BURN360 TERMS OF SERVICE AND LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS OF SERVICE AND LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, USING, OR ACCESSING ANY PART OF THE BURN360 WEBSITE OR MOBILE APPLICATION (IF AVAILABLE)
The following are the terms and conditions for use of www.burn360.com and members.burn360.com, any affiliated sub-domains, and any affiliated websites on which these Terms are posted (collectively the "Website"), the Burn360 Mobile Application and its services (if available) (the "Application"), and access to certain proprietary Burn360 digital books, videos, programs, and related content and services (collectively, the Website, the Application, and the products and content are referred to as the "Services"). The Services are owned and operated by Burn360 Media Inc. d/b/a Burn360 ("Burn360" or "us," or "we")).
By accessing the Services, continuing to access the Services, submitting any information through the Services, or downloading or using the Application, and in consideration for the services Burn360 provides to you, YOU (the terms "you" or "yours" includes the person or entity that is accessing the Services as well as any third-parties accessing the Services on your behalf ) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS GOVERNING THE USE OF THE SERVICES (the "Terms"). Use of the Services is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices, including the class action waiver, contained herein.
I. OVERVIEW AND HEALTH DISCLAIMERS
Burn360 develops and sells exercise programs and related materials in the form of digital books, videos, fee-based subscription content, and other related services. The Burn360 program was developed by Shin Ohtake through decades of experience and research. However, Burn360 is not a medical organization and cannot provide you any medical advice. We strongly urge you to consult with your physician (or primary health-care provider) before starting any exercise or diet plan. We also urge you to get periodic medical checkups. Exercise and weight loss can create physical changes that should be medically monitored. Medical monitoring is especially important for people with a known medical condition. The Burn360 program is designed to improve your health, but is not intended to treat any illness or disease.
If you are being treated for an illness, taking prescription medication, or following a therapeutic diet to treat a disease, it is especially important to show the Burn360 program to your physician. Any modifications made to the program by your physician should be followed.
After the first two or three weeks of a new exercise or diet program, weight loss should not exceed a rate of three pounds or 1.5% of your body weight per week. If you exceed these levels, you should adjust your use of the program and talk to your physician.
The advice and information contained on the Services may not be appropriate for all individuals. Therefore, the author, employees, company, affiliates, or any other parties involved in the creation or promotion of our products are not responsible for any injuries or health conditions that may result from advice, opinions, and programs represented in the Website, the Services, or any of our training programs or other products. The information on the Website, Services, and in the training program are the opinions of the author and are not a replacement for medical advice. If you choose to follow the Burn360 program without consulting your physician, you are doing so at your own risk.
We claim no responsibility for any injuries you might sustain. Exercises include tutorials and detailed descriptions to give you the information you need to be able to perform the exercise with proper form. However, it is your responsibility to warm up properly, determine the weight you will use, perform each movement correctly, and ultimately to decide whether or not you are capable of performing the exercise/workout without sustaining injury.
II. REGISTRATION, ELIGIBILITY FOR SERVICES, PAYMENT, AND INFORMATION SUBMISSION
Registration. In order to utilize some of the Services' features, including a subscription membership, you must register and create an account. In order to create an account, you must complete the registration process by providing Burn360 with complete and accurate information as prompted by the registration form, including contact information, a username, and password. You shall protect your password and take full responsibility for your own and third-party activities that occur under your account. You agree to notify Burn360 immediately of any unauthorized use of your account or any other breach of security. If you create an account on behalf of an entity, these Terms bind both you and the entity.
Refusal of Service. Burn360 reserves the right, with or without notice, to terminate the account of, or refuse service to, any persons that violate these Terms, violate any party's intellectual property rights, abuse other users of the Services, misuse the Services, or otherwise engage in inappropriate conduct, as determined by Burn360 in its sole discretion.
