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BreathBeats Terms of Service

These Terms of Service (which the App may also call our "Terms of Use") (the "Terms") are a binding agreement between you and SHORESIDE LLC, a Minnesota limited liability company doing business as BreathBeats ("BreathBeats," "we," "us" or "our"). They govern your access to and use of the BreathBeats mobile application (the "App"), our website at breathbeats.app (the "Site"), and the content, features and services we make available through them (together with the App and the Site, the "Services").

PLEASE READ THESE TERMS CAREFULLY. SECTION 14 CONTAINS A BINDING ARBITRATION AGREEMENT AND A CLASS-ACTION WAIVER. UNLESS YOU OPT OUT WITHIN 30 DAYS AS SECTION 14.10 DESCRIBES, DISPUTES BETWEEN YOU AND BREATHBEATS WILL BE RESOLVED BY INDIVIDUAL ARBITRATION, AND YOU GIVE UP THE RIGHT TO A JURY TRIAL AND TO TAKE PART IN A CLASS ACTION. PAID SUBSCRIPTIONS RENEW AUTOMATICALLY UNTIL YOU CANCEL (SECTION 5).

The short version. This summary is for convenience only. It does not replace the full Terms, which control.

  • BreathBeats offers guided breathing and music for general wellness. It is not medical care, and it cannot help in an emergency. If you are in crisis or thinking about suicide, call or text 988. In an emergency, call 911.

  • Paid subscriptions renew automatically at the end of each billing period until you cancel. To avoid the next charge, cancel in your app store account settings at least 24 hours before the current period ends.

  • Camera mode is optional and works on your device. No photos or video are ever recorded, saved, or sent anywhere. Our Privacy Policy explains how camera mode handles information.

  • You may use the Services and their music for your own personal, non-commercial use.

  • Disputes are resolved by individual arbitration or in small-claims court, not through class actions, unless you opt out of arbitration within 30 days (Section 14).

1. Agreement to These Terms

1.1 Acceptance. You accept these Terms when you tap "Agree and continue" or a similar button in the App, create an account, start a subscription, or otherwise indicate your acceptance where these Terms are presented to you. If you do not agree to these Terms, do not use the Services.

1.2 Privacy. Our Privacy Policy and our Consumer Health Data Privacy Policy describe how we collect, use and disclose personal information in connection with the Services. Please read them. They describe our privacy practices but are not part of this agreement.

1.3 Additional terms. Some features, offers and promotions may be subject to additional terms that we present with them, such as the terms of a promotional offer. Those additional terms become part of these Terms for that feature, offer or promotion, and they control if they conflict with these Terms.

1.4 App stores. If you download the App from an app store, such as Apple's App Store, your use of the App is also subject to that app store's terms. Section 9 contains additional terms that apply if you use the App on an Apple device.

2. Health and Safety

2.1 General wellness only. The Services provide guided breathing, an on-screen breathing guide and music for general wellness. The Services are not a medical device and do not provide medical, psychological or other health care advice, diagnosis or treatment. They are not intended to diagnose, treat, cure, mitigate or prevent any disease or condition, and they are not a substitute for care from a qualified health care professional. Using the Services does not create a provider-patient or any other professional relationship. Always consult a qualified health care professional about your health, and do not disregard or delay professional advice because of anything in the Services.

2.2 Not for emergencies. The Services do not monitor your health or safety and cannot respond to an emergency, and we do not read feedback or support messages around the clock. If you are in crisis or thinking about suicide or self-harm, call or text 988 (the 988 Suicide & Crisis Lifeline) in the United States. If you have a medical emergency, call 911.

2.3 Breathing safety. Breathing exercises can cause lightheadedness, dizziness, tingling or shortness of breath and, rarely, fainting. Breathe at a pace and depth that feel comfortable. You never need to keep up with the on-screen guide, and you should never hold your breath longer, or breathe harder, than feels comfortable, including for camera mode. If you feel unwell, stop, return to normal breathing, and sit or lie down until the feeling passes. Some breathing patterns include breath holds. If you are pregnant, or have a heart, lung, blood-pressure or seizure condition, a history of panic attacks, or any other condition that breathing exercises could affect, talk to a health care professional before using the Services and skip breath holds.

