Fitbit Health Equity Research Initiative:
APPLICATION TERMS

BY SUBMITTING AN ONLINE APPLICATION, YOU ARE AGREEING ON BEHALF OF YOURSELF AND YOUR ORGANIZATION (“ORGANIZATION”) TO THESE APPLICATION TERMS (“TERMS”).

Application Terms

The Fitbit Health Equity Research Initiative (“Initiative”) is an open call for applications (“Applications”) for possible provision of certain products and services (“Products”) from Fitbit, Inc., whose principal place of business is at 199 Fremont Street, 14th Floor, San Francisco, CA 94105 USA (“Fitbit”), a Fitbit subsidiary or affiliate, and/or Small Steps Labs LLC d/b/a Fitabase, whose principal place of business is at 4705 35th Street, San Diego, CA 92116, a third party organization contributing to the Initiative (“Fitabase”). This is an open request for Applications and not a contest. The amount of Products provided, and the Organizations selected to receive Products are at Fitbit’s and Fitabase’s discretion. These Terms are binding on you, individually, and your Organization as applicable.

  1. ORGANIZATION ELIGIBILITY AND APPLICATION REQUIREMENTS: In order for your Organization’s Application to be considered: 

    1. You must be an authorized representative of your Organization. 
    2. Your Organization must:
      1. have a material presence and/or registered office in the United States of America; if your Organization is a fiscal sponsor submitting the Application on behalf of a sponsored group, only the sponsored group must have a material presence and/or registered office in the United States;
      2. be a registered US 501(c)(3) public charity or academic or research institution; 
      3. submit an Letter of Intent (as defined in Section 2) on the official Initiative website https://healthsolutions.fitbit.com/fitbit-health-equity-research-program/ (“Site”); 
      4. if requested, submit additional information as requested for the Full Application (as defined in Section 2);
      5. not discriminate against any person or group of people in either hiring/employment practices or in the administration of programs and services, including on the basis of sexual orientation or gender identity; 
      6. conduct the research described in the Application in accordance with Fitbit’s Research Pledge (https://healthsolutions.fitbit.com/research-pledge/) for the duration of the research project described in the Application; and
  • have already secured or will secure the core funding required to carry out the research described in the Application prior to submitting the Full Application.
  1. If your Organization receives any Products:
    1. the Products may not be used for religious instruction; 
    2. the Products must be used for the research described in the Application;
    3. you represent and warrant your Organization has not agreed to engage in a business transaction with Fitbit or Fitabase as a condition or requirement of receiving the Products; 
    4. you are not aware of any relationships, projects, or activities that your Organization, or any of the officers or board members on behalf of your Organization, have that create or could create a potential conflict of interest in connection with your Application or the potential receipt of Products; and
    5. your Organization must agree to the terms of a giveaway agreement provided by Fitbit and/or Fitabase.

  1. APPLICATION PERIOD: Fitbit and Fitabase will accept Applications in a two stage process.  Applications  for the first stage (“Letters of Intent”) will be accepted on the Site between 12:00 PM PST on Wednesday, April 14, 2021 and 5:00 PM PST on Friday, May 28, 2021.  Applications for the second stage of the review process (“Full Applications”) will be by invitation only and organizations invited to submit Full Applications will be notified on a rolling basis via email.  

  1. DUE DILIGENCE: Your Organization may be required to submit additional information for the purposes of evaluating its Application, including but not limited to the following: 

  1. Financial statements for each of the last 3 fiscal years, including income statement, balance sheet, and cash flow statement;
  2. Information regarding senior leadership, trustees, and board members;
  3. Relevant information on any government affiliation or public funding;
  4. Further details or information on the Organization’s research project idea and implementation plan, including specifics about the proposed research, protocol and institutional review board approval status;
  5. Other information Fitbit and/or Fitabase may deem necessary to evaluate your Organization or Application; and
  6. If the Application is being submitted by an Organization in the capacity of a fiscal sponsor, further information regarding the relationship between the Organization and the sponsored group.

