“Account” means a unique, Client-specific account, which allows Client’s Administrators to access and administer Fitbit Care.

“Administrator” means Client’s personnel who will have rights (as appropriate to their roles) to establish, administer, configure, and manage Fitbit Care.

“Affiliate” means: (i) for Client, any entity that directly or indirectly controls, is controlled by, or is under common control with, Client, and (ii) for Fitbit, Google LLC or any entity that directly or indirectly controls or is controlled by Google LLC. For purposes of the foregoing, “control” means having more than 50% ownership of the entity or the right to direct the management of the entity.

“Anti-Bribery Laws” means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977.

“API(s)” means an application programming interface, including any and all related code, data, documentation, or other materials.

“Brand Features” means trade names, trademarks, logos, and other distinctive brand features of the applicable party (or a Fitbit Affiliate, as applicable where Fitbit sells Products & Services that include such Fitbit Affiliate’s distinctive brand features).

“Branding Guidelines” means Fitbit’s then-current guidelines for third party use of its Brand Features (available at https://www.fitbit.com/global/us/legal/trademark-policy), Google LLC’s then-current guidelines for third party use of its Brand Features (available at http://www.google.com/permissions/trademarks.html), and any URLs specified in an Ordering Document (as those URLs may be updated by Fitbit or Google) or as otherwise provided by Fitbit from time to time.

“Bulk Order” means an order placed by Client to purchase at least a certain threshold number and type of Devices from Fitbit as indicated on any Ordering Documents. Such threshold number and type of Devices to be determined by Fitbit.

“Client’s Program” means the program offered by Client to Participants that incorporates any Products & Services and/or Fitbit Care as described on any Ordering Documents.

“Confidential Information” means information that one party (or its Affiliate) discloses to the other party (or its Affiliate) under these Client Terms that is marked as confidential or would reasonably be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without reference to the disclosing party’s confidential information, or that was lawfully given to the recipient by a third party without confidentiality obligations. Any Reporting provided by Fitbit to Client in connection with Client’s Program shall be deemed Fitbit’s Confidential Information. 

“Contested Subject” means Fitbit Care and/or the Products & Services (in the case of Fitbit as the Indemnifying Party), any other components of Client’s Program (in the case of Client as the Indemnifying Party), or the Indemnifying Party’s Brand Features.

“Defect” or “Defective” means, with respect to a Device, a failure in materials and/or workmanship under normal use in accordance with Fitbit’s (or a Fitbit Affiliate’s, as applicable) published user documentation that materially impairs the functionality of that Device and the failure has been validated by Fitbit, a Fitbit Affiliate, or a Fitbit authorized service provider or representative.

“Delegates” means employees, Affiliates, agents, or professional advisors. 

“Delivery Location” means the place of delivery, which will be a Client business address in the continental United States, Canada, or as otherwise described in the Ordering Document.

“Devices” means the hardware and accessories made available for purchase by Fitbit under these Client Terms.

“End User” means an end user of the Products & Services provided under these Client Terms.

“End User Data” means the data that Fitbit or a Fitbit Affiliate receives as a result of an End User’s use of the Products & Services, which includes certain Personal Information.

“Environmental Waste, Battery Waste, and Packaging Waste Laws” means all applicable laws and regulations that regulate manufacturers’, producers’, stewards’ distributors’, and retailers’ waste responsibility (pertaining to electronic and electrical equipment waste, battery waste, and packaging waste).

“European Data Protection Law” means, as applicable: a) the GDPR; and/or b) the Federal Data Protection Act of 19 June 1992 (Switzerland).

“Feedback” means any comments, reports, criticisms, directions, or any other statements, whether written or oral, about Fitbit Care and/or the Products & Services.

“Fitbit” means the entity identified as such on any Ordering Documents or its successors and assigns.

“Fitbit Care” means the solutions provided by Fitbit to Client as described on any Ordering Documents.

