DailyBreath End User License Agreement
By clicking the “accept” or “ok” button, or installing and/or using the DailyBreath, LLC mobile software application (the “ App“), you expressly acknowledge and agree that you are entering into a legal agreement with DailyBreath, LLC (“DailyBreath“, “ we“, “ us” or “ our“) and have understood and agreed to comply with, and be legally bound by, the terms and conditions of this DailyBreath App End User License Agreement (“ Agreement“). You hereby waive any applicable rights to require an original (non- electronic) signature or delivery or retention of non- electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement, please do not download, install or use the App.
Ability to Accept. By installing the App you affirm that you are over thirteen (13) years of age. If you are between the age of thirteen (13) and eighteen (18) years then, prior to installing the App, you must first review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand its terms and conditions and agree to them.
License. Subject to the terms and conditions of this Agreement, we hereby grant you a personal, revocable, non-exclusive, non-sublicensable, non- assignable, non-transferable license (“License”) to: (i) download, install and use the App on a mobile telephone, tablet or device (each a “Device”) that you own or control; and (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below). The App is not able to provide “indoor” air quality, specifically in industrial areas, labs, research facilities, construction sites and factory courtyards. In this case, we can add a clause warning that the content provided by the App is not intended to apply to such areas.
License Restrictions. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, duplicate, publish, sell, lease, lend or rent the App and/or its Content; (ii) make the App and/or its Content, commercially or otherwise, available over a network where it could be used by multiple devices owned or operated by different people at the same time; (iii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the App; (iv) copy (except for back-up purposes), modify, improve, or create derivative works of the App or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the App or features that prevent or restrict use or copying of any content or that enforce limitations on use of the App; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the App; (vii) use the DailyBreath name, logo or trademarks without our prior written consent; and/or (viii) use the App to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
Account. In order to use some of the App features, you may have to create or use an account (an “Account”). If you create an Account, you must provide accurate and complete information for yourself. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify us immediately of any unauthorized use of your Account. Usage Rules. If you are downloading the App from a third party mobile device platform or service provider (“ Distributor“), please be aware that the Distributor may have established usage rules which also govern your use of the App (“ Usage Rules“). You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
Location Data. Certain features or functionality (“Features“) of the App may collect or be dependent on data related to your geographic location (“ Location Data“). If you wish to use these Features, you acknowledge that DailyBreath may collect information about the physical location of your Device and agree to provide or to make your Location Data accessible to us. To the extent that we do collect Location Data, we shall use it in accordance with our Privacy Policy available at http://www.dailybreathforecast.com/privacypolicy. If you do not provide or make such Location Data accessible, then the Features may be limited or not operate.
Use of the App in a Vehicle. If you are using the App in a vehicle, you agree: (i) to comply with all applicable traffic laws; and (ii) if you are the driver, not to use the app unless your vehicle is stationary and legally parked.
Intellectual Property Rights.
Ownership. The App is licensed and not sold to you under this Agreement and you acknowledge that DailyBreath and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the App (and its related software). We reserve all rights not expressly granted herein to the App. “ Intellectual Property Rights” means any and all rights in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
Content. The content on the App, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (the “ Materials“), and the User Submissions (defined below), and the trademarks, service marks and logos contained therein (“ Marks“, and together with the Materials and User Submissions, the “ Content“), is the property of DailyBreath and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “DailyBreath” and the DailyBreath logo are Marks of DailyBreath, LLC and/or its affiliates. All other Marks used on the App are the trademarks, service marks, or logos of their respective owners.
Use of Content. The content on the App is provided to you “AS IS” for your personal use only and may not be used, copied, distributed, transmitted, broadcasted, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purpose whatsoever without our prior written consent. If you download or print a copy of the content, you must retain all copyright and other proprietary notices contained therein.
Third Party Open Source Software. Portions of the App may include third party open source software that are subject to third party terms and conditions (“Third Party Terms”). A list of any third-party open source software and related Third Party Terms is available at https://www.dailybreathforecast.com. If there is a conflict between any Third-Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software.
