Jawbone

JAWBONE(SM) SERVICE AND SOFTWARE TERMS OF USE

These Jawbone(SM) Service and Software Terms of Use ("Terms of Use") are a legal agreement between you and AliphCom ("Aliph") concerning your use of the Jawbone Service and Software (both as defined below) provided by Aliph for updating and controlling your Jawbone® device. To agree to these terms, click "agree." If you do not agree to these terms, do not click "agree" and do not use the Jawbone Service or Software.

The Jawbone Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these Terms of Use with your parent or guardian to make sure that you and your parent or guardian understand them. Your parent or guardian must consent to your use of the Jawbone Service and Software, and agree to these Terms of Use in their entirety by clicking "agree." By agreeing to these Terms of Use, your parent or guardian agrees to accept full responsibility for your use of the Jawbone Service and Software.

1. The Jawbone Service. Aliph is the provider of the Jawbone service (the "Jawbone Service") that enables you to update and control your Jawbone® device ("Jawbone Device").



2. System and Software Requirements. Use of the Jawbone Service requires a personal computer, a Jawbone Device, Internet access and an installed and operating version of the Jawbone application software ("Jawbone Application"). Your ability to use the Jawbone Service may be affected by the performance of these items. You acknowledge and agree that all such system requirements, which may be changed from time to time, are your responsibility. Further, you agree to only use Jawbone Devices that you own or otherwise have been given permission to use whenever using the Jawbone Service. For most effective use of the Jawbone Service, high-speed Internet access is strongly recommended.



3. Software. The software products made available through the Jawbone Service are licensed, not sold, to you. Two types of Aliph software are offered through the Jawbone Service: (i) the Jawbone Application; and (ii) firmware for the Jawbone Device ("Device Firmware"). Aliph may cause the Jawbone Application and updates to the Jawbone Application to be downloaded onto your computer through the Jawbone Service, and may also cause the most recent version of the Device Firmware not already installed onto your Jawbone Device to be downloaded onto the Jawbone Device anytime you are connected to the Jawbone Service. You consent to such downloading of the Jawbone Application and such automatic updating of your Device Firmware.



4. Software License Terms. The Jawbone Application and Device Firmware are collectively referred to as "Software." Your use of the Software is subject to your agreement to be bound by any additional software license terms that accompany the downloading of the Software, all of which software license terms are incorporated in and are hereby made a part of these Terms of Use. Aliph will be responsible for providing any maintenance and support services for the Software that are specified in the applicable license terms, or are required under applicable law. The additional license terms below shall also apply to the Software.



1. 4.1 License Grant. If you have purchased a Jawbone Device, Aliph grants you a non-exclusive right and license to use the Software and the related documentation (the "Documentation") as set forth in these Terms of Use. You may use the Documentation to assist in your use of the Software, but you may not make copies of the Documentation. You may not copy, transfer, transmit, sublicense or assign the rights in this paragraph, or the Software or Documentation, except as expressly permitted in these Terms of Use.



2. 4.2 Restrictions. The Software contains copyrighted material, trade secrets and other proprietary intellectual property. You may not decompile, disassemble, reverse-engineer or otherwise display the Software in human-readable form. You may not modify, translate, rent, lease, distribute, lend or sell the Software, or the right to use it, to others. You may not remove any proprietary notices or labels on the Software, to the extent that you have access to such notices or labels. You agree that the terms of this paragraph apply to the Software and all portions of it, whether owned by Aliph or Aliph's third party licensors.



3. 4.3 Open Source Software. The Software may contain or link to certain software including without limitation "open source software" that is licensed under other software license terms ("Third Party Software"). You agree that any such additional license terms for such Third Party Software, and any other content, source code or other materials that Aliph provides to you, may be provided with the Software, via your access to the website at http://www.jawbone.com, or included as part of these Terms of Use.



5. Accounts. You may be required to establish an account ("Account") in order to use certain aspects of the Jawbone Service. You are solely responsible for maintaining the confidentiality and security of your Account. You should not reveal your Account information to anyone else or use anyone else's Account. You are entirely responsible for all activities that occur on or through your Account, and you agree to immediately notify Aliph of any unauthorized use of your Account or any other breach of security. Aliph is not responsible for any losses arising out of the unauthorized use of your Account. Aliph reserves the right to terminate, disable or not provide all normal features for a particular Account if Aliph suspects or becomess aware of any unauthorized or unpermitted use of such Account or any part of the Jawbone Service.



