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burnalong®, Burnalong is a registered trademark of Burnalong, Inc. © 2024 Burnalong, Inc. All rights reserved.
These Terms of Service constitute a legal binding contract between You and Burnalong and govern Your purchase of the Services and provision of access to the Burnalong Platform for Your End-Users. These Terms of Service take effect on the date that You complete the online registration by clicking the “I Accept” button or check box presented with these Terms of Service (the “Effective Date”). If You are entering into these Terms of Service on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms of Service for that Entity and representing to Burnalong that You have the legal authority to bind such Entity and its Affiliates to these Terms of Service, and its and their respective, employees and agents, in which case the terms “You,” “Your” or a related capitalized term herein shall refer to such Entity and Affiliates (and respective employees and agents). If You do not have such authority, or if You do not agree with these Terms of Service, You must not use or authorize any use of the Services.
SECTION 1. ACCESS TO THE SERVICES
1.1 Service. We will make the Services available to End-Users within the Territory pursuant to these Terms of Service and the applicable Order Form(s). Each End-User’s use of the Burnalong Platform and Services will subject to Burnalong’s then current, terms and conditions for End-Users.
1.2 Modifications. You acknowledge that Burnalong may modify the features and functionality of the Services during the Subscription Term.
1.3 Compliance. As between You and Burnalong, You are responsible for compliance with the provisions of these Terms of Service, including by Your employees, agents and End-Users, and for any and all activities that occur under Your Account, which Burnalong may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Services is compliant with all applicable laws and regulations as well as any and applicable privacy policies, agreements or other obligations You may maintain or enter into with Your employees, agents or End-Users. Access to and use of the Services is restricted to Your authorized employees and/or agents. You and Your employees and agents are responsible for maintaining the confidentiality of all login information for Your Account.
SECTION 2. TERM AND TERMINATION
2.1 Subscription Term. Your subscription to the Service shall commence on the Effective Date and continue for the Initial Term as set forth in the Order Form. Upon expiration of the Initial Term, the Subscription Term shall automatically renew for the same period as the Initial Term described in the Order Form unless either Party provides written notice of termination at least thirty (30) days prior to the end of the then-current term.
2.2 Termination. Either Party may terminate Your subscription upon written notice of termination if the other Party: (1) defaults in the performance of or breaches any material requirement or obligation, which default or breach is not cured within ninety (90) days following the defaulting or breaching Party’s receipt of written notice of default; (2) ceases doing business in the normal course; (3) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within ninety (90) days; or (4) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other Party’s assets. Payment obligations of accrued amounts for Services rendered and any claims relating to these Terms of Service shall survive termination.
2.3 Payment. Upon Termination. Except for Your termination under Section 2.2, if You terminate Your subscription to a Service prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your subscription pursuant to Section 2.2, in addition to any other amounts You may owe Burnalong, You must immediately pay any then undisputed Subscription Charges associated with the remainder of such Subscription Term.
2.4 No Refunds. Except for Your termination rights under Section, 2.2, if You elect to terminate Your subscription prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.
SECTION 3. PAYMENTS AND TAXES
3.1 Payment Terms. You agree that the Fees must be paid upfront at the beginning of each Subscription Term by pre-approved credit card in the amount reflected on the Order Form pursuant to these Terms of Service. You authorize Burnalong or its designee to make such automatic charges to Your credit card. If You change Your financial institution, You will provide Burnalong all information needed for the replacement automatic charge at least ten (10) days before the effective date of the change. Any payment that remains unpaid for twenty-one (21) days shall entitle Burnalong to terminate Your subscription for the Service. The closing of Your account, insufficient funds, denial of a transaction by Your credit card company, or any other action which prevents the automatic charge for Fees shall constitute a material breach of these Terms of Service. You agree to pay reasonable attorney fees, legal expenses, and other lawful collection costs and expenses of collection incurred after an uncured breach of these Terms of Service. You acknowledge and agree that Your method of payment shall be processed by a third-party PCI-DSS compliant payments processor.
