Fitbit Platform Terms of Service
Last revised on July 29th, 2019
Welcome to the Fitbit Platform. The Fitbit Platform, including the Fitbit Web API and Fitbit Developer Tools, is provided as an asset to Fitbit’s community members and partners who are developers and researchers working to facilitate innovation in health, wellness, and fitness applications. We designed it to interact with and enhance the Fitbit Products and the Fitbit User Interface, and to enable responsible use of Fitbit user data for research purposes. While we try to provide the most open and flexible access we can, we only permit use of the Platform to the extent our users’ privacy is protected and we can maintain the integrity of Fitbit’s products and business vision.
The Platform Terms govern all access to and use of the Fitbit Web API, the Fitbit Developer Tools, the Fitbit Data, and/or the Fitbit User Interface (each defined below), and any documentation or other assets provided to you by Fitbit. In the event of any conflict between these Platform Terms and the Fitbit Terms of Service, these Platform Terms shall control. If you do not comply with these Platform Terms, Fitbit reserves the right to remove your access to the Fitbit Platform.
Please carefully read these Terms, including without limitation any additional terms and conditions linked to or referenced herein. By accessing or using the Fitbit Platform, you are agreeing that you have read these Platform Terms, and that you agree to comply with and to be bound by them and all applicable laws and regulations. If you do not agree to be bound by these Platform Terms, then do not access or otherwise use the Fitbit Platform.
These Platform Terms are effective as of the first date that you use the Fitbit Platform ("Effective Date"). We will update these Platform Terms from time to time as technology evolves and we learn about new risks or opportunities to protect our users. We will always post any such update at the Fitbit Developer Portal, and the updated Platform Terms will be effective and apply to you as updated as of the date of posting. If you do not agree to an update to these Platform Terms, do not continue to access or use the Fitbit Platform.
If there is a use case you would like to see covered that is not currently supported by the Fitbit Web API, the Fitbit Developer Tools, or these Platform Terms, you must discuss and enter into an agreement with us before undertaking such use case. These Platform Terms permit access only to the Fitbit Platform and to no other Fitbit APIs or Fitbit Data except as specifically permitted herein.
- "Application(s)" or "Developer Applications" means applications or clock faces, including any companion, developed by you that interact with any aspect of the Fitbit Platform or that are intended for use on a Fitbit Product.
- “API” means an application programming interface, including any and all related code, data, documentation, or other materials, provided by Fitbit as part of the Fitbit Platform, as updated from time to time.
- "Fitbit Web API" means the API through which Fitbit Data and other data is transmitted between your Application and Fitbit, as updated from time to time.
- "Fitbit Data" means the data made available to you for permitted research or development purposes by Fitbit through the Fitbit Web API or other means.
- "Fitbit Developer Portal" means the Fitbit services, data, and interface accessible at https://dev.fitbit.com, as updated from time to time, available for the developer and research purposes permitted by these Platform Terms.
- "Fitbit Platform" or “Platform” means the Fitbit Web API, the Fitbit Developer Tools, the Fitbit Data, the Fitbit User Interface, the Fitbit Developer Portal, and the Fitbit Web Application, in each case as updated from time to time.
- "Fitbit Product(s)" means Fitbit’s applications, services, and health and fitness devices.
- "Fitbit Developer Tools" means the Fitbit firmware images that you may download to a supported Fitbit Product; any tool, code or documentation provided through the Fitbit Developer Portal; APIs (other than the Fitbit Web API) documented on the Fitbit Developer Portal that enable your Application to operate on a supported Fitbit Product, including the Device API, Companion API, and Settings API; and the web-based development environment Fitbit Studio, in each case as updated from time to time.
- "Fitbit User Interface" means the Fitbit user interface(s) embodied on Fitbit Products and the Fitbit Web Application, as updated from time to time.
- "Fitbit Web Application" means the Fitbit application, services, data, and interface accessible at https://www.fitbit.com, as updated from time to time.
- "User" means a person or entity who uses your Application, or about whom Fitbit provides, or you collect, Fitbit Data, including but not limited to Fitbit customers.
- "User Data" means Fitbit Data that is associated with a User.
- "You," "Your," “you,” and “your” means either an individual or an entity, and for an individual representing an entity, such individual having the authority to accept these Platform Terms on behalf of the entity.
