Mobile App Terms of Use
THESE MOBILE APP TERMS INCLUDE A JURY AND CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE WITH A JUDGE AND ON AN INDIVIDUAL BASIS AND NOT AS PART OF A CLASS ACTION. MORE INFORMATION ABOUT THE JURY AND CLASS ACTION WAIVER CAN BE FOUND IN THE “JURY TRIAL AND CLASS ACTION WAIVER” SECTION OF THESE MOBILE APP TERMS.
Overview
This Mobile App Terms of Use (“Mobile App Terms”) is a binding agreement between Lydian Dental Lamar PLLC (doing business as Breeze Oral Care), (“Breeze,” “We,” “Us,” or “Our”) and the Person downloading, accessing, or using our Mobile App (“you” or “your”). “Mobile App” means the application software including all related documentation that we developed, and which is installed on your smartphone or portable device (the “Device”) for access to and use of the Services. As used in these Mobile App Terms, “Services” means the services available or accessible through the Mobile App.
These Mobile App Terms are effective on the date you download or install the Mobile App, set up your account, or access or use our Services (“Effective Date”). By downloading and installing the Mobile App, setting up your account, and accessing and using the Services, you: (a) acknowledge that you have read and understand these Mobile App Terms; (b) represent that you are of legal age to enter into a binding agreement or otherwise are permitted to enter into these Mobile App Terms; (c) you are authorized to accept the terms of these Mobile App Terms and to download, install, access, and use the Services; and (d) you accept these Mobile App Terms and agree that you are legally bound by its terms.
If you do not agree to the terms set forth in these Mobile App Terms, do not download, install, or use the Mobile App or Services, and remove the Mobile App from your Device.
License Grant
Subject to the terms of these Mobile App Terms, we grant you a limited, non-exclusive, and nontransferable license to:
a. download, install, and use the Mobile App for your personal, non-commercial use on your Device or Device otherwise controlled by you strictly in accordance with these terms and any other applicable terms and restrictions provided or made available to you by us; and
b. access, stream, download, and use on such Device the Services made available in or otherwise accessible through the Mobile App, all strictly in accordance with these Mobile App Terms and any terms and conditions associated with such Services.
Restrictions
The Mobile App and Services are provided for your personal, noncommercial use only. You acknowledge that we reserve the right to discontinue the Mobile App and Services, in whole or in part, at any time. When using the Mobile App or Services, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law. Except as expressly permitted in these Mobile App Terms, by applicable law (notwithstanding the limitations below), or as we may expressly otherwise permit, you shall not:
a. copy the Mobile App or Services;
b. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile App or Services;
c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile App or Services, or any part thereof;
d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile App or Services, including any copy thereof;
e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile App or Services, or any features or functionality of the Mobile App or Services, to any third party for any reason; or
f. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Mobile App or Services;
g. use the Mobile App or Services for any unlawful purpose, or in violation of any third-party rights; or
h. encourage or enable any other Person to do any of the above.
Any attempt to do any of the above by you, or someone to whom you have given access to your Device, is a violation by you of the responsibilities you assumed under these Mobile App Terms and is a material breach of these Mobile App Terms, and we may terminate your use of the Services and may seek any other recourse for damages or otherwise.
Reservation of Rights
You acknowledge and agree that the Mobile App is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile App under these Mobile App Terms, or any other rights thereto other than to use the Mobile App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Mobile App Terms. We reserve and shall retain their entire right, title, and interest in and to the Mobile App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Mobile App Terms.
Availability
The availability and use of our Mobile App and Services is subject to a compatible Device and your Device within the range of the wireless network (“Wireless Network”) of the wireless carrier that supports the Device. Further, the Mobile App and/or Services are intended to operate only within the continental United States. We do not guarantee that the Mobile App or Services, or any portion thereof will be available at all times or in all areas. You acknowledge and agree that we are not responsible for performance degradation, interruption, or delays, whether caused by a Device, Wireless Network, or otherwise. You acknowledge that we are not liable to you if the Mobile App or Services are not available or accessible in a given location.
Updates
We may from time to time in its sole discretion, unless required by applicable law, develop and provide Mobile App or Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. When your Device is connected to the internet and depending on your Device settings: (a) the Mobile App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Mobile App or Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile App and/or Service and be subject to all terms and conditions of these Mobile App Terms.
