Fitbit

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Nature Real
ID Name Fitbit
Provider Fitbit, Inc.
Description Fitbit is an activity tracker which senses user movement in order to calculate distance walked, calories burned, floors climbed, activity duration and intensity, and sleep duration and quality.
Country USA
Release Date 18.06.2015 (date of the analysis)
Link http://www.fitbit.com/us
Topics
Correlated texts https://en.wikipedia.org/wiki/Fitbit, http://help.fitbit.com/articles/en_US/Help_article/Can-I-use-my-iPhone-to-track-my-data-without-a-Fitbit-device, http://help.fitbit.com/articles/en_US/Help_article/MobileTrack-for-Android-FAQs/?q=can+i+use+my+andorid+phone+without+a+device&l=en_US&fs=Search&pn=1, http://help.fitbit.com/articles/en_US/Help_article/MobileTrack-for-iOS-FAQs/?q=can+i+use+my+andorid+phone+without+a+device&l=en_US&fs=Search&pn=1, https://www.fitbit.com/premium/export, http://help.fitbit.com/articles/en_US/Help_article/Can-I-export-my-fitness-data-to-my-computer, http://help.fitbit.com/articles/en_US/Help_article/Can-I-use-more-than-one-Fitbit-tracker-with-the-same-account, http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data, http://www.sparkpeople.com/mypage_public_journal_individual.asp?blog_id=2471667

Notes

Fitbit components:

  • hardware (to it, the Terms and Conditions which apply are: the Terms of Sale; the Terms of Service; the Privacy Policy, for what concerns the data collected by Fitbit, Inc. through the use of the tracker by the customer; the Return Policy and Warranty)
    • tracker: it is equipped with Bluetooth connectivity, in order to communicate directly with the mobile app
    • base station: it is wireless; it enables battery charging and receives data from the tracker; if connected to a computer, it uploads data on the website
  • embedded software: to it, the Terms and Conditions which apply are: the Terms of Sale, particularly for what concerns the "Software License"; the Terms of Service
  • service
    • user account: to it, the Terms and Conditions which apply are: the Terms of Service; the Privacy Policy
    • website: it is free and it can be used even without possessing a Fitbit tracker; its main features are the following : seeing an overview of physical activity (obviously, only if the user possesses a Fitbit tracker), setting and tracking goals, keeping food and activity logs and interacting with friends); to it, the Terms and Conditions which apply are: the Terms of Service; the Privacy Policy
    • mobile app (and the Fitbit Connect software, which is the equivalent of the mobile app, but for the computer): it can communicate directly with the tracker via Bluetooth (before 2012, on the contrary, the mobile app could receive data only from the user account; source: https://en.wikipedia.org/wiki/Fitbit); users could log their food, activities, water intake and weight, as well as track their fitness goals throughout the day even while offline; to it, the Terms and Conditions which apply are: the Terms of Service; the Privacy Policy
    • Fitbit Premium Services: they can be accessed - by paid subscription, trial or promotion - by Fitbit account holders; these services include custom goal, activity, food, sleep, and population comparison tracking, reporting, consulting or coaching, along with related products and services; to them, the Terms and Conditions which apply are: the Terms of Sale, for what concerns the "Terms Specific to Fitbit Premium"; the Privacy Policy; and the Terms of Service; the Privacy Policy

If customers have any questions about Fitbit Terms and Conditions, they can contact Fitbit, Inc. at the following address: support@fitbit.com.

Contractual characteristics

Links to Terms&Conditions: http://www.fitbit.com/us/terms-of-sale (Terms of Sale); http://www.fitbit.com/us/terms (Terms of Service); http://www.fitbit.com/us/returns (Return Policy and Warranty); http://www.fitbit.com/us/privacy (Privacy Policy)

Date of Terms&Conditions: 30.12.2014 (Terms of Sale); 18.12.2104 (Terms of Service); 12.05.2015 (Return Policy and Warranty); 09.12.2014 (Privacy Policy)

1. Is the consumer allowed to modify the software and/or hardware without retaliation? No
If the customer modifies the hardware, the Warranty doesn't apply.

If the customer modifies the software over the extent permitted by law, his account may be removed - or anyway his access to it may be disabled - and the information related to his account may be deleted.


"You acknowledge that the Software contains trade secrets of Fitbit, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Fitbit reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement". (Source: Terms of Sale)

"Except to the extent permitted by law, you may not [...] modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Fitbit provides to you or any other part of the Fitbit Service." (Source: Terms of Service)

"If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account." (Source: Terms of Service)

"We reserve the right (but are not required) to remove or disable access to the Fitbit Service, any Fitbit Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms." Remember that the Fitbit Service includes the use of the tracker, which means that a use of the tracker in violation of the Terms and Conditions (for example, the modification of the software over the extent permitted by law) may cause the ceasing of the Fitbit Service. (Source: Terms of Service)

"This warranty does not apply to a Product or part of the Product that has been altered or modified (e.g., to alter functionality or capability) by anyone who is not a representative of Fitbit or if the Product is inserted or installed in a casing not provided by Fitbit. In addition, this Limited Warranty does not apply: (a) to damage caused by use with non-Fitbit products; [...] (c) to damage caused by operating the Product outside the permitted or intended uses described by Fitbit or with improper voltage or power supply; or (d) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Fitbit." (Source: Return Policy and Warranty)

2. Does the provider reserve to himself the right to modify/delete his own content? Yes
The provider reserves to himself the right to discontinue, even permanently, any component of the service, therefore also the content he provides to the customer (N.B.: provider's content includes also the information collected by the tracker).

