By accessing or using the Breath Tech Mobile Application or any of its related blogs, websites (including http://www.breathtechapp.com), applications or platforms (collectively, “the Application”), owned by BREATH TECH (PTY) LTD. (reg: 2016/353044/07) (“Breath Tech”) or any of its Services, you agree that you have read, understood and agree to be bound to the terms and conditions contained herein (“Terms”), in conjunction with any additional Breath Tech terms particularly applicable to you and the Services you utilise. All rights in and to the content of the Application remain at all times expressly reserved by Breath Tech.
Please see Breath Tech’s distinct sections on Privacy, Intellectual Property, and Disclaimers & Indemnities.
Please read these terms carefully before accessing or using the Application or Services. Breath Tech will assume you have read and understood these terms should you continue to access or make use of the Application.
It is important to note the following:
The terms “user“, “you” and “your” are used interchangeably in these Terms and refer to all persons accessing the Application or using the Services for any reason whatsoever. Accordingly, the terms “us”, “our” or “we” refers to Breath Tech or its possession.
Not all terms are necessarily defined in order.
These terms were last updated on 11 August 2021.
1.1. Breath Tech provides an online platform providing various services, including but not limited to providing users with a personalised and practical guide to mastering breath and awareness and conscious breathing for health, growth and change (collectively, the “Services”).
1.2. These Terms explain the conditions applicable to how users must make use of the Application and the core provisions applicable to a user’s use of any Services derived from Breath Tech. Depending on the exact Services used, a user may also need to conclude additional agreements with Breath Tech, which agreements will contain more specific details and/or conditions relating to the exact Service acquired, including exact services and fees to be expected.
1.3. In return for using some of the Services available, the user may have to pay a fee to Breath Tech or another third party (“Fee”), but same Fee will be detailed to you on the Application before you incur such a Fee, or in any further Service-specific agreement you may conclude with Breath Tech or another third party. Please see the Subscription page on the Application for a breakdown of the Fees.
1.4. In order to use most of the Services, users must register on the Application using the prompted methods and submit any required information to create a user Profile.
1.5. The Application and these Terms are subject to change without notice. These Terms are updated or amended from time to time and will be effective upon Breath Tech uploading the amended Terms to the Application. Your continued access or use of the Application constitutes your acceptance to be bound by the Terms, as amended. It is your responsibility to read these Terms periodically to ensure you are aware of any changes.
1.6. Supplemental terms may apply to certain Breath Tech Services, such as policies for a particular activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Breath Tech Services. Supplemental terms are in addition to, and shall be deemed incorporated into, the Terms for the purpose of the Breath Tech Services.
1.7. Unauthorised use of the Application may give rise to a claim for damages and/or be a criminal offence.
2. RELATIONSHIP BETWEEN THE PARTIES AND REGULATION OF SERVICES
2.1. For all Services provided, Breath Tech does not have a medical, agent, intermediary, advisory nor representative relationship with any user. Your use of the Application or the Services is entirely at your own risk and based on your own volition and expertise.
2.2. The Services and/or Application do not constitute a “medical service” nor “medical device” and are therefore not subject to the regulation by local medical/health authorities. Users must first consult with their chosen medical practitioner before using the Application and/or Services.
3. USER REGISTRATION PROCESS
3.1. In order to make use of the paid Services, you must complete the necessary registration process detailed on the Application and acquire a Profile. Each user shall have only one (1) Profile and agrees to provide accurate, current and complete information during the registration process and to update such information as and when it changes.
3.2. Once registered, the user is allocated a unique Profile which is under their control and which can be manipulated by the relevant Profile owner using the various tools made available on the Application. Some of the features of the Application used by a user may automatically make adjustments or manipulate a Profile in accordance with the tool’s functions.
3.3. Breath Tech requires you to submit your full name, date of birth, gender, country of residence, email address, and phone number when registering a Profile. Users may then set up additional features of their Profile, depending on the exact Services acquired, as prompted by the Application.
