Terms of Service

1. Subject Matter, Scope and Definitions

1.1. These General Terms and Conditions ("Terms") govern the business relationship between idearockers GmbH, Kanalstraße 62, 23552 Lübeck, Germany, registered in the Commercial Register of Lübeck, HRB 22833 HL (hereinafter referred to as "breathe", "we" or "us") and users of the "breathe" meditation app (hereinafter referred to as "Application").

1.2. "Users" within the meaning of these Terms are all persons who use the Application.

1.3. The term "Content" refers to all content and information submitted by users within the Application or otherwise transmitted to breathe, such as profile pictures, texts or personal information.

1.4. The term "Function" covers individual service and application areas of the Application including the content associated with those areas.

1.5. The terminology used, such as "User", is to be understood in a gender-neutral manner.

1.6. By using the Application, users agree to these Terms. Deviating conditions of the user are not recognized unless breathe expressly agrees to their validity, whereby a lack of objection does not constitute consent.

2. Scope of Services and Changes

2.1. The Application comprises various functions that serve users in meditation and mindfulness enhancement. The individual functions can be found in the Application description in the respective app stores.

2.2. Some functions are freely and cost-free accessible, while others are subject to fees or require user registration. Furthermore, functions may depend on the availability of an internet connection (e.g., to download music).

2.3. breathe may offer paid services to users free of charge for a limited period. Which user can participate in a trial offer is at the sole discretion of breathe. breathe may change the scope of the trial offer at any time or terminate the provision of a trial offer in accordance with these Terms. Users may cancel the trial offer at any time. breathe may require users to provide payment details at the beginning of the trial offer and may charge users for paid use after the trial ends. This requires that users are informed of the fees in accordance with legal requirements when concluding the free offer.

2.4. Users are separately informed about paid functions, the amount of costs and contract durations and must expressly consent to their purchase. Users bear the costs of internet access to download and use the app and its content.

2.5. The purchase of paid functions is made as an "in-app purchase" within the respective app stores in which the Application is offered (particularly Google's Play Store and Apple's App Store). The purchase process is handled directly between the respective user and the respective app store. The payment conditions, withdrawal rights and other terms of the respective app stores apply.

3. Changes to the Scope of Services

3.1. The further development of the Application is an essential part of breathe's service offering. Further development includes, among other things, adaptation to technical and legal progress and consideration of user requirements for using the Application.

3.2. breathe may modify the Application and its functions as part of further development without this constituting a defect, provided this is reasonable for the user and does not endanger the achievement of the contractual purpose. For consumers using paid services, this applies when the change benefits the user; when it serves to bring the services into compliance with applicable law; when it serves to comply with mandatory court or official decisions; when it is necessary to close existing security gaps; or when the change is purely technical or procedural in nature without material effects for the user. Changes with only minor influence on existing functions do not constitute service changes. This applies in particular to purely visual changes and the mere rearrangement of functions.

3.3. breathe points out that permanent availability of free functions is not guaranteed, though restrictions may only be made if they are reasonable for the user.

4. Registration

4.1. There is no legal right to registration for the use of registration-required functions and content. Therefore, breathe reserves the right, while observing legal requirements for equal treatment of users, to reject a requested registration by notifying the user without stating reasons.

4.2. By successfully completing the registration process, the user submits an offer to conclude a contract for the use of registration-required functions. breathe accepts this offer by activating the user profile.

4.3. If the registration process is not fully completed, breathe is entitled to irreversibly delete the incompletely registered account including all information provided by the user up to that point.

4.4. The user provides breathe with a current email address during registration, which breathe may use as a means of contact. The user is responsible for keeping the email address up to date and for protecting the access credentials from unauthorized third-party access.

5. Content Guidelines and User Obligations

5.1. breathe is not responsible for user content and does not adopt such content as its own.