Particularly, the provider reserves to himself the right to delete his content when its use by the customer is objectionable or in violation of the Terms imposed by the provider. However, he authorizes the customer to retain a copy of his data, in order to avoid its loss.

""Fitbit Content" includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Fitbit Service to you." Therefore, Fitbit Content includes also the user data that are collected through the Fitbit tracker and that are made available to the customer through the account and - it seems- also through the tracker itself, because its use is stated to be part of the Fitbit Service. (Source: Terms of Service)

"Because Fitbit reserves the right to alter or discontinue all or any portion of the Premium Service under the Terms of Service (http://domain.com/terms) , you should be sure to retain a copy of any materials you post, along with your user data". (Source: Terms of Sale)

In case of delivery of the product by the customer to the warranty service, "[i]t is your responsibility to backup any data, software, or other materials you may have stored or preserved on the Product." (Source: Return Policy and Warranty)

"We reserve the right (but are not required) to remove or disable access to [...] any Fitbit Content [...] at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms". (Source: Terms of Service)

"We are not obligated to monitor access or use of the Fitbit Service, Fitbit Content, or Your Content or to review or edit any Fitbit Content or Your Content, but we have the right to do so for the purpose of operating the Fitbit Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements." (Source: Terms of Service)

"Fitbit may change or discontinue, temporarily or permanently, any feature or component of the Fitbit Service at any time without notice. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service." (Source: Terms of Service)

3. Does the provider reserve to himself the right to modify/delete consumer content? Yes
The provider reserves to himself the right to modify consumer content, even if only in connection with operating and providing the service.

The provider reserves to himself the right to delete consumer content if it is objectionable or if it violates the Terms imposed by the provider. However, he authorizes the customer to retain a copy of his content, in order to avoid its loss.

"Because Fitbit reserves the right to alter or discontinue all or any portion of the Premium Service under the Terms of Service (http://domain.com/terms), you should be sure to retain a copy of any materials you post, along with your user data". (Source: Terms of Sale)

"Fitbit may change or discontinue, temporarily or permanently, any feature or component of the Fitbit Service at any time without notice. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service." (Source: Terms of Service)

"By making Your Content" - which is constituted by "photos, exercise regimens, food logs, recipes, comments, and other content" posted by the customer to the Fitbit Service - "available on or through the Fitbit Service you grant to Fitbit a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the Fitbit Service." (Source: Terms of Service)

"We reserve the right (but are not required) to remove or disable access to [...] Your Content at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms". (Source: Terms of Service)

"We are not obligated to monitor access or use of the Fitbit Service, Fitbit Content, or Your Content or to review or edit any Fitbit Content or Your Content, but we have the right to do so for the purpose of operating the Fitbit Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements." (Source: Terms of Service)

4. Is the title on software explicitly transferred to the consumer? No
Actually, the title on the embedded software is explicitly conserved by the provider, who makes clear that the software is only licensed to the customer, and that the terms like "sale" that could be found only refer to the hardware part of the product.


"To the extent the Products" - which are "Fitbit personal fitness and body monitoring products" - "contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software". (Source: Terms of Sale)

"Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Fitbit’s delivery of the Products to the carrier". (Source: Terms of Sale)

"Fitbit grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Fitbit, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Fitbit reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement". (Source: Terms of Sale)

"Fitbit grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Fitbit Content, (2) access and use the software and mobile applications provided by the Fitbit Service, and (3) use the software that is embedded into Fitbit products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Fitbit Service as permitted in these Terms". (Source: Terms of Service)

5. Is the title on hardware explicitly transferred to the consumer? Yes
The provider explicitly states that the title on the hardware part of the product is transferred to the customer.


"Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software".(Source: Terms of Sale)

"Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Fitbit’s delivery of the Products to the carrier". (Source: Terms of Sale)

6. Is the consumer forbidden from reselling the device? Yes
The customer can purchase the device only for personal use or for gift use, and the resale isn't allowed.

Indeed, besides the explicit statement (whose sole interpretation may be doubtful, because it might be limited to the prohibition of resale by a professional retailer), other two elements confirm this: 1) the Terms of Sale can't be transferred; and 2) the embedded software is subject to a non-transferable license. The sole case in which a resale is possible, is when the provider gives his express prior written consent. However, we highlight that it is possible for the customer to give the device to another person, who can create a new account associated with the device.


