TERMS OF SERVICE

BREATHINGROOM INC.

TERMS OF SERVICE

Last Updated – November 1, 2014

BreathingRoom is a cloud-based application that facilitates discovery and use of professional workspaces (each, a “Professional Workspace”) for the working professional through http://breathingroom.in/, http://breathingroom.co,  or any other URL provided by BreathingRoom (collectively, the “Website”), and/or any other digital media platform accessed by its users (the “Platform” and together with the Website, the “BreathingRoom Service”). The BreathingRoom Service is owned and operated by BreathingRoom Inc., a Delaware corporation (“BreathingRoom”, “we” or “us”).

Your use of the BreathingRoom Service is subject to the terms and conditions set forth in these Terms of Service (the “Terms of Service”).

PLEASE READ THE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING ANY PART OF THE BREATHINGROOM SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND TO ALL THE TERMS OF THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, EXIT THIS PAGE AND DO NOT ACCESS OR USE THE BREATHINGROOM SERVICE. USE OF THE BREATHINGROOM SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS OF SERVICE.

If you are under the age of 18, you represent that you have the consent of a parent or legal guardian to use and access the BreathingRoom Service.

1.         Updates to Terms of Service; Integration. We may, in our sole discretion, modify the Terms of Service via email or by posting notice on any part of the BreathingRoom Service. The “Last Updated” date at the top the Terms of Service indicates when the latest modifications were made to the Terms of Service. By continuing to access and use the BreathingRoom Service, you agree to any such modifications. Therefore, you are responsible for reviewing and should become familiar with any such modifications. We recommend that you review the Terms of Service prior to each use of the BreathingRoom Service.  In addition, when using particular services or features on the BreathingRoom Service, you will be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to the Privacy Policy as noted below. All such guidelines or policies are hereby incorporated by reference into these Terms of Service.

2.         Modifications to the BreathingRoom Service. Features of the BreathingRoom Service may be modified/deleted and may be temporarily or permanently suspended at any time, with or without notice. BreathingRoom will not be liable to you or any third party for any modification, suspension, or discontinuance of the BreathingRoom Service.

3.         Privacy Policy. Use of the BreathingRoom Service is subject to the terms of our Privacy Policy, which is hereby incorporated into and made part of these Terms of Service. Please carefully review our Privacy Policy. By using or accessing the BreathingRoom Service, you agree to be bound by the terms of our Privacy Policy.

4.         Intellectual Property. You acknowledge that all materials on the BreathingRoom Service, including the Website design, Platform design, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of BreathingRoom and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners. BreathingRoom authorizes you to view, download and/or print the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Except as expressly authorized by the Terms of Service, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, scrape, copy, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of BreathingRoom or the respective copyright owner.  In an absence of a written agreement, you may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described at the BreathingRoom Service are the sole property of BreathingRoom and/or its licensors and may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of BreathingRoom and/or its licensors. BreathingRoom reserves the right to enforce its intellectual property rights to the fullest extent of the law.

For the avoidance of doubt, your use of the BreathingRoom Service is solely and exclusively under the limited license granted herein and you will not obtain any ownership interest therein through the Terms of Service or otherwise.  All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect of the BreathingRoom Service are either the property of BreathingRoom, its affiliates or licensors. BreathingRoom retains the right to rescind and terminate the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by BreathingRoom to you are fully reserved by BreathingRoom, its advertisers and licensors.

Some of the company and product names, logos, brands, and other trademarks featured or referred to within the BreathingRoom Service may not be owned by us, and are the property of their respective trademark holders.  These trademark holders are not affiliated with, nor do they sponsor or endorse, BreathingRoom Inc., the BreathingRoom Service, our products and services, the Website and/or the Platform.

5.         Mobile Participants.  You understand and agree that various entities unaffiliated with us make up the “mobile ecosystem” that enables you to access, visit and/or use the BreathingRoom Service via your computer, mobile or other device, including without limitation equipment, hardware and software manufacturers and providers, telephone, mobile, wireless, and Internet network providers and carriers, and sellers or providers of content for use with the BreathingRoom Service. We do not represent, warrant or guarantee that all portions of the BreathingRoom Service, or the BreathingRoom Service as a whole, can be accessed via all mobile or other devices, or via all carriers and service plans or is available in all geographic locations.

