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AMERICAN EXPRESS TERMS OF USE FOR THE UP4

Last Modified: February 2016

Thank you for using your American Express® Card and wanting to connect it with your Amex payment-supported UP4 by Jawbone (“UP4”). Once your Eligible Card (as defined in the first bullet below) has been successfully connected to your UP4, you will be able to use your UP4 for contactless payments wherever American Express contactless payments are accepted in the US. This connected Card that can be used for contactless payments in your UP4 is referred to as your “Amex Payments for UP4.” For your security, you will have a unique number for your Amex Payments for UP4 separate from your plastic Card number. That number will be your “Digital Account Number.” The following terms and conditions (these “Terms of Use”) govern the use of your Amex Payments for UP4. These Terms of Use are a legal agreement between you and American Express Travel Related Services Company, Inc. (“we” or “American Express”). They apply to you and anyone else you authorize to use your Amex Payments for UP4.


PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE CONNECTING YOUR ELIGIBILE CARD OR USING YOUR AMEX PAYMENTS FOR UP4, BECAUSE BY DOING SO, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS OF USE.


IF YOU DO NOT WANT TO AGREE TO THESE TERMS OF USE, YOU MUST NOT CONNECT YOUR CARD TO YOUR UP4 OR USE AMEX PAYMENTS FOR UP4.


  • You may use an American Express U.S. Consumer or Small Business credit or charge Card that is not cancelled and that is issued to you by a U.S. banking subsidiary of American Express (an “Eligible Card”) to connect to your UP4. Prepaid cards and products, American Express Corporate Cards and American Express-branded cards or account numbers issued by other financial institutions cannot be linked to the UP4. You must also have a valid User ID at Americanexpress.com that provides account access to your Eligible Card.
  • You can only connect one Eligible Card to your UP4. Once you have connected an Eligible Card, you cannot switch it to another Card. This is true even if your Card account is cancelled for any reason. There are only limited circumstances when American Express may be able to switch the Card to another Card, such as, for instance, when you upgrade or downgrade your Card. If, however, American Express replaces your connected Card plastic (when, for instance, it is lost or stolen), this will not disrupt the use of your UP4.
  • The contactless payment capability for this UP4 will expire and cease to function as early as July 31, 2019. After expiration you will not be able to use this UP4 for payments. American Express will send you a notification closer to the date of expiration with more information.
  • You are solely responsible for maintaining the physical security of your UP4. If you share your UP4 with any other person, they may be able to use your Amex Payments for UP4 to make payments. If you permit others to use your UP4, you are responsible for any transactions they authorize. We also strongly recommend that you protect your phone with either a passcode or Touch ID to prevent access to the personal information included in the UP app.
  • Call us immediately at the American Express telephone number printed on the back of your Card if you believe your UP4 has been lost, stolen or compromised in any way.
  • These Terms of Use govern your access to and use of your Amex Payments for UP4 only as between American Express and you. Jawbone and other third parties may provide products or services to you for your UP4 or in connection with your use of the UP4. All these products and services may have their own terms and conditions and privacy policies (“Third Party Agreements”) and you are also subject to those Third Party Agreements when you give them your personal information or use their services.
  • We are not responsible for, and do not provide, any support or assistance for any hardware, software or other products or services including your UP4. If you have any questions or issues with respect to the operation of your UP4, please contact Jawbone.

While American Express does not currently charge any fee for connecting your Eligible Card to your UP4 or using your Amex Payments for UP4, you will be responsible for all fees that may be imposed by non-American Express parties in connection with your use of your Amex Payments for UP4 and be subject to any restrictions those third parties may impose.


Also, in addition to these Terms of Use, your use of your Amex Payments for UP4 to purchase goods and services is still governed by the applicable Card Member Agreement for the Eligible Card you connected to your UP4. You can call the American Express number on the back of your Card to request a copy of the applicable Card Member Agreement or go to www.americanexpress.com/us/content/cardmember-agreements/all-us.html.


