Fitbit App Distribution Agreement
Last revised on November 6th, 2017
We are excited that you have developed an App using the Fitbit Platform. In order to submit your App for Distribution, you must agree to this Fitbit App Distribution Agreement (the "Distribution Agreement"). This Distribution Agreement is an agreement between you and/or an entity you are authorized to represent ("You," "Your," "you," or "your") and Fitbit, Inc., and its affiliates ("Fitbit," "we," "us," or "our").
As a Fitbit user, you have already agreed to the Fitbit Terms of Service, and as a developer of an App you have also agreed to the Fitbit Platform Terms of Service. By submitting an App for Distribution, you are entering into this additional legal agreement with Fitbit, and you hereby acknowledge and agree to the terms in this Distribution Agreement. In the event of any conflict between this Distribution Agreement and either the Fitbit Terms of Service or the Fitbit Platform Terms of Service, this Distribution Agreement will control.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS DISTRIBUTION AGREEMENT, THEN DO NOT SUBMIT YOUR APP FOR DISTRIBUTION. This Distribution Agreement is effective as of the first date that you submit an App to Fitbit for submission for Distribution ("Effective Date").
Any terms capitalized but not defined herein have the meaning set forth in the Fitbit Platform Terms of Service.
"App" means a Developer Application developed pursuant to Section 4(b) of the Fitbit Platform Terms of Service.
"Distribution" means making an App available for download onto a Fitbit Product via either General Distribution or Limited Distribution.
"General Distribution" means making your App available for Distribution via placement in the Fitbit App Gallery.
"Limited Distribution" means making your App available for Distribution only via a link provided by Fitbit that you may provide to others (subject to limitations set forth below).
"Materials" means anything contained within or included with your App, including anything you provide to Fitbit as part of submitting your App.
2. Submitting Your App
- To submit your App for Distribution, you must have a valid Fitbit user account and be in full compliance with the Fitbit Platform Terms of Service. You submit your App Distribution using the Fitbit Developer Portal once the App is completed and when you have an update.
- Your App must comply with the Fitbit App Gallery Guidelines, Design Guidelines, and any other written requirements provided by Fitbit in the Fitbit Developer Portal.
- When you submit your App, you can choose Limited Distribution or General Distribution. If your App is being Distributed via Limited Distribution, Fitbit may, in its discretion, decide to review your App for Distribution via General Distribution--this may happen because, for example, your App has received a large number of downloads. If you share your Limited Distribution link publicly, your App will become subject to review by Fitbit and will be Distributed via General Distribution. Fitbit reserves the right to approve or reject an App for General Distribution, in its sole discretion for any reason--for example, we might determine that the App doesn't comply with the Fitbit App Gallery Guidelines.
- Fitbit may make changes or updates to the Fitbit Platform or Fitbit Products from time to time, such as releasing new software or firmware updates. Such changes could impact how your App interacts with the Fitbit Platform and Fitbit Products. Fitbit does not guarantee that your App will remain functional, nor does Fitbit take responsibility for troubleshooting or fixing defects or any lack of functionality of your App.
- In order for Fitbit to review your App, you must provide us with whatever we need to test and validate your App's functionality and content, such as code, documentation, access to web services that are associated with your App, activation codes, hardware associated with your App, and any other materials as requested by Fitbit.
3. Licenses and Ownership
- You hereby grant to Fitbit a worldwide, nonexclusive, royalty-free, sublicensable license to the App and the Materials to (i) review, evaluate, use, and make available the App for Distribution, and (ii) use the Materials for the purpose of promoting your App and demonstrating, marketing, and promoting Fitbit, the Fitbit Platform, and Fitbit Products.
- You hereby grant to each User a non-exclusive, worldwide, and perpetual license to download, perform and display, and use your App on the Fitbit Products.
- Fitbit and its contractors are entitled to use your App in accordance with this Distribution Agreement and have and are entitled to all rights, benefits, and protections granted to Fitbit pursuant to this Distribution Agreement with respect to your App.
- Fitbit reserves all rights not expressly granted to you by this Distribution Agreement. The Distribution Agreement in no way conveys any ownership right to you in the Fitbit Platform, Fitbit Products, the Fitbit Data, the User Data, or any Fitbit content accessed through your App. Except for any license rights granted hereunder, Fitbit acknowledges that it obtains no right, title, or interest in or to your App under this Distribution Agreement.
- Fitbit or other developers may currently, or in the future, be developing applications, products, or services internally or with other parties that may be similar to your App or your other products or services. Nothing contained in this Distribution Agreement prohibits Fitbit or other developers from developing applications, products, or services, or having applications, products, or services developed for it, that compete with your App or your other products or services.
4. Developer Obligations
- You are solely responsible for
- Developing and submitting your App and ensuring it complies with this Distribution Agreement, the Fitbit App Gallery Guidelines, and any other applicable requirements;
- Providing Users with information regarding your App, as well as any documentation, safety information, or other customer or technical support that may be required;
- Obtaining and maintaining any regulatory or legal approval required for distribution or promotion of your App; and
- Providing any services that you make available through your App or that are otherwise related to your App.
