LAST UPDATED OCTOBER 2019
These Fitbit Care Reseller License Terms (the “Agreement”), including any product-specific supplemental terms attached or referenced herein (“Supplemental Terms”), governs your (“Company”) use of the Fitbit Care Platform (defined below) provided by Fitbit. “Fitbit” means Fitbit, Inc. and its Affiliates (defined below), or the Fitbit corporate entity or Affiliate specifically identified on an order form, pricing schedule, or other of Company and the authorized reseller (“Reseller”) of the Fitbit products and services provided for herein (“Order Form”). This Agreement is effective as of the effective date of the first Order Form (“Effective Date”). “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party hereto. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
If you are accepting this Agreement on behalf of Company, you represent and warrant that: (i) you have full legal authority to bind Company to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Company, to this Agreement. If you do not have the legal authority to bind Company, please do not continue.
- Fitbit Care Platform, Devices, and Limited License.
1.1 Platform Offerings. Fitbit designs devices and related accessories (“Devices”) along with software tools that help our users achieve their health and fitness goals and empower and inspire them to lead a healthier, more active life. The Fitbit Care Platform (the “Platform”) includes Device fulfillment solutions and a suite of software services and tools for Fitbit’s business clients. The specific services to be provided to you (“Platform Offerings”) are further defined in the applicable Reseller Order Form.
1.2 License. During the term of this Agreement, and pursuant to the applicable Order Form and Supplemental Terms, Fitbit hereby grants to Company a nonexclusive, non-transferable and limited right and license to download, install, access and/or use (as applicable) the Platform Offerings. Any Platform Offerings licensed or made available hereunder may be used only in unmodified form and solely for (in the case of Company) internal business purposes and purposes related to the implementation and operations of population health or wellness programs (“Company Programs”) for Company’s participating employees, members or users, as applicable (“End Users”). Company’s access and use of the Platform Offerings licensed or made available hereunder shall comply with all other terms and conditions as set forth in this Agreement.
- Company Responsibilities
2.1. Representations. You shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Platform Offerings which are in addition to or inconsistent with those set forth in the Platform Offering and Device descriptions or promotional materials delivered by Fitbit to you hereunder. In no event shall you make any representation, warranty or guarantee by or on behalf of Fitbit. You shall represent Fitbit, its Devices, and the Platform Offering in a positive and professional manner at all times.
2.2. Business Practices. You agree not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Fitbit and agree to comply with all applicable local laws and regulations (including, without limitation, all federal and state laws, the Privacy Laws (as defined below), employment laws and regulations, import and export compliance laws and regulations, and advertising and marketing regulations) in connection with your performance under this Agreement. “Privacy Laws” mean all applicable laws and regulations relating to privacy and the processing of personal data, including, where applicable, the guidance notes and codes of practice issued by any relevant supervisory authority.
2.3. Company Wellness Program & Best Practices. You acknowledge and agree that you have reviewed the best practices listed in the Wellness Community Pledge, available at https://healthsolutions.fitbit.com/wellnesspledge/ as a general guidance, and that you are solely responsible for establishing and maintaining the compliance of your Company Program, including registering with local works councils or data protection authorities if applicable.
2.4. Compliance with Laws. You will comply with all laws, regulations and rules, including, without limitation Section 5 of the Federal Trade Commission Act, regarding the use, confidentiality, and security of personal data.
2.5. Protected Health Information. Company agrees that it may not use the Platform Offerings to create, store, or transmit Protected Health Information (as defined by the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”) without the express written consent of Reseller. If you use the Platform to create, store, or transmit Protected Health Information, you will enter into a Business Associate Agreement with Reseller prior to such use, and shall comply with HIPAA regarding the use, confidentiality, and security of Protected Health Information.
- Fitbit’s Relationship with Company’s End Users.
3.2. End User Support. End Users will follow the standard End User support process with email support at http://contact.fitbit.com and FAQs at http://help.fitbit.com.
- 4. Term and Termination
4.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated as provided for in your Order Form with Reseller.
4.2. Termination. Fitbit may terminate this Agreement if you: (a) are in material breach of this Agreement and are incapable of remedy, or where you are capable of remedy fail to cure that material breach of this Agreement within thirty (30) days after written notice of such breach. You may terminate this Agreement by terminating your Order Form with Reseller and notifying Fitbit in writing.
