Fitbit Health Solutions Research and Non-Profit Terms
TERMS AND CONDITIONS OF TRANSFER – RESEARCH AND NON-PROFIT
UNLESS A SEPARATE SIGNED WRITTEN AGREEMENT GOVERNS THIS TRANSFER, ALL PRODUCT DONATIONS, PURCHASES, PURCHASE ORDER ACCEPTANCES, ACKNOWLEDGMENTS, QUOTES AND INVOICES ARE EXPRESSLY CONDITIONED UPON THE BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY PREPRINTED OR HANDWRITTEN TERMS AND CONDITIONS ON BUYER’S PURCHASE ORDER FORM OR SIMILAR DOCUMENTATION SHALL HAVE NO FORCE OR EFFECT. BUYER AGREES TO WAIVE ANY SUCH TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THOSE THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS AND CONDITIONS.
1. ACCEPTANCE BY BUYER; ENTIRE AGREEMENT. These terms and conditions (“Terms”) shall constitute the entire agreement between Fitbit, Inc. (“Fitbit”) and the entity purchasing or receiving the products hereunder (“Buyer”). Acceptance of Buyer’s order by Fitbit is expressly conditioned on Buyer’s consent to these Terms. Such consent shall be conclusively determined by any of the following means: (i) acceptance or acknowledgment by Buyer of the receipt of these Terms without written objection; or (ii) payment for, acceptance of delivery, or use of Fitbit’s products provided hereunder (“Products”). The issuance of future orders by Buyer without a separate agreement signed by both parties shall conclusively establish a course of dealing in which these Terms form a binding contract.
2. PRICES AND TAXES. Any quoted prices are estimates only. Prices do not include any federal, state, municipal or other government, excise, use, occupational, value added, property or other taxes or duties now in force or enacted in the future. Any such tax, fee or charge imposed by any government authority on the transaction between Fitbit and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. If Fitbit is required to pay any such tax, fee or charge, at the time of sale or thereafter, Buyer shall reimburse Fitbit. Prior to Buyer’s payment, Fitbit reserves the right to increase prices to cover any price increases in materials, delivery charges or other expenses.
3. SHIPPING. Products may be designated for shipment up to the number of addresses specified in Fitbit’s bulk shipment guidelines. Buyer shall designate shipping addresses at the time of purchase. Unless otherwise agreed in writing by the parties, shipment will be FOB Fitbit’s shipping point, with Buyer responsible for all shipping costs, including any insurance or additional shipping expenses that may be incurred as a result of Buyer’s specific instructions. In the absence of specific shipping instructions, Fitbit will ship by the method it deems most advantageous in standard commercial packaging.
4. TERMS OF PAYMENT. If Buyer has been approved for credit by Fitbit, payments shall be made in U.S. dollars within thirty (30) days of Buyer’s receipt of the applicable invoice from Fitbit; otherwise, all orders must be pre-paid. Any late payments shall be subject to a service charge equal to 1% of the amount due per month or the maximum amount allowed by law, whichever is less. Fitbit reserves the right, in its sole discretion, to change Buyer’s credit terms and/or require C.O.D. payment for shipment should Buyer fail to pay invoices in a timely manner.
5. NO RIGHT TO REDISTRIBUTE. Subject to these Terms, for a period of twelve (12) months following shipment, Buyer has a non-exclusive, non-sublicensable, non-transferable right to use Products purchased hereunder for Buyer’s participants (“End Users”) for their personal use without any right of redistribution, solely for non-commercial internal research and development purposes. Buyer shall have no right to resell or distribute the Products to other third parties. In addition, Fitbit may, from time to time, supply Buyer with certain written and online program materials containing guidelines, restrictions and other details about the Products. Continued eligibility to use Products shall be subject to Buyer meeting the requirements set forth in such program materials.
7. CONSENTS AND APPROVALS. Buyer represents that prior to signing this Agreement and prior to any research activities contemplated through the use of Products, Buyer has or will have obtained all applicable consents from End User required by applicable law, including but not limited to informed consent forms as well as HIPAA Authorizations if applicable. Buyer further represents and warrants it will furnish a template of such consents to Fitbit upon written request in advance of or during the Research, and that it will retain such consents (including original ink copies if required) as well as all relevant records and documentation generated in the Research (as defined below) for as long as is required by applicable law. Buyer represents that prior to signing this Agreement and prior to any research activities contemplated through the use of Products, Buyer has or will have obtained Institutional Review Board approval or equivalent ethical board approvals (or waiver thereof), and that it shall notify Fitbit in writing and cease all activities and use of the Products if any of the above representations change, become untrue, or any activities related to use of the Products are suspended for any reason. If Buyer receives notification of an audit by any regulatory agency or body it will immediately notify Fitbit in writing, provide copies to Fitbit of any relevant communications or notices, and reasonably cooperate with Fitbit in responding appropriately.
