LAST UPDATED: May 20, 2016
Prior to using the Daily Burn Service, it is important for you to know and understand that by visiting the Site and/or using the Service, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the Daily Burn Service is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Service or your use of the Service.
By using the Service, you consent to receiving this Agreement in electronic form. To withdraw this consent, you must cease using the Service and terminate your account.
Please contact us with any questions regarding this Agreement.
HEALTH WARNING AND LIABILITY DISCLAIMER:
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING.
NOTHING STATED OR POSTED ON THE DAILY BURN SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE.
YOUR USE OF THE DAILY BURN SERVICE IS AT YOUR OWN RISK.
PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER IN SECTION 2 BELOW BEFORE COMMENCING YOUR USE OF THE SERVICE.
DAILY BURN SHALL NOT BE LIABLE FOR ANY LIABILITY, OF ANY KIND, RESULTING FROM THE USE OF THE DAILY BURN SERVICE.
FDA Warning Statement - Daily Burn Supplements
It is important to note that our Daily Burn supplement products, like other supplement products, contain certain statements that have not been evaluated by the food and drug administration. By law, we are required to inform you that THESE STATEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND THAT OUR PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE.
Content of These Terms of Service
1. Who May Use the Daily Burn Service 2. Professional Advice and Medical Disclaimer 3. Your Representations and Warranties as a Member 4. General Disclaimers 5. Limitation of Liability 6. Privacy 7. Membership Provisions 8. Payments 9. Term and Termination; Account Deletion 10. Content Restrictions 11. Code of Conduct and Prohibited Activities 12. Submissions 13. Indemnification 14. License to Use the Daily Burn Service 15. Third Party Links and Content 16. Intellectual Property 17. Copyright / DMCA Policy 18. General Provisions
1. Who May Use the Daily Burn Service
AGE REQUIREMENT: You must be at least 18 years old to use the Daily Burn Service.
NOTICE TO PARENTS AND GUARDIANS: You are responsible for monitoring and supervising your child's use of the Daily Burn Service. If your child is using the Daily Burn Service without your express consent and is under 18, please contact us immediately so that we can disable his or her access. If you have questions about the Daily Burn, please contact us at firstname.lastname@example.org.
2. Professional Advice and Medical Disclaimer.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THIS OR ANY OTHER EXERCISE OR NUTRITION PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY. DO NOT USE THE DAILY BURN SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.
THE DAILY BURN SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE DAILY BURN SITE OR AVAILABLE THROUGH ANY DAILY BURN SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE DAILY BURN SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU ARE IN THE UNITED STATES AND THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
THE DAILY BURN SITE IS CONTINUALLY UNDER DEVELOPMENT AND DAILY BURN MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE DAILY BURN SITE WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
3. Your Representations and Warranties as a Member
In becoming a Member of Daily Burn with the intent of using the Daily Burn Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of DailyBurn.
If applicable, You further affirm that (A) you are not pregnant or (B) your physician has specifically approved your use of DailyBurn.
4. General Disclaimers
Daily Burn provides the Daily Burn Service on an "as is" and "as available" basis. You therefore use the Daily Burn Service at your own risk.
Daily Burn expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Daily Burn makes no representations or warranties:
- That the Daily Burn Service, or any particular fitness program is suitable for you;
- Regarding the adequacy or safety of the Daily Burn Service for any particular user;
- That the Daily Burn Service will meet your personal needs;
- That the Daily Burn Service will be permitted in your jurisdiction;
- That the Daily Burn Service will be uninterrupted or error-free;
- Concerning any content submitted by any member;
- Concerning any third party's use of content that you submit;
- That Daily Burn will continue to support any particular feature of the Daily Burn Service; or
- Concerning sites and resources outside of the Daily Burn Service, even if linked to from the Daily Burn Service.
Daily Burn reserves the right to modify the Daily Burn Service. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Daily Burn Service. Daily Burn has no obligation to screen or monitor any content and does not guarantee that any content made available on the Daily Burn Service complies with this Agreement or is suitable for all users. Daily Burn shall not be responsible for loss or corruption of data, and hereby waives all claims with respect to damage to Your computer system, internet access, download or display device.