3.4. To protect your privacy and security, the Application takes reasonable steps to verify your identity by requiring a password together with your provided email address in order to grant access to your Profile and data. To view or change your personal information provided, you can do so yourself on the Application once you have logged in to your Profile.
3.5. By entering your personal information on the Application, you warrant that the person using the Application is you and/or you have the legal authority to act on behalf of a corporate entity. You are responsible for your Profile and all actions perpetrated therewith and thereon, and you should not share your login details or password with anyone.
4. THE SERVICES
4.1. For further and exact information on the various Services currently offered by Breath Tech, or those specific to you, please consult the relevant “Home” page on the Application or please contact [email protected] who will gladly assist.
4.2. For general information purposes, and subject to further information relating to these Services made available by Breath Tech on the Application or elsewhere, the following details some of the exciting offerings which constitute our Services available to users:
4.2.1. Learn about correct breathing techniques:
188.8.131.52. Get access to our cutting-edge tools and programme content assisting you in managing and mastering your breathing techniques to improve your health and well-being.
184.108.40.206. Such provided is conveniently provided in written, audio and video formats.
220.127.116.11. All guidance provided in this regard is for information purposes only, where the user must still use their own volition and expertise when using any such information/guidance for their own unique purposes.
4.2.2. Receive guidance and assistance on our unique techniques from the world’s leaders in breathing therapeutics:
18.104.22.168. Be guided and taught by some of the world leaders in breathing and lifestyle health and well-being management, all on simple-to-use Application.
4.2.3. Accessing multi-media content and videos:
22.214.171.124. Users can obtain access to and watch our informative videos, instructional videos, industry content and other multi-media using the relevant prompts and pages on the Application.
4.2.4. Be provided with a guided pathway of content that relates to assisting the user with a unique issue or challenge.
4.3. You agree and understand that any information, techniques, guidance or skills-training provided to any user on the Application or as part of the Services, is general in nature and is not specific to any particular user for any specific need of that user. A user is at all times responsible for their own decisions and actions relating to the Application and Services, where any such information provided by Breath Tech is only ever general in nature.
5. PAYMENT FOR BREATH TECH SERVICES
5.1. The Application is free to use for the initial “Cornerstones” content. Additional content can be unlocked by purchasing a subscription Through the Application you may be allowed to make in-Application purchases. We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
5.2. You may pay for your in-Application purchases by means of: Visa™ or MasterCard™ (using the Google™/Apple™ payment gateways)..
5.3. You warrant that you are fully authorised to use your chosen payment method. You also warrant that you have sufficient available funds to cover all costs incurred as a result of your purchases and any costs associated with collecting payments.
5.4. Once you accept these Terms, you will be directed to a link to a secure site for payment of the applicable purchase price. The payment process may vary depending on the payment method which has been selected.
5.5. For an indication of the fees applicable to the subscription for our various Services and training products, please see the Subscription tab on the Application.
5.6. Once Fee payments are successfully made using Apple Pay/Google, such providers will provide the user with the relevant invoice reflecting the transaction completed, as per their usual processes.
5.7. All advertised prices for products and Fees shall be exclusive of Value Added Tax (“VAT”) and any other applicable taxes/fees, unless otherwise stated and required by law. Any such additional charges and VAT which will apply to a particular transaction, will be clearly indicated to you upon checking-out.
5.8. You may contact Breath Tech via email at [email protected] to obtain a full record of your transactions with Breath Tech.
5.9. Breath Tech may, from time to time, provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Breath Tech Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Breath Tech Services or the fees applied to you.
6.1. Unless otherwise required by applicable laws, Breath Tech does not refund any Fee which has been paid by a user for their subscription to the Services. This also means that Breath Tech will not return any Fee already paid for a subscription period where the user terminates their use of the Services before the paid subscription period has lapsed entirely.
6.2. Users have a lot of flexibility and opportunity when it comes to understanding the exact Services offered, as well as choosing and paying for the subscription package which is right for them (including the use of our free Cornerstone content Services). This means that should a user use our Services and purchase any on-going subscription package, it is assumed that the Services are fit for the user’s purpose and refunds will therefore not be provided for any related bases.
