DAILY BURN END USER
LICENSE AGREEMENT AND TERMS
LAST
UPDATED: June 19, 2023
2 Health
Warning And Medical Disclaimer.
3 Who
May Use The Daily Burn Service.
5 Your
Representations and Warranties as a Member.
9.1 Auto-renewal and billing; Subscription Fees; Free Trial Terms; Money Back Guarantee.
10 Cancellation;
Term and Termination; Account Deletion
11 Community
Guidelines; User Content.
12 Code
of Conduct and Prohibited Activities.
14 License
to Use the Daily Burn Service
14.1 Mobile Devices, Applications And Set-Top Boxes/Other Platforms
15 Third
Party Links and Content.
18 EEA
Resident Online Dispute Resolution.
21 Notice
to U.S. Government End Users.
23 Arbitration
And Governing Law.
This End-User License Agreement (including the Supplemental
Terms, as applicable) ("EULA" or “Agreement”) governs your use and
access of DailyBurn.com (the "Daily Burn Site" or "Site"),
and Daily Burn’s mobile and platform applications (collectively “Apps”). The
Site and Apps are made available by, and you are entering into this EULA with
Daily Burn, Inc. based at 47-10 Austell Place, Suite #303 Long Island City, NY 11101.
The terms "Daily Burn", "we", "us" or
"our" used in this EULA refer to Daily Burn, Inc. Daily Burn provides
digitally accessible fitness services and content. The Site and Apps, along
with the fitness service and content made available therein are referred to
herein as the "Daily Burn Service" or "Service". By using
the Service and/or installing or otherwise using the Apps, you: (a) agree to be
bound by the terms and conditions of this EULA, (b) you represent and warrant
that you own or control the mobile device in which the App will be installed,
and (c) you represent and warrant that you have the right, authority and
capacity to enter into this EULA and to abide by all its terms and conditions,
just as if you had signed it. The terms and conditions of this EULA also apply
to any App updates, supplements, and services that are not provided under a
separate license or other agreement with us. If you do not agree to the terms
and conditions of this EULA, do not use the Service or install or use any App.
We may amend these terms and conditions from time to time. If
the changes include material changes that affect your rights or obligations, we
will notify you of the changes by reasonable means. You acknowledge that an
email or and in-app message which notifies you of such changes when you open up
the App shall constitute reasonable means. Your continued use of the Service
after we post any amendments to this EULA will signify your acceptance of such
amendments. If you do not agree with any amendment, you must discontinue using
the Service. If you have any questions or concerns regarding these terms or
conditions herein, please email us
You should also read and understand the Daily Burn Privacy
Policy, which is incorporated by reference into and made a part of this
Agreement. This Agreement also includes any additional payment terms and other
requirements set forth on the download or purchase page of the Site or
marketplaces through which you may purchase or download Apps or access the
Service. These marketplaces may have additional terms, conditions and usage
rules that govern your access to and use of the Apps and/or the Daily Burn
Service.
Prior to using the Daily Burn Service, it is important for
you to know and understand that by accessing and/or using the Service through
any means, 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 access and use of the Service. If
you have any questions or concerns regarding the terms or conditions herein,
please email us at support@dailyburn.com.
By using the Service, you consent to receiving this Agreement
in electronic form.
Notice to consumers: depending on the laws of the jurisdiction where you live,
you may have certain rights that cannot be waived through this EULA and that
are in addition to the terms of this EULA, and certain provisions of this EULA
may be unenforceable as to you. To the extent that any term or condition of
this EULA is unenforceable, the remainder of the EULA shall remain in full
force and effect.
YOU
SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING
THE SERVICE OR ANY OTHER EXERCISE OR WEIGHT LOSS 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, IF YOU HAVE EVER EXPERIENCED
CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, HAVE A BONE OR JOINT
PROBLEM OR OTHER MEDICAL CONDITION THAT COULD BE MADE WORSE BY A CHANGE IN
PHYSICAL ACTIVITY OR DIET. 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 OR FASTING,
YOU SHOULD STOP IMMEDIATELY. THE DAILY BURN SERVICE OFFERS GENERAL 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.