2.4 Safe surroundings. Do not use the Services while driving or operating machinery, in or near water, or while standing anywhere a fall could cause injury. You are responsible for choosing a safe place to use the Services.

3. Eligibility and Accounts

3.1 Age. You must be at least [13] years old to use the Services. If you are under 18, or under the age of majority where you live, you may use the Services only with the permission of a parent or legal guardian who has reviewed and agreed to these Terms on your behalf. A parent or guardian who permits a minor to use the Services agrees to these Terms, including Section 14, on their own behalf and on the minor's behalf, and is responsible for the minor's use of the Services. The Services are not directed to children under 13.

3.2 Accounts. You can use some features without an account. Other features, such as keeping your session history with your account, require you to create one using a supported sign-in service, such as Sign in with Apple or Sign in with Google. You must provide accurate information and keep it current. You are responsible for activity under your account and for keeping your device and sign-in credentials secure. Notify us promptly at support@breathbeats.app if you believe someone has used your account without your permission. You may not share your account or transfer it to anyone else.

3.3 Sign-in services. When you use a third-party sign-in service, that service's terms and privacy policy apply to your use of it. We receive only the information the service shares with us, as our Privacy Policy describes.

4. The Services

4.1 Features and plans. The Services include guided breathing patterns, an on-screen breathing guide and music. Some features are free; others require a paid subscription (Section 5). The App describes the features included in each plan, and those features may change as Section 4.4 describes.

4.2 Camera mode. Camera mode is optional and is available only in certain plans. If you turn it on, the App uses your device's front-facing camera to estimate the timing of your breathing, on your device, by detecting points on your face, such as around your mouth, and uses that estimate during your session to pace the on-screen guide and adjust the music. No photos or video are ever recorded, saved, or sent anywhere. Our Privacy Policy explains how camera mode handles information. You may use the Services without camera mode and may turn it off at any time. Use camera mode only for yourself, and do not point the camera at anyone else. Camera mode may not detect every breath, and its performance varies with lighting, position, movement and device.

4.3 Music. Music is provided for listening within the Services, subject to Section 6.

4.4 Changes and availability. We may change, suspend or discontinue any part of the Services, including features, content and music, at any time. Where practicable, we will give you reasonable advance notice of a change that materially reduces the features of a paid subscription, and Section 5.9 describes your options if we discontinue a paid feature. The Services may be unavailable from time to time for maintenance, updates or reasons beyond our control.

4.5 Updates. We may release updates to the App, and some updates may be required to keep using the Services.

4.6 Pre-release features. We may offer features that we identify as beta, preview or experimental. They are provided for evaluation, may not work as expected, and may be changed or withdrawn at any time.

5. Subscriptions, Billing and Cancellation

5.1 Subscriptions. Certain features require a paid subscription (a "Subscription"). Before you buy, the App shows each Subscription's price, billing period and included features. Prices may vary by app store, region or promotion, and applicable taxes may be added to them.

5.2 Purchases through an app store. If you buy a Subscription in the App, you buy it through your app store account (for example, your Apple Account), and the app store processes your payment under its own terms. We do not receive your full payment card number. The app store's terms govern billing, payment methods and refunds for those purchases, in addition to these Terms.

5.3 Automatic renewal. YOUR SUBSCRIPTION WILL RENEW AUTOMATICALLY AT THE END OF EACH BILLING PERIOD FOR ANOTHER PERIOD OF THE SAME LENGTH (FOR EXAMPLE, ONE MONTH OR ONE YEAR), AND YOUR APP STORE ACCOUNT WILL BE CHARGED THE SUBSCRIPTION PRICE THEN IN EFFECT, PLUS ANY APPLICABLE TAXES, UNTIL YOU CANCEL. THE RENEWAL CHARGE IS MADE WITHIN 24 HOURS BEFORE THE END OF THE CURRENT PERIOD. TO AVOID BEING CHARGED FOR THE NEXT PERIOD, YOU MUST CANCEL AT LEAST 24 HOURS BEFORE THE CURRENT PERIOD ENDS.