"Products purchased by you are for personal or gift use and not for commercial use". (Source: Terms of Sale)

"Purchases made through the Fitbit Store are intended for end users only, and are not authorized for resale". (Source: Terms of Sale)

"You may not assign or transfer these Terms, or any order accepted by Fitbit hereunder, in whole or in part, by operation of law or otherwise, without Fitbit’s express prior written consent. Any attempt to do so, without Fitbit’s consent, will be null and of no effect". (Source: Terms of Sale)

Moreover, we must consider that both the Terms of Service and the Terms of Sale specify that the embedded software is subject to a non-transferable license: so, in any case, how to transfer the device without the embedded software?

We want to highlight, anyway, that in the Terms of Service it is stated that, even if "[a]ny attempt by you to assign or transfer these Terms, without such consent, will be null", "Fitbit may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns." Considered that those Terms govern also customer's use of the embedded software, we understand that a possibility of transfer exists, but requires Fitbit’s consent. (Source: Terms of Service)

Moreover, on the website it is stated: "You’re welcome to give your tracker to another person, and that person can create a new account." Therefore, practically, the provider allows me to give the tracker to another person, and - as long as he can't know that I've sold it - he won't act against me. (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-use-more-than-one-Fitbit-tracker-with-the-same-account)

7. Is the consumer forbidden from transferring the account? Yes
Given the fact that the provider grants a non-transferable license to access the provider's content and the apps, the account isn't transferable.

If the customer transfers the account, the risk for him is to see the access to it removed or disabled. The sole case in which a transfer of the account is possible, is when the provider gives his express prior written consent.


For what concern the Premium Services, the consumer is forbidden from transferring them without Fitbit's written consent: "You may not assign or transfer these Terms, or any order accepted by Fitbit hereunder, in whole or in part, by operation of law or otherwise, without Fitbit’s express prior written consent. Any attempt to do so, without Fitbit’s consent, will be null and of no effect.". However, given the fact that this is an additional service, not essential for the use of the device, we won't consider it in answering this question. (Source: Terms of Sale)

For what concerns the free account, it is said that "Fitbit grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Fitbit Content, (2) access and use the software and mobile applications provided by the Fitbit Service, and (3) use the software that is embedded into Fitbit products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Fitbit Service as permitted in these Terms. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fitbit Content, Fitbit Service or any portion thereof, except as expressly permitted in these Terms". Therefore, given the fact that a great part of the Fitbit Content can be accessed through the account, and that the Fitbit Service includes also memberships, that means that the account also is subject to this non-transferable license: thus, we can affirm that the account is not formally transferable. Which is subsequently confirmed by the statement: "You may not assign or transfer these Terms, by operation of law or otherwise, without Fitbit’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null." Nonetheless, we must reflect about the fact that - being the data collected by the Fitbit tracker strictly linked to an individual - it is difficult to imagine a situation in which a second acquirer would desire to receive not only the device, but also the account (different could be the situation in which the data collected refers e.g. to a location, instead of an individual). (Source: Terms of Service)

However, the Terms of Service state also that "[y]ou are responsible for all activity that occurs in association with your account. Fitbit is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials." Therefore, at a first sight it seems that the sole negative consequence for the customer giving his credentials to others is the absence of liability of Fitbit, Inc. in case of damages. Nonetheless, it is also stated that: "We reserve the right (but are not required) to remove or disable access to the Fitbit Service, any Fitbit Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms". Therefore, it remains for the customer the risk of seeing his access to the Fitbit Service removed or disabled. (Source: Terms of Service)(Source: Terms of Service)

Finally, we want to highlight, anyway, that in the Terms of Service it is stated that, even if "[a]ny attempt by you to assign or transfer these Terms, without such consent, will be null", "Fitbit may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns." Considered that those Terms govern also memberships, we understand that a possibility of account transfer exists, but requires Fitbit’s consent. (Source: Terms of Service)

8. Is there an explicit prohibition to use the device in combination with a third party service? No
The use of the device can be realized through the service or the API of its provider. Hence,the sole case in which the use of the device in combination with a third-party service is allowed is when the provider of the device offers this opportunity.

There is need for an account supplied by the provider in order to use the device; moreover, in case of use of the device with third-party products and service, the Warranty doesn't apply.


"If you want to access data collected by your Device, you must create a Fitbit account." (Source: Privacy Policy)

"[Y]ou may not [...] access the Fitbit Service or Fitbit Content through the use of any mechanism other than through the Fitbit Service or Fitbit API." Given that the use of the tracker is part of the Fitbit Service, we may infer that the consumer is forbidden from accessing the device through a third party service. (Source: Terms of Service)

It is true that it is also stated that: "The Fitbit Service may provide the opportunity for you to link your Fitbit account, Fitbit data, or the Fitbit Service with Third-Party Services. Although we offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the Fitbit Service are not part of the Fitbit Service." However, given that these other Services are additional and not alternative to Fitbit Service, and that - in any case - they must be third party services allowed by Fitbit, Inc. (for a list of those services, see https://www.fitbit.com/compatibleapps), we won't consider this statement in answering this question. (Source: Terms of Service)

"[T]his Limited Warranty does not apply: (a) to damage caused by use with non-Fitbit products; [...] (c) to damage caused by operating the Product outside the permitted or intended uses described by Fitbit or with improper voltage or power supply; or (d) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Fitbit." (Source: Return Policy and Warranty)

9. Are there explicit duration boundaries to consumer’s enjoyment of the device? Yes
There are explicit duration boundaries to consumer's enjoyment of the device, but those boundaries are not predetermined.