Payment. If you make any purchases through the Services, you agree to pay all applicable charges and fees for those purchases and to comply with the terms of the applicable payment processor. Unless otherwise stated, all prices are stated in U.S. Dollars. The purchase of certain digital products through the Website are subject to an additional separate licensing agreement.
Information Submission and Age Restriction. By submitting any information, including any User Content as defined below, through the Services, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into these Terms and use the Services. Burn360 does not intend to use the Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.
Electronic Communications. By accepting these Terms and using the Services, you consent to receive electronically all communications or notices sent by Burn360 with regard to the Services or these Terms to any email address you provide to Burn360. It is your responsibility to update your contact information provided to Burn360. In order to receive electronic communications, you must have a working connection to the internet and meet any specifications required by your email service provider. Burn360 may send communications in a non-electronic format in Burn360's discretion.
III. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Burn360 reserves the right to change or modify any of the terms and conditions contained in these Terms or any policy governing the use of the Services, at any time, by posting the new terms on the Services. The most current version of these Terms will be located on this webpage. You understand and agree that your access to or use of the Services is governed by the then-current Terms that are effective at the time of your access to or use of the Services. If we make material changes to these Terms, we will notify you by updating the "Updated" date indicated at the top of this page with the date that revisions to these Terms were last made. We will not notify you of any such changes by email or other personal contact, but we reserve the right to do so. You should revisit these Terms on a regular basis as revised versions will be binding upon you. Any such modification will be effective upon our posting of such new Terms. You understand and agree that your continued access to or use of the Services after the effective date of modifications to the Terms indicates your acceptance of the modifications.
IV. ACCESS TO AND USE OF WEBSITE; PROPRIETARY RIGHTS
Access and Use of the Website. Subject to, and in accordance with, these Terms, Burn360 permits you to access and make personal use of the Website. Burn360 reserves all rights not expressly granted to You hereunder. Your authorization to access and use the Services is automatically revoked if you violate any of these Terms. Burn360 reserves the right to revoke your authorization to access or use the Website or Services at any time for any reason.
Proprietary Rights. Except as expressly provided for in the non-exclusive license contained in Section V below, Burn360 expressly reserves all right, title, and interest in and to the Services content, including all digital books, videos, and content available on the Services, including any copyright, patent, or trademark or other intellectual property right, or federal or state right, pertaining thereto.
V. LICENSES TO USE DIGITAL BOOKS, VIDEOS, AND PREMIUM MEMBERSHIP CONTENT
Licenses. The Services may allow you to purchase a digital book (the "Books"), purchase videos (the "Videos"), or purchase a fee-based subscription to the Burn360 membership content (the "Premium Content"). Videos may be made available on their own or through access to the Premium Content. Subject to, and in accordance with, these Terms, and conditioned upon proper payment (and continued payment for the Premium Content), Burn360 grants to You, and You accept from Burn360, a non-exclusive and non-transferable limited license to access and use the applicable purchased Books, Videos, and Premium Content as described herein. Burn360 reserves all rights not expressly granted to You hereunder. This license is automatically terminated if you violate any of these Terms.
Payment. Your use of the Books or Videos (unless Videos are made available as a part of the Premium Content) is conditioned upon the one-time payment described when you placed your order. Your access to and use of the Premium Content (and any Videos contained within the Premium Content) is conditioned upon your recurring payment to Burn360 for a subscription to use the Premium Content. If you fail to make the required payments to Burn360, or your subscription period ends, your license to access the Premium Content is automatically revoked.
Burn360 may offer the Premium Content, or a limited version thereof, in a limited free form, on a limited free-trial basis, or on a fee-based subscription basis. Please review the specific terms of your applicable subscription for more details on any required payment, the details of any free-trial offer, and the potential for additional purchases or fees for increased capabilities. If you fail to cancel your subscription within the free-trial period, you will incur subscription fees.
Personal Use. You may only use the Books, Videos, or the Premium Content for your own personal use.