- Your terms and policies apply to any use of your App by a User, and you must
make your terms and policies reasonably accessible to Users.
- You must have an end user license agreement for your App that clearly informs the user of the terms and conditions applicable to use of your App. Your end user license agreement must be consistent with the terms of this Distribution Agreement, and if there is any conflict between your end user license agreement and this Distribution Agreement, then this Distribution Agreement will control. If your App does not have an applicable end user license agreement, the Default End User License Agreement will apply to a User's use of your App.
- You will comply with and ensure your App complies with any applicable law or regulation in the countries in which your App is Distributed.
- You represent and warrant that you have all intellectual property rights, including all patent, trademark, trade secret, copyright or other proprietary rights, in and to your App necessary for the licenses granted in Section 3.a and 3.b above, including any licenses needed for distribution of third party content. You agree that you will not submit material to Fitbit unless you are the owner of such rights or have sufficient permission from their rightful owner to submit the material in accordance with this Distribution Agreement.
- You represent and warrant that your use of Open Source Software, related to your App will not subject any non-Open Source Software portions of the Fitbit Platform to Open Source Software licensing terms or obligations.
- You are solely responsible for maintaining adequate health, workers' compensation, unemployment compensation, disability, liability, and other insurance as is required by law or as is the common practice in your trades or businesses, whichever affords greater coverage. Upon request, you will provide Fitbit with certificates of insurance or evidence of coverage of insurance.
5. Promotion and Publicity
Fitbit may, in its sole discretion, make certain trademarks, logos (expressly excluding the Fitbit corporate logos), badges, and/or other promotional materials of Fitbit (the "Brand Assets") and icons, images, and/or fonts of Fitbit (the "Design Assets,", together with the Brand Assets known as the "Developer Assets") available to you. Subject to your compliance with the terms of this Distribution Agreement, Fitbit Trademark Policy, and Brand Guidelines, Fitbit hereby grants to you a non-exclusive, non-transferable, non-sublicensable, royalty-free limited license during the Term of this Distribution Agreement to use the Developer Assets solely for the purpose of promoting the availability of your App on the Fitbit Products.
6. Data Fitbit Collects
7. Termination and Removal
- This Distribution Agreement is effective as of the Effective Date and will remain in full force and effect until it has been terminated in accordance with this Section 7.
- Either party may terminate this Distribution Agreement at any time and for any reason or no reason. If Fitbit terminates this Distribution Agreement, it will have immediate effect. In order for you to terminate this Distribution Agreement, you must provide thirty (30) days' prior written notice by sending an email to Fitbit at firstname.lastname@example.org. If this Distribution Agreement is terminated for any reason, your App will be removed from the Fitbit App Gallery and will no longer be available for General Distribution or Limited Distribution.
- Fitbit may, in its sole discretion, choose to suspend your App from being Distributed. If Fitbit chooses to suspend your App, this Distribution Agreement will remain in full force and effect, and will continue to govern you and your App during the suspension and after any removal of the suspension.
- You may cease the General Distribution or Limited Distribution of your App at any time. If this Distribution Agreement is terminated for any reason or you cease Distribution of your App, Users may continue using an already-downloaded version of your App in accordance with the license rights granted to Users in Section 3.b. Fitbit will not be required to remove your App from any Users that have already downloaded your App.
- Whether your App is Distributed via a Limited Distribution or General Distribution, Fitbit may in its sole discretion remove your App from the Fitbit Platform (including from the Fitbit App Gallery) and from Fitbit Products at any time and for any reason, which may include your failure to comply with this Distribution Agreement, the Fitbit App Gallery Guidelines, or the Fitbit Platform Terms of Service.
- The following sections will survive termination of this Distribution Agreement: 1 (Definitions); 3.b (license to Users); 4 (Developer Obligations); 7 (Termination and Removal); 8 (Disclaimers); 9 (Limitation of Liability); 10 (Indemnification); 11 (Confidentiality and Feedback); 12 (Assignment); 13 (Governing Law and Disputes); and 14 (Miscellaneous).
9. Limitation of Liability
EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, FITBIT AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS DISTRIBUTION AGREEMENT, YOUR APP, OR YOUR USE OF THE FITBIT PLATFORM OR FITBIT PRODUCTS, WHETHER ARISING FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS DISTRIBUTION AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. IN ANY CASE, FITBIT'S AND ITS SUPPLIER AND LICENSORS' AGGREGATE LIABILITY UNDER THIS DISTRIBUTION AGREEMENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR THE AGGREGATE FEES YOU PAID FOR ACCESS TO THE FITBIT WEB API OR FITBIT DEVELOPER TOOLS DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. IN ALL CASES, FITBIT AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
You will indemnify, defend, and hold Fitbit and its directors, officers, employees, contractors, agents, and users harmless from and against any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses (including reasonable attorneys' fees) brought by a third party arising out of, or in connection with, (a) any act or omission by you or your Users in connection with your App or your use of the Fitbit Platform, the Fitbit Products, or the Brand Assets; (b) your use the Fitbit Platform, the Fitbit Products, or the Brand Assets, or other Fitbit services other than as expressly allowed by this Distribution Agreement; (c) your breach or alleged breach of the terms, restrictions, obligations, or representations included in this Distribution Agreement; or (d) any allegations that your App infringes any copyright, trademark, trade secret, trade dress, patent, or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy. You will assume control of the defense and settlement of any claim subject to indemnification by you; provided, however, that Fitbit may, at any time, elect to take control of the defense and settlement of any such claim. In any event, you will not settle any such claim without Fitbit's prior written consent.
