Fitbit Field Testing
Beta Testing Agreement
. You wish to participate in the Fitbit beta testing program (the “Program”) for the purposes of receiving a license to use and evaluate certain non-public Fitbit products, features or services (the “Products”). Fitbit wishes to provide you with Products and disclose certain Confidential Information (defined below) to you, for the purpose of testing and obtaining feedback about the Products (the “Purpose”). Fitbit is willing to make such disclosure subject to the terms and conditions of this Agreement.
. "Confidential Information" means all non-public materials and information provided or made available to you by Fitbit, including products and services, information regarding technology, know-how, processes, software programs, research, development, pricing or financial information, product, feature, or service release information, information regarding third parties, or technical data disclosed by Fitbit to you prior to the Effective Date or during the Term (as defined in Section 11 below), either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, research, products, services, developments, inventions, discoveries, ideas, concepts, software, designs, drawings, engineering, specifications, documentation, processes, techniques, models, source code, object code, diagrams, flow charts, procedures, business and marketing plans or strategies, business opportunities, financial information, pricing information, sales information, and customer information. Confidential Information further includes Program materials, your Feedback (defined below), or any other non-public information about or involving (including the existence of) any Products. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Fitbit; (ii) becomes publicly known and made generally available after disclosure by Fitbit to you through no action or inaction by you; (iii) is already in your possession of the time of disclosure by Fitbit as shown by your files and records immediately prior to the time of disclosure; (iv) is obtained by you from a third party who has the legal right to disclose such information; or (v) is independently developed by you without use of Fitbit’s Confidential Information.
Ownership and License.
You agree that nothing contained in this Agreement shall be construed as granting any ownership rights to any Confidential Information disclosed or provided pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right. You shall not make, have made, use or sell for any other purpose any product or other item using, incorporating or derived from Confidential Information or the Products. You will not modify, reverse engineer, decompile, create other works from, or disassemble any equipment, prototypes or software programs contained in the Confidential Information. Fitbit hereby grants to you and you accept a personal, non-transferable, non-exclusive license to use the Products for the Term (defined below) solely for the purpose of testing and evaluating the Products during the term and subject to the restrictions of the Program.
Feedback and Modifications.
As part of the Program, you will provide feedback, testing results, input, comments, ideas, suggestions or proposed modifications or improvements (“Feedback”) regarding the Products. You agree that, regardless of anything contained in any such Feedback, (i) Fitbit shall have no obligation to review the Feedback; (ii) the Feedback and its contents shall automatically become the property of Fitbit (including, without limitation, all patent rights, design rights, copyrights and trade secrets), without any compensation to you; (iii) Fitbit may consider the Feedback to be non-confidential and non-proprietary; and (iv) Fitbit may redistribute or use (for commercial purposes or otherwise) the Feedback and its contents for any purpose and in any way, without any compensation to you.
Non-use and Non-disclosure
. You agree not to use any Confidential Information for any purpose except for the Purpose. You agree not to disclose any Confidential Information to any third parties. Further, neither party shall disclose to any person the existence of any business negotiations or discussions in progress between the parties without the prior written approval of the other party.
Legally Required Disclosure
. Nothing in this Agreement shall prohibit you from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”); provided that you shall (i) promptly provide Fitbit with written notice of such Required Disclosure prior to disclosure so that Fitbit may seek a protective order or other appropriate remedy to prevent or limit the scope of disclosure; (ii) cooperate with Fitbit, at Fitbit’s expense, in seeking to obtain a protective order or other remedy; and (iii) in any event only disclose that portion of the Confidential Information which it is legally required to disclose. Any such required disclosure shall not, in and of itself, change the status of disclosed information as Confidential Information under the terms of this Agreement.
You promise that, as of the first day of its participation in the Program, you are at least eighteen (18) years of age. (IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOU MAY NOT PARTICIPATE IN THE PROGRAM.
you assures Fitbit that it will not, without obtaining prior authorization from Fitbit and the Office of Export Administration of the United States Department of Commerce or other appropriate authority, export the Products to any country prohibited under the United States Export Regulations, or otherwise use or disclose the Confidential Information in contravention of the laws and applicable regulations of the United States.
Maintenance of Confidentiality
. you agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. you shall not make any copies of Confidential Information, including without limitation photos, videos, screenshots, or drawings without Fitbit's prior written approval. you shall reproduce Fitbit's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in the original. you shall immediately notify Fitbit of any unauthorized use or disclosure of the Confidential Information of which you may become aware.
