TERMS OF SERVICE & CANCELLATION POLICY
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DISCLAIMER
Breathwork may not be suitable if you have the following conditions:
Pregnancy
Detached Retina
Glaucoma
Uncontrolled High Blood Pressure
Cardiovascular Diseases (e.g., angina, previous heart attack or stroke)
Diagnosis of aneurysm in the brain or abdomen
Uncontrolled thyroid conditions and diabetes
Asthma (Please bring your inhaler)
Epilepsy
Prior diagnosis of bipolar disorder, schizophrenia, or previous psychiatric condition
Hospitalization for any psychiatric condition or emotional crisis within the last 10 years
Any other medical, psychiatric, or physical conditions that would impair or affect your ability to engage in activities involving intense physical and/or emotional release.
This list is not exhaustive. If you have a condition not listed, consult a physician before starting breathwork.
If you have or have had any of the listed conditions, we strongly recommend consulting a physician before starting breathwork.
WAIVER
By reading this waiver, you agree to take personal responsibility for your breathwork process. This practice is not a substitute for medical advice. The facilitators cannot be held responsible for any mental, physical, or emotional challenges that may arise from this work. The Breath Haus Pty Ltd takes no responsibility for any injuries sustained as a result of participating in these sessions. Thank you for taking care of your well-being by listening to your body and respecting these guidelines.
RELEASE AND WAIVER
I, the participant, ("the Releasor/attendee"), understand and acknowledge the following:
The Breath Haus Pty Ltd's sessions are not intended to replace any relationship I have with my medical doctor and/or primary health care provider(s).
The sessions are not intended to constitute medical advice or any substitution for medical care.
The sessions are not intended to be relied on for prescriptions, recommendations, diagnosis, or treatment in relation to any health problem or disease.
I certify that:
It is my responsibility to consult a health professional regarding any physical, mental, or emotional condition that could interfere with my judgment or affect my health during or after any session.
I am responsible for consulting my health care provider or doctor in case I have or suspect I am suffering from a health problem.
I understand and acknowledge that:
My participation is at my own risk.
The stories or testimonials presented do not constitute a warranty, guarantee, or prediction regarding my experience.
The Breath Haus Pty Ltd makes no warranty, guarantee, or prediction about any particular state of awareness or consciousness during or after any session.
My participation does not establish a client-practitioner relationship or any other type of therapeutic or professional relationship between me and the facilitator.
I agree to assume and accept full complete responsibility for any known and unknown risks associated with my participation in any session, including any physical injury, psychological or emotional effects, death, loss, or property damage.
I release and discharge The Breath Haus Pty Ltd and its practitioners, officers, employees, and agents from any and all claims, demands, causes of action, damages, or liabilities whatsoever, known or unknown, anticipated or unanticipated, suspected or unsuspected, arising out of or related to any and all sessions.
Accuracy Warning
This site and its components are for informational purposes only. We are not responsible or liable for the accuracy, usefulness, or availability of any information transmitted or made available via the site, nor for any errors or omissions in that information.
Payment Policy
Payments are accepted via Square, bank transfer, or cash. Any additional service charges or fees for using third-party payment methods are the sole responsibility of the customer.
CANCELLATION POLICY.
Class Cancellation Policy:
5-hour cancellation window for class attendance.
Cancel a minimum of 5 hours before start time using the Mindbody app or website.
Early cancellations will be returned as a credit onto the users account.
Fee structure for cancellations:
Early Cancel ($0): Cancel at least 5 hours before start time.
Late Cancel ($5): Cancel within 5 hours of start time.
No-Show ($10): Don't cancel before start time or don't attend.Note: Policies subject to change without notice. Contact us with questions or concerns before purchase. Thank you for your cooperation.
Appointment and 1:1 Cancellation Policy:
Deadline: Cancel at least 24 hours before the appointment.
Late Cancellation: If cancelled within 24 hours, the session is debited.
No Show: If you don't cancel at least 24 hours in advance, a session is debited.Event Cancellation Policy:
Deadline: Cancel at least 24 hours before the event.
Early Cancellation: If cancelled at least 24 hours before the event, ticket value will be applied as a credit onto the ticket holders account.
Late Cancellation: If cancelled within 24 hours, the ticket is forfeited and no credit is to be applied.Exceptions:
In case of a medical emergency or extenuating circumstances, contact us immediately for options.
Cancellation by The Breath Haus:
We may cancel or reschedule due to unforeseen circumstances.
You will be notified promptly and offered a reschedule, class credit or refund.Agreement:
By booking, you agree to this policy.
Legality:
This policy is legally binding in Australia.
Contact:
If you have questions, contact us before booking.
GIFT VOUCHERS.
Gift vouchers purchased have a period of three (3) years to be used.
Gift vouchers cannot be exchanged for cash value.