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 Service, please contact us at support@dailyburn.com,
Grant of License. Subject to your
compliance with the terms and conditions of this Agreement, Daily Burn grants you a limited, non-exclusive, revocable,
non-sublicensable, non- transferable license, to access and use the most
current available versions of the Site, Apps and Service for your lawful,
personal and non-commercial use.
Available Content. The Service and the content
provided therein is available for
users of various skill levels, for a variety of activities, and for varying
durations. Content may not always be
available and is subject to change at
any time with or without notice and
without any liability to you. Content is intended
for informational purposes only and should not be considered medical or
healthcare advice.
Registration. While you may enjoy certain content
and features without registering with Daily Burn, to receive the full benefits of
some of our Services, you may be required to register as a member by providing a username, 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. In creating a username, 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. You may be given the option to access or register for the
Service through the use of your third-party social media account, such as
Facebook or Google. If you select this option, your social media provider may make
certain of your personal information available to us, such as your email
address or other unique identifier or we may be asked to share certain
information with such social media provider. We recommend that you review your
social media provider’s privacy policies carefully before using their service
to connect to our Services.
Daily Burn Coaching Service.
The Daily
Burn coaching service is intended solely as a general fitness informational
means by which Members can communicate with Daily Burn trainer coaches. DAILY
BURN DOES NOT REPRESENT IN ANY WAY THAT ANY NUTRITIONAL OR FITNESS ADVICE
PROVIDED BY A TRAINER COACH CONSTITUTES QUALIFIED EXPERT ADVICE. If you encounter a Daily Burn coach who
is providing expert advice in violation of these principles, please contact us
immediately at support@dailyburn.com.
Non-commercial Use. Use of the Site and Service is for personal, non-commercial use only.
You 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 support@dailyburn.com . 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 support@dailyburn.com.
Daily Burn may change, modify, add, remove, suspend, cancel or discontinue any aspect of its subscriptions including the
functionality, content, and/or availability of any features of such
subscriptions at any time in Daily Burn's sole
discretion.
In 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, if applicable engage in
intermittent fasting, including without limitation pregnancy; or (B) your physician has specifically approved of your use of
the Daily Burn Service. You further affirm that you will not access the Service
from within the European Economic Area.
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 or weight-loss
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.
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 THE
SERVICE, SITE OR APPLICATIONS.
Your privacy rights are set forth in our Privacy Policy, which forms a part of this Agreement. Please review the Privacy Policy to learn about:
o
What information we may collect about you;
o
What we use that information for; and
o
When and with whom we share that information.
You agree that we may collect and use technical
data and related information, including but not limited to technical
information about your device, system and application software, and
peripherals, which may be gathered periodically to facilitate the provision of
software updates, product support and other services related to the Daily Burn
Service.
CONSENT TO EMAIL: When you sign up for certain
of our Services using email, 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 they may contain exclusive offers, promotions or special offers.
Subscriptions. Subscriptions to the Service are
auto-renewing. You will be charged the stated subscription amount for the
subscription period upon completion of your registration and submission of your
payment information or, if applicable, at the end of your free trial period if
you have not canceled at least 24 hours in advance of the expiration of the
trial period. You hereby agree to and
authorize automatic (recurring) billing, and you agree to pay the charges made
to your account in connection therewith. You will be billed at the then-current
applicable subscription price plus any applicable taxes. Payments for renewal
subscriptions are processed using the same billing cycle as your current
subscription. Subscription fees may
change at any time, to the fullest extent permitted under applicable law. Your subscription, and recurring billing of
your account, will continue indefinitely until cancelled by you in accordance
with the Cancellation section of this Agreement.
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.
For auto renewing subscriptions completed in our iOS mobile
applications, the following terms apply:
· Payment
will be charged to iTunes Account at confirmation of purchase.
· Subscription
automatically renews unless auto-renew is turned
off at least 24-hours before the end of the current period.
· Account
will be charged for renewal within 24-hours prior to the end of the current period and identify the cost of
the renewal.
· Subscriptions
may be managed by the user and auto-renewal may be turned off by going to the user's Account Settings
after purchase.
· Any
unused portion of a free trial period, if offered, will be forfeited when theuser purchases a subscription to that
publication, where applicable.