7. USER RESPONSIBILITIES AND WARRANTIES
7.1. By using the Application and/or the Services, you warrant that:
7.1.1. you have read and agreed to these Terms and will use the Application and Services in accordance with them;
7.1.2. you understand and agree that Breath Tech is not a regulated advisory, educational, medical, nor payments service provider and you take all responsibility for the decisions you make via or from the Application and/or Services;
7.1.3. you have not made any misrepresentations and the information provided in the registration process about you, your company and/or your status is true, accurate and complete in every aspect;
7.1.4. you are above the age of 18 (eighteen) years old and have the legal capacity to understand, agree with and be bound with these Terms. If you are under the age of 18 (eighteen) years old, or if not legally permitted to enter into a binding agreement, then use of the Application is with the involvement and supervision of your parent or legal guardian. If such parent or legal guardian supervises you and gives his/her consent, then such person agrees to be bound to these Terms and to be liable and responsible for you and all your obligations under these Terms;
7.1.5. you lawfully possess and submit all information to the Application and/or Breath Tech for the use of it or the Services;
7.1.6. you will not post, upload, replicate or transmit any abusive content on the Application that is or could reasonably be considered to be threatening, harassing, defamatory, abusive, racist, sexist, discriminatory, in breach of confidence, in breach of privacy or restrict any user in any way from properly using the Application;
7.1.7. you will not send any unsolicited electronic messages or use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of the Application including but not limited to uploading or making available files containing corrupt data or viruses via whatever means or deface, alter or interfere with the front end ‘look and feel’ of the Application or the underlying software code;
7.1.8. you will not rely solely on any information provided by the Application/Breath Tech, and will acquire further independent specialist medical advice for any decision you may make pursuant to information you have attained from Breath Tech, the Services and/or the Application;
7.1.9. you will not infringe the intellectual property or other rights of any third party or the Application or transmit content that the user does not own or does not have the right to publish or distribute;
7.1.10. you will not use the Application platform for any commercial purpose other than as expressly provided for by Breath Tech herein;
7.1.11. you will not use the Application to breach any applicable law or regulation or perform or encourage any illegal activity including (without limitation) promoting or facilitating money laundering or financial crimes; and/or
7.1.12. you will not facilitate or assist any third party to do any of the above.
7.2. The Application is only available on compatible devices connected to the internet. It is your responsibility to obtain these devices and any data network access necessary to utilise the Application. The network’s data and messaging rates and fees may apply if you use the Application and you shall be responsible for such rates and fees.
7.3. Without prejudice to any of Breath Tech’ other rights (whether at law or otherwise), Breath Tech reserves the right to deny you access to the Application or the Services where Breath Tech believes (in its reasonable discretion) that you are in breach of any of these Terms.
7.4. Breath Tech does not guarantee that the Application, or any portion thereof, will function on any particular hardware or device.
8. KYC AND AML REQUIREMENTS
8.1. A user’s ability to make use of various parts of the Application or particular Services, may be regulated by applicable know-your-customer (“KYC”) and/or anti-money laundering (“AML”) laws and the respective rules and regulations.
8.2. Breath Tech may, at various times and depending on a range of factors in its sole discretion, including the amount of a transaction actioned and/or the exact nature of the user, require that a user submit certain information to Breath Tech in order for the user to be verified as not infringing any of Breath Tech’s KYC and/or AML requirements and/or local or foreign laws. This information may include identity documents, passport documents and/or bank account information. Breath Tech reserves the right to limit or terminate a user’s access and use of the Services should the user fail to adhere to these requirements to the standard required by Breath Tech. Breath Tech also reserves the right to share this information with any legal authority when required under applicable laws.
8.3. Breath Tech may restrict user transactions that may violate laws or Breath Tech’s internal KYC or AML conditions as updated from time to time.
