Terms & Conditions
Please read the Fitd Private Beta Program Agreement carefully. It represents a legal agreement between you and Fitd Co., a Delaware corporation (“Fitd”), regarding Fitd’s proprietary and confidential information.
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE FITD CONTROLLED PRIVATE BETA PROGRAM AGREEMENT (“AGREEMENT”) CAREFULLY. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE FITD PRIVATE BETA PROGRAM.
FITD PRIVATE BETA PROGRAM AGREEMENT
1. Participation in the Fitd Private Beta Program. The purpose of the Fitd Private Beta Program (the “Beta Program”) is to make the Fitd web application (the “Website”) available to Beta Program participants from time to time for the purpose of providing Fitd with feedback on the Program and usability and improvements of Fitd Services (as defined herein). You understand and agree that participation in the Beta Program is voluntary and does not create a legal partnership, agency or employment relationship between you and Fitd. You understand that your participation in the Beta Program does not obligate Fitd to provide you with any products or services. Fitd reserves the right to modify the terms, conditions and policies of this Beta Program at any time with or without notice, and to revoke your participation in this Beta Program at any time.
You also certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to join the Beta Program. This Agreement is void where prohibited by law and the right to become a Beta Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by Fitd in writing, you cannot share or transfer your user account in connection with being a Beta Program participant. The Fitd username and password you use to login as a Beta Program participant cannot be shared in any way or with any one. You are responsible for maintaining the confidentiality of your Fitd username and password and for any activity in connection with your account.
2. Access to Pre-Release Materials, Services and Additional Terms. You understand that Fitd may make pre-release services and materials (the “Fitd Services”) available to Beta Program participants. From time to time, Fitd, at its option, may also provide you with other services as part of the Beta Program. All use of such Fitd Services shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying the Fitd Services.
3. License Grant and Restrictions. Subject to your compliance with this Agreement, Fitd hereby grants you a personal, limited license to use the Fitd Services solely for testing and evaluation purposes and only in connection with this Beta Program. Except as otherwise permitted under Section 14, this license does not grant you the right to use the Fitd Services for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Fitd Services. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source or recreate any Fitd Services. Unless otherwise permitted under Section 15 below, you represent and warrant that the Fitd Services will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. Fitd retains ownership of all Fitd Services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Fitd intellectual property.
4. Feedback. As part of the Beta Program, Fitd will provide you with the opportunity to submit questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Fitd and/or its employees, partners, representatives or agents. Fitd may request this information from you through email, web questionnaires, forms and other mechanisms. By agreeing to this Agreement, you agree that Fitd may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. Except as otherwise set forth in Section 8, you agree that in the absence of a separate written agreement to the contrary, Fitd will be free to use any Feedback you provide for any purpose.
5. Definition of Confidential Information. You agree that the Fitd Services and any information concerning the Fitd Services (including its nature and existence, features, functionality and screen shots), the Website, and any other information disclosed by Fitd to you in connection with the Beta Program will be considered and referred to in this Agreement as “Confidential Information.” Notwithstanding anything herein to the contrary, information shall not be deemed Confidential Information if such information (a) is generally and legitimately available to the public through no fault or breach of your own, (b) is generally made available to the public by Fitd, (c) is independently developed by you without the use of any Confidential Information, as demonstrated by documents in your possession immediately prior to any disclosure thereof, or (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, as demonstrated by documents in your possession immediately prior to any disclosure thereof. All Confidential Information remains the sole property of Fitd and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
6. Nonuse and Nondisclosure of Confidential Information. Except as expressly permitted in this Section 6, you agree that you will not use, disclose, publish or otherwise disseminate any Confidential Information to anyone unless expressly permitted or agreed to in advance and in writing by Fitd. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of Confidential Information, including preventing access to or display of the Fitd Services to third parties. You agree to receive Confidential Information for the sole purpose of effecting the permitted uses of the Fitd Service as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Fitd in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Fitd that may be difficult to ascertain. Accordingly, you agree that Fitd will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
7. Precautions for the use of Pre-Release Products and Materials; No Warranty; Health Disclaimer. YOU EXPRESSLY AGREE THAT USE OF OUR BETA PROGRAM IS AT YOUR SOLE RISK. THE FITD SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY AND ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, FITD AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE FITD SERVICES WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS OR INFORMATIONAL CONTENT OF THE FITD SERVICES; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR BETA PROGRAM OR ACCESSED THROUGH ANY OF OUR WEBSITES; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FITD SERVICES; (6) WARRANTIES THAT YOUR USE OF THE FITD SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED. FUTHERMORE, YOU UNDERSTAND THAT FITD IS A SERVICE THAT LINKS TO RETAILERS OF APPAREL AND APPAREL ACCESSORIES AND DOES NOT DIRECTLY SELL APPAREL OR APPAREL ACCESSORIES TO USERS. YOU HEREBY ACKNOWLEDGE THAT ANY ISSUES IN CONNECTION WITH ANY PURCHASE FROM ANY RETAILER OR IN CONNECTION WITH THE USE OF ANY RETAILER’S WEBSITE (VIA THE FITD SERVICES OR OTHERWISE) IS BETWEEN YOU AND SUCH RETAILER. FITD HEREBY DISCLAIMS ALL LIABILITY ASSOCIATED WITH ANY PURCHASE MADE USING THE FITD SERVICES AND ALL LIABILITY ASSOCIATED WITH THE USE OF ANY RETAILER’S WEBSITE (VIA THE FITD SERVICES OR OTHERWISE).
