Fitbit Health Solutions Client Terms
These Fitbit Health Solutions terms and conditions ( “Client Terms” ) govern the purchase and/or use of the Fitbit Health Solutions products and/or services by the client identified in the Ordering Documents ( “Client” ). Any capitalized terms used herein or in an Ordering Document are as defined in the “Definitions” Section below or the applicable Ordering Document. These Client Terms and the related Ordering Documents constitute the entire agreement of the parties and cancel and supersede all prior communications, understandings, and agreements (oral or written) between the parties relating to their subject matter. In the event of a conflict among these Client Terms and an Ordering Document, the terms of the applicable Ordering Document will control but only to the extent of such conflict.
1. DEFINITIONS; CONSTRUCTION
“Account” means a unique, Client-specific account, which allows Client’s Administrators to access and administer certain Fitbit Solutions.
“Administrator” means Client’s personnel who will have rights (as appropriate to their roles) to establish, administer, configure, and manage the relevant Fitbit Solutions.
“Affiliate” means: (i) for Client, any entity that directly or indirectly controls, is controlled by, or is under common control with, Client, and (ii) for Fitbit, any entity that directly or indirectly controls or is controlled by Google LLC. For purposes of the foregoing, “control” means having more than 50% ownership of the entity or the right to direct the management of the entity.
“Anti-Bribery Laws” means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977.
“API” means an application programming interface, including any and all related code, data, documentation, or other materials.
“Brand Features” means trade names, trademarks, logos, and other distinctive brand features of the applicable party.
“Bulk Order” means an order placed by Client to purchase at least a certain threshold number and type of Devices from Fitbit as indicated on any Ordering Documents. Such threshold number and type of Devices to be determined by Fitbit.
“Client’s Program” means the program offered by Client to Participants that incorporates any Fitbit Products & Services and/or Fitbit Solutions as described on any Ordering Documents.
“Confidential Information” means information that one party (or its Affiliate) discloses to the other party under these Client Terms that is marked as confidential or would reasonably be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without reference to the disclosing party’s confidential information, or that was lawfully given to the recipient by a third party without confidentiality obligations. Any Reporting provided by Fitbit to Client in connection with Client’s Program shall be deemed Fitbit’s Confidential Information.
“Contested Subject” means the Fitbit Solutions and/or the Fitbit Products & Services (in the case of Fitbit as the Indemnifying Party), any other components of Client’s Program (in the case of Client as the Indemnifying Party), or the Indemnifying Party’s Brand Features.
“Defect” or “Defective” means, with respect to a Device, a failure in materials and/or workmanship under normal use in accordance with Fitbit’s published user documentation that materially impairs the functionality of that Device and the failure has been validated by Fitbit or Fitbit authorized service provider or representative.
“Delegates” means employees, Affiliates, agents, or professional advisors.
“Delivery Location” means the place of delivery, which will be a Client business address in the continental United States, Canada, or as otherwise described in the Ordering Document.
“Devices” means the hardware and accessories made available for purchase by Fitbit under these Client Terms.
“Environmental Waste, Battery Waste, and Packaging Waste Laws” means all applicable laws and regulations that regulate manufacturers’, producers’, stewards’ distributors’, and retailers’ waste responsibility (pertaining to electronic and electrical equipment waste, battery waste, and packaging waste).
“European Data Protection Law” means, as applicable: a) the GDPR; and/or b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
“Feedback” means any comments, reports, criticisms, directions, or any other statements, whether written or oral, about the Fitbit Solutions and/or the Fitbit Products & Services.
“Fitbit” means the entity identified as such on any Ordering Documents or its successors and assigns.
“Fitbit API(s)” means any API provided by Fitbit or its Affiliates through which Fitbit End User Data is transmitted to and from the Fitbit Products & Services.
“Fitbit End User” means an end user of the Fitbit Products & Services provided under these Client Terms.
“Fitbit End User Data” means the data Fitbit receives as a result of a Fitbit End User’s use of the Fitbit Products & Services, which includes certain Personal Information.
“Fitbit Materials” means any specifications, images, promotional material, and/or any other content relating to the Fitbit Solutions and/or Fitbit Products & Services provided by Fitbit to Client and/or Fitbit End Users, as applicable.
“Fitbit Products & Services” means the products and services offered by Fitbit to Client and/or Fitbit End Users from time to time, including the Devices, under these Client Terms.
“Fitbit Solutions” means the solutions provided by Fitbit to Client as described on any Ordering Documents.
“Force Majeure Event” means any event beyond a party’s reasonable control that makes a party partly or wholly unable to perform its obligations under these Client Terms (other than obligations to make payments when due), including natural disasters (for example, cyclones, hurricanes, storms, floods, lightning, fires, earthquakes), man-made disasters (for example, explosions, chemical contamination), war and civil unrest (for example, riots, terrorism, sabotage), government action (for example blockades, embargoes, other trade restrictions), epidemics and pandemics, transportation interruptions, strikes and other labor difficulties, or a third party’s inability to timely supply necessary services, materials, and/or parts.
“GDPR” means the General Data Protection Regulation (EU) 2016/679.
“Government Officials” means any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties.
“Indemnified Claim” means those claims in a Third-Party Legal Proceeding for which the Indemnified Party is to be indemnified pursuant to Section 16 (Indemnification).
“Indemnified Liabilities” means any (i) settlement amounts approved by the Indemnifying Party; and (ii) damages and costs in a final judgment awarded against the Indemnified Party by a competent court.
“Indemnified Party” means the party or the party’s Affiliate that receives indemnification from an Indemnifying Party pursuant to Section 16 (Indemnification).
“Indemnifying Party” means the party having indemnification obligations pursuant to Section 16 (Indemnification).
“Initial Term” means the initial term set forth on any Ordering Documents.
