Fitbit Health Solutions Storefront Terms of Service

OVERVIEW

  • Fitbit designs, develops, manufactures and sells personal fitness and body tracking electronic products.
  • Fitbit creates company storefronts for clients to enable them to distribute Fitbit products to their employees, members, participants or customers.

 

UNLESS A SEPARATE SIGNED WRITTEN AGREEMENT GOVERNS THE PROVISION OF YOUR COMPANY STOREFRONT, BY SUBMITTING OR EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT OR ACCESSING YOUR COMPANY STOREFRONT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR ACCESS TO AND USE OF YOUR FITBIT COMPANY STOREFRONT ARE EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT RECEIVE ACCESS TO A COMPANY STOREFRONT. ANY PREPRINTED OR HANDWRITTEN TERMS AND CONDITIONS ON YOUR PURCHASE ORDER FORM OR SIMILAR DOCUMENTATION SHALL HAVE NO FORCE OR EFFECT. YOU AGREE TO WAIVE ANY SUCH TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THOSE THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS AND CONDITIONS.

 

These Fitbit Health Solutions Storefront Terms of Service (“Agreement”) are entered into by and between the entity or person identified on the Order Form (“Client”, “you” or “your”) and Fitbit. “Fitbit” means Fitbit, Inc. and its Affiliates. The relevant Fitbit contracting entity or Affiliate may be specified on the Order Form referencing this Agreement or on an invoice related to the Company Storefront provided by Fitbit. This Agreement is effective as of the effective date of the Order Form or if not specified, the date you receive access to the Company Storefront (“Effective Date”). This Agreement includes any Order Forms. If you are accepting on behalf of Client, you represent and warrant that: (i) you have full legal authority to bind Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Client, to this Agreement. If you do not have the legal authority to bind Client, please do not continue.

 

The following are the components that make up this Agreement:

 

  • 1. Definitions
  • 2. Storefront Terms, Price, and Delivery
  • 3. Your Obligations
  • 4. Our Relationship with the End User
  • 5. Term and Termination
  • 6-7. Confidentiality and Intellectual Property Rights
  • 8-17. Other Legal Terms

 

The parties agree as follows:

 

  1. Definitions

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

“Client Program” means Client’s corporate wellness, insurance or population health program, or promotional program offered to End Users by Client.

“Company Storefront” means the Fitbit online storefront available at a custom URL.

“Control” means control of greater than fifty percent of the voting rights or equity interests of a party.

“End User” means an employee, member, participant or customer of Client who is the user of a Product made available through this Agreement.

“Fitbit Health Solutions Offering” means the services offered by Fitbit to clients who wish to make Products available to their End Users.

“Fitbit Consumer Service” means the service provided to customers of the Fitbit consumer product who register and create a personal account via fitbit.com, the Fitbit mobile applications, or other means.

“Order Form” means a Key Terms Schedule, order form or similar ordering document referencing this agreement and executed by Client, or a Storefront Setup Form or similar document submitted to Fitbit by Client and referencing this Agreement. Order Forms set forth Client’s selections of the Fitbit Health Solutions Offering, including Products and pricing.

“Products” means the Fitbit products listed on the Order Form.

 

A reference to any law includes any law or provision which modifies, consolidates, re-enacts or supersedes it whether such law or provision comes into force before or after the date of this Agreement.

 

  1. Storefront, Pricing, and Delivery

2.1 Company Storefront.  At your request Fitbit will create a Company Storefront (if available in the specified territory) to allow End Users to purchase subsidized Products directly from Fitbit. Company Storefront implementation requires a minimum lead time of four (4) weeks from your request. All Company Storefront purchases must be validated by either (a) unique Client issued ID (8-20 digit alphanumeric characters) or (b) by End User using a validated corporate email domain of Client. All purchases by End Users through the Company Storefront are directly with Fitbit and shall be subject to Fitbit’s standard applicable Privacy Policy and customer purchase and delivery terms. Notwithstanding section 3.6 (“Taxes”) of this agreement, Fitbit shall be responsible for collecting and reporting any applicable Indirect Taxes (defined below) associated with sales of Products via the Company Storefront directly to End Users. If a period for provision of the Company Storefront (“Ordering Window“) is specified on the Order Form, Fitbit will make the Company Storefront available during the Ordering Window and Fitbit may elect in its sole discretion to continue to make the Company Storefront available for a mutually agreed period of time after the Ordering Window if requested. If no Ordering Window is specified, the Term shall be the Ordering Window.

