Last Update: 3 June 2015
IF THE PARTIES HAVE PREVIOUSLY EXECUTED A WRITTEN AGREEMENT (THE “MASTER AGREEMENT”) GOVERNING THE PURCHASE OF FITBIT PRODUCTS BY RESELLER, THEN THE TERMS AND CONDITIONS OF THE MASTER AGREEMENT SHALL BE CONTROLLING. OTHERWISE, FITBIT’S SALES ORDER CONFIRMATION PROVIDED TO SELLER (THE “ORDER CONFIRMATION”) AND THESE TERMS AND CONDITIONS OF SALE (COLLECTIVELY, THE “AGREEMENT”) SET FORTH THE TERMS AND CONDITIONS THAT APPLY TO ALL SALES OF PRODUCTS BY FITBIT TO RESELLER. As used herein, the term “Fitbit” shall mean the Fitbit legal entity indicated on the Order Confirmation and the term “Reseller” shall mean the purchaser of the Products, also as indicated on the Order Confirmation, and its Affiliates; provided that Reseller shall be liable for each such Affiliate’s compliance with this Agreement and any breach of this Agreement by any such Affiliate. In the event of any breach of this Agreement by any of Reseller’s Affiliates, Fitbit shall be entitled to terminate this Agreement for breach in accordance with the provisions hereof, and to pursue all remedies to which Fitbit is entitled as a result of such breach, as if Reseller was the party in breach. “Affiliates” shall mean with respect to a party hereto, any legal entity, whether existing now or in the future, that either directly or indirectly controls, is controlled by, or is under common control with such party.
IN THE EVENT THERE IS NO EXISTING MASTER AGREEMENT BETWEEN FITBIT AND RESELLER, THE SENDING OF THE ORDER CONFIRMATION CONSTITUTES A REJECTION OF ANY PRIOR OFFER MADE BY RESELLER WITH RESPECT TO THE PRODUCTS SPECIFIED ON THE ORDER CONFIRMATION, AND IS AN OFFER TO SELL SUCH PRODUCTS ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND NO OTHERS. The parties shall be bound by the provisions of this Agreement, unless Reseller objects thereto in writing prior to Fitbit sending the Order Confirmation or shipping the Products, and the terms and conditions set forth herein and in the Order Confirmation constitute the entire agreement of the parties with respect to the subject matter hereof and thereof and cancel and supersede all prior communications, understandings and agreements. No additional terms or amendments, including, without limitation, any additional or inconsistent terms or conditions contained in any purchase order or other document provided by Reseller are acceptable to Fitbit and NOTICE OF OBJECTION to any such additional terms or amendments is hereby given to Reseller.
The prices of the Products indicated on the Order Confirmation do not include any federal, state, municipal or other government, excise, use, occupational, value added, property or other taxes, fees, charges, or duties (“Taxes”). Reseller must pay all Taxes imposed on or with respect to its activities in connection with this Agreement, if any, and Fitbit will have no responsibility for the payments. If Fitbit is required to pay any such tax, fee or charge, whether at the time of sale or thereafter, Reseller shall reimburse Fitbit immediately upon demand. Reseller shall be solely responsible for setting the price charged to its customers for the Products.
Products may be designated for shipment to no more than the number of addresses specified in Fitbit’s bulk shipment guidelines. Reseller shall designate shipping addresses at the time of purchase. Shipping shall be as mutually agreed in writing by the parties and indicated on the Order Confirmation. If no terms are indicated on the Order Confirmation, shipment will be FOB Fitbit’s shipping point, with title and risk of loss passing to Reseller upon delivery of the Products to a common carrier. Reseller shall be responsible for all shipping costs as specified on the Order Confirmation, including, without limitation, any insurance or additional shipping expenses that may be incurred as a result of Reseller’s specific shipping instructions or requirements. In the absence of specific shipping instructions, Fitbit will ship by the method it determines in its sole discretion, and in its standard commercial packaging used in similar shipments. Fitbit reserves the right to make delivery in instalments. Delay in delivery of any instalment shall not relieve Reseller of its obligations to accept or pay for any deliveries of the other instalments. Upon Reseller’s receipt of any Products hereunder, Reseller shall (i) inspect the same and notify Fitbit in writing and in strict compliance with Fitbit’s then-current claims instructions, of any claims for shortages, defects, damages or any other issues with the Products; (ii) hold such Products until receipt of Fitbit’s written instructions concerning the return, destruction, or other action with respect to such Products; and (iii) promptly return, destroy, or take such other action as instructed by Fitbit, at Reseller’s sole expense. If Reseller does not notify Fitbit of any such claims within five (5) calendar days after the Products have been received by Reseller, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by Reseller. Reseller’s failure to inspect the Products shall not relieve Reseller of its obligations to pay all amounts due hereunder. Any delivery dates specified in the Order Confirmation are estimates only and do not represent a promise by Fitbit to deliver the Products on or by any certain date. In the event of any delay in delivery of or failure to deliver any Products caused by a force majeure event (as set forth below) or by Reseller, the date of delivery shall be extended by the period of time Fitbit is actually delayed or as mutually agreed. If, for reasons other than the foregoing, Fitbit should fail to deliver Products or otherwise breach this Agreement, Reseller’s sole remedy against Fitbit is an option to cancel the purchase order, through written notice to Fitbit.