“Intellectual Property Rights” means all copyright, moral rights, patent rights, trademarks, design rights, rights in or relating to databases, trade secrets, rights in relation to domain names, mask works, and any other intellectual property rights (registered or unregistered) throughout the world, including any applications for the same.
“Invoice Price” means the price for the Fitbit Solutions and/or the Fitbit Products & Services as set out on the applicable Ordering Documents.
“Liability” means any liability, whether under contract, tort, or otherwise, including indemnification obligations and for negligence.
“Modern Slavery” has the meaning given in Section 18.4 (Anti-Modern Slavery).
“Ordering Document(s)” means Fitbit’s order form, quote, order confirmation, purchase order or other similar document executed by Fitbit and Client describing the Fitbit Solutions and/or Fitbit Products & Services to be provided and that references these Client Terms.
“Participant” means any individual that is participating in Client’s Program.
“Personal Information” means any information relating to an identified or identifiable natural person, including names, contact information (including email addresses, postal addresses, and telephone numbers), government identification numbers, financial account numbers, payment card information, transaction information, credit report information, biometric information, IP addresses, network and hardware identifiers, geo-location information, and any other information about individual persons or their purchase or use of Fitbit Products & Services.
“Privacy Laws” means the GDPR, United States federal and state law, including the California Consumer Privacy Act, Canadian federal and provincial law, and any similar law governing the collection, use, and disclosure of personal data.
“Product Compliance Requirements” has the meaning given in Section 18.1 (Essential Requirements).
“Publication” means the publication, presentation, or public disclosure of any results or data arising from these Client Terms or Client’s use of the Fitbit Solutions or Fitbit’s Products & Services.
“Renewal Term” means any additional period of time these Client Terms will be extended beyond the Initial Term as set forth on any Ordering Documents.
“Reporting” means any information made available from time to time by Fitbit to Client as part of the Fitbit Solutions or otherwise relating to Participants’ use of the Fitbit Solutions and/or Fitbit Products & Services, which may include certain Fitbit End User Data.
“Storefront” means an e-commerce storefront (e.g., on the web or in app) through which Client’s Participants may order Fitbit Products & Services.
“Subscription Term” means, collectively, the Initial Term and any Renewal Term(s).
“Territory” means as specified in the applicable Ordering Documents.
“Taxes” means any applicable taxes and duties, including without limitation, value added taxes, excise taxes, sales taxes, gross receipts taxes, goods and services tax, or taxes similar in nature, and any other tax, duty, or import payable by Client at the rate and in the manner prescribed by law.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any civil, administrative, investigative, or appellate proceeding).
In these Client Terms, (i) “include” or “including” means “including but not limited to,” and (ii) examples are illustrative and not the sole examples of a particular concept.
2. FITBIT SOLUTIONS OVERVIEW.
3. PRODUCT & SERVICE AVAILABILITY.
Fitbit reserves the right to reject any order for Fitbit Products & Services whether by Client or a Participant for any reason and does not represent that it will continue to offer any particular Fitbit Products & Services, including any features or functionality contained therein, indefinitely or even for any specific period of time. Fitbit specifically reserves the right to no longer offer any Fitbit Products & Services to Fitbit End Users, in whole or in part, at any time.
4. CLIENT’S USE OF FITBIT SOLUTIONS AND REPORTING
4.1 License. Subject to Client’s compliance with these Client Terms and any Ordering Documents, Fitbit hereby grants to Client a nonexclusive, non-transferable and limited right and license to access and use the Fitbit Solutions and Reporting set forth on any Ordering Documents throughout the Subscription Term in the Territory. Any Fitbit Solutions and Reporting licensed hereunder may only be used by Client in support of Client’s Program.
4.2 Account Setup & Administration.
Account Setup. To the extent applicable to the Fitbit Solutions selected on any Ordering Documents, Fitbit will provide Client with access credentials (and/or a mechanism that permits Client to obtain access credentials) as needed to identify, authorize, and designate roles for Administrators through Client’s Account. All Administrators who have been granted access to the Fitbit Solutions must have their own unique Account, which may not be shared with any other Client personnel. Client shall, and shall be responsible for ensuring that its Administrators shall, maintain the confidentiality of all Account information (including access credentials) and all activities under its Account. Client shall keep all Account information up-to-date and notify Fitbit promptly of any unauthorized access to, or use of, its Account.
Account Access. As between the parties, Client is solely responsible for providing the servers, mobile devices, storage, software, databases, network and communications systems and services needed to access, manage, and use the Fitbit Solutions.
Account Eligibility Requirements. Client shall comply with the eligibility requirements found here, which may be updated from time to time.
To the extent that Client is required to provide information relating to sales, stock, and inventory to Fitbit under these Client Terms (including POs, invoices, and reports that Client is required to provide), Client will, unless otherwise expressly stated in these Client Terms or otherwise required by Fitbit, provide all information through the EDI. Until the parties establish fully functioning EDI capabilities and connectivity, Client will provide said information on a weekly basis via Excel Spreadsheet / FTP / HTTP or any other format to be agreed by the parties. The parties will work in good faith to establish fully functional EDI connectivity and reporting at least 3 months prior to the on-sale date of any Fitbit Products & Services. Each party will give the other party access to its EDI solely to fulfill that party’s obligations under these Client Terms. As soon as practicable following the effective date of these Client Terms (to the extent not already shared before such effective date), Client will share its EDI capabilities and specifications with Fitbit, and the parties will use reasonable efforts to mutually agree on an EDI-integration plan. In the event of any outage, downtime, or interruption to the operation of its EDI, Client will promptly take steps to identify and resolve the issue so that normal operation of EDI is resumed. Fitbit will not be liable for any failure or delay in performing any of its obligations under these Client Terms to the extent that the failure or delay is caused by the unavailability of Client’s EDI.