6.         Third Party Sites. Links provided via the BreathingRoom Service to third party websites and services are provided only as a convenience. If you use these links, you may leave the BreathingRoom Service.  BreathingRoom does not control nor endorse any such third party websites. You agree that the BreathingRoom Parties, as defined below, will not be responsible or liable for any content, goods or services provided by such third party websites or for your use or inability to use such third party websites. You will use such links at your own risk. Your interactions with organizations and/or individuals found on or through the BreathingRoom Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You are advised that other websites on the Internet, including third party websites linked from the BreathingRoom Service, might contain material or information: that some people may find offensive or inappropriate; that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. BreathingRoom expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website.

7.         Use of the BreathingRoom Service. You may be required to establish an account in order to use the BreathingRoom Service and/or take advantage of certain features. If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the BreathingRoom Service; and (b) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or BreathingRoom has reasonable grounds to suspect that such information is false, inaccurate or outdated, BreathingRoom has the right to suspend or terminate your account.

You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your account. Your account is meant to be private and you shall not share accounts for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the BreathingRoom Service, including charges resulting from unauthorized use of your account.

You agree to use the BreathingRoom Service only for lawful purposes and that you are responsible for your use of and communications and content you may post via the BreathingRoom Service. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or otherwise violates any applicable law. You agree not to use the BreathingRoom Service in any manner that interferes with its normal operation or with any other user’s use of the BreathingRoom Service.

You may not do any of the following while accessing or using the BreathingRoom Service: (i) access, tamper with, or use non-public areas of the BreathingRoom Service, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the BreathingRoom Service by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the BreathingRoom Service to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the BreathingRoom Service, or otherwise creating an undue burden on the BreathingRoom Service.

You may not use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the BreathingRoom Service. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of the BreathingRoom Service.

You further agree that you will not access the BreathingRoom Service by any means except through the interface provided by BreathingRoom for access to the BreathingRoom Service. Creating or maintaining any link from another application to any page at the BreathingRoom Service without the prior authorization of BreathingRoom is prohibited. Running or displaying the BreathingRoom Service, or any information or material displayed via the BreathingRoom Service in frames or through similar means on another website or application without the prior authorization of BreathingRoom is prohibited. Any permitted links to the BreathingRoom Service must comply with all applicable laws, rule and regulations.

You assume all risk when using the BreathingRoom Service, including but not limited to all of the risks associated with any online or offline interactions with Users, including workspace employees and any other people with which you may interact while using the BreathingRoom Service. You agree to take all necessary precautions when communicating with individuals through the BreathingRoom Service.

 

PLEASE NOTE THAT THE BREATHINGROOM SERVICE IS INTENDED TO BE USED TO FACILITATE PROFESSIONAL WORKSPACES AND GUESTS CONNECTING AND BOOKING PROFESSIONAL WORKSPACES DIRECTLY WITH EACH OTHER. BREATHINGROOM CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY PROFESSIONAL WORKSPACES. BREATHINGROOM IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND PROFESSIONAL WORKSPACES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT YOUR OWN RISK.

BreathingRoom makes no representation that Materials contained, described or offered via the BreathingRoom Service are accurate, appropriate or available for use in any particular jurisdiction, or that these Terms of Service comply with the laws of any particular country. Visitors who use the BreathingRoom Service do so on their own initiative and are responsible for compliance with all applicable law. You agree that you will not access the BreathingRoom Service from any territory where its contents are illegal, and that you, and not the BreathingRoom Parties, are responsible for compliance with applicable law.

8.         Payments; Damage. 

 

Reservations and Financial Terms for Professional Workspaces

If you are the owner of a Professional Workspace wishing to use the BreathingRoom Service, you will be required to keep an updated calendar that clearly states whether space is available.  A booking will automatically be confirmed if space is shown as available per your calendar. If a Professional Workspace has to cancel a reservation because of an outdated calendar, their listing or rating on the BreathingRoom Service could be negatively affected and/or its participation with the BreathingRoom Services may be affected, in BreathingRoom’s sole discretion. When a booking is requested via the BreathingRoom Service we will share with you (i) the first and last name of the visitor who has requested the booking (the “Visitor”) and (ii) a link to the Visitor’s BreathingRoom account profile page, so that you can view such information before confirming or rejecting the booking request. When a booking is confirmed by a Visitor, BreathingRoom will send you an email, text message or message via the BreathingRoom Service.