5.2. breathe reserves the right, within legally permitted possibilities and with due regard to reasonableness for the user, particularly considering the user's data protection and personality rights, not to publish content or to reverse its publication, or to block or delete content if there are concrete objective indications that the content violates legal requirements, official prohibitions, third-party rights or common decency. However, breathe is not obligated to review content in advance.

5.3. The user undertakes not to publish or distribute content that is unlawful, particularly racist, pornographic, defamatory or slanderous, or that infringes the rights of third parties, particularly copyrights or copyright usage rights. Accordingly, the user is fully responsible for all content published and distributed via the breathe platform.

5.4. In particular, the following content and actions are prohibited:

• Impersonating another person (identity fraud)
• Stalking, threats, insults and assertion of false facts
• Racist, violence-glorifying, hate-inciting, pornographic, degrading and immoral content
• Content that violates youth protection regulations
• Content that may impair people's health
• Content that infringes third-party copyright, trademark, competition and data protection rights
• Links to websites with the above content
• Commercial advertising
• Content intended to collect and/or use personal data of other users for business purposes
• Promotional references to competing offerings of breathe

5.5. When users upload images in which one or more persons are identifiable, their use is only permitted if the consent of the respective third parties has been obtained or is legally permitted.

5.6. Users must respect the privacy of other users and must not disclose or publish confidential information and content.

5.7. If a user is notified or otherwise becomes aware that their content violates applicable laws, they must immediately remove such content from the breathe platform.

5.8. Where users can contact other users within the Application, contacted users must not be harassed (for example, through advertising, sexually suggestive requests or repeated requests when no response is received or the wish not to be contacted has been expressed).

6. Usage Rights and Scope of Use

6.1. breathe points out that users may only use the Application for individual contractual and non-commercial purposes.

6.2. Furthermore, users are not entitled, without the express written consent of breathe, to rent, lend, lease, sell, modify or make the Application wholly or partially accessible to third parties in any technical form, or to enable third parties to carry out the aforementioned actions. The foregoing prohibitions are subject to mandatory legal requirements. Sublicenses may not be granted.

6.3. Users may only use the Application through the provided input interfaces. Actions that are likely to impair the functionality of the Application, software and infrastructure are prohibited.

7. Indemnification

7.1. Users indemnify breathe against all claims that third parties assert against breathe due to a violation of their rights.

7.2. In this regard, users also bear the costs of necessary legal defense including attorney and court costs at the statutory rate. Indemnification by users does not apply if the user is not responsible for the legal violation.

8. Sanctions

8.1. Since the integrity and functionality of the Application is of essential importance, sanctions are imposed on users if and to the extent that there are concrete indications that users violate legal provisions, third-party rights, common decency and/or these Terms.

8.2. In choosing the sanction to be imposed, breathe will take into account the factual circumstances and legitimate interests of the affected user and also consider whether only blameless misconduct or a culpable violation has occurred.

9. Granting of Usage Rights by Users

9.1. The following grant of rights is non-exclusive, meaning users retain their rights to their content.

9.2. Users allow breathe to use their legally protected content free of charge, insofar as this is necessary for the contractual provision of breathe's services. This permission includes in particular the right to reproduce and make publicly available user content in order to store it on breathe's servers, create server backups or make it accessible to other users through sharing functions.

9.3. User content may be edited or modified while respecting personality rights (e.g., for displaying preview images or text excerpts).

9.4. breathe exercises usage rights only in compliance with contractual and legal confidentiality and data protection requirements as well as users' rights of objection.

10. Liability of breathe

10.1. Users ensure that there are no personal limitations that could lead to physical or mental disadvantages as a result of using the app. Users are asked to note that the Application and all information and functions provided by it cannot replace individual medical advice or treatment.

10.2. For breathe's liability for damages, the following exclusions and limitations of liability apply without prejudice to other statutory claim requirements.

10.3. breathe is liable without limitation where the cause of damage is based on intent or gross negligence.