5.4 How to cancel. You may cancel at any time in your app store account's subscription settings. On an iPhone, open Settings, tap your name, tap Subscriptions, select BreathBeats and tap Cancel Subscription. If you bought through another app store, use that store's subscription settings. The App may also link to these settings, and you can contact us at support@breathbeats.app for help. Deleting the App or your BreathBeats account does not cancel your Subscription. When you cancel, your Subscription stays active until the end of the current billing period and then ends.

5.5 Free trials and introductory offers. We may offer free trials or introductory prices. Before you accept an offer, we or the app store will show its terms, including its length, its price and the price that will apply after it ends. Unless you cancel at least 24 hours before the offer period ends, your Subscription will continue automatically at the regular price then in effect for your plan. Eligibility may be limited, for example to new subscribers or to one offer per person.

5.6 Offer codes and promotions. We may make offer codes, gift codes and other promotions available. Unless the offer's own terms say otherwise: (a) each person may redeem a particular offer only once, a single-use code may be redeemed by only one person, and a code must be redeemed before it expires; (b) codes have no cash value and may not be sold, transferred or exchanged; (c) an offer may be limited to new subscribers or to particular plans; and (d) when the promotional period ends, your Subscription will renew automatically at the regular price then in effect unless you cancel at least 24 hours before the promotional period ends. We may void a code that was obtained or used fraudulently or in violation of these Terms or the offer's terms.

5.7 Price changes. We may change Subscription prices. We or the app store will notify you in advance of a price increase as applicable law and the app store's rules require and, where they require it, will ask for your consent. A price change applies from the first renewal after the notice period. If you do not want to pay the new price, cancel before it takes effect.

5.8 Refunds. Except as these Terms state or the law requires, payments are non-refundable, and we do not give refunds or credits for partial billing periods or unused features. The app store handles refunds for purchases made through it, under its own policies; for purchases made through Apple, you can request a refund at reportaproblem.apple.com. We cannot issue refunds for app store purchases ourselves, except as Section 5.9 provides.

5.9 Discontinued features and termination. If we discontinue the Services, remove a feature that is a principal part of your Subscription, or terminate your access for a reason other than your breach of these Terms, before the end of a billing period you have paid for, [we will help you request a refund of the unused part of that period from the app store and, if the app store declines, we will refund that amount to you directly, by a payment method we agree with you].

5.10 Purchases outside an app store. If we let you buy a Subscription or other product directly from us, for example on the Site, the price, billing, renewal and cancellation terms will be presented at checkout, and our payment processor will process your payment. Those terms and these Terms govern that purchase. If we offer a one-time purchase that provides access to features for the life of the Services (a "lifetime" purchase), it provides access for as long as we make those features available through the Services, not for the lifetime of any person or device.

6. License and Acceptable Use

6.1 License. Subject to your compliance with these Terms, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable and revocable license to download and install the App on devices you own or control, and to access and use the Services and their content, including music, for your own personal, non-commercial use. If you use the App on an Apple device, Section 9.2 further defines this license.