To the extent that a secondary party may have access to or view Daily Burn content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement.
To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Daily Burn Service, and no warranties shall apply after such period.
5. Limitation of Liability
To the fullest extent permitted by law: (i) in no event shall Daily Burn, nor its affiliates, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and (ii) Daily Burn's, and its affiliates' total liability to you shall not exceed the amounts paid by you to Daily Burn over the twelve (12) months preceding your claim(s).
IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO OBTAIN OR ACCESS ANY MATERIAL THROUGH THE SERVICE OR SITE.
Daily Burn Coaching Service
The Daily Burn coaching service is intended solely as a general fitness informational means by which Members can communicate with DailyBurn trainer coaches. In selecting our trainer coaches, we endeavor to source only those coaches who can demonstrate a minimum of two (2) years' experience in the fitness field, with valid professional experience at a reputable fitness institution or gym. In the course of providing coaching advice, our coaches may occasionally answer incidental nutritional questions based on their own personal experience. DAILY BURN DOES NOT REPRESENT IN ANY WAY THAT ANY NUTRITIONAL OR FITNESS ADVICE PROVIDED BY A TRAINER COACH CONSTITUTES QUALIFIED EXPERT ADVICE.
Daily Burn takes care to instruct its coaches never, under any circumstance, to provide advice that could be construed as expert advice, and we in no way encourage or endorse such behavior from our coaches.
If you encounter a Daily Burn coach who is providing expert advice in violation of these principles, please contact us immediately at email@example.com. You should always seek expert professional advice in nutritional and health matters, and should not rely on any opinions expressed through the Daily Burn Service as expert opinions or advice.
- What information we may collect about you;
- What we use that information for; and
- When and with whom we share that information.
CONSENT TO EMAIL: When you become a Member, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to the Service, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us or third party partners.
7. Membership Provisions
REGISTRATION: To fully use the Daily Burn Service, you must register as a member by providing a user name, password, valid email address and valid credit card information. You must provide complete and accurate registration information to Daily Burn and notify us if your information changes.
USER NAME: You may not use someone else's name, a name that violates any third party right, or a name that is obscene or otherwise objectionable.
NON-COMMERCIAL USE: Use of the Site and Service is for personal use only. Members may not use the Service in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services; or (ii) for commercial purposes. Users of the Site may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Service or the Site for any purpose unless expressly authorized by Daily Burn. If you wish to inquire about possible commercial use, please contact us at firstname.lastname@example.org.
Daily Burn may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Site or the Service.
ACCOUNT SECURITY: You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you are using a computer that others have access to, you must log out of your account after using the Daily Burn Service. If you become aware of any unauthorized access to your account, you must change your password and notify us immediately at email@example.com.
Auto billing; Subscription Fees; Free Trial Terms. The Daily Burn Service is a paid, auto-renewing subscription service. If you purchase a subscription by accepting our Free Trial offer, you are agreeing to automatic (recurring) billing, and agree to pay the charges made to your account in connection therewith. Your Subscription, and monthly billing of your account, will continue indefinitely until cancelled by you.
Your Daily Burn membership begins when you have completed the Free Trial sign-up process (i.e., when we collect your personal and payment information). At the end of your 30-day Free Trial, you will begin to be billed automatically each month (about every 30 days) until you cancel. Once we begin to bill you, cancellations take effect starting at the end of your current billing period, meaning there are no partial month refunds or credits. If you cancel your Free Trial membership at anytime in the first thirty days (i.e., during the Free Trial period), you will not be charged.
At certain times, we may offer special promotional offers ("Special Offers") that are billed at a discounted rate. These offers may have a different Free Trial period length, or no Free Trial period. In these cases, you will begin to be billed at the time payment information is collected, or, if a Free Trial is being offered, at the end of the special Free Trial period. Note: in these cases, our typical 30-day Free Trial will not apply.
These terms will always be disclosed on the payment screen at the time of sign up, prior to our acceptance of payment.
In all instances, you will continue to be automatically billed monthly after your Free Trial ends (or immediately if there is no Free Trial).
The pricing of our Services may vary periodically. We cannot guarantee that the price of your Subscription is the lowest available, or historically lowest or best, price. You will be charged in accordance with the billing terms you agreed to at the time you signed up.