Any remaining credit after the expiry period is forfeited.
CLASS START & END TIMES.
Doors open 15 minutes before start time, and classes always start and end on time, so please arrive at the studio within 15 minutes before the start of class.
The studio doors are locked while classes are running, and unfortunately there is no late entry (late arrivals are considered a no-show).
We know that life sometimes doesn’t go to plan, and you may be running late but we’re not able to hold the class start time.
If you need to cancel a class please do so via the Mindbody App, The Breath Haus App, or our website.
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THE BREATH HAUS Terms of Service
Welcome, and thank you for your interest in The Breath Haus ("The Breath Haus," "we," or "us") and our website at www.thebreathhaus.com.au, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the "Service"). These Terms of Service are a legally binding contract between you and The Breath Haus regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING The Breath Haus's PRIVACY POLICY (TOGETHER, THESE "TERMS"). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND The Breath Haus's PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY The Breath Haus AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE
Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND The Breath Haus ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. The Breath Haus Service Overview
The Breath Haus provides live and pre-recorded digital yoga, meditation, and breathwork classes.
2. Disclaimer
YOU SHOULD BE AWARE THAT THERE ARE INHERENT HEALTH RISKS TO EXERCISE, INCLUDING RISK OF INJURY. BY ACCESSING THE SERVICE, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES RECOMMENDED BY THE SERVICE IS WHOLLY AT YOUR OWN RISK. The Breath Haus, ITS EMPLOYEES AND ITS AGENTS, WILL NOT BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY OF OUR CLASSES. WHILE WE MAY PROVIDE GUIDELINES SUCH AS DESCRIPTIONS, PICTURES, OR VIDEOS DESCRIBING HOW TO PERFORM SPECIFIC EXERCISES OR ACTIVITIES, YOU ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES WITH PROPER FORM, AS RISK OF INJURY OR ILLNESS INCREASES WITH IMPROPER FORM. WE ENCOURAGE YOU TO SEEK MULTIPLE SOURCES OF INFORMATION REGARDING HOW TO PERFORM EACH EXERCISE CORRECTLY, ESPECIALLY IF YOU ARE NEW TO ANY OF THE FORMS OF TRAINING OR ACTIVITY YOU SEEK TO PERFORM.
WE HIGHLY RECOMMEND YOU SEEK GUIDANCE FROM A MEDICAL DOCTOR OR OTHER QUALIFIED HEALTH CARE PRACTITIONER IF YOU ARE PREGNANT, HAVE ASTHMA, OR HAVE ANY PREEXISTING INJURIES OR CONDITIONS THAT MAY COMPROMISE YOUR BREATHING, OR THAT MIGHT OTHERWISE INTERFERE WITH RECOMMENDED ACTIVITIES.
YOU MUST DISCONTINUE EXERCISE IN CASES WHERE IT CAUSES PAIN OR SEVERE DISCOMFORT, AND SHOULD CONSULT A MEDICAL EXPERT PRIOR TO RETURNING TO CLASSES IN SUCH CASES.
3. Eligibility
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that:
You are at least 18 years old
You have not previously been suspended or removed from the Service
Your registration and your use of the Service is in compliance with any and all applicable laws and regulations
If you are an entity, organisation, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
4. Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address, phone number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at hello@thebreathhaus.com.au
5. Invite a Friend
The Breath Haus may offer you the ability to send your friends an email requesting they join the Service ("Invite a Friend"). We reserve the right to impose limits on the number of friends you may invite at any one time. You hereby authorise us to facilitate the sending of emails or text messages on your behalf to the extent you wish to use Invite a Friend.
6. General Payment Terms
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in AUS Dollars and are non-refundable.
6.1 Price
The Breath Haus reserves the right to determine pricing for the Service. The Breath Haus will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. The Breath Haus may change the fees for any feature of the Service, including additional fees or charges, if The Breath Haus gives you advance notice of changes before they apply. The Breath Haus, at its sole discretion, may make promotional offers with different features and different pricing to any of The Breath Haus's customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
6.2 Authorisation
You authorise The Breath Haus to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by The Breath Haus, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, The Breath Haus may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
6.3 Subscription Service
The Service may include automatically recurring payments for periodic charges ("Subscription Service"). If you activate a Subscription Service, you authorize The Breath Haus to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The "Subscription Billing Date" is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service on your profile page.
6.4 Credits
6.4.1 Obtaining Credits; Not Currency
The Breath Haus, in its sole discretion, may offer you the ability to purchase a license to our in-app virtual currency ("Credits") that may be used to acquire access to classes or other content. However, while we may use terms like "buy" or "purchase" in reference to Credits, such terminology is merely for convenience and does not mean that Credits have any particular value. When you purchase Credits, you obtain a license to Credits, which operate as virtual currency solely within the Service, and Credits do not:
Have an equivalent value in any currency
Act as a substitute for currency
Earn interest
If The Breath Haus offers you the opportunity to acquire Credits, and you accept such offer, The Breath Haus hereby grants you a non-exclusive, revocable, limited, non-transferable (except as expressly provided herein) right and license to use such Credits only in connection with the Service as permitted by us, subject to these Terms and your compliance with these Terms. The Breath Haus will credit to your account any Credits acquired by you.