BreathingRoom, in it sole discretion, may collect the fees either at the time of booking confirmation (i.e. when the Professional Workspace confirms the booking request) or after the Visitor uses the Professional Workspace, and will initiate payment of the fees to the applicable Professional Workspace at the end of each calendar month (except to the extent that a refund is due to the Visitor). BreathingRoom, in its sole discretion, may offer promotions to Visitors. The payout made to the Workspaces will be adjusted proportionately to account for the promotion.

The time it takes for the Professional Workspace to receive payouts may depend upon the method for receiving payouts chosen by the Professional Workspace. Some methods may involve the use of third-party payment processors, who may impose their own additional charges for payment processing, and such processing fees shall be deducted from the applicable payment amount to the Professional Workspace.

If you owe or agree to pay any amount to BreathingRoom (whether as a result of your bookings or actions as a Visitor or otherwise), then BreathingRoom may (but is not obliged to) withhold the amount owing to BreathingRoom from any payout amounts due to you as a Professional Workspace, and use the withheld amount to setoff the amount owed by you to BreathingRoom. If BreathingRoom does so, then your obligation to pay BreathingRoom will be extinguished to the extent of the amount withheld by BreathingRoom, and BreathingRoom will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld.

Each Professional Workspace agrees that payment made by a Visitor, shall be considered the same as a payment made directly to the Professional Workspace, and the Professional Workspace will make the Professional Workspace available to the Visitor in the agreed-upon manner as if the Professional Workspace has received the fees directly. Each Professional Workspace agrees that BreathingRoom may, in accordance with the cancellation policy, (i) permit the Visitor to cancel the booking and (ii) refund to the Visitor that portion of the fees, if any, specified in the applicable cancellation policy. Each Professional Workspace understands that as BreathingRoom accepts payments from Visitors as the Professional Workspace’s limited payment collection agent and that BreathingRoom’s obligation to pay the Professional Workspace is subject to and conditional upon successful receipt of the associated payments from Visitors. BreathingRoom does not guarantee payments to Professional Workspaces for amounts that have not been successfully received by BreathingRoom from Visitors. In accepting appointment as the limited authorized agent of the Professional Workspace, BreathingRoom assumes no liability for any acts or omissions of the Professional Workspace.

If a Visitor stays at a Professional Workspace beyond their reservation time, the Professional Workspace is responsible for letting the Visitor and BreathingRoom know how much longer the Visitor used the space so they can be charged accordingly. The Professional Workspace must tell BreathingRoom that this has happened within two hours of the overage occurring.  Any overage charges are the responsibility of the Visitor and not BreathingRoom.

If there are more Visitors at a Professional Workspace beyond the agreed capacity listed on BreathingRoom, the Professional Workspace is responsible for letting the Visitor and BreathingRoom know the pro-rata amount to be charged. The Professional Workspace must tell BreathingRoom that this has happened within two hours of the overage occurring.  Any overage charges are the responsibility of the Visitor and not BreathingRoom.

Please note that BreathingRoom does not currently charge fees for the creation of listings or making a reservation. However, you as a Professional Workspace or Visitor acknowledge and agree that BreathingRoom reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of listings or making of a reservation. Please note that BreathingRoom will provide notice of any fee collection via the Website or the BreathingRoom Service prior to implementing such a fee feature.

From time to time, BreathingRoom may offer promotions or certain other discounts (“Promotions”).  Promotions may not be available to all Visitors, and the applicability of each Promotion shall be subject to the terms and conditions of the applicable Promotion.

