TERMS OF SERVICE Date of Last Update: October 6, 2015 Fitbit designs products and tools that track everyday health and fitness to empower and inspire users to lead healthier, more active lives. These Terms of Service (“Terms”) govern your use of our personal fitness and electronic body monitoring products, our websites, including www.fitbit.com, the software embedded in Fitbit devices, the Fitbit Connect software, the Fitbit mobile applications, memberships and other Fitbit services (collectively, the “Fitbit Service”). You must accept these Terms to create a Fitbit account and to use the Fitbit Service. If you do not have an account, you accept these Terms by visiting www.fitbit.com or using any part of the Fitbit Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.FITBIT.COM OR USE THE FITBIT SERVICE. THESE TERMS MAY CHANGE These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.fitbit.com. We will notify you by email, through the Fitbit Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the Fitbit Service after a modification is posted, you are telling us that you accept the modified terms. READ OUR PRIVACY POLICY Any information that Fitbit collects through your use of the Fitbit Service is subject to the Fitbit Privacy Policy, which is part of these Terms. WHO CAN USE FITBIT? You may use the Fitbit Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the Fitbit Service using a device that is manufactured, distributed, or sold by or on behalf of Fitbit; the Fitbit mobile applications; the Fitbit Connect software; approved third-party applications; or www.Fitbit.com (“Authorized Connections”). You may not connect to the Fitbit Service with any device that is not manufactured, distributed, or sold by or on behalf of Fitbit (such as a knock off or counterfeit version of a Fitbit Product); otherwise intends to resemble or purports to be a Fitbit Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Fitbit Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact brandprotection@fitbit.com. CREATING AN ACCOUNT Full use of the Fitbit Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. Fitbit is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. We may need to contact you about your use of the Fitbit Service. These communications are part of the Fitbit Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings. NECESSARY EQUIPMENT Full use of the Fitbit Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Fitbit Service and it is your responsibility to ensure the equipment’s functionality. POSTING YOUR CONTENT ON THE FITBIT SERVICE You may post photos, exercise regimens, food logs, recipes, comments, and other content (“Your Content”) to the Fitbit Service. You retain all rights to Your Content that you post to the Fitbit Service. By making Your Content available on or through the Fitbit Service you grant to Fitbit a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the Fitbit Service. You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the Fitbit Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances. You also agree that Your Content will comply with the following community guidelines: Be respectful of the opinions of others. Even though you might not agree with someone, that doesn't mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return. Do not post profane or explicit content. Do not post profile pictures that might be considered inappropriate. Do not post communications that could be interpreted as threatening or harassing. Do not post, advertise, or promote products or services commercially. FITBIT’S RIGHTS “Fitbit Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Fitbit Service to you. Except for Your Content, Fitbit Content, the Fitbit Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Fitbit Service. WHAT YOU CAN DO ON THE FITBIT SERVICE The Fitbit Service is intended for your personal, non-commercial use. Fitbit grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Fitbit Content, (2) access and use the software and mobile applications provided by the Fitbit Service, and (3) use the software that is embedded into Fitbit products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Fitbit Service as permitted in these Terms. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fitbit Content, Fitbit Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fitbit or its licensors, except for the licenses and rights expressly granted in these Terms. THINGS YOU CANNOT DO ON THE FITBIT SERVICE Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Fitbit Service: (1) use, display, mirror or frame the Fitbit Service or any individual element within the Fitbit Service, Fitbit’s name, any Fitbit trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fitbit’s express written consent; (2) access or tamper with non-public areas of the Fitbit Service, Fitbit’s computer systems, or the technical delivery systems of Fitbit’s providers; (3) test the vulnerability of any Fitbit system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Fitbit or any of Fitbit’s providers or any other third party (including another user) to protect the Fitbit Service or Fitbit Content; (5) access the Fitbit Service or Fitbit Content through the use of any mechanism other than through the use of an Authorized Connection, Fitbit Service or Fitbit API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Fitbit provides to you or any other part of the Fitbit Service. OUR ENFORCEMENT RIGHTS We are not obligated to monitor access or use of the Fitbit Service, Fitbit Content, or Your Content or to review or edit any Fitbit Content or Your Content, but we have the right to do so for the purpose of operating the Fitbit Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Fitbit Service, any Fitbit Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Fitbit Service. USE THE FITBIT SERVICE AT YOUR OWN RISK Our goal is to provide helpful and accurate information on the Fitbit Service, but we make no endorsement, representation or warranty of any kind about any Fitbit Content, information, services or recommendations. The accuracy of the data collected and presented through the Fitbit Service is not intended to match that of medical devices or scientific measurement devices. We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Fitbit Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any Fitbit Content or the Fitbit Service, you do so solely at your own risk. CONSULT YOUR DOCTOR BEFORE USING THE FITBIT SERVICE The Fitbit Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Fitbit Service, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the Fitbit Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Fitbit Service. If you engage in any exercise program you receive or learn about through the Fitbit Service you agree that you do so at your own risk and are voluntarily participating in these activities. Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. To reduce irritation, follow four simple wear and care tips: (1) Keep it clean; (2) keep it dry; (3) don’t wear it too tight, and (4) give your wrist a rest by removing the band for an hour after extended wear. For more information visit www.fitbit.com/productcare. IF YOU NOTICE ANY SKIN IRRITATION, REMOVE YOUR DEVICE. IF SYMPTOMS PERSIST LONGER THAN 2-3 DAYS AFTER REMOVING THE DEVICE, CONSULT YOUR DOCTOR. Fitbit products using PurePulse™ technology have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use if you (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders. If you feel soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after wearing the product, please discontinue use. USE COMMON SENSE Use of the Fitbit Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your Fitbit product or service, including those located on our Wear and Care page. DMCA/COPYRIGHT POLICY Fitbit respects copyright law and expects its users to do the same. It is Fitbit’s policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see Fitbit’s DMCA/Copyright Policy. ADDITIONAL POLICIES APPLY TO PRODUCT ORDERS Fitbit’s Terms of Sale and Return Policy and Warranty apply to purchases made through the Fitbit store at www.fitbit.com. All orders placed are subject to Fitbit’s acceptance. We may accept, decline, or place limits on your order for any reason. FEEDBACK AND SUBMISSIONS POLICY If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Fitbit, or obtained from sources other than you. Our Feedback and Submissions Policy is also part of the Terms. TERMS SPECIFICALLY RELATED TO OUR PREMIUM FITBIT MEMBERSHIP Additional terms and conditions apply to the Premium Fitbit membership. CONTESTS AND GIVEAWAYS Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by Fitbit and its partners. It is your responsibility to carefully review those terms and conditions. YOU AGREE TO RECEIVE ALERTS AND NOTIFICATIONS As part of your use of the Fitbit Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier. WE ARE NOT RESPONSIBLE FOR THIRD-PARTY LINKS ON THE FITBIT SERVICE The Fitbit Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under Fitbit’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services. FITBIT DOES NOT CONTROL THIRD-PARTY SERVICES THAT YOU LINK WITH YOUR FITBIT ACCOUNT The Fitbit Service may provide the opportunity for you to link your Fitbit account, Fitbit data, or the Fitbit Service with Third-Party Services. Although we offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the Fitbit Service are not part of the Fitbit Service. You acknowledge that these Terms and the Fitbit Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services. CHANGES TO THE FITBIT SERVICE Fitbit may change or discontinue, temporarily or permanently, any feature or component of the Fitbit Service at any time without notice. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Fitbit products without prior notice to you. TERMINATION If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support. Upon any termination, discontinuation or cancellation of the Fitbit Service or your account, the following provisions of these Terms will survive: Posting Your Content On The Fitbit Service; Fitbit’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The Fitbit Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms. DISCLAIMERS THE FITBIT SERVICE AND FITBIT CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Fitbit Service or Fitbit Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Fitbit Service or any Fitbit Content. You acknowledge and agree that if you rely on any Fitbit Content or the Fitbit Service, you do so solely at your own risk. INDEMNITY You will indemnify and hold harmless Fitbit and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Fitbit Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. LIMITATION OF LIABILITY NEITHER FITBIT, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FITBIT SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE FITBIT SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FITBIT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL FITBIT’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE FITBIT SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO FITBIT FOR USE OF THE FITBIT SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FITBIT, AS APPLICABLE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FITBIT AND YOU. DISPUTE RESOLUTION You agree that any dispute between you and Fitbit arising out of or relating to these Terms of Service, the Fitbit Service, or any other Fitbit products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below. Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Fitbit, you agree to try to resolve the Dispute informally by contacting support@fitbit.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Fitbit may bring a formal proceeding. We Both Agree To Arbitrate: You and Fitbit agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below. Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@fitbit.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to. Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Fitbit will pay all arbitration fees for claims less than $75,000. Fitbit will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. Exceptions to Agreement to Arbitrate: Either you or Fitbit may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Fitbit products or Fitbit Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. No Class Actions: You may only resolve Disputes with Fitbit on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement. Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Fitbit agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Fitbit consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial. Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Fitbit products or Fitbit Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever. GENERAL TERMS Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Fitbit and you regarding the Fitbit Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fitbit and you regarding the Fitbit Service and Fitbit Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Fitbit’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Fitbit may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Any notices or other communications provided by Fitbit under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Fitbit Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted. Fitbit’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fitbit. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. ADDITIONAL TERMS MAY APPLY Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control. CONTACT US Please Contact Us If You Have Any Questions About These Terms. Fitbit, Inc. 405 Howard Street San Francisco, CA 94105 support@fitbit.com Previous Fitbit Terms of Service
If you'd like to be notified when Fitbit.com makes updates to documents like this, choose which ones you'd like to subscribe to today (it's free!).