2. Usage Policies and Data Access Restrictions
a. The Fitbit Developer Tools and the Fitbit Web API are provided to you in order to enable you to develop Applications designed to interact with and enhance, extend, and improve the Fitbit Platform, for research purposes, or for data backup purposes. You shall not use the Fitbit Developer Tools or Fitbit Web API in order to design or develop anything other than an Application for use with the Fitbit Platform and the Fitbit Products, and the Fitbit Developer Tools and Fitbit Web API shall not be used to create services that replace or provide similar functionality to the Fitbit Platform or Fitbit Products.
b. You shall not sell Fitbit data in any form, even if aggregated or anonymized. Fitbit Data accessed via the Fitbit Platform shall be used solely as necessary to provide your Application to Users or conduct your research as permitted by these Platform Terms. Fitbit Data shall never be used for targeted advertising of Users, nor shall it be disclosed to brokers or resellers in any form or format.
c. You acknowledge that Fitbit or other developers may independently create applications, content, and other products or services that are similar to or competitive with your Application. Nothing in these Platform Terms shall prevent or restrict Fitbit or other developers from creating and fully exploiting any applications, content, and other items they may develop, with no obligation to you.
d. You may use the Fitbit Platform to retrieve or write Fitbit Data, subscribe to changes in User Data, and display information in external Applications according to these Platform Terms.
e. If your Application causes a User’s account to violate the Fitbit Terms of Service, your access to the Fitbit Platform may be suspended or revoked.
f. Fitbit reserves the right to disable or upgrade the Fitbit Platform and/or related services at any time without notice to you and without any form of compensation or consideration to you, regardless of the status of any Developer Applications or your research project. Fitbit has no obligation to ensure that an upgrade of the Fitbit Platform or related services will continue to be compatible with existing Developer Applications.
g. Customers and Users must be permitted to express contact preferences, via notice and opt-out, at the point of collection, and in each subsequent marketing communication you send.
- What data you collect;
- How you use, store, and/or share the data;
- Any additional parties you share data with;
- How users may opt-out of your use, storage, and/or sharing of the data, where applicable;
- Your data retention policy;
- How a user can delete or request that you delete their data; and
- What happens to data collected after a user disables their account with you or revokes your Application’s access to their User Data.
i. You must not display or distribute User Data to any external source without receiving the informed consent of a User. You shall not make public, or facilitate or encourage the making public of, private or confidential information or User Data. If you use Fitbit Data to publish research findings, you must ensure that any User Data has been de-identified such that it cannot reasonably be used to identify or be linked to any User, taking into account the fact that some Fitbit Data may be publicly available. You shall not deliver, allow, or enable the delivery of unauthorized or unsolicited advertising, promotional materials, junk mail, or spam through your Application. You shall ensure that your Application complies with all relevant privacy and security laws, rules, and regulations.
j. If your Application accesses User Data, you must comply with Fitbit’s User authentication system to obtain such access. In particular, your Application must not use any authentication interface other than what is provided by Fitbit as an API, in order to access User Data.
k. You agree to use commercially reasonable measures to maintain the security of User Data collected in connection with any of your products or services offered. At a minimum, you agree to properly configure your systems and software with security measures that ensure the secure operation and storage of User Data. These security measures may include:
- Implementing and maintaining an Information Security Management System as outlined in ISO/IEC 27001 (http://www.iso.org/iso/iso27001)
- Ensuring your Application is robust and free from common security issues as set out by the OWASP Top 10 (https://www.owasp.org/index.php/Category:OWASP_Top_Ten_Project)
- Integrating the principles of your Security Policy into the design of your Application.
- Using TLS when transmitting data about a User. Do not transmit any data about a User in clear plain text.
- Ensuring proper authentication controls.
- Engaging third parties to perform periodic technical security assessments of your Application.
You agree to apply security updates and patches in a timely manner, and to receive from Fitbit automatic security updates. You agree to promptly notify Fitbit at firstname.lastname@example.org of any known or suspected unauthorized access to developers' systems, networks, accounts, or other location where Fitbit Data resides. You agree to cooperate with Fitbit to correct any known or suspected security breach or deficiency, and in any such event, you agree not to make any public statements regarding any known or suspected security breach or deficiency without the prior written permission of Fitbit.
l. Use of the Fitbit Web API is subject to restrictions on rate limit, use cases, and method calls as outlined on the Fitbit Developer Portal. You will not circumvent or exceed any rate limitations described within the Fitbit Developer Portal. If Fitbit believes that you have unreasonably exceeded your rate limits or have attempted to circumvent the rate limit or authentication systems, your ability to utilize the Fitbit Web API may be temporarily suspended or permanently revoked. Fitbit may monitor your usage of the Fitbit Web API in order to improve our service and to ensure compliance with our policies.