Products may not be returned, for credit or otherwise, except with Fitbit’s express prior written permission, and then only in strict compliance with Fitbit’s then-current return authorisation instructions. Any returns may be subject to processing fees.
Subject to the terms and conditions of this Agreement, Reseller may resell the Products purchased hereunder solely to Customers in the Territory. “Customer” means any entity or person purchasing Product from Reseller for its own internal or personal use and not for reselling, distributing, or sub-licensing to others. “Territory” as used herein means either (i) the country in which the ship to destination specified on the Order Form is located or (ii) if the ship to destination specified on the Order Form is located in the EU/EFTA, the countries located in the EU/EFTA. Reseller shall not market, resell, or use Products other than as expressly permitted in this Agreement. In no event shall Reseller market or resell Products through online stores, or auction or resale websites. Reseller, at its sole expense, must obtain the government approvals (and demonstrate other compliance) that are necessary for Reseller to provide the Products or otherwise perform under this Agreement. Reseller may import and provide Products in or to the Territory only if allowed by, and in compliance with, all applicable laws and regulations of the Territory, as well as this Agreement.
EXCEPT FOR THE LESSER OF (I) FITBIT’S STANDARD LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS (CURRENTLY SET FORTH AT HTTP://WWW.FITBIT.COM/RETURNS), AND (II) THOSE WARRANTIES REQUIRED BY APPLICABLE LAWS (AND ONLY TO THE MINIMUM EXTENT REQUIRED), THE PRODUCTS AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS”. UNLESS REQUIRED BY APPLICABLE LAWS, NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, FITBIT EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Reseller shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Products or any associated services which are in addition to or inconsistent with those set forth in the product descriptions or promotional materials delivered by Fitbit to Reseller hereunder.
Reseller will defend, indemnify and hold harmless Fitbit, its Affiliates, and their officers, directors, employees, sublicensees, customers and agents from and against any claim, suit, action, allegation, charge, or investigation (collectively, “Action”), and all related losses, costs, liabilities, damages, and expenses, including legal fees and court costs, arising from or relating to arising from or relating to any breach or alleged breach of any provision of this Agreement. Fitbit shall have the right to participate in the defence of any such Action at its expense. In no event will Reseller settle any Action without Fitbit’s prior written consent. The parties agree that the indemnification obligations specified in this Section will survive any termination or expiration of this Agreement.
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 Reseller). Any software in any Product is provided under licence only. To the extent permitted by relevant law, Reseller 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 Reseller hereunder.
All use of Fitbit’s name and the applicable Product trademarks (collectively, “Trademarks”) shall be subject to the review and written approval of Fitbit and Reseller will cease any use within a reasonable period of being notified by Fitbit. Reseller 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. Reseller 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 Reseller has, to immediately effect transfer of such domain name to Fitbit without charge. Reseller acknowledges that any promotion of Fitbit and the Products must be in a professional and positive manner consistent with the materials provided by Fitbit and is subject to the review and written approval of Fitbit.
UNLESS APPLICABLE LAW REQUIRES OTHERWISE, FITBIT’S AGGREGATE LIABILITY TO RESELLER, ITS AFFILIATES AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE PRICE PAID TO FITBIT FOR THE PRODUCTS SUBJECT TO THE CLAIM. IN NO EVENT SHALL FITBIT BE LIABLE TO RESELLER, ITS AFFILIATES OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, REGARDLESS OF FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF FITBIT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. RESELLER ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE A FUNDAMENTAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF THIS PROVISION, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. 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.