Prohibitions and Copyright. The Burn360 Books, Videos, and Premium Content are protected by domestic and international copyright laws, making it illegal for you to give away, email, sell, auction, reprint, or otherwise distribute copies, whether in digital or physical format. No part of the Books, Videos, Premium Content, or the related files may be reproduced or transmitted in any form, by any means (electronic, photocopying, emailing, recording, or otherwise) without the prior written permission from the author. Violators will be prosecuted to the full extent of the law. Copyright infringement is a serious crime with the potential for substantial penalties.
However, for Books you purchase, Burn360 gives you permission to download and print the digital Book out for your own personal use and to make a backup of the digital file. If you have multiple devices (e.g. laptop and smartphone), you are permitted to save a copy on each of those devices for your own personal use. In the event that you lose your copy due to a computer outage, please contact Burn360 and we will be happy to replace it for you.
You must not do, or permit others to do, any of the following: (a) modify the Books, Videos, or Premium Content in any way, except as expressly permitted in these Terms; (b) remove or modify Burn360's copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Books, Videos, or Premium Content; or (c) rent, lease, distribute (or redistribute), provide or otherwise make available the Books, Videos, or Premium Content, in any form, to any third party. In addition, You will not violate or attempt to violate the security of Burn360's networks or servers, including (x) accessing data not intended for You or log into a server or account which You are not authorized to access; (y) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempting to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
Disclaimers. The Books, Videos, and Premium Services are provided "AS IS." Burn360 does not represent or warrant and expressly disclaims any warranty that (i) your computer or device has the specifications to support the PDF or similar file containing the Book, Video, or Premium Content; (ii) any information contained in the Books, Videos, or Premium Services will be accurate, (iii) the Books, Videos, or Premium Services will be error-free or accessible at all times, (iv) defects will be corrected, (v) the Books, Videos, or Premium Services or the server that makes it available, are free of viruses or other harmful component, or (vi) the use or the results of the use of the Books, Videos, or Premium Services will be correct, accurate, timely, or otherwise reliable.
Maintenance or Support. Burn360 is not under any obligation to provide maintenance or support for the Books, Videos, or Premium Content. Burn360 may provide maintenance or support for the Books, Videos, or Premium Content in Burn360's sole discretion.
VI. BURN360 MOBILE APPLICATION LICENSE (IF AVAILABLE)
License. Burn360 may offer from time to time the Burn360 Mobile Application.
If such an Application is available and you choose to download it, subject to, and in accordance with, these Terms, Burn360 grants to You, and You accept from Burn360, a limited, revocable, non-exclusive, and non-transferable license to use the Application. Burn360 reserves all rights not expressly granted to You hereunder. This license is automatically revoked if you violate any of these Terms.
Payment Terms. Burn360 may make all or some of the Application and the Application's services available for free (the "Free Services"). Burn360 does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time. The Free Services may have reduced functionality. Please review the specific terms for your applicable purchase. If you make a purchase through the Services, then you consent to Burn360 storing your payment information. Prices are subject to change. In the event the Burn360 Services are discontinued for any reason, any purchases will terminate and no refund will be made.
Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to You to use, receive or view, copies of source code, schematics, master copies, design materials or other information used by You in creating, developing or implementing the Application, including updates or modifications thereto. Without limiting the foregoing, You shall have no rights to receive any source code for the Application and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application for any purpose.
Prohibitions. You must not do, or permit others to do, any of the following: (a) copy or modify the Application in any way, except as expressly permitted in these Terms; (b) remove or modify Burn360's copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or Services; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Application's source code or object code or other runtime objects or files distributed with the Application; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or Services; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or Services, in any form, to any third party (including in any service bureau or similar environment); (f) use the Application or Services to process the data of third parties; (g) use, install, or make available the Application, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (h) use the Application or Services to infringe on any person's copyright. In addition, You will not violate or attempt to violate the security of Burn360's networks or servers, including (x) access data not intended for You or log into a server or account which You are not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing
You are also prohibited from taking any actions in violation of the prohibitions and requirements set forth in Section XIV below.