“Force Majeure Event” means any event beyond a party’s reasonable control that makes a party partly or wholly unable to perform its obligations under these Client Terms (other than obligations to make payments when due), including natural disasters (for example, cyclones, hurricanes, storms, floods, lightning, fires, earthquakes), man-made disasters (for example, explosions, chemical contamination), war and civil unrest (for example, riots, terrorism, sabotage), government action (for example blockades, embargoes, other trade restrictions), epidemics and pandemics, transportation interruptions, strikes and other labor difficulties, or a third party’s inability to timely supply necessary services, materials, and/or parts.

“GDPR” means the General Data Protection Regulation (EU) 2016/679.

“Government Officials” means any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties.

“Indemnified Claim” means those claims in a Third-Party Legal Proceeding for which the Indemnified Party is to be indemnified pursuant to Section 16 (Indemnification).

“Indemnified Liabilities” means any (i) settlement amounts approved by the Indemnifying Party, and (ii) damages and costs in a final judgment awarded against the Indemnified Party by a competent court. 

“Indemnified Party” means the party or the party’s Affiliate that receives indemnification from an Indemnifying Party pursuant to Section 16 (Indemnification). 

“Indemnifying Party” means the party having indemnification obligations pursuant to Section 16 (Indemnification). 

“Initial Term” means the initial term set forth on any Ordering Documents.

“Intellectual Property Rights” means all copyright, moral rights, patent rights, trademarks, design rights, rights in or relating to databases, trade secrets, rights in relation to domain names, mask works, and any other intellectual property rights (registered or unregistered) throughout the world, including any applications for the same.

“Invoice Price” means the price for Fitbit Care and/or the Products & Services as set out on the applicable Ordering Documents.

“Liability” means any liability, whether under contract, tort, or otherwise, including indemnification obligations and for negligence.

“Materials” means any specifications, images, promotional material, and/or any other content relating to Fitbit Care and/or Products & Services provided by Fitbit to Client and/or End Users, as applicable.

“Modern Slavery” has the meaning given in Section 18.4 (Anti-Modern Slavery).

“Ordering Document(s)” means Fitbit’s order form, quote, order confirmation, purchase order or other similar document executed by Fitbit and Client describing Fitbit Care and/or the Products & Services to be provided and that references these Client Terms.  

“Participant” means any individual that is participating in Client’s Program.

“Personal Information” means any information relating to an identified or identifiable natural person, including names, contact information (including email addresses, postal addresses, and telephone numbers), government identification numbers, financial account numbers, payment card information, transaction information, credit report information, biometric information, IP addresses, network and hardware identifiers, geo-location information, and any other information classified as personal information under applicable Privacy Laws.

“Privacy Laws” means the GDPR, United States federal and state law, including the California Consumer Privacy Act, Canadian federal and provincial law, and any similar law governing the collection, use, and disclosure of personal data.

“Product Compliance Requirements” has the meaning given in Section 18.1 (Essential Requirements).

“Products & Services” means the products and services offered by Fitbit to Client and/or End Users from time to time, including the Devices, under these Client Terms. 

“Publication” means the publication, presentation, or public disclosure of any results or data arising from these Client Terms or Client’s use of Fitbit Care or the Products & Services.

“Renewal Term” means any additional period of time these Client Terms will be extended beyond the Initial Term as set forth on any Ordering Documents.

“Reporting” means any information made available from time to time by Fitbit to Client as part of Fitbit Care or otherwise relating to Participants’ use of Fitbit Care and/or the Products & Services, which may include certain End User Data.

“Storefront” means an e-commerce storefront (e.g., on the web or in app) through which Client’s Participants may order Products & Services.

“Subscription Term” means, collectively, the Initial Term and any Renewal Term(s).

“Taxes” means any applicable taxes and duties, including without limitation, value added taxes, excise taxes, sales taxes, gross receipts taxes, goods and services tax, or taxes similar in nature, and any other tax, duty, or import payable by Client at the rate and in the manner prescribed by law.