 

2.2 Bulk Orders. Subject to availability, you will have the ability to purchase Products in bulk directly from Fitbit (“Bulk Orders”) at the prices identified on the Order Form. Such purchases are subject to the terms and conditions at https://www.fitbit.com/legal/bulkorder-policy.

 

2.3 Minimum Order Quantity and Ordering Window. If an Order Form specifies a minimum required amount of Products to be purchased under this Agreement (“Minimum Order Quantity”), you agree to meet the Minimum Order Quantity during each Ordering Window. Purchases of Products by End Users through the Company Storefront shall count towards the Minimum Order Quantity, along with Bulk Orders by you during the Term. If the total number of Products purchased by you and End Users during the applicable Ordering Window is less than the Minimum Order Quantity, Fitbit will invoice and you must purchase the number of Products constituting the shortfall via bulk order by the end of the then-current Term. Once you have met your Minimum Order Quantity obligations, you may purchase additional Products at your option. Failure to purchase the Minimum Order Quantity during the applicable Ordering Window shall be deemed a material breach of this Agreement.

 

(a) Prior Orders. If you have purchased Products from Fitbit through Bulk Order(s) prior to execution of this Agreement (each, a “Prior Order”), the parties may agree to include a Prior Order placed up to twelve (12) months prior to the Effective Date under this Agreement upon Fitbit’s written confirmation of the serial numbers or device IDs of the units of Products to be included hereunder (“Confirmed Products”). Upon such written confirmation, Confirmed Products shall be deemed to be Products purchased under this Agreement, counting towards any applicable Minimum Order Quantity obligations for the initial Ordering Window, and the terms of this Agreement shall supersede and replace any other terms of sale or terms of purchase under which such Prior Order was made to the extent of any conflict or inconsistency.

 

2.4 Price and Invoicing. Fitbit will sell the Products at the prices set forth on the Order Form unless otherwise agreed by the parties. Unless the requirement has been specifically waived by Fitbit, you must subsidize the price you charge to each End User for each Product, no less than 25% of the lowest price Product offered to your employees, members or participants (“Subsidy Amount”). Fitbit will invoice you monthly for, and you agree to pay, the Subsidy Amount for Products purchased via the Company Storefront (“Subsidy True-Up”), and you shall be responsible for any Indirect Taxes pursuant to Section 3.6 on such Subsidy True-Up.

 

2.5 No Commitment to Manufacture. Fitbit does not represent that it will continue to manufacture any particular Product (or volume of Products) indefinitely or even for any specific period. Fitbit specifically reserves the right to remove any Product from the market, and/or to cease manufacturing or supporting any Product.

 

  1. Your Obligations

3.1 Marketing. If any marketing obligations are identified on the Order Form,  you agree to carry them out in recognition of the discount provided to you for the Products. You also agree to promote and market the Products consistent with your standard marketing plans and strategies using the promotional materials supplied by Fitbit. All marketing and promotional materials developed by you for the Fitbit Products or Health Solutions Offering will be subject to initial approval by Fitbit; provided, however, that you shall continue to be responsible for such materials and the content contained therein. Approval by Fitbit of your marketing materials shall be deemed to apply to all repeat uses of such marketing or promotional material by you in the same manner as initially approved by Fitbit unless otherwise notified by Fitbit.

 

3.2 Representations. You 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 Health Solutions Offering which are in addition to or inconsistent with those set forth in the product 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 Products, and the Fitbit Health Solutions Offering in a positive and professional manner at all times.

 

3.3 Business Practices. You agree not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Fitbit or its Products and agree to comply with all applicable local laws and regulations (including, without limitation, all federal and state laws, privacy laws, employment laws and regulations, import and export compliance laws and regulations, and advertising and marketing regulations) in connection with your performance under this Agreement.

 

3.4 Insurance. You are solely responsible for maintaining such adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in your business.