Bookings and Financial Terms for Visitors

The Professional Workspaces, not BreathingRoom, are solely responsible for honoring any confirmed bookings and making available any Professional Workspace reserved through the BreathingRoom Service. If you, as a Visitor, choose to enter into a transaction with a Professional Workspace for the booking of an Professional Workspace, you agree and understand that you will be required to enter into an agreement with the Professional Workspace and you agree to accept any terms, conditions, rules and restrictions associated with such Professional Workspace imposed by the Professional Workspace. You acknowledge and agree that you, and not BreathingRoom, will be responsible for performing the obligations of any such agreements, that BreathingRoom is not a party to such agreements, and that, with the exception of its payment obligations hereunder, BreathingRoom disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that BreathingRoom is not a party to the agreement between you and the Professional Workspace, BreathingRoom Payments acts as the Professional Workspace’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Professional Workspace. Upon your payment of the total fees to BreathingRoom, your payment obligation to the Professional Workspace for the fees is extinguished, and BreathingRoom is responsible for remitting the fees (less the Professional Workspace Fees and any taxes in respect of the Professional Workspace Fees, such as VAT in Europe), in the manner described in these Terms. In the event that BreathingRoom does not remit any such amounts as described in these Terms, such Professional Workspace will have recourse only against such BreathingRoom entity.

The total fees payable will be displayed to a Visitor before the Visitor sends a booking request to a Professional Workspace. If a requested booking is cancelled (i.e. in accordance with BreathingRoom’s Cancellation policy), any amounts collected by BreathingRoom will be refunded to such Visitor, depending on the selections the Visitor makes via BreathingRoom Service, and any pre-authorization of such Visitor’s credit card will be released, if applicable.

You as a Visitor agree to pay BreathingRoom for the total fees for any booking requested in connection with your BreathingRoom account if such requested bookings are confirmed by the applicable Professional Workspace. In order to establish a booking pending the applicable Professional Workspace’s confirmation of your requested booking, you understand and agree that BreathingRoom, on behalf of the Professional Workspace, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the total fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. Once BreathingRoom receives confirmation of your booking from the applicable Professional Workspace, BreathingRoom will collect the total fees in accordance with these Terms and Conditions and the pricing terms set forth in the applicable listing. Please note that BreathingRoom cannot control any fees that may be charged to a Visitor by his or her bank related to BreathingRoom’s collection of the total fees, and BreathingRoom disclaims all liability in this regard.

In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and credit card information either to BreathingRoom or its third-party payment processor(s). You agree to pay BreathingRoom for any confirmed bookings made in connection with your BreathingRoom account in accordance with these Terms of services by one of the methods described on the BreathingRoom Service, e.g. by PayPal or credit card or debit card. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking, either directly by BreathingRoom or indirectly, via a third-party online payment processor or by one of the payment methods described on the BreathingRoom Service.You also authorize BreathingRoom to charge your card in the event of an overage occurring caused at a Professional Workspace. An overage is contemplated if any one of the following occur: i) staying beyond your reserved time ii) Seating for additional persons above the listed capacity when making the reservation. Overage charges are calculated pro-rata. Overages are subject to availability and feasibility.

You also authorize BreathingRoom to charge your credit card in the event of damage caused at a Professional Workspace as contemplated under “Damage to Professional Workspace” below and for Security Deposits, if applicable. If you are directed to BreathingRoom’s third-party payment processor(s), you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. Please review such terms and conditions and privacy policy before using the services. Once your confirmed booking transaction is complete you will receive a confirmation email summarizing your confirmed booking.

 

Security Deposits

Professional Workspaces may choose to include security deposits in their listings (“Security Deposits”). Each listing will describe whether a Security Deposit is required for the applicable Professional Workspace. If a Security Deposit is included in a listing for a confirmed booking of an Professional Workspace, BreathingRoom will, in its capacity as the payment collection agent of the Professional Workspace, use its commercially reasonable efforts to obtain a pre-authorization of the Visitor’s credit card in the amount the Professional Workspace determines for the Security Deposit within a reasonable time prior to the Visitor’s check-in at the applicable Professional Workspace’s Professional Workspace. BreathingRoom will also use its commercially reasonable efforts to address Professional Workspaces’ requests and claims related to Security Deposits, but BreathingRoom is not responsible for administering or accepting any claims by Professional Workspaces related to Security Deposits, and disclaims any and all liability in this regard.

Service Fees

In consideration for the use of the BreathingRoom Service, BreathingRoom will charge a fee (the “Service Fee”). Where applicable, taxes (such as VAT in Europe) may also be charged in respect of fees. The Service Fee will calculated be on the final amount billed to the customer, after any promotions have been applied.

Balances will be remitted by BreathingRoom to Professional Workspaces via check, PayPal, direct deposit or other payment methods described on the Website or the BreathingRoom Service, in the Professional Workspace’s currency of choice, depending upon the selections the Professional Workspace makes via the Site, Application and Services.