“Territory” means as specified in the applicable Ordering Documents. 

“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any civil, administrative, investigative, or appellate proceeding).

In these Client Terms, (i) “include” or “including” means “including but not limited to,” and (ii) examples are illustrative and not the sole examples of a particular concept.

Fitbit offers Clients Fitbit Care, which is designed to increase engagement and help improve the efficacy of Client’s Program. Any use of the Products & Services by Client’s Participants requires a Participant to create and maintain an online account, and thus become an End User. Like other End Users, each Participant’s use of any Products & Services shall be subject to and governed by a) either (i) Fitbit LLC’s Terms of Service and Privacy Policy, or (ii) Google LLC’s Terms of Service, Fitbit Additional Terms of Service, and Privacy Policy, as applicable, and b) any warranty provided by Fitbit or Google directly to Participants, each as updated from time to time. To the extent that a Participant has any issues with the Products & Services, a Participant may contact Fitbit’s or Google’s customer support team via such entity’s standard support channels.

Fitbit reserves the right to reject any order for Products & Services whether by Client or a Participant for any reason and does not represent that it will continue to offer any particular Products & Services, including any features or functionality contained therein, indefinitely or even for any specific period of time. Fitbit specifically reserves the right to no longer offer any Products & Services to End Users, in whole or in part, at any time. Fitbit reserves the right to provide Products & Services purchased under these Client Terms through one of Fitbit’s agents or a third party distributor.

4.1. Access and Use. Subject to Client’s compliance with these Client Terms and any Ordering Documents, Client may access and use Fitbit Care and Reporting set forth on any Ordering Documents throughout the Subscription Term in the Territory. Any such Fitbit Care and Reporting may only be used by Client in support of Client’s Program.

4.2. Account Setup & Administration.

4.3. EDI.

4.4. Client will submit POs for Bulk Orders at least 2 weeks in advance of the requested delivery date. If Fitbit does not accept a Bulk Order via email within five (5) business days of such Client email confirmation, the PO will be deemed rejected.

5.1. During the Subscription Term, Fitbit shall have the right to change the Invoice Price of Fitbit Care and/or Products & Services at any time upon 30-days’ written notice to Client (email shall be sufficient) unless otherwise specified in the applicable Ordering Documents.  

5.2. The Invoice Price is exclusive of any Taxes.  Where Fitbit is required to charge Taxes, the applicable amount will be added to the Invoice Price and the Invoice Price set out on the Ordering Documents will be deemed to be increased accordingly. If Client provides to Fitbit a valid exemption documentation, Fitbit will not collect the Taxes covered by that certificate. Fitbit shall make the determination as to whether an exemption documentation is valid or able to accept in good faith in its reasonable discretion.   

5.3. Unless otherwise agreed on an Ordering Document, Client will make full payment of the Invoice Price within thirty (30) days after the date of Fitbit’s invoice.  

5.4. Unless otherwise agreed by the parties in writing (email shall be sufficient), all payments due to Fitbit will be in the currency set forth on the applicable Ordering Documents without any deduction or set-off. Fitbit may, in its sole discretion, change the currency set forth on the applicable Ordering Documents or the currency otherwise agreed to by the parties in writing provided that Fitbit uses commercially reasonable efforts to notify Client 30 days before such changes take effect.

5.5. Any payments due to Fitbit that are not timely received will be subject to interest accrued at the lesser of: a) 1.5% per month, or b) the maximum amount permitted by law. Fitbit may reject any orders submitted by Client until Fitbit has received payment in full for any amounts that are overdue. In relation to payments disputed in good faith, interest under this clause is only payable after the dispute is resolved, on sums found or agreed to be due, from the original due date until payment.

5.6. All payments to Fitbit will be made by Client by way of electronic transfer to the account as notified to Client by Fitbit for that purpose.

