Terms and conditions | functionalbreathing

Functional Breathing designs products and tools that help you to achieve your wellness and performance goals. These Terms of Service (“Terms”) apply to your access and use of the Functional Breathing Service. The “Functional Breathing Service” includes training material, applications, software, websites, APIs, products, and services.

These terms are subject to the Australian Consumer Law and consumers' rights under the Australian Consumer Law.

If you live in the European Economic Area, the United Kingdom or Switzerland, data is subject to European Union’s General Data Protection Regulation (“GDPR”). Functional Breathing is not currently supporting or accepting account holders who are covered under GDPR. Accounts created which are covered by GDPR are in breach of these terms and conditions.

You must accept these Terms to create a Functional Breathing account and to access or use the Functional Breathing Service. If you do not have an account, you accept these Terms by using any part of the Functional Breathing Service. If you do not accept these terms, do not create an account or use the Functional Breathing Service.

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

ACCOUNTS

Some services on the Functional Breathing Sites permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You also agree to notify us promptly at glenn@functoinalbreathing.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Functional Breathing Site.

We may suspend or terminate your account and your ability to use any Functional Breathing Site or portion thereof for failure to comply with these Terms of Use or any special terms related to a particular service.

USE OF THE FUNCTIONAL BREATHING SERVICES

Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the Functional Breathing Service unless their parent has consented in accordance with applicable law. Additionally, you cannot access or use the Functional Breathing Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Functional Breathing Service.

CREATING AN ACCOUNT

Full use of the Functional Breathing Service requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. Functional Breathing is not liable for any losses or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact Customer Support if you discover or suspect any security breach related to the Functional Breathing Service or your account.

POSTING YOUR CONTENT ON FUNCTIONAL BREATHING SERVICES

Functional Breathing may enable you to post, upload, store, share, send, or display photos, images, video, data, breath related metrics, text, music, exercise regimens, food logs, recipes, comments, and other information and content (“Your Content”) to and via Functional Breathing Services. You retain all rights to Your Content that you post to the Functional Breathing Services. By making Your Content available on or through the Functional Breathing Services you hereby grant to Functional Breathing a non-exclusive, transferable, sub-licensable, worldwide, royalty-free licence to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media. The rights you grant us in this Section are only for the limited purpose of offering and improving the Functional Breathing Services.

You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms.

You represent and warrant that Your Content, the use and provision of Your Content on the Functional Breathing Service, and your use of the Functional Breathing Service will not (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading, or deceptive; (d) be defamatory, obscene, pornographic, vulgar, or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.

You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Functional Breathing Service in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Functional Breathing Service, or which may expose us or our users to any harm or liability of any type.

Functional Breathing may, in its sole discretion, alter, remove, or refuse to display any of Your Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the Functional Breathing Service.

FUNCTIONAL BREATHING’S RIGHTS

“Functional Breathing Content” includes any training material, photos, images, graphics, video, audio, data, breath metrics, text, music, exercise regimens, food logs, recipes, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the Functional Breathing Services. Functional Breathing breath tracker, the Functional Breathing Services, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of Australia and foreign countries. We reserve all rights not expressly set out in these Terms. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Functional Breathing Service. Our logos and any other Functional Breathing trademarks that may appear on Functional Breathing Services, and the overall look and feel of the Functional Breathing, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the Functional Breathing Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.

You may not, without the prior written permission of Functional Breathing, "mirror" on any other server any material contained on any Functional Breathing Site. The use of the Content on any other Web site or in a networked computer environment for any purpose is prohibited, without the express written permission of Functional Breathing. The trademarks, logos and service marks (the "Marks") displayed on the Functional Breathing Sites are owned by Functional Breathing or third parties. You are prohibited from use of those Marks without the express, written permission of Functional Breathing or such third party. If you would like information about obtaining Functional Breathing's permission to use the Content on your Web site, e-mail glenn@functionalbreathing.com.

In the event that we offer downloads of software on a Functional Breathing Site and you download such software, the software, including without limitation any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") is licensed to you by us or third-party licensors for your personal, non-commercial home use only. We do not transfer title to the Software to you. You may not distribute or otherwise exploit the Software or decompile or reverse engineer.

