JAWBONE MAY MAKE CHANGES TO THE CONTENT, PRODUCTS AND SERVICES OFFERED ON THE SITE(S) AT ANY TIME. JAWBONE CAN CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS ON THE SITE(S) OR OTHERWISE NOTIFYING YOU OF THE CHANGES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MUST CEASE USING THE SITE(S). IF YOU DO NOT CEASE USING THE SITE(S), YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGE.
THESE TERMS CONTAIN DISCLAIMERS, LIMITATIONS OF LIABILITY, A CHOICE OF CALIFORNIA LAW, A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN'S PERMISSION TO AGREE TO THESE TERMS.
1. Limited License. Jawbone and its licensors retain title, ownership and all rights and interests to the information, documents, materials and services provided on and through the Site(s), including content, logos, graphics and images (together, the "Materials"), except as expressly agreed otherwise in these Terms or in a duly signed writing. Any unauthorized reproduction or modification, distribution, or performance of any Materials is strictly prohibited. You may access, view and download copies of the Site via an industry-standard browser (like Google Chrome, for example) for your personal viewing, but you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner. This limited license terminates automatically if you breach any of these Terms. Also, we reserve the right to suspend or terminate this license and any access rights to the Sites or Materials, for any or no reason, at our sole discretion, at any time. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials. You may not use scraping, spidering, crawling or other technology to access the Site, collect or copy Materials or other information from the Sites, except that we allow bona fide public search engines to track and link to our site for the sole purpose and as necessary to enable users to find the Sites.
2. Trademarks. "Jawbone" and other related graphics, logos, service marks, and trade names used on the Site are the trademarks of Jawbone and may not be used without permission in connection with any third party products or services. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners.
3. Modification. Jawbone reserves the right, at any time, to modify the Site and Materials or to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that Jawbone will not be liable to you or to any third party for any modification of the Site or Materials or modification, suspension, or discontinuance of the Site.
4. Jawbone Mobile App(S). Your use of the UP mobile application or any other Jawbone Mobile App(s), and any web or mobile sites to which such apps may connect are not governed by these Terms, but separate terms and conditions, which we will present to you during registration or, at our sole discretion, make available to you upon request.
5. Third Party Applications. Your use of any third-party applications that you may download through the UP mobile application or any other Jawbone Mobile App(s) or through a third-party app store is not governed by these Terms and may be subject to separate terms by Jawbone or third-parties.
6. Jawbone Developers, Jawbone SDK and Jawbone API. Your use of the Jawbone SDK or Jawbone APIs is not governed by these Terms and is subject to the separate terms of the Jawbone SDK License Agreement, or Jawbone API Agreement, which we will present to you during registration or, at our sole discretion, make available to you upon request.
7. Feedback. If you provide Jawbone with verbal feedback and/or written feedback related to your use of the Site(s) and/or Jawbone products or services including, but not limited to, a report of any errors which you may discover in the Site(s) and/or Jawbone products or services, or related documentation, or suggestions for improvements or changes to the Site(s) and/or Jawbone products or services, you hereby grant Jawbone a perpetual, irrevocable right to use such feedback to develop and improve the Site(s) and/or any Jawbone product or service. Jawbone will treat any feedback or suggestions you provide to Jawbone as non-confidential and non-proprietary.
8. Privacy. Your use of the Site(s) is subject to Jawbone's Website Privacy Statement, as amended from time to time by Jawbone at Jawbone's sole discretion and posted at www.jawbone.com/privacy or available on request.
9. Third Party Links. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of Jawbone. Jawbone is not responsible for the content of any third party web site or any link contained in a third party web site. Jawbone provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
10. Third Party Content. Certain information and other content may be the material of third-party licensors and suppliers to Jawbone (including, without limitation, certain third party logos and trade names ("Third Party Content")). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your personal computer solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. JAWBONE DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. No Warranties. YOU USE THE SITES, THIRD PARTY CONTENT AND MATERIALS AT YOUR OWN RISK AND "AS IS." JAWBONE DOES NOT EXTEND ANY EXPRESS WARRANTIES AND JAWBONE HEREBY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, QUIET ENJOYMENT, AND ACCURACY REGARDING ALL SITES AND MATERIALS.