Reseller will not disclose to anyone other than its lawyers, accountants, and other professional advisers under a duty of confidentiality except as required by law the following types of information: (a) any terms of sale, including without limitation any prices or discounts offered to Reseller or under a Purchase Order, (b) any Confidential Information regarding the Products provided to Reseller, including without limitation performance characteristics or specifications, and (c) any Confidential Information disclosed by Fitbit regarding its business or technology. “Confidential Information” means any information, technical data, or know-how disclosed by or on behalf of Fitbit and/or its Affiliates that (i) if communicated in writing, is clearly designated as “Confidential” in writing; (ii) if disclosed orally or visually, is designated as “Confidential” at the time of disclosure, or confirmed in writing as being “Confidential” within thirty (30) days after disclosure; or (iii) whether or not designated as confidential or proprietary, is disclosed under circumstances which would lead a reasonable person receiving such information to understand that such information is confidential or proprietary to Fitbit. This Section shall survive any termination or expiration of this Agreement.
Reseller 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, national, federal, state, regional and local laws and regulations (including, without limitation, data protection, privacy, hazardous waste, and all import and export compliance laws and regulations) in connection with its activities hereunder. Reseller acknowledges that the Products are subject to US export jurisdiction. Reseller shall comply with all applicable international and national laws and regulations, including without limitation the US Export Administration Regulations, the US Treasury Department’s Specially Designated Nationals restrictions, the US Commerce Department’s Table of Denial Orders, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by US and other governments. Reseller represents and warrants that (a) in connection with this Agreement, 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). Neither Reseller nor Fitbit will enter into any arrangement, written or oral, that purports to modify this Agreement and that is not signed or otherwise agreed to by Fitbit. Reseller will ensure that its Affiliates, customers, subcontractors, agents, representatives, and employees comply in full with the foregoing, and shall be directly responsible for any resulting violation.
Notices by Reseller shall be in writing and must be delivered by personal delivery, by registered mail, return receipt requested, or by recognised overnight express courier service, to 405 Howard Street, Suite 550, San Francisco, CA 94105 USA, Attn: General Counsel. Notices by Fitbit will be sent to Reseller’s address indicated on the Order Confirmation.
Fitbit and Reseller agree that Reseller is an independent contractor and that no partnership or joint venture shall be deemed to exist between them. This Agreement does not constitute authority for Reseller to act for Fitbit as its agent or make commitments for Fitbit. Reseller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide its own supplies and equipment.
This is not an exclusive agreement. Fitbit is free to advertise, offer, and provide Fitbit’s Products to any third party. Fitbit may appoint third parties (including those who may compete with Reseller) to sell or market Products to anyone. This Agreement does not guarantee that Reseller will make any sales of Products.
If any provision of this Agreement is held invalid or unenforceable to any extent or in any application, the remainder of the terms of this Agreement, or the application thereof to different persons or circumstances or in different jurisdictions, shall not be affected thereby.
This Agreement will be governed by and construed in accordance with the laws of the State of California as applied to agreements entered into and to be performed entirely within California between California residents, without giving effect to any conflict of laws principles that may require the application of the law of a different state. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or to their relationship.
If there is a dispute between the parties arising out of, or in connection with, this Agreement the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If the parties are unable to resolve the dispute within ten (10) days after the date the dispute arose, or within an extended period as may mutually be agreed upon during those first ten (10) days, then with respect to such dispute either party may commence litigation in the state or federal courts in San Francisco County, California. Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process. The parties irrevocably agree that final judgment or decision in any action, proceeding, or arbitration brought as set forth above will be conclusive and may be enforced in any other jurisdiction by suit on the judgment or decision (a certified copy of which will be conclusive evidence of such judgment or decision) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit or proceeding.
Notwithstanding the dispute resolution provisions set forth herein, either party may seek equitable relief in order to protect its confidential information or intellectual property at any time, provided it does so in the state or federal courts in San Francisco County, California (and only those courts). The parties hereby waive any bond or other security requirements for obtaining equitable relief. The confidentiality provisions of this Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended.
In any action to enforce this Agreement, whether via court or arbitration, the prevailing party shall be entitled to recover all costs and expenses and reasonable legal fees, in addition to any other relief to which it may be entitled.
If Reseller fails to perform or otherwise breaches this Agreement, Fitbit may immediately terminate this Agreement or any purchase order, and shall have all other remedies available to it by law, at equity and otherwise. Reseller acknowledges and agrees that the obligations of Reseller under this Agreement are of a unique, intellectual nature giving them particular value. Reseller’s breach of any of its obligations contained in this Agreement will result in irreparable and continuing damage to Fitbit for which there will be no adequate remedy at law and, in the event of such breach, Fitbit will be entitled to seek injunctive relief, or a decree of specific performance.