8. LIMITATIONS ON USE. Buyer shall not (and shall not allow any third party to) use any Fitbit Products for any purpose other than the Products intended use (https://www.fitbit.com/legal/safety-instructions). Doing so will be considered a material breach of this Agreement. The Products are not medical devices, and are not intended to diagnose, treat, cure, or prevent any disease. Further, the only permitted use for Products is for internal research and development (“Research”), and not for any commercial use, such as sale, license, or other commercial transfer of Products or data to third parties except as otherwise expressly permitted under this Agreement.
9. RESULTS. Buyer shall provide a comprehensive summary report of the results arising from the use of Products for research under this Agreement (“Report”). Report shall be submitted by Buyer to Fitbit within thirty (30) days of completion of the Research, expiration, or termination of this Agreement as is reasonably possible, whichever is earlier. Buyer certifies that it will not transfer or share with Fitbit any Protected Health Information (PHI). Buyer shall not transfer any personally identifiable information (PII) which could identify a specific individual without first obtaining legally appropriate consent, first notifying Fitbit of the intention to transfer such PII, and obtaining Fitbit’s advance written agreement to receive such information. This subsection shall have no effect upon Fitbit’s ability to collect PII directly from End Users pursuant to subsection 6.
10. PUBLICATIONS. In the event Buyer wishes to publish, present, or otherwise disclose results, data, or Reports arising from this Agreement, Buyer shall submit in confidence a copy of such planned publication or manuscript (“Publication”) at least thirty (30) days prior to planned publication so that Fitbit may review, comment, and request removal of any Fitbit proprietary or Confidential Information (defined in Section 19); provided, that Buyer shall not be required to modify or delete any Research results generated by the Buyer that do not constitute Fitbit proprietary or Confidential Information.
11. WARRANTY AND RETURNS. Fitbit provides its standard limited warranty (currently set forth at http://www.fitbit.com/returns) directly to End Users for all Products purchased hereunder and not to Buyer. Each End User must contact Fitbit directly in the event of any warranty issues; provided, however that Fitbit and Buyer may agree to implement a bulk RMA process under special circumstances. If Fitbit determines, in its sole discretion, that a refund is necessary to satisfy a warranty claim, upon return of the defective Product Fitbit shall refund the purchase price paid by Buyer directly to Buyer and Buyer shall be responsible if applicable for refunding the End User within thirty (30) days of receipt of such amounts from Fitbit. Notwithstanding the foregoing, Fitbit may issue any refund directly to the applicable End User. In no event will Fitbit be liable for refunds exceeding the purchase price of the defective Product paid to Fitbit.
12. FITBIT END USER SUPPORT OBLIGATIONS. End Users will follow the standard customer support process with email support at http://contact.fitbit.com and FAQs at http://help.fitbit.com. Buyer may escalate issues affecting multiple End Users directly to Fitbit by email (email@example.com) and Fitbit will use reasonable efforts to promptly respond to such request.
13. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 11, THE PRODUCTS AND ALL FITBIT SERVICES AND DATA ARE PROVIDED “AS IS”. NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
14. NO END USER DATA SHARING. Buyer has no right to receive any information collected, directly or indirectly, from any End User through use of the Products or Fitbit service (“End User Data”) under these Terms. Any sharing of End User Data by the parties shall only be pursuant to a separately executed agreement between the parties, and through an IRB approval (or waiver), in addition to any informed consent forms and/or HIPAA authorizations as required to comply with applicable laws and regulations (obtained pursuant to subsection 7).
15. BUYER OBLIGATIONS AND INDEMNITY. Buyer shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Products or Fitbit’s services which are in addition to or inconsistent with those set forth in the Product descriptions or promotional materials delivered by Fitbit to Buyer hereunder. In no event shall Buyer make any representation, warranty or guarantee by or on behalf of Fitbit. Buyer agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Fitbit or the Products and agrees to comply with all applicable international, federal, state and local laws and regulations (including, without limitation, data protection, privacy, confidentiality, and import and export compliance laws and regulations) in connection with its activities hereunder. Unless prohibited by applicable law, Buyer 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 the issuance by Buyer of any warranty or representation not authorized in writing by Fitbit or any other act or omission of Buyer in connection with the distribution or resale of Products, use of data or results under the Research or this Agreement, or any breach of this Agreement by Buyer. Fitbit may participate in the defense of any such claims by counsel of its own choosing, at its cost and expense. Buyer will not settle any claim without Fitbit’s prior written consent if the settlement requires Fitbit to take any action, refrain from taking any action or admit any liability.