m. You are responsible for complying with any request by a User to remove content. Fitbit is not responsible for removing Fitbit Data that has been stored on third-party services or your own services.
n. Except as expressly authorized by these Platform Terms or as otherwise permitted in a separate executed agreement between you and Fitbit, you will not attempt or encourage others to:
- reverse-engineer, disrupt, circumvent, decompile, disassemble, translate, or otherwise interfere with the Fitbit Platform;
- copy or modify the Fitbit Platform or Fitbit Products;
- scrape the Fitbit Platform;
- e-sell, re-license, or syndicate access, without authorization, any aspect of the Fitbit Platformto third parties (third parties must register with Fitbit for Fitbit Platform access);
- export Fitbit Data for the purpose of account migration, service duplication, and/or reverse-engineering the Fitbit Data;
- render Fitbit Data within another product without complying with the display guidelines outlined below;
- use the Fitbit Platform for purposes of injecting and/or publishing known bad, harmful, and/or discriminatory data into the Fitbit Platform;
- use or access the Fitbit Platform for the purpose of monitoring the performance or functionality of the Fitbit Platform or for any other benchmarking or competitive purposes;
- obfuscate or hide the Fitbit Data and/or the Fitbit User Interface;
- create user accounts on the Fitbit Web Application for the purpose of load testing;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted;
- use Fitbit’s name or trademarks as part of your name or the name of any Application you offer or in any manner that creates a false sense of endorsement or sponsorship by Fitbit;
- use the Fitbit Platform in an Application that directly or indirectly promotes criminal activity, illicit drug use, or violates any applicable federal or state law;
- use the Fitbit Platform in any inappropriate manner;
- upload or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt servers or other computer systems;
- distribute, sell, lease, rent, lend, transfer, or sublicense any part of the Fitbit Platform to any third party; or
- access or attempt to access any Fitbit server, computer system, service or content except as expressly authorized by Fitbit. If your Developer Application causes technical stress to the Fitbit Platform, Fitbit may disable your access.
o. You must be a good partner to Fitbit. This means you will:
- Work to complement or extend the Fitbit Platform and Fitbit Products with your Application, without replacing the use of the Fitbit User Interface.
- Respect the intellectual property rights of others.
- Respect the features and functionality of the Fitbit Products, and do not try to disrupt, circumvent, or disable any of those features or functionalities.
3. Rules and Restrictions for Researchers Using the Fitbit Platform
If you are accessing the Fitbit Platform for research purposes, you agree to our Research Pledge, which is hereby incorporated into these Platform Terms by reference.
4. Rules and Restrictions for Developers Using the Fitbit Platform
When developing with the Fitbit Platform, you will:
a. Not be destructive of User Data.
b. Notify any User before submitting data about a User from your Application to Fitbit.
c. Do your best to be true to user intent when accessing, displaying, storing, and writing User Data. You will take reasonable steps to ensure that any data about a User that you provide to Fitbit is reasonably accurate. Fitbit may remove or refuse any data from our service that we determine to be inaccurate, inappropriate, or misleading.
d. Not overwrite or delete User Data without first confirming a User’s intent and receiving confirmation from the User that they intend to overwrite or delete their User Data.
e. Not misrepresent data to a User after retrieval from or before submission to the Fitbit Platform. For example, when displaying User Data to be submitted to the Fitbit Platform, represent the data as it will be submitted, without potentially confusing summarization, aggregation, or exchange of units.
f. Respect Users and their privacy settings within your Application.
g. For Developer Applications that are not accessed on Fitbit Products, offer Users a clear path back to their Fitbit Account.
- Always provide clear documentation and links for Users to access their Fitbit Account from your Application.
- Paths to Fitbit User accounts should be available wherever User Data is displayed.
- Paths to Users’ Fitbit accounts should be available in "Setting," "Account," or a similar location from within your Application.
- When displaying Fitbit Data in your Application, Fitbit must be noted as the source of Fitbit Data using the text link and/or logo icon made available to you through the Fitbit Developer Portal.
h. For Developer Applications to be used on a supported Fitbit Product, your Application must comply with the Fitbit App Gallery Guidelines, and you must agree to the Fitbit Application Distribution Agreement before you can distribute your Application.
