FHS Distribution Template with Google Terms EMEA Addendum

  • The following new definitions are inserted into the section titled ‘Definitions’:

“Adequate Country” means:

  • for data processed subject to the EU GDPR: the EEA, or a country or territory that is the subject of an adequacy decision by the Commission under Article 45(1) of the EU GDPR;
  • for data processed subject to the UK GDPR: the UK or a country or territory that is the subject of the adequacy regulations under Article 45(1) of the UK GDPR and Section 17A of the Data Protection Act 2018; and/or 
  • for data processed subject to the Swiss FDPA: Switzerland, or a country or territory that (i) is included in the list of the states whose legislation ensures an adequate level of protection as published by the Swiss Federal Data Protection and Information Commissioner, or (ii) is the subject of an adequacy decision by the Swiss Federal Council under the Swiss FDPA.”

“EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.”

“UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.”

  • The definition of “GDPR” is replaced with the following definition:

“GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR.”

  • The following sentence is deleted from the section entitled “Pricing, Taxes and Payment”

“If Client provides to Fitbit a valid exemption documentation, Fitbit will not collect the Taxes covered by that certificate”

  • The first paragraph of the section entitled “Delivery, Title and Risk” is deleted and replaced with the following language:

“The pricing set forth in any applicable Ordering Document is exclusive of shipping costs.  Fitbit will deliver the Products as follows:

  • DDP (Incoterms, 2020) to the Delivery Location where the delivery location is in the EU or the UK;
  • DAP to the Delivery Location where the delivery location is in EMEA but outside the EU and the UK. 

Title in the Products pass to Client upon delivery of the Products to Client at the Delivery Location. Partial delivery of any order will be permitted unless otherwise agreed by the parties.”

  • The paragraph “Environmental Laws” is deleted and replaced with the following language:

“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 Producers, stewards, distributors and/or retailers pursuant to Environmental Waste, Battery Waste, and Packaging Waste Laws.  For the purpose of this section “Producer” has the meaning given to that term in Article 3(f) of the WEEE Directive.”  

  • The following sentence is inserted at the start of the section entitled “Client Provided Participant Data”:

The parties agree to the terms of the ‘Data Processing Addendum for Fitbit Health Solutions Client Terms’ referenced here (the “Fitbit DPA”).  To the extent of conflict or inconsistency between the Fitbit DPA and these Client Terms (including the terms of this section ‘Client Provided Participant Data’), the Fitbit DPA will prevail.

  • The following language is inserted at the end of the section entitled “Client Solutions”:

“To the extent required by data protection laws applicable to the parties’ processing of personal data under these Client Terms, the parties agree to the  ‘Fitbit Health Solutions Controller-Controller Data Protection Terms’ referenced here (the “Fitbit Controller Terms”).  To the extent that Client is located in a jurisdiction that is not an Adequate Country, transfers of Fitbit End User Data from Fitbit to Client will be subject to the SCCs in the Fitbit Controller Terms, and the parties will be deemed to have entered into those SCCs for such transfers, with Fitbit as data exporter and Client as data importer.”

ORDER FORM

  • The following sentence is added to the paragraph entitled “Bulk Order Taxes”: “The Invoice Price is exclusive of any Taxes (VAT, GST, Sales Tax). 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.”
  • The following sentence is added as a third and final bullet in the list appearing under the sentence “The PEPM monthly fee to be invoiced to Client shall be calculated as follows”: “The PEPM monthly fee is exclusive of any Taxes (VAT, GST, Sales Tax). Where Fitbit is required to charge Taxes, the applicable amount will be added to the PEPM monthly fee and the PEPM monthly fee set out on the Ordering Documents will be deemed to be increased accordingly.”