1. ARBITRATION


Each Card Member Agreement contains a Claims Resolution provision, with a provision regarding binding arbitration that affects your rights with respect to your use of the Card you use to create Amex Payments for UP4. That arbitration provision applies as well to any disputes between you and us arising from these Terms of Use or your creation, access to or use of Amex Payments for UP4 and your use of any Eligible Card (as defined below) within the Jawbone services environment. By connecting or using your Amex Payments for UP4, you agree to be subject to and comply with the terms of these Terms of Use and the Card Member Agreement for the Eligible Card you used to connect your UP4.


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2. USE OF YOUR AMEX PAYMENTS FOR UP4


The UP4 enables you to connect an Eligible Card to permit you to use your UP4 to make contactless payments   at merchants’ contactless-enabled point-of-sale terminals or readers that accept American Express contactless payments in the US. You agree to use the Amex Payments for UP4 only with a properly equipped UP4 and to comply with all Jawbone terms and conditions applicable to your UP4. The embedded payment chip representing your Amex Payments for UP4 is located on the bottom strap of your UP4, near the clasp. By placing your UP4 near the terminal or reader, you are authorizing the payment for the merchant’s products or services with your Amex Payments for UP4.


Some merchants may require a customer signature at point-of-sale to complete the transaction. In some cases, a merchant may ask to verify the last few digits of your Card number for purchases or returns. If that is the case, you should provide the last few digits of your Digital Account Number displayed in the UP app within the Payments section. To complete transactions above a certain dollar amount, merchants may also require presentation of a physical companion card or a government-issued form of identification to authenticate your identity.


Only One Card May Be Connected to Your UP4 . Once you connect an Eligible Card to an UP4, you will not be able to connect a different Card to the same UP4. Although you will never be able to connect your UP4 to a different Card, we may be able to change the Card that is connected to your UP4 in limited circumstances, such as, for instance, when you upgrade or downgrade your Card. However, if we switch or replace the details of your plastic Card and your Card Account remains open (for example, if your plastic Card is lost or stolen), this will not disrupt your use of your Amex Payments for UP4.


Expiration of Payment Capability . The contactless payment capability for your UP4 will expire and cease to function as early as July 31, 2019. After expiration you will not be able use your UP4 for payments. American Express will send you a notification closer to the date of expiration with additional information.


Purchases you make with your Amex Payments for UP4 are governed by the Card Member Agreement for the Eligible Card you used to connect to your UP4. If a problem arises with the product or service you purchased through use of the Amex Payments for UP4, you first should try to resolve the problem directly with the merchant, but you may also have rights under your Card Member Agreement or otherwise under applicable law.


If your plastic Card expires or is replaced, you will not need to update your Card information in your UP4. Your Digital Account Number will be connected to your new Card number automatically. If your Card account is cancelled for any reason, you will no longer be able to make payments with your UP4.


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3. ELIGIBILITY


You must have the power, authority and capacity to accept these Terms of Use. If you are a minor under the laws of the jurisdiction in which you enter into this agreement (under 18 in most States), you must have obtained the consent of the Basic Card Member to connect your Eligible Card to your UP4 and, by connecting your Eligible Card, you acknowledge and agree that you have received that consent.


You may use an American Express U.S. Consumer or Small Business credit or charge Card that is not cancelled and that is issued to you by a U.S. banking subsidiary of American Express (an “Eligible Card”) to connect to your UP4 and to enable your Amex Payments for UP4. Prepaid cards and products, American Express Corporate Cards and American Express-branded cards or account numbers issued by other financial institutions cannot be linked to the UP4. You can call the American Express number on the back of your Card to determine if it is eligible.


You must also have a valid User ID at Americanexpress.com that provides account access to your Eligible Card.   You can register by visiting www.americanexpress.com/myca.


In order to use an UP4, you must have the appropriate mobile hardware. For a list of compatible mobile devices, please go to https://jawbone.com/up/devices.


As noted above, you may only connect one Eligible Card to one UP4. However, we may permit you to add the same Eligible Card to as many as five (5) UP4s. You must agree to these Terms of Use each time you add an Eligible Card to an UP4.


If you have questions about your UP4 or the UP app, please contact Jawbone.


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4. THIRD PARTY AGREEMENTS AND SUPPORT


These Terms of Use only address the terms and conditions that apply to your use of your Amex Payments for UP4. Jawbone and other third party websites or services integrated in the UP4 or to be used in connection with your UP4 have their own Third Party Agreements and you are subject to those Third Party Agreements when you give them your personal information, use their services or visit their respective sites. American Express is not responsible for the security, accuracy, legality, appropriateness or any other aspect of the content or function of Jawbone’s or any other third party’s products or services.    