6. Information and Privacy.



1. 6.1 Collection of Your Information. To use certain features provided by the Jawbone Service and when creating an Account, you may need to provide certain registration information, including personally identifiable information, to Aliph ("Registration Data"). Through the Jawbone Service, Aliph may also be able to automatically collect certain technical data about your Jawbone Device, computer system, and accompanying hardware or software ("Technical Data"), as well as log certain information about your use of the Jawbone Device ("Usage Data"). Registration Data, Technical Data and Usage Data are collectively referred to in these Terms of Use as "Account Data." You agree to provide accurate, current and complete Registration Data and to update the Registration Data as required to keep it accurate, current and complete at all times. Aliph may terminate your rights to or alter the availability of any or all of the Jawbone Service if any Registration Data you provide is false, inaccurate or incomplete. You agree that Aliph may collect, process and store the Registration Data you provide (including credit card information) for use in maintaining your Account, and to otherwise use your Registration Data and other Account Data as set forth in Aliph's most current online privacy policy available at http://www.jawbone.com/legal.aspx ("Aliph Privacy Policy").



2. 6.2 Privacy Policy. The Aliph Privacy Policy describes, in more detail, the types of information Aliph collects from users of our Web-enabled products, the way Aliph handles such information, and the choices you may have with respect to Aliph's collection and use of your information. The Aliph Privacy Policy is expressly incorporated into these Terms of Use by this reference. You are strongly encouraged to read the Aliph Privacy Policy prior to, and periodically during, your use of the Jawbone Service.



3. 6.3 Consent to Transfer and Disclosure. By using the Jawbone Service, you hereby unambiguously consent to the collection and processing of your Account Data by Aliph and to the transfer of your Account Data, as necessary, across national borders, including, but not limited to, to and from Aliph's headquarters in the United States. You further agree and give Aliph the right, without liability to you, to disclose your Account Data to law enforcement authorities, government officials, and third parties, as Aliph believes is reasonably necessary or appropriate to enforce and verify your compliance with these Terms of Use (including, but not limited to, Aliph's right to cooperate with any legal process in relation to your use of the Jawbone Service, any third party claim that your use of the Jawbone Service is unlawful or infringes such third party's rights, etc.).



7. Security. You agree that you will not attempt to, or encourage or assist any other person to, circumvent, modify, reverse-engineer, decompile, disassemble or otherwise tamper with any security technology or software that is part of the Jawbone Service or is used to monitor or enforce these Terms of Use. Aliph may implement DRM or other similar security systems that contain measures designed to prevent unauthorized copying of software used with, accessed through or obtained via the Jawbone Service. You shall not access or attempt to access an Account that you are not authorized to access. Violations of system or network security may result in civil or criminal liability.



8. Third Party Materials and Web Sites. Certain content and services available via the Jawbone Service may include materials from third parties. In addition, Aliph may provide links to certain third party Web sites. Aliph is not responsible for examining or evaluating the content or accuracy of any such third party material or Web sites. Aliph does not warrant or endorse and does not assume and will not have any liability or responsibility for any third party materials or Web sites, or for any other materials, products or services of third parties. Links to other Web sites are provided solely as a convenience to you. You agree that you will not use any third party materials in a manner that would infringe or violate the rights of any other party, and that Aliph is not in any way responsible for any such use by you.



9. Intellectual Property



1. 9.1 Ownership. The Jawbone Service and the Software contain proprietary information and material that is owned by Aliph and/or its licensors, and is protected by applicable intellectual property and other laws, including, but not limited to, domestic and international copyright laws. You may not use such proprietary information or materials in any way whatsoever except for use of the Jawbone Service in compliance with these Terms of Use. No portion of the Jawbone Service or the Software may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Jawbone Service or the Software, in any manner, nor shall you exploit the Jawbone Service or the Software in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. THE USE OF THE SOFTWARE OR ANY PART OF THE JAWBONE SERVICE, EXCEPT AS EXPRESSLY PERMITTED IN THESE TERMS OF USE, IS STRICTLY PROHIBITED, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES.



2. 9.2 Removal of Content or Features. Notwithstanding any other provision of these Terms of Use, Aliph and its licensors reserve the right to change, suspend, remove or disable access to any content, features or other materials comprising a part of the Jawbone Service at any time without notice. In no event will Aliph be liable for the removal of or disabling of access to any such content, features or materials under these Terms of Use. Aliph may also impose limits on the use of or access to certain features or portions of the Jawbone Service, without notice or liability.



3. 9.3 Trademarks. All Aliph logos and trademarks used in connection with the Jawbone Service are trademarks or registered trademarks of Aliph in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Jawbone Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.



10. Changes. Aliph reserves the right, at any time and from time to time, to update, revise, supplement and otherwise modify these Terms of Use and the Aliph Privacy Policy and to impose new or additional rules, policies, terms and conditions on your use of the Jawbone Service. Unless expressly stated to the contrary, such updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions (all, collectively, the "Additional Terms") will be effective immediately and incorporated into these Terms of Use. Your continued use of the Jawbone Service following Aliph's adoption and posting of any Additional Terms will be deemed to constitute your acceptance of any and all such Additional Terms. The most recent terms of these Terms of Use and the Aliph Privacy Policy are always available for viewing at http://www.jawbone.com/legal.aspx, and such posted terms will show the last date such terms were updated.