Except as otherwise set forth in Section 4.3(a), all invoices issued by Fitbit will be provided through EDI. In the case of rebills or credit memos issued by Fitbit or EDI delays or interruptions, the invoices and credit memos will be submitted via email to the email address provided by Client.
4.4 Client will submit POs for Bulk Orders at least 2 weeks in advance of the requested delivery date. If Fitbit does not accept a Bulk Order via email within five (5) business days of such Client email confirmation, the PO will be deemed rejected.
5. PRICING, TAXES AND PAYMENT.
5.1 During the Subscription Term, Fitbit shall have the right to change the Invoice Price of any Fitbit Solutions and/or Fitbit Products & Services at any time upon 30-days’ written notice to Client (email shall be sufficient) unless otherwise specified in the applicable Ordering Documents.
5.2 The Invoice Price is exclusive of any Taxes. Where Fitbit is required to charge Taxes, the applicable amount will be added to the Invoice Price and the Invoice Price set out on the Ordering Documents will be deemed to be increased accordingly. If Client provides to Fitbit a valid exemption documentation, Fitbit will not collect the Taxes covered by that certificate. Fitbit shall make the determination as to whether an exemption documentation is valid or able to accept in good faith in its reasonable discretion.
5.3 Unless otherwise agreed on an Ordering Document, Client will make full payment of the Invoice Price within thirty (30) days after the date of Fitbit’s invoice.
5.4 Unless otherwise agreed by the parties in writing (email shall be sufficient), all payments due to Fitbit will be in the currency set forth on the applicable Ordering Documents without any deduction or set-off. Fitbit may, in its sole discretion, change the currency set forth on the applicable Ordering Documents or the currency otherwise agreed to by the parties in writing provided that Fitbit uses commercially reasonable efforts to notify Client 30 days before such changes take effect.
5.5 Any payments due to Fitbit that are not timely received will be subject to interest accrued at the lesser of: a) 1.5% per month, or b) the maximum amount permitted by law. Fitbit may reject any orders submitted by Client until Fitbit has received payment in full for any amounts that are overdue. In relation to payments disputed in good faith, interest under this clause is only payable after the dispute is resolved, on sums found or agreed to be due, from the original due date until payment.
5.6 All payments to Fitbit will be made by Client by way of electronic transfer to the account as notified to Client by Fitbit for that purpose.
5.7 Client will provide audited financial statements to Fitbit on Fitbit’s request to verify Client’s financial condition. Fitbit may require that Client obtain Fitbit Products & Services on a cash-in-advance wire transfer basis at any time and without advance notice if Fitbit determines that Client’s financial condition warrants these payment arrangements. Fitbit may also require that Client deliver a letter of credit or other security to secure Client obligations under these Client Terms.
5.8 Client may use credit memos issued by Fitbit to Client in connection with an Ordering Document as remittance for amounts due to Fitbit for Product purchases under that Ordering Document ( “Credit Memo” ). Client may not deduct or offset against any invoices or payments without a Credit Memo. Upon termination of these Client Terms, any open Credit Memos will be applied to any balance owed by Client to Fitbit under these Client Terms and Fitbit will pay any remaining balance of the open Credit Memo to Client within 30 business days of termination.
6. PACKAGING, SHIPMENT AND IMPORTATION
6.1 Customer-Facing Packaging. Fitbit will determine all Fitbit Products & Services branding at its sole discretion, including all packaging, in-box materials, creative materials, and software. All packaging and in-the-box material will be provided to Client by Fitbit. Client will not a) apply any branding to the Fitbit Products & Services, or b) modify any packaging or in-the-box materials other than as agreed in writing by Fitbit.
6.2 Shipment and Importation.
Fitbit will (i) ensure that all packages comprising each shipment include a packing slip identifying all items included with the shipment, and (ii) send to Client an electronic file that contains all mechanical serial numbers via EDI or email.
Fitbit will either label the Fitbit Products & Services and packaging as required by applicable law or obtain appropriate waivers for the labels.
Fitbit will use EAN SKU markings or other specific barcode markings on the outside of the point-of-sale package for each of the Fitbit Products & Services, including the EAN of the Fitbit Products & Services contained within.
Client is solely responsible for obtaining in its own name and maintaining all applicable consents, licenses, approvals, registrations, and authorizations (collectively “Authorizations“) required by the laws or regulations of the applicable Territory for the importation, storage, packaging, marketing, distribution, and sale of the Fitbit Products & Services within the Territory, and will keep Fitbit advised with respect to the status of all Authorizations. Client will promptly inform Fitbit of any Authorizations Client knows Fitbit is required to obtain and will use its best efforts to assist Fitbit in obtaining those Authorizations.
7. DELIVERY, TITLE, AND RISK
7.1 Unless otherwise agreed to by the parties in an Ordering Document:
The pricing set forth in any applicable Ordering Document is exclusive of shipping costs.
Fitbit will deliver the Devices DDP (Incoterms, 2020) to the Delivery Location.
Title in the Devices pass to Client upon delivery of the Devices to Client at the Delivery Location.
Partial delivery of any order will be permitted unless otherwise agreed by the parties.
7.2 Delayed Delivery.
Where there is any delay in delivery:
i. to the extent that the delay in question is caused by Client, then Client may request that delivery be made on an expedited basis and Client will be responsible for any additional costs; and
ii. to the extent that the delay in question is caused by Fitbit, then Client’s sole and exclusive remedy for that delay will be to require Fitbit to perform delivery on an expedited basis, at Fitbit’s cost.
Partial delivery of any Purchase Order ( “PO” ) will be permitted unless otherwise agreed by the parties. Any failure by Fitbit to deliver the remainder of any Devices forming part of a PO will not entitle Client to treat the entire PO as repudiated.