10.4. Furthermore, breathe is liable for slightly negligent breach of essential obligations whose violation endangers the achievement of the contractual purpose, or for breach of obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance users regularly rely. In this case, however, breathe is only liable for the foreseeable, contract-typical damage directly caused by the breach. In particular, liability for data loss is limited to the typical recovery effort that would have occurred with regular and risk-appropriate creation of backup copies. The typical damage is generally limited to the specified amount or to the contractual fees for the period in which the breach occurred. breathe is not liable for slightly negligent breach of obligations other than those mentioned above.

10.5. The above limitations of liability do not apply in cases of injury to life, body or health, for defects after assumption of a guarantee for the quality of the product, or for fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

10.6. To the extent that breathe's liability is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of breathe.

10.7. Unless otherwise provided in the foregoing provisions of this section, any liability of breathe — regardless of the legal basis — is excluded.

11. Warranty

11.1. breathe endeavors to keep the Application available as consistently as possible. However, the user acknowledges that 100% availability of the Application is technically not achievable. In particular, maintenance, security or capacity concerns as well as events outside breathe's control (such as disruptions of public communication networks, power outages, etc.) may lead to brief disruptions or temporary unavailability of the Application. Furthermore, breathe reserves the right, within reasonable limits, to restrict or temporarily suspend the Application for maintenance, security or capacity reasons at its own discretion.

11.2. Statutory warranty provisions otherwise apply.

12. Termination of the User Agreement

12.1. Users are entitled to terminate the contract concluded with breathe for the use of the Application at any time. Termination by the user does not entitle to a refund of prepaid fees.

12.2. breathe offers paid services with different conditions. Unless otherwise stated in the respective service description, the user agreement for paid services initially runs for the booked minimum usage period. Thereafter, the agreement is extended by the duration of the booked minimum period unless terminated by the user or breathe before expiration. If the purchase was made through an app store, the termination rights are primarily governed by the terms of the respective app stores.

12.3. breathe is entitled to ordinary termination of free service agreements with two weeks' notice, and otherwise with two weeks' notice to the end of the respective contract term. This does not affect breathe's right to extraordinary termination with immediate effect for good cause. Good cause exists, for example, when breathe becomes aware that the user has acted or is acting unlawfully in using the Application, particularly by uploading content that infringes third-party intellectual property rights.

12.4. Termination must be in text form at minimum. Deletion of the Application from the user's device does not constitute a notice of termination.

12.5. It is the users' responsibility to back up their data before the end of the contract upon termination. breathe is entitled to irretrievably delete all data stored during the contract period.

13. Changes to the Terms

13.1. breathe reserves the right to change the Terms at any time with effect for the future, unless this is unreasonable for users. For consumers, breathe is entitled to change the Terms in the following cases:

• when the change serves to bring the Terms into compliance with applicable law, particularly when the legal situation changes
• when the change serves to comply with mandatory court or official decisions
• when entirely new services, service elements or technical or organizational processes require description in the Terms
• when the change is solely beneficial for users

13.2. In such cases, breathe will send the amended Terms to the email address stored by the user at least two weeks before they take effect, or notify the user through a dialog within the Application.

13.3. If the user does not object to the new Terms within two weeks of receiving the email or reading the amended Terms within a dialog in the Application, the amended Terms are deemed accepted. breathe will inform users of the consequences of failing to object in the change notification.

13.4. If the user objects to the new Terms within the deadline, breathe remains entitled to ordinarily terminate the contractual relationship with one week's notice.

13.5. Users may also consent to amended Terms through an express declaration of agreement.

14. Final Provisions

14.1. The contractual relationship with breathe is not transferable by users to other persons or companies.

14.2. The place of jurisdiction is Lübeck, provided the user is a merchant, a legal entity under public law or a special fund under public law, or if the user has no general place of jurisdiction in the Federal Republic of Germany. breathe's right to choose another permissible place of jurisdiction is reserved. European Commission platform for online dispute resolution (ODR) for consumers: http://ec.europa.eu/consumers/odr/. breathe is not willing and not obligated to participate in dispute resolution proceedings before a consumer arbitration board.