It is your responsibility to read and understand the Third Party Agreements before connecting your Eligible Card to your UP4 or using your Amex Payments for UP4 for payment.


We are not responsible for, and do not provide, any support or assistance for any third party hardware, software or other products or services (including your UP4). If you have any questions or issues with respect to the operation of your UP4, please contact Jawbone.


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5. PRIVACY AND SECURITY


What Data American Express Collects


When connecting your Eligible Card to your UP4, we collect certain information from you to verify your identity and to enable you to use your Amex Payments for UP4. You authorize American Express to collect, use and share your information in accordance with our U.S. Online Privacy Statement, as it may be amended from time to time, and which is available at https://www.americanexpress.com/privacy.


You agree that we may also collect and use technical data and related information, including, but not limited to, technical information about your UP4 periodically to improve our products or upgrade our services or technologies. We do not collect health information that you share with Jawbone, or other personal information except as described above.


What Data Amex Makes Available to You in the UP app


To facilitate your participation, also note that we will make certain account information relating to the Eligible Card you have selected to use with your UP4 available for display within the UP app on your mobile device, including but not limited to your first name, last name’s initial and your card type image, as well as the last five digits of your Digital Account Number.


What Data Jawbone Collects


Any information Jawbone collects in connection with your use of your UP4 is subject to Jawbone’s Privacy Policy and Terms of Use, located at https://jawbone.com/legal/privacy and https://jawbone.com/legal/terms respectively. American Express is not responsible for any services offered by Jawbone or any other third party that may collect or use data through your use of your UP4.


If your UP4 is lost, stolen or compromised


If you believe your UP4 has been lost, stolen or compromised in any way, you can quickly suspend or disconnect the payments feature in your UP4 by using the UP app. Go to the Payments section of your UP app and tap “Manage” directly below the image of your Card. From there, tap either “Suspend Payments” or “Disconnect.”


If you cannot access the UP app, or if you think your UP4 is stolen, please call American Express Customer Care immediately using the American Express number on the back of your Eligible Card.


You will not be liable for charges made with your UP4 if it is confirmed as lost or stolen but you must cooperate with us in any investigation. Also note that once you have disconnected your Eligible Card, you will no longer be able to make payments with your UP4 until you reconnect that Card to your UP4.


If your plastic Card is lost or stolen and you receive a replacement Card, you will not need to update your Card information in your UP4. Your Digital Account Number will be connected to your new plastic Card number automatically.


Security


The payment information associated with your Amex Payments for UP4 is a separate and unique number from your plastic Card called a “Digital Account Number.” We do not share your plastic Card account number with Jawbone and only your Digital Account Number is used for payments with your UP4.


Subject to the Card Member Agreement governing the use of the Eligible Card you used to connect to your UP4, you are responsible for all transactions made using your Amex Payments for UP4.   You are also responsible for maintaining the confidentiality of your Jawbone account information. You should keep your UP4 and Jawbone account information secure in the same manner as you would keep your cash, checks, credit cards, and other personal identification numbers and passwords secure and use any fraud prevention or other related measures we may, from time to time, prescribe. If you share your UP4 with any other person, they may be able to use your UP4 to make payments. If you permit others to use your UP4, you are responsible for any transactions made with your Amex Payments for UP4 they authorize. Also, if you share your mobile device with any other person, they may be able to access the UP app and the information showing under the Payments section of the app. For your security, we strongly recommend that you lock your phone with either a passcode or Touch ID to prevent unauthorized access to your personal information.


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6. SUSPENSION; CANCELLATION


We reserve the right for any reason to discontinue offering or supporting any Amex Payments for UP4, any UP4 or the UP app. Except as otherwise required by applicable law, we may block, restrict, suspend or terminate your use of any Amex Payments for UP4 at any time without notice and for any reason, including if you violate these Terms of Use or any of your Card Member Agreements, if we suspect fraudulent activity or as a result of the cancellation or suspension of your Eligible Card account. You agree that we will not be liable to you or any third party for any block, suspension, cancellation or termination of your Amex Payments for UP4 or your UP4’s payment functionality.