User Submissions.
The App may permit the sharing of content by you and other users, including but not limited to information, opinions, recommendations, inventions and/or feedback that you may provide DailyBreath in connection with the App and/or your experience while using the App (“ User Submissions“). Your User Submissions may be posted to the App, or otherwise made publicly available. You understand that, whether or not such User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your User Submissions and the consequences of sharing them. We have complete discretion whether to publish your User Submissions and we reserve the right without further notice to you, to monitor, censor, edit, remove, delete, and/or remove any and all User Submissions at any time and for any reason.
License to User Submissions. Subject to this Agreement and the terms of our Privacy Policy, by submitting User Submissions, you hereby grant us a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions only in connection with the App, including without limitation to redistribute part or all of your User Submissions (and derivative works thereof), and you hereby waive any moral rights in your User Submissions, to the extent permitted by law. You also hereby grant each App user and Third-Party Source (defined below) a non-exclusive right to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions in accordance with this Agreement.
Third Party Sources and Content.
The Site enables you to view, access, link to, and use content and/or information based on raw data, including observational data, gathered by third party sources (“Third Party Sources“), not owned or controlled by us (“ Third Party Content”). Such Third Party Content is subject to third party terms and conditions (“Third Party Terms“) and provided without DailyBreath or any other professional person monitoring, examining, validating or altering in any way such information, and without any verification whether such information is true, complete or accurate.
A list of the Third Party Sources and their related Third Party Terms is available at Data Sources Attribution. If there is a conflict between any Third Party Terms and the terms of this End User License Agreement, then the Third Party Terms shall prevail but solely in connection with the related Third Party Sources.
For the avoidance of doubt, all such Third Party Sources are and shall continue to be the owners of all such Third Party Content.
We are not affiliated with and have no control over any Third Party Sources. We do not assume any responsibility for the content, terms of use, privacy policies, actions or practices of, any Third Party Sources. Please read the terms of use and privacy policy of any Third Party Source that you interact with before you engage in any such activity.
We are not responsible for, and we expressly disclaim all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights (defined below) of, or relating to, any Third Party Content.
We do not endorse any advertising, promotions, campaigns, products, services or other materials that are included in any Third Party Content or communicated to you from a Third Party Source.
By using the App, you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. You always have the choice of deciding whether or not to interact with a Third Party Source or to view and use Third Party Content. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk.
You are solely responsible and liable for your interaction with Third Party Sources. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against DailyBreath, and release DailyBreath from any and all liability, arising from your use of and interaction with any Third Party Content and/or Third Party Source. If you have any query or complaint regarding a Third Party Source or Third Party Content, you agree to contact the Third Party Source directly.
Payments
The License granted hereunder is currently for free, however, we may in the future charge a fee for certain features and/or uses or in-app purchases. You will not be charged for any such uses of the App unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the App.
Please be aware that your use of the App may require and utilize Internet connection or data access. To the extent that third party service provider or carrier charges for your Internet or data usage are applicable, you agree to be solely responsible for those charges.
Information Description. We attempt to be as accurate as possible and provide you with real-time weather, air quality, and pollen information. However, please be aware that since such Third Party Content provided and displayed within the App is received from Third Party Sources, such information may appear in a delay and/or may be partial or inaccurate, and therefore we cannot and do not warrant that the content available on the App is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the content, or any part thereof, without the requirement of giving you any notice prior to or after making such changes to the content.
Privacy. We will use any personal information that we may collect or obtain in connection with the App in accordance with our privacy policy which is available at this link (“http://www.dailybreathforecast.com/privacypolicy“), and you agree that we may do so. Please also be aware that certain personal information and other information provided by you in connection with your use of the App may be stored on your Device (even if we do not collect that information). You are solely responsible for maintaining the security of your Device from unauthorized access.
Warranty Disclaimers.
