These terms of sale (“Terms”) apply to all orders accepted by Fitbit, Inc. (“Fitbit”) for the sale of physical goods (“Products”), except in the case that you and Fitbit have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software Licence”, below. Terms such as “sell” and “purchase”, as used in these Terms, apply only to the extent the Products consist of items other than Software.
These Terms of Sale only apply to the sale of Products and do not apply to the services we offer for purchase. For terms related to your purchase of paid services from us, please see our Terms for Paid Services.
ORDERING FROM THE FITBIT STORE
By placing an order through the Fitbit Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any delivery and handling charges and applicable tax. Products purchased by you are for personal or gift use and not for commercial use.
Fitbit can withdraw Products from the Fitbit Store at any time and for any reason. Prices listed through the Fitbit Store are stated in U.S. dollars, and do not include any delivery and handling charges or applicable tax, which charges and tax will be communicated to you before you place an order and you are responsible for paying such charges and tax to Fitbit. You agree to indemnify and hold Fitbit harmless from and against any liabilities, interest, penalties or fees assessed against Fitbit arising from your failure to pay any such tax. All Product prices are subject to change at any time.
ACCEPTANCE AND FULFILMENT
All orders are subject to acceptance by Fitbit. After you place an order, you will receive an email from Fitbit confirming that Fitbit has received it. Acceptance of your order will occur upon your receipt of another email from Fitbit containing a dispatch confirmation, tracking number and carrier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a dispatch confirmation, tracking number and carrier information. Fitbit reserves the right not to accept your order for any or no reason. Fitbit reserves the right to restrict multiple quantities of a Product being dispatched to any one customer or postal address.
Purchases made through the Fitbit Store are intended for end users only and are not authorised for resale.
DISPATCH AND DELIVERY
Fitbit will pack the Products in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Products ordered, and will be charged delivery and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Fitbit’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Fitbit will make reasonable efforts to meet the scheduled shipment dates, but in no event will Fitbit be liable for any loss, damage or penalty resulting from any delay in shipment or delivery. Fitbit will pack the Products in accordance with its standard practices. You can choose the method of delivery and timing of delivery for Products ordered, and will be charged delivery and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Fitbit’s delivery of the Products to the carrier. You acknowledge that all scheduled delivery dates are estimates only. Fitbit will make reasonable efforts to meet the scheduled shipment dates, but in no event will Fitbit be liable for any loss, damage or penalty resulting from any delay in shipment or delivery.
If you are unsatisfied with any Product purchased from the Fitbit Store for any reason, you will have forty-five (45) days from the date of purchase to request a full refund. For full details on the return process, please see www.fitbit.com/returns.
LIMITED PRODUCT WARRANTY
Fitbit warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase, except that if you reside in the European Economic Area (EEA) and you purchased your Fitbit product in the EEA, the warranty period is two (2) years from the date of purchase. For full details on the Limited Product Warranty, please see www.fitbit.com/returns.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g. ensuring that your mobile device and/or operating system system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 45 day refund policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL FITBIT BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT FITBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. FITBIT AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL FITBIT’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO FITBIT BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Fitbit grants to you a non-exclusive, non-transferable licence to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Fitbit, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Fitbit reserves all rights and licences in and to the Software not expressly granted to you under this Agreement.
You agree that any dispute between you and Fitbit arising out of or relating to these Terms, or any other Fitbit products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
INFORMAL DISPUTE RESOLUTION
We want to address your concerns without needing a formal legal case. Before filing a claim against Fitbit, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Fitbit may bring a formal proceeding.
WE BOTH AGREE TO ARBITRATE
You and Fitbit agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Fitbit will pay all arbitration fees for claims of less than US$75,000. Fitbit will not seek its legal fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
Either you or Fitbit may assert claims, if they qualify, in a small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorised use or abuse of the Fitbit products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS
You may only resolve Disputes with Fitbit on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class (collective) action lawsuits, private general lawsuits through a solicitor, and consolidation with other arbitrations are not allowed under our agreement.
JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Fitbit agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Fitbit consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Fitbit Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by Fitbit hereunder, in whole or in part, by operation of law or otherwise, without Fitbit’s express prior written consent. Any attempt to do so, without Fitbit’s consent, will be null and of no effect. Fitbit may freely assign these Terms.
Fitbit will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by Fitbit to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between Fitbit and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorised representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorisation from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after posting, if made by US certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.