These terms set forth the additional terms and conditions under which Fitbit will purchase goods specified on an Ordering Document (“Goods”) from Vendor and supplement the Fitbit Vendor Terms and Conditions.
Vendor understands that time is of the essence with respect to any delivery dates set forth in the applicable Ordering Documents. Unless other shipping terms are specifically set forth in the Ordering Document, Vendor will deliver the goods DDP (the destination specified on the Ordering Document) Incoterms 2010. Title to the Goods will pass to Fitbit at the DDP delivery point. If other shipping terms are specifically set forth in the Ordering Document, Fitbit shall only be responsible for the shipping costs specifically identified in the Ordering Document. In the event Vendor fails to properly deliver the Goods as set forth herein or as specified in the applicable Ordering Document, Fitbit may, in its sole discretion, decline to accept any or all Goods covered by such Ordering Document and have no liability therefore.
Fitbit hereby reserves the right to reschedule or cancel any order for Goods under any Ordering Document. Unless otherwise specified in an Ordering Document, if Fitbit provides notice of such rescheduling or cancellation (email is sufficient) at least thirty (30) days in advance of the scheduled delivery of such Goods, then Fitbit shall have no liability for the Goods or for any expenses of Vendor relating thereto. If Fitbit provides notice of such rescheduling or cancellation (email is sufficient) less than thirty (30) days in advance of the scheduled delivery of such Goods, then Vendor will have an obligation to mitigate the costs associated with such rescheduling or cancellation. Any mitigation must be approved in advance by Fitbit and Fitbit shall be responsible for costs of the Goods less the proceeds from the mitigation.
Vendor will use commercially reasonable efforts to support any request by Fitbit to increase or decrease any quantities, change the delivery date, method of shipment or packing, place of delivery or make changes to the Goods themselves.
Unless otherwise specified in an Ordering Document, Fitbit shall have thirty (30) days after receipt of the applicable Goods to inspect them for conformity to the applicable Ordering Document and any other related specifications (collectively, the “Inspection Criteria”). Goods received by Fitbit shall not be deemed accepted unless until Fitbit has determined whether the Goods conform to the Inspection Criteria. Furthermore, payment of any invoice by Fitbit will not constitute acceptance of the related Goods. Any use of any of the Goods solely for the purpose of inspection shall not constitute acceptance of the Goods. If any Goods do not conform to the Inspection Criteria, Fitbit shall have the right to reject all Goods delivered pursuant to the applicable Ordering Document and cancel any orders or shipments not yet fulfilled; provided, always that Fitbit shall have no liability for the non-conforming Goods or for any expenses of Vendor relating thereto. With respect to any such non-conforming Goods, at Fitbit’s option, and in addition to any other remedies that may be available to Fitbit: (i) Vendor shall within ten (10) days correct any such non-conforming Goods by repair or replacement at Vendor’s expense; (ii) Vendor shall accept return of such non-conforming Goods at Vendor’s risk and expense and credit Fitbit’s account for the price thereof or provide Fitbit with a refund for the returned Goods; or (iii) if neither of those options are not deemed feasible as reasonably determined by Fitbit, Fitbit shall accept the non-conforming Goods subject to an appropriate reduction in price agreed to in writing by the parties.
In addition to the representations and warranties set forth in the Fitbit Vendor Terms and Conditions, Vendor represents and warrants that: (i) it has good and transferable title to the Goods, (ii) all Goods will be new (i.e. will not be used or refurbished, including, without limitation, any parts thereof) unless otherwise specifically set forth in an Ordering Document; and (iii) to the best of Vendor’s knowledge, all Goods will be free from any claim of infringement.
Vendor further represents and warrants that all Goods delivered shall for a period of: (x) fifteen (15) months from the date of delivery to Fitbit; or (y) for the period provided in Vendor's standard warranty covering the Goods, whichever is longer (the “Warranty Period”): (a) be free from defects, including, without limitation, in workmanship, material, design and manufacture and (b) comply with the requirements of the applicable Ordering Document(s) and any other related specifications; and (iii) unless otherwise specified in an Ordering Document, be safe for normal use, non-toxic, present no abnormal hazards to persons or their environment, and may be disposed of as normal refuse without special precautions.
If Fitbit believes that any of the Goods do not conform with the warranties set forth in this Agreement, Fitbit will promptly notify Vendor of such non-conformity. Unless otherwise specified in an Ordering Document, with respect to any Goods that are found not to conform to the warranties set forth in the Agreement, Vendor shall, at Fitbit's option, either repair or replace such Goods, or credit Fitbit for the price thereof or provide Fitbit with a refund for the returned Goods. Replacement and repaired Goods shall be warranted for the remainder of the Warranty Period.
In addition to Vendor’s indemnification obligations set forth in the Fitbit Vendor Terms and Conditions, Vendor will defend, indemnify and hold harmless Fitbit, its Affiliates and its and their officers, directors, employees and agents from and against any and all Third Party Actions and all related losses, liabilities, damages, expenses and costs arising from, or relating to, any alleged failure of the Goods to conform the warranties set forth in this Agreement.