Infringement. If a third party claims that the Application or the Services infringes its patent, copyright or trade secret, or any similar intellectual property right, Burn360 will defend You against that claim at Burn360's expense and pay all damages that a court finally awards, provided that You promptly notify Burn360 in writing of the claim, and You allow Burn360 to control and You cooperate with Burn360 in, the defense or any related settlement negotiations. If such a claim is made or appears possible, You agree to permit Burn360 to modify the Application or Services in order to attempt to avoid such claims. If Burn360 determines that this alternative is not reasonably available, You agree to uninstall or return the Application on the Burn360's request, and without any further liability or obligation of Burn360. Further, Burn360 shall have no obligation whatsoever for any claim based on Your modification of the Application or Your combination, operation, or use with any product, data or apparatus not specified or provided by Burn360. THIS PARAGRAPH STATES BURN360'S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Maintenance or Support. Burn360 is not under any obligation to provide maintenance or support for the Application. Burn360 may provide maintenance or support for the Application in Burn360's sole discretion.
Uninstallation. You may, at any time, uninstall the Application by utilizing your mobile device's procedures for uninstalling downloaded applications. However, Burn360 may retain collected data after the uninstallation.
Third-Party Terms. You must comply with applicable third-party terms of service when using the Application, including any terms required by your mobile carrier or device manufacturer.
Apple and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Application through the Apple or Google operating systems, if available and as applicable:
- This is a custom end-user license agreement between you and Burn360, and not with Apple. Burn360, and not Apple, is solely responsible for the Application, the Services, and the related content.
- Burn360 grants you the non-transferable right to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
- In the event of any failure of the Application to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of to conform to any warranty, if any, will be the sole responsibility of Burn360.
- Burn360, and not Apple, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application's use of the HealthKit and HomeKit frameworks, if applicable.
- In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Burn360, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Any questions, complaints, or claims with respect to the Application should be directed to the address contained in Section XX, below, or at [email protected]
- You must comply with applicable third party terms of agreement when using the Application.
- Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and, upon your acceptance, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- This is a separate end user license agreement between you and Burn360, and not with Google.
- Subject to, and in accordance with, these Terms and any required payments, Burn360 grants to You, and You accept from Burn360, a non-exclusive, worldwide, and perpetual license to perform, display, and use the Application on your device that can access Google Play. The user may include, but is not limited to, a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play are subject to reasonable limits designed to prevent abuse of family sharing features. Users in a family group may purchase a single copy of the Services (except in-app and subscription products, which cannot be shared) and share it with other family members in their family group. This license is automatically revoked if you violate any of these Terms.
- You are allowed unlimited reinstalls of the Application, unless and until Burn360 removes the Application from the Google Play or any other Google-branded distribution platform.
- Burn360, and not Google, will have the sole responsibility to undertake or handle support and maintenance of the Application or any complaints about the Application, subject to these Terms.
- Burn360, and not Google, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; (c) intellectual property claims; and (d) claims arising under consumer protection, privacy, or similar legislation, if applicable.
- Burn360, and not Google, is solely responsible for Burn360's breach of any agreement with Google, any applicable third-party contract or terms of service, or any applicable law or regulation.
- Any questions, complaints, claims, or issues regarding defects or performance issues with respect to the Application should be directed to the address contained in Section XX, below, or at [email protected]
VII. USER-GENERATED/THIRD-PARTY CONTENT
Overview and Age Restrictions. The Services may, from time to time, allow users and third-parties to upload, post, or otherwise transmit user-generated content, including but not limited to comments, recommendations, pictures, reviews, images, and other forms of data or communications ("User Content"). By submitting User Content, you represent that you are 13 years of age or older, and, if under the age of 19, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into these Terms and use the Services.