HOW TO CANCEL
If you do not wish for your account to renew automatically, or if you want to change or terminate your subscription, first log into your account, and then click on the following link, or type in the following address into your web browser while you are still logged in: http://dailyburn.com/cancel-subscription. You can also cancel under "Account Settings" which appears on the lower left hand side of the page whenever you are logged in. Your cancellation will take effect starting at the end of your current billing period.
From the Account Settings page, simply follow these few steps:
- Click on the "Manage Subscription" button
- Scroll down to the "View your options" button in the lower left section of the page
- Enter your reason for cancelling and hit "Continue" on the next two screens
- Confirm your cancellation by selecting the "Confirm cancellation" option.
- A "Cancel my subscription" button will then appear. Select it.
- Click "Yes" on the final confirmation pop-up.
Note that a blue notification bar will appear in your Account Settings confirming cancellation. Your Subscription status will state that your account is "Pending Cancellation." This is because your cancellation takes effect at the start of the next billing cycle (Don’t worry - your cancellation effective date will be listed and you will continue to have access to your account through the account expiration date). So, for example, if you have a monthly subscription that began on the first of the month but cancel mid-month, your cancellation will take effect as of the beginning of the following month. Sorry-- there are no refunds on Daily Burn subscriptions for billing periods that have already lapsed.
Service Add-Ons– Auto Billing; Coaching; Subscription Fees; Free Trial; and Cancellation
We refer to any additional, paid subscription Service we offer beyond a standard Membership as an “Add-On Service.” For example, our personalized Coaching service, or any other Service we may offer to you which provides access to special or additional Content beyond your standard Membership, is an Add-On Service.
Each Add-On Service is a separate subscription service and is subject to an additional monthly fee that automatically renews just like your regular Membership. Before agreeing to an Add-On Service, you will be prompted with i) the type of Service being offered (e.g. Coaching); and ii) the monthly, recurring cost for such Add-On Service. Note: if You purchase an Add-On Service, You are agreeing to an additional monthly automatic (recurring) billing subscription, and agree to pay the charges made to your account in connection therewith, as disclosed at the time You accept the Add-On Service. Your Add-On Service subscription, just like Your standard Membership subscription, will continue indefinitely until cancelled by You.
Add-On Services are billed on the same day as Your regular Membership, in one combined payment. You can cancel at any time by following the instructions above ("How to Cancel"). Note that Your Add-On Service subscription is separate from your regular Membership, although we will combine the charges each month when we bill You. You can cancel one or both at any time, but canceling your regular Membership will automatically cancel your Add-On Service.
Your Add-On Service Free Trial period lasts only as long as your original (initial) Free Trial offer is in effect, which means that if you do not sign up for the Add-On Service on the same day you initially signed up for your 30-day Free Trial membership, your Add-On free trial will only remain in effect for the remainder of your initial Free Trial period. So, for example, if you signed up for your Free Trial membership on the 1st of the month, and signed up for your Add-On Service on the 16th, your free Add-On trial period would only last for approximately two weeks through the 30th of that same month (the same duration as your initial Free Trial membership).
Sorry, once your 30-day Free Trial membership has expired, you can no longer sign up for a free Add-On Service trial. In other words, any new Add-On Service added after the expiration of your original Free Trial membership will begin to be billed immediately, pro rated for the number of days in the month remaining, and will not be eligible for a Free Trial.
Quarterly and Annual Subscriptions.
In certain circumstances, we will offer Subscriptions for a longer term (for example, 3 months, 6 months or even a year). These longer-term Subscriptions are charged in full upon purchase, and automatically renew for the same duration as the initial Subscription term you selected (for example, if you initially purchased a 3 month Subscription, your Subscription will automatically renew for three months; 6 month subscriptions will automatically renew for six months, and so on). The amount due for the next renewal term will be due and immediately payable in full and charged as of the first day of such renewal term. You can always cancel before your next renewal term by logging into your account, and following the cancellation instructions above ("How to Cancel").