3.2 Price Increases. Burnalong may increase the Fees for the Services identified in any Order Form for each Renewal Term by up to 8.00% over the Fees paid by You for the prior Subscription Term. The aforementioned limitation shall not apply with respect to price increases following a promotional offer. Burnalong will provide You with written notice of any such price increase.
3.3 Taxes. Each Party shall pay all international, federal, state, and local sales, use, or other applicable taxes for which such Party may become liable under the implementation of this Order Form. You shall be responsible for any applicable taxes related to the purchase of Services except for taxes related to Burnalong’s gross income. You agree to provide all reasonably requested information related to tax matters associated with Your purchase of the Service.
SECTION 4. CONFIDENTIAL INFORMATION
Each Party shall maintain the confidentiality of the Confidential Information of the other Party and not disclose or disseminate such Confidential Information to third parties. The receiving party shall use reasonable care in maintaining the Confidential Information. A receiving party may disclose the disclosing party’s Confidential Information to the extent required by applicable law and the receiving party shall promptly notify the disclosing party and, at the disclosing party’s expense, cooperate with the disclosing party in connection with the disclosing party’s efforts to resist such disclosure or to obtain a protective order. In the event a receiving party breaches or threatens a breach of the provisions of this Section 4, the disclosing party shall be entitled to an injunction restraining the breaching party from the conduct causing such breach or threatened breach. A disclosing party shall not be prohibited from pursuing any other remedies available to that party for such breach or threatened breach, including the recovery of damages from the breaching party. Upon termination or expiration of Your subscription, the Parties shall destroy or return all Confidential Information of the other Party and shall not use any Confidential Information of the other Party in its business. A receiving party shall not be required to delete Confidential Information that is stored in its electronic files as backup and all such Confidential Information shall continue to be subject to the terms of this Section 4 for so long as such information is retained by a receiving party. Each Party shall be entitled to retain one copy of any Confidential Information for legal archival purposes. This Section 4 shall survive termination or expiration of these Terms of Service.
SECTION 5. PROPERTY RIGHTS
5.1 As between You and Burnalong, Burnalong shall own all right, title and interest in and to the Burnalong IP, including, without limitation, all associated intellectual property rights throughout the world.
5.2 Burnalong grants You a non-exclusive, non-transferable, limited license to use the Burnalong IP in the Territory only for the purposes of receiving the Services hereunder and for the purposes of marketing the Services, as the Parties may agree. Burnalong grants You no other license or right to the Burnalong IP and none shall be deemed granted or implied. Burnalong retains all rights not expressly granted herein. Except as otherwise expressly allowed in these Terms of Service, You shall not (a) copy, assign, pledge, rent, lease, time share, bundle, display, disclose, use, distribute, sell, sublicense, license or grant any rights in any of the Burnalong IP; or (b) reproduce, modify, decompile, disassemble or reverse engineer the Burnalong IP.
5.3 As used herein “Burnalong IP” means the Burnalong Platform and Services; all works of authorship, programs, software, code, source code, system design, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, business, templates, documents, materials, technology, trademarks, trade secrets, website(s), modifications, updates and enhancements and concepts whether existing prior to the Effective Date of these Terms of Service or developed pursuant to these Terms of Service.
5.4 Each Party reserves the right to, and control of, the use of its name, symbols, trademarks, and service marks presently existing or later established. Save as expressly provided herein, neither Party shall use the other’s name, symbols, trademarks, or service marks, without the prior written consent of the other Party. You shall have the right to use the name, symbols, trademarks and service marks of Burnalong for the purpose of communicating with End- Users regarding Burnalong’s Services and otherwise to carry out the terms of these Terms of Service. Burnalong shall have the right to use Your name, symbols, trademarks and service marks in communicating with End-Users. Upon the expiration or termination of Your subscription or upon receipt of written notice from the other Party, a Party shall cease its use of any symbol, trademark or service mark of the other Party.
5.5 Burnalong will own all aggregated End-User information relating to an End-User’s use of the Services, provided that such information does not identify a specific End-User. If You were referred to Burnalong by a broker or third-party, Burnalong may share such information on the use of the Services with such broker or third party.
