VERSION EFFECTIVE DATE: JANUARY 11, 2017
Thank you for integrating Fitbit into your corporate wellness or population health program.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR EXECUTING A KEY TERMS SCHEDULE, ORDER FORM OR OTHER ORDER DOCUMENT REFERENCING THIS AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN FITBIT’S GROUP HEALTH OFFERING. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
These Corporate Wellness Direct Client Terms of Service (“Agreement”) are entered into by and between the entity or person executing a Key Terms Schedule or otherwise participating in Fitbit’s Group Health Offering (“Client”, “you” or “your”) and Fitbit. "Fitbit" means the Fitbit corporate entity or Affiliate identified on the Key Terms Schedule or Order Form referencing this Agreement. This Agreement is effective as of the effective date of the first Key Terms Schedule or Order Form (“Effective Date”). This Agreement includes any Key Terms Schedules, Order Forms, Program Materials and any attached Exhibits.
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 (please note that the below may include sections that do not apply to your particular package or offering):
2. Right to Distribute Products, Ordering Methods, 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
18. Online Program Management Dashboard, Data Privacy and End User Authorization (if applicable)
19. Select Services Schedule
20.1 European Union
20.5 New Zealand
The parties agree as follows:
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“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.
“Distributor” means an authorized third-party reseller from which Client may purchase Fitbit Products (if applicable in your region).
“End User” means an employee, member or participant of Client who is the user of a Product made available through this Agreement or who accesses the Fitbit Group Health Platform.
“End User Data” means the data of or related to End Users who access the Fitbit Group Health Platform, to the extent that Fitbit handles such data pursuant to providing the services under this Agreement and such data is processed, stored or presented within the Fitbit Group Health Platform. For clarity, End User Data does not include data collected, processed, stored, or presented pursuant to providing the Online Fitbit Service to customers.
“Fitbit Group Health Offering” means the services offered by Fitbit to clients who wish to make Products available to their End Users as part of their corporate wellness or population health programs, and/or wish to be provided with access to the Program Management Dashboard.
“Fitbit Group Health Platform” means the user-facing software dashboard provided for Client’s End Users to track activity and take part in challenges.
“Key Terms Schedule” means the applicable key terms schedule executed by Fitbit and Client which references this Agreement and which sets forth Client’s participation level and other key terms governing the Fitbit Group Health Offering.
“Online Fitbit 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 Fitbit’s standard order form executed by Fitbit and Client for the purchase of Products or services or such other online provisioning document provided by Fitbit and agreed to by the parties which references a written agreement between the parties.
“Privacy Laws" means, to the extent applicable, all laws and regulations relating to the processing of personal data and privacy applicable in the Territory or any territory where you otherwise deal with End User Data (and including, where applicable, the guidance notes and codes of practice issued by any relevant supervisory authority).
“Products” means the Fitbit products listed on the Key Terms Schedule.
“Program Management Dashboard” means the online administrative dashboard made available by Fitbit for Client to manage the use of the Fitbit Group Health Platform.
“Program Materials” means Fitbit’s written and online program materials containing guidelines, requirements, restrictions and other details about participation in the Fitbit Group Health Offering.
“Subscription Term” means the set term designated on the Key Terms Schedule during which Client will receive the benefits of the Fitbit Group Health Offering.
“Territory” means the geographic or market territory specified in the Key Terms Schedule.
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.
This Section applies if you elect to order Products using any of the following order methods: (i) Bulk Order, or (ii) to make Products available to End Users using a Company Storefront.
2.1 Right to Distribute. Subject to all of the terms and conditions of this Agreement, during the Subscription Term and in the Territory, Fitbit hereby appoints you as an authorized, non-exclusive distributor of the Products and grants you the non-exclusive, non-transferable, non-sublicensable right to market, resell and distribute the Products directly to End Users for their use without any right of redistribution, provided that such distribution must be as part of your corporate or population health wellness program. Each of Client’s Affiliates may from time to time purchase Products under this Agreement as if it is the “Client” hereunder. This Agreement will apply to all purchases of the Products by the Client and/or its Affiliates from Fitbit and/or its Affiliates. Client 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 Client Affiliate, 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 Client was the party in breach.
2.2 Minimum Order Quantity and Ordering Window. To be eligible to order any Products under this Agreement, you agree to purchase the Minimum Order Quantity during each Ordering Window (each as defined on the Key Terms Schedule). In addition to orders made by you, purchases of Products by End Users through the Company Storefront shall count towards the Minimum Order Quantity. 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.
2.3 Ordering Methods. Subject to the limitations in the Territory and this Section, the following ordering methods are available to you at your request: “Bulk Orders” (via Order Form or Order Link) and Company Storefront ordering.
(a) Bulk Orders.
(i) Via Fitbit Order Form. To place bulk orders for Products under this Agreement, you shall deliver an Order Form to Fitbit. No order shall be binding until accepted in writing by Fitbit. Any additional or different terms provided on any Client purchase order accompanying the Order Form shall have no force or effect. Bulk order quantities are subject to Fitbit’s then-current order process and the terms set forth in the Key Terms Schedule.
(ii) Via Order Link. At your request, we may provide a custom URL (“Order Link”) for the purpose of placing bulk orders via an online ordering cart. Order Link purchase availability is subject to Product stock limitations.
(iii) Via Distributor. If Bulk Orders via Fitbit are unavailable in the Territory, subject to Fitbit’s approval qualifying Bulk Order purchases of Products through Distributor during the Term of this Agreement shall apply towards the Minimum Order Quantity set forth in this Agreement. Any Bulk Order purchase of Products through Distributor is subject to Distributor’s payment and shipping terms.
(iv) 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.
(a) Price to Client. For all direct orders from you to Fitbit, Fitbit shall sell the Products to you at the prices set forth on the Key Terms Schedule unless otherwise specified in an Order Form.
(b) Price to End Users and Subsidy Requirement. You shall be solely responsible for setting the price you charge to End Users for Products. Notwithstanding the foregoing, as a condition to the rights granted in Section 2.1, you must subsidize the price you charge to each End User for such Product. The subsidy you provide shall be no less than 25% of the lowest priced Product offered to your employees, members or participants (“Subsidy Amount”). The Subsidy Amount shall be applied to all Products offered regardless of order method.
(c) Company Storefront Subsidy True-Up. Fitbit shall invoice you monthly for, and you agree to pay, the Subsidy Amount for Products purchased via the Company Storefront (“Subsidy True-Up”).
2.5 Delivery. Bulk Orders for Products will be marked for shipment to up to one (1) address per order. You shall designate the shipping address in the Order Form. Unless otherwise set forth in the Order Form, shipment will be FOB Fitbit’s shipping point, with you responsible for all shipping costs, including any insurance or additional shipping expenses that may be incurred as a result of your specific instructions.
2.6 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, upon at least twenty (20) days prior notice to you (unless the circumstances require shorter or no notice) to remove any Product from the market, and/or to cease manufacturing or supporting any Product.
2.7 Program Materials. Fitbit may, from time to time, supply you with certain Program Materials. Continued eligibility to resell and distribute