American Express may also in its sole and absolute discretion discontinue providing any services to you if you are suspected of violating these Terms of Use or any applicable Third Party Agreement. ANY ATTEMPT TO DELIBERATELY INTERFERE, INTERRUPT, MODIFY, AUDIT, ASSESS, RE-ENGINEER, OR DAMAGE ANY ASPECT OF YOUR AMEX PAYMENTS FOR UP4 OR UNDERMINE THE LEGITIMATE OPERATION OF THAT CARD IS A VIOLATION OF CRIMINAL AND CIVIL LAWS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, AMERICAN EXPRESS RESERVES THE RIGHT TO SEEK DAMAGES AND COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) FROM ANY INDIVIDUAL OR ENTITY RESPONSIBLE FOR SUCH ATTEMPT.


As stated above, you may quickly suspend or disconnect the payments feature in your UP4 by using the UP app. Go to the Payments section of your UP app and tap “Manage” directly below the image of your Card. From there, tap either “Suspend Payments” or “Disconnect.”


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7. DISCLAIMER OF WARRANTIES


WE ARE NOT RESPONSIBLE FOR YOUR UP4 OR THE UP APP OR THE SOFTWARE OR HARDWARE THEY RESPECTIVELY CONTAIN AND MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE SAME.


YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE UP4, INCLUDING AMEX PAYMENTS FOR UP4, IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AMEX PAYMENTS FOR UP4 IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE,” WITH ALL DEFECTS THAT MAY EXIST FROM TIME TO TIME AND WITHOUT WARRANTY OF ANY KIND, AND AMERICAN EXPRESS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO AMEX PAYMENTS FOR UP4, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE, ON BEHALF OF OURSELVES AND OUR SUPPLIERS, ALSO DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF AMEX PAYMENTS FOR UP4, OR THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, AMEX PAYMENTS FOR UP4 WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OR AVAILABILITY OF AMEX PAYMENTS FOR UP4 WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN AMEX PAYMENTS FOR UP4 WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AMERICAN EXPRESS, ANY OF ITS AUTHORIZED REPRESENTATIVES OR ANY THIRD PARTY SHALL CREATE ANY WARRANTY.


ACCESS, USE AND MAINTENANCE OF AMEX PAYMENTS FOR UP4 DEPEND ON JAWBONE’S UP APPLICATION AND OTHER SERVICES. AMERICAN EXPRESS DOES NOT OPERATE JAWBONE AND HAS NO CONTROL OVER ITS OPERATIONS. WE WILL NOT BE LIABLE TO YOU FOR ANY CIRCUMSTANCES THAT INTERRUPT, PREVENT OR OTHERWISE AFFECT THE FUNCTIONING OF ANY UP4, SUCH AS UNAVAILABILITY OF THE PAYMENT FUNCTIONALITY, THE ABSENCE OF A CONTACTLESS TERMINAL OR READER AT ANY MERCHANT, OR ANY INTERRUPTIONS, DELAYS, LIMITATIONS OR OUTAGES IN YOUR WIRELESS SERVICE, INTERNET CONNECTIVITY OR ANY CONTACTLESS COMMUNICATION THAT PREVENT YOU FROM HAVING ACCESS TO ANY OF THE FUNCTIONALITY OF YOUR UP4 OR THE UP APP.


USE OF AMEX PAYMENTS FOR UP4 INVOLVES THE ELECTRONIC TRANSMISSION OF PERSONAL INFORMATION THROUGH THIRD PARTY CONNECTIONS. BECAUSE WE DO NOT OPERATE OR CONTROL THESE CONNECTIONS, WE CANNOT GUARANTEE THE PRIVACY OR SECURITY OF THESE DATA TRANSMISSIONS. CHECK WITH JAWBONE FOR INFORMATION ABOUT ITS PRIVACY AND SECURITY PRACTICES. FOR PERSONAL OR CONFIDENTIAL INFORMATION SENT TO OR FROM AMERICAN EXPRESS OVER THE INTERNET FROM YOUR UP4, WE RESERVE THE RIGHT TO LIMIT SUCH CONNECTIONS TO "SECURE SESSIONS" THAT HAVE BEEN ESTABLISHED USING TRANSPORTATION LAYER SECURITY OR OTHER SECURITY STANDARDS WE SELECT.