SECTION 6. WARRANTY DISCLAIMERS
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES AND BURNALONG PLATFORM, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
SECTION 7. INDEMNIFICATION
7.1 Burnalong shall indemnify, defend, and hold harmless You, Your Affiliates, and their respective officers, directors, employees and agents (the “Indemnified Party”) from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses“) incurred by an Indemnified Party resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Burnalong IP, infringes or misappropriates such third party’s intellectual property rights. If any Third-Party Claim is brought or asserted against an Indemnified Party, Burnalong shall retain counsel to represent such Indemnified Party and Burnalong shall control the proceeding but shall regularly consult with the Indemnified Party and its counsel regarding such defense. The Indemnified Party shall have the right to participate in such defense through counsel of its own choosing at such Indemnified Party’s sole expense. In no event shall Burnalong consent to entry of judgment or enter into any settlement agreement that does not include a full release of the Indemnified Party. If Burnalong refuses or otherwise fails to defend such Third-Party Claim as provided herein, the Indemnified Party shall have the right to defend such Third-Party Claim in any manner it deems appropriate at the sole cost of Burnalong; provided, however, that such Indemnified Party will not settle such a Third-Party Claim without the prior written consent of Burnalong, which consent shall not be unreasonably withheld or delayed.
7.2 Burnalong shall have no indemnification obligation or other liability for any infringement or misappropriation claim to the extent resulting or alleged to result from: (1) use of the Burnalong IP thereof in combination with any equipment, software, or data not approved for use by Burnalong, or use in any manner for which the Burnalong IP was not designed, or any modification or alteration of the Burnalong IP by an person or entity other than Burnalong; (2) any instruction, information, design or other materials furnished by You to Burnalong hereunder; or (3) Your continuing the allegedly infringing activity after being provided by Burnalong with modifications that would have avoided the alleged infringement.
7.3 If such a Third-Party Claim is made or appears possible, You agree to permit Burnalong, at Burnalong’s sole cost and expense, to (1) modify or replace the Burnalong IP, or component or part thereof, to make it non-infringing, or (2) obtain the right for You to continue use the Burnalong IP. If neither of these alternatives are possible notwithstanding Burnalong’s commercially reasonable efforts, Burnalong may terminate Your subscription, in its entirety or with respect to the affected component or part, effective immediately on written notice to You, provided that Burnalong shall refund or credit to You all amounts paid by You in respect of the Burnalong IP that You cannot reasonably use as intended under these Terms of Service.
7.4 IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST OPPORTUNITIES, BUSINESS INTERRUPTION, LOSS OF DATA), EVEN IF SUCH PARTY IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 THE MAXIMUM CUMULATIVE LIABILITY OF BURNALONG UNDER THESE TERMS OF SERVICE, INCLUDING OBLIGATIONS OF INDEMNITY, SHALL NOT EXCEED $100,000 IN THE AGGREGATE.
SECTION 8. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
8.1 Assignment. Neither Party shall, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms of Service or its rights under these Terms of Service, or delegate performance of its duties under these Terms of Service, without the other Party’s prior written consent, which consent will not be unreasonably withheld. Either Party may, without the other Party’s consent, assign these Terms of Service to any Affiliate of its company, or in connection with any merger or change of control of its company, or the sale of all or substantially all of its company’s assets, provided that any such successor agrees to fulfill its obligations pursuant to these Terms of Service. Subject to the foregoing restrictions, these Terms of Service will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
8.2 Entire Agreement. These Terms of Service constitute the entire agreement and supersedes any and all prior agreements between You and Burnalong with regard to the subject matter hereof. These Terms of Service shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of these Terms of Service.
8.3 Amendment. These Terms of Service, and the provisions, rights and obligations thereof, may be amended, waived or modified (i) upon the written consent of both Parties or (ii) by Burnalong unilaterally with notice given to the You if such amendment, waiver or modification is made with respect to the standard Terms of Service offered to all Burnalong customers on the Burnalong Platform.
