DAILY BURN Terms of Service

LAST UPDATED: SEPTEMBER 22, 2011

PLEASE READ THIS DOCUMENT CAREFULLY. Daily Burn, Inc. ("Daily Burn," "we," or "us") is an online fitness and nutrition community located at DailyBurn.com (the "Daily Burn Site") with related mobile applications and desktop applications, (collectively, the "Daily Burn Service"). By registering as a member or by using the Daily Burn Service in any way, you accept these Terms of Service ("Agreement"), which forms a binding agreement between you and Daily Burn. If you do not wish to be bound by this Agreement, do not use the Daily Burn Service.

Content

1. Who May Use the Daily Burn Service 2. License to Use the Daily Burn Service 3. Privacy 4. Membership Requirements 5. Membership Structure 6. Term and Termination; Account Deletion 7. Content Restrictions 8. Code of Conduct 9. Submissions 10. Your Representations and Warranties 11. Indemnification 12. Third Party Links and Content 13. Disclaimers 14. Limitation of Liability 15. Professional Advice Disclaimer / Medical Disclaimer 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 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 support@dailyburn.com.

2. 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, 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 APP: Your use of the Daily Burn Service through one of our mobile applications is also subject to our Mobile App Addendum.

3. Privacy

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:

4. Membership Requirements

REGISTRATION: To fully use the Daily Burn Service, you must register as a member by providing a user name, password, and valid email address. 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.

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 an unauthorized access to your account, you must change your password and notify us immediately at support@dailyburn.com.

5. Membership Structure

OPTIONS: During its Beta phase, Daily Burn is offering free basic memberships to the Daily Burn Services. Daily Burn reserves the right to charge for its services at any time. Features and prices are subject to change.

6. 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.

ACCOUNT DELETION: You may delete your account at any time. Basic accounts may be deleted from the Daily Burn Service if they remain inactive (i.e., the user fails to log in) for a continuous period of at least six (6) months.

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 and 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.

EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by Daily Burn will terminate. Sections 6 and 11 though 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.

7. Content Restrictions

You may not upload, post, or transmit (collectively, "submit") any video, image, text, audio recording, or other work (collectively, "content") that:

8. Code of Conduct

In using the Daily Burn Service, you must behave in a civil and respectful manner at all times. Further, you will not:

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 or to satisfy or comply with applicable laws, regulations and/or legal processes.

9. Submissions

As between you and Daily Burn, you own all content that you submit to the Daily Burn Service. You grant 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" 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.

10. Your Representations and Warranties

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.

11. Indemnification

You agree to indemnify, defend, and hold harmless Daily Burn and its affiliates, directors, officers, employees, and agents, from and against all claims, damages, losses and costs 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 third party right, including any intellectual property or privacy right.

12. Third Party Links and Content

The links on the Daily Burn Sites and/or the Daily Burn Service will 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"). Daily Burn neither controls nor endorses these linked 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 inappropriate nature of any content, advertising, products or other materials on or available from any 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.

Your participation, correspondence or business dealings with any third party found on or through the Daily Burn Sites and Service, 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.

13. Disclaimers

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 available on the Daily Burn Service complies with this Agreement or is suitable for all users.

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:

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 disclaimers and warnings in this Agreement.

To the extent any disclaimer or limitation of liability 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.

14. Limitation of Liability

To the fullest extent permitted by law: (i) 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; and (ii) Daily Burn's total liability to you shall not exceed the amounts paid by you to Daily Burn over the twelve (12) months preceding your claim(s).

15. Professional Advice Disclaimer / Medical Disclaimer

Professional Advice Disclaimer.

The DAILY BURN SITE OFFERS HEALTH, FITNESS AND NUTRITIONAL INFORMATION AND IS DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS OR NURTITIONAL PROGRAM. 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 DAILY BURN SITE. THE USE OF ANY INFORMATION PROVIDED ON THE DAILY BURN SITE IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THE DAILY BURN SITE OR AVAILABLE THROUGH ANY DAILY BURN SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.

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 THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE DAILY BURN SITE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

Medical Disclaimer.

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 month; (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, breastfeeding or lactating or (B) your physician has specifically approved your use of DailyBurn.

Daily Burn, Inc. reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions.

16. Intellectual Property

You acknowledge that the Daily Burn Site 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 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 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 Daily Burn 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.

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:

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 is 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:

• Email: copyright@dailyburn.com

• 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:

• Email: copyright@dailyburn.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.

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:

Daily Burn, Inc.
555 West 18th Street
New York, New York 10011
Attn: Legal Dept. - Copyright Agent
copyright@dailyburn.com

18. General Provisions

GOVERNING LAW: This Agreement shall be governed by the laws of the State of New York, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

DISPUTES: Any action arising out of or relating to this Agreement or your use of the Daily Burn Service must be commenced in the state or federal courts located in New York County, New York, United States of America (and you consent to the jurisdiction of those courts). In any such action, Daily Burn and you irrevocably waive any right to a trial by jury.

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 support@dailyburn.com or the following address:

Daily Burn, Inc.
555 West 18th Street
New York, New York 10011
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.