4.3. Effect of Termination. Any access to the Platform Offerings will cease and you shall destroy any and all Confidential Information in your possession at the time of expiration or termination. Termination is not an exclusive remedy and the exercise by Fitbit of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Fitbit shall have no liability to you of any type arising from termination of this Agreement in accordance with its terms without prejudice to the accrued rights, remedies and obligations of each of the parties at the date of termination.
4.4. Survival. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties under this Agreement shall cease, except that the following shall survive any termination or expiration of this Agreement: 4 (Term and Termination), 5 (Confidential Information), 6 (Platform Data), 7 (Intellectual Property), 7.2 (Fitbit Trademarks) (as necessary to complete any final activities), 8 (Warranties and Disclaimers), 9 (Limitation of Liability), 10 (Indemnification), 12 (Trade Compliance/Corrupt Practices), 13 (U.S. Government End-Users) and 15 (General).
- 5. Confidential Information. Each party agrees that all information relating to the disclosing party’s business it, as the receiving party, obtains from the disclosing party constitute the confidential property of the disclosing party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information also includes the terms and conditions of this Agreement. Any Devices, software, documentation or technical information provided by Fitbit and performance information relating to the foregoing shall be deemed Confidential Information of Fitbit without any marking or further designation. Except as expressly authorized herein, the Receiving party will hold in confidence and not use or disclose any Confidential Information and shall use reasonable care to protect the other party’s Confidential Information from unauthorized access, use and disclosure (including by ensuring that its personnel who access any Confidential Information have a need to know for the permitted purpose and are bound by written obligations that are at least as protective as this Agreement). The receiving party’s nondisclosure obligation shall not apply to information which the receiving party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the receiving party; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, where legally permissible, with advance notice to the disclosing party). The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- Platform Data
6.1 Platform Data. Company hereby grants Fitbit a nonexclusive, royalty-free, worldwide right and license as follows: (a) to access, copy, store, process, distribute, transmit, display and use all information provided by Company, Company’s employees or account administrators, or Company’s End Users in connection with Company’s, Company employees’ or administrators’ or Company’s End Users’ access and use of the Platform Offerings (“Platform Data”); (b) to copy, store and use Platform Data for internal research and development purposes and to develop, improve, extend, test, and personalize the Platform Offerings; (c) to design, develop and produce analytics; and (d) to market and promote Fitbit and the Platform Offerings using analytics (but only in a manner that does not disclose the identity of Company or any End User). Except for the foregoing, no other right, license or option is granted by Company, no other use is permitted by Company under this Agreement and Company or the applicable End User (as the case may be) owns and retains all rights, title and interests in and to the Platform Data. Company represents and warrants that it has obtained all necessary consents from Company’s End Users to share any End Users’ information Company provides to Fitbit under this Agreement.
6.2 Notwithstanding anything to the contrary in this Agreement: (a) upon any End User’s request, Fitbit may transmit to that End User (or to his or her designee) a copy of the Platform Data that pertains to such End User; Fitbit has no obligation to retain any Platform Data after any expiration or termination of this Agreement, except that Fitbit will transmit a copy of the Platform Data then available via its API to Company if requested in writing within 30 days after the effective date of termination; (b) during the Term of the Agreement and for a reasonable period of time after any expiration or termination of this Agreement, Fitbit may use the Platform Data to create de-identified and/or aggregated forms thereof (which shall then no longer be deemed to be Platform Data) and may retain such data after the term of this Agreement; (c) Fitbit may communicate (including via email) with any End User regarding alternative ways that the End User can continue to access the Fitbit Consumer Service after the term of this Agreement; (e) any End User may authorize Fitbit to retain and use such person’s Platform Data after the term of this Agreement, according to such person’s instructions; and (f) Fitbit will comply with any End User’s instructions to delete his or her Platform Data.
