You acknowledge that Transmissions by you to and from our Service are non-confidential, and that others may read and/or intercept such Transmissions.
6.2 BODI has the right, but not the obligation, at its sole discretion, to review any Transmissions using our Service and to edit or delete any Transmissions that violate any part of this Agreement. You hereby consent to BODI’s collection and use of such Transmissions in accordance our then current Privacy Policy and acknowledge that submitting Transmissions to our Service creates no financial or fiduciary relationship between you and BODI.
6.3 By using our Service, you thereby assign all right, title, and interest, including the copyright therein, in all Transmissions, to BODI. Accordingly, BODI shall own all intellectual property rights in the Transmissions and shall be entitled to unrestricted use of the Transmissions for any purpose, commercial or otherwise, without acknowledgment, compensation, or liability to you. By submitting such Transmissions to our Service, you irrevocably waive all “moral rights” in such Transmissions.
7. Indemnification
7.1 You agree to defend, indemnify, and hold BODI, its parents, subsidiaries, affiliates, officers, agents and employees, its suppliers and their respective affiliates and agents harmless from all claims, liabilities, damages, and expenses (including attorneys’ fees and expenses) arising out of or relating to your use of our Service, including but not limited to: (1) your submission to our Service of any Transmission; (2) your alleged breach of this Agreement; (3) your infringement of any intellectual property or other rights of any person or entity; and (4) for any negligent or intentional act that causes harm to the Consumer as a result of an Appointment scheduled through our Service or as a result of a Massage performed by a Therapist.
7.2 BODI acknowledges and agrees that the indemnification sought in 7.1 is limited to acts that are directly or indirectly under your control regarding your use of, or inability to use, our Service, including Appointment scheduled through our Service and does not extend beyond that.
8. Limitations of Liability
8.1 IN NO EVENT SHALL BREATHE ONDEMAND, INC. BE LIABLE FOR ANY, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OR INABILITY TO USE OUR SERVICE; OR FOR THE LOSS OF PROFITS OR DAMAGES THAT MAY RESULT FROM THEFT, DELAYS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, FAILURE OF PERFORMANCE, DESTRUCTION OR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE); OR OTHERWISE, EVEN IF BREATHE ONDEMAND, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH CASES, THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. TO THAT EXTENT, BREATHE ONDEMAND, INC.’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION SHALL NOT BE GREATER THAN THE TOTALITY OF PAYMENTS MADE BY YOU TO BREATHE ONDEMAND, INC. IN EXCHANGE FOR ALLOWING YOU TO USE OUR SERVICE DURING THE PAST THREE MONTHS PRIOR TO THE COMMENCEMENT OF ANY LEGAL ACTION OR PROCEEDING, OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS LESS.
8.3. CONSUMER ACKNOWLEDGES AND AGREES THAT ANY COMPENSATION FOR LIABILITY FOR AN ACT COMITTED BY THE THERAPIST IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE); OR OTHERWISE, IS LIMITED TO THE AMOUNT OF INSURANCE COVERAGE THAT THE THERAPIST HAS AT THE TIME OF THE ACT. BREATHE ONDEMAND, INC. ACCEPTS NO LIABILITY FOR AN ACT COMMITTED BY A THERAPIST. CONSUMER AGREES THAT IT WILL NOT SEEK DAMAGES FROM BREATHE ONDEMAND, INC. FOR SUCH AN ACT, AND WILL OTHERWISE HOLD BREATHE ONDEMAND, INC. HARMLESS FOR AN ACT COMMITTED BY A THERAPIST.
9. DISCLAIMER
9.1 YOU ACKNOWLEDGE THAT OUR SERVICE AND THE INFORMATION THEREIN ARE PROVIDED ON AN “AS IS” BASIS AND THAT BREATHE ONDEMAND, INC. MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING OUR SERVICE OR THE INFORMATION. BREATHE ONDEMAND, INC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9.2 BY USING, OR ATTEMPTING TO USE, OUR SERVICE, YOU EXPRESSLY ACKNOWLEDGE THE FOLLOWING:
(1) THE INFORMATION COULD INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS;
(2) BREATHE ONDEMAND, INC. DOES NOT REPRESENT OR WARRANT THE TIMELINESS, RELIABILITY, COMPLETENESS, OR ACCURACY OF THE INFORMATION; AND
(3) BREATHE ONDEMAND, INC. DOES NOT REPRESENT OR WARRANT THAT OUR SERVICE OR ANY RELATED SERVERS ON WHICH IT RESIDES ARE FREE OF ERRORS OR VIRUSES OR OTHER POTENTIALLY DAMAGING CONSUMER.
