LAST UPDATED: 20 October 2017
These terms set forth the additional terms and conditions that apply to any Software provided by Vendor to Fitbit under an Ordering Document and supplement the Fitbit Vendor Terms and Conditions. For clarity, “Software” includes any: (i) software as a service (“SaaS”); (ii) locally installed software (“On Premises Software”); (iii) related documentation made available to Fitbit (which includes any documentation made available by Vendor generally to similarly situated licensees) (“Documentation”); and (iv) Maintenance Releases (as defined below).
Fitbit will receive a license to use the Software (as set forth below) for the term specified in the applicable Ordering Document (each, a “Subscription Term”). Fitbit is not obligated to renew any Subscription Term, but Vendor will offer renewals to Fitbit so long as it makes the Software generally available. All renewal Subscription Terms will be subject to this Agreement and must be reflected in a new Ordering Document.
Vendor grants Fitbit a worldwide, non-exclusive, royalty-free license to use the Software for Fitbit’s business purposes during the applicable Subscription Term. The only restrictions on the use of the Software are those explicitly stated herein and in the applicable Ordering Document.
During each Subscription Term, Vendor will provide the Software in accordance with the Agreement (including the descriptions in each Ordering Document and any applicable Service Level Agreement, as defined below).
For all licenses granted to Fitbit: (i) Fitbit may extend its rights, benefits and protections under the Agreement to its Affiliates and to contractors acting on Fitbit’s or its Affiliates’ behalf, so long as Fitbit remains responsible for their compliance with the Agreement; and (ii) the licenses are made under all applicable intellectual property rights of Vendor worldwide, including patent rights, consistent with the scope of the license elsewhere described in this Section.
Unless otherwise specified in an Ordering Document, Fitbit may: (i) transfer On Premises Software from one hardware platform or operating system to another hardware platform or operating system (or both) for which the On Premises Software is or becomes generally available, at no additional charge; and (ii) make sufficient copies of the On Premises Software to support Fitbit’s authorized use and for backup and archival purposes.
Fitbit will not: (a) use the Software except as permitted hereunder and the applicable Ordering Document(s); (b) decompile, disassemble, or reverse engineer the Software (unless such a restriction is not permitted under applicable law and then Fitbit is free to do so); (c) except as explicitly permitted herein or in any Ordering Document, distribute, sell, sublicense, rent or lease the Software, or use the Software for time sharing purposes; (d) remove any copyright or proprietary notices contained in the Software; or (e) modify or create a derivative work of the Software unless expressly authorized in writing by Vendor.
Unless otherwise specified in an Ordering Document, Vendor will deliver (in the case of On Premises Software) or otherwise make the Software available (in the case of SaaS) to Fitbit within twenty-four (24) hours of the effective date of the applicable Ordering Document.
Vendor will provide Fitbit with maintenance and support in accordance with the terms set forth in the applicable Ordering Document(s) (“Maintenance and Support”). Notwithstanding anything contained in an Ordering Document, Maintenance and Support will include, at a minimum, the same technical support services and the same access to major releases, minor releases, upgrades, updates, modifications, enhancements and bug fixes offered by Vendor to any similarly situated licensee (the latter category, “Maintenance Releases”).
The Software shall be subject to the availability, service credit and other terms set forth in any service level agreement or similar document that may be included along with or referenced in any Ordering Document (“Service Level Agreement”).
Unless otherwise specified in the applicable Ordering Document, Vendor will provide Fitbit, at no additional charge, with technical support services for the Software of the same scope as it provides such services to similarly situated customers, but in any event as is necessary to ensure that the Software performs in accordance with the terms and conditions set forth herein and in any Ordering Document.
If specified in the applicable Ordering Document, Vendor will perform implementation or other related services for the Software (“Related Services”). Such Related Services will be subject to the Additional Terms for Services. Unless specified in the applicable Ordering Document, if Vendor is providing Related Services, Vendor will not invoice Fitbit for the Related Services or the associated Software (and Fitbit will not incur any fees) until Fitbit notifies Vendor that the Related Services have been accepted so as to enable Fitbit to use the Software as contemplated in the Agreement and the applicable Ordering Document.
Vendor shall have in place a plan for business continuity and infrastructure redundancy (“Business Continuity Plan”) in the event of any event or circumstance that could materially adversely affect the SaaS or continued operation of Vendor as required under the Agreement (a “Business Continuity Event”). During the term of the Agreement, Vendor shall: (i) provide a copy of the Business Continuity Plan to Fitbit upon request; and (ii) periodically update and test the operability of the Business Continuity Plan. In event of any Business Continuity Event, Vendor shall promptly implement the Business Continuity Plan and otherwise use all efforts reasonably necessary to reinstate affected SaaS as quickly as possible. When implementing the Business Continuity Plan, Vendor shall treat Fitbit with at least the same priority as any other similarly situated customer (including with respect to any available resources, personnel and other efforts) and shall be solely responsible for any expenses arising from implementation of the Business Continuity Plan.
Vendor represents and warrants that it: (i) will provide the Software in accordance with the Agreement (including the Service Level Agreement); and (ii) the Software will operate substantially in conformance with the Documentation, its generally published specifications relating thereto and any specifications set forth in the applicable Ordering Document (the “Performance Warranty”). If Fitbit reports a breach of the Performance Warranty, Vendor will, without charge, promptly correct or repair the Software so that it conforms to the Performance Warranty. Unless otherwise specified in the applicable Ordering Document, if Vendor is unable to make the Software operate as warranted within ten (10) days after Fitbit’s notice, then Fitbit may terminate the Agreement and/or the applicable Ordering Document and immediately upon such a termination Vendor must refund to Fitbit any fees paid for the period in which the Software failed to meet the Performance Warranty and the terminated portion of the Subscription Term.
Vendor further represents and warrants that: (i) use of the Software and any Output (as defined below) will not contain or introduce into any Fitbit Systems any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code, and use of the Software and any Output will not subject Fitbit to any third party terms or conditions; (ii) any On Premises Software will not contain, and is not provided with, any open source software, except as expressly disclosed in the Documentation and the Ordering Documents; provided further that in any event the On Premises Software shall not contain any code licensed under any version of any GPL, Affero or other “copyleft” license and use of the On Premises Software will not subject Fitbit to the terms of any open source or other third-party license agreement; (iii) except for any license keys or authorization codes disclosed to Fitbit in the Documentation or otherwise, the Software will be free of software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the Software; and (iv) to the best of Vendor’s knowledge, the Software (and Fitbit’s use thereof as intended under the Agreement) does not and will not infringe, violate, or misappropriate the intellectual property rights of any third party.
Any access or use of Fitbit Data or Fitbit Systems by Vendor in providing the Software will be subject to the Additional Terms for Fitbit Data and Fitbit Systems.
Fitbit owns all right, title and interest (including all intellectual property rights) in and to the Fitbit Data. Fitbit will also own all Output, except to the extent incorporating any templates or pre-existing materials of Vendor, and Fitbit may use the Output for any purpose. “Output” means any reports, results, summaries or other output provided by Vendor to Fitbit in connection with the Software. Vendor will handle Output according to the same terms and conditions herein as for Fitbit Data. All Fitbit Data and Output is deemed Fitbit’s Confidential Information.
Unless otherwise specified in the applicable Ordering Document, during the term of the Agreement and for three (3) months thereafter, at Fitbit’s request, Vendor will provide Fitbit with all Fitbit Data in Vendor’s possession or control (including Fitbit Data that resides in the Software) in a format reasonably requested by Fitbit. Thereafter, unless legally prohibited, Vendor will delete all Fitbit Data in its possession or control.