6.3 Aggregated Data. Fitbit may aggregate all or any portion of the Platform Data and any information associated with the Platform Data or your use of the Platform (collectively, “Aggregated Data”). Fitbit shall own exclusive rights, including without limitation all intellectual property rights, in and to the Aggregated Data and shall be entitled to the unrestricted use and sharing of the Aggregated Data for any purpose, commercial or otherwise, subject to its compliance with applicable Privacy Laws.
- Intellectual Property
7.1 Fitbit Property. Fitbit retains all right, title and interest in all intellectual property rights (including, without limitation, all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill, designs and confidential and proprietary information) in and relating to the Devices, the Platform Offerings, Fitbit Trademarks (defined below) and any related services, technology or documentation, including promotional materials, (collectively, the “Fitbit Property”). Any software in any Device or the Platform Offering is provided under license only. To the extent permitted by relevant law, Company shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Fitbit Property, or attempt to do so. Fitbit reserves all rights not specifically granted to Company hereunder. Company shall not, directly or indirectly, (a) use any of Fitbit’s Confidential Information to create any software, platform, service or documentation that is similar to any of the Fitbit Properties, (b) attempt to (i) access any Fitbit Property component, or to disassemble, decompile, reverse engineer or use any other means to discover any source code or underlying organization, structures, ideas or algorithms within the Fitbit Property (except and only to the extent these restrictions are expressly prohibited by applicable statutory law) or (ii) circumvent any technological measure that controls access thereto, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Fitbit Property in any time-share, service bureau or similar arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Fitbit Property, (e) use or allow the transmission, transfer, export, re-export or other transfer of any Device, technology or information Company obtains or learns in connection with the Fitbit Property (or any derivative thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, or (f) permit any third party to do any of the foregoing. Fitbit shall be free to use and exploit any ideas, assessments, recommendations, suggestions, input and feedback about the function and performance of Fitbit Property (“Feedback”) Company provides to Fitbit in any manner for all purposes (including developing and deploying new or improved Devices and Platform Offerings).
7.2 Fitbit Trademarks. Fitbit hereby grants Company a nonexclusive, nontransferable limited license to use Fitbit’s name, logo and the applicable Device or Platform Offering trademarks and logos (“Fitbit Trademarks”) solely in its distribution, marketing and advertising of the Devices and the Platform Offerings in accordance with the terms of this Agreement. Company’s use of Fitbit Trademarks shall conform to Fitbit’s then-current trademark use policies. All use of Fitbit Trademarks shall be subject to prior review and approval by Fitbit and Company agrees to promptly comply with requests to provide samples of Company’s use of the Fitbit Trademarks at other times. Company will cease any problematic use within a reasonable period of being notified by Fitbit. Company shall not remove any trademarks or other proprietary notices incorporated in, marked on, or fixed to the Devices. All goodwill arising from the use of Fitbit Trademarks shall be vested in and inure to the benefit of Fitbit. Company agrees that it will not register, or attempt to register, Fitbit Trademarks or any domain name that contains Fitbit Trademarks. Company also will not use or adopt any mark, name, domain name or designation that is confusingly similar to Fitbit Trademarks or otherwise violates Fitbit’s rights in the Fitbit Trademarks. Company acknowledges that its promotion of Fitbit Devices and the Platform Offerings in a professional and positive manner consistent with the materials provided by Fitbit, is essential to Fitbit’s goodwill in the Fitbit Property, and agrees that its failure to do so shall be a material breach of this Agreement.
7.3 Publicity. Except for the foregoing or as required by any applicable law or regulation, neither party may issue any press release or other public announcement concerning the arrangements under these Terms and Conditions without the other party’s prior written consent, not to be unreasonably delayed, conditioned or withheld.