SECTION 9. SEVERABILITY
If any provision in these Terms of Service is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms of Service shall remain in effect.
SECTION 10. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
SECTION 11. NOTICE
All notices and other communications required or permitted under these Terms of Service shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by email, message conveyed to the other Party within the Burnalong Platform, or otherwise delivered by hand, messenger or courier service addressed:
if to You, to the contact address entered on the Burnalong Platform
if to Burnalong, to:
Burnalong, Inc.
3635 Old Court Rd., STE 501
Pikesville, MD 21208
Attn: Legal Department
A Party may each modify the foregoing notice information by giving valid notice to the other pursuant to the terms of this section. Each notice or other communication related to these Terms of Service shall for all purposes of these Terms of Service be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, three business days after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or seven days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed stated above, (iii) if sent via email, upon confirmation of delivery when directed to the relevant email address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day, or (iv) if sent via message conveyed within the Burnalong Platform, at the time of transmission.
SECTION 12. GOVERNING LAW
These Terms of Service, its terms, and conditions shall be governed by the laws of the State of Delaware, except for its conflict of law principles. Each Party consents to the personal jurisdiction of, and venue in, the state and federal courts located in Wilmington, Delaware.
SECTION 13. SURVIVAL
Sections that either by their express terms or nature and context are intended to survive termination or expiration of these Terms of Service shall survive any termination of these Terms of Service.
SECTION 14. NO THIRD PARTY BENEFICIARIES
No person or entity, other than You and Burnalong, is intended to be, or is in fact, a beneficiary of this Agreement, and the existence of these Terms of Service shall not in any respect whatsoever increase the right of any End-User or other third party, or create any right on behalf of any End-User or other third party.
SECTION 15. FORCE MAJEURE
A Party shall be excused from the performance of its obligations hereunder and such Party’s nonperformance shall not be a default or grounds for termination of these Terms of Service to the extent that such Party is prevented from performing its obligations as a result any other cause beyond the affected Party’s reasonable control.
SECTION 16. DEFINITIONS
When used in these Terms of Service with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms of Service, the following terms have the following meanings:
“Account” means any accounts or instances created by or on behalf of You or Your Affiliates within the Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Burnalong Platform” means the Burnalong website and mobile application that features health and wellness content.
“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of these Terms of Service, ideas, concepts, designs, audit materials, reports, results, data, documentation, diagrams, research, development, processes, procedures, “know-how”, marketing techniques and materials, marketing and development plans, customer, subscriber, member, officer, director, or provider names, medical records, and other information related to such individuals or entities, price lists, reimbursement policies, and financial information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; and (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
“Employer” means an organization that is entering into these Terms of Service in order to provide access to the Services to its employees.
“End-User” means each of Your employees who is a current legal resident within the Territory that has completed the registration process on the Burnalong Platform.
“Eligible User” means each of Your employees who is a current legal resident within the Territory that is eligible to access the Burnalong Platform.
“Fees” means the fees charged to You for the Services as described in the Order Form.
“Initial Term” means the time period described in the Order Form.
“Order Form” means the online form or other documentation completed, accepted or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of permitted End-Users or Eligible Users authorized under Your subscription and the Fees applicable to the Services.
“Party” means Burnalong, Inc. and You, each individually and collectively referred to as the “Parties”.
“Renewal Term” means the time period described in the Order Form.
“Service(s)” means the Burnalong Platform, and any products and services that are ordered by You and agreed to by Us in an Order Form.
“Subscription Charges” means all charges associated with the Services, including Your access to and use thereof, in accordance with the amounts detailed in the Order Form.
“Subscription Term” means the period during which You have agreed to subscribe to a Service in accordance with the Order Form. The Subscription Term includes the Initial Term and any Renewal Term.
“Terms of Service” means these terms of service including any Order Form.
“Territory” means the United States of America and U.S. territories (American Samoa, Guam, Northern Marianas, Puerto Rico, and Virgin Islands).
“Burnalong”, “We,” “Us” or “Our” means Burnalong, Inc.