Please note that BreathingRoom, may impose or deduct foreign currency processing costs on or from any payments or payouts by BreathingRoom in any applicable currency. Except as otherwise provided herein, Service Fees are non-refundable.

 

Cancellations and Refunds

If, as a Visitor, you wish to cancel a confirmed booking made via the BreathingRoom Service, either prior to or after arriving at the Professional Workspace, please refer to the Breathing Room cancellation policy located at http://breathingroom.co/help  (the “Cancellation Policy”). Our ability to refund the Professional Workspace Fees and other amounts charged to you will depend upon the terms of the Cancellation Policy, as updated. A Visitor may cancel up to twelve (12) hours prior to the reservation time at the Professional Workspace for a full refund; provided that anything cancelled less than twelve (12) hours prior to the reservation shall not be refunded. A cancellation requested by the Visitor end is refunded to their BreathingRoom account.

If a Professional Workspace cancels a confirmed booking made via the BreathingRoom Service, (i) BreathingRoom will refund the total fees for such booking to the applicable Visitor within a commercially reasonable time of the cancellation which is anticipated to be 10 business days and (ii) the Visitor will receive an email or other communication from BreathingRoom containing alternative Professional Workspaces and other related information. If the Visitor requests a booking from one of the alternative Professional Workspaces, then the Visitor agrees to pay BreathingRoom the total fees for the alternative Professional Workspace, in accordance with these Terms of Service. If a Professional Workspace cancelled a confirmed booking and you, as a Visitor, have not received an email or other communication from BreathingRoom, please contact BreathingRoom at support@breathingroom.co.

If, as a Professional Workspace, you cancel a confirmed booking, BreathingRoom may apply penalties or consequences to you or your listing, including (i) publishing an automated review on your listing indicating that a reservation was cancelled, (ii) keeping the calendar for your listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.

In certain circumstances, BreathingRoom may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the BreathingRoom Service. BreathingRoom may also determine, in its sole discretion, to refund to the Visitor part or all of the amounts charged to the Visitor. You agree that BreathingRoom and the relevant Visitor or Professional Workspace will not have any liability for such cancellations or refunds.

 

Damage to Professional Workspaces

As a Visitor, you are responsible for leaving the Professional Workspace in the condition it was in when you arrived. You acknowledge and agree that, as a Visitor, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Professional Workspace. In the event that a Professional Workspace claims otherwise and provides evidence of damage, including but not limited to photographs, you agree to pay the cost of replacing the damaged items or otherwise repairing the Professional Workspace. After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file in your BreathingRoom account. BreathingRoom also reserves the right to charge the credit card on file in your BreathingRoom account, or otherwise collect payment from you and pursue any avenues available to BreathingRoom in this regard, including using security deposits, in situations in which you have been determined, in BreathingRoom’s sole discretion, to have damaged any Professional Workspace, including, but not limited to, in relation to any payment requests made by Professional Workspaces, and in relation to any payments made by BreathingRoom to Professional Workspaces. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Professional Workspace to the applicable Professional Workspace or to BreathingRoom (if applicable).

Both Visitors and Professional Workspaces agree to cooperate with and assist BreathingRoom in good faith, and to provide BreathingRoom with such information and take such actions as may be reasonably requested by BreathingRoom, in connection with any complaints or claims made by Visitors relating to Professional Workspaces or any personal or other property located at an Professional Workspace or with respect to any investigation undertaken by BreathingRoom or a representative of BreathingRoom regarding use or abuse of the Website or the BreathingRoom Service. If you are a Visitor, upon BreathingRoom’s reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Professional Workspace, at no cost to you, which process will be conducted by BreathingRoom or a third party selected by BreathingRoom, with respect to losses for which the Professional Workspace is requesting payment from BreathingRoom.

9.         Communications to You. The communications between you and us usually use electronic means, whether you access, visit or use the BreathingRoom Service, send us messages, or whether we post notices on the BreathingRoom Service or communicate with you via messaging. For contractual purposes, you (a) consent to receive communications from us in electronic form; and (b) agree that all notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Your consent to receive communications and do business electronically, and your agreement to do so applies to all of your interactions and transactions with us.