9. RECEIPT AND TRANSMISSION OF DATA MESSAGES
9.1. Data messages, including email messages, sent by you to Breath Tech will be considered to be received only when acknowledged or responded to.
9.2. Data messages sent by Breath Tech to you will be regarded as received when the complete data message enters an information system designated or used for that purpose by the recipient and is capable of being retrieved and processed by the recipient.
9.3. Breath Tech reserves the right not to respond to any email or other data message which contains obscene, threatening, defamatory or otherwise illegal, unlawful or inappropriate content, and to take appropriate action against the sender of such email or data message where necessary.
9.4. Messages sent over the internet cannot be guaranteed to be completely secure as they can be intercepted, lost or corrupted. Breath Tech is therefore not responsible for the accuracy or safety of any message sent by email or automated systems over the internet, whether from Breath Tech to a user, between users or from a user to Breath Tech.
10. HYPERLINKS, DEEP LINKS, FRAMING
10.1. The Application may include links to other internet sites (“the other sites“). Breath Tech does not own or endorse the other sites and is not responsible for the information, material, products or services contained on or accessible through the other sites. Any such hyperlinks do not imply any endorsement, agreement on or support of the content or products of such target sites.
10.2. Breath Tech does not purport to own the content on other sites which may be shown on the Application. Should the owner of any content showcased on the Application want the content to be removed, please write to [email protected] to request the removal of such content.
10.3. The user’s access and use of the other sites remain solely at the user’s own risk and on the terms set by the relevant third-party operator of the other sites.
11. ADVERTISING AND SPONSORSHIP
11.1. The Application may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion in the Application complies with all applicable laws and regulations.
11.2. Breath Tech, its members, employees, suppliers, partners, affiliates and agents accordingly exclude, to the maximum extent permitted in law, any responsibility or liability for any error or inaccuracy appearing in advertising or sponsorship material.
12. INTELLECTUAL PROPERTY PROTECTION
12.1. All Application and Website layout, content, programmes, techniques, material, information, data, software, icons, text, graphics, images, sound clips, advertisements, video clips, user interface design and layout, trade names, logos, trademarks, designs, copyright and/or service marks, together with the underlying software code and everything submitted by a user to the Application and Breath Tech in use of the Services, (“the intellectual property”) are owned (or co-owned or licenced, as the case may be) by Breath Tech, its shareholders, associates and/or partners, whether directly or indirectly, and as such, are protected from infringement by domestic and international legislation and treaties.
12.1.1. For clarity, all rights to any intellectual property provided by a user to the Application will remain with the user, but for which the user has provided Breath Tech with a non-exclusive, non-transferable licence to use such user intellectual property as Breath Tech deems fit on the Application and/or in advertising, for as long as the user remains registered on the Application.
12.2. Subject to the rights afforded to you in these Terms, all other rights to all intellectual property on the Application are expressly reserved. You may not copy, download, print, modify, alter, publish, broadcast, distribute, sell or transfer any intellectual property, editorial content, graphics or other material on the Application or the underlying software code whether in whole or in part, without the written consent of Breath Tech first being granted, which consent may be refused at the discretion of Breath Tech. No modification of any intellectual property or editorial content or graphics is permitted. Should you breach these provisions, Breath Tech and/or the rightful intellectual property rights owner may launch legal proceedings against you for a breach of contract, resulting in a claim of damages against you.
12.3. Breath Tech reserves the right to make improvements or changes to the intellectual property, information, graphics and other materials on the Application, including that of a user in their Profile, or to suspend or terminate the Application, at any time without notice; provided that any transactions or functions already concluded through the Application, will not be affected by such suspension or termination (as the case may be).
12.4. Where any of the Application intellectual property has been licensed to Breath Tech or belongs to any third party, other than that which has been submitted by a user to the Application in the use of the Services, all rights of use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
12.5. Subject to adherence to the Terms, Breath Tech grants to users a personal, non-exclusive, non-assignable and non-transferable license to use and display all content and information contained on the Application on any machine which the user is the primary user. However, nothing contained on the Application or in these Terms should be construed as granting any licence or right to use any intellectual property without the prior written permission of Breath Tech.