  1. TAXES: ALL TAXES IMPOSED ON ORGANIZATION’S RECEIPT OF PRODUCTS OR ANY FUNDING ARE THE SOLE RESPONSIBILITY OF THE ORGANIZATION. If Organization is selected to receive Products, in order to receive any Products, Organization must submit the tax documentation requested by Fitbit, Fitabase or otherwise required by applicable law, to Fitbit, Fitabase or the relevant tax authority, all as determined by applicable law. Organization is responsible for ensuring that it complies with all the applicable tax laws and filing requirements. If Organization fails to provide such documentation or comply with such laws, Fitbit or Fitabase, as applicable, may, in its sole discretion, rescind the distribution of Products or funding. 

  1. License to Application Contents and Materials: For the purpose of evaluating the Application and other purposes related to the Initiative, including publicity and marketing, Organization hereby grants to Fitbit and Fitabase and their affiliates, partners, and representatives a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display all materials submitted in the Application and any additional materials provided by Organization to Fitbit and/or Fitabase as part of the Application review process (“Materials”), in whole or part, in any form, media or technology, without notice or attribution to you, your Organization, or any other entity or person and without obtaining any further permission to license, to the maximum extent permitted by law.  

To help Fitbit and Fitabase with its review of your Application, Fitbit and Fitabase may disclose your Application and Materials to their employees, consultants, agents and other third parties. Your Application and ideas may become public and others exposed to your ideas, including but not limited to Fitbit and Fitabase, may be working on similar ideas or technology now or in the future. By submitting an Application, you waive any claim that information included in your Application or Materials is proprietary or confidential, whether or not marked as such.

All selected Organizations will be required to agree to the terms of a giveaway agreement, which may include a provision requiring that any intellectual property created with Products funds be made available under a permissive, open source license and/or placed in the public domain, and widely disseminated for use by anyone for free, without restriction.

  1. PRIVACY: You and your Organization agree that your personal information and Organization’s information provided in the Application and Materials, including name, mailing address, phone number, and email address may be processed, stored, shared and otherwise used within the context of the Application review process and provision of the Products by Fitbit in accordance with Fitbit’s Privacy Policy (https://www.fitbit.com/global/us/legal/privacy-policy) and by Fitabase in accordance with Fitabase’s privacy policy (https://www.fitabase.com/Privacy/). Such information may also be transferred to countries outside the country of Organization’s incorporation. Such other countries may not have privacy laws and regulations similar to those of the country of Organization’s incorporation.

You, your Organization, and any person whose information you may have provided have the right to access, review, rectify, or cancel any personal data held by Fitbit in connection with the Initiative by writing to Fitbit at the address listed above, ATTN: Legal Department.

  1. PUBLICITY: By accepting any Products, Organization agrees and consents to Fitbit, Fitabase and their agencies use of Organization’s name and logo, publicly available information about Organization, information about the Initiative and Organization’s Application, and/or related materials approved by Organization. 

  1. WARRANTY: You warrant that you are acting within the scope of your authority as an employee, officer or director of the Organization, and that the Organization has consented to you submitting an Application on its behalf. You further warrant that your actions do not violate your Organization’s policies and procedures. You and your Organization represent and warrant that your Application is your Organization’s original work and, as such, your Organization is the sole and exclusive owner and rights holder of its Application and all intellectual property contained in it, and that it has the right to submit the Application to the Initiative and to grant all required licenses. Each Organization warrants that the Application, the research described therein and Materials do not: (1) infringe any third party proprietary rights, intellectual property rights, industrial property rights, database rights, personal or moral rights or any other rights, including without limitation, copyright, trademark, patent, trade secret, privacy, publicity or confidentiality obligations; (2) contain confidential or proprietary information; or (3) otherwise violate applicable law. 

  1. NOT AN OFFER OR CONTRACT OF EMPLOYMENT: Under no circumstances shall the submission of an Application, the provision of Products, or anything in these Terms be construed as an offer or contract of employment with either Fitbit or Fitabase. Your Organization acknowledges that it has submitted its Application voluntarily and not in confidence or in trust. Your Organization acknowledges that no confidential, fiduciary, agency or other relationship or implied-in-fact contract now exists between you or your Organization and Fitbit or Fitabase and that no such relationship is established by your Organization’s submission of an Application under these Terms.