User Obligations and License; Intellectual Property. You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively "Post") through the Services and once Posted, it cannot always be withdrawn. You agree not to Post through the Services any User Content which is false, defamatory, infringes upon another party's intellectual property, or is otherwise illegal. By Posting User Content on the Services, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.
Subject to the above limitation, by Posting User Content, you automatically grant, and warrant and represent that you have the right to grant, Burn360 a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, and distribute such User Content for any purpose and to prepare derivative works of, or incorporate into other works, such User Content.
You assume all risks associated with your Posted User Content on the Services, including anyone's reliance on its quality or reliability. By Posting User Content you may expose yourself to liability if, for example, your Posted User Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Testimonials and Photographs. If you Post or otherwise transmit to Burn360 a testimonial statement and/or photographs depicting your results using the Burn360 system, you grant, and warrant and represent that you have the right to grant, Burn360 a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, copy, perform, display, and distribute the testimonial statement and/or photograph for any purpose, including posting on the Services or using in any Burn360 advertising materials.
By Posting or sending any testimonials or photographs of your results, you represent that the testimonial statement is true, that you used the Burn360 system as directed, and that the photographs and testimonial accurately depict your experience using the Burn360 system.
If you no longer wish Burn360 to use your written testimonial statement, please contact us. If we do not hear from you, we will assume you still stand behind your testimonial statement.
If you received any kind of compensation, whether monetary, in the form of a free service, free product, or otherwise, you must notify us of this fact when posting or sending your testimonial.
Rules of Conduct. In addition to all other obligations and terms stated in these Terms, you agree to abide by any rules of conduct or community guidelines posted on the Services. Burn360 reserves the right to exclude or suspend any user who violates these rules of conduct, and reserves the right, but does not undertake an affirmative obligation, to remove, screen or edit any content which is contrary to these rules without prior notice. User Content does not necessarily reflect the opinion of Burn360.
Communications Decency Act. As provided in 47 U.S.C. § 230(c)(1), Burn360 is only a distributer, and not the publisher or speaker, of any User Content. As such, Burn360 cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the services are those of their respective authors alone. Burn360 does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will Burn360 be responsible for any loss or damage resulting from any person's reliance on any User Content.
Reservation of Rights. Subject to Section VIII below, regarding the DMCA/Notice and Notice Regime, and subject to applicable law, Burn360 reserves the right to remove or not remove any User Content from the Services for any reason or no reason at all, in Burn360's sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. Burn360 reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
Suggestions. By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Burn360 and its users any claims and assertions of any rights, whether intellectual property rights or otherwise, contained in such Feedback.
VIII. DIGITAL MILLENNIUM COPYRIGHT ACT (USA) /NOTICE AND NOTICE REGIME (CANADA)
against Burn360 respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act ("DMCA") or Notice and Notice Regime as it is known in Canada. Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify Burn360's designated copyright agent in accordance with Title 17, United States Code, Section 512(c)(2) and/or in accordance with the Canada Notice and Notice Regime, by providing the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed infringement should be forwarded to Burn360's designated agent as follows:
Troy F. Meyerson
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
Alternate names the public may be likely to use to search for our designated agent include: burn360.com, members.burn360.com, and Burn360 Media.
After receiving a valid DMCA/Notice and Notice Regime notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA/Notice and Notice Regime, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification. If you posted or submitted material to Burn360 which Burn360 removed or disabled access to pursuant to a DMCA/Notice and Notice Regime notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to Burn360's designated agent listed above:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Burn360 may be found, and that you will accept service of process from the person who provided the notification of claimed infringement or an agent of such person.
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in 10 to 14 business days after our designated agent's receipt of the counter-notification, at our sole discretion.