12.6. Any enquiries regarding any of the above relating to intellectual property must be directed to Breath Tech at [email protected].
13. DISCLAIMERS AND WARRANTIES
13.1. The Application and Services, including any intellectual property appearing therein, are provided “as is” and “as available”. Breath Tech makes no representations or warranties, express or implied, including but not limited to warranties as to the accuracy, correctness or suitability of either the Application, the Services or the information contained in it.
13.2. All information or opinions of users made available on the Application in relation to any of the Services are those of the authors and not Breath Tech. While Breath Tech makes every reasonable effort to present such information accurately and reliably on the Application, Breath Tech does not endorse, approve or certify such information, nor guarantee the accuracy or completeness of such information on the Application.
13.3. Breath Tech, its shareholders, employees and partners, accept no liability whatsoever for any loss, whether direct or indirect, consequential or arising from information made available on (or by means of) the Application and/or transactions or actions resulting therefrom or from the Services offered.
13.4. Breath Tech, its shareholders, employees, partners and affiliates, accept no liability whatsoever for any costs, expenses, fines or damages, including but not limited to harm, death, direct or indirect loss or damages, including any economic loss, consequential loss, loss of profits or any form of punitive damages, resulting from the facilitation and offering of the Services, and access to, or use of, the Application in any manner.
13.5. Breath Tech takes reasonable security measures to ensure the safety and integrity of the Application and to exclude viruses, unlawful monitoring and/or access from the Application. However, Breath Tech does not warrant or represent that your access to the Application will be uninterrupted or error-free or that any information, data, content, software or other material accessible through the Application will be free of bugs, viruses, worms, trojan horses or other harmful components. The user’s access to and use of the Application remains solely at the user’s own risk and the user should take their own precautions accordingly.
13.6. Nothing in the content of the Application or Website should be considered, or used as a substitute for medical advice, diagnosis or treatment.
13.7. We do not represent that any service offered through the Application or Website is appropriate or effective for you or your medical condition.
13.8. You should always talk to your health care provider for diagnosis and treatment, including your specific medical needs.
13.9. While using the Application you may experience light-headedness, dizziness or difficulty, should this happen you should stop using the Application and seek medical advice.
13.10. The use of the Application is entirely at your own risk and you assume full responsibility for any risk or loss resulting from use of the Application or reliance on any information on the Application.
13.11. The Application and Website may contain documents created by, and information from, researchers and third parties. The researchers and third parties are independent parties and do not have any partnership, joint venture or agency relationship with Breath Tech.
14.1. The user indemnifies and holds harmless Breath Tech, its shareholders, employees, and partners from any demand, action or application or other proceedings, including for attorneys’ fees and related costs such as tracing fees, made by any third party and arising out of or in connection with the user’s use of the Application and/or Services offered or concluded through the Application in any way.
14.2. The user agrees to indemnify, defend and hold Breath Tech harmless from any direct or indirect liability, loss, claim and expense (including reasonable legal fees) related to the user’s breach of these Terms.
14.3. This clause will survive termination of this agreement.
15. COMPANY INFORMATION
15.1. Site owner: Breath Tech App (Pty) Ltd.
15.2. Legal status: Private Limited Liability
15.3. Registration number: 2016/353044/07
15.4. Director/s: Wesley R Bester, A M Bryson and Ela Manga
15.5. Description of main business: Online software service provider
15.6. Telephone number: +27 (0) 11 346 0001
15.7. Email address: [email protected]
15.8. Application address: Google Play Store™/Apple i-Store™
15.9. Physical address: 55 9th Street, Parkmore, 2196
15.10. Postal address: 118 4th Street, Parkmore, 2196
15.11. Registered address: 55 9th Street, Parkmore, 2196
15.12. Membership of any Association: None
16. DISPUTE RESOLUTION AND GOVERNING LAW
16.1. The user’s access and/or use of the Application and/or Services, any downloaded material from it and the operation of these Terms (including any transaction concluded pursuant thereto) shall be governed by and construed in accordance with the laws of the Republic of South Africa only.