 

3.5            Payment. If you have been approved for credit by Fitbit, payments shall be made in the currency identified on the Order Form within thirty (30) days of your receipt of the applicable invoice from Fitbit. If you have not been approved for credit by Fitbit, all orders must be pre-paid. Any late payments shall be subject to a service charge equal to 1% per month of the amount due or the maximum amount allowed by law, whichever is less.  You will be responsible for all reasonable expenses incurred by Fitbit in collecting such delinquent amounts. All payments are non-refundable unless expressly set forth herein. Fitbit reserves the right, in its sole discretion, to change your credit terms and/or require cash in advance payment for shipment should you fail to pay invoices in a timely manner. You shall not condition any payment to Fitbit upon Fitbit’s acceptance of any additional terms and conditions, and the parties agree that any such condition is void and you shall make payments in accordance to these terms. Non-payment by End Users shall not relieve you of your obligation to pay fees to Fitbit. If your account is thirty (30) days or more overdue, in addition to any of our other rights or remedies (including but not limited to any termination rights set forth herein), Fitbit reserves the right to suspend your access to the Fitbit Health Solutions Offering (and any related services) without liability until all amounts are paid in full.

 

3.6            Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this agreement.  All payments payable by you are exclusive of applicable taxes and duties, including, without limitation, value added taxes, excise taxes, sales and transaction taxes, and gross receipts taxes (“Indirect Taxes”). Client will provide such information to Fitbit as reasonably required to determine whether Fitbit is obligated to collect Indirect Taxes from Client.  Fitbit shall not collect, and Client shall not pay, any such Indirect Tax for which you furnish Fitbit a properly completed exemption certificate or a direct payment permit certificate or for which Fitbit may claim an available exemption from Indirect Tax.   All payments made by you to Fitbit under this agreement will be made free and clear of any withholding or deduction for taxes.  If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, you will pay such additional amounts as are necessary so that the net amount received by Fitbit is equal to the amount then due and payable under this agreement.  Fitbit will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this agreement. You shall be responsible for all Indirect Taxes, withholding taxes, withholdings, shipping expenses and levies arising from purchases under this Agreement, and for collecting and reporting applicable Indirect and withholding Taxes from End Users.

 

3.7            Your Program. If the Company Storefront is offered as part of your Client Program incorporating corporate wellness, population health, insurance or similar benefits, you acknowledge that have reviewed the best practices listed in the Wellness Community Pledge, available at https://www.fitbit.com/legal/wellness-community-pledge. You acknowledge that these best practices are meant to provide general guidance and that you are solely responsible for establishing and maintaining the compliance of your Client Program, including registering with local works councils or data protection authorities if applicable.

 

  1. Our Relationship with the End User

4.1 General. In order to use the Products and the Fitbit Consumer Service, all End Users must register their Products with us and agree to our Terms of Service and Privacy Policy. Even if an End User has purchased the Product directly from you, that End User will be a direct customer of ours with respect to his or her use of the Product and the Fitbit Consumer Service. Each End User must create his or her own online account for the Fitbit Consumer Service. You shall not (and shall not allow any third party to) create Fitbit accounts on behalf of any End User.

 

4.2 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 under this Agreement and not to you. Each End User must contact Fitbit directly in the event of any warranty issues.

 

4.3 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.

 

4.4 U.S. Clients: HIPAA. Unless otherwise specified in writing by Fitbit, Fitbit does not intend uses of the Fitbit Health Solutions Offering described herein to create obligations under the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”), and makes no representations that the Fitbit Health Solutions Offering satisfies HIPAA requirements. If Client is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Client will not use the Fitbit Health Solutions Offering for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Client has received prior written consent to such use from Fitbit and the parties have entered into a Business Associate Agreement.

 

  1. Term and Termination

5.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect, unless terminated earlier as provided for herein, through the end of the subscription term identified on the Order Form, and if no such period is specified, then this Agreement shall have an initial term of twelve (12) months (in each case, the “Initial Term”). Unless otherwise specified on the applicable Order Form, the Initial Term shall automatically renew for successive twelve (12) month periods (each a “Renewal Term”) unless either party provides written notice of cancellation at least thirty (30) days prior to expiration of the then-current term. Unless expressly waived by Fitbit, any Minimum Order Quantity requirement shall also apply to each Renewal Term. Fitbit reserves the right to modify the Product pricing and any Minimum Order Quantities specified on the Order Form for any Renewal Term.

 

5.2 Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) is in material breach of this Agreement which is incapable of remedy, or where it is capable of remedy fails to cure that material breach of this Agreement within thirty (30) days after written notice of such breach (b) suspends, or threatens to suspend payment of its debts or ceases or threatens to cease to carry on its business without a successor; or (c) without prejudice to (b), seeks protection under any insolvency, bankruptcy, receivership, trust deed, creditors arrangement, scheme of arrangement, judicial management or winding up application (or if any such proceeding is instituted against such party and not dismissed within sixty (60) days). In addition, either party may terminate this Agreement with thirty (30) days’ advance written notice if there is no active Order Form in place for a period of at least six (6) months.