Paused Subscriptions. In circumstances in which you elect to pause your subscription, your account will automatically reactivate following the time period that you specified at the time of pausing, and we will then automatically start to bill you again. You will be responsible for payment upon reactivation regardless of whether or not you receive a reminder notice regarding the expiration of your paused status. By electing to pause your subscription, you agree and authorize Daily Burn to bill your account starting at the expiration of your paused account status period.
Authorization. When you sign up for our Service and provide a payment method to Daily Burn, you are granting your express consent and are expressly authorizing us (and our designated payment processor) to automatically charge you each month for the Service.
If you provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee.
EVEN IF YOU DO NOT USE THE SUBSCRIPTION OR ACCESS THE DAILY BURN APPLICATION, YOU WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL YOU CANCEL YOUR SUBSCRIPTION OR IT IS OTHERWISE TERMINATED. To cancel, follow the instructions above ("How to Cancel").
Changes. Daily Burn may change, modify, add, remove, suspend, cancel or discontinue any aspect of it subscriptions including the functionality, content, and/or availability of any features of such subscriptions at any time in Daily Burn's sole discretion.
Daily Burn may increase its fees for any subscription effective the first day of a billing renewal by giving you notice of the new fees at least thirty (30) days before you are billed. If you have and do not cancel your subscription, you will be deemed to have accepted the new fees.
9. Term and Termination; Account Deletion
TERM: This Agreement begins on the date you first use the Daily Burn Service and continues as long as you have an account with us.
CANCELING YOUR SUBSCRIPTION: To cancel your subscription, you will need to first log into your account, and then type in the following address in your web browser while you are still logged in: https://dailyburn.com/subscriptions/cancel. From this page, you will be able to scroll down and select the "No Thanks, Just Cancel" option, which you can click on and then confirm by selecting the "Confirm" button. A notification will be located at the top of the screen confirming that you have canceled your account. You can also cancel by going into your Account Settings (located in the header under your profile name), navigating to the "Manage Subscription" tab and scrolling down where you will find the link to cancel.
ACCOUNT DELETION: You may delete your account at any time. We reserve the right, but are under no obligation to, to delete an account from the Daily Burn Service that remains inactive (i.e., the user fails to log in) for a continuous period of at least six (6) months, or immediately when payment expires, is withdrawn or otherwise ceases.
TERMINATION FOR BREACH: Daily Burn may suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if Daily Burn determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage Daily Burn's reputation or goodwill. If Daily Burn deletes your account for the foregoing reasons, you may not re-register for the Daily Burn Service. Daily Burn may block your email address and Internet protocol address to prevent further registration. Daily Burn is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
After your membership or subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by Daily Burn will terminate. Sections 4-5, 9, and 12-18 shall survive termination. In the event of account deletion for any reason, content that you submitted may no longer be available. Daily Burn shall not be responsible for the loss of such content.
10. Content Restrictions
You may not upload, post, or transmit (collectively, "submit") any video, image, text, audio recording, or other work (collectively, "content") that:
- Infringes any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.);
- Contains sexually explicit content or pornography (provided, however, that non-sexual nudity is permitted);
- Contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group;
- Advocates harassment or intimidation of another person;
- Exploits minors;
- Depicts unlawful acts or extreme violence;
- Contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor's legal guardian);
- Depicts animal cruelty or extreme violence towards animals; or
- Contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices.
11. Code of Conduct and Prohibited Activities
In using the Daily Burn Service, you must behave in a civil and respectful manner at all times. Further, you will not and it is strictly prohibited to:
- Act in a deceptive manner by, among other things, impersonating any person;
- Harass or stalk any other person;
- Harm or exploit minors;
- Distribute "spam";
- Promote information that is false or misleading, or promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
- "frame" or "mirror" any part of the Service or the Site;
- use meta tags or code or other devices containing any reference to Daily Burn, the Site or the Service (or any trademark, trade name, service mark, logo or slogan of Daily Burn) to direct any person to any other website for any purpose;
- modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or the Site or any software used on or for the Service or the Site, or cause others to do so;
- post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Site or the Service other than solely in connection with your use of the Service in accordance with this Agreement.
- Collect information about others;
- Advertise or solicit others to purchase any product or service within the Daily Burn Site;
- Promote fraudulent schemes, multi level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures;
- Publicize or promote commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
- ; or
- Participate in any activity that in any way violates any law.