· You
can cancel a free trial or subscription anytime by turning off auto-renewal
through your iTunes account settings. This must be done 24 hours before the end
of a free trial or subscription
period to avoid being charged. The cancellation will take effect the dayafter the last day of the current
subscription period, and you will be downgraded to the free service.
Free Trials.
If you accepted an offer with a Free Trial, 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 Free Trial, you will
begin to be billed automatically each subscription period 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.
Money Back Guarantee (Non-Free Trial Users).
If you did
not sign up for a free trial, we offer a 30-day Money Back
Guarantee. This means that we will refund you any amounts
paid as long as you contact us within 30 days of your initial
sign up date. Any requests after the 30-day window will
unfortunately not qualify for the Money Back Guarantee. Free
trial users are not eligible for the Money Back Guarantee
because they are not charged for the initial free trial.
Pricing and Special
Offers. 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. 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.
Add-On Services. We refer to any additional, paid
subscription Service we offer beyond the Daily Burn Site and Apps as an “Add-On
Service.” For example, our personalized Coaching service is an Add-On Service. Each Add-On Service is a separate subscription service and is subject
to additional fees that automatically renew just like your regular subscription.
Paused
Subscriptions. If you use the Daily Burn site, 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.
Changes to
DailyBurn.com Subscription Fees; Daily Burn may increase its subscription fee for the Daily
Burn Site 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.
If you are using the
Daily Burn Service through the Daily Burn Site and 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:
https://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.
If you are accessing
the Daily Burn Service through a third party platform or App, cancellation, uninstall and removal
methods vary depending on your device or the marketplace through which you
purchased or downloaded an App. To uninstall and remove a Daily Burn mobile
application, please use the application manager provided with your device or
consult your device manual for reference. Additionally, if you purchased access
or downloaded a Daily Burn App through a third-party marketplace, cancellation
and refunds may be governed by such third party’s cancellation and payment
policies. If you purchased your subscription through the Apple Store, you can
cancel anytime by turning off auto-renewal through your iTunes account
settings. This must be done 24 hours before the end of a free trial or
subscription period to avoid being charged. The cancellation will take effect
the day after the last day of the current subscription period, and you will be
downgraded to the free service.
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.
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. 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.
Daily Burn offers you the ability to submit or
post User Content through certain of its Services, including through social
features available within certain of our mobile applications, provided such
submission or transmission of User Content is in strict compliance with these
terms. For the purposes of this Agreement, “User Content” means video, images,
text, comments, app store reviews (including the public-facing user name as it
appears with the review), audio recordings and other content, that you upload,
post or transmit (collectively “submit”) to the Service, any Daily Burn social
media page or by providing an app review through a third-party service.
Guidelines. Daily Burn gives you the ability to
submit User Content in order to create a
community experience where our users can encourage, support and motivate one
other. You agree to follow these guidelines when submitting User Content:
SUPPORT — For any support
related questions or issues that require help beyond what we can offer in this
Agreement, please contact our Customer Support team at support@dailyburn.com for the fastest response.
R-E-S-P-E-C-T
—
Please be respectful and courteous to the members of this group.
FEEDBACK — We welcome
constructive feedback (both positive and negative) on your Daily Burn
experience and ask that you contact us directly at support@dailyburn.com so that we can be sure
we hear your thoughts on our Service and strive to improve.
REPORTING
POSTS —
If you notice any User Content that you believe to be in violation of this
Agreement, or spam, report it to the administrators at support@dailyburn.com.
Restrictions. You may not submit any User 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.
User Content Screening and Disclosure. We do not, and
cannot, pre-screen or monitor all
User Content. However, Daily Burn has the
right (but not the obligation) to monitor your conduct and User Content
submission on our Service and you
hereby provide your irrevocable consent to such monitoring. You acknowledge and
agree that you have no expectation of privacy
concerning your submission of any User Content. We have the right, but not the
obligation, in our sole discretion to edit, refuse to post, remove, disallow,
block or delete any User Content.
Under no circumstances will Daily Burn be liable for any of your User Content.
You shall be solely responsible for any User Content submitted through your account.