6.2 Restrictions. Except as these Terms or the features of the Services expressly permit, you must not, and must not help anyone else to:

  • (a) copy, record, capture, download, rip or extract any music, audio or other content from the Services, or distribute, sell, rent, lend, broadcast, publicly perform or otherwise make it available;

  • (b) use the Services or their content for any commercial purpose, including playing music from the Services in a class, a business or a public place, without our prior written permission;

  • (c) modify, adapt, translate or create derivative works of the Services or their content;

  • (d) reverse engineer, decompile or disassemble the App, or attempt to derive its source code, except to the extent applicable law expressly permits despite this restriction;

  • (e) circumvent, disable or interfere with any security feature, access control or subscription entitlement;

  • (f) scrape, crawl or use any automated means to access the Services or to collect content or data from them;

  • (g) use the Services or their content to develop, train, fine-tune, test or improve any artificial intelligence or machine-learning model, or to build any dataset;

  • (h) use camera mode to capture or process images of anyone other than yourself;

  • (i) interfere with or disrupt the Services or the servers and networks that provide them, or attempt to gain unauthorized access to them;

  • (j) remove or alter any copyright, trademark or other proprietary notice;

  • (k) misrepresent your identity or your affiliation with any person; or

  • (l) use the Services in violation of any law or anyone's rights.

6.3 Sharing from the App. [Some features let you create and share content about your sessions, such as share cards, and you may share that content using those features. You may also record short clips of your own sessions, including the music heard in them, and post them on social media for personal, non-commercial purposes, as long as you do not alter the music, use it apart from your session, or suggest that we endorse you or your content. We may withdraw this permission for particular content by notice to you. Content made under a separate agreement with us, such as a creator partnership, is governed by that agreement.]

6.4 Your content. If the Services let you add or use your own content, such as audio files stored on your device, you keep your rights in that content and are responsible for it, including for having the rights needed to use it with the Services.

7. Ownership, Trademarks and Feedback

7.1 Our rights. As between you and us, we retain all right, title and interest in and to the Services and their content, including software, text, graphics, visuals, audio and music and the selection and arrangement of that content, together with all related intellectual property rights to the extent they exist. These Terms do not transfer any of those rights to you, and we reserve all rights not expressly granted in these Terms.

7.2 Open-source software. The App includes open-source software components, each licensed under its own terms, such as the Apache License 2.0 or the MIT License. Those terms govern your use of those components, and nothing in these Terms limits your rights under them. [A list of these components and their licenses is available in the App or at breathbeats.app/licenses.]

7.3 Trademarks. "BreathBeats," the bird character, our logos and our other names, marks and designs are trademarks of SHORESIDE LLC. You may not use them without our prior written permission, except to refer accurately to the Services.

7.4 Feedback. If you send us suggestions, ideas or other feedback, you grant us a perpetual, irrevocable, worldwide, royalty-free and fully paid-up license to use, disclose and otherwise exploit that feedback for any purpose, without obligation or compensation to you. Please do not send confidential information or unsolicited creative works, such as music, through feedback channels. If we invite submissions of music or other creative works, separate terms that we provide at that time will govern them.

7.5 Infringement notices. If you believe that content in the Services infringes your copyright or other rights, contact us at support@breathbeats.app with a description of your work, where the content appears in the Services, and your contact information.

8. Third-Party Services

The Services may rely on, integrate with or link to services, content and websites provided by third parties, such as app stores, sign-in services and payment processors. We do not control third-party services and are not responsible for them, and your use of them is governed by their own terms and privacy policies. You must comply with any third-party terms that apply when you use the App, such as your wireless data service agreement. If you downloaded the App from an app store other than Apple's, such as Google Play, these Terms are between you and us only, and that app store's terms also apply to your use of the App.

9. Additional Terms for Apple Devices

This Section applies if you downloaded the App from Apple's App Store or use it on an Apple-branded device. If this Section conflicts with any other part of these Terms, this Section controls as to your use of the App.

9.1 Agreement between you and us. You and we acknowledge that these Terms are concluded between you and SHORESIDE LLC only, and not with Apple Inc. ("Apple"), and that we, not Apple, are solely responsible for the App and its content. These Terms do not provide usage rules for the App that conflict with the Apple Media Services Terms and Conditions.

9.2 Scope of license. The license in Section 6.1 is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Usage Rules set out in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with you through Family Sharing or volume purchasing.