10.      Confidentiality.  In connection with your use of the BreathingRoom Service, you may receive confidential and proprietary, or personal information of BreathingRoom and other Users (“Confidential Information”) which includes any nonpublic information written or oral relating of BreathingRoom, its partners or affiliates, or other Users. You will keep Confidential Information in confidence, only use it for your permitted use of the BreathingRoom Service, and not disclose it to any third party except your subcontractors and advisors who need to know the information for your business purposes and who agree in writing to provisions regarding Confidential Information at least as favorable to BreathingRoom as those in these Terms of Service.

11.      Content. All Content is the sole responsibility of the person who originated such content. You acknowledge that all Content transmitted or accessed by you using the BreathingRoom Service, is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all Content that you transmit in connection with the BreathingRoom Service, and you warrant that you possess all rights necessary to provide such Content. We reserve the right to remove any objectionable Content in our sole discretion. You understand that by providing Content publicly in connection with the BreathingRoom Service, you hereby grant us a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sublicenseable and transferable right to fully exploit such Content (including all related intellectual property rights) in connection with our business.

For purposes of these Terms of Service, the term “Content” includes, without limitation, any information, text, reviews, videos, audio clips, comments, information, data, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible through the BreathingRoom Service.

12.      Termination. You may discontinue access to and participation in the BreathingRoom Service at any time.  Upon discontinuance of use/termination for any reason, BreathingRoom may delete all data/information related to User from Service.

13.      Monitoring. We strive to provide an enjoyable online experience for our users, so we may monitor activity on the BreathingRoom Service, including as applicable, in the social, community, and public discussion areas, photo and video galleries, bulletin boards, forums, chats, blogs, personal/job search and other classified ads, and elsewhere. Nevertheless, we do not make any representations, warranties or guarantees that: (1) the BreathingRoom Service, or any portion thereof, will be monitored for accuracy or unacceptable use, (2) apparent statements of fact will be authenticated, or (3) we will take any specific action (or any action at all) in the event of a challenge or dispute regarding compliance or non-compliance. We generally do not pre-screen Content before it is posted, uploaded, transmitted, sent or otherwise made available on or through the Service by users, so you may be exposed to content that is opinionated, offensive, and/or inappropriate.

14.      No Endorsement.       BreathingRoom does not endorse any users of the BreathingRoom Service, including Visitors or Professional Workspaces. Users are required by these Terms of Service to provide accurate information, and although BreathingRoom may undertake additional checks and processes designed to help verify or check the identities or backgrounds, we do not make any representations about, confirm, or endorse any user or user’s purported identity, background, information or social media presence.

By using the BreathingRoom Service, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or third parties will be limited to a claim against the particular user or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from BreathingRoom with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other applicable users on the BreathingRoom Service regarding any bookings or listings made by you.

15.      Representations.  You expressly represent, warrant, and/or acknowledge that:

            a.         BreathingRoom does not warrant or guarantee the suitability or availability of any Material or Content, including without limitation any data, products or services, found through the BreathingRoom Service, including without limitation any Professional Workspace.

            b.         BreathingRoom does not screen the authenticity or quality of any Material or Content or any provider of Material or Content, including without limitation any data, products or services found through the BreathingRoom Service, including without limitation any Professional Workspace.

            c.         BreathingRoom makes no representations or promises regarding any Material or Content, and that many of the Material or Content provided via the BreathingRoom Service may be owned or licensed by third parties, including without limitation any Professional Workspace.

            d.         BreathingRoom is not a party to any transaction between you and any provider of products or services via the BreathingRoom Service, including without limitation any Professional Workspace. Any dispute shall be resolved between yourself and such provider of such products or services.

            e.         Any information, including any data, Materials, or Content on the BreathingRoom Service, including on any Facebook, Instagram or Twitter page, is for informational purposes only.

            f.          You assume all risk when using the BreathingRoom Service, including all of the risks associated with any online or offline interactions with other users, providers of products and services, and from additional fees or charges from your mobile carrier.

            g.         You acknowledge that the BreathingRoom Service is a platform and does not actually provide the Professional Workspaces and/or the Visitors.

            h.         You assume all risk regarding currency fluctuations, as fluctuations in the currency market may have an impact on the value of a booking or potential booking, along with any potential refund for a cancellation.