In fact, they may depend on two alternative events: 1) the customer doesn't accept anymore the Terms of Service ; 2) the provider decides to permanently discontinue the service. Indeed, in both cases, being the service essential for the use of the device [see CC8 and TC4], the customer can't use the device anymore.

Even if there are no fixed duration boundaries to consumer’s enjoyment of the device, the Terms of Service state that they apply to the "Fitbit Service", which includes also the use of Fitbit personal fitness and electronic body monitoring products and the embedded software; therefore, because of the fact they also state that - if the customer doesn't accept the Terms of Service - he can't use any part of the Fitbit Service, that means that his enjoyment of the device should end when he doesn’t accept the Terms of Service anymore, which is not a remote possibility, considering the fact that the Terms of Service may change, and that "[w]hen you use the Fitbit Service after a modification is posted, you are telling us that you accept the modified terms." (Source: Terms of Service)

"Fitbit may change or discontinue, temporarily or permanently, any feature or component of the Fitbit Service at any time without notice. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service." (Source: Terms of Service)

"[Y]ou may not [...] access the Fitbit Service or Fitbit Content through the use of any mechanism other than through the Fitbit Service or Fitbit API." Given that the use of the tracker is part of the Fitbit Service, we may infer that the consumer is forbidden from accessing the device through a third party service, which means that - if the Fitbit Service ceases to be provided - the customer can't use the device anymore. (Source: Terms of Service)

10. Are there explicit duration boundaries to consumer’s enjoyment of the service? Yes
There are explicit duration boundaries to consumer's enjoyment of the service, but those boundaries are not predetermined.

In fact, they may depend on two alternative events: 1) the customer doesn't accept anymore the Terms of Service ; 2) the provider decides to permanently discontinue the service.


For what concerns the Premium Services, there are explicit boundaries to consumer's enjoyment of them: the customer can select their duration: the renewal is automatic, unless the customer cancels; if Fitbit doesn't receive payments, the cancellation is immediate. Moreover, "[b]ecause Fitbit reserves the right to alter or discontinue all or any portion of the Premium Service under the Terms of Service (http://domain.com/terms), you should be sure to retain a copy of any materials you post, along with your user data". However, considering the fact that these services are not essential for product usability ("[i]f you terminate the Premium Service, but continue to be a member of Fitbit"), we won't consider them". (Source: Terms of Sale)

For what concern the rest of the services, there are no fixed duration boundaries, but, because of the fact the Terms of Service state that - if the customer doesn't accept the Terms of Service - he can't use any part of the Fitbit Service, that means that his enjoyment of the service should end when he doesn’t accept the Terms of Service anymore, which is not a remote possibility, considering the fact that the Terms of Service may change, and that "[w]hen you use the Fitbit Service after a modification is posted, you are telling us that you accept the modified terms." (Source: Terms of Service)

Moreover, "Fitbit may change or discontinue, temporarily or permanently, any feature or component of the Fitbit Service at any time without notice. Fitbit is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fitbit Service." (Source: Terms of Service)

11. Are there explicit terms and conditions allowing the consumer to access (view only) his data? Yes
The customer has the right to access his data, but only for his personal use, and only if he doesn't violate the Terms imposed by the provider and if he accepts them. Otherwise, his account may be deactivated by the provider.

Moreover, there is always the risk of a discontinuity of the service, which may prevent the customer from carrying on access to his data.


"If you want to access data collected by your Device, you must create a Fitbit account." (Source: Privacy Policy)

"Fitbit grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Fitbit Content [...] as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Fitbit Service as permitted in these Terms". (Source: Terms of Service)

"If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account." (Source: Terms of Service)

"We reserve the right (but are not required) to remove or disable access to the Fitbit Service, any Fitbit Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Fitbit Content, Your Content, or your use of the Fitbit Service is objectionable or in violation of these Terms". (Source: Terms of Service)

In the Terms of Service, it is stated that the Fitbit Service (website, product, software, mobile apps, account) can't be used if the customer doesn't agree with the Terms of Service: that means that the customer can access his data only if he agrees with the Terms (and possibly with their modifications unilaterally adopted by Fitbit, Inc.).

12. Are there explicit terms and conditions allowing the consumer to delete his data? No
The customer can't delete all types of data from his account, and no information is given about the possibility of completely resetting the device.

At least, the customer has the right to deactivate his account (as the Privacy Policy states), but he can't do that in first person: he has to contact the provider.