7.3 Delivery Inspection.
Client will inspect the Devices upon delivery and may only reject the delivery: (i) if the Device is Defective or if there is another material discrepancy between the Devices delivered and the delivery note; and (ii) Client indicates such Defect or material discrepancy on the proof of delivery note before it signs that delivery note. Client will notify Fitbit of its rejection within 24 hours of delivery. If Client does not notify Fitbit of its rejection under this clause within 24 hours of delivery, Client is deemed to have accepted that the relevant Devices have been delivered in accordance with the relevant PO and delivery note.
Following any Client rejection of a delivery for Defective Device, Client will (i) retain any damaged Device in its original packaging or provide acceptable proof of damaged Device for inspection by or on behalf of Fitbit, and (ii) return any Devices agreed by the parties to be Defective to Fitbit or, at Fitbit’s request, to a third party identified by Fitbit, as soon as reasonably practicable.
Fitbit will use commercially reasonable efforts to timely inspect Defective Devices that Client rejects. Fitbit may require that Client be responsible for (i) collecting the damaged Devices from its distribution centers, and (ii) coordinating with Fitbit on a collection date/place. Client is responsible for all shipping costs and charges and delivery terms for Client’s return of Defective Devices to the location designated by Fitbit.
8. RIGHT TO DISTRIBUTE.
Where Client has chosen to order Fitbit Devices via Bulk Order, during the Subscription Term and in the Territory, Fitbit hereby appoints Client as an authorized, non-exclusive distributor of the Devices to Participants and grants Client the non-exclusive, non-transferable, non-sublicensable right to market (subject to compliance with the Fitbit Branding Guidelines) and distribute the Devices it has purchased via Bulk Order directly to Participants for their use without any right of redistribution, provided that such distribution must be as part of Client’s corporate or population health wellness program. Client will not transship, resell, or advertise for resale the Devices, online or otherwise, to any third party for resale by such third party (other than Participants) without express written authorization of Fitbit.
9. PACKAGING, SHIPMENT AND IMPORTATION
9.1 Each party represents and warrants to the other that it will use reasonable care and skill in complying with its obligations under these Client Terms.
9.2 Client further represents and warrants that:
it shall not make any representations, guarantees, or warranties of any type concerning the Fitbit Products & Services to Participants or any other third parties which are in addition to or inconsistent with those set forth in the Fitbit Materials and/or these Client Terms.
it shall conduct Client’s Program at all times in accordance with applicable laws, Fitbit’s Wellness Community Pledge and Fitbit’s Research Pledge, as applicable.
9.3 Fitbit will not be liable for breach of any of the representations, warranties, covenants, or other terms in these Client Terms to the extent that the breach arises from:
use of any Fitbit Solutions and/or Fitbit Products & Services other than as intended in accordance with normal operating procedures and any documentation or instructions provided by Fitbit;
any alterations or maintenance to any Fitbit Solutions and/or Fitbit Products & Services done by anyone other than Fitbit or someone authorized by Fitbit;
any problem with a computer or other hardware which inter-operates with the Fitbit Solutions and/or Fitbit Products & Services or any software which is installed on that computer or other hardware; or
use of the Fitbit Solutions and/or Fitbit Products & Services in combination with any other hardware or software, unless this use has been approved by Fitbit in writing.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND CONDITIONS STATED IN THESE CLIENT TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY EXCLUDED.
10.1 A party may terminate the Subscription Term early, with immediate effect, if the other party is in material breach of these Client Terms or any Ordering Documents and, if that breach is remediable, fails to remedy that breach within thirty (30) days after receiving written notice of that breach.
10.2 Upon expiration or early termination of the Subscription Term for any reason:
all Ordering Documents will immediately terminate, unless otherwise agreed to by the parties in an Ordering Document;
all rights and licenses granted by each party will cease immediately; and
if requested, each party will use its reasonable efforts to promptly return to the other party, or destroy and confirm in writing the destruction of, all Confidential Information disclosed to it by the other party except that each party’s legal department or outside counsel may retain one archival copy of the other party’s Confidential Information as required to comply with that party’s record retention policies or applicable law, and provided that the retaining party will continue to be bound by the terms of these Client Terms with respect to that Confidential Information.
10.3 Survival of Obligations.
Any rights and obligations that by their nature extend beyond the expiration or termination of the Subscription Term shall survive, including each party’s confidentiality obligations, indemnification obligations, and the limitation of liability.
11. CONFIDENTIALITY, PUBLICITY AND PUBLICATION
11.1 Confidentiality Obligations.The recipient will not disclose the Confidential Information, except to Delegates who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential and the recipient will ensure that any Delegates keep it confidential. The recipient will use (and will ensure that Delegates use) the Confidential Information only to exercise rights and fulfill obligations under these Client Terms. The recipient may disclose Confidential Information when legally compelled by a court or other government authority. To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue other legal action, as the discloser may deem appropriate.
11.2 No Rights. Except for the limited rights set forth in these Client Terms, neither party acquires any right, title, or interest in and to the other party’s Confidential Information.
11.3 No Publicity. Neither party may make any public statement (including press releases) regarding the parties relationship governed by these Client Terms without the other’s prior written approval, except that Fitbit may list Client in Fitbit’s sales presentations and in customer lists on Fitbit’s website.
11.4 Publications. Client shall submit to Fitbit a draft of any planned Publication at least thirty (30) days prior to the planned submission date so that Fitbit may review and provide comments; provided that Client shall not be required to modify or delete any such Publication other than to remove any content contained therein that Fitbit reasonably believes constitutes its Confidential Information, violates its Intellectual Property Rights, contains Personal Information or otherwise violates Privacy Laws. Fitbit’s failure to provide comments at least thirty (30) days prior to the planned Publication does not constitute Fitbit’s approval of the Publication.