  1. FORUM AND RECOURSE TO JUDICIAL PROCEDURES: These Terms shall be governed by, subject to, and construed in accordance with the laws of the State of California, United States of America, excluding all conflict of law rules. If any provision(s) of these Terms are held to be invalid or unenforceable, all remaining provisions hereof will remain in full force and effect. 

  1. ARBITRATION: By submitting an Application, your Organization agrees that exclusive jurisdiction for any dispute, claim, or demand related in any way to your Organization’s Application will be decided by binding arbitration. All disputes between your Organization and Fitbit and/or Fitabase of whatsoever kind or nature arising out of these Terms or the Initiative, shall be submitted to Judicial Arbitration and Mediation Services, Inc. (“JAMS”) for binding arbitration under its rules then in effect in the San Jose, California, USA area, before one arbitrator to be mutually agreed upon by both parties. The parties agree to share equally in the arbitration costs incurred.

  1. LIMITATION OF LIABILITY. NEITHER FITBIT, FITABASE NOR THE EMPLOYEES, INTERNS, CONTRACTORS AND OFFICIAL OFFICE-HOLDERS OF FITBIT OR FITABASE OR THEIR PARENT COMPANIES, SUBSIDIARIES OR AFFILIATES (“SPONSORS”) WILL BE LIABLE FOR ANY LOST REVENUE, LOSS OF GOODWILL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AS OF THE DATE ORGANIZATION SUBMITS AN APPLICATION. FITBIT, FITABASE AND EACH OF THE OTHER SPONSOR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO US$10,000. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; OR (ii) FRAUD OR FRAUDULENT MISREPRESENTATION.
  2. WAIVER. To the fullest extent permitted by law, You and Organization forever waive, release, and discharge any and all claims, demands, actions, and causes of action, whether related to breach of contract, infringement of intellectual property rights, unauthorized trade secret use or disclosure, violation of law (including privacy) or tort claim (including negligence), against Fitbit, Fitabase and the other Sponsors in connection with Organization’s Application and any Materials. YOU AND ORGANIZATION EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS AFFORDED BY SECTION 1542 OF THE CALIFORNIA CIVIL CODE WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM AND HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
  3. COVENANT NOT TO SUE. Organization covenants not to sue, assert or bring any claim against Fitbit, Fitabase or the other Sponsors based in any part on the Organization’s Application, any Materials used to evaluate the Application or any intellectual property related thereto.
  4. INDEMNITY. To the maximum extent permitted by law, Organization will defend and indemnify Fitbit, Fitabase and the other Sponsors against all liabilities, claims damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding arising from: (a) a breach of the warranties in these Terms (b) any misrepresentation made by the Organization in connection with the Application or Materials; (c) any non-compliance by the Organization with these Terms; (e) acceptance, possession, misuse or use of any Products; (f) infringement of any copyright, trademark, trade dress, patent or other intellectual property right, disclosure of trade secrets, violation of publicity or privacy, including defamation; (g) violation of law; or (h) tort claim (including negligence). Fitbit has the right to approve controlling counsel. Such approval will not to be unreasonably withheld (provided that such approval may be withheld or withdrawn if there is a conflict of interest). Each of Fitbit and Fitabase may appoint their own noncontrolling counsel, at their own expense. Any settlement requiring Fitabase to admit liability, pay money, or take (or refrain from taking) any action, will require Fitbit’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. Any settlement requiring Fitbit or any other Sponsor (other than Fitabase) to admit liability, pay money, or take (or refrain from taking) any action, will require Fitbit’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. 
  5. MISCELLANEOUS. All legal notices must be in English, in writing, and addressed to the other party’s primary contact, which for Fitbit is legal@fitbit.com and Fitabase is hello+legal@fitabase.com. These Terms represent all terms and conditions agreed between the parties and cancels and replaces all other agreements between the parties relating to its subject matter.