"If you remove data from your Fitbit account, it will no longer appear to you or others who use the Fitbit Service. Backups of that data will remain associated with your Fitbit account and in our archive servers." (Source: Privacy Policy)

"It is not possible to delete steps and floors [from the account], but you can achieve the same result by negating them." (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data)

Nothing is said about the right/possibility to delete data from the device, except for what concerns: 1) the greeting, which however can be deleted only through the account (and not through the device itself); 2) the profile data, which however can be deleted only creating a new account. (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data)

"We store your PII for as long as you maintain a Fitbit account." Therefore in case of cancellation of the account by the customer, data is deleted by Fitbit, Inc. (Source: Privacy Policy)

"You can deactivate your Fitbit account by contacting Customer Support (http://help.fitbit.com/?cu=1) . When you do, data that can identify you will be removed from the Fitbit Service, including but not limited to your email, name, photo(s), friends list and links to sites such as Facebook and Twitter. Backup copies of this data will be removed from our server based upon an automated schedule, which means it may persist in our archive for a short period. Fitbit may continue to use your de-identified data after you deactivate your account." (Source: Privacy Policy)

There is however no information about the possibility for the customer to delete data from his device, but, considering that it is technically possible for the customer to delete it, we may consider that this deletion right is implied.

13. Are there explicit terms and conditions allowing the consumer to export (with proprietary format) his data? Yes
The customer is allowed to export his data, in XLS format, in order to avoid its lost.


"Because Fitbit reserves the right to alter or discontinue all or any portion of the Premium Service under the Terms of Service (http://domain.com/terms), you should be sure to retain a copy of any materials you post, along with your user data". If we consider the data collected by the tracker part of the "user data", we can therefore infer that the consumer is allowed to export "Fitbit believes you own your data. Follow the instructions below to easily export your data to a Microsoft Excel® (XLS) or comma separated value (CSV) file. CSV files can be opened by numerous applications, although most people choose to view them in a spreadsheet application such as Excel or Google Docs™. CSV files automatically open in Excel if your computer has it installed. ". (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-export-my-fitness-data-to-my-computer)

"Fitbit believes you own your data. Follow the instructions below to easily export your data to a Microsoft Excel® (XLS) or comma separated value (CSV) file. CSV files can be opened by numerous applications, although most people choose to view them in a spreadsheet application such as Excel or Google Docs™. CSV files automatically open in Excel if your computer has it installed. ". (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-export-my-fitness-data-to-my-computer)

"Premium Membership allows you to export your Fitbit data as an XLS or CSV file, which you can use however you like" and "which can be opened by many paid, free, or shareware applications". (Source: https://www.fitbit.com/premium/export)his data, at least for a purpose of not loosing them. (Source: Terms of Sale)

In case of delivery of the product by the customer to the warranty service, "[i]t is your responsibility to backup any data, software, or other materials you may have stored or preserved on the Product." (Source: Return Policy and Warranty)

14. Are there explicit terms and conditions allowing the consumer to export (with open format) his data? Yes
The customer is allowed to export his data in an open format, which is CSV.'

However, the customer isn't allowed to transfer, transmit or otherwise exploit his data, except for its use with third-party services allowed by the provider of the data. It is therefore difficult to say if the Terms allow him to use his data in the context of third-party services.


"You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fitbit Content, Fitbit Service or any portion thereof, except as expressly permitted in these Terms." Given the fact that the Fitbit Content includes "information that [is] posted, generated, provided or otherwise made available through the Fitbit Service to [the customer]", that seems to imply that data collected by the tracker can't be used in connection with third party services. (Source: Terms of Service)

It is true that it is also stated that: "The Fitbit Service may provide the opportunity for you to link your Fitbit account, Fitbit data, or the Fitbit Service with Third-Party Services. Although we offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the Fitbit Service are not part of the Fitbit Service." However, given that these other Services are additional and not alternative to Fitbit Service, and that - in any case - they must be third party services allowed by Fitbit, Inc., we won't consider this statement in answering this question. (Source: Terms of Service)

"Fitbit believes you own your data. Follow the instructions below to easily export your data to a Microsoft Excel® (XLS) or comma separated value (CSV) file. CSV files can be opened by numerous applications, although most people choose to view them in a spreadsheet application such as Excel or Google Docs™. CSV files automatically open in Excel if your computer has it installed. ". (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-export-my-fitness-data-to-my-computer)

"Premium Membership allows you to export your Fitbit data as an XLS or CSV file, which you can use however you like" and "which can be opened by many paid, free, or shareware applications". (Source: https://www.fitbit.com/premium/export)

15. Does the provider reserve to himself the right to unilaterally modify terms and conditions? Yes
The Terms of Service may be unilaterally modified by the provider over time, and - if the customer continues to use the service (or the device, because its use implies the use of the service) - this means that he accepts the modified terms.

The Privacy Policy may be unilaterally modified by the provider over time, but the changes will affect only the data collected from that moment.


"These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.fitbit.com. We will notify you by email, through the Fitbit Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the Fitbit Service after a modification is posted, you are telling us that you accept the modified terms." (Source:Terms of Service)

Expressly for what concerns the Privacy Policy, it "may change over time, but any future changes will not affect data that was collected under a previous version of this policy". (Source: Privacy Policy)

16. Does the provider reserve to himself the right to unilaterally modify the software? Yes
The provider reserves to himself the right to automatically update the software.