WHAT YOU CAN DO ON FUNCTIONAL BREATHING, BREATH TRACKER

The Functional Breathing breath tracker is intended for your personal, non-commercial use.

Functional Breathing grants you a limited, non-exclusive, non-transferable, non-sub-licensee, revocable license to (1) access and use the Functional Breathing breath tracker, (2) access and view the Functional Breathing Content, (3) access and use the software and mobile applications provided by the Functional Breathing breath tracker, and (4) use the software that is embedded into Functional Breathing devices as authorized in these Terms. With respect to items (3) and (4), this license includes any third-party software embedded in any Functional Breathing Service. This license is provided solely for your personal, non-commercial use and enjoyment of the Functional Breathing breath tracker as permitted in these Terms.

You will not use, sub-license, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Functional Breathing Content, Functional Breathing Services or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licences or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Functional Breathing or its licensors, except for the licenses and rights expressly granted in these Terms.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Functional Breathing Service: (1) use, display, mirror, or frame the Functional Breathing Service or any individual element within the Functional Breathing Service, including the layout and design of any page, without Functional Breathing’s express written consent; (2) use Functional Breathing’s name, any Functional Breathing trademark or logo, or any Functional Breathing proprietary information without Functional Breathing’s express written consent; (3) access or tamper with non-public areas of the Functional Breathing Service, Functional Breathing’s computer systems, or the technical delivery systems of Functional Breathing’s providers; (4) test the vulnerability of any Functional Breathing system or breach any security or authentication measures; (5) circumvent any technological measure implemented by Functional Breathing or any of Functional Breathing’s providers or any other third party (including another user) to protect the Functional Breathing Service; (6) access the Functional Breathing Service or Functional Breathing Content through the use of any mechanism other than through the use of an Authorized Connection, Functional Breathing Service, or Functional Breathing API; or (7) modify, de-compile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Functional Breathing provides to you or any other part of the Functional Breathing Service.

OUR ENFORCEMENT RIGHTS

We reserve the right (but are not required) to remove or disable access to the Functional Breathing Services, any Functional Breathing Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Functional Breathing Content, Your Content, or your use of the Functional Breathing Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Functional Breathing Service, and in response may take any action we may deem appropriate.

USE THE FUNCTIONAL BREATHING SERVICE AT YOUR OWN RISK

If you rely on any Functional Breathing Content or the Functional Breathing Service, you do so solely at your own risk.

Our goal is to provide helpful and accurate information on the Functional Breathing Service, but we make no endorsement, representation, or warranty of any kind about any Functional Breathing Content, information, or services. The accuracy of the data collected and presented through the Functional Breathing Service is not intended to match that of medical devices or scientific measurement devices.

We are not responsible for the accuracy, reliability, availability, effectiveness or correct use of information you receive through the Functional Breathing Service. Functional Breathing Content and the Functional Breathing Service may change from time to time or vary by geographic location. Maps, directions and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete.

Use of the Functional Breathing Service should not replace your good judgement and common sense. Please read and comply with all safety notices that accompany your use of the Functional Breathing Service.

CONSULT YOUR DOCTOR BEFORE USING THE FUNCTIONAL BREATHING SERVICE

The Functional Breathing Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Functional Breathing Service, engaging in an exercise program, or changing your diet. If you experience a medical emergency, stop using the Functional Breathing Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Functional Breathing Service. If you engage in any exercise program you receive or learn about through the Functional Breathing Service, you agree that you do so at your own risk and are voluntarily participating in these activities.

Functional Breathing respects the intellectual property of others and expects its users to do the same. It is Functional Breathing’s policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe the rights of copyright holders.

FEEDBACK AND SUBMISSIONS POLICY

If you submit comments, ideas or feedback to us, you agree that we can use, disclose, reproduce, distribute and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Functional Breathing, or obtained from sources other than you.