8. Consent to Collection and Use of Data.
8.1 Fitd Services. In order to test and improve the Fitd Services, you acknowledge that Fitd and its representatives and agents will be collecting, using, storing, processing and analyzing user, purchase, diagnostic, technical, usage and/or related information as part of this Beta Program. This information will be collected in a form that does not personally identify you and may be collected at any time. By joining the Beta Program, you acknowledge and agree that Fitd and its subsidiaries and agents have your permission to collect all such information and use it as set forth above.
9. No Support and Maintenance; Future Products. During your participation in the Beta Program, Fitd is not obligated to provide you with any maintenance, technical or other support for the Fitd Services.
10. Discussion Forums. As part of the Beta Program, you may have the ability to participate in discussion forums provided by Fitd about the Fitd Services and other Confidential Information that Fitd may make available to you. For purposes of such discussion forums, Fitd is providing a limited exception to Section 6 by allowing you to discuss certain Fitd Confidential Information received by you with other participants who are in the same discussion as you in the Fitd designated discussion forum, and only within this discussion forum. Except for the limited purpose of discussions with other participants within such forums, you acknowledge and agree that this Agreement does not grant you the right to discuss, communicate, copy, reproduce, publish, blog, disclose, transmit or otherwise disseminate any Fitd Confidential Information.
11. Continuation of Service. The Fitd Services provided hereunder may be designated as alpha, beta, development, pre-release, untested or not fully tested versions. You acknowledge that Fitd has not publicly announced the availability of the Fitd Services, that Fitd has not promised or guaranteed to you that such Fitd Services will be announced or made available to anyone in the future, and that Fitd has no express or implied obligation to you to announce or introduce the Fitd Services or any similar or compatible service, or to continue to offer access to the Fitd Service in the future.
12. Disclaimer of Liability. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING AND/OR USE OF THE FITD SERVICES PROVIDED UNDER THIS AGREEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL FITD BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE FITD SERVICES, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR FITD’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF FITD HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FITD AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AFFILIATES AND REPRESENTATIVES SHALL IN NO WAY BE RESPONSIBLE FOR ANY DECISIONS YOU MAY MAKE BASED ON THE USE OF WEBSITE, FITD SERVICES AND/OR CONFIDENTIAL INFORMATION. YOU HEREBY WAIVE ANY CLAIM YOU MAY HAVE OR ACQUIRE AGAINST FITD OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AFFILIATES AND REPRESENTATIVES AND INDEMNIFY AND HOLD FITD OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AFFILIATES AND REPRESENTATIVES HARMLESS FROM ANY CLAIMS, PROCEEDINGS, COSTS, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES AND LOSS OF PROFITS RELATING TO YOUR USE OF THE WEBSITE OR FITD SERVICES.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Term and Termination. This Agreement will continue in effect until terminated in accordance with this Section 13. You may terminate this Agreement at any time, for any reason, but only by returning or destroying any Confidential Information that is in your possession or control. Fitd may terminate this Agreement at any time, with or without cause, and with or without notice. Within seven (7) days of your receipt of any such termination notice, or earlier if requested by Fitd, you will return, cease all use of and/or destroy the Fitd Services and all other Confidential Information as provided in this Section, if applicable. Following termination of this Agreement for any reason, the restrictions of Section 3, 4-8, and 11-17, inclusive, will continue to bind the parties.
We reserve the right to remove or refuse to distribute any Confidential Information or provide Fitd Services, and to terminate specific users. We also reserve the right to access, read, preserve and disclose any Information or Data to the extent we reasonably believe it is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the terms of this Agreement, including investigation of a potential violation thereof, (iii) detect, prevent or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or to (v) protect the rights, property or safety of Fitd, its users and the public.
14. Unlawful Use; Unauthorized Access; No Reproduction. You shall not use the Website, Fitd Services or any Confidential Information provided for any unlawful purposes or in furtherance of any illegal activities. International users are required to comply with all applicable local laws regarding online conduct and acceptable content.
You shall not: (i) access, tamper with or use non-public areas of the Application (except for your own account), Fitd computer systems or the technical delivery systems of our providers; (ii) probe, scan or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) attempt to access or search the Website, Fitd Services or any Confidential Information by any means (automated or otherwise) other than through our currently available, published interfaces; or (iv) interfere with or disrupt, or attempt to interfere with or disrupt, the access of any related user, host or network.
You shall not reproduce, duplicate, copy, sell, trade or resell the Website or Fitd Services content and their respective design and look or any Confidential Information derived therefrom. You are not entitled to modify or redistribute the such content or its design and look or any Confidential Information or to reproduce, store, link, frame or deep-link it on any other website or service or on any other medium or format without Fitd’s prior written consent. Further, you shall not use the Website, Fitd Services or Confidential Information for commercial exploitation in any circumstances.
15. Third Party Software & Information. Portions of the Fitd Services may include third-party software, links to third-party websites and other copyrighted material. Your use of such material is governed by their respective terms and conditions, and Fitd shall have no liability with respect to such third-party software or websites, including but not limited to, the content, safety, security, availability or accuracy thereof. Mention of third parties and third party products or services in any Fitd Services, materials, advertising, promotions or coupons provided to Beta Program participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Fitd shall have no responsibility with regard to the selection, performance, or use of these vendors, products or services. All understandings, agreements or warranties, if any, take place directly between the vendors and the prospective users. All third-party trademark, copyright or other intellectual property shall remain the property of such third-parties.
15. No Waiver or Assignment. No delay or failure to take action under this Agreement shall constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Fitd, and no single waiver shall constitute a continuing or subsequent waiver. This Agreement may not be assigned by you in whole or in part. Any contrary assignment shall be null and void. Fitd may assign this Agreement to any entity at any time.
16. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. The parties further submit to and waive any objections to personal jurisdiction of and venue in San Francisco County in the State of California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
17. Severability; Complete Understanding. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, any waiver or amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.