6.4.2 Restrictions
If Credits are offered for sale, then all purchases of Credits are final and not refundable or exchangeable, except as required by applicable law. Credits are not redeemable or exchangeable for currency, monetary value, or convertible for other virtual currency from The Breath Haus or any other third party, except as expressly provided in these Terms or otherwise required by applicable law. You are expressly prohibited from transferring, assigning, selling, gifting, exchanging, trading, converting, leasing, sub-licensing, renting, or distributing Credits, whether directly or through an intermediary, except through the Service and as expressly permitted by The Breath Haus. Credits are not property, and you have no right, title or interest in any Credits. The Breath Haus does not recognize or condone any third-party service that may be used to sell, exchange, transfer, or otherwise dispose of Credits, and The Breath Haus does not assume any responsibility for, and will not support, such transactions. Neither The Breath Haus nor any third party has any obligation to exchange Credits for anything of value, including, but not limited to, currency, except as expressly provided in these Terms or otherwise required by applicable law. You acknowledge and agree that The Breath Haus may engage in actions that may impact the perceived value or purchase price of Credits at any time, except as prohibited by applicable law. Except as otherwise prohibited by applicable law and except for the limited licenses granted hereunder, The Breath Haus reserves and retains all rights, title, and interest in and to all Credits.
6.5 Delinquent Accounts
The Breath Haus may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
7. Licenses
7.1 Limited License
Subject to your complete and ongoing compliance with these Terms, The Breath Haus grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sub-licensable, revocable license to:
Install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control
Access and use the Service
7.2 License Restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you may not:
Reproduce, distribute, publicly display, or publicly perform the Service
Make modifications to the Service
Interfere with or circumvent any feature of the Service, including any security or access control mechanism
If you are prohibited under applicable law from using the Service, you may not use it.
7.3 Feedback
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ("Feedback"), then you hereby grant The Breath Haus an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
8. Ownership; Proprietary Rights
The Service is owned and operated by The Breath Haus. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Materials") provided by The Breath Haus are protected by intellectual property and other laws. All Materials included in the Service are the property of The Breath Haus or its third-party licensors. Except as expressly authorized by The Breath Haus, you may not make use of the Materials. The Breath Haus reserves all rights to the Materials not granted expressly in these Terms.
9. Third Party Terms
9.1 Linked Websites
The Service may contain links to third party websites. Linked websites are not under The Breath Haus control, and The Breath Haus is not responsible for their content.
9.2 Third Party Software
The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third Party Components"). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
10. User Content
10.1 User Content Generally
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, status, video, images, folders, data, text, and other types of works ("User Content") and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
10.2 Limited License Grant to The Breath Haus
By providing User Content to or via the Service, you grant The Breath Haus a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
10.3 Limited License Grant to Other Users
By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
10.4 User Content Representations and Warranties
The Breath Haus disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize The Breath Haus and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by The Breath Haus, the Service, and these Terms
Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not:
Infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right
Slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person
Cause The Breath Haus to violate any law or regulation
Your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate
10.5 User Content Disclaimer
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. The Breath Haus may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against The Breath Haus with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, The Breath Haus does not permit copyright-infringing activities on the Service.
10.6 Monitoring Content
The Breath Haus does not control and does not have any obligation to monitor:
User Content
Any content made available by third parties
The use of the Service by its users
You acknowledge and agree that The Breath Haus reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time The Breath Haus chooses to monitor the content, The Breath Haus still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
11. Communications
11.1 Text Messaging
The Breath Haus and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. You may opt out of receiving marketing text messages at any time by sending an email to hello@thebreathhaus.com.au indicating that you no longer wish to receive marketing texts along with the phone number of the mobile device receiving the texts, or by replying "STOP" or "END" from the mobile device receiving the messages. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Operational text messages are essential to the Service. If you do not wish to receive operational text messages from us, do not use the Service. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
11.2 Push Notifications
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.