This Section 7 will survive any termination of these Terms of Use.


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8. LIMITATION OF LIABILITY


EXCEPT AS OTHERWISE PROVIDED BY LAW, IN NO EVENT SHALL AMERICAN EXPRESS, ITS DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR FINANCIAL DAMAGES, LOST REVENUES, OR OTHER LOSSES OF ANY KIND, ARISING OUT OF THESE TERMS OF USE OR IN ANY WAY RELATED TO YOUR USE OR INABILITY TO USE AMEX PAYMENTS FOR UP4, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


NOTHING IN THESE TERMS OF USE SHALL OPERATE SO AS TO EXCLUDE OR LIMIT OUR OR OUR SUPPLIERS’ LIABILITY FOR ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. Federal law and the laws of certain States or other jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply, some or all of the above exclusions or limitations may not apply to you, and you may have rights in addition to those contained in these Terms of Use.


This Section 8 will survive any termination of these Terms of Use.


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9. LICENSE FOR YOUR AMEX PAYMENTS FOR UP4


AMEX PAYMENTS FOR UP4 IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER THE TERMS AND CONDITIONS OF THESE TERMS OF USE. AMERICAN EXPRESS RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU.


You are granted a non-exclusive, non-sublicensable, non-transferable, personal, limited license to have a virtual representation of your Eligible Card on display in the UP app and to use your Amex Payments for UP4 solely in accordance with these Terms of Use. The license is limited to compatible devices and UP4s that you own or control and as permitted by any applicable Third Party Agreements. Such license does not allow you to use Amex Payments for UP4 or the Digital Account Number on any devices that you do not own or control (or for which you do not have authorization from American Express to connect an Eligible Card, such as where prohibited by applicable security policies in the case of corporate users).


Certain software that American Express uses to provide Amex Payments for UP4 has been licensed from third parties (each a “Third Party Licensor”) that are not affiliated with American Express. This limited right to use such software is revocable at the discretion of American Express. American Express and its Third Party Licensors retain all right, title and interest in and to the software used by American Express to provide Amex Payments for UP4) and any modifications and updates thereto. You agree that you will not use any third-party materials associated Amex Payments for UP4 or Jawbone services in a manner that would infringe or violate the rights of any party, and that we are not in any way responsible for any such use by you. All third party intellectual property marks, including the logos of merchants, are the property of their respective owners.


You may not rent, lease, lend, sell, redistribute or sublicense your Amex Payments for UP4. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any Amex Payments for UP4 or the Payments section of the UP app, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing the use of any open sourced components included with Amex Payments for UP4, UP4 or the UP app). Any attempt to do so is a violation of the rights of American Express and its Third Party Licensors. If you breach this restriction, you may be subject to a civil lawsuit, prosecution and damages. The terms of the license will govern any upgrades provided by American Express that replace or supplement Amex Payments for UP4 or the Payments section of the UP app, unless such upgrade is accompanied by a separate agreement in which case the terms of that agreement will govern.


You agree that Amex Payments for UP4 or the Payments section of the UP app may be automatically updated or upgraded without notice to you. At any time, at our sole discretion and without prior notice, we may expand, reduce or suspend the type and/or dollar amounts of transactions allowed using Amex Payments for UP4 or change the process by which you connect an Eligible Card to your UP4.


The license granted hereunder is effective until terminated by you or American Express. Your rights will terminate automatically without notice from American Express if you fail to comply with these Terms of Use or if we terminate your use of your Amex Payment in UP4 or Eligible Card. Upon termination of the license, you must cease all use of and disconnect your Amex Payments for UP4. To disconnect your Card, go to the Payments section of your UP app and tap “Manage” directly below the image of your Card. From there, tap “Disconnect.”