12. RECORD VERIFICATION
12.1 During the Subscription Term and for a period of 6 years after termination, except where such longer period is required by law, Client will keep its records relating to invoices, payments, credit memos, taxes, and proof of performance for activities related to these Client Terms. At any time during this period, Fitbit may request that Client provide verification of Client’s compliance with these Client Terms. Client will promptly review its records and deliver supporting documentation including a verification or compliance letter certifying its findings and signed by a senior financial officer. Fitbit acknowledges that Fitbit will act reasonably in the volume of requests under this Section. Client will allow Fitbit’s auditors to make such verification or certification requests.
12.2 If Fitbit’s record verification request shows outstanding amounts owed by Client, Client will pay to Fitbit those amounts together with all interest due thereon as calculated under these Client Terms. Where any record verification process shows that the payments made by Client in respect of any month were less than 95% of the amounts due under the relevant invoices, then, in addition, Client will reimburse Fitbit for the reasonable costs of the record verification process.
12.3 Any information and documentation disclosed or made available to Fitbit by Client in response to Fitbit’s record verification request will be deemed Client’s Confidential Information.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Except to the extent expressly stated herein, neither party will acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party or to the other party’s licensors. Nothing in these Client Terms will be construed as granting to either party, by implication, estoppel, or otherwise, a license to either party’s technology except as expressly granted in these Client Terms.
13.2 Client will not copy or otherwise reproduce the Fitbit Solutions or Fitbit’s Products & Services or any related materials, nor use any of Fitbit’s trademarks or intellectual property, except as expressly permitted herein or on any applicable Ordering Document, without Fitbit’s prior written consent. Client receives no license under these Client Terms to make (or have made), reproduce, or create derivative works of the Fitbit Solutions or Fitbit’s Product & Services, or any related materials, or any other product.
13.3 If Client provides any Feedback to Fitbit, then Client grants Fitbit a non-exclusive, perpetual, irrevocable, and royalty-free license to: a) use, reproduce, publicly display, and perform, create derivative works of, and distribute Feedback (and sublicense its rights to its Affiliates and third parties); and b) make (and have made), use, sell, offer to sell, and import Feedback or any product incorporating Feedback.
14. BRAND FEATURES LICENSE
14.1 Fitbit grants to Client a non-exclusive, non-transferable, royalty-free, and non-sublicensable license during the Subscription Term to use Fitbit Brand Features and Fitbit Materials solely in relation to Client’s Program in order to fulfill Client’s obligations and exercise Client’s rights in accordance with these Client Terms and subject to compliance with the Fitbit Branding Guidelines. Client agrees that its use of Fitbit’s Brand Features is subject to the strict control and supervision of Fitbit. Unless otherwise stated in an Ordering Document, Client will obtain Fitbit’s prior written approval of any and all uses of its Brand Features prior to publication or use. All goodwill arising from the use by Client of Fitbit Brand Features will belong to Fitbit. Fitbit may revoke the license granted under this clause at any time on written notice.
14.2 Client grants to Fitbit a non-exclusive, non-transferable, royalty-free, and non-sublicensable (except to Fitbit’s Affiliates) license during the Subscription Term to use Client Brand Features to provide the Fitbit Solutions and related materials and assets hereunder, subject to compliance with Client’s branding guidelines as notified to Fitbit. All goodwill arising from the use by Fitbit or any of its Affiliates of Client Brand Features will belong to Client. Client may revoke the license granted under this clause at any time on reasonable written notice.
15.1 In addition to any specific insurance coverage requirements set forth in any Ordering Document, each party shall at all times during the Subscription Term maintain Commercial General Liability (CGL) insurance for bodily injury, death, products and completed operations, with coverage limits of not less than US$1,000,000 (or the equivalent in local currency) per occurrence and $2,000,000 (or the equivalent in local currency) in the aggregate, in addition to any insurance coverage that is required by law and/or as is the common practice in its business, which may include, health, workers’ compensation, unemployment compensation, disability, or liability. Each party may use a combination of primary and umbrella (excess) coverages to meet the US$2,000,000 (or the equivalent in local currency) aggregate limit requirement for CGL. Client’s CGL policy will name Fitbit and its respective Affiliates and their officers, directors, shareholders, employees, agents, and assignees as additional insureds, via either a specific or blanket endorsement. Each party’s policies will be considered primary without right of contribution from the other party’s insurance policies. The requirements here will not lower the coverage limits of either party’s policies, and will not limit either party’s obligations or liability under these Client Terms (including indemnities). Each party’s activities under these Client Terms will be at its own risk. Each party’s personnel will not be entitled to any benefits under the other party’s insurance policies.
15.2 Upon request, Client will promptly provide Fitbit with certificates of insurance or evidence of coverage reflecting that it is in compliance with the foregoing. Fitbit’s failure to request, review, or object to the terms of the Client’s certificates of insurance will not: a) waive any of either party’s obligations under these Client Terms; b) waive any of either party’s rights under these Client Terms; or c) limit or diminish either party’s liability under these Client Terms.
16.1 Obligations. Subject to Sections 16.2 (Exclusions), 16.3 (Conditions), and 17 (Limitation of Liability):
a) Fitbit’s Obligations. Fitbit will defend Client and its Affiliates, and indemnify them against Indemnified Liabilities, in any Third-Party Legal Proceeding brought against Client to the extent arising from:
i. a breach by Fitbit of its data protection obligations in Sections 18.6, 19, 20, 21, and 22;
ii. any use by Fitbit of any Client Brand Features in any manner not authorized by these Client Terms;
iii. a claim that Client’s use, sale, or distribution of the Fitbit Products & Services furnished to Client in accordance with these Client Terms infringes the applicable unassociated third party’s Intellectual Property Rights;
iv. a claim that use of Fitbit Brand Features in accordance with these Client Terms infringes the applicable unassociated third party’s Intellectual Property Rights; and
v. personal injury or death, or tangible property damage to the extent caused by a Device.