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
WE DO NOT WARRANT THAT THE APP WILL OPERATE ERROR-FREE, THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE APP. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
14.3. THE CONTENT PROVIDED AND DISPLAYED WITHIN THE APP IS NOT INTENDED TO BE, AND SHALL NOT BE CONSIDERED BY YOU TO BE, A SUBSTITUTE FOR THE TESTING OR REPORTING OF THE CONCENTRATION OF POLLUTION ELEMENTS BY THE APPLICABLE INSTITUTION(S) OR SERVICE PROVIDER(S) AUTHORIZED TO DO SO UNDER APPLICABLE LAWS AND REGULATIONS. THE APP AND ITS CONTENT SHALL NOT CONSTITUTE ANY FORM OF CONSULTATION, OPINION, DIAGNOSIS, AND/OR RECOMMENDATION OF ANY KIND, AND SHALL NOT BE RELIED UPON, FOR ANY PURPOSE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO, FOR THE PURPOSE OF MAKING DECISIONS CONCERNING YOUR OR ANY OTHER PERSON’S HEALTH, FORMULATING OR SUPPORTING REGULATIONS, ASCERTAINING TRENDS, ACTING AS GUIDANCE, OR SUPPORTING ANY OTHER GOVERNMENTAL OR PUBLIC DECISION-MAKING. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE CONTENT PROVIDED BY THE APP IS BASED ON RAW DATA, INCLUDING OBSERVATIONAL DATA, WHICH ARE NOT FULLY VERIFIED OR VALIDATED, ARE SUBJECT TO CHANGE, SHOULD BE CONSIDERED PRELIMINARY, AND ARE PROVIDED SOLELY FOR THE PURPOSE OF REPORTING AND FORECASTING THE AIR QUALITY INDEX (AQI). ANY AND ALL OFFICIAL REGULATORY AIR QUALITY DATA MUST BE OBTAINED FROM THE EPA’S AIR QUALITY SYSTEM (AQS).
IF YOU HAVE A DISPUTE WITH ANY OTHER APP USER, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL DAILYBREATH BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE APP EVEN IF DAILYBREATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, DAILYBREATH’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE APP, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY YOU TO DAILYBREATH FOR USING THE APP WITHIN THE THREE (3) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
Indemnity. You agree to defend, indemnify and hold harmless DailyBreath and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the App; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right.
Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the App nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
Updates and Upgrades. We may from time to time and at our sole discretion provide updates or upgrades to the App, and/or its structure and/or its design, as well as its scope and/or availability (each a “Revision”), but are not under any obligation to do so. Such Revisions will be supplied according to our then- current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original App, unless the Revision is accompanied by a separate license agreement which will govern the Revision. We reserve the right to limit or cease the service at any given time, in whole or part, for a limited or unlimited period of time, all at our sole discretion, including without limitation, in order to perform construction maintenance and/or setup activates with regard to the services and/or any of its systems.
Term and Termination.
This Agreement is effective until terminated by us or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the App; and/or
(ii) terminate this Agreement and your use of the App with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the App in any way, your only recourse is to immediately discontinue use of the App.
Upon termination of this Agreement, you shall cease all use of the App. This Section 19 and Sections 8 (Intellectual Property Rights), 13 (Privacy), 14 (Warranty Disclaimers), 15 (Limitation of Liability), 16 (Indemnity), and 20 (Assignment) to 23 (General) shall survive termination of this Agreement.
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by DailyBreath without restriction or notification.
Modification. We reserve the right to modify this Agreement at any time by sending you an in-App notification and/or publishing the revised Agreement on the App. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the App thereafter means that you accept those changes.
Governing Law and Disputes. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, U.S.A., without regard to its conflict of laws rules. You agree to submit to the personal and exclusive jurisdiction of the courts located in the Commonwealth of Virginia, U.S.A. and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction.
General. This Agreement, and any other legal notices published by us in connection with the App, shall constitute the entire agreement between you and DailyBreath concerning the App. In the event of a conflict between this Agreement and any such legal notices, the terms of the applicable notice shall prevail with respect to the subject matter of such notice. No amendment to this Agreement will be binding unless in writing and signed by DailyBreath. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.