9.3 BREATHE ONDEMAND, INC. MAY PERIODICALLY MAKE CHANGES TO ANY SERVICE INFORMATION, FEATURES OR FUNCTIONS. BREATHE ONDEMAND, INC. RESERVES THE RIGHT TO IMPLEMENT SUCH CHANGES AT ANY TIME WITHOUT NOTICE TO YOU, OTHER THAN THAT WHICH IS SET FORTH IN THIS AGREEMENT.
9.4 UNLESS SPECIFICALLY INDICATED IN WRITING TO THE CONTRARY, NO REFERENCE IN OUR SERVICE TO ANY PRODUCTS, PROCESSES, SERVICES OR OTHER INFORMATION BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, OR OTHERWISE, SHALL CONSTITUTE OR IMPLY BREATHE ONDEMAND, INC.’S ENDORSEMENT OR SPONSORSHIP THEREOF.
10. Links
10.1 Our Service may include hypertext links to other websites over which BODI has no control. BODI makes no representations of any kind regarding the usage of such websites or the on any website linked to such websites or to any changes or modifications made thereto.
10.2 You hereby acknowledge that by using any such hypertext links, you irrevocably waive any and all claims against BODI regarding such websites and must adhere to the usage and privacy policies governing such sites. BODI’s usage of links does not imply our endorsement, or sponsorship, of any such websites.
11. Intellectual Property Rights of Third Parties
11.1 BODI respects the intellectual property rights of others and requires a Consumer on our Service to do likewise. BODI prohibits a Consumer from making available, in whatever form and by whatever mechanism, content on our Service that infringes upon any party’s intellectual property rights.
11.2 BODI has the right to terminate the Account of any infringing Consumer and will take steps to do so immediately upon proper notification and in compliance with applicable law. You acknowledge and agree that a violation of the intellectual property rights of others on our Service triggers the Indemnification as provided for herein.
11.3 BODI will strictly comply with the requirements of the Digital Millennium Copyright Act, Title 17, United States Code Section 512(c)(2) (“DMCA”). If you believe your copyright has been violated by any Consumer on our Service, then you may send a written notification of such infringement to our Designated Agent as set forth below.
11.4 BODI has designated an agent to the U.S. Copyright Office to receive notifications of alleged copyright infringement relating to our Service. You must submit all such notifications, in a manner consistent with the DMCA, to BODI’s Designated Agent. Likewise, if you believe that your copyrighted content has been erroneously removed from our Service then you must send a counter notification to BODI’s Designated Agent in a similar DMCA compliant manner.
Send all DMCA compliant notifications to:
Company: Breathe OnDemand, Inc.
Designated Agent: Breathe Management
Address: 6451 N. Federal Highway, Suite 105, Fort Lauderdale, FL, 33308
Phone: 1-800-677-4396
Email: admin@breatheondemand.com
12. Trademark
12.1 All trademarks used on our Service are the property of their respective owners and may not be used without permission therefrom.
12.2 Whether or not specifically designated as such, www.breatheondemand.com and all other colors, graphics, logos, sounds, images, icons and buttons displayed on our Service are or may be trademarks of BODI or its licensors.
12.3 Absent prior written consent from BODI, you may not copy, imitate, or use any portion of these marks unless as a Consumer you are the owner or licensee of same.
13. User Conduct Restrictions: Impermissible Use and Activities
13.1 You agree not to use our Service to transmit data or code which: (1) is unlawful, threatening or abusive; (2) encourages criminal or other activity that would reasonably give rise to civil liability or otherwise violate any local, state, federal, or international law; (3) contains false or misleading information; (4) inhibits another User from use or enjoyment of our Service; (5) is defamatory, libelous or otherwise unlawful; (6) contains a virus or surreptitious code; (7) contains any type of commercial component or advertising, or than as represented by your offerings; or (8) allows for the harvesting of email addresses or other contact information, or the harvesting of information of any kind.
13.2 Furthermore, you agree not to use our Service to engage in the following kinds of activities: (1) transmit, upload, post, store, and share content of any kind, and by any other mechanism, that you are not the lawful owner or licensee of; (2) register for more than one Account or register an Account in the name of another; (3) impersonate a person or entity or make misrepresentations regarding affiliations of any kind; (4) engage in any kind of behavior that can reasonably be construed as SPAMMING; and (5) engage in any behavior likely to cause harm to BODI, our Service, our Therapists, our Users, or to the public at large.