9.3 Maintenance and support. We are solely responsible for providing any maintenance and support services for the App, as these Terms describe or as applicable law requires. You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services for the App.

9.4 Warranty. We are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. If the App fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, of the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.

9.5 Product claims. You and we acknowledge that we, not Apple, are responsible for addressing any claims by you or any third party relating to the App or your possession or use of the App, including (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy or similar legislation, including in connection with any use by the App of Apple's HealthKit or HomeKit frameworks. These Terms do not limit our liability to you beyond what applicable law permits.

9.6 Intellectual property claims. You and we acknowledge that if any third party claims that the App, or your possession and use of the App, infringes that third party's intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of that claim.

9.7 Legal compliance. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

9.8 Developer name and contact. Please direct any questions, complaints or claims about the App to SHORESIDE LLC, 221 1st Ave SW, Suite 610, Rochester, MN 55902; support@breathbeats.app.

9.9 Third-party terms. You must comply with applicable third-party terms of agreement when using the App, such as your wireless data service agreement.

9.10 Third-party beneficiary. You and we acknowledge and agree that Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary.

10. Suspension and Termination

10.1 By you. You may stop using the Services at any time. You may delete your account and its associated data in the App's settings or by contacting us. Deleting your account does not cancel a Subscription bought through an app store (Section 5.4).

10.2 By us. We may suspend or terminate your access to all or part of the Services if (a) you materially or repeatedly breach these Terms; (b) the law or an app store requires us to; (c) we reasonably believe it is necessary to prevent fraud, abuse, a security risk, or harm to you, other users, us or others; or (d) we discontinue the Services. We will give you notice where practicable and lawful and, for a breach that can be cured, a reasonable opportunity to cure it. If we terminate your access for a reason other than your breach while you have a paid Subscription, Section 5.9 applies.

10.3 Effect of termination. When your access ends, the license in Section 6 ends and you must stop using the Services. Sections 5.8, 5.9, 6.2, 7, 10.3 and 11 through 19, and any other provisions that by their nature should survive, survive termination.

11. Disclaimer of Warranties

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WE, FOR OURSELVES AND OUR SUPPLIERS, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT CAMERA MODE WILL DETECT YOUR BREATHING ACCURATELY IN ALL CONDITIONS, OR THAT YOU WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE SERVICES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH YOU.

If applicable law does not allow the disclaimer of an implied warranty, that warranty is limited to the shortest duration and narrowest scope that the law permits.

12. Limitation of Liability

12.1 Excluded damages. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER BREATHBEATS NOR ITS MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS OR SERVICE PROVIDERS (TOGETHER, THE "BREATHBEATS PARTIES") WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR GOODWILL, ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

12.2 Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, THE BREATHBEATS PARTIES' TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE GREATER OF (A) THE AMOUNTS YOU PAID FOR THE SERVICES IN THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO THE LIABILITY AND (B) ONE HUNDRED U.S. DOLLARS (US$100).

12.3 Scope. The limitations in this Section 12 apply even if a remedy fails of its essential purpose, and they reflect an allocation of risk that is an essential basis of the bargain between you and us. They do not limit any liability that cannot be limited or excluded under applicable law, such as, where the law so provides, liability for death or personal injury caused by negligence, or for fraud, gross negligence or willful misconduct, and they do not affect consumer rights that cannot be waived or limited by contract.

13. Indemnification

To the extent permitted by law, you will defend, indemnify and hold harmless the BreathBeats Parties from and against any third-party claim, demand, suit or proceeding, and any resulting losses, liabilities, damages, judgments, settlements, fines, penalties, costs and expenses (including reasonable attorneys' fees), arising out of or relating to (a) your breach of these Terms, (b) your violation of any law or of anyone's rights, or (c) your misuse of the Services. This Section does not apply to disputes between you and us, which Section 14 governs, and it does not require you to indemnify any BreathBeats Party for its own negligence or misconduct. We will notify you promptly of any claim covered by this Section. We may take over the exclusive defense and control of the claim, in which case you will cooperate with us, and you may not settle the claim without our prior written consent.