16.      Warranties, Disclaimers and Limitations of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE BREATHINGROOM SERVICE IS AT YOUR SOLE RISK. THE BREATHINGROOM SERVICE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, BREATHINGROOM, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “BREATHINGROOM PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BREATHINGROOM PARTIES MAKE NO WARRANTY THAT: (I) THE BREATHINGROOM SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE BREATHINGROOM SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE BREATHINGROOM SERVICE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE BREATHINGROOM SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE BREATHINGROOM SERVICE WILL BE CORRECTED.

THE BREATHINGROOM PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE BREATHINGROOM SERVICE, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE BREATHINGROOM SERVICE; (V) FOR ANY DISPUTES BETWEEN USERS OF THE BREATHINGROOM SERVICE OR BETWEEN A USER OF THE BREATHINGROOM SERVICE AND A THIRD PARTY; OR (VI) FOR ANY OTHER MATTER RELATING TO THE BREATHINGROOM SERVICE OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES THE BREATHINGROOM PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BREATHINGROOM AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE BREATHINGROOM SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.

NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE BREATHINGROOM PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO BREATHINGROOM VIA THE BREATHINGROOM SERVICE FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY BREATHINGROOM TO YOU (AND NOT FEES PAID TO PROFESSIONAL WORKSPACES) IN THE SIX MONTHS PRIOR TO SUCH CAUSE OR CLAIM .

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.

If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”

17.      Indemnification.  You agree to indemnify, defend and hold harmless the BreathingRoom Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the BreathingRoom Service, any activity related to your account by you or any other person permitted by you, any Content that you submit to, post on or transmit through the BreathingRoom Service, your breach of these Terms of Service, your infringement or violation of any rights of another, or termination of your access to the BreathingRoom Service. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

18.      Applicable Law and Jurisdiction. Your use of the BreathingRoom Service is governed by and will be enforced under the laws of the State of Delaware without regard to its conflict of law provisions.  You agree to submit to the personal and exclusive jurisdiction of the courts located within Delaware.  You agree that printed copies of any and all agreements and/or notices in electronic form are admissible in any legal or regulatory proceedings. Any controversy, claim, suit, injury or damage arising from or in any way related to the BreathingRoom Service or these Terms of Service shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect and before a single arbitrator chosen by BreathingRoom. Any such controversy, claim, suit, injury or damage shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any controversy, claim, suit, injury or damage of any other party. BreathingRoom may seek any interim or preliminary relief from a court of competent jurisdiction Delaware necessary to protect its rights pending the completion of arbitration. Each party shall assume its own costs of arbitration. IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE TERMS OF SERVICE INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF THE BREATHINGROOM SERVICE, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.

19.      Procedure for Notifying the Company of Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact our Copyright Agent at the address listed below and provide us with the following information:

            a.         An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.

            b.         Identification of the copyrighted work claimed to have been infringed.

            c.         Information describing where the allegedly infringing material is located on the BreathingRoom Service.

            d.         Your address, telephone number, and email address.

            e.         A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.

            f.          A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.

The foregoing information may be emailed to support@breathingroom.co

Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the user responsible for posting said material. The posting of infringing copyrighted material may result in the termination of user privileges of such user.

20.      U.S. Export Controls. The BreathingRoom Service may be subject to United States export controls. No part of the BreathingRoom Service may be exported or re-exported into any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the BreathingRoom Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

21.      Miscellaneous. These Terms of Service constitute the entire agreement between BreathingRoom and each user of the BreathingRoom Service with respect to the subject matter of these Terms of Service.

If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.

You may not assign any of your rights or delegate any of your obligations under these Terms of Service.  Your subcontractors and employees will comply with these Terms of Service applicable to you, and you are responsible for their actions and omissions as though they were your actions and omissions.

The failure of the BreathingRoom Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service.  You may not assign your obligations or rights hereunder to another entity or individual. We may transfer, assign or delegate these Terms of Service and its rights and obligations without your consent.

We shall have no liability to you hereunder if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of us or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind us in any respect whatsoever.

No action arising out of these Terms of Service or your use of the BreathingRoom Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

 

22.      Customer Service.  If you have any comments or questions regarding these Terms of Service, or wish to report any violation of these Terms of Service, you may contact us at support@breathingroom.co.