 

5.3 Effect of Termination. Upon any expiration or termination of this Agreement, any access to a Company Storefront will cease and you shall destroy any and all Confidential Information in your possession at the time of expiration or termination. You shall have no right to market or distribute the Products and you must cease all use of the Fitbit Trademarks. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. The terminating party shall have no liability to the other party 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.

 

5.4 Termination Accounting. Any amounts payable to Fitbit hereunder shall survive termination or expiration of this Agreement and become immediately due and payable.

 

5.5 Survival.  4.2 (Warranty and Returns), 5 (Term and Termination), 6 (Confidential Information), 7.1 (Intellectual Property Ownership), 7.2 (Trademarks) (as necessary to complete any final activities), 8 (Disclaimer of Warranties), 9 (Limitation of Remedies and Damages), 10 (Indemnification), 11 (Independent Contractor), 12 (Corrupt Practices and Trade Compliance), 13 (Government End-Users) and 17 (General) shall survive any termination or expiration of this Agreement.

 

  1. Confidential Information.

6.1 Each party agrees that all information relating to the disclosing party’s (“Disclosing Party’s”) business, including, without limitation, product designs, product plans, training materials, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions and know-how it obtains (“Receiving Party”) 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 Products, 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. 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.

 

  1. Intellectual Property Ownership

7.1 Intellectual Property Ownership. 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 Products, the Fitbit Health Solutions Offering, Fitbit Trademarks and any related services, technology or documentation (including promotional materials). Any software in any Product or the Fitbit Health Solutions Offering is provided under license only. To the extent permitted by relevant law, Client shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or any software, or attempt to do so. Fitbit reserves all rights not specifically granted to Client hereunder.

 

7.2 Trademarks.

(a)             Fitbit Trademarks. Fitbit hereby grants Client a nonexclusive, nontransferable limited license to use Fitbit’s name, logo and the applicable Product trademarks and logos (“Fitbit Trademarks”) solely in its distribution, marketing and advertising of the Products and the Fitbit Health Solutions Offering in accordance with the terms of this Agreement.  Client’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 Client agrees to promptly comply with requests to provide samples of Client’s use of the Fitbit Trademarks at other times. Client will cease any problematic use within a reasonable period of being notified by Fitbit. Client 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 Fitbit Trademarks shall be vested in and inure to the benefit of Fitbit.  Client agrees that it will not register, or attempt to register, Fitbit Trademarks or any domain name that contains Fitbit Trademarks. Client 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.  Client acknowledges that its promotion of Fitbit and the Fitbit Health Solutions Offering in a professional and positive manner consistent with the materials provided by Fitbit, is essential to Fitbit’s goodwill in the Products, and agrees that its failure to do so shall be a material breach of this Agreement.

 

(b) Client Trademarks. You hereby grant Fitbit a nonexclusive, irrevocable, worldwide, royalty free limited license, during the Term, to use, copy, modify and display your name and the applicable trademarks provided by you (“Client Trademarks”) on the instance of the Company Storefront made available to you, solely in its distribution, marketing, sale and advertising of the Products to your End Users in accordance with the terms of this Agreement and to disclose you as a client in Fitbit’s marketing materials and on Fitbit’s customer lists and website. All use of Client Trademarks shall be subject to review by you and Fitbit will cease any problematic use within a reasonable period of being notified by you. All goodwill arising from the use of the Client Trademarks shall be vested in and inure to your benefit.

 

  1. Disclaimer of Warranties.

8.1 EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 4.2, THE PRODUCTS, THE FITBIT HEALTH SOLUTIONS OFFERING, AND ALL FITBIT SERVICES ARE PROVIDED TO YOU “AS IS”. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NONINFRINGEMENT, INCLUDING ANY WARRANTY THAT THE FITBIT HEALTH SOLUTIONS OFFERING, ANY COMPANY STOREFRONT OR ANY OTHER SOFTWARE OR ONLINE SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

 

  1. Limitation of Remedies and Damages.

9.1 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 CLIENT TO FITBIT DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. “EXCLUDED CLAIMS” MEANS (I) ANY CLAIM ARISING FROM CLIENT’S BREACH OF 7.2(a) (FITBIT TRADEMARKS), SECTION 6 (CONFIDENTIAL INFORMATION), AND (II) AMOUNTS AWARDED TO THIRD PARTIES OR AGREED IN SETTLEMENT IN CONNECTION WITH CLIENT’S INDEMNIFICATION OBLIGATIONS IN SECTION 10 (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.