Daily Burn has the right, but not the obligation, to monitor all conduct on and content submitted to the Daily Burn Service. Daily Burn reserves the right to alter, edit, remove, or refuse to post any content, in whole or in part in its sole discretion and/or to satisfy or comply with applicable laws, regulations and/or legal processes.
Daily Burn reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates our Terms, including removing the offending communication from the Site or Service and terminating or suspending the membership of such violators.
Your use of the Site and Service, including all Content you post through the Service, must comply with all applicable laws and regulations. You agree that Daily Burn may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Site in the future; or (v) protect the rights, property or personal safety of the Company or any other person.
As between you and Daily Burn, you own all content that you submit to the Daily Burn Service, whether directly via the Daily Burn Service or indirectly (for example, via Facebook or Twitter). However, it is important that you understand that by posting a submission to Daily Burn, you are granting Daily Burn and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers) royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content (including without limitation, your name and likeness, photographs and testimonials) for any purpose whatsoever commercial or otherwise without compensation to you. In addition, you waive any so-called "moral rights" or "performance rights" in your content.
You further grant all users of the Daily Burn Service permission to view your content for their personal, non-commercial purposes. If you make suggestions to Daily Burn on improving or adding new features to the Daily Burn Service, Daily Burn shall have the right to use your suggestions without any compensation to you.
For each piece of content that you submit, you represent and warrant that: (i) you have the right to submit the content to Daily Burn and grant the licenses set forth above; (ii) Daily Burn will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws.
You agree to indemnify, defend, and hold harmless Daily Burn and its affiliates, directors, officers, employees, and agents, from and against any liability, claims, damages, losses and costs (including reasonable attorney's fees) that: (i) arise from your activities on the Daily Burn Service; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to Daily Burn violates any law or infringes any personal right or third party right, including any intellectual property or privacy right. Daily Burn reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Daily Burn in connection therewith.
14. License to Use the Daily Burn Service
LICENSE: Daily Burn grants you a limited, non-exclusive license to access and use the Daily Burn Service for your own personal, non-commercial purposes. This includes the right to view content available on the Daily Burn Service. This license is personal to you and may not be assigned or sublicensed to anyone else.
RESTRICTIONS: Except as expressly permitted by Daily Burn in writing, you will not reproduce, redistribute, publicly display, sell, create derivative works from, decompile, reverse engineer, or disassemble the Daily Burn Service. Nor will you take any measures to interfere with or damage the Daily Burn Service. All rights not expressly granted by Daily Burn are reserved.
MOBILE DEVICES, APPLICATIONS AND SET-TOP BOXES/EXTERNAL DEVICES:
These Terms of Service, and all of the provisions herein, also govern the use of our mobile, desktop and set-top devices and related applications (for example, iOS devices, Android devices, Roku, Apple TV and other such devices and their corresponding apps).
Your use of the Daily Burn Service through any applications or device constitutes your agreement to be bound by these Terms.
Any Daily Burn application, regardless of the manner and means in which it is downloaded (for example the Apple AppStore, Google Play Store, your console's app store, etc.) is licensed, not sold, to You for use only under these Terms. We, the licensor, Daily Burn, Inc. (Application Provider) reserve all rights not expressly granted to You.
Accordingly, if you download the Daily Burn Application, you will be:
- installing a software program on your product in the form of an application;
- entering into this contract with Daily Burn, Inc. governing your use of the application.
15. Third Party Links and Content
Certain links on the Daily Burn Sites and/or the Daily Burn Service may let you leave the particular Daily Burn Site or Daily Burn Service you are accessing in order to access a linked site (the "Linked Sites"). When you are linking to a third party site, it is important to know that Daily Burn does not control these sites, nor has Daily Burn reviewed or approved the content which appears on the linked sites. Daily Burn is not responsible for the legality, accuracy or nature of any content, advertising, products or other materials on or available from any linked sites, or the conduct of such linked sites. You acknowledge and agree that Daily Burn shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the linked sites.
Dealings with Third Parties.