Mobile App Stores
You acknowledge and agree that the availability of the Mobile App and/or Services available on the Mobile App is dependent on the third party from whom you downloaded the Mobile App – e.g., the Apple iTunes, Google Play, or such other application store compatible with your Device (each, an “App Store”). You further acknowledge and agree that:
a. these Mobile App Terms are between you and us and not with the App Store;
b. your non-transferable license to use the Mobile App is limited to Device(s) that you own or control, except that such Mobile App may be accessed and used by other accounts associated with the purchaser via an App Store provider’s sharing plan;
c. the App Store is not responsible for: (i) the Mobile App or Service; (ii) any maintenance, support services; or (iii) addressing any claims relating to Mobile App or Services (e.g., product liability, legal compliance, or intellectual property infringement);
d. we have disclaimed all warranties with respect to the Mobile App in the “Disclaimers of Warranties” Section of these Mobile App Terms below;
e. you and we acknowledge that the App Store shall have no responsibility for addressing any claims by you or any third party relating to the Mobile App or Services or your possession and/or use of the Mobile App or Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App or Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation;
f. if a third party claims that the Mobile App or Services, or your possession and use of the Mobile App or Services, infringes a third party’s intellectual property rights, the App Store is not responsible for the investigation defense, settlement, or discharge of any such intellectual property infringement claim;
g. you will pay the fees (if any) charged by the App Store in connection with the Mobile App;
h. you are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and that you are not listed on any United States government list of prohibited or restricted parties;
i. you will comply with, and that your license to use the Mobile App is conditioned upon your compliance with, all applicable App Store terms and conditions and any other third-party terms applicable to the Mobile App or Services; and
j. the App Store (and its subsidiaries) are intended third-party beneficiaries of all terms in these Mobile App Terms applicable to the App Store (including any restrictions on the use of the Mobile App or Services that, if violated, materially impact the rights of an App Store) and have the right to enforce them directly against you. For Apple-branded Devices, the following additional provisions apply. To the extent any terms of these Mobile App Terms regarding usage of the Mobile App are in conflict with terms and conditions of the Apple Media Services Terms and Conditions as of its effective date, the Apple Media Service Terms and Conditions apply with respect to the subject matter in conflict. In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Mobile App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App.
Third-Party Content
The Services may require access to another Person’s products or services or provide links to websites or resources outside our Mobile App or Services, (collectively and individually the “Third-Party Materials”). “Person” means an individual, corporation, partnership, limited liability company, association, trust, joint venture, organization, including a government organization, governmental subdivision or agency, institution, or any other legal entity. We do not control, nor endorse, warrant, guarantee or assume responsibility for, and will not be liable for the services or products offered by any of these third parties nor for the content or quality of linked websites or the Third-Party Materials provided therefrom. We are not responsible for the operation nor proper functionality, nor examining or evaluating of such Third-Party Materials, including their accuracy, completeness, timeliness, validity, compliance, legality, decency, quality, or any other aspect thereof. Third-Party Materials and links thereto are provided solely as a convenience to you, and your access and use of the Third-Party Materials is entirely at your own risk and subject to such third parties’ terms and conditions. You will not use the Third-Party Materials in any manner that is inconsistent with the terms of these Mobile App Terms or that infringes our intellectual property rights or intellectual property rights of any other Person. You agree to not use the Third-Party Materials to harass, abuse, stalk, threaten or defame any Person, and that we are not responsible for any such use. If you decide to use any Third-Party Materials, you are solely responsible to ensure you do so in compliance with such third parties’ terms and conditions and any applicable laws.
Term and Termination
a. The term of these Mobile App Terms commences on the Effective Date and will continue in effect until terminated by you or we as set forth in this section.
b. You may terminate these Mobile App Terms by deleting the Mobile App and all copies thereof from your Device.
c. We may terminate these Mobile App Terms at any time without notice if it ceases to support the Mobile App, which we may do in its sole discretion. In addition, these Mobile App Terms will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Mobile App Terms.
d. Upon termination for whatever reason: (i) all rights granted to you under these Mobile App Terms will also terminate; and (ii) you must cease all use of the Mobile App and delete all copies of the Mobile App from your Device.
e. Termination will not limit any of our rights or remedies at law or in equity.
