TERMS OF USE
DAILYBURN® IOS LICENSED APPLICATION
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING
THE DAILYBURN® IOS APPLICATION OR RELATED SERVICES.
YOUR ACCESS OR OTHER USE OF THE APPLICATION OR SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF SERVICE SET FORTH BELOW.
IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE DAILYBURN APPLICATION OR SERVICES AND SHOULD EXIT IMMEDIATELY. BEFORE YOU CONTINUE, YOU SHOULD PRINT OR SAVE A LOCAL COPY OF THESE TERMS FOR YOUR RECORDS.
Last Updated: November 29, 2011
Welcome to the DailyBurn® IOS application (“Application”), created and operated by Daily Burn, Inc. ("Daily Burn", "we" or "us”). THIS APPLICATION IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 13. By using these services, you are representing that you meet the minimum age requirement and are at least 13 years old.
HEALTH DISCLAIMER & WARNING:
You should consult your physician or other health care professional before starting any fitness 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 or have experienced chest pain when not engaged in physical activity, smoke, have high cholesterol, are obese, or have a bone or joint problem that could be made worse by a change in physical activity. Do not start a fitness program 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.
This Application may offer health, fitness and nutritional information designed for educational purposes only. You should not rely on this information 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 with a physician or other health-care professional. Do not disregard, avoid or delay obtaining medical or health related advice from your health-care professional because of something you may have read on the DailyBurn website or this Application. The use of any information provided on this Application is solely at your own risk.
Developments in medical research may impact the health, fitness and nutritional advice that appear on the DailyBurn website and on this App. No assurance can be given that the advice contained in this site will always include the most recent findings or developments with respect to the particular material.
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.
TERMS OF USE
This Terms of Use (“Terms of Use” or “TOU”) is a legally binding agreement that governs your use of the Application or any successor application branded with our DailyBurn™ brand. We reserve the right, at our discretion, to change, modify, add or remove portions of the Terms of Use at any time. You can always check out the most current version of these Terms of Use at this page. You can determine when this Terms of Use was last revised by referring to the "Last Updated" legend at the top of this Terms of Use.
In addition to this Terms of Use, your use of the Application and/or Services (as defined below) is governed by the Daily Burn IOS Application Privacy Policy (“Privacy Policy”). You agree to Daily Burn’s collection, use and sharing of your information as set forth in Privacy Policy which may be amended by us from time to time in our discretion. When using particular Services, you shall be subject to any posted terms or guidelines applicable to such services, and any other terms or conditions applicable to Services provided by or in conjunction with any of Daily Burn's content and service partners. The Privacy Policy and any posted terms or guidelines are hereby incorporated by reference into this Terms of Use.
If you have any questions or concerns regarding this Terms of Use, please email us at support@dailyburn.com. Do not use the Services until these questions and concerns have been answered to your satisfaction, and you agree to abide by the terms and conditions of this Terms of Use.
PRODUCT OVERVIEW
Welcome to the DailyBurn.® IOS Application! DailyBurn is personalized fitness evolved. With DailyBurn, you can access helpful workout videos directly on your iOS device, whenever and wherever you need them. If you choose, DailyBurn's IntelliBurn™ technology can provide you with further personalized workout videos based on information you provide in a short survey about your goals, lifestyle, and fitness level. Whenever you are ready to workout, just access DailyBurn, and we will stream workout videos right to you.
All content and additional or replacement services made available through the Application that were not made available as of the "Last Updated" date above shall automatically be deemed to be part of the “Services” when first made available through the Application.
TRIAL MEMBERSHIP
Upon accessing the Application, a Trial Membership will allow you to access one (1) free workout video without a subscription. Thereafter, you will need a subscription (offered within the Application) to access Daily Burn workout videos.
DAILY BURN SUBSCRIPTION PRACTICES
You may choose to purchase a subscription to the Daily Burn Application to gain access to on demand workout videos. Daily Burn offers monthly, semi-annual (6 month) and annual subscriptions to its Services. Subscriptions will automatically renew and a user’s credit card will be charged accordingly until the user cancels the subscription. Users may cancel a Daily Burn subscription at anytime. Such cancellation will be effective at the end of the then current subscription cycle. Sorry, there are no refunds on Daily Burn subscriptions. If you have questions or need assistance relating to a Daily Burn subscription, please contact: support@dailyburn.com.
Subscription Fees. If you purchase a subscription, you agree to pay all charges to your account made therefor. You will be charged in accordance with the billing terms in effect at the time the fee or charge becomes payable. For any subscription you purchase that are charged in full upon purchase, you agree that for each renewal term (each a "Renewal Term"), the amount due for the next Renewal Term will be due and immediately payable in full as of the first day of such Renewal Term. 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. For more information regarding canceling your subscription, see below.