14. Dispute Resolution; Binding Arbitration; Class-Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. YOU MAY OPT OUT OF THIS SECTION AS SECTION 14.10 DESCRIBES.

14.1 Informal dispute resolution. Most concerns can be resolved quickly by contacting us at support@breathbeats.app. Before either party begins an arbitration or a small-claims action, that party must send the other a written notice of the dispute (a "Notice of Dispute"). A Notice of Dispute must include the claimant's name and contact information, the email address associated with the claimant's account (if any), a description of the dispute and the relief requested, and the claimant's signature (and, if the claimant is represented, the signature of the claimant's counsel). You must send your Notice of Dispute to support@breathbeats.app or by mail to the address in Section 19. We will send our Notice of Dispute to the email address associated with your account or, if you have none, to other contact information we have for you. For 60 days after a complete Notice of Dispute is received (the "Informal Resolution Period"), you and we will try in good faith to resolve the dispute informally, including, at either party's request, through an individual telephone or video conference in which the claimant takes part, with counsel if represented. All applicable statutes of limitations and filing deadlines are tolled during the Informal Resolution Period. Completing this process is a condition precedent to starting an arbitration or a small-claims action. If we believe your Notice of Dispute is incomplete, we will tell you what is missing within 10 days after we receive it; otherwise, it is complete when received.

14.2 Agreement to arbitrate. Except as Section 14.3 provides, you and BreathBeats agree to resolve any dispute, claim or controversy between you and us that arises out of or relates to these Terms, the Services or any other aspect of the relationship between you and us, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory, and whether it arose before or after you agreed to these Terms (a "Dispute"), exclusively through final and binding individual arbitration. In this Section 14, "we" and "us" include our members, managers, employees and agents. This Section 14 is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), and evidences a transaction involving interstate commerce.

14.3 Exceptions. The following are not subject to arbitration: (a) an individual action in small-claims court, if the claim qualifies and remains in that court on an individual basis; (b) an action in court by either party seeking injunctive or other equitable relief to stop the infringement, misappropriation or other misuse of intellectual property rights; and (c) a request for public injunctive relief, which Section 14.8 addresses.

14.4 Who decides. The arbitrator will decide all issues relating to the interpretation, applicability, enforceability or scope of this Section 14, except that a court of competent jurisdiction will decide (a) whether you and we formed an agreement to arbitrate; (b) the scope, validity and enforceability of Sections 14.7 and 14.9, including any claim that they are unconscionable; (c) whether a request for relief is a request for public injunctive relief; and (d) whether you opted out under Section 14.10.

14.5 Rules and administrator. The American Arbitration Association ("AAA") will administer the arbitration under its Consumer Arbitration Rules and, where they apply, its Mass Arbitration Supplementary Rules (together, the "AAA Rules"), as modified by this Section 14. The AAA Rules are available at adr.org. If the AAA is unavailable or unwilling to administer the arbitration consistently with this Section 14, the parties will agree on a substitute arbitration provider or, if they cannot agree, a court will appoint one under 9 U.S.C. § 5. A single arbitrator will preside.

14.6 Procedure, fees and relief.

  • (a) Hearings. Unless the parties agree otherwise or the arbitrator decides that an in-person hearing is necessary, any hearing will take place by video or telephone conference. Any in-person hearing will take place in the county where you live or at another location the parties agree on. The AAA Rules govern when a claim may be decided on written submissions alone.

  • (b) Fees. The AAA Rules govern the payment of filing, administration and arbitrator fees, except that if you show that the filing fee you must pay exceeds the fee you would pay to file a claim in court, we will pay the difference. We will pay the fees the AAA assigns to us by the deadline the AAA sets. Each party will bear its own attorneys' fees and costs unless the arbitrator awards them under applicable law. We will not seek to recover our attorneys' fees or costs from you unless the arbitrator finds that your claim was frivolous or brought for an improper purpose, under the standard of Federal Rule of Civil Procedure 11(b).