Client’s Obligations. Client will defend Fitbit and its Affiliates, and indemnify them against Indemnified Liabilities, in any Third-Party Legal Proceeding brought against Fitbit or its Affiliates to the extent arising from:
i. a breach by Client or any Participant of its data protection obligations in Sections 18.6, 19, 20, 21, and 22;
ii. any use by Client of any Fitbit Brand Features in any manner not authorized by these Client Terms;
iii. use of Client Brand Features in accordance with these Client Terms that infringes the applicable unassociated third party’s Intellectual Property Rights; and
iv. personal injury or death, or tangible property damage to the extent caused by Client or resulting from Participant’s participation in Client’s Program.
16.2 Exclusions. The indemnification obligations set forth above in this Section will not apply to the extent the underlying claim arises from:
a) the Indemnified Party’s breach of these Client Terms;
the Indemnified Party’s continued use or distribution of the Fitbit Solutions and/or Fitbit Products & Services and/or Fitbit Brand Features provided hereunder to Client after the Indemnified Party has been informed in writing by the Indemnifying Party of the infringement and directed by the Indemnifying Party to discontinue the applicable use or distribution;
c) modification to the Fitbit Solutions and/or Fitbit Products & Services by anyone other than the Indemnifying Party;
d) in the case of Section 16.1(a), Fitbit’s compliance with Client’s instructions, specifications, or requests;
e) in the case of Section 16.1(a), Client’s failure to comply with Fitbit’s instructions, specifications, or requests which if implemented would have rendered the Fitbit Solutions and/or Fitbit Products & Services non-infringing or would have prevented physical injury or tangible property damage; or
f) combination of the Fitbit Solutions and/or Fitbit Products & Services with materials or technology not provided by the Indemnifying Party.
16.3 Conditions. If a breach of the following conditions prejudices the defense of the Third-Party Legal Proceeding, the Indemnifying Party’s obligations under this Section 16 will be reduced in proportion to the prejudice:
a) the Indemnified Party will promptly notify the Indemnifying Party, in writing, of the relevant Third-Party Legal Proceeding and cooperate reasonably with the Indemnifying Party to resolve the aspects of the Third-Party Legal Proceeding relating to the Indemnified Claim. If a breach of this Section 16.3(a) prejudices the defense of the Third-Party Legal Proceeding, the Indemnifying Party’s obligations under this Section 16 will be reduced in proportion to the prejudice.
b) the Indemnified Party will tender sole control of the aspects of the Third-Party Legal Proceeding relating to the Indemnified Claim to the Indemnifying Party, subject to the following:
i. the Indemnified Party may appoint its own non-controlling counsel, at its own expense; and
ii. any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action, will require the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
c) if the Third-Party Legal Proceeding includes Indemnified Claims under both Section 16.1(a) and Section 16.1(b), the parties will cooperate reasonably with each other to determine how best to defend the Third-Party Legal Proceeding, and how to allocate costs for defending the Third-Party Legal Proceeding. The parties will also determine how to allocate the Indemnified Liabilities, to the extent they are not allocated in the Third-Party Legal Proceeding.
16.4 Remedies for IPR Infringement.
a) If any Contested Subject is subject to an Indemnified Claim alleging violation of an unassociated third party’s Intellectual Property Rights, the Indemnifying Party may do the following at its sole option and expense:
i. procure the right for the Indemnified Party to continue providing or using (as applicable) the Contested Subject in compliance with these Client Terms;
ii. modify the Contested Subject without materially reducing its functionality;
iii. replace the Contested Subject with an alternative that is functionally-equivalent in all material respects; or
iv. in the case of Fitbit as the Indemnifying Party, require Client to cease distribution of Devices in Client’s inventory and provide Client with a refund of the Invoice Price of those Devices.
16.5 Sole Rights and Obligations for IPR Infringement. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF THIS SECTION STATE THE SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE OBLIGATION AND LIABILITY OF THE PARTIES TO EACH OTHER UNDER THESE CLIENT TERMS IN CONNECTION WITH THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
17. LIMITATION OF LIABILITY
17.1 Limitations. Subject to the Exceptions to Limitations set forth below in this Section:
neither party (nor any Affiliate) will have any Liability arising out of or relating to these Client Terms and/or any Ordering Documents, whether based on a claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in relation to these Client Terms and/or any Ordering Documents, for:
i. loss of profits;
ii. economic losses (including loss of revenue or loss of opportunity);
iii. loss of goodwill or reputation;
iv. indirect, special, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the effective date of these Client Terms); or
v. exemplary or punitive damages; and
each party’s total aggregate Liability arising out of or relating to these Client Terms and/or any Ordering Documents is limited to an amount equal to the lesser of (i) the total aggregate invoice amounts paid by Client under these Client Terms and/or any Ordering Documents in the preceding 12-month period ending on the date that a claim or demand is first asserted, or (ii) $1,000,000.
17.2 Exceptions to Limitations. Nothing in these Client Terms excludes or limits Liability for:
a) death or personal injury resulting from each party’s negligence or the negligence of its employees or agents;
b) each party’s fraud or fraudulent misrepresentation;
c) Client’s indemnification obligations in Section 16.1(b);
d) a breach by a party of its confidentiality obligations (Section 11);
e) Client’s data protection obligations (Sections 18.6, 19, 20, 21, and 22); or
f) the amounts owed by Client for any Fitbit Products & Services or Fitbit Solutions purchased by Client.
18. COMPLIANCE WITH LAWS
18.1 Essential Requirements. “Product Compliance Requirements” means all applicable technical, radio, safety, health, labeling, marking, environmental, record keeping, and other compliance requirements required for importation, distribution, use, and sale of Devices into the Territory. Fitbit will ensure that the Devices will meet all Product Compliance Requirements pursuant to any legislation or regulations, as amended, applicable to the Devices in each Territory. For each Device, Fitbit will (directly or through a third party): a) perform all tests, submissions, registrations, and filings; b) obtain and maintain all certifications, type approvals, and other approvals; and c) prepare all in-box materials accompanying each Device unit (instructions manual, regulatory information, manufacturer warranty, etc.).