ALL PLATFORM OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAWS, FITBIT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NONINFRINGEMENT, INCLUDING ANY WARRANTY THAT THE PLATFORM OFFERINGS OR ANY OTHER SOFTWARE OR ONLINE SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY PLATFORM DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SENTENCE SHALL ALSO APPLY TO ANY THIRD-PARTY SUPPLIER OF EITHER PARTY. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY’S (NOR ITS THIRD-PARTY SUPPLIERS’) ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE AMOUNT PAID (OR WITH RESPECT TO FEES DUE, PAYABLE) BY CUSTOMER TO FITBIT VIA RESELLER DURING THE PRIOR TWELVE (12) MONTHS UNDER THE RESELLER ORDER FORM. “EXCLUDED CLAIMS” MEANS (I) ANY CLAIM ARISING FROM COMPANY’S BREACH OF SECTION 6 (CONFIDENTIAL INFORMATION), SECTION 7.1 (PLATFORM DATA), SECTION 8.2 (FITBIT TRADEMARKS), AND (II) AMOUNTS AWARDED TO THIRD PARTIES OR AGREED IN SETTLEMENT IN CONNECTION WITH COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 11 (INDEMNIFICATION). THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Indemnification. Unless prohibited by applicable law, you will defend, indemnify and hold harmless Fitbit from and against any loss, cost, liability or damage, including attorneys’ fees, for which Fitbit becomes liable arising from or relating to: (a) the issuance by you of any warranty or representation not authorized in writing by Fitbit; (b) any act or omission by you in connection with the marketing or distribution of the Devices or the Platform Offerings under this Agreement or your Company Program; or (c) your provision or use of Platform Data. If Company refuses to indemnify Fitbit under this Section 11.1 on the basis that it is prohibited by applicable law from doing so, Company agrees to provide Fitbit with, at Company’s expense, a written opinion by Independent Legal Counsel justifying its refusal. “Independent Legal Counsel” means an attorney or firm of attorneys who shall not include any person or firm that, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either Fitbit or Company in an action to determine Company’s rights under this Agreement.
- Trade Compliance/Corrupt Practices. You represent and warrant that: (a) in connection with this Agreement, you have not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, (i) to any official of any government (foreign or domestic) or any agency or instrumentality thereof, or to any person (other than an End User as defined herein) to induce or reward the person in connection with the performance of any act or failure to act or (ii) if such payment, gift, offer or promise would constitute extortion, kickbacks or other unlawful or improper means of obtaining business or any commercial advantage or acquiescence thereto; and (b) you will comply in all respects with the all applicable domestic or foreign laws (including the U.S. Foreign Corrupt Practices Act as applicable), laws, statutes, regulations, and codes relating to anti-bribery and/or anti-corruption in any jurisdiction in which you are incorporated, carry on business or have your billing address. Company agrees that no End User is the target of any Office of Foreign Assets Control (OFAC) Sanctions Law; or is located in or a resident of a country or territory that is, or whose government currently is, the target of countrywide sanctions imposed by OFAC.
- U.S. Government End Users. The Fitbit Care Platform Offerings are commercial products, developed solely at private expense and proprietary to Fitbit and its licensors. If Company is an agency, department or other entity of the United States Government, then the use, duplication, reproduction, modification, release, disclosure or transfer thereof is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. Any software included in the Fitbit Care Platform Offerings is “commercial computer software”, the documentation is “commercial computer software documentation”, and their use is further restricted in accordance with the terms of this Agreement.
- Changes to the Agreement. From time to time, Fitbit may modify this Agreement. If Fitbit makes such changes, Fitbit will use reasonable efforts to notify you of the changes through communications via email, by posting to the Agreement URL, or other means. If you do not agree to the changes, you must terminate the Order Form with Reseller and terminate this Agreement with Fitbit in writing. Your continued participation in the Platform Offering past then current subscription term with the Reseller will constitute acceptance of the amended Agreement. Except as specified in this Section, any changes, modifications or amendments to this Agreement must be in writing signed by both parties.
- Governing Law
14.1. The laws of the State of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and Fitbit.
14.2 Notwithstanding the foregoing, if the Company entity entering into this Agreement is organized in any country in Europe, the Middle East, and Africa (“EMEA”), this Agreement shall be governed by and construed in accordance with the laws of England, excluding any choice of law rules. All disputes arising from, out of or in connection with this Agreement shall be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules; provided however that any party may seek any interim relief from a court of competent jurisdiction for any irreparable loss or damage which may be caused to it resulting from a breach by the other party. The place of any such arbitration shall be London, England, and the language of the proceedings shall be the English language. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
14.3. In any case under this Section 15, the prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. The provisions of the United Nations Convention of Contracts for the International Sale of Goods shall not be applicable.