11.3 Email
We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
12. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
Use the Service for any illegal purpose or in violation of any local, state, national, or international law
Harass, threaten, demean, embarrass, or otherwise harm any other user of the Service
Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right
Interfere with security-related features of the Service, including by:
Disabling or circumventing features that prevent or limit use or copying of any content
Reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law
Interfere with the operation of the Service or any user's enjoyment of the Service, including by:
Uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code
Making any unsolicited offer or advertisement to another user of the Service
Collecting personal information about another user or third party without consent
Interfering with or disrupting any network, equipment, or server connected to or used to provide the Service
Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission
Sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials
Attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12
13. Modification of these Terms
We reserve the right to change these Terms on a going-forward basis at any time upon 7 days' notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14. Term, Termination and Modification of the Service
14.1 Term
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
14.2 Termination
If you violate any provision of these Terms, your authorisation to access the Service and these Terms automatically terminate. In addition, The Breath Haus may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at hello@thebreathhaus.com.au.
14.3 Effect of Termination
Upon termination of these Terms:
Your license rights will terminate and you must immediately cease all use of the Service
You will no longer be authorised to access your account or the Service
You must pay The Breath Haus any unpaid amount that was due prior to termination
All payment obligations accrued prior to termination and Sections 6.3, 7, 13.3, 14, 15, 16, 17 and 18 will survive
14.4 Modification of the Service
The Breath Haus reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. The Breath Haus will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
15. Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify The Breath Haus and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "The Breath Haus Entities") from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with:
Your unauthorised use of, or misuse of, the Service
Your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation
Your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right
Any dispute or issue between you and any third party
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
16. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. The Breath Haus DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING:
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT
ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE
The Breath Haus DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND The Breath Haus DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR The Breath Haus ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE The Breath Haus ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. The Breath Haus does not disclaim any warranty or other right that The Breath Haus is prohibited from disclaiming under applicable law.
17. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE The Breath Haus ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY The Breath Haus ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE The Breath Haus ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF:
THE AMOUNT YOU HAVE PAID TO The Breath Haus FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM
$100
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Dispute Resolution and Arbitration
18.1 Generally
In the interest of resolving disputes between you and The Breath Haus in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and The Breath Haus agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND The Breath Haus ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions
Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to:
Bring an individual action in small claims court
Pursue an enforcement action through the applicable federal, state, or local agency if that action is available
Seek injunctive relief in a court of law in aid of arbitration
File suit in a court of law to address an intellectual property infringement claim
18.3 Opt-Out
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to The Breath Haus, Attention: Legal Department – Arbitration Opt-Out, 1/458-460 Bridge Road, Richmond VIC 3121 that specifies:
Your full legal name
The email address associated with your account on the Service
A statement that you wish to opt out of arbitration ("Opt-Out Notice")
Once The Breath Haus receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
18.4 Notice of Arbitration; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified Mail or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). The Breath Haus address for Notice is: The Breath Haus - 1/458-460 Bridge Road, Richmond VIC 3121. The Notice of Arbitration must:
Describe the nature and basis of the claim or dispute
Set forth the specific relief sought ("Demand")
The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or The Breath Haus may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or The Breath Haus must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by The Breath Haus in settlement of the dispute prior to the award, The Breath Haus will pay to you the higher of:
The amount awarded by the arbitrator
$10,000
18.5 Fees
If you commence arbitration in accordance with these Terms, The Breath Haus will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the Arbitrator. Any arbitration hearing will take place at a location to be agreed upon in Melbourne, Victoria, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted:
Solely on the basis of documents submitted to the arbitrator
Through a non-appearance based telephone hearing
By an in-person hearing
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the Arbitrator. In that case, you agree to reimburse The Breath Haus for all monies previously disbursed by it that are otherwise your obligation to pay. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
18.6 No Class Actions
YOU AND The Breath Haus AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and The Breath Haus agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
18.7 Modifications to this Arbitration Provision
If The Breath Haus makes any future change to this arbitration provision, other than a change to The Breath Haus address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to The Breath Haus address for Notice of Arbitration, in which case your account with The Breath Haus will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.8 Enforceability
If Section 18.6 or the entirety of this Section 18 is found to be unenforceable, or if The Breath Haus receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
19. Miscellaneous
19.1 General Terms
These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and The Breath Haus regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to". If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
19.2 Governing Law
These Terms are governed by the laws of Victoria without regard to conflict of law principles. You and The Breath Haus submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Melbourne, Victoria for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Victoria, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
19.3 Privacy Policy
Please read our privacy policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Breath Haus Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
19.4 Additional Terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.5 Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
19.6 Contact Information
The Service is offered by The Breath Haus, located at 1/458-460 Bridge Road, Richmond VIC 3121. You may contact us by sending correspondence to that address or by emailing us at hello@thebreathhaus.com.au.
19.7 No Support
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
19.8 International Use
The Service is intended for visitors located within Australia. We make no representation that the Service is appropriate or available for use outside of Australia. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
20. Notice Regarding Apple
This Section 20 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and The Breath Haus only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including:
Product liability claims
Any claim that the Service fails to conform to any applicable legal or regulatory requirement
Claims arising under consumer protection or similar legislation
Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party's intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and 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 of these Terms.