We may access, preserve or disclose any of your
information or User Content (including without limitation chat text) if we are
required to do so by law, or if we believe in good faith that it is reasonably
necessary to (i) respond to claims asserted against us or to comply with legal
process (for example, subpoenas or warrants), including those issued by courts
having jurisdiction over us or you; (ii) enforce or administer our agreements
with users, such as this Agreement; (iii) for fraud prevention, risk
assessment, investigation, customer support, providing the app services or engineering
support; (iv) protect the rights, property or safety of Daily Burn, its users,
or members of the public or (v) to report a crime or other offensive behavior.
Objectionable Content. Daily Burn may also act to remove Objectionable Content.
The decision to remove Objectionable Content shall be made at Daily Burn's sole
discretion. "Objectionable Content" includes, but is not limited to: 1. User Content that is unlawful, harmful, threatening, abusive,
harassing, tortuous, defamatory, or libelous,
2. User Content that is hateful, or advocates hate crimes, harm or violence
against a person or group, 3. User
Content that may harm minors in any way; 4. User Content that has the goal or effect of "stalking" or otherwise harassing another 5. Private information about any
individual such as phone numbers, addresses, Social Security numbers or any other
information that is invasive
of another's privacy; 6. User Content that is
vulgar, offensive, obscene or pornographic,
7. Unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam,"
"chain letters," "pyramid schemes," or any other form of solicitation; 8. 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.
Social Features. Daily Burn may provide opportunities for you to submit User
Content through social features on its Site or
through its mobile
applications. These are intended to be a community-based venue for Daily Burn users to chat, interact, motivate
and support one another.
As between you and Daily Burn, you own all User 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 User Content to Daily Burn or to Daily
Burn’s social media pages or by providing an app review through a third party
service, 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 User Content
(including without limitation, your name and likeness, photographs, testimonials and app
reviews) 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 User Content. If you prefer that we do not use your app
reviews for promotional purposes, contact support@dailyburn.com.
You further grant all users of the Daily Burn Service
permission to view your User 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 User Content that you submit,
you represent and warrant that: (i) you have
the right to submit the User 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 User Content does not infringe any
third party's rights, including intellectual property rights and privacy
rights; and (iv) the User Content complies with this Agreement and all applicable laws.
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:
o
Act in a deceptive manner by, among other things, impersonating any person;
o
Harass or stalk any other person;
o
Harm or exploit
minors;
o
Distribute "spam";
o
Promote information that is false
or misleading, or promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
o
"Frame" or "mirror" any part of the Service or the
Site;
o
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;
o
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;
o
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.
o
Collect information about others;
o
Advertise or solicit
others to purchase any product or service
within the Daily Burn Site;
o
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;
o
Publicize or promote
commercial activities and/or sales without our prior written consent such as
contests, sweepstakes, barter, advertising, and pyramid schemes.
o
Participate in any activity that in any way violates any law;
or
o
Access or use the
Site and Service (including any Add-on Service or application available through
a mobile or set- top device) from the European Economic Area.
Daily Burn reserves the right, in its sole
discretion, to investigate and take appropriate legal action against anyone who
violates this Agreement, 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 must comply
with all applicable laws and regulations. You agree that Daily Burn may access,
preserve and disclose your account information and Contentif 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.
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.
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.
DEVICES AND PLATFORMS: 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.
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.
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.
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 developed 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 this Agreement, 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
this Agreement. 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.
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:
1. Your name, address, telephone number, and email address (if any). 2. A
description of the copyrighted work that you claim has been infringed. 3. A
description of where on the Daily Burn Site the material that you claim isf
infringing may be found, sufficient for Daily Burn to locate the material
(e.g., the URL).
4. 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. 5. 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. 6. Your electronic or
physical signature.
You may submit this information via: 1. Email: dmca@dailyburn.com.
2. 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: 1. Your
name, address, and telephone number. 2. A description of the material that was
removed and the location on the Daily Burn Site (e.g., the URL) where it
previously appeared. 3. 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. 4. 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. 5. Your electronic or physical signature.
You may submit this information via: 1. Email: dmca@dailyburn.com 2. 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.
Warning 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:
47-10 Austell Place, Suite #303
Long Island City, NY 11101
Attn: Legal Dept. - Copyright Agent
If you reside in the European Union, you can
find information about online dispute resolution here: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN. Please note that we
reserve the right not to participate in forms of alternative dispute
resolution. For further information, please contact: support@dailyburn.com.