18.2 Environmental Laws. Client will, at its sole cost and expense, accept and at all times fully discharge and comply with all duties, obligations, and requirements applicable to stewards, distributors and/or retailers pursuant to Environmental Waste, Battery Waste, and Packaging Waste Laws.
18.3 Anti-Bribery/Foreign Corrupt Practices Act. The parties will comply with the Anti-Bribery Laws, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including Government Officials, to obtain or keep business or to secure any other improper commercial advantage. Neither party will make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. Client will comply with Fitbit’s due diligence process, including providing requested information. A party may terminate these Client Terms and/or any Ordering Document immediately, without any liability, upon written notice to the other party if such party believes, in good faith, that the other party has violated or caused the first party to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur.
18.4 Anti-Modern Slavery. In performing its obligations under these Client Terms, each party will: a) comply with applicable Modern Slavery laws and rules, where “Modern Slavery” includes human trafficking, servitude, forced or compulsory labor, and modern slavery; b) implement due diligence procedures for its own suppliers and subcontractors to ensure that there is no Modern Slavery in its supply chains; and c) supply information relating to these Client Terms and its supply chains as reasonably requested by the other party to show the steps a party has taken to ensure that there is no Modern Slavery in any part of its business or supply chains.
18.5 Export Control. Each party agrees to comply with all applicable export control and sanctions laws and regulations, including: a) the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and c) the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State.
18.6 Data Protection.
a) Fitbit will comply with all applicable Privacy Laws relating to its provisioning of the Fitbit Solutions and/or the Fitbit Products & Services. Client will comply with all applicable Privacy Laws relating to its provisioning of Client’s Program.
b) Each party represents and warrants that it has put in place an information security program intended to protect Personal Information. Each party’s information security program shall include (i) at a minimum, administrative, technical and physical safeguards that are no less rigorous than accepted industry standards and practices, and (ii) at least one of the following compliance standards: SOC 2, HITRUST, ISO/IEC 27001 and 27002, and/or an equivalent industry standard and practice approved by Fitbit in writing. The administrative, technical and physical safeguards included as part of each party’s information security program shall be designed to: (x) ensure the security and confidentiality of Personal Information; (y) protect against any anticipated threats or hazards to the security and integrity of Personal Information; and (z) protect against any actual or suspected unauthorized processing, loss, use, disclosure or acquisition of or access to any Personal Information. On an annual basis, Client shall, at Client’s expense, engage an independent auditor to issue an attestation ( “Attestation” ) for the applicable calendar year for SOC 2, HITRUST, ISO/IEC 27001 and 27002, and/or an equivalent industry standard and practice approved by Fitbit in writing. Upon Fitbit’s request, Client will provide Fitbit with copies of the requested Attestation(s) for the applicable calendar year (or for any previous calendar years during the Subscription Term). Client will, at Client’s expense, promptly correct any audit control issues, deficiencies, or weaknesses identified in the Attestation and, upon Fitbit’s request, Client will provide Fitbit with evidence of correction.
19. CLIENT PROVIDED PARTICIPANT DATA
19.1 Client will only share with Fitbit that personally identifiable information about its Participants ( “Client Provided Participant Data” ) that is required by Fitbit in order to allow Fitbit to provide the Fitbit Solutions and/or the Fitbit Products & Services to Client and/or its Participants as contemplated by the Ordering Documents. In turn, Fitbit shall only use such Client Provided Participant Data to allow it to provide the Fitbit Solutions and/or the Fitbit Products & Services to Client and/or its Participants. Prior to sharing any Client Provided Participant Data with Fitbit, Client shall ensure that it has obtained any and all necessary consents to allow it to do so as required by applicable law and its privacy policies. Client shall also ensure that any such sharing is done in a secure manner.
19.2 If Fitbit becomes aware of any unauthorized access to, disclosure, loss or destruction of the Client Provided Participant Data by Fitbit, Fitbit shall promptly notify Client and the parties will mutually agree on reasonable steps to investigate and mitigate.
19.3 If European Data Protection Law applies to the processing of Client Provided Participant Data:
a) the subject matter and details of the processing are as follows:
i. Subject Matter. Fitbit’s provision of the Fitbit Products & Services to Client.
ii. Duration of the Processing: As long as needed for the provision of the Fitbit Products & Services to Client or the Participants.
iii. Nature and Purpose of the Processing: Fitbit will process Client Provided Participant Data for the purposes of providing the Fitbit Products & Services in accordance with these Client Terms.
iv. Categories of Data: data relating to individuals provided to Fitbit for the purpose of provisioning the Fitbit Products & Services, by (or at the direction of) Client or by Participants.
v. Data Subjects: Prospective Participants and Participants.
b) Fitbit is a processor of that Client Provided Participant Data under European Data Protection Law;
c) Client is a controller or processor, as applicable, of that Client Provided Participant Data under European Data Protection Law; and
d) each party will comply with the obligations applicable to it under European Data Protection Law with respect to the processing of that Client Provided Participant Data.