5. License and Ownership of Certain Intellectual Property
a. Subject at all times to your full compliance with these Platform Terms, Fitbit grants you a nonexclusive, revocable, non-sublicensable, non-transferable, royalty-free license as follows:
- For Developer Applications to be distributed on products other than the Fitbit Products, your license is to use the Fitbit Platform (excluding the Fitbit Developer Tools) solely to develop, reproduce, and distribute (on products other than the Fitbit Products) Applications that are authorized to connect to the Fitbit Web API.
- For Developer applications to be distributed on Fitbit Products, your license is to use the Fitbit Developer Tools, on an internal basis and with a Fitbit Product owned or controlled by you that is supported by the Fitbit Developer Tools, in order to develop and test Applications solely for use on Fitbit Products.
b. You hereby grant a worldwide, royalty-free license to Fitbit under all rights that are or would be necessary for Fitbit to copy, display, and/or modify your name(s), logo(s), content, and information for the limited purpose of demonstrating your Application and/or promoting it on the Fitbit Platform. However, Fitbit has no obligation to use or promote any Developer Application.
c. You represent and warrant that you have all rights, including all copyright, trademark, and other intellectual property rights, in the Developer Applications necessary to offer the Developer Applications to end users and to grant the license described in Section 5(c) to Fitbit in these Platform Terms.
d. If your Application includes any Open Source Software, you agree to comply with all applicable Open Source Software licensing terms, including by providing the notices and passing through the relevant licenses. You also agree not to use any Open Source Software in the development of your Application in such a way that would cause the non-Open Source Software portions of the Fitbit Platform to be subject to any Open Source Software licensing terms or obligations. “Open Source Software” means any software that requires as a condition of use, modification or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (i) be disclosed or distributed in source code form, (ii) be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge.
e. Any third party code or other materials included as part of the Fitbit Platform is licensed to you under the applicable third party license.
f. You, and not Fitbit, are responsible for providing all customer and technical support and maintenance for your Developer Applications. Fitbit has no obligation to provide any type of support for the Fitbit Platform, in particular including the Fitbit Developer Tools or Fitbit Web API, or any services or content related thereto.
6. Website Links, Developer Application Naming Restrictions, and Use of Fitbit Marks
a. Subject at all times to your full compliance with these Platform Terms, and with the Fitbit Trademark Policy and Brand Guidelines made available in the Fitbit Developer Portal, Fitbit grants you a nonexclusive, revocable, non-sublicensable, non-transferable royalty-free license to use the Fitbit logo solely for and strictly limited to the promotion and integration of your Application with the Fitbit Platform in accordance with the limitations set forth in this Section 6.
Permitted Use: You shall use only the variation(s) of the Fitbit Logo made available to you through the Fitbit Developer Portal. Use of the Fitbit Logo under this license is limited to 1) labeling data records fetched from the Fitbit Platform; and/or 2) identifying Fitbit as a service as a User has connected to their account via your Application.
You acknowledge and agree that these Platform Terms do not include any right to use any Fitbit logo as part of any brand for the Developer Applications themselves, or as part of any brand(s) or trade name(s) or other designators for your business or non-tested products. You shall not use the Fitbit Logo in any other manner, including but not limited to use on promotional materials, standalone technical support or consulting services, or other goods or services without Fitbit's explicit written permission.
b. You may establish a link to the Fitbit website (www.fitbit.com), provided that the link does not state or imply that Fitbit sponsors or endorses you or your Application, any other website, or presents Fitbit in a false, misleading, defamatory or derogatory manner. This permission to link to the Fitbit website does not permit you to use any Fitbit materials or content, unless separately agreed to in these Platform Terms or some other agreement with Fitbit.
c. The names of your Developer Applications, your business name, or any domain name, email address, keyword, or social media user name, shall not use or incorporate in any fashion (i) "Fitbit," (ii) "bit," (iii) names of Fitbit Products, whether registered or not, or (iv) any variation of (i)-(iii). Further, you shall not use the look and feel of any Fitbit materials, including without limitation any name, logo, icon, font, type style, or other element, to refer to your Developer Applications, your business, or in any other way, where such use would be confusingly similar to Fitbit trademarks or brand assets, whether registered or not, as determined in the sole and reasonable discretion of Fitbit.
d. You may make truthful, factual references to Fitbit in plain-text prose descriptions of your Developer Applications' features and benefits (including references to a Developer Application's interoperability with Fitbit). For example, the Fitbit trademark can only be used in the manner shown in one of the referential descriptions below:
- "Designed for use with the Fitbit® platform"
- "For use with Fitbit® [insert particular feature/product name]"
- "Syncs with Fitbit® [insert particular feature/product name]"
- "Designed to interact with Fitbit® data"
These phrases can appear near, but must be completely separate and apart from the name/logo of the Developer Application. The font size of phrases using the Fitbit mark should not be larger than the surrounding font, and should not appear more prominently than the name/logo of the Developer Application.