"We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Fitbit products without prior notice to you." (Source: Terms of Service)

Technical characteristics

1. Which is the duration of the provider role? Continuing
To use the service and to access the data collected by the device, the customer has to create an account. Once the account created, the synchronization between the device and the account can take place via Bluetooth (so there is no need for the provider's cloud at this step), but the services that are provided to the customer on the basis of those data require - on the contrary - the storage of those data on the provider's cloud. Moreover, the provider has tha ability to deactivate the customer's account, which would impede further use of the device itself by the customer.


"Full use of the Fitbit Service requires that you create an account". (Source:Terms of Service)

"We make no warranty that the Fitbit Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis". (Source: Terms of Service)

"If you want to access data collected by your Device, you must create a Fitbit account." (Source: Privacy Policy)

But we should verify if - once the account has been created - the intervention of the provider is necessary for the use of the tracker: we could infer that some kind of services won't be available anymore, or won't be updated. But we also have to consider that the tracker can communicate directly with the mobile phone via Bluetooth (source: https://en.wikipedia.org/wiki/Fitbit), which means that the Fitbit Cloud is not essential for the communication between the tracker and the smartphone. We should therefore verify what activities the mobile app is able to do also when it is offline, or - anyway - what activities don't require a subsequent intervention of the provider.

Some clues may come from the statement: "When you sync your Device through an App or the Software, data recorded on your Device about your activity is transferred from your Device to our servers. This data is stored and used to provide the Fitbit Service and is associated with your account." Therefore, even if the servers are not necessary for the synchronization, they are essential for the subsequent services that are provided to the customer on the basis of the data collected by the tracker. (Source: privacy Policy)

"If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account." (Source: Terms of Service)

2. Is the branded hardware necessary for product usability? No
The provider's website - for some features - can be used also without a device.

Moreover, and most importantly, the account and the mobile app can be used in connection with a smartphone - instead of the provider's device - to track some data.


"Designed for iPhones beginning with the 5s model, MobileTrack is a feature of the Fitbit app for iOS that uses the M7 chip in the phone to track your basic activity data without the use of a Fitbit tracker." (Source: http://help.fitbit.com/articles/en_US/Help_article/MobileTrack-for-iOS-FAQs/?q=can+i+use+my+andorid+phone+without+a+device&l=en_US&fs=Search&pn=1)

"Using low-power step sensors located inside certain Android handsets, MobileTrack allows you to track basic activity data through your phone and without using a Fitbit tracker." (Source: http://help.fitbit.com/articles/en_US/Help_article/MobileTrack-for-Android-FAQs/?q=can+i+use+my+andorid+phone+without+a+device&l=en_US&fs=Search&pn=1)

To get started, download the Fitbit app from the app store and tap Join Fitbit. You will see a screen with Fitbit products; at the bottom of this screen, tap the tile that says "No Fitbit Yet? iPhone 5s tracks the basics." Continue through the rest of the setup flow by entering your information and creating an account. Once you have completed the setup flow you can begin tracking your data." (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-use-my-iPhone-to-track-my-data-without-a-Fitbit-device)

"Fitbit offers a free website that can be used with or without the Fitbit Tracker. Users have the ability to log their food, activities, weight, blood pressure, heart rate, and glucose levels to track over time. Users also have the ability to set daily and weekly goals for themselves for steps, calories burned and consumed, and distance walked." (Source: https://en.wikipedia.org/wiki/Fitbit)

3. Is the branded software necessary for product usability? Not processed
Obviously, the branded software isn't necessary for the use of the product when neither the branded hardware is used [see TC 2].

Outside this hypothesis, I can't for the moment say if it would be technically possible to use the product with a third-party software.

4. Is the branded "service" necessary for product usability? Yes
The service supplied by the provider of the product is necessary for its usability, because there is need for an account supplied by the provider to access the data collected by the device.


"When activating a Fitbit Device, you will be asked to download the Fitbit App [...]." (Source: Privacy Policy)

"If you want to access data collected by your Device, you must create a Fitbit account." (Source: Privacy Policy)

The Premium Services are not essential for product usability: "If you terminate the Premium Service, but continue to be a member of Fitbit [...]".

5. Do the device's administration rights belong to the product provider? Not processed
For the moment, I can't say whom the administration rights belongs to, even if the necessity of using the account to access data and delete them may be considered a clue of the fact that the provider is the device administrator.

Anyway, given that to access the data collected by the device there is need for an account, that means that, without an account, the device is practically useless; therefore, even if the provider may not own the administration rights on the device, his ability to deactivate the customer's account makes him able to achieve a similar result. The only difference would probably be that device could be used with a new account.


"If you want to access data collected by your Device, you must create a Fitbit account." (Source: Privacy Policy)

Moreover, data can be deleted from the device only through the account - or even, for certain types of data, only creating a new account - (see http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data), and this is generally a clear signal of the fact that the administration rights belong to the provider.

