top of page

Zephyrs Technologies, Inc. USER TERMS OF SERVICE

Last Updated/Effective Date: 05/05/2024

Welcome to Zephyrs Technologies, Inc. (“Zeph,” “we,” “our,” or “us”) makes this Zeph  platform and all software, services, content, and materials related to this platform or made accessible to you in connection with our platform, products, or services (collectively, our “Service”) available for your use subject to the terms and conditions in these Terms of Service (the “Terms”). By accessing or using our Service in any way, including, without limitation, by clicking “I accept” when presented with these Terms in connection with the Service, you agree to be bound by these Terms. If you do not accept any of the terms of these Terms and/or you do not meet or comply with its provisions, you may not use our Service. 

IMPORTANT NOTICE: YOUR USE OF OUR SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 8 OF THESE TERMS, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 8 OF THESE TERMS FOR MORE INFORMATION.

1. SERVICE

  1. Grant of License. On the condition that you comply with all of your obligations under these Terms, and subject to any additional terms which we may present to you regarding certain features or functions of the Service or in any third-party licenses applicable to our Service, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use our Service for your own personal use. We reserve all rights not otherwise expressly granted by these Terms. If you do not comply with these Terms, we reserve the right to revoke any license granted in these Terms and limit your access to our Service. Any use of our Service that exceeds the rights expressly granted in these Terms is strictly prohibited and constitutes a violation of these Terms, which may result in the termination of your right to access and use our Service. Any third-party software included in our Service is licensed subject to the additional terms of the applicable third-party license.

  2. Modification. We may discontinue or alter any aspect of our Service, restrict the time our Service is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to our Service without prior notice or liability to you. Your only remedy is to discontinue using our Service if you do not want a modification we make to our Service.

  3. Removal of Access. Your access to our Service is provided on a temporary basis with no guarantee of future availability or continued right to access. You agree that we may immediately suspend or terminate your access to our Service or any part thereof for any reason, in our reasonable discretion. Cause for such measures include, without limitation: (1) breach or violation of these Terms, or other incorporated agreements or guidelines; (2) discontinuance or material modification to our Service; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.

  4. Defects and Availability. We use commercially reasonable efforts to maintain our Service, but we are not responsible for any defects or failures associated with our Service, any part thereof, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. Our Service may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that our Service is provided over the Internet, so the quality and availability of our Service may be affected by factors outside of our control. Our Service is not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of our Service. We do not represent, warrant, or guarantee that our Service will always be available or is completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to our Service being unavailable.

  5. Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our Service in any way, including any Zeph Materials or other data contained therein; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which our Service is based; (3) use our Service or Zeph Materials to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of our Service, servers, or networks connected to our Service or take any other action that interferes with any other person’s use of our Service; (5) decrypt, transfer, create Internet links to our Service, or “frame” or “mirror” our Service on any other server or wireless or Internet-based device; (6) use or merge our Service or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to our Service; (8) use our Service for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with our Service; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on our Service for any reason; (11) access or attempt to access any other user’s account; (12) use any Zeph Materials made available through our Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into our Service any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm our Service, or perform any such actions; (14) introduce into our Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter our Service, Zeph Materials, or notices on our Service; (16) connect to or access any Zeph computer system or network other than our Service; (17) impersonate any other person or entity to use or gain access to our Service, or (18) use the Service for any purpose other than your own personal use.

  6. Prosecution. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.

2. YOUR RELATIONSHIP WITH US

  1. ​We, on our own behalf and on behalf of your medical provider (the “Medical Provider”), makes certain information available to you regarding COPD and related respiratory treatment programs and facilitates your access to telemedicine and expert medical services provided by the Medical Provider. Our Privacy Policy, which may be found here, details how we may use, share and maintain any information that you provide to us or to the Medical Provider (“User Data”). Our role is limited to making such information available to you and/or facilitate your access to the Service, on behalf of the Medical Provider as their “business associate” as that term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”). We are independent from the Medical Provider and any individual healthcare providers that may provide you with medical services through the Medical Provider. We are not responsible for the Medical Provider’s acts, omissions or for any content of the communications made by them to you. We do not engage in the practice of medicine or provide any other health services.