11. Compliance with Laws. The Jawbone Service is controlled and operated by Aliph from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances and regulations that apply to your use of the Jawbone Service.



12. Enforcement. Aliph reserves the right to take steps that Aliph believes are reasonably necessary or appropriate to enforce and verify your compliance with these Terms of Use.



13. Termination. These Terms of Use and all rights and licenses granted herein are effective from the time you accept these Terms of Use until these Terms of Use are terminated. You may terminate these Terms of Use at any time by permanently ceasing your use of the Jawbone Service and the Software. These Terms of Use will terminate immediately and without further notice if you fail to comply with any provision of them. All obligations of confidentiality and restrictions on use, and all other provisions that may reasonably be interpreted to survive termination of these Terms of Use, will survive termination of these Terms of Use, regardless of the reasons for termination. Upon termination, you agree to cease all use of the Jawbone Service and the Software. If you fail to comply with any of the provisions of these Terms of Use, including, but not limited to, failing to provide Aliph with accurate and complete Registration Data, failing to keep your Registration Data private, or infringing or otherwise violating the rights of any third party, Aliph, at its sole discretion, without notice to you may: (i) terminate these Terms of Use; (ii) terminate all rights of your Account; and (iii) preclude you from accessing the Jawbone Service or any part of it.



14. DISCLAIMER OF WARRANTIES AND LIABILITY LIMITATIONS.



1. 14.1 SERVICE INTERRUPTIONS. ALIPH DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE JAWBONE SERVICE, SOFTWARE OR JAWBONE DEVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT, FROM TIME TO TIME, ALIPH MAY REMOVE OR SUSPEND THE JAWBONE SERVICE FOR INDEFINITE PERIODS OF TIME FOR MAINTENANCE PURPOSES. FURTHER YOU ACKNOWLEDGE THAT ALIPH'S CONTINUED PROVISION OF THE JAWBONE SERVICE RELIES UPON THE GENERAL OPERATION OF THE INTERNET AND WORLD WIDE WEB AND CERTAIN FACTORS NECESSARY FOR THE CONTINUOUS OPERATION OF THE INTERNET AND WORLD WIDE WEB ARE BEYOND ALIPH'S CONTROL.



2. 14.2 NO WARRANTIES FOR JAWBONE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE JAWBONE SERVICE IS AT YOUR SOLE RISK. THE JAWBONE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.



3. 14.3 DISCLAIMER OF CERTAIN DAMAGES. IN NO CASE SHALL ALIPH, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE JAWBONE SERVICE OR THE SOFTWARE, OR FOR ANY OTHER CLAIM THAT IS RELATED IN ANY WAY TO YOUR USE OF THE JAWBONE SERVICES OR THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR FEATURE POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE JAWBONE SERVICE OR THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES AND JURISDICTIONS, ALIPH'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.



4. 14.4 DISCLAIMER OF LOSSES AND INTRUSIONS. ALIPH DOES NOT REPRESENT OR GUARANTEE THAT THE JAWBONE SERVICE, THE SOFTWARE OR THE JAWBONE DEVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND ALIPH DISCLAIMS ANY LIABILITY RELATING THERETO.



5. 14.5 INFORMATION. ALIPH WILL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE JAWBONE SERVICE, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK. ALIPH HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.



15. WAIVER AND INDEMNITY. BY USING THE JAWBONE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS ALIPH, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS AND LICENSORS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS OF USE, YOUR USE OF THE JAWBONE SERVICE OR THE SOFTWARE, OR ANY ACTION TAKEN BY ALIPH AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS OF USE OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THESE TERMS OF USE HAS OCCURRED.



16. Governing Law and Venue. These Terms of Use and your use of the Jawbone Service are governed by the laws of the State of California, without reference to its conflicts of law rules. Your use of the Jawbone Service may also be subject to other local, state, national or international laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with Aliph or relating in any way to your use of the Software resides in the state or federal courts of San Francisco County, California. You hereby irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.



17. Licensee Outside the U.S If you are located outside the U.S., then you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.



18. Miscellaneous. These Terms of Use constitute the entire agreement between you and Aliph concerning your use of the Jawbone Service, and they supersede any prior agreements between you and Aliph concerning the Jawbone Service. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the other provisions will remain in full force and effect. Aliph's failure to enforce any right or provision in these Terms of Use will not constitute a waiver of such provision, or any other provision of these Terms of Use. Waiver of a breach shall not waive the right to enforce any subsequent breach under these Terms of Use. Aliph will not be responsible for failures to fulfill any obligations due to causes beyond its control. If you have any questions regarding this Agreement, you may contact Aliph at the address appearing on Aliph's website at http://www.jawbone.com/.