Your Use of the Services is at Your Own Risk
. Your use of the Fitbit Products, along with any Fitbit websites, including www.fitbit.com, the Fitbit Connect software, the Fitbit mobile applications, memberships and other Fitbit services (collectively, the “Fitbit Service”) is governed by the Fitbit Terms of Service, available at
. 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. Fitbit is not responsible for any health problems that may result from your participation in the Program or use of the Products or Fitbit Service. If you engage in any exercise program as a result of or in conjunction with your use of the Fitbit Service you agree that you do so at your own risk and are voluntarily participating in these activities.
If you start to experience redness or skin irritation on your wrist, remove your device. If symptoms persist longer than 2-3 days of not using your device, contact a dermatologist
. Fitbit is 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.
Agreement Not To Sue.
You, on behalf of yourself and your heirs, legal representatives, agents, successors and assigns, agree that you will never institute any action or suit at law or in equity against Fitbit, nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action, or cause of action for damages, costs, loss of services, expenses, or compensation for or on account of any damage, loss or injury either to person or property, or both, whether developed or undeveloped, resulting or to result, known or unknown, past, present or future, arising out of your participation in the Program, or use of the Products.
. THE PRODUCTS AND ANY MATERIALS (INCLUDING THE SOFTWARE, IF ANY, AND ANY DOCUMENTATION) ARE PROVIDED HEREUNDER "AS IS". FITBIT MAKES AND TESTER RECEIVES NO WARRANTIES IN CONNECTION WITH THE PRODUCTS, OR MODIFICATIONS OR IMPROVEMENTS THERETO, DELIVERED HEREUNDER, EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION BETWEEN FITBIT AND TESTER. FITBIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
LIMITATION ON LIABILITY.
FITBIT AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FITBIT’S AND ITS SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY TESTER TO FITBIT UNDER THIS AGREEMENT (IF ANY).
. Tester: (i) agrees to indemnify, defend and hold harmless, and (ii) hereby releases, Fitbit, its licensors, and their direct and indirect parent, subsidiary and sister corporations, and their respective officers, directors, employees, and agents from and against any and all losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with the use of the Program and/or Products and all other services or activities related thereto.
. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for the period required to complete the Program, as specified by Fitbit. Either party may terminate this Agreement at any time upon written notice to the other party. Your obligations hereunder with respect to all Confidential Information shall continue in full force and effect notwithstanding the termination or expiration of the Term unless and until the information is no longer “Confidential Information” pursuant to the definition in Section 2 above.
Care of Equipment and Return
. You agree to maintain any Products in good condition and working order. Unless otherwise communicated to you in writing by Fitbit, upon termination or expiration of this Agreement, or upon request by Fitbit, you shall (i) return to Fitbit at the address set forth above, all Confidential Information that is in tangible form, and (ii) destroy or expunge from its computer systems all Confidential Information that is in electronic form or which consists of analyses, compilations, studies or other documents or records prepared by Fitbit, in each case, promptly following Fitbit’s request. Fitbit reserves the right to require return of Confidential Information at any time.
. You agree that any breach or threatened breach of this Agreement will cause irreparable harm to Fitbit, for which monetary damages would be inadequate and that, in addition to all other remedies that may be available, Fitbit shall be entitled to an injunction restraining any such breach or threatened breach, without having to post a bond or other security. Nothing in this Section 16 shall be construed as preventing Fitbit from pursuing any and all remedies available to it, including the recovery of money damages from Tester.
. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Each Party agrees to bring any action with respect to any dispute or claim arising out of or in connection with this Agreement exclusively in the state or federal courts located in San Francisco County, California, and hereby irrevocably submits to the exclusive jurisdiction and venue of such courts for the purposes of any such action.
. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, except that Fitbit may assign and delegate this Agreement pursuant to a transfer of all or substantially all of Fitbit’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. Except as otherwise stated herein, this document contains the entire agreement between the parties with respect to the subject matter hereof. Additional terms may apply to certain products or services. In the event that there is a conflict between this Agreement and any additional terms, this Agreement will control. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. This Agreement may be signed in counterparts each of which will be deemed an original and all of which together will constitute one and the same enforceable instrument. Signatures exchanged by facsimile, PDF copies, or other electronic means shall be effective for all purposes hereunder to the same extent as original signatures.