5.7. Client will provide audited financial statements to Fitbit on Fitbit’s request to verify Client’s financial condition. Fitbit may require that Client obtain Products & Services on a cash-in-advance wire transfer basis at any time and without advance notice if Fitbit determines that Client’s financial condition warrants these payment arrangements. Fitbit may also require that Client deliver a letter of credit or other security to secure Client obligations under these Client Terms.

5.8. Client may use credit memos issued by Fitbit to Client in connection with an Ordering Document as remittance for amounts due to Fitbit for Product purchases under that Ordering Document (“Credit Memo“). Client may not deduct or offset against any invoices or payments without a Credit Memo. Upon termination of these Client Terms, any open Credit Memos will be applied to any balance owed by Client to Fitbit under these Client Terms and Fitbit will pay any remaining balance of the open Credit Memo to Client within 30 business days of termination.

6.1. Customer-Facing Packaging. Customer-Facing Packaging. Fitbit (or its Affiliates, as applicable) will determine all Products & Services branding at its sole discretion, including all packaging, in-box materials, creative materials, and software. All packaging and in-the-box material will be provided to Client by Fitbit. Client will not a) apply any branding to the Products & Services, or b) modify any packaging or in-the-box materials other than as agreed in writing by Fitbit.

6.2. Shipment and Importation.

7.1. Unless otherwise agreed to by the parties in an Ordering Document:

7.2. Delayed Delivery.

7.3. Delivery Inspection.

Where Client has chosen to order Devices via Bulk Order, during the Subscription Term and in the Territory, Fitbit hereby appoints Client as an authorized, non-exclusive distributor of the Devices to Participants and grants Client the non-exclusive, non-transferable, non-sublicensable right to market (subject to compliance with the Branding Guidelines) and distribute the Devices it has purchased via Bulk Order directly to Participants for their use without any right of redistribution, provided that such distribution must be as part of Client’s corporate or population health wellness program. Client will not transship, resell, or advertise for resale the Devices, online or otherwise, to any third party for resale by such third party (other than Participants) without express written authorization of Fitbit.

9.1. Each party represents and warrants to the other that it will use reasonable care and skill in complying with its obligations under these Client Terms.

9.2. Client further represents and warrants that:

9.3. Fitbit will not be liable for breach of any of the representations, warranties, covenants, or other terms in these Client Terms to the extent that the breach arises from:

9.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND CONDITIONS STATED IN THESE CLIENT TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY EXCLUDED.

10.1. A party may terminate the Subscription Term early, with immediate effect, if the other party is in material breach of these Client Terms or any Ordering Documents and, if that breach is remediable, fails to remedy that breach within thirty (30) days after receiving written notice of that breach.

10.2. Upon expiration or early termination of the Subscription Term for any reason:

10.3. Survival of Obligations.

Any rights and obligations that by their nature extend beyond the expiration or termination of the Subscription Term shall survive, including each party’s confidentiality obligations, indemnification obligations, and the limitation of liability.

11.1. Confidentiality Obligations.The recipient will not disclose the Confidential Information, except to Delegates who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential and the recipient will ensure that any Delegates keep it confidential.  The recipient will use (and will ensure that Delegates use) the Confidential Information only to exercise rights and fulfill obligations under these Client Terms.  The recipient may disclose Confidential Information when legally compelled by a court or other government authority.  To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue other legal action, as the discloser may deem appropriate.

11.2. No Rights. Except for the limited rights set forth in these Client Terms, neither party acquires any right, title, or interest in and to the other party’s Confidential Information.

11.3. No Publicity. Neither party may make any public statement (including press releases) regarding the parties relationship governed by these Client Terms without the other’s prior written approval, except that Fitbit may list Client in Fitbit’s sales presentations and in customer lists on Fitbit’s website.