  2. Zeph does not offer any diagnosis or treatment. ALL INFORMATION PROVIDED ON THIS SERVICE OR IN CONNECTION WITH ANY COMMUNICATIONS SUPPORTED BY US IS INTENDED TO BE FOR GENERAL INFORMATION PURPOSES ONLY AND IS IN NO WAY INTENDED TO CREATE A PROVIDER-PATIENT RELATIONSHIP OR SUPPLANT OR REPLACE YOUR EXISTING PROVIDER-PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW. USE OF THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL DIAGNOSIS OR TREATMENT AND RELIANCE ON ANY INFORMATION PROVIDED BY ZEPH IS SOLELY AT YOUR OWN RISK.

3. MATERIALS AND DATA ON OUR SERVICE

  1. Zeph Materials. Our Service may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties, and may allow you to access data, documents, works, methods, processes, assessments, surveys, or reports that are provided or used by Zeph in connection with our Service, or otherwise comprise or relate to our Service (collectively, the “Zeph Materials”) whether or not protected by intellectual property laws. You are not acquiring any rights in or to the Zeph Materials other than a non-exclusive right to access and use the Zeph Materials solely in accordance with the terms of these Terms and solely in connection with your personal use of our Service. You understand and agree that Zeph’s rights in any Zeph Materials are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Zeph Materials. 

  2. User Data Restrictions. You may not upload, post, or transmit any User Data that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Zeph or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Zeph or our Service; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; or (e) illicit drugs and drug paraphernalia. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Data from the Service. You understand and expressly acknowledge that by using our Service you may be exposed to content that you find offensive, indecent, or objectionable and that we will not be liable to you or any other person or entity for your consumption of any content on our Service. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER DATA THAT YOU POST OR PROVIDE THROUGH OUR SERVICE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER DATA, ZEPH MATERIALS, OR OTHER CONTENT YOU FIND ON OUR SERVICE ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY USER DATA PROCESSED THROUGH OUR SERVICE.

  3. Feedback. We welcome your comments, feedback, information, or materials regarding our Service or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.

  4. Links; Third Party Materials. Our Service may include links to other websites or resources on the Internet, or utilize our Service or content of other third parties (collectively, “Third-Party Materials”). Because we have no control over Third Party Materials or the administration of Third-Party Materials by the third parties that provide them, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third-Party Materials available on or through any such website or resource. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third-party websites and Third-Party Materials.

  5. Ownership of Intellectual Property. Zeph or its licensors exclusively own all right, title and interest in and to our Service, the Zeph Materials, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “Zeph IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Zeph IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Zeph IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Zeph’s right, title and interest in the Zeph IP. Zeph is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Zeph IP. The sole exception of the foregoing reservation of rights are the limited rights granted to you to use our Service, and which shall automatically terminate upon expiration or termination of these Terms. Any unauthorized use of any Zeph IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties. 

4. ACCOUNTS

  1. Eligibility. YOU MUST BE AT LEAST AGE EIGHTEEN (18) TO USE OUR SERVICE. BY ACCESSING, USING AND/OR SUBMITTING INFORMATION TO OR THROUGH OUR SERVICE, YOU REPRESENT THAT YOU ARE NOT YOUNGER THAN AGE 18. 

  2. Registration. Access to our Service requires you to be registered with us via a Zeph-generated registration process. This form will require you to provide certain requested information (which may include personal information) that may also constitute User Data hereunder. At such time, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your account. 

  3. Unauthorized Use and Information Changes. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

  4. Storing Credentials. Our Service may allow you to store your login credentials in your web browser or in our mobile app or on your Mobile Device so that you can be automatically logged in each time you access our Service. If someone else has access to your computer, web browser or mobile device, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Zeph or our Service resulting from unauthorized access to our Service from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.

  5. Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Service on your mobile device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Service, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third-party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

5. FEES; AUTHORIZATION FOR ASSIGNMENT OF BENEFITS

  1. Our Service is provided to you at no cost.  However, providers with whom you have a patient-physician relationship and who have retained us to provide the Service to you may bill your insurance carrier for our Service and you shall be responsible for any associated cost-share, deductible, co-pay and/or co-insurance, as set forth in Section 5.2 hereof. 