16.2. In the event of a dispute between you and us, which cannot be resolved by our customer service team or the intervention of senior management, either of us may approach a court or tribunal of competent jurisdiction.
16.3. The parties both agree that in no circumstance will either party publicize the dispute on any social media or other public platform. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim against the infringing party.
17. TERMINATION OF USE OF APPLICATION OR SERVICES
17.1. IN ADDITION TO ITS OTHER RIGHTS HEREIN, BREATH TECH RESERVES THE RIGHT TO TERMINATE AND CANCEL YOUR PROFILE AND USE OF THE APPLICATION AND/OR SERVICES IF YOU BREACH ANY OF THE TERMS, OR FOR ANY OTHER REASON IN ITS SOLE DISCRETION PROVIDED THAT BREATH TECH GIVES REASONABLE NOTICE TO YOU.
17.2. If you wish to terminate the agreement with Breath Tech, or end your use of the Services, you may do so by deregistering your Profile with the Application and discontinuing your use of the Application/Services. Such deregistration from the Application will however not have any effect on the continued and comprehensive functioning or legitimacy of any lawful rights which the parties may have at the time of said termination with the Application.
17.3. In the event of cancellation of your agreement with the Terms and with Breath Tech, Breath Tech will remove you from the Application, delete your Profile.
18. NOTICES AND SERVICE ADDRESS
18.1. Each of the parties chooses their service address for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from these Terms as being:
18.1.1. in the case of Breath Tech, at 118 4th Street, Parkmore, Johannesburg, South Africa; or
18.1.2. in the case of the user, at the e-mail and addresses provided by the user to Breath Tech in the registration process and/or in their Profile.
18.2. Each of the parties will be entitled from time to time, by written notice to the other to vary its service address to any other address which is not a post office box or poste restante, provided that the change will become effective only 14 (fourteen) days after service of the notice in question.
18.3. Notwithstanding the above, any notice given in writing in English, and actually received by the party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.
19.1. This document contains the entire agreement between the parties in relation to the subject matter hereof. Save as contemplated in clause 1.5 above, no alteration, cancellation, variation of, or addition hereto will be of any force or effect unless reduced to writing and signed by all the parties to these Terms or their duly authorised representatives.
19.2. No indulgence, leniency or extension of time granted by Breath Tech shall constitute a waiver of any of Breath Tech’ rights under these Terms and, accordingly, Breath Tech shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against the user which may have arisen in the past or which might arise in the future.
19.3. Words importing the singular will include the plural and vice versa. Words importing one gender will include the other genders, and words importing persons will include partnerships, trusts and bodies corporate, and vice versa.
19.4. The headings to the paragraphs in the Terms are inserted for reference purposes only and will not affect the interpretation of any of the provisions to which they relate.
19.5. The user’s access and/or use of the Application and/or the Services, any downloaded material from it and the operation of these Terms (including any transaction concluded pursuant thereto) shall be governed by and construed in accordance with the laws of the Republic of South Africa.
19.6. Should you have any complaints or queries, kindly address an email to Breath Tech at [email protected] of same.
19.7. In the event of the user failing to pay any amount timeously or breaching these Terms, the user shall be liable for all legal costs (on the scale as between attorney and client) (including collection commission) which may be incurred by Breath Tech in relation to the payment failure or breach.
19.8. Each sentence, paragraph, term, clause and provision of these Terms and any portion thereof shall be considered severable and if, for any reason, any such sentence, paragraph, term, clause or provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment issued by any court, it shall to that extent be deemed not to form part hereof and shall not impair the operation of, or have any effect upon such other sentence, paragraph, term, clause or provision hereof as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto.
19.9. No term or condition of these Terms is intended to breach any peremptory provisions of any consumer protection legislation and any regulations thereto (“Prohibited Provision“). Any breach of any such Prohibited Provision shall be governed by the provisions of clause 19.8.