CONTESTS AND GIVEAWAYS

Additional terms and conditions may apply to surveys, contests, giveaways, and other promotions sponsored by Functional Breathing or its partners. It is your responsibility to carefully review those terms and conditions.

ALERTS AND NOTIFICATIONS

As part of your use of the Functional Breathing Service, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Functional Breathing Service by using your account settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.

THIRD-PARTY SERVICES

The Functional Breathing Service may display or permit linking or other access to or use of third-party content, promotions, websites, apps, services and resources (collectively “Third-Party Services”) that are not under Functional Breathing’s control. This may include the opportunity for you to link your Functional Breathing account, Functional Breathing data, or the Functional Breathing Service with Third-Party Services. We provide these links only as a convenience and are not responsible for the products, services, or other content that are available from Third-Party Services. You acknowledge that any Third-Party Services that you use in connection with the Functional Breathing Service, such as third party applications accessed on Functional Breathing devices, are not part of the Functional Breathing Service and are not controlled by Functional Breathing, and you take sole responsibility and assume all risk arising from your interaction with or use of any Third-Party Services. You also acknowledge that these Terms and the Functional Breathing Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.

CHANGES TO THE FUNCTIONAL BREATHING SERVICES

Functional Breathing may change or discontinue, temporarily or permanently, any feature, component or content of the Functional Breathing Service at any time without notice. Functional Breathing is not liable to you or to any third party for any modification, suspension or discontinuance of any feature, component or content of the Functional Breathing Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Functional Breathing products without prior notice to you.

TERMINATION

We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Functional Breathing Service, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation or termination, we may delete or remove Your Content and other information related to your account. You may close your account at any time by contacting Customer Support.

DISCLAIMERS

THE FUNCTIONAL BREATHING SERVICE AND FUNCTIONAL BREATHING CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE FUNCTIONAL BREATHING SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Functional Breathing Service or Functional Breathing Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the Functional Breathing Service or any Functional Breathing Content.

INDEMNITY

You will indemnify and hold harmless Functional Breathing or its officials, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable lawyers’ fees, arising out of or in any way connected with (i) your access to or use of the Functional Breathing Service, (ii) Your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

LIMITATION OF LIABILITY

NEITHER FUNCTIONAL BREATHING, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FUNCTIONAL BREATHING SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE FUNCTIONAL BREATHING SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FUNCTIONAL BREATHING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL FUNCTIONAL BREATHING’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE FUNCTIONAL BREATHING SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO FUNCTIONAL BREATHING FOR USE OF THE FUNCTIONAL BREATHING SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FUNCTIONAL BREATHING, AS APPLICABLE.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FUNCTIONAL BREATHING AND YOU.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

DISPUTE RESOLUTION

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

You agree that any dispute between you and Functional Breathing arising out of or relating to these Terms of Service, the Functional Breathing Service, or any other Functional Breathing products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

Governing Law: Except as otherwise required by applicable law, the Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of Australia.

Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Functional Breathing, you agree to try to resolve the Dispute informally by contacting glenn@functionalbreathing.com We will try to resolve the Dispute informally by contacting you via email. If a dispute is not resolved within 15 days after submission, you or Functional Breathing may bring formal proceedings.

No Class Actions: You may only resolve Disputes with Functional Breathing on an individual basis, and may not bring a claim as a plaintiff or a class member in a class (collective), consolidated or representative action. Class arbitrations, class (collective) action lawsuits, private general lawsuits through a solicitor, and consolidation with other arbitrations are not allowed under our agreement.

Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Functional Breathing products or Functional Breathing Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

GENERAL TERMS

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Functional Breathing and you regarding the Functional Breathing Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Functional Breathing and you regarding the Functional Breathing Service and Functional Breathing Content.

We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the Functional Breathing Service. When you use the Functional Breathing Service after a modification becomes effective, you are telling us that you accept the modified Terms.

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without Functional Breathing’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Functional Breathing may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

Any notices or other communications provided by Functional Breathing under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the Functional Breathing Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

Functional Breathing’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of Functional Breathing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

ADDITIONAL TERMS MAY APPLY

Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.

PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.

You may contact us at glenn@functionalbreating.com