12. Limitation of Liability.
12.1 IN NO EVENT SHALL JAWBONE AND/OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SITE(S), THE USE OR PERFORMANCE OF THE SITE(S), THE DELAY OR INABILITY TO USE THE SITE(S), OR FOR ANY INFORMATION, THIRD PARTY CONTENT, YOUR APPLICATIONS, SUBMISSIONS OBTAINED THROUGH THE SITE(S), OR OTHERWISE ARISING OUT OF THE USE OF THE SITE(S), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF JAWBONE OR ANY OF ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
12.2 IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE(S), OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE(S). THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS JAWBONE'S LIABILITY OR YOUR REMEDIES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL JAWBONE'S AND/OR ITS SUPPLIERS OR LICENSORS TOTAL CUMULATIVE LIABILITY TO ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED FIFTY U.S. DOLLARS (USD $50).
13. Amendment. Jawbone may, at any time, revise these Terms by updating this posting. By using this Site, you agree to be bound by any such revisions and, therefore, you should periodically visit this page of the Site to examine the then-current Terms.
14. Applicable Laws. Jawbone controls and operates the Site(s) from its headquarters in the United States of America and other jurisdictions. The Site(s) and information available on or via the Site(s) may not be appropriate or available for use in other locations. If you use the Site(s) outside the United States of America, you are responsible for following applicable local laws.
15. Notice and Take-down Process. If you believe that any Materials, Third Party Content or other on the Site or distributed or hosted by Jawbone, you can request that we remove such items by providing Jawbone's designated agent the following information (if and to the extent applicable):
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 or trademarked work claimed to have been infringed, or, if multiple 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 at the Site, and information reasonably sufficient to permit Jawbone to locate the material;
Information reasonably sufficient to permit Jawbone to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Jawbone's agent for notice of claims of copyright or trademark infringement on the Site(s) can be reached as follows:
ATTN: General Counsel
99 Rhode Island Street, Third Floor
San Francisco, CA 94103
By e-mail: Legalnotice@Jawbone.com
Please note that for copyright infringement under Section 512(f) of the Copyright Act and under other laws, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
16. Dispute Resolution And Binding Arbitration Provision.
16.1 Definitions. As used in this Arbitration Provision, the terms "Jawbone," "we," "us," and "our" refer to Jawbone, including its subsidiaries and agents; the terms "you" and "your" refer to you as an individual as well as other individuals you allow to access or use the Site(s), and any legal entity you control, work for, or represent when you access or use the Site(s). The term "Site(s)" as used in this Section 16 means the Site(s), any advertisement or promotion of the Site(s) and any product, service, or software that you obtain from or through Jawbone. The word "Claims" means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
16.2 Informal Efforts to Resolve Dispute. If a dispute arises between you and Jawbone, you should first attempt to resolve it by contacting our Customer Service Center at 1-800-JAWBONE (1-800-529-2663) or by sending the details of your complaint, including your contact information for a response, to the address listed below. We will attempt in good faith to resolve all Claims submitted this way within thirty (30) days of receipt.
16.3 Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court's jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party's intellectual property rights.
16.4 Arbitration and Exclusion of Class Action or Class Arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award to you on an individual basis the same damages and forms of relief as a court could (including injunctive and declaratory relief as well as statutory damages), and must follow the law and terms of this Agreement as a court would. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions and private attorney general actions are not permitted.
16.5 Opt Out Provision. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY JAWBONE IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH JAWBONE, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF PRODUCTS TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
16.6 Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the American Arbitration Association rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
16.7. Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules if you are a resident of the United States; if your use of the Products has been principally for personal or household use, the AAA's procedures for consumer-related disputes including the minimum fairness standards will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the AAA in San Francisco, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in San Francisco, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
16.8 Selection of Arbitrator. The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen (15) years' experience in consumer and technology transactions and who is also a member of the AAA roster of arbitrators. If you and we can't agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. The AAA rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States.
16.9 Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable AAA rules as described on their website at www.adr.org.
16.10 Time Restriction. YOU MUST FILE A COMPLAINT WITH AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
16.11 Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the AAA that is the most convenient for you. The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). The confidentiality provisions of this Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended. At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision will be final and binding on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
16.12 Recovery and Attorneys' Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. The right to attorneys' fees and expenses discussed above supplements any right to attorneys' fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys' fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and Jawbone waives any right it may have to seek an award of attorneys' fees and expenses from you in connection with any arbitration of Claims between us.
16.13 Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
16.14 Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
Jawbone Customer Service Center Address:
ATTN: Customer Service Center
99 Rhode Island Street, Third Floor
San Francisco, CA 94103
17. General Provisions. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms and any dispute or action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any principles that require the application of the law of a different jurisdiction. The failure of Jawbone to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision, which will still be available to Jawbone.
If you have any questions about the foregoing, please contact us at the following e-mail address: firstname.lastname@example.org.
Effective as of: December 16, 2014
Date last updated: December 16, 2014