14. Data Collection
14.1 Your Transmissions are subject to BODI’s Privacy Policy. By using our Service, you agree to review BODI’s Privacy Policy and to be bound by its terms and conditions. From time to time BODI may change its Privacy Policy without notice to you, other than that provided for in the Policy. Your continued use of our Service, after the posting of any changes to said Policy, shall constitute your agreement and acceptance of such changes.
14.2 BODI does not knowingly collect personally identifiable information (or information of any other kind) directly from anyone under the age of 18, with or without parental consent. If you have a good faith belief that BODI has inadvertently collected such information, please contact BODI at admin@breatheondemand.com. BODI will take immediate steps to remove such information from our Service and from any databases under BODI’s control.
15. License Granted to BODI
15.1 By submitting content to our Service, a Consumer grants BODI a nonexclusive, worldwide, transferable and fully paid license to distribute Consumer’s offerings within our Service to the extent required to accomplish our Service’s objectives, either directly or indirectly. A Consumer also grants BODI the right to make available a Consumer’s offerings to Consumers as required for achieving the objectives of our Service. BODI acknowledges and agrees that the license granted by a Consumer to BODI only allows BODI to grant rights to Consumers within the confines of our Service, and it does not provide for a grant of any usage rights outside of our Service. The license granted by a Consumer to BODI does not allow BODI the right to modify a Consumer’s offerings, other than as provided for herein.
15.2 The license to BODI expires upon termination of this Agreement.
15.3 Consumer, acknowledges and agrees that BODI may retain archived copies of offerings post Cancellation for purposes related to our internal operations, including but not limited to our compliance with applicable law and for other business reasons.
15.4 Consumer represents, warrants, and guarantees that you have the full right, ability, and authority to make offerings available on our Service and to grant the various licenses contained herein. Therapists further represents, warrants, and guarantees that by making available offerings on our Service you are not violating any obligation owed by you to a third party, including without limitation obligations of confidentiality, privacy, attribution or Intellectual Property Rights including, but not limited to, rights related to patent, trademark, copyright, or trade secrets.
16. Confidentiality
16.1 Either party to this Agreement may, in the course of fulfilling its terms, need to disclose information to the other party that is proprietary or confidential.
16.2 The terms Confidential Information and Trade Secrets do not include information that: (i) is already known to the Receiving Party as evidenced by prior documentation thereof; or (ii) is or becomes publicly known through no wrongful act of the Receiving Party; or (iii) is rightfully received by the Receiving Party from a third party without restriction and without breach of this Agreement or any other agreement; or (iv) is approved for release by written authorization of the Disclosing Party.
16.3 The Receiving Party shall not disclose to others, or use for any purpose of its own, any Confidential Information, financial or business data, technical data, or other confidential or proprietary information obtained from the Disclosing Party, or from an affiliated entity of the Disclosing Party, as a result of work done pursuant to this Agreement, or generated or developed in the performance of work under this Agreement.
16.4 The Receiving Party agrees not to use for any purpose whatsoever or to disclose Trade Secrets at any time during or after the term of this Agreement or until such Trade Secrets lose their status as such by becoming generally available to the public by independent discovery, development, or publication.
16.5 The covenants regarding Confidential Information and Trade Secrets will apply to any Confidential Information or Trade Secrets disclosed to the Receiving Party by the Disclosing Party before or after the date of this Agreement and remain in full force and effect after termination of this Agreement.
17. Independent Contractor
17.1 Neither party nor any of its personnel shall be considered as an agent or employee of the other party. It is understood and agreed that BODI is an independent contractor with respect to performing work hereunder and that BODI shall have full control over, and responsibility for, the manner and means by which the objectives of our Service are met.
17.2 Consumer acknowledges and agrees that it is likewise an independent contractor vis-à-vis its relationship with BODI as provided for herein.
18. BODI’S Rights
18.1 Consumer acknowledges and agrees that BODI owns all right, title and interest, including without limitation, all Intellectual Property Rights and Moral Rights, in and to our Service, and that Consumer shall not acquire any right, title, or interest in, or to, same.
18.2 A Consumer shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any BODI intellectual property including, but not limited to BODI’s software, and/or documentation.