20. FITBIT END USER DATA
20.1 Fitbit Solutions. Fitbit receives data directly from Participants as a result of their use of the Fitbit Products & Services, which includes certain Personal Information, which we refer to herein as Fitbit End User Data. As part of the Fitbit Solutions offered by Fitbit, Fitbit may provide Client certain access to Fitbit End User Data via Reporting or otherwise. In order to allow it to do so, Fitbit will seek consent from each Participant and only share such End User Data with respect to a Participant upon receipt of the applicable Participant’s consent thereto. For clarity, Fitbit will only share Fitbit End User Data with respect to a Participant upon receipt of the applicable Participant’s consent thereto. Client represents and warrants that its use of any Fitbit End User Data made available as part of the Fitbit Solutions shall comply with the restrictions set out in Section 21 below. Client acknowledges that if a Participant does not provide consent or later withdraws consent, Fitbit will not share or will immediately cease sharing such applicable Fitbit End User Data with Client. Furthermore, upon any notification from Fitbit that a Participant has withdrawn its consent, Client will promptly cease using and delete such Participant’s Fitbit End User Data. Client shall notify Fitbit immediately upon receiving any notice or communication from any third party which relates directly or indirectly to the use of the Fitbit End User Data. If Client becomes aware that Fitbit End User Data may have been accessed, collected, used, disclosed, or acquired contrary to the terms of these Client Terms, Client shall notify Fitbit by emailing email@example.com immediately. The notification must describe the nature of the issue, the status of its investigation, and the potential number of Fitbit End Users affected.
20.2 Fitbit APIs. Additionally, Client may seek to access Fitbit End User Data through the Fitbit APIs. In order to do so, Client must apply for access to Fitbit APIs via dev.fitbit.com as updated by Fitbit from time to time. Client’s use of the Fitbit APIs and any Fitbit End User Data received from the Fitbit APIs is subject to and governed by the Fitbit Platform Terms of Service as updated by Fitbit from time to time which are available at https://dev.fitbit.com/terms ( “Fitbit Platform Terms” ). Any breach of the Fitbit Platform Terms by Client shall be deemed a material breach of these Client Terms.
21. RESTRICTIONS ON USE OF FITBIT END USER DATA MADE AVAILABLE AS PART OF THE FITBIT SOLUTIONS
21.1 Client agrees that with respect to any Fitbit End User Data it accesses as part of the Fitbit Solutions it shall:
only use it in connection with Client’s Program and in a manner consistent with Client’s Program documentation and privacy policies, which Client represents and warrants shall at all times be compliant with all applicable laws and regulations (including the Privacy Laws);
limit access to, and use of Fitbit End User Data to only those Administrators who need access to administer Client’s Program;
not sell the Fitbit End User Data in any manner (whether or not individually identifiable) to any third party;
not seek to access any Fitbit End User Data other than as expressly authorized under these Client Terms; and
to the extent Client receives Fitbit End User Data in an aggregated format, not attempt to re-identify or link any such data to a Participant.
22. PROTECTED HEALTH INFORMATION
22.1 Fitbit does not intend the use of any Fitbit Products & Services made available under these Client Terms to create obligations for Fitbit under the Health Insurance Portability and Accountability Act, as amended and supplemented ( “HIPAA” ), and makes no representations that the Fitbit Products & Services satisfy HIPAA requirements.
22.2 Client acknowledges and agrees that Fitbit is not a Business Associate or subcontractor of Client or any Client customer (as those terms are defined in the Health Insurance Portability and Accountability Act, as amended and supplemented ( “HIPAA” )) and that Client will not share with Fitbit any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
22.3 If Client is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Client will not use the Fitbit Products & Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Client enters into a separate Business Associate Agreement (as defined in HIPAA) with Fitbit.
23. REGIONAL TERMS
23.1 EMEA. For any Client with a billing address in EMEA, then the additional terms found here shall apply.
24.1 Force Majeure. No party will be liable for delay or failure to fulfill its obligations under these Client Terms and/or any Ordering Documents due to a Force Majeure Event.
24.2 Notices. All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Fitbit is firstname.lastname@example.org. The address for notice to Client shall be as set forth on any Ordering Documents. All notices must be in English, in writing, and addressed to the other party’s primary contact. Emails are written notices. Notice will be treated as given on receipt, as verified by written or automated receipt, or by electronic log (as applicable).
24.3 Assignment; Change of Control. Client acknowledges and agrees that Fitbit may assign these Client Terms to any Google Affiliate at any time without further notice to Client. Other than as stated in the prior sentence, neither party may assign any part of these Client Terms and/or any Ordering Documents without the written consent of the other, except to an Affiliate where: a) the assignee has agreed in writing to be bound by the terms of these Client Terms; and b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. If Client experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) it will give written notice to Fitbit within thirty (30) days after the change of control and Fitbit may terminate these Client Terms and any applicable Ordering Documents immediately, without any liability, by giving written notice.
24.4 Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE CLIENT TERMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under these Client Terms.
24.5 Changes to Client Terms. The version of these Clients Terms in effect as of the date of the applicable Ordering Documents will govern the provision of Fitbit Solutions pursuant thereto. Fitbit shall at all times have the right to make changes to these Client Terms provided that such changes shall only apply to any Ordering Documents subsequently entered into by the parties. If Client enters into an Ordering Document after a change to these Client Terms, Client agrees that it has consented to all of the changes.
24.6 Miscellaneous. In the event Client subcontracts any of its obligations under these Client Terms, Client will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Client Terms or any Ordering Document. Nothing in these Client Terms or any Ordering Document will create any agency, partnership, or joint venture between the parties. Nothing in these Client Terms or any Ordering Document confers any benefits on any third party, except as expressly set forth in these Client Terms or any Ordering Document for an Affiliate of either party. The parties may execute any Ordering Documents in counterparts, including PDF, and other electronic copies, which taken together will constitute one instrument. The various clause headings of these Client Terms are inserted only for convenience. These Client Terms and any Ordering Documents set out all terms agreed to between Client and Fitbit (and Fitbit’s Affiliates) and supersedes all prior agreements, understandings, or arrangements between Client and Fitbit (and Fitbit’s Affiliates) relating to its subject matter (whether oral or in writing). If any term (or part of a term) of these Client Terms and/or any Ordering Documents is invalid, illegal, or unenforceable, the rest of these Client Terms and/or any Ordering Documents will remain in effect.