Burn360 reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
IX. PAYMENT AND REFUND POLICY
As noted above, you may choose to purchase a Book or Video through the Services. You may also choose to purchase a fee-based premium subscription to use the Burn360 Premium Content. If you purchase a Book, Video, or Premium Content subscription, then you consent to Burn360 storing your payment information. You agree to pay the applicable fees for the Premium Content as they become due and to reimburse Burn360 for all collection costs and interest. The failure to pay may result in the termination of your account or subscription. Your obligation to pay fees continues through the end of the subscription period during which you cancel your subscription. Burn360 does not guarantee refunds for lack of usage or dissatisfaction with the Premium Content. Prices are subject to change.
X. THIRD-PARTY SERVICES
The Services may use or provide access to one or more third-parties to process payments, process account or user registrations, or provide other services. The use of such third-party services are subject to the third-party's terms of service. Any disputes arising regarding a third-party's services must be resolved directly between user and the third-party. Burn360 disclaims all warranties or representations regarding any third-party services.
Burn360, in its sole discretion, and without notice to you, may subcontract any Services to be performed by a third-party.
XI. REPRESENTATIONS, WARRANTIES, OR DISCLAIMERS
Burn360 does not represent or warrant and expressly disclaims any warranty that (i) any information provided by the Services will be accurate, (ii) the Services will be error-free or accessible at all times, (iii) defects will be corrected, (iv) the Services or the server that makes the Services available, are free of viruses or other harmful component, (v) the use or the results of the use of the Services or the products made available through the Services will be correct, accurate, timely, or otherwise reliable, or (vi) that the Services will be supported on all web browsers or mobile operating systems. It is expressly understood by all users that the Application and the Services may be from time to time be inaccessible, inoperable, or may not provide all features as a result of multiple factors which may or may not be within Burn360's control. These factors may include, but are not limited to, variables in internet, telecommunications, data, cellular or satellite services provided by your wireless carrier to your mobile device, geographic limitations, poor wireless signal strength, periodic maintenance to the Services, malfunctions in the Application or the Services, limitations due to your particular mobile device, or any other reason which may prevent the Application and its services from being accessible at all times. Burn360 disclaims any liability as a result of any user's inability to access or use the Application or the Services at a particular time, location, on a particular device, or using a particular wireless provider.
Further, Burn360 expressly disclaims any representation or warranty relating to any products, services, or companies displayed, described, advertised, reviewed, recommended, linked to, or pictured on the Services, if any. Burn360 does not endorse any such products, services, or companies and does not warrant that any such products, services, or companies are available, will meet the user's needs, are appropriate for any particular use, or are of any certain quality. Likewise, Burn360 does not guarantee that any product, service, or company descriptions, reviews, portrayals, specifications, or the like are accurate. Under no circumstances will Burn360 be responsible for any loss or damage resulting from any person's reliance on any such product, service, or company descriptions, reviews, or specifications contained on the Services.
THE SERVICES AND ALL BOOKS, DIGITAL BOOKS, VIDEOS, AND PREMIUM CONTENT ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY BURN360 EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE FOREGOING, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. BURN360 DOES NOT WARRANT THAT THIS WEBSITE'S SERVICES, THE BOOKS, VIDEOS, OR THE PREMIUM CONTENT WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE, BOOK, VIDEOS, OR PREMIUM CONTENT, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, PRODUCTS, OR SERVICES PROVIDED THROUGH THE WEBSITE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES, THE BOOK, VIDEO, AND THE PREMIUM CONTENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
We do not guarantee that the Services, and any products sold through the Services, will be compatible with all devices.
If you access the Website or any of its related products or services through a mobile device, your wireless service carrier may charge you data rates and related fees.
XII. DEVICE AND WIRELESS CARRIER LIMITATIONS AND DISCLAIMERS
While Burn360 attempts to provide all Services and Application features to all users, use of the Application and the Services may be limited for some or all users due to conditions outside of Burn360's control. As a result, not all advertised features may be available to you at all times. Some of these conditions include, but are not limited to, the following: Your mobile device or your wireless carrier may limit the features available to you. Your data or messaging plan may limit your use of the Services. Your wireless voice and/or data signal may make access to the Applications or some of its feature intermittent or unavailable. The Application and its features may not be available in some geographic locations.