More specifically, your participation, correspondence or business dealings with any third party found on or through the Daily Burn Sites and Service (i.e., a linked site), regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Daily Burn shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
16. Intellectual Property
You acknowledge that the Daily Burn Site and Services contain software, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, "Content") that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Daily Burn-generated Content and Content devolped for Daily Burn by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Daily Burn owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the Daily Burn Site. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the application (but never the Content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Daily Burn name, logos and affiliated applications and technologies are the exclusive property of Daily Burn, Inc. All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Daily Burn owns and retains all proprietary rights in the Site and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
17. Copyright / DMCA Policy
Daily Burn respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to the Daily Burn Site do not infringe any third party copyright.
Daily Burn will promptly remove materials from the Daily Burn Site in accordance with the Digital Millennium Copyright Act ("DMCA") if properly notified that the materials infringe a third party's copyright. In addition, Daily Burn may, in appropriate circumstances, terminate the accounts of repeat copyright infringers.
Filing a DMCA Notice to Remove Copyrighted Content-for Copyright Holders
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:
- Your name, address, telephone number, and email address (if any).
- A description of the copyrighted work that you claim has been infringed.
- A description of where on the Daily Burn Site the material that you claim is infringing may be found, sufficient for Daily Burn to locate the material (e.g., the URL).
- A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
- A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- Your electronic or physical signature.
You may submit this information via:
- Email: firstname.lastname@example.org.
- Offline: Daily Burn's Copyright Agent (see contact information below)
Filing a DMCA Counter-notification to Restore Removed Content for Daily Burn Users
If you believe that your material has been removed by mistake or misidentification, please provide Daily Burn with a written counter-notification containing the following information:
- Your name, address, and telephone number.
- A description of the material that was removed and the location on the Daily Burn Site (e.g., the URL) where it previously appeared.
- A statement UNDER PENALTY OF PERJURY that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which Daily Burn may be found (which includes the United States District Court for the Southern District of New York), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person.
- Your electronic or physical signature.
You may submit this information via:
- Email: email@example.com
- Offline: Daily Burn's Copyright Agent (see contact information below)
Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed.
In filing a DMCA notice or counter-notification, please make sure that you have complied with all of the above requirements. If we request additional information necessary to make your DMCA notice or counter-notification complete, please provide that information promptly. If you fail to comply with all of these requirements, your DMCA notice or counter-notification may not be processed further.
In addition, please make sure that all of the information you provide is accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.
Daily Burn may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
Daily Burn's Copyright Agent
You may send a DMCA notice, a DMCA counter-notification, or any inquiries concerning intellectual property to Daily Burn's Copyright Agent:
Daily Burn, Inc.
30 West 26th Street, 2nd Floor
New York, New York 10010
Attn: Legal Dept. - Copyright Agent
18. General Provisions
ARBITRATION AND GOVERNING LAW:
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Service, or the Site shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Daily Burn in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Daily Burn or its affiliates any class action, class arbitration, or other representative action or proceeding.
By using the Site or the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Daily Burn or its affiliates (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Daily Burn (except for small-claims court actions) may be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury.
This Agreement, and any dispute between you and Daily Burn, shall be governed by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Daily Burn in exercising any right hereunder will waive any further exercise of that right. Daily Burn's rights and remedies hereunder are cumulative and not exclusive.
SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without Daily Burn's prior written consent. No third party shall have any rights hereunder.
NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from Daily Burn electronically. Daily Burn may provide all such communications by email or by posting them on the Daily Burn Service. For support-related inquiries, you may send an email to firstname.lastname@example.org or the following address:
Daily Burn, Inc.
30 West 26th Street, 2nd Floor
New York, New York 10010
Attention: Legal Department
Nothing herein shall limit Daily Burn's right to object to subpoenas, claims, or other demands.
MODIFICATION: This Agreement may not be modified except by a revised Terms of Service posted by Daily Burn on the Daily Burn Site or a written amendment signed by an authorized representative of Daily Burn. A revised Terms of Service will be effective as of the date it is posted on the Daily Burn Site.
ENTIRE AGREEMENT: This Agreement incorporates the following documents by reference:
This Agreement constitutes the entire understanding between Daily Burn and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.
END OF DOCUMENT.