11.4. Publications. Client shall submit to Fitbit a draft of any planned Publication at least thirty (30) days prior to the planned submission date so that Fitbit may review and provide comments; provided that Client shall not be required to modify or delete any such Publication other than to remove any content contained therein that Fitbit reasonably believes constitutes its Confidential Information, violates its Intellectual Property Rights, contains Personal Information or otherwise violates applicable Privacy Laws. Fitbit’s failure to provide comments at least thirty (30) days prior to the planned Publication does not constitute Fitbit’s approval of the Publication.

12.1. During the Subscription Term and for a period of 6 years after termination, except where such longer period is required by law, Client will keep its records relating to invoices, payments, credit memos, taxes, and proof of performance for activities related to these Client Terms. At any time during this period, Fitbit may request that Client provide verification of Client’s compliance with these Client Terms. Client will promptly review its records and deliver supporting documentation including a verification or compliance letter certifying its findings and signed by a senior financial officer. Fitbit acknowledges that Fitbit will act reasonably in the volume of requests under this Section. Client will allow Fitbit’s auditors to make such verification or certification requests.

12.2. If Fitbit’s record verification request shows outstanding amounts owed by Client, Client will pay to Fitbit those amounts together with all interest due thereon as calculated under these Client Terms.  Where any record verification process shows that the payments made by Client in respect of any month were less than 95% of the amounts due under the relevant invoices, then, in addition, Client will reimburse Fitbit for the reasonable costs of the record verification process.

12.3. Any information and documentation disclosed or made available to Fitbit by Client in response to Fitbit’s record verification request will be deemed Client’s Confidential Information.

13.1. Except to the extent expressly stated herein, neither party will acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party or to the other party’s licensors. Nothing in these Client Terms will be construed as granting to either party, by implication, estoppel, or otherwise, a license to either party’s technology except as expressly granted in these Client Terms.

13.2. Client will not copy or otherwise reproduce Fitbit Care or the Products & Services or any related materials, nor use any of Fitbit’s (or any Fitbit Affiliate’s) trademarks or intellectual property, except as expressly permitted herein or on any applicable Ordering Document, without Fitbit’s prior written consent.  Client receives no license under these Client Terms to make (or have made), reproduce, or create derivative works of Fitbit Care or the Product & Services, or any related materials, or any other product.

13.3. If Client provides any Feedback to Fitbit, then Client grants Fitbit a non-exclusive, perpetual, irrevocable, and royalty-free license to: a) use, reproduce, publicly display, and perform, create derivative works of, and distribute Feedback (and sublicense its rights to its Affiliates and third parties); and b) make (and have made), use, sell, offer to sell, and import Feedback or any product incorporating Feedback.

14.1. Fitbit grants to Client a non-exclusive, non-transferable, royalty-free, and non-sublicensable license during the Subscription Term to use Fitbit (and as applicable, Fitbit Affiliate) Brand Features and Materials solely in relation to Client’s Program in order to fulfill Client’s obligations and exercise Client’s rights in accordance with these Client Terms and subject to compliance with the Branding Guidelines.  Client agrees that its use of Fitbit (and Fitbit Affiliate) Brand Features is subject to the strict control and supervision of Fitbit. Unless otherwise stated in an Ordering Document, Client will obtain Fitbit’s prior written approval of any and all uses of its Brand Features prior to publication or use. All goodwill arising from the use by Client of Fitbit Brand Features will belong to Fitbit. Fitbit may revoke the license granted under this clause at any time on written notice.

14.2. Client grants to Fitbit a non-exclusive, non-transferable, royalty-free, and non-sublicensable (except to Fitbit’s Affiliates) license during the Subscription Term to use Client Brand Features to provide Fitbit Care and related materials and assets hereunder, subject to compliance with Client’s branding guidelines as notified to Fitbit.  All goodwill arising from the use by Fitbit or any of its Affiliates of Client Brand Features will belong to Client. Client may revoke the license granted under this clause at any time on reasonable written notice.