16. INTELLECTUAL PROPERTY OWNERSHIP. Fitbit retains all right, title and interest in all intellectual property (including, without limitation, all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill, and confidential and proprietary information) in and relating to the Products, Trademarks and any related services, technology or documentation and any modifications or derivative works thereof (including as may reflect any suggestions or feedback received from Buyer). Any software in any Product is provided under license only. To the extent permitted by relevant law, Buyer shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products, or attempt to do so. Fitbit reserves all rights not expressly granted to Buyer hereunder.
17. FITBIT TRADEMARKS. At the request of Buyer, but at the discretion of Fitbit and with advance written permission from Fitbit, Fitbit shall grant Buyer a nonexclusive, nontransferable license to use Fitbit’s name and the applicable Product trademarks (collectively, “Trademarks”) solely in providing the Products to End Users in accordance with these Terms, for non-commercial internal research purposes. All use of Trademarks shall be limited to twelve (12) months from the date of the Order and subject to the prior review and approval of Fitbit. Buyer will cease any problematic use of Trademarks within a reasonable period of being notified by Fitbit. Buyer shall not remove any Trademarks or other proprietary notices incorporated in, marked on or fixed to the Products. All goodwill arising from the use of Trademarks shall be vested in and inure to the benefit of Fitbit. Buyer agrees that it will not register, or attempt to register, any domain name containing the word “Fitbit” or any product name of a Fitbit product, and if Buyer has, to immediately effect transfer of such domain name to Fitbit without charge.
18. LIMITATION OF LIABILITY. IN NO EVENT SHALL FITBIT (OR ANY THIRD- PARTY SUPPLIER) BE LIABLE FOR ANY LOSS OF USE, LOST DATA, USE OF DATA OR RESULTS BY BUYER, END USER PERSONAL INJURY OR DEATH, 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. FITBIT’S (AND ITS THIRD-PARTY SUPPLIERS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PRODUCTS PURCHASED OR TRANSFERRED HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS PAID BY BUYER TO FITBIT HEREUNDER. The parties agree that the limitations specified in this Section 18. will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
19. CONFIDENTIALITY. Except as required by law and only with prior notice to Fitbit and mutual written Agreement by the parties, Buyer will not disclose to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except as required by law the following types of information: (a) any terms of sale, including any prices or discounts offered by Fitbit or these Terms, (b) any non-public information regarding the Products, including without limitation performance characteristics or specifications, and (c) any information disclosed by Fitbit regarding its business or technology. This Section 19 shall survive any termination or expiration of these Terms.
20. BANKRUPTCY. If Buyer commences or has commenced against it any bankruptcy, receivership or other proceedings to settle Buyer’s debts, makes any assignment for the benefit of creditors, becomes insolvent or ceases to do business, Fitbit may cancel these Terms or any order by written notice without judicial intervention or declaration of default of Buyer and without prejudice to any other right or remedy of Fitbit.
21. FOREIGN CORRUPT PRACTICES ACT. Buyer represents and warrants that (a) in connection with these Terms, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof and (b) it will comply in all respects with the Foreign Corrupt Practices Act (or any similar law).
22. FORCE MAJEURE. Fitbit shall not be liable for any loss, damage or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Fitbit, including, but not limited to, supplier delay, force majeure, acts of God, labor unrest, fire, explosion or earth¬quake. In any such event, the delivery date shall be deemed extended for the period equal to the delay.
23. AMENDMENTS AND WAIVERS. Buyer acknowledges and agrees that Fitbit may make changes to these Terms from time to time in its sole discretion; provided, however, that changes to the version of these Terms then in effect at the time of any purchase shall be binding on either party only if in writing and signed by a duly authorized representative of such party. The failure of Fitbit to enforce any rights hereunder will not be construed as a waiver of any rights of Fitbit.
24. APPLICABLE LAW. These Terms are made, governed by, and shall be construed in accordance with the laws of the State of California, without reference to conflict of laws principles, and without regard to the United Nations Convention on the International Sale of Goods. Buyer consents to the exclusive jurisdiction of the courts of San Francisco, California and the district courts for the Northern District of California. [If Buyer is a United States city, county or state government entity or the equivalent, then the Agreement will be silent regarding governing law and venue. If Buyer is a U.S. Federal Government Entity, all claims arising out of or relating to this Agreement will be governed by the laws of the United States of America, excluding its conflict of laws rules. Solely to the extent permitted by federal law: (i) the laws of the State of California (excluding California’s conflict of laws rules) will apply in the absence of applicable federal law; and (ii) for all claims arising out of or relating to this agreement or the services, the parties consent to personal jurisdiction in, and the exclusive venue of, the courts in San Francisco County, California.]
25. INDEPENDENT CONTRACTORS. The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
26. GOVERNMENT END USERS. Elements of the Products contain or are provided with commercial computer software. If the user or licensee of the Products is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227,7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
27. SEVERABILITY. If any provision of these Terms 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 these Terms shall otherwise remain in effect.