Intellectual Property
As between you and us, the Mobile App, including, without limitation, any and all documentation, images, video, content, trademarks, service marks, trade dress, logos, or other branding, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and Updates thereto, as well as all IP Rights associated with any of the foregoing (collectively, “Our IP”) are owned by us and/or its third-party sponsors, partners, and suppliers. As used in this section “IP Rights” means all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including all rights, titles, and interests arising under United States or foreign common or statutory law in and to all: (a) patents and all filed, pending, or potential applications for patents throughout the world now or hereafter filed; (b) trade secret rights, know-how, technical information, rights in databases, and equivalent rights; (c) copyrights and applications therefor, moral rights, authors’ rights, whether or not protected by copyright or as a mask work; and (d) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, symbols, domain names, logos, and/or brand names and all goodwill associated therewith. You have no right or license in or to Our IP other than the right to use the Mobile App, in compliance with these Mobile App Terms. You may not use, imitate, or copy, in whole or in part, any of our trademarks, service marks, trade dresses, logos, or other branding without, in each instance, our prior written consent, which may be given or withheld in our sole discretion. All permitted use of the foregoing will inure to our benefit.
Data Processing
You acknowledge that when you download, install, or use the Mobile App, we may use automatic means (including, for example, cookies and web beacons) to collect data about your Device and about your use of the Mobile App. You also may be required to provide certain data about yourself to us as a condition to downloading, installing, or using the Mobile App or Services. In addition, the Mobile App or Services may provide you with opportunity to share data about yourself with other Persons. All data we collect through or in connection with the Mobile App or Services is subject to and governed by the terms of our Privacy Notice located at https://breezeoralcare.com/mobile-app-privacy-notice/ (“Privacy Notice”). By downloading, installing, using, and providing data to or through this Mobile App or the Services, you consent to all actions taken by us with respect to your data in compliance with the Privacy Notice.
Disclaimers of Warranties
YOU EXPRESSLY AGREE THAT THE USE OF THE MOBILE APP AND SERVICES IS AT YOUR SOLE RISK. THE MOBILE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, WE, AND OUR SERVICE PROVIDERS, ALL APPLICABLE LICENSORS, APP STORES, AND ANY APPLICABLE SUPPLIERS (COLLECTIVELY, THE “ADDITIONAL ENTITIES”) DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (A) WARRANTIES THAT THE MOBILE APP OR SERVICES WILL MEET YOUR REQUIREMENTS; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE MOBILE APP OR SERVICES; (C) WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED OR ACCESSED THROUGH THE MOBILE APP OR SERVICES; (E) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MOBILE APP OR SERVICES; (F) WARRANTIES THAT YOUR USE OF THE MOBILE APP OR SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (G) WARRANTIES THAT ERRORS IN THE MOBILE APP OR SERVICES WILL BE CORRECTED.
Limitation of Liability
You acknowledge that you are responsible for any actions you take while on the Mobile App or in connection with our Services. You recognize that your use of the Mobile App or Services and any subsequent actions arising from your use of the Mobile App or Services are taken solely at your own risk.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, YOU AGREE THAT THE TOTAL AGGREGATE LIABILITY OF BREEZE AND THE ADDITIONAL ENTITIES TO YOU OR ANY THIRD PERSON, AND THAT YOUR OR ANY THIRD PERSON’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICES OR MOBILE APP PROVIDED UNDER THE MOBILE APP AND/OR FOR ANY BREACH OF THESE MOBILE APP TERMS, IS SOLELY LIMITED TO THE AMOUNT OF ONE HUNDRED DOLLARS ($100). EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, NEITHER BREEZE NOR ANY OF THE ADDITIONAL ENTITIES SHALL BE LIABLE FOR ANY LOSS OF USE OR LOSS OF DATA, OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, BREEZE’S AND EACH OF THE ADDITIONAL ENTITIES’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.