15.1. In addition to any specific insurance coverage requirements set forth in any Ordering Document, each party shall at all times during the Subscription Term maintain Commercial General Liability (CGL) insurance for bodily injury, death, products and completed operations, with coverage limits of not less than US$1,000,000 (or the equivalent in local currency) per occurrence and $2,000,000 (or the equivalent in local currency) in the aggregate, in addition to any insurance coverage that is required by law and/or as is the common practice in its business, which may include, health, workers’ compensation, unemployment compensation, disability, or liability. Each party may use a combination of primary and umbrella (excess) coverages to meet the US$2,000,000 (or the equivalent in local currency) aggregate limit requirement for CGL. Client’s CGL policy will name Fitbit and its respective Affiliates and their officers, directors, shareholders, employees, agents, and assignees as additional insureds, via either a specific or blanket endorsement. Each party’s policies will be considered primary without right of contribution from the other party’s insurance policies. The requirements here will not lower the coverage limits of either party’s policies, and will not limit either party’s obligations or liability under these Client Terms (including indemnities). Each party’s activities under these Client Terms will be at its own risk. Each party’s personnel will not be entitled to any benefits under the other party’s insurance policies.

15.2. Upon request, Client will promptly provide Fitbit with certificates of insurance or evidence of coverage reflecting that it is in compliance with the foregoing. Fitbit’s failure to request, review, or object to the terms of the Client’s certificates of insurance will not: a) waive any of either party’s obligations under these Client Terms, b) waive any of either party’s rights under these Client Term, or c) limit or diminish either party’s liability under these Client Terms.

16.1. Obligations. Subject to Sections 16.2 (Exclusions), 16.3 (Conditions), and 17 (Limitation of Liability):

16.2. Exclusions. The indemnification obligations set forth above in this Section will not apply to the extent the underlying claim arises from:

16.3. Conditions. If a breach of the following conditions prejudices the defense of the Third-Party Legal Proceeding, the Indemnifying Party’s obligations under this Section 16 will be reduced in proportion to the prejudice:

16.4. Remedies for IPR Infringement.

16.5. Sole Rights and Obligations for IPR Infringement. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF THIS SECTION STATE THE SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE OBLIGATION AND LIABILITY OF THE PARTIES TO EACH OTHER UNDER THESE CLIENT TERMS IN CONNECTION WITH THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

17.1. Limitations. Subject to the Exceptions to Limitations set forth below in this Section, and to the maximum extent permitted by law:

17.2. Exceptions to Limitations.  Nothing in these Client Terms excludes or limits Liability for::

18.1. Essential Requirements. “Product Compliance Requirements” means all applicable technical, radio, safety, health, labeling, marking, environmental, record keeping, and other compliance requirements required for importation, distribution, use, and sale of Devices into the Territory.  Fitbit will ensure that the Devices will meet all Product Compliance Requirements pursuant to any legislation or regulations, as amended, applicable to the Devices in each Territory.  For each Device, Fitbit will (directly or through a third party): a) perform all tests, submissions, registrations, and filings; b) obtain and maintain all certifications, type approvals, and other approvals; and c) prepare all in-box materials accompanying each Device unit (instructions manual, regulatory information, manufacturer warranty, etc.).

18.2. Environmental Laws. Client will, at its sole cost and expense, accept and at all times fully discharge and comply with all duties, obligations, and requirements applicable to stewards, distributors and/or retailers pursuant to Environmental Waste, Battery Waste, and Packaging Waste Laws.

18.3. Anti-Bribery/Foreign Corrupt Practices Act. The parties will comply with the Anti-Bribery Laws, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including Government Officials, to obtain or keep business or to secure any other improper commercial advantage. Neither party will make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. Client will comply with Fitbit’s due diligence process, including providing requested information. A party may terminate these Client Terms and/or any Ordering Document immediately, without any liability, upon written notice to the other party if such party believes, in good faith, that the other party has violated or caused the first party to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur.