11. Confidentiality and Feedback
- You may be given access to certain non-public information, software, and specifications related to the Fitbit Products, Fitbit Platform, or other Fitbit information (the "Confidential Information"). You may use this Confidential Information only as necessary in exercising the rights granted to you by this Distribution Agreement. You may not disclose any Confidential Information to any third party without our prior written consent and you agree that you will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
- Any feedback, suggestions and ideas ("Feedback") that you provide to Fitbit regarding the Fitbit Platform, Fitbit Products, Brand Assets, or any other content or services related thereto will not be confidential information and Fitbit will have no obligation to treat it as confidential, and Fitbit may, in its sole discretion, use the Feedback you provide to Fitbit in any way, including, but not limited to, in future modifications of its products and services and/or advertising and promotional materials relating thereto. You hereby grant Fitbit a perpetual, worldwide, fully transferable, irrevocable, royalty-free license to make, use, sell, offer for sale, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose.
You may not assign this Distribution Agreement or any rights or obligations hereunder without the prior written consent of Fitbit. Any attempted assignment without such prior written consent will be void. Fitbit may assign this Distribution Agreement, and will provide you written notice of any such assignment.
13. Governing Law and Disputes
This Distribution Agreement will be governed by the laws of the State of California, without regard to or application of conflicts of law rules or principles. All claims arising out of, or relating to, this Distribution Agreement will be brought exclusively in the federal or state courts of San Francisco County, California, USA and you consent to personal jurisdiction in those courts.
No Joint Venture. This Distribution Agreement does not create or imply any partnership, agency, or joint venture between the parties hereto.
Waiver and Severability. This Distribution Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and communications between the parties with respect to that subject matter. No waiver by Fitbit of any covenant or right under this Distribution Agreement will be effective unless such waiver is in writing and duly authorized by Fitbit. If any part of this Distribution Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Distribution Agreement will remain in full force and effect.
Modifications. Fitbit may, in its sole discretion and at any time, update or modify the terms of this Distribution Agreement. Any updated or modified version of this Distribution Agreement will be located at https://dev.fitbit.com/legal/app-distribution-agreement/ and will be effective as of the posting date, which will be specified at the top of the page. If you do not agree to the updated or modified version of this Distribution Agreement, you should cease Distribution of your App.
Notifications. All notices to you in connection with this Distribution Agreement may be delivered via email at the email address provided to Fitbit by you, and you agree that these email communications satisfy any legal requirements.
Equitable Relief. Either party may seek equitable relief in order to protect its confidential information or intellectual property at any time, provided it does so in the state or federal courts in San Francisco County, California (and only those courts). The parties hereby waive any bond or other security requirements for obtaining equitable relief. The confidentiality provisions of this Distribution Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended.
Attorneys' Fees. In any action to enforce this Distribution Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.
Export Restrictions. You acknowledge that you will comply with U.S. Export Administration Regulations. You will not export or re-export any Fitbit Product or your App, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
Force Majeure. Fitbit is not responsible for any failure to perform, loss of service, or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (e.g., fire, storms, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of services by any third party providing service to Fitbit, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
Default End User License Agreement
- For purposes of this End User License Agreement (the " EULA"), "Developer" means the individual or entity that has developed the App or submitted the App to Fitbit for distribution. This EULA is between you and Developer, not Fitbit, and governs your use of the App. Although Fitbit is not a party to this EULA, it has the right to enforce this EULA against you as a third party beneficiary relating to your use of the App.
- Developer grants you a limited, non-exclusive, non-transferable license to install and use the App solely for the User's personal, non-commercial use and enjoyment of the App. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Developer or its licensors, except for the licenses and rights expressly granted in this EULA. This license is limited and may be terminated at any time, and the App may be removed from your device. You will not use, sublicense, copy, modify, translate, prepare derivative works based upon, distribute, license, sell, transfer, display, or otherwise exploit the App except as expressly permitted in this EULA. Except to the extent permitted by law, you may not: (1) access or tamper with non-public areas of the App; (2) circumvent any technological measure implemented by the Developer to protect the App; and (3) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of the App.
- Developer is solely responsible for providing any maintenance and support services with respect to the App. You acknowledge that Fitbit has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- THE APP IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DEVELOPER DOES NOT WARRANT THAT THE APP, WILL MEET YOUR REQUIREMENTS, BE ERROR FREE, UNINTERRUPTED, VIRUS FREE, OR SECURE.
- EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, DEVELOPER AND ITS LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THE APP, WHETHER ARISING FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Developer reserves the right to modify or stop supporting the App or any associated services at any time with or without notice. You agree that neither Developer not Fitbit shall be liable to you or any third party for such modification or stoppage.
This EULA will immediately terminate if you breach the terms.