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10. GOVERNING LAW


These Terms of Use, your use of Amex Payments for UP4, and any claim, dispute or controversy arising from or relating to these Terms of Use or your use of Amex Payments for UP4 are governed by and construed in accordance with the laws of the State of New York (without regard to its conflict of laws rules) and applicable federal law.  The legality, enforceability, and interpretation of these Terms of Use and the amounts contracted for, charged, and received under these Terms of Use, if any, will be governed by such laws.  These Terms of Use are entered into between you and us in New York.  Subject to your and our rights contained in the Arbitration section above as well as the arbitration provision included in the applicable Card Member Agreement, you expressly agree that exclusive venue and jurisdiction for any claim or dispute with us, or relating in any way to these Terms of Use or your use of your Amex Payments for UP4, shall be New York, New York, and you further agree and expressly consent to, as applicable subject to the arbitration provisions referenced above, the exercise of personal jurisdiction over you in the courts of New York, New York in connection with any such dispute, including any claim involving us or our affiliates, subsidiaries, employees, contractors, officers, directors, agents and content providers.


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11. MISCELLANEOUS


Your access to and use of  Amex Payments for UP4 is subject to all applicable international, federal, state and local laws and regulations.  We reserve the right to seek all remedies available at law and in equity for violations of these Terms of Use.  These Terms of Use (including all agreements and policies referenced in these Terms of Use, which are not modified or superseded by these Terms of Use) set forth the entire understanding and agreement between you and us, whether written or oral, with respect to the subject matter hereof and supersede any prior or contemporaneous understandings or agreements with respect to such subject matter.  If any part of these Terms of Use are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms of Use will continue in effect.  Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision.  The Section titles in these Terms of Use are for convenience only and have no legal or contractual effect.  We may assign these Terms of Use, in whole or in part, at any time with or without notice to you.  You may not assign these Terms of Use, or any part of it, to any other party.  Any attempt by you to do so is void.  These Terms of Use will inure to the benefit of and be binding upon the parties hereto and their successors and assigns.  There are no third-party beneficiaries to these Terms of Use, except that American Express affiliates are third-party beneficiaries of these Terms of Use with the right to enforce them.  If a dispute relates or arises from the subject matter of these Terms of Use and relates to Amex Payments for UP4, such dispute will be governed by the arbitration provision in the Card Member Agreement applicable to the Eligible Card connected to your UP4.  The terms of this Section 11 will survive termination of these Terms of Use, together with any other terms which by their nature the parties contemplate should survive.


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12. CHANGES TO THESE TERMS OF USE


We reserve the right to revise these Terms of Use at any time and you are deemed to be aware of and bound by any changes to these Terms of Use by your continued access to or use of any Amex Payments for UP4.  We will indicate that changes to these Terms of Use have been made by updating the date indicated after “Last Modified:” at the beginning of these Terms of Use.  You will also be able to view the revised Terms of Use at the following site: americanexpress.com/UP/Terms.  If you do not accept any revisions made to these Terms of Use, your sole and exclusive remedy is to cancel your use of and disconnect your Amex Payments for UP4 from your UP4.  To disconnect your Amex Payments for UP4, go to the Payments section of your UP app and tap “Manage” directly below the image of your Card.  From there, tap “Disconnect.”


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13. COMMUNICATION


As a condition to activating and using Amex Payments for UP4, you consent to receive certain messages on your compatible mobile device (i.e., SMS, MMS) from us.  You also agree to receive notices and other communications from us by e-mail to the e-mail address on file for the relevant Eligible Card account, posting within your online account, or through the messaging capabilities of the Up app, although e-mail will be our primary method of communication to you.


To update the contact information we have on file for you, please go to the Amex® Mobile app, americanexpress.com, or call the American Express number on the back of your Eligible Card.


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14. INDEMNIFICATION


You shall indemnify and hold American Express, its licensors, sponsors, agencies and its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) your use of any Amex Payments for UP4 and any UP4 or (ii) any breach of the terms and conditions set forth in these Terms of Use by you, your Additional Card Members or other users of your Amex Payments for UP4.  You must use your best efforts to cooperate with us in the prosecution or defense of any such claim.  We have to employ counsel of our choice to defend and control any such matter subject to indemnification by you.  You have the right, at your own expense, to employ separate counsel to participate in such matter on a non-controlling basis.


As provided in the Card Member Agreement, the Basic Card Member is responsible for all uses of the Card account by Additional Card Members.  The Basic Card Member will also be responsible for all uses made by third parties the Basic Card Member gives access to your Amex Payments for UP4, including if these third parties misuse your Amex Payments for UP4 or the Jawbone services.


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