18.3 A Consumer shall not create or attempt to create a substitute or similar Service through use of, or access to, BODI proprietary information. A Consumer shall not remove, obscure, or alter BODI copyright notices or other proprietary rights notices affixed to or contained within any BODI software, or documentation.
18.4 BODI may retain and use, subject to the terms of BODI’ Privacy Policy, and what is contained in this Agreement, all information a Consumer submits to our Service including, but not limited to, all information provided by a Consumer during Registration.
19. Force Majeure
Neither party shall be responsible for (or be deemed in breach or default hereof as a result of) delays or failures in performance hereunder to the extent that such party was hindered in its performance by any act of God, war, terrorism, civil commotion, application of any law or regulation or other act of any governmental officer or personnel, labor dispute, or any other occurrence beyond the reasonable control of such party.
20. Notices
All notices hereunder (other than Payments) shall be in writing and delivered personally or sent via facsimile, by certified mail, return receipt requested, email (confirmation requested) or by a reputable courier service to the address of the principal place of business of the party to be notified or to the address provided to our Service during registration, if no principal place of business can be determined.
21. Governing Law
21.1 The laws of the State of Florida, United States of America shall govern this Agreement, as well as BODI’s Privacy Policy, notwithstanding any principles of conflicts of law.
21.2 You agree that any action at law or in equity arising out of or relating to this Agreement or BODI’s Privacy Policy, other than those disputes or claims subject to Arbitration as enumerated below, shall be filed only in state or federal court located in the State of Florida, in a venue most proximate to Pinellas County, Florida, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such action.
22. Resolution of Conflict.
Both parties agree during a thirty (30) day period after notice is given to the other party of a dispute under the terms of this Agreement, to use its best efforts to resolve any dispute through good faith negotiations, prior to invoking the remedies provided for in our General Terms, unless the Intellectual Property Rights of either party are threatened or Consumer is in violation of our User Conduct Restrictions.
23. Arbitration
23.1 Any claim or controversy arising among or between the parties hereto pertaining to our Service, or any claim or controversy arising out of, or with respect to, any matter contained in this Agreement, or any differences as to the interpretation or performance of this Agreement, other than those wherein either party has infringed or threatened to infringe the other party’s intellectual property rights, or wherein you have violated our User Conduct Restrictions, shall be settled by arbitration in the State of Florida. Such arbitration shall be before three arbitrators of the American Arbitration Association (the “AAA”) under its then prevailing rules.
23.2 Intellectual property rights, as defined herein, include patent, copyright, trademark or trade secrets. You and BODI jointly acknowledge that arbitration is not an adequate remedy at law for actual or threatened infringement of either party’s intellectual property rights. Therefore, it is agreed that injunctive or other appropriate relief may be sought under these circumstances.
23.3 In any arbitration involving this Agreement, the arbitrators shall not make any award that will alter, change, cancel or rescind any provision in this Agreement, and their award shall be consistent with the provisions of this Agreement. Any such arbitration must be commenced no later than one (1) year from the date such claim or controversy arose, or the claim is waived.
23.4 The award of the arbitrators shall be a final, binding and judgment and may be entered thereon in any court of competent jurisdiction.
24. Severance and Waiver
24.1 Consumer acknowledges and agrees that if any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Furthermore, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision.
24.2 BODI’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by BODI.
23.425. Termination
25.1 Either you or BODI may terminate this Agreement. You may terminate this Agreement by destroying all materials obtained from our Service and by providing a termination notice to BODI at admin@breatheondemand.com. BODI may terminate this Agreement immediately, without notice for any reason, or no reason, and reserves the right to block or prevent your future access to our Service.
25.2 Should you or BODI decide to terminate this Agreement then BODI will prevent access to your Business Account on our Service. BODI agrees to make a good faith effort to resolve an outstanding dispute between BODI and a Consumer, if any exist, prior to termination. BODI, at its sole discretion, may restore access to your Business Account if the dispute has been resolved to its satisfaction.
25.3 You acknowledge and agree that termination of this Agreement by either party pertains solely to your use of our Service and has no effect on other contractual obligations that may exist between the parties, which remain in full force and effect.
26. Entire Agreement
This Agreement contains all the terms and condition agreed to by you and BODI with respect your use of our Service. It supersedes all prior agreements, arrangements and communications between the parties dealing with same, whether oral or written.
27. Definitions and Constructions
Unless otherwise specified, the terms, “includes”, “including”, “e.g.,”, “for example”, and other similar terms are deemed to include the term “without limitation” immediately thereafter.