Any rights and obligations that by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
Neither party will be liable for any failure to perform, including, without limitation, failure to accept delivery of any Goods or accept performance of any Services, caused by circumstances beyond its reasonable control, including, without limitation, acts of God, acts of war, or government action, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.
No failure or delay of either party in exercising at any time any of its rights, powers or remedies under this Agreement, in exercising any election or option provided herein, or in requiring the performance by the other party of any of the provisions herein will in any way be construed to be a waiver of such provisions, and any waiver of any provision granted on one occasion shall not be deemed a waiver of such provision on other occasions.
Reseller may not assign or transfer this Agreement or its rights or obligations under it, whether by contract or by operation of law, without Fitbit’s prior written consent. Fitbit may transfer its rights and obligations under this Agreement without Reseller’s consent. Any prohibited assignment is void.
The English language version of this Agreement controls. If Reseller is in Canada, or if the ship to destination on the Order Confirmation is located in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written in English.
For two years after the date of the Order Confirmation Fitbit and its audit-related agents shall have access to, and Reseller shall maintain, any books, documents, records, or other materials related to this Agreement and the Order Confirmation. Reseller shall maintain a reasonable accounting system that enables Fitbit to accurately identify such materials, and shall maintain a system of internal controls to prevent the payment of bribes and provide reasonable assurance that financial statements and reporting are accurate.
If the ship to destination on the Order Confirmation is located in the EMEA region, the following terms shall apply:
EXCEPT FOR THE LESSER OF (I) FITBIT’S STANDARD LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS (CURRENTLY SET FORTH AT HTTP://WWW.FITBIT.COM/RETURNS), AND (II) THOSE WARRANTIES REQUIRED BY THE LAWS OF ENGLAND AND WALES (AND ONLY TO THE MINIMUM EXTENT REQUIRED), THE PRODUCTS AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS”. UNLESS REQUIRED BY THE LAWS OF ENGLAND AND WALES, NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS. TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAWS OF ENGLAND AND WALES, FITBIT EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process. The parties irrevocably agree that final judgment or decision in any action, proceeding, or arbitration brought as set forth above will be conclusive and may be enforced in any other jurisdiction by suit on the judgment or decision (a certified copy of which will be conclusive evidence of such judgment or decision) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit or proceeding.
If any provision of this Agreement is held invalid or unenforceable to any extent or in any application under the laws of England and Wales, such provision shall be excluded only to the extent of such invalidity or unenforceability; the remainder of the terms of this Agreement, or the application thereof to different persons or circumstances, shall not be affected thereby and shall remain in full force and effect; and, to the fullest extent permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provision.
If the ship to destination on the Order Confirmation is located in the APAC region, the following terms shall apply:
This Agreement will be governed by and construed in accordance with the laws of Singapore, without giving effect to any conflict of laws principles that may require the application of the law of a different state. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or to their relationship. If there is a dispute between the parties arising out of, or in connection with, this Agreement the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If the parties are unable to resolve the dispute within ten (10) days after the date the dispute arose, or within an extended period as may mutually be agreed upon during those first ten (10) days, with respect to such dispute either party may commence binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more independent 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 of this Agreement by the other party. The place of any such arbitration shall be Singapore, and the language of the proceedings shall be the English language. The results of the arbitrator’s decision shall be set forth in writing in English detailing the reasons for the decision.
Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process. The parties irrevocably agree that final judgment or decision in any action, proceeding, or arbitration brought as set forth above will be conclusive and may be enforced in any other jurisdiction by suit on the judgment or decision (a certified copy of which will be conclusive evidence of such judgment or decision) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit or proceeding.
EXCEPT FOR THE LESSER OF (I) FITBIT’S STANDARD LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS (CURRENTLY SET FORTH AT HTTP://WWW.FITBIT.COM/RETURNS), AND (II) THOSE WARRANTIES REQUIRED BY THE LAWS OF SINGAPORE (AND ONLY TO THE MINIMUM EXTENT REQUIRED), THE PRODUCTS AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS”. UNLESS REQUIRED BY THE LAWS OF SINGAPORE, NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS. TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAWS OF SINGAPORE, FITBIT EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
If any provision of this Agreement is held invalid or unenforceable to any extent or in any application under the laws of Singapore, such provision shall be excluded only to the extent of such invalidity or unenforceability; the remainder of the terms of this Agreement, or the application thereof to different persons or circumstances, shall not be affected thereby and shall remain in full force and effect; and, to the fullest extent permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provision.