Billing. Payment for the initial term of a subscription is due at the time of purchase. Your subscription will renew automatically at the end of the initial term and at the end of each Renewal Term thereafter unless and until you give Daily Burn written notice of your intention to terminate your subscription pursuant to this Agreement. If you do not give Daily Burn notice of either such intention, your credit card will be charged for the Renewal Term of your subscription. Daily Burn may adjust its billing date in subsequent Renewal Terms without notice. Unless otherwise notified in advance by Daily Burn pursuant to this Agreement, the renewal charge will be equal to the original purchase price for the subscription.
Cancellation of Subscription. To cancel a subscription you must notify Daily Burn in writing of your intent to cancel. Cancellation will be effective at the beginning of the next Renewal Term.
General 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 Renewal Term by giving you notice of the new fees at least thirty (30) days before the beginning of the Renewal Term. If you have and do not cancel your subscription per the terms above, you will be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). Daily Burn may subcontract any subscription services or any work, obligations, or other performance required under subscription services without your consent.
PLEASE NOTE THE FOLLOWING DISCLAIMER:
No Reliance on DailyBurn Application Content. The content is provided on an “as is” and “as available” basis, and we make no representations or guarantees as to its accuracy, completeness, usefulness, or suitability. Use the Content at your own risk.
In no event shall Daily Burn be liable for any damages whatsoever (whether direct, indirect, general, special, compensatory, consequential, and/or incidental), arising out or relating to any decisions you make based upon reading any content on the Application.
USE OF THE SERVICES; ELIGIBILITY; GRANT OF LIMITED LICENSE
You may access the Application and use the Services for personal, non-commercial purposes. Use of the Services is void where prohibited. By accessing or otherwise using the Application and/or Services, you are acknowledging and agreeing, and representing and warranting that (i) you have read, understand, and agree to be legally bound and to abide by these Terms of Use, just as if you had signed a written agreement; (ii) you have the right, authority and capacity to enter into this agreement and to abide by all the terms and conditions of these Terms of Use; and (iii) if you are acting on the behalf of any person or entity, you are authorized to act on behalf of such party.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: (a) modify or discontinue the Services, including, but not limited to (i) restricting the time the Services are available, (ii) restricting use of certain Services to users in specified geographic regions, (iii) restricting the amount of use of the Services permitted (which may vary depending on membership level), and (iv) restricting or terminating any user's right to use the Services, with or without notice; (b) charge fees in connection with the use of all or part of the Services; (c) modify and/or waive any fees charged in connection with the Services; and/or (d) offer opportunities to some or all users of the Services. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Services, in whole or in part, or of any service, content or feature offered through the Services. Your continued use of the Services following the posting of changes to these TOU will constitute your acceptance of such changes
Subject to the above, the terms and conditions set forth herein, and any applicable third party restrictions, Daily Burn grants you a revocable, non-transferable, non-exclusive and non-sublicensable limited right and license to access and use the Services. All rights to ownership or use not expressly stated herein are reserved by Daily Burn and Daily Burn disclaims any and all implied licenses
DISCLOSURE OF INFORMATION TO THIRD PARTIES
Pursuant to the DailyBurn IOS Application Privacy Policy, we may disclose to third parties certain information we collect about you and your use of the Application. We may also disclose such information if we have a good faith belief that such action is reasonably necessary to comply with the law, legal process, or to enforce these Terms of Use. For more information, please see our Privacy Policy.
MATERIALS AND SUBMISSIONS
By uploading materials or otherwise submitting any materials to us (including without limitation personal photos and testimonials) (collectively, the "Materials"), you automatically grant (or warrant that the owner of such Materials has expressly granted) Daily Burn a perpetual, royalty-free, irrevocable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from and distribute such Materials, (including your first name and last initial and your image) or incorporate such Materials into any form, medium, or technology now known or later developed throughout the universe for commercial or non-commercial purposes, and to sublicense the foregoing rights, through multiple tiers, to the maximum extent permitted by applicable law. In addition, you warrant that all so-called "moral rights" in those materials have been waived.
Notwithstanding the foregoing, to the extent that any Materials contain creative suggestions, recommendations, ideas, notes, drawings, or other information (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidence on our part, and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own, and you assign to us, all right, title and interest in and to the Submissions of every kind and nature throughout the universe and we shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
COMMUNITY STANDARDS AND CONDUCT
You agree to not use the Services to:
- post, email or otherwise transmit any submission that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, an Daily Burn official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- email or otherwise transmit any submission that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- email or otherwise transmit any submission that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
- email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks or third party providers connected to, or providing the Services;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- "stalk" or otherwise harass another member or user of the Services; or
- collect or store personal data about other users, or members.