15.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Fitbit may assign this Agreement to any Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Fitbit’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Fitbit’s prior written consent. Any attempt by you to transfer or assign this Agreement without such written consent will be null and void. Fitbit may subcontract performance of all or any part of the Platform Offerings without the consent of Company.
15.2. Remedies. Except as expressly specified otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party acknowledges and agrees that, in the event of any breach or threatened breach of Section 6 (Confidential Information) or 8 (Intellectual Property), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
15.3. Notices. Any notice under this Agreement shall be given in writing and shall be deemed effective to the party to be notified: (a) upon confirmed receipt by personal delivery or facsimile; (b) one (1) business day following deposit for delivery with Federal Express or any other internationally recognized overnight courier; or (c) three (3) business days after deposit with U.S. certified mail. Notice shall be addressed to each party at the location provided by Reseller. A copy of such notice from Company to Fitbit for termination shall also be sent to firstname.lastname@example.org.
15.4. Entire Agreement. This Agreement constitutes the complete agreement between the parties to this Agreement and supersedes all previous agreements or representations, whether written or oral, with respect to the subject matter set forth herein. There are no third-party beneficiaries under this Agreement. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
PRODUCT-SPECIFIC SUPPLEMENTAL TERMS
Coaching Platform Supplemental Terms
These Fitbit Care Coaching Supplemental Terms (“Coaching Platform Terms”) along with the Fitbit Care Reseller Customer License Terms (“Agreement”), govern your access to and use of Fitbit Care Coaching Platform, which may include the Fitbit Live Coaching Services (“Coaching Offering”). All capitalized terms not defined in these Coaching Platform Terms shall have the meanings set forth in the Agreement.
- Coaching Platform License. Fitbit hereby grants you the right to access and use the Coaching Offering during the term of your Reseller Order Form solely for your internal business purposes related to your Company Program and in accordance with the terms and conditions of the Agreement and these Coaching Platform Terms.
- Account Setup/Requirements
2.1 Account Setup. To the extent relevant to your selected Platform Offering(s) Fitbit will provide Company with access credentials (and/or a mechanism that permits Company to specify access credentials) as needed to identify, authorize and designate roles for Company’s employees who will have rights (as appropriate to their roles) to establish, administer, configure, and manage the relevant Platform Offering (“Company Administrator”) through a Company-specific account (“Account”). All Company Administrators who have been granted access to the Platform Offering must have their own unique Account. which shall not be shared with other Company Administrators. Company shall maintain the confidentiality of all Account information (including access credentials) and all activities under its Account. Company shall keep all Account information up-to-date and to notify Fitbit immediately of any unauthorized use of its Account.
2.2 Resources. As between the parties, Company 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 Platform Offerings; and (c) backup, recovery, network security and maintenance services for its internal systems (collectively, the “Company Resources”). Accordingly, Company is responsible for backing up or otherwise protecting all information (including Platform Data, defined below) stored on its systems prior to accessing or using the Platform Offerings.
- Live Coaching Services. If you elect to purchase and make the Fitbit Live Coaching Services available to your End Users, you agree that (1) the Live Coaching Services are not intended to be a substitute for professional medical consultation, advice, or treatment from qualified physicians, (2) Fitbit does not endorse and is not responsible for any specific tests, physician or medical professional, products, procedures, opinions, or any other information that may be mentioned or provided on the Live Coaching Services, and (3) the Live Coaching Services are provided “as-is”, without warranty of any kind.
- Limited Warranty. Fitbit warrants to Company that (i) the Coaching Offering will be provided in a professional manner that complies with all applicable laws and regulations, (ii) it (and each of its personnel or subcontractors who will participate in the provision of Coaching Offering, if any) has obtained or made all necessary licenses, permits, approvals, registrations, authorizations or filings with any federal, state, local or other governmental, regulatory or administrative authority or agency necessary to perform the Services.
- Indemnification. In addition to Company’s indemnification obligations pursuant to Section 10 of the Agreement, you will defend, indemnify and hold harmless Fitbit from and against any loss, cost, liability or damage, including attorneys’ fees, for which Fitbit becomes liable arising from, or relating to, third party use of the Coaching Offering to provide any services or deliverables to Company or End Users. All other rights, obligations, and processes set forth in Section 11 of the Agreement apply to Company’s obligations under this Section 5 of the Coaching Platform Terms.