18.4. Anti-Modern Slavery. In performing its obligations under these Client Terms, each party will: a) comply with applicable Modern Slavery laws and rules, where “Modern Slavery” includes human trafficking, servitude, forced or compulsory labor, and modern slavery; b) implement due diligence procedures for its own suppliers and subcontractors to ensure that there is no Modern Slavery in its supply chains; and c) supply information relating to these Client Terms and its supply chains as reasonably requested by the other party to show the steps a party has taken to ensure that there is no Modern Slavery in any part of its business or supply chains.

18.5. Export Control. Each party agrees to comply with all applicable export control and sanctions laws and regulations, including: a) the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and c) the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State.

18.6. Data Protection.

19.1. Client will only share with Fitbit that personally identifiable information about its Participants (“Client Provided Participant Data“) that is required by Fitbit in order to allow Fitbit to provide Fitbit Care and/or the Products & Services to Client and/or its Participants as contemplated by the Ordering Documents. In turn, Fitbit shall only use such Client Provided Participant Data to allow it to provide Fitbit Care and/or the Products & Services to Client and/or its Participants. Prior to sharing any Client Provided Participant Data with Fitbit, Client shall ensure that it has obtained any and all necessary consents to allow it to do so as required by applicable law and its privacy policies. Client shall also ensure that any such sharing is done in a secure manner.

19.2. If Fitbit becomes aware of any unauthorized access to, disclosure, loss or destruction of the Client Provided Participant Data by Fitbit, Fitbit shall promptly notify Client and the parties will mutually agree on reasonable steps to investigate and mitigate.

19.3. If European Data Protection Law applies to the processing of Client Provided Participant Data:

20.1. Fitbit Care. Fitbit receives data directly from Participants as a result of their use of the Products & Services, which includes certain Personal Information, which we refer to herein as End User Data. As part of offering Fitbit Care, Fitbit may provide Client certain access to End User Data via Reporting or otherwise. In order to allow it to do so, Fitbit will seek consent from each Participant and only share such End User Data with respect to a Participant upon receipt of the applicable Participant’s consent thereto.  For clarity, Fitbit will only share End User Data with respect to a Participant upon receipt of the applicable Participant’s consent thereto. Client represents and warrants that its use of any End User Data made available as part of Fitbit Care shall comply with the restrictions set out in Section 21 below. Client acknowledges that if a Participant does not provide consent or later withdraws consent, Fitbit will not share or will immediately cease sharing such applicable End User Data with Client. Furthermore, upon any notification from Fitbit that a Participant has withdrawn its consent, Client will promptly cease using and delete such Participant’s End User Data.  Client shall notify Fitbit immediately upon receiving any notice or communication from any third party which relates directly or indirectly to the use of the End User Data. If Client becomes aware that End User Data may have been accessed, collected, used, disclosed, or acquired contrary to the terms of these Client Terms, Client shall notify Fitbit by emailing external-incidents@google.com immediately. The notification must describe the nature of the issue, the status of its investigation, and the potential number of End Users affected.

20.2. APIs. Additionally, Client may seek to access End User Data through the APIs.  In order to do so, Client must apply for access to APIs via dev.fitbit.com as updated by Fitbit or a Fitbit Affiliate from time to time. Client’s use of the APIs and any End User Data received from the APIs is subject to and governed by the Fitbit Platform Terms of Service as updated by Fitbit or a Fitbit Affiliate from time to time, which are available at http://dev.fitbit.com/terms (“Platform Terms”). Any breach of the Platform Terms by Client shall be deemed a material breach of these Client Terms. 

21.1. only use it in connection with Client’s Program and in a manner consistent with Client’s Program documentation and privacy policies, which Client represents and warrants shall at all times be compliant with all applicable laws and regulations (including the applicable Privacy Laws);

21.2. limit access to, and use of End User Data to only those Administrators who need access to administer Client’s Program;

21.3. not sell the End User Data in any manner (whether or not individually identifiable) to any third party;

21.4. not seek to access any End User Data other than as expressly authorized under these Client Terms; and 

21.4. to the extent Client receives End User Data in an aggregated format, not attempt to re-identify or link any such data to a Participant.