LINKS/EXTERNAL SITES, SOCIAL NETWORKS AND RESOURCES
The Application may contain advertisements for or links to other World Wide Web sites or resources. These sites and resources are not controlled by Daily Burn, and the mere existence of the link on the Application does not imply an endorsement by Daily Burn. The Services may be offered through social networks and/or offer the opportunity to interact with social networks. External Web sites, social networks and resources are not subject to these Terms of Use or the Daily Burn Privacy Policy, and may be subject to other terms and conditions or policies posted therein. Information collected from you by an external site or social network may be subject to the pertinent site/ network policies.
Because Daily Burn has no control over such sites and resources, you acknowledge and agree that Daily Burn is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any advertising, products, or other materials on or available from such sites or resources. You further 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 use of or reliance on any goods or services available on or through any external site, social network or resource. Your use of external sites or resources is at your own risk.
DISCLAIMER
Daily Burn and its service providers utilize diligent efforts to maintain the Services, but Daily Burn and its service providers are not responsible for any defects or failures associated with the Services. In addition, Daily Burn and its service providers make no guarantees as to the sites and information located worldwide throughout the Internet to which you may access as a result of the use of the Services, including as to: (i) the accuracy, currency, content, completeness, non-infringement or quality of any such sites and information, or (ii) whether any search using the Services may locate unintended and objectionable content.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU USE THEM AT YOUR SOLE 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 ARISING UNDER THE UNIFORM COMMERCIAL CODE, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE.
WITHOUT LIMITATION, DAILY BURN MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE APPLICATION OR SERVICES OBTAINED WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION OBTAINED BY YOU FROM DAILY BURN PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE.
DAILY BURN EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS AND/OR SERVICES PROVIDED BY THIRD PARTY VENDORS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT DAILY BURN SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DAILY BURN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE APPLICATION OR SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL DAILY BURN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE APPLICATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
INDEMNIFICATION
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS DAILY BURN, ITS PARENTS, AFFILIATES AND SUBSIDIARY COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES) ARISING FROM YOUR USE OF THE APPLICATION OR SERVICES, YOUR VIOLATION OF THESE TERMS OF USE OR YOUR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY DAILY BURN OF ANY BREACH OF SECURITY KNOWN TO YOU.
TERMINATION
Daily Burn may in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Use may be effected without prior notice, and acknowledge and agree that Daily Burn may bar any further access to the Services. Further, you agree that Daily Burn shall not be liable to you or any third-party for any termination of your access to the Services.
The provisions of these Terms of Use pertaining to disclaimers, exclusion of damages, limitations of liability and indemnification shall survive termination.
INTELLECTUAL PROPERTY
You acknowledge that the Application and Services contain software, graphics, photos, or other material (collectively, "Content") that are 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 provided to 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 Application. Subject to your compliance with the TOU, 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 to any single computer 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 of Use. 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 Web site or networked computer environment is strictly prohibited.
The DailyBurn® name, logos and affiliated properties, 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.
GOVERNING LAW AND OTHER MISCELLANEOUS TERMS
These Terms of Use (and any further rules, policies or guidelines incorporated by reference herein) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the Application (and all Services) is deemed a passive application that does not give rise to personal jurisdiction over Daily Burn or its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of New York. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Services, shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.
These Terms of Use (and any further policies or documents incorporated by reference herein) constitute the entire understanding between Daily Burn and users of the Application and Services concerning the subject matter hereof and may not be modified except by revised Terms of Use posted by Daily Burn. These Terms of Use, which may be modified or amended by Daily Burn from time to time, in its sole discretion, supersedes all prior understandings and agreements, whether written or verbal with respect to the subject matter hereof. If any of the provisions of these Terms of Use will contravene, or be invalid under, the laws of the particular jurisdiction where performed, such contravention or invalidity will not invalidate the whole agreement, rather these Terms of Use will be construed as if not containing the particular provision or provisions held invalid, and the rights and obligations of the parties will be construed and enforced accordingly. Notwithstanding the foregoing, the TOU does not modify, alter or amend any other specific agreement you have entered or will enter into with Daily Burn. To the extent that any provision of the TOU conflicts with any provision of your other agreements with Daily Burn, the terms and conditions of such other agreement shall, take precedence over the conflicting term(s) and conditions of this TOU, unless otherwise expressly provided in such other agreement.
No failure or delay by Daily Burn in exercising any right, power or privilege under these Terms of Use will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Use. If any provision of these Terms of Use shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
The section titles in these Terms of Use are for convenience only and have no legal or contractual effect.
These Terms of Use are binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. Users may not assign their rights or obligations hereunder without Daily Burn’s prior written consent.