Burn360 is not liable, and expressly disclaims any representations or warranties, regarding access to the Application or its services or features through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. Burn360 does not guarantee that the Services will always be accessible or available. You are solely responsible for any costs you incur to access the Application through your mobile device.
XIV. COMPLIANCE AND PROHIBITED ACTIONS
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third-parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation.
You may not use any information obtained from the Service in order to harass, abuse, or harm another person.
You may not purchase any products or services through the Services which are prohibited in your jurisdiction.
In order to protect the integrity of the Services, Burn360 reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Services. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by Burn360 to limit, restrict, or prevent access to the Services.
You may not reproduce, copy, bulk download, redistribute, or resell any content contained within the Services without the express written consent of Burn360. You may not use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the Services without the express written consent of Burn360. You may not frame or mirror any Burn360 website or content without the express written consent of Burn360.
You agree to indemnify, hold harmless and defend Burn360, its directors, employees, agents, or affiliates (collectively the "Indemnified Parties") at your expense, against any and all third-party claims, actions, proceedings, and suits brought against any of the Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of these Terms, (ii) your Posting of User Content, (iii) your use of the Services, or (iv) your unauthorized use of the Services. In such a case, the Indemnified Party or Parties will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. The Indemnified Party or Parties will reserve the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
XVI. LIMITATIONS OF LIABILITY
BURN360 WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY (A) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, (B) LOSS OF PROFITS, (C) LOSS OF DATA OR INFORMATION, (D) BODILY INJURY OR EMOTIONAL DISTRESS, OR (E) REPUTATIONAL HARM, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF BURN360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, BURN360 'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY PRODUCTS SOLD THROUGH THE SERVICES, SHALL NOT EXCEED THE GREATER OF (1) THE AGGREGATE FEES PAID BY YOU FOR THE BURN360 PRODUCTS OR SERVICES DURING THE PREVIOUS SIX (6) MONTHS, OR (2) ONE HUNDRED AND 00/100 DOLLARS ($100.00). YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES
XVII. TERMS AND TERMINATION
XIX. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
The U.S. Department of the Treasury, through the Office of Foreign Assets Control ("OFAC"), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a "Sanctioned Country") and certain individuals, organizations or entities, including without limitation, certain "Specially Designated Nationals" ("SDN") listed by OFAC. If you are located in a Sanctioned Country or are listed as an SDN, you are prohibited from registering or signing up with, subscribing to, or using the Services. If Burn360 determines that the Services are being used by prohibited persons, Burn360 will terminate any impacted accounts. Burn360 reserves the right to also provide notification of any such usage to the US DOT/OFAC.
XX. APPLICABLE LAW AND VENUE
These Terms shall be governed by and construed under the laws of the province of British Columbia without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and British Columbia law, rules, and regulations, British Columbia law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in the province of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms. The services provided by Burn360 hereunder are controlled by Canada Export Regulations, and they may not be exported to or used by embargoed countries or individuals. Any notices to Burn360 must be sent to:
Burn360 Media Inc. d/b/a Burn360
533-1641 Lonsdale Ave
North Vancouver, BC V7M 2J5
via first class or air mail or overnight courier, and are deemed given upon receipt.
XXI. MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS
Except if other applicable laws require otherwise, the parties hereto agree and understand that any dispute or claim related to your use of the Services, any dispute or claim related to your purchase or use of any products or services sold through the Services, any disputes regarding any alleged breach of these Terms, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce these Terms or for the breach of these Terms, shall be referred to final and binding arbitration, and not in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in the province of British Columbia, subject to the laws of the province of British Columbia and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney's fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
All parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
These Terms (including any amendment agreed upon by the parties in writing) represent the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of these Terms are held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. The relationship between Burn360 and you is not one of a legal partnership or employment relationship. These Terms shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.