e. In all materials that contain an approved phrase as set out above, including product packaging, the following legend must also be placed in the fine print of such materials. The legend may be in a small type size, but must still be legible: "Fitbit is a registered trademark or trademark of Fitbit, Inc. in the United States and certain other countries. A list of Fitbit trademarks can be found at www.fitbit.com/legal/trademark-list. The _ [Insert name of the Developer Application] _ application is designed for use with the Fitbit platform. This application is not authored by Fitbit, and Fitbit does not service or warrant the functionality of this application."
7. Reservation of Rights and Ownership
The Fitbit Platform is licensed, not sold, and Fitbit reserves all rights not expressly granted to you by these Platform Terms. The Platform Terms in no way convey any ownership right to you in the Fitbit Platform or any Fitbit content accessed through your Developer Application(s).
8. Compliance with Laws, Representations, and Warranties
a. You are solely responsible for compliance with all laws applicable to Fitbit Data and User Data and agree to indemnify and hold Fitbit harmless for any uses contrary to such laws. This includes, but is not limited to (1) Fitbit Data and User Data used in connection with clinical human subject research; (2) the requirements of the Health Insurance Portability and Accountability Act ("HIPAA") and/or the use of Fitbit Data and User Data in relation to a product or service that qualifies as a medical device in section 201(h) of the Federal Food Drug & Cosmetic ("FD&C") Act; and (3) any use of your Application for High-Risk Activities (defined below). For each of the above uses, you must receive express consent from each User in order to use that User’s User Data for that purpose.
b. You represent and warrant that you will not use Fitbit Data or User Data for adverse decisions regarding insurance eligibility, pricing or terms; health care treatment eligibility; credit eligibility; or employment eligibility, promotion or retention.
c. The Fitbit Platform is not designed or warranted for use in developing, or for incorporation into, products or services used in applications or environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, surgically implanted devices, weapons systems, or other applications, devices, or systems in which the failure of the Fitbit Platform could lead directly to death, personal injury, or severe physical or environmental damage (any of the above, a “High-Risk Activity”).
d. You further agree that your Developer Application or research study will not:
- upload or otherwise transmit any content that is unlawful, threatening, abusive, disparaging, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, any Fitbit representative, or misrepresent your affiliation with any person or entity;
- upload or otherwise transmit any content that you do not have a right to transmit under any law or under contractual relationships;
- upload or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any person; and
- violate any applicable law or regulation, including, but not limited to, laws regarding the export of technical data.
9. Your Feedback
Any feedback, suggestions and ideas ("Feedback") that you provide to Fitbit regarding the Fitbit Platform, the Fitbit website, Fitbit Products, or content or services related thereto may be treated by Fitbit as non-confidential, and Fitbit may, in its sole discretion, use the Feedback you provide to Fitbit in any way, including in future modifications of the Fitbit Platform, the Fitbit website, Fitbit Products, or content or services related thereto, 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 terminate any license granted to you hereunder at any time by ceasing your access to, development, and/or use of the Fitbit Platform or any portion thereof. We may immediately suspend your access to the Fitbit Platform or any portion thereof, or, if necessary, terminate these Platform Terms, in part or in their entirety, at any time for any reason. We may discontinue the availability of some or all of the Fitbit Platform at any time for any reason. We may also terminate any license provided to you hereunder at any time for any reason. Fitbit will not be liable for any costs, expenses, or damages that may result from termination of these Platform Terms. Any termination under this Section may be exercised by Fitbit without notice to you.
The following Sections of the Platform Terms shall survive any termination or expiration: Sections 2 (Usage Policies and Data Access Restrictions), 3 (Rules and Restrictions for Researchers Using the Fitbit Platform), 4 (Rules and Restrictions for Developers Using the Fitbit Platform), 10 (Termination), 11 (Confidentiality), 12 (Disclaimers), 13 (Limitation of Liability), 14 (Indemnification), 15 (Government Use), 16 (Assignment), 17 (No Agency, Partnership, or Joint Venture), 18 (Governing Law & Forum for Legal Disputes), 19 (Waiver & Severability), 20 (Email Notice), 21 (Notice for California Users), 22 (Force Majeure), and 23 (Export Restrictions).