  2. As such, if you are entitled to benefits under any insurance policy or other health benefit plan (“Health Plan”), in consideration of your receipt or use of the Service, you irrevocably assign, transfer and convey all rights and benefits payable under the Health Plan for services rendered by Zeph, including the Service.  You agree to cooperate with any efforts by Zeph to secure reimbursement for the Service. Further, you designate Zeph as your authorized representative.  By this assignment and designation, you authorize payment to be made directly to Zeph and/or your provider.    If your Health Plan sends to you payments for the Service, you are to immediately send those payments to your provider. If you fail to do so, you will be responsible for those amounts, in full, as well as any associated cost-share, deductible, co-pay and/or co-insurance.  In the event you overpay for the Service, you authorize Zeph to work with your provider to apply such overpayment to satisfy any outstanding charges you owe for the Service.  This authorization does not include Health Plan payments made on your behalf. You further authorize and irrevocably assign to Zeph the following rights:

    1. ​To communicate with your Health Plan, to request any adjustment to your Health Plan’s reimbursement for the Service provided, and to file any and all necessary claims, demands or appeals with your Health Plan arising from a denied, underpaid or misclassified claim;

    2. To demand and receive the production of, or access to, any documents and information, including, without limitation, any copies of Health Plan documents, coverage policies, guidelines and any other materials affecting the coverage and reimbursement of any Service provided to you, from any entity or person to the fullest extent of your rights to do so under applicable law;

    3. To bring legal action, if needed, in any forum against your Health Plan under applicable laws, including, without limitation, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and/or the Federal Employee Health Benefit Act, as amended;

    4. To recover benefits under the terms of your Health Plan, to enforce your rights under the terms of your Health Plan, or to clarify your rights to future benefits under the terms of your Health Plan;

    5. To enjoin any act or practice which violates any provision of ERISA or the terms of your Health Plan, or to obtain other appropriate equitable relief to redress such violations or to enforce any provisions of ERISA or the terms of your Health Plan; and 

    6. To recover the costs of pursuing such action, including, reasonable attorney fees, as permitted.​

​The foregoing designation and assignment of benefits and rights are without limitation and without reservation of any part or aspect thereof.

6. REPRESENTATIONS

  1. Representations. You hereby represent and warrant that: (1) you (a) are at least the age of 18; and (b) have the power and authority to enter into and perform your obligations under these Terms; (2) all information provided by you to us is truthful, accurate and complete; (3) you will comply with the terms and conditions of these Terms and any other agreement to which you are subject that is related to your use of our Service, your Feedback, or any part thereof; (4) if applicable, you have provided and will maintain accurate and complete information with us, including, without limitation, your legal name, email address, and any other information we may reasonably require; (5) your access to and use of our Service or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (6) you will immediately notify us in the event that you learn or suspect that the contact information you provided to us has been disclosed or otherwise made known to any other person; (7) you will not use our Service in order to gain competitive intelligence about us, our Service, or any product or service offered via our Service or to otherwise compete with us; (8) your User Data does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and constitutes an original work of authorship by you, and (9) (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

  2. Feedback Representations. In the event you provide any Feedback via our Service, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to these Terms; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.

7. DISCLAIMERS OF WARRANTY

  1. SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT OUR SERVICE (INCLUDING THE ZEPH MATERIALS) WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON OUR SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR SERVICE WILL BE CORRECTED, THAT OUR SERVICE AND ANY CONTENT OR INFORMATION FOUND ON OUR SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS. ZEPH BREATH WILL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA.  

  2. CONTENT. ANY CONTENT OR OTHER MATERIALS, INCLUDING THIRD PARTY CONTENT OR MATERIALS, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

  3. “BETA” FEATURES. IF YOU HAVE BEEN DESIGNATED AS A BETA TESTER FOR OUR SERVICE, THE FOLLOWING APPLIES TO YOU: FROM TIME TO TIME, ZEPH BREATH MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION AND WITHOUT LIABILITY TO YOU.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

  4. NO MEDICAL ADVICE. ZEPH BREATH IS NOT A PROVIDER OF MEDICAL TREATMENT, AND THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR NURSING ADVICE, DIAGNOSIS, OR TREATMENT.  BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT: (A) THE SERVICE DOES NOT CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE, DIAGNOSES, OR OPINIONS; AND (B) THE SERVICE IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR NURSING ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL OR OTHER HEALTH CONDITION.