22.1. Fitbit does not intend the use of any Products & Services made available under these Client Terms to create obligations for Fitbit under the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”), and makes no representations that the Products & Services satisfy HIPAA requirements. 

22.2. Client acknowledges and agrees that Fitbit is not a Business Associate or subcontractor of Client or any Client customer (as those terms are defined in HIPAA and that Client will not share with Fitbit any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.

22.3. If Client is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Client will not use the Products & Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Client enters into a separate Business Associate Agreement (as defined in HIPAA) with Fitbit.

23.1. Client will provide notice to CHW-Safety-Escalation@google.com within 48 hours for all complaints, safety issues or circumstances regarding ECG functionality or other FDA-regulated features which may give rise to the need of a recall, correction, or removal of any such functionality or features from the market, including defects, warnings, or recalls and communications from any government or regulatory agency. Fitbit may update the email address for Client to send such notices upon written notice (email sufficient).

24.1. EMEA. For any Client with a billing address in EMEA, then the additional terms found here shall apply.

24.2. APAC. For any Client with a billing address in APAC, then the additional terms found here shall apply.

25.1. Force Majeure. No party will be liable for delay or failure to fulfill its obligations under these Client Terms and/or any Ordering Documents due to a Force Majeure Event.

25.2. Notices. All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Fitbit is Attn: Legal Department, legal-notices@google.com. The address for notice to Client shall be as set forth on any Ordering Documents. All notices must be in English, in writing, and addressed to the other party’s primary contact.  Emails are written notices. Notice will be treated as given on receipt, as verified by written or automated receipt, or by electronic log (as applicable).

25.3. Assignment; Change of Control. Client acknowledges and agrees that Fitbit may assign these Client Terms to any Affiliate at any time without further notice to Client.  Other than as stated in the prior sentence, neither party may assign any part of these Client Terms and/or any Ordering Documents without the written consent of the other, except to an Affiliate where: a) the assignee has agreed in writing to be bound by the terms of these Client Terms; and b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. If Client experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) it will give written notice to Fitbit within thirty (30) days after the change of control and Fitbit may terminate these Client Terms and any applicable Ordering Documents immediately, without any liability,  by giving written notice.  

25.4. Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE CLIENT TERMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.  If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under these Client Terms.

25.5. Changes to Client Terms. The version of these Clients Terms in effect as of the date of the applicable Ordering Documents will govern the provision of Fitbit Care pursuant thereto. Fitbit shall at all times have the right to make changes to these Client Terms provided that such changes shall only apply to any Ordering Documents subsequently entered into by the parties. If Client enters into an Ordering Document after a change to these Client Terms, Client agrees that it has consented to all of the changes.

25.6. Miscellaneous. In the event Client subcontracts any of its obligations under these Client Terms, Client will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Client Terms or any Ordering Document. Nothing in these Client Terms or any Ordering Document will create any agency, partnership, or joint venture between the parties. Nothing in these Client Terms or any Ordering Document confers any benefits on any third party, except as expressly set forth in these Client Terms or any Ordering Document for an Affiliate of either party. The parties may execute any Ordering Documents in counterparts, including PDF, and other electronic copies, which taken together will constitute one instrument. The various clause headings of these Client Terms are inserted only for convenience. These Client Terms and any Ordering Documents set out all terms agreed to between Client and Fitbit (and Fitbit’s Affiliates) and supersedes all prior agreements, understandings, or arrangements between Client and Fitbit (and Fitbit’s Affiliates) relating to its subject matter (whether oral or in writing). If any term (or part of a term) of these Client Terms and/or any Ordering Documents is invalid, illegal, or unenforceable, the rest of these Client Terms and/or any Ordering Documents will remain in effect.

25.7. Local Language. Any local language translation (where applicable) exists for reference purposes only, and only the English version will be legally binding unless otherwise specified. If there is any inconsistency between the two versions, the English version shall control.