  • (c) Relief. The arbitrator may award any individual relief that a court could award under applicable law, but only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party's individual claim. The arbitrator will issue a reasoned written decision. The award is final and binding, and judgment on it may be entered in any court of competent jurisdiction. An award has no preclusive effect in any other arbitration or proceeding involving different parties.

14.7 Class-action and jury waiver. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. Unless you and we agree otherwise, the arbitrator may not consolidate or join more than one person's claims, except as Section 14.9 provides, and may not preside over any form of class, collective or representative proceeding. TO THE EXTENT PERMITTED BY LAW, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court decides, after all appeals are exhausted, that any part of this Section 14.7 is unenforceable as to a particular claim or request for relief, then that claim or request for relief (and only that one) will be severed and decided by a court under Section 15 after the arbitration of all other claims and requests for relief is complete, and all other claims will be arbitrated.

14.8 Public injunctive relief. Nothing in this Section 14 waives any right you have, where applicable law does not permit its waiver, to seek public injunctive relief, meaning injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public. Any request for public injunctive relief will be severed from the arbitration, decided by a court under Section 15, and stayed until the arbitration of all individual claims and requests for relief is complete.

14.9 Mass arbitration.

  • (a) Scope. This Section 14.9 applies if 25 or more demands for arbitration asserting the same or substantially similar claims are filed against or by us by or with the assistance of the same or coordinated counsel or organizations (a "Mass Filing"). The AAA's Mass Arbitration Supplementary Rules apply to a Mass Filing, as modified by this Section 14.9.

  • (b) Test cases. Counsel for the claimants and we will each select up to 10 demands (up to 20 in total) to proceed first as individual arbitrations (the "Test Cases"), each before a different arbitrator unless the parties agree otherwise. The remaining demands will be held in abeyance until the Test Cases are resolved, and the parties will ask the AAA to defer the administrative fees for them, to the extent the AAA Rules permit.

  • (c) Mediation. Within 60 days after the Test Cases are resolved, or 12 months after they are selected if that is earlier, the parties will take part in a global mediation of the remaining demands before a mediator the parties select or, if they cannot agree, one the AAA appoints. We will pay the mediator's fees.

  • (d) After mediation. If a remaining demand is not resolved within 60 days after the mediation ends, the claimant and we will each have the right, by written notice within the following 30 days, to elect to have that claim decided by a court under Section 15 instead of in arbitration. If neither party makes that election, the claim will proceed in individual arbitration under the AAA Rules.

  • (e) Tolling and effect. All statutes of limitations and filing deadlines for a demand held in abeyance are tolled from the date it was filed until it proceeds in arbitration or in court. The outcome of a Test Case binds only the parties to it, although the parties may consider it in the mediation.

  • (f) Enforcement. Either party may ask a court of competent jurisdiction to enforce this Section 14.9.

14.10 Right to opt out. You may opt out of this Section 14 by sending us written notice within 30 days after you first accept these Terms. Send your notice to support@breathbeats.app with the subject line "Arbitration Opt-Out," or by mail to the address in Section 19. You may send it from any email address. Your notice must include your name, the email address associated with your account if you have one (if you use Sign in with Apple with Hide My Email, the relay address shown in your Apple Account settings), and a clear statement that you do not want to resolve disputes with BreathBeats through arbitration. Opting out will not affect any other part of these Terms or your use of the Services. If you opt out, Section 15 governs where Disputes are resolved. If you accepted an earlier version of these Terms, you may opt out within 30 days after you accept this version.

14.11 Changes to this Section. If we make a material change to this Section 14 (other than a change to our contact information), you may reject the change by sending us written notice, as Section 14.10 describes, within 30 days after the change takes effect. If you reject a change, the version of this Section 14 that you last accepted will continue to apply to Disputes between you and us. No change to this Section 14 will apply to a Dispute of which either party gave notice before the change took effect.