The Daily Burn Site and Apps, like other
consumer technologies, may not be 100% secure. By accepting this EULA you
acknowledge and accept that the Daily Burn Service and any information you
download or offer to share by means of an the Daily Burn Service, may be
exposed to unauthorized access, interception, corruption, damage or misuse, and
cannot be regarded as 100% secure. You accept all responsibility for such
security risks and any damage resulting therefrom. Further, you are solely
responsible for securing your mobile device from unauthorized access, including
by such means as using complex password protection and, for Android users,
enabling device encryption in your settings. You agree that Daily Burn shall
not be liable for any unauthorized access to your mobile device or the app data
thereon.
The Daily Burn Service and the underlying
information and technology are subject to US and international laws,
restrictions and regulations that may govern the import, export, downloading
and use of the Applications. You agree to comply with these laws, restrictions
and regulations when downloading or using the Apps.
Any Apps installed for or on behalf of the United
States of America, its agencies and/or instrumentalities ("U.S.
Government"), is provided with Restricted Rights as "commercial
Items," as that terms is defined at 48 C.F.R. §2.101, consisting of
"Commercial Computer Software" and "Commercial Computer Software
Documentation," as such terms are used in 48
C.F.R. §12.212 or 48 C.F.R. §227.7202, as
applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R.
§12.212), the U.S. Government shall have only those rights specified in the
license contained herein. The U.S. Government shall not be entitled to (i)
technical information that is not customarily provided to the public or to (ii)
use, modify, reproduce, release, perform, display, or disclose commercial
computer software or commercial computer software documentation except as
specified herein. Use, duplication, or disclosure by the U.S. Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights
in Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted
Rights at 48 C.F.R. 52.227-19, as applicable.
By accessing the Daily Burn Service through a
device made by Apple, Inc. ("Apple"), you specifically acknowledge
and agree that:
o
This EULA is between
Daily Burn and you; Apple is not a
party to this EULA.
o
The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-
transferable right to install the mobile applications on the Apple device(s)
authorized by Apple that you own or control for personal, non-commercial use,
subject to the Usage Rules set forth in Apple's App Store Terms of Service.
o
Apple is not
responsible for the mobile applications or the
content thereof and has no
o obligation whatsoever
to furnish any maintenance or support services with respect to the mobile
applications.
o
In the event of any failure of the any mobile application to
conform to any applicable warranty, you may notify Apple, and Apple will refund
the purchase price for the Application, if any, to you. To the maximum extent permitted by applicable law, Apple
will have no other warranty obligation whatsoever with respect to any Application.
o
Apple is not
responsible for addressing any claims by you or
a third party relating to any
o Application or your
possession or use of an Application, including without limitation (a) product
liability claims; (b) any claim that an Application fails to conform to any
applicable legal or regulatory requirement; and (c) claims arising under
consumer protection or similar legislation. In the event of any third party
claim that an Application or your possession and use of an Application
infringes such third party's intellectual property rights, Apple is not
responsible for the investigation, defense, settlement or discharge of such
intellectual property infringement claim.
o
You represent and warrant that (a) you are not located in a
country that is subject to a
o U.S. Government
embargo, or that has been designated by the U.S. Government as a
"terrorist supporting" country; and (b) you are not listed on any
U.S. Government list of prohibited or restricted parties. Apple and its
subsidiaries are third party beneficiaries of this EULA and upon your
acceptance of the terms and conditions of this EULA, Apple will have the right
(and will be deemed to have accepted the right) to enforce this EULA against
you as a third party beneficiary hereof.
o Daily Burn expressly authorizes use of the Mobile
Apps by multiple users
through the Family Sharing or any similar functionality provided by Apple.
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.
Daily Burn, Inc.
47-10 Austell Place, Suite #303
Long Island City NY 11101
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 EULA posted by Daily Burn on
the Daily Burn Site or a written amendment signed by an authorized representative
of Daily Burn. A revised EULA will be effective as of the date it is posted
through the Daily Burn Service.
ENTIRE
AGREEMENT: This Agreement incorporates the following documents by
reference: Privacy Policy.
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.