"We are not obligated to monitor access or use of the Fitbit Service, Fitbit Content, or Your Content or to review or edit any Fitbit Content or Your Content, but we have the right to do so for the purpose of operating the Fitbit Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements." (Source: Terms of Service)

"If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account." (Source: Terms of Service)

6. Which possibilities does the consumer have to dispose of his data? Access, Data export, Interoperability
The customer can access and export his data. Moreover, the export can take place in an open format, which is CSV. Interoperability seems therefore allowed.

However, we should verify the interoperability level allowed by CSV, in order to understand if data could be practically used in combination with third-party services. On the contrary, the deletion of data seems not to be fully possible: a complete reset of the device seems not possible (and even the data that can be deleted from it requires to be deleted through the account or even activating a new account); some kind of information can't be deleted from the account by the customer, and the only way to obtain its deletion is to deactivate the account.


"Starting in June 2011, Fitbit was criticized for its website's default activity sharing settings, which made users' manually entered physical activities available for public viewing. All users had the option to make their physical activity information private, but some users were unaware that the information was public by default. One specific issue which technology blogs made fun of was that some users were including details about their sex lives in their daily exercise logs, and this information was by default publicly available. Fitbit responded to criticism by making all such data private by default and requesting that search engines remove indexed user profile pages from their databases". (Source: https://en.wikipedia.org/wiki/Fitbit)

"Because Fitbit reserves the right to alter or discontinue all or any portion of the Premium Service under the Terms of Service (http://domain.com/terms), you should be sure to retain a copy of any materials you post, along with your user data". (Source: Terms of Sale)

In case of delivery of the product by the customer to the warranty service, "[i]t is your responsibility to backup any data, software, or other materials you may have stored or preserved on the Product." (Source: Return Policy and Warranty)

"Data that you provide to Fitbit through the Site can be modified from your dashboard or Fitbit account preferences. If you remove data from your Fitbit account, it will no longer appear to you or others who use the Fitbit Service. Backups of that data will remain associated with your Fitbit account and in our archive servers." (Source: Privacy Policy)

"Fitbit believes you own your data. Follow the instructions below to easily export your data to a Microsoft Excel® (XLS) or comma separated value (CSV) file. CSV files can be opened by numerous applications, although most people choose to view them in a spreadsheet application such as Excel or Google Docs™. CSV files automatically open in Excel if your computer has it installed. ". (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-export-my-fitness-data-to-my-computer)

"Premium Membership allows you to export your Fitbit data as an XLS or CSV file, which you can use however you like" and "which can be opened by many paid, free, or shareware applications". (Source: https://www.fitbit.com/premium/export)

'"It is not possible to delete steps and floors [from the account], but you can achieve the same result by negating them." (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data)

Nothing is said about the right/possibility to delete data from the device, except for what concerns: 1) the greeting, which however can be deleted only through the account (and not through the device itself); 2) the profile data, which however can be deleted only creating a new account. (Source: http://help.fitbit.com/articles/en_US/Help_article/Can-I-delete-data)

"You can deactivate your Fitbit account by contacting Customer Support (http://help.fitbit.com/?cu=1) . When you do, data that can identify you will be removed from the Fitbit Service, including but not limited to your email, name, photo(s), friends list and links to sites such as Facebook and Twitter. Backup copies of this data will be removed from our server based upon an automated schedule, which means it may persist in our archive for a short period. Fitbit may continue to use your de-identified data after you deactivate your account." (Source: Privacy Policy)

Usability

1. Can the consumer enjoy the product for an unlimited period? No
If we consider the product enjoyment as the enjoyment of the particular device acquired by the customer in combination with the account he has created at the moment of the first activation of the account, the answer to the question is negative.
  • The provider can (see TC5) and reserves to himself the right (see CC11) to deactivate the account of the customer if he violates the Terms imposed by the provider.

But the answer is negative also if we consider the product enjoyment as the enjoyment of the device, let it be in combination with the original account, a new account or even a third party service.

  • The branded service is necessary for product usability (see TC4).
  • If the customer wants to use the service, he must accept the Terms of Service and the changes unilaterally operated to those Terms by the provider over time (see CC15).
  • The functioning of the service requires a continuing involvment of the provider(see TC1).
  • The branded service can be discontinued - even permanently - by the provider, who disclaims his own liability for the discontinuity of the service (see CC10).
2. Can the consumer sell the device? No
Under a contractual point of view, the consumer can't sell the device, although he is the owner of it (see CC5).
  • The resale is contractually forbidden (see CC6).
  • The embedded software doesn't belong to the customer (see CC4), even if - to deny the possibility of resale on the basis of this statement - I should verify if it could be possible to use the device with a third party software (see TC3).

Under a technical point of view, for the moment, I can't answer this question (some further points have to be verified). But some pieces of consideration can already be presented.

  • The provider allows the customer to give the device to another person, who can create a new account (see CC6).
  • Except for the cases in which the sale takes place through e.g. online platforms, it would be really difficult (and maybe also uninteresting) for the provider to verify if the device has been the object of a sale or of a donation (see CC6).
  • However, if the provider discovers that a sale has taken place, what kind of acts could be taken by him against the reseller and/or the second acquirer (obviously, under a legal point of view, he can sue the first acquirer/reseller, but here we are questioning about the technical acts of retaliation he could implement)? If he knows the series number of the device resold, and if he can know which account(s) a particular device has been connected to, he can for example decide to continue deactivating the new accounts that are associated with that device; if the administration rights on the device belong to the provider, he can even impede any further use of the device itself (see TC5).