14.12 Survival and severability. This Section 14 survives the termination of these Terms and of your account. Except as Section 14.7 provides, if any part of this Section 14 is found unenforceable, the remaining parts will remain in effect.

15. Governing Law and Venue

These Terms and any Dispute are governed by the laws of the State of Minnesota, without regard to its conflict-of-laws principles, except that Section 14 is governed by the FAA. This choice of law does not deprive you of the protection of any law of the state where you live that cannot be waived by contract. Any Dispute that is not subject to arbitration, including a Dispute of anyone who opts out under Section 14.10, will be resolved exclusively in the state courts located in Olmsted County, Minnesota, or the United States District Court for the District of Minnesota, and you and we consent to the personal jurisdiction of, and venue in, those courts. This does not prevent you from bringing an individual action in small-claims court in the county where you live, or apply where the law of the state where you live requires that a Dispute be heard there.

16. Changes to These Terms

We may update these Terms from time to time. If we make a material change, we will notify you in the App, by email or on the Site at least 30 days before the change takes effect, and we may ask you to accept the updated Terms in the App. Changes that are not material, such as clarifications or updates to our contact information, and changes required by law, may take effect sooner. Updated Terms apply only to events and Disputes that arise after they take effect, and Section 14.11 governs changes to Section 14. If you do not agree to updated Terms, stop using the Services before they take effect and, if you have a Subscription, cancel it (Section 5.4). If you continue to use the Services after updated Terms take effect, you accept them. We will show the effective date of each version and keep prior versions available on request.

17. General Terms

17.1 Entire agreement. These Terms, together with any additional terms described in Section 1.3, are the entire agreement between you and us about the Services and supersede any prior agreement on that subject.

17.2 Assignment. You may not assign or transfer these Terms without our prior written consent. We may assign these Terms, in whole or in part, including in connection with a merger, acquisition, reorganization or sale of all or substantially all of our assets or of the Services, with notice to you where the law requires it.

17.3 Severability. If a court or arbitrator finds any provision of these Terms unenforceable, that provision will be enforced to the maximum extent permitted, and the remaining provisions will remain in full effect, subject to Sections 14.7 and 14.12.

17.4 No waiver. Our failure to enforce any provision of these Terms is not a waiver of our right to enforce it later.

17.5 Events beyond our control. We are not liable for any failure or delay in performance caused by events beyond our reasonable control, including natural disasters, epidemics, war, terrorism, labor disputes, government action, and failures of the internet, utilities or third-party service providers.

17.6 Notices and electronic communications. We may give you notices through the App, by email to the address associated with your account, or by posting them on the Site. To the extent the law permits, you agree that notices, agreements and other communications we provide electronically satisfy any legal requirement that they be in writing. Legal notices to us must be sent to support@breathbeats.app or by mail to the address in Section 19.

17.7 Export controls and sanctions. You may use the Services only in compliance with U.S. export control and sanctions laws.

17.8 Relationship of the parties; third-party beneficiaries. You and we are independent parties. Except as Section 9.10 (Apple), Sections 12 and 13 (the BreathBeats Parties) and Section 14 (our members, managers, employees and agents) provide, these Terms create no third-party beneficiary rights.

17.9 Interpretation. Headings are for convenience only. "Including" and similar words mean "including without limitation." If we provide a translation of these Terms, the English version controls.

18. Notice to California Users

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice. The Services are provided by SHORESIDE LLC, 221 1st Ave SW, Suite 610, Rochester, MN 55902, [telephone number]. Free features cost nothing. The App shows each Subscription's price, plus any applicable taxes, before you buy, and prices may change as Section 5.7 describes. To resolve a complaint about the Services or to receive further information, contact us at support@breathbeats.app. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

19. Contact Us

SHORESIDE LLC, doing business as BreathBeats · 221 1st Ave SW, Suite 610, Rochester, MN 55902 · support@breathbeats.app