8. INDEMNITY; LIMITATION OF LIABILITY

  1. Indemnity. You agree to defend, indemnify, and hold harmless Zeph, our affiliates, and all of their officers, members, managers, employees, Service providers, Licensors, and agents (collectively, “Released Parties”) from and against any and all first-party and third-party claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with: (a) your use of our Service, (b) your violation of these Terms, (c) any User Data you provide through our Service, (d) your violation of any law or the rights of any third party, and (e) your negligence or willful misconduct. 

  2. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THESE TERMS OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, PERSONAL INJURY, DEATH, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH OUR SERVICE, OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO FIFTY DOLLARS ($50.00 USD).

  3. For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST RELEASED PARTIES.

9. DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS

  1. Governing Law. These Terms will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of New York without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in the State of New York, County of New York, and you hereby consent to the exclusive jurisdiction and venue of the state or Federal courts in State of New York, County of New York. You irrevocably submit and consent to the personal jurisdiction of such courts.

  2. Dispute Resolution. You and Zeph agree that any and all disputes, claims or controversies arising out of or relating to your use of or access to our Service or Zeph Materials, these Terms or the breach, termination, enforcement, interpretation, or validity of these Terms, including the determination of the scope or applicability of these Terms to arbitration (each, a “Dispute”), except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST ZEPH BREATH. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

  3. Informal Resolution. To the extent feasible, the parties desire to resolve any disputes regarding these Terms or the Services through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). To provide this opportunity to resolve any Dispute, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Zeph should be sent by mail to Zeph, hello@zephbreath.com. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. If we are not able to resolve any Dispute ourselves, you and Zeph agree to resolve such Dispute through confidential binding arbitration as set forth below.  

  4. Binding Arbitration. If you and Zeph are unable to resolve a Dispute through informal negotiations or in small claims court (as set forth below), either you or Zeph may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, and determined by a court rather than an arbitrator. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. While an arbitrator may award declaratory or injunctive relief, the arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.  The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms you and Zeph may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

  5. Confidentiality of Proceedings. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law.

  6. Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court, rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.

  7. Opt-Out.  You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 9.7 by emailing us at preferences@zephbreath.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing that only a court may be used to resolve any Dispute. Opting out will not affect any other aspect of these Terms, or the Service, and will have no effect on any other or future agreements you may reach to arbitrate with us.

  8. Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the California State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. 

10. MISCELLANEOUS

  1. Term. These Terms are effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate these Terms at any time by immediately discontinuing all access to our Service. Termination or cancellation of these Terms will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate these Terms at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to our Service or any part thereof. 

  2. Independent Contractors. You understand and expressly agree that you and Zeph are independent contractors and not agents or employees of the other party. Neither you nor Zeph has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. 

  3. Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of these Terms and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with these Terms and in performing our obligations and exercising our rights under these Terms. Neither you nor Zeph will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.

  4. Equitable Relief. You agree that breach of the provisions of these Terms would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of these Terms by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of these Terms. 

  5. Entire Agreement. These Terms and any hyperlinked policies and procedures constitute the entire agreement between you and Zeph with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update these Terms from time to time, and will post the updated Agreement to our Service. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THESE TERMS, ANY CHANGES TO THESE TERMS WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to these Terms will not apply retroactively to events that occurred prior to such changes. Your continued use of our Service will constitute your agreement to any new provisions within the revised Agreement.

  6. Waiver; Severability. Our failure to enforce any provision of these Terms will not be deemed to be a waiver of our right to enforce them. If any term or provision of these Terms will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of these Terms will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of these Terms. 

  7. Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under these Terms, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of these Terms. We may assign these Terms or delegate or subcontract our obligations under these Terms at any time.

  8. Survival. The provisions of these Terms that by their content are intended to survive the expiration or termination of these Terms, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of these Terms, will survive the expiration or termination of these Terms for their full statutory period.

  9. Contact Us. Submit your question through our support services at info@zephbreath.com.

bottom of page