Program Management Dashboard Supplemental Terms
These Fitbit Care Program Management Dashboard Supplemental Terms (“Dashboard Terms”) govern your access to and use of Fitbit Care Program Management Dashboard Offering (“Dashboard Offering”) in addition to the Fitbit Care Reseller Customer License Terms (“Agreement”). All capitalized terms not defined in these Dashboard Terms shall have the meanings set forth in the Agreement.
- Program Management Dashboard License. You may access and use the Dashboard Offering during the term of your Reseller Order Form solely for your internal business purposes related to your Company Program and in accordance with the terms and conditions of the Agreement and these Dashboard Terms.
- End User Data
2.2. End User Authorization. Fitbit may require consent from all of your End Users in order to share their End User Data with you and other End Users (“End User Authorization”). When an End User creates a Fitbit account (or logs into its existing Fitbit account) on the Fitbit website or application to register any Device acquired under this Agreement, Fitbit may present such End User with the opportunity to provide End User Authorization using its then-current End User Authorization method. Fitbit reserves the right to modify the End User Authorization method in its sole discretion. Fitbit will only share End User Data with you if provided with End User Authorization for the particular End User. If an End User does not provide or later withdraws End User Authorization, Fitbit will not share or will cease sharing End User Data with Company. Furthermore, upon any notification from Fitbit that an End User has withdrawn End User Authorization, Company will immediately cease using such End User’s Data and/or destroy that End User Data as Fitbit directs.
2.3 Use of End User Data; Restrictions. You agree that the following terms apply with respect to your use of End User Data:
- You may only use such End User Data in connection with your Company Program and in a manner consistent with your related documentation and privacy policies, which you agree shall at all times be compliant with all applicable laws and regulations (including the Privacy Laws),
- you shall use the End User Data in compliance with all applicable laws and regulations (including the Privacy Laws and employment laws and regulations),
- you are solely responsible for ascertaining the adequacy and legality of the documentation and privacy policies presented to End Use s to ensure that End User Data may be used for your intended purposes,
- you shall in no respect whatsoever cause Fitbit to be in breach of any of its obligations under the Privacy Laws with respect to your use of End User Data,
- you shall not share, disclose, or resell the End User Data in any form (whether or not individually identifiable) to any third party,
- you shall not seek to access any End User Data other than as expressly authorized under this Agreement,
- you shall maintain appropriate technical and organizational measures to protect End User Data downloaded or exported against unauthorized or unlawful processing of the End User Data and against accidental loss or destruction of, or damage to, the End User Data,
- to the extent you select the provision of aggregate data, you shall not re-identify the aggregate data or make an attempt to link any such data to any End User.
2.4. Government Inquiries. You shall notify Fitbit immediately upon receiving any notice or communication from any supervisory or government body which relates directly or indirectly to the use of the End User Data.
2.5 Unauthorized Disclosure; Notification. If you have reason to believe that End User Data may have been accessed, collected, used, disclosed, or acquired contrary to the terms of this Agreement, you must notify Fitbit by emailing email@example.com as soon as possible after you become aware of it. The notification will describe the nature of the breach or attempted breach, the status of your investigation, and the potential number of persons affected.
- Limitation on Liability. Claims arising from Company’s breach of Section 2 (End User Data) above is included in the definition of Excluded Claims in Section 10 (Limitation on Liability) of the Agreement.
- Indemnification. In addition to Company’s indemnification obligations pursuant to Section 11 of the Agreement, you will defend, indemnify and hold harmless Fitbit from and against any loss, cost, liability or damage, including attorneys’ fees, for which Fitbit becomes liable arising from, or relating to, your use of the End User Data. All other rights, obligations, and processes set forth in Section 11 of the Agreement apply to Company’s obligations under this Section 4 of the Dashboard Terms.
- Survival. Upon any expiration or termination of the Agreement and these Dashboard Terms, all rights, obligations and licenses of the parties under this Agreement shall cease, except that Section 2 (End User Data) of these Dashboard Terms shall survive in addition to the survival sections agreed to in Section 5.4 of the Agreement.