 

  1. Indemnification.

10.1 Indemnification by Client. 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; or (b) any other act or omission by you in connection with the marketing or distribution of the Products under this Agreement or your Client Program. If Client refuses to indemnify Fitbit under this section 10.1 on the basis that it is prohibited by applicable law from doing so, Client agrees to provide Fitbit with, at Client’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 Client in an action to determine Client’s rights under this Agreement.

 

10.2 Process. Client’s indemnification obligations are contingent upon receipt from Fitbit of: (a) prompt notice of such claim; (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of Fitbit. Fitbit may participate in the defense and settlement of such claim with counsel at its own expense. Fitbit shall not settle or make any admissions with respect to a claim without the Client’s prior written consent. Client shall not settle any claim without Fitbit’s consent if such settlement involves an admission of liability on the part of Fitbit or requires Fitbit  to take or refrain from taking any action.

 

  1. Independent Contractor.

11.1 It is the express intention of the parties that each party is an independent contractor and not an employee, agent, joint venture or client of the other party. Nothing in this Agreement shall be read as creating the relationship of employer and employee between the parties. Neither party is entitled to participate in any benefits provided by the other party, including but not limited to its pension plans, bonus, stock or similar benefits that such other party makes available for its employees. Each party is responsible for all applicable taxes on remuneration received from the other party. This Agreement is non-exclusive and shall not in any way prohibit either party from entering into like arrangements with any other party.

 

  1. Corrupt Practices and Trade Compliance.

12.1 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. Client 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.

 

  1. U.S. Government End-Users.

13.1 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 by the terms of this Agreement 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.

 

 

  1. Changes to this Agreement.

14.1 From time to time, Fitbit may modify this Agreement. If Fitbit makes such changes effective upon the next renewal of the Term, you may elect not to renew the Term if you do not agree to such changes (but continued participation in the Fitbit Health Solutions Offering during the Renewal Term will constitute acceptance of the amended Agreement). If Fitbit makes such changes effective immediately or otherwise prior your next renewal, then you may either agree to such new terms or terminate the Agreement. Fitbit will use reasonable efforts to notify you of the changes through, email, by posting to the Agreement URL, or other means. Except as specified in this Section, any changes, modifications or amendments to this Agreement must be in writing signed by both parties.

 

  1. Force Majeure.

15.1 Fitbit shall not be liable for any effect on the performance by it of its obligations under this Agreement due to causes beyond its reasonable control, including, but not limited to, supplier delay, acts of God, labor unrest, fire, explosion or earthquake. In any such event, Fitbit shall not be in breach of this Agreement or otherwise liable for any failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. If the force majeure event prevents, hinders or delays Fitbit’s performance of its obligations for a continuous period of more than ninety (90) days, Fitbit may terminate this Agreement by giving thirty (30) days’ written notice to you.

 

  1. Governing Law.

16.1 U.S. City, County, and State Government Entities. If Client is a United States city, county or state government entity, the Agreement will be silent regarding governing law and venue.

 

16.2 U.S. Federal Government Entities. If Client is a U.S. federal government entity, the following applies: 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.

 

16.3 All Other Entities. If Client is an entity not set forth in Section 16.1 or 16.2 then the following applies:

 

(a) if the Client entity entering into this Agreement is organized in any country in North, Central, or South America (“The Americas”), all claims arising out of or relating to this Agreement or the services will be governed by California law, excluding that state’s conflict of laws rules, and will be litigated exclusively in the federal or state courts of San Francisco County, California; the parties consent to personal jurisdiction in those courts.

 

(b) If the Client entity entering into this Agreement is organized in any country within the Asia Pacific region (“APAC”) except as provided below for Clients in Australia or New Zealand (“ANZ”), this Agreement shall be governed by and construed in accordance with the laws of Singapore, 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 Singapore, 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. If the Client entity entering into this Agreement is organized in ANZ, this Agreement shall be governed by and construed in accordance with the laws of Australia, 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 Sydney, Australia, 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.

 

(c) If the Client 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.

 

(d) In any case under this Section 16.3, 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.

 

  1. General

17.1 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. 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 specified on the Order Form (as may be updated be either party upon written notice to the other). A copy of such notice from Client to Fitbit for termination shall also be sent to customer_success@fitbit.com. This Agreement, together with any Order Forms and Exhibits, 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.