We can conclude with the further statement. Even if it is mostly improbable that the provider realizes acts of retaliation in case of resale of the device when the sale takes place without recurring to online platforms, this possibility increases when it takes place e.g. through second-hand online markets. Moreover, his acts of retaliation may be not only of juridical nature (legal action), but also presumably of technical nature (material prevention of the use of the device).

3. Can the consumer transfer the account? No
The consumer is contractually forbidden from transferring the account (see CC7).

However - being the data collected by the Fitbit tracker strictly linked to an individual - it is difficult to imagine a situation in which a second acquirer would desire to receive not only the device, but also the account (see CC7), given also the fact that the provider allows the customer to give the device to another person, who will be able to create a new account associated with that device (see CC6).

  • Anyway, practically speaking, the customer could materially transfer his account to another person simply revealing to him his own credentials (see CC7).
4. Can the consumer delete his data? No
The provider doesn't confer to the customer a right to delete his data, even if he considers the possibility of its deletion from the account by the customer (see CC12).

Materially a complete deletion of the data by the customer isn't possible (see TC6).

Therefore, a question rises: Can the customer (A) give his device to another person (B) without B accessing the data of A? If A doesn't give to B his account credentials, he can avoid that B accesses to the data contained in his account. B will therefore create a new account, and in this way the profile data of A would be automatically deleted from the device.

5. Can the consumer delete his account? Yes
The customer can deactivate his account.
  • The provider gives the right to the customer to deactivate his account (see CC12).
  • Technically, however, the customer has to contact the provider in order to that: he can't do it by himself (see TC6).
6. Can the consumer use his data? Not available
The customer can use his data, in the sense that he can export them in an open format (see TC6 and CC14).

However, we should verify to what extent this open format (CSV) allows interoperability with third-party services (see TC6). Moreover, in any case, it is not possible to understand if the provider allows or not the customer to use this data in combination with third party services.

7. Can the consumer use the HW and SW in combination with third party SRV? No
The branded service is necessary for product usability (see TC4), and it is forbidden by the provider to use the device in combination with a third party service (see CC8).
8. Can the consumer use the HW and SRV in combination with third party SW? Not processed
To answer this question, I should verify if the branded software is necessary for the use of the product (see TC3).
9. Can the consumer use the SW and SRV in combination with third party HW? Not available
Using the software in combination with a third-party hardware would mean reproduce it. The reproduction right is an exclusive right of the copyright holder. Therefore, given the fact that the provider (who is also the copyright holder) doesn’t give to the customer a license to reproduce the software, that means that the customer can reproduce it only to the extent permitted by law.

We should therefore verify if, among the exceptions to the exclusive right of reproduction, there is one which could be applied in the present case. At a first sight, Article 5(1) of the DIRECTIVE 2009/24/EC on the legal protection of computer programs may appear useful in this case; however, it applies only to enable those reproduction acts that are necessary for the use of the program in accordance with its intended purpose: this will probably impede its application in the present case, because - in order to establish the intended purpose of the software - we also have to make reference to the affirmations of the provider (see Shrink-Wrap Licences in Europe After the EC Software Directive). And it is improbable that the use of the software with a third-party hardware would be considered as a part of the intended purpose of the software itself.

10. Can the consumer use the HW in combination with third party SW and SRV? No
For what concerns the software, I should verify if the branded software is necessary for the use of the product (see TC3).

But, anyway, given the fact that the branded service is necessary for product usability (see TC4), and that it is forbidden by the provider to use the device in combination with a third party service (see CC8), the answer to this question is negative.

11. Can the consumer use the SW in combination with third party HW and SRV? Not available
Using the software in combination with a third-party hardware would mean reproduce it. The reproduction right is an exclusive right of the copyright holder. Therefore, given the fact that the provider (who is also the copyright holder) doesn’t give to the customer a license to reproduce the software, that means that the customer can reproduce it only to the extent permitted by law.

We should therefore verify if, among the exceptions to the exclusive right of reproduction, there is one which could be applied in the present case. At a first sight, Article 5(1) of the DIRECTIVE 2009/24/EC on the legal protection of computer programs may appear useful in this case; however, it applies only to enable those reproduction acts that are necessary for the use of the program in accordance with its intended purpose: this will probably impede its application in the present case, because - in order to establish the intended purpose of the software - we also have to make reference to the affirmations of the provider (see Shrink-Wrap Licences in Europe After the EC Software Directive). And it is improbable that the use of the software with a third-party hardware would be considered as a part of the intended purpose of the software itself.

12. Can the consumer use the SRV in combination with third party HW and SW? Yes
The app of the provider of the device can be also used - to some extent - in combination with a smartphone, instead of the provider's device (see TC2).

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