Waiver of Claims
FOR YOURSELF AND ANYONE ELSE CLAIMING UNDER YOU OR ON YOUR BEHALF, YOU AGREE TO RELEASE AND DISCHARGE BREEZE, EACH OF THE ADDITIONAL ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES (“DISCLAIMED PARTIES”) FROM ALL CLAIMS, LIABILITIES, AND LOSSES IN CONNECTION WITH THE MOBILE APP OR SERVICES, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR BODILY INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE MOBILE APP OR SERVICES, EVEN IF CAUSED BY OR BASED UPON THE DISCLAIMED PARTIES’ NEGLIGENCE, GROSS NEGLIGENCE, STRICT PRODUCTS LIABILITY, DECEPTIVE TRADE PRACTICES ACT VIOLATIONS, BAD FAITH, BREACH OF WARRANTY, OR THE MALFUNCTION OF THE MOBILE APP OR SERVICES. YOU HEREBY RELEASE AND DISCHARGE THE DISCLAIMED PARTIES FROM AND AGAINST ANY CLAIMS, DAMAGES, EXPENSES, AND LIABILITY ARISING FROM OR RELATED TO ANY INJURIES, DAMAGES, OR LOSSES TO ANY PERSON (INCLUDING DEATH) OR PROPERTY OF ANY KIND RESULTING IN WHOLE OR PART, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE MOBILE APP OR SERVICES.
Indemnification
YOU WILL INDEMNIFY, DEFEND, AND HOLD US AND THE ADDITIONAL ENTITIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, WHICH WE AND/OR THE ADDITIONAL ENTITIES ARE REQUIRED TO PAY OR INCUR, ARISING OUT OF OR RELATED TO YOUR USE OF THE MOBILE APP AND/OR SERVICES, OR ANY OF YOUR ACTS OR OMISSIONS (WHETHER NEGLIGENT, RECKLESS, OR WILFUL).
Export Controls
You shall not, directly or indirectly, export, re-export, or release the Mobile App or Services to, or make the Mobile App or Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Mobile App or Services available outside the United States.
Governing Law and Venue
These Mobile App Terms shall be governed by the laws of the state of Delaware, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the state of Delaware, and the applicable federal laws of the United States of America. All disputes arising under, or in any way connected with membership in or use of the Services, shall be litigated exclusively in the state and federal courts residing in the state of Delaware, and in no other court or jurisdiction. You hereby irrevocably and voluntarily submit to the jurisdiction of the state and federal courts sitting in the state of Delaware. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to these Mobile App Terms.
Jury Trial and Class Action Waiver
YOU AND BREEZE EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
Severability
If any term or provision of these Mobile App Terms shall, in part or in whole, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity or unenforceability and the remainder of these Mobile App Terms shall not be affected thereby, so that the remainder of that provision and all remaining provisions of these Mobile App Terms shall be valid and enforceable to the fullest extent permitted by applicable law.
Survival
Provisions of these Mobile App Terms, which by their nature should apply beyond their term, will remain in force after any termination or expiration of these Mobile App Terms including, but not limited to, the following Sections: 3, 6, 7, 8(e), 9, 11-16, 19, 20, and 22.
No Third-Party Beneficiaries
These Mobile App Terms are for the sole benefit of us and you, and our respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
Assignment
You may not assign these Mobile App Terms nor assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Mobile App Terms or any rights hereunder without your consent and without notice.
Waiver
Our failure to enforce any of the terms and conditions under these Mobile App Terms or to insist upon strict compliance with any of your obligations hereunder shall not mean we have waived our rights to demand full and exact compliance with the terms of these Mobile App Terms. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The section headings used herein are for convenience only and shall not be given any legal import.
Changes to These Mobile App Terms
You agree that we may make changes to these Mobile App Terms from time-to-time. If we consider the changes to be material, you will be notified of such changes through the Mobile App or Services or by posting a notice or new version of these Mobile App Terms to the website or in such other manner as we reasonably deem to be likely to reach you. Your continued use of the Mobile App or Services following the posting of the updated Mobile App Terms or notice of the changes constitutes your acceptance of the updated Mobile App Terms or such changes. If you do not agree with the changes or the updated Mobile App Terms, your choice is to stop using the Mobile App and Services.
Contact Us
Any comments, questions, or concerns about these Mobile App Terms, Mobile App or Services may be directed to the contact information provided below.
Physical Address
1601 S Lamar Blvd, Suite A Austin, TX 78704
Email
hello@breezeoralcare.com
Phone Number
+1-512-828-6471