Upon any termination of these Platform Terms: (a) you will immediately stop using the Fitbit Platform and the Fitbit Data, and (b) all licenses granted to you by Fitbit will cease. If your Application makes use of the Fitbit Web API, your Application may no longer function as intended after termination of these Platform Terms.
You may be given access to certain non-public proprietary information, software, and specifications related to the Fitbit Platform and Fitbit Products (the “Confidential Information”). You shall use this Confidential Information only as necessary in exercising the rights granted to you by these Platform Terms. You shall 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.
EXCEPT AS EXPRESSLY SET OUT IN THESE PLATFORM TERMS, FITBIT DOES NOT MAKE ANY SPECIFIC PROMISES REGARDING THE FITBIT PLATFORM, INCLUDING THE FITBIT WEB API AND FITBIT DEVELOPER TOOLS. FOR EXAMPLE, WE DON'T MAKE ANY COMMITMENTS ABOUT THE FITBIT DATA ACCESSED THROUGH THE FITBIT WEB API, YOUR ABILITY TO UTILIZE THE FITBIT DEVELOPER TOOLS TO DEVELOP APPLICATIONS, OR THE SPECIFIC FUNCTIONS OF THE FITBIT WEB API OR FITBIT DEVELOPER TOOLS OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. THE FITBIT DATA, THE FITBIT WEB API, THE FITBIT DEVELOPER TOOLS AND THE FITBIT PLATFORM, ALONG WITH ANY OTHER MATERIALS PROVIDED BY FITBIT IN CONNECTION WITH YOUR USE OF THE FITBIT WEB API OR FITBIT DEVELOPER TOOLS ARE 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. FITBIT DOES NOT WARRANT THAT THE FITBIT WEB API, THE FITBIT DEVELOPER TOOLS, THE FITBIT PLATFORM, OR ANY OTHER MATERIALS PROVIDED HEREUNDER WILL MEET YOUR REQUIREMENTS, BE ERROR FREE, UNINTERRUPTED, VIRUS FREE, OR SECURE.
13. Limitation of Liability
WHEN PERMITTED BY LAW, FITBIT 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 THESE PLATFORM TERMS OR YOUR USE OF THE FITBIT WEB API, THE FITBIT DEVELOPER TOOLS, OR THE FITBIT PLATFORM, 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 THESE PLATFORM TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. IN ANY CASE, FITBIT’S AND ITS SUPPLIERS’ AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THESE PLATFORM TERMS 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 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 use of the Fitbit Platform, or the Fitbit trademarks; (b) your use or your User’s use of the Fitbit Platform or the Fitbit trademarks other than as expressly allowed by these Platform Terms; (c) your or your User’s breach or alleged breach of these Platform Terms; (d) any content or data routed into or used with the Fitbit Web API by you, those acting on your behalf, or your Users, or (e) your Application, including but not limited to claims of intellectual property infringement. 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.
15. Government Use
If you are part of an agency, department or other entity of the U.S. Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Fitbit Platform are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Fitbit Web API and Fitbit Developer Tools constitute a "commercial item," "commercial computer software," and "commercial computer software documentation." In accordance with such provisions, any use of the Fitbit Web API or Fitbit Developer Tools by the U.S. Government shall be governed solely by these Platform Terms.
You shall not assign these Platform Terms or any rights or obligations hereunder without the prior written consent of Fitbit. Any attempted assignment without such prior written consent shall be void. Fitbit may assign these Platform Terms, and will provide you written notice of any such assignment.
17. No Agency, Partnership, or Joint Venture
These Platform Terms do not create or imply any partnership, agency, or joint venture between the parties hereto.
18. Governing Law and Forum for Legal Disputes
These Platform Terms 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 these Platform Terms 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.
19. Waiver and Severability
These Platform Terms constitute 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 these Platform Terms will be effective unless such waiver is in writing and duly authorized by Fitbit. If any part of these Platform Terms 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 these Platform Terms will remain in full force and effect.
20. Email Notice
All notices to you in connection with these Platform Terms 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.
21. Notice for California Users
California residents may have these Platform Terms mailed to them electronically by sending to Fitbit the User’s email address and a request for these Platform Terms. California’s Civil Code Section 1789.3 provides that Users of the Fitbit Platform are entitled to the following consumer rights notice:
- The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
22. 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.
23. Export Restrictions
You acknowledge that you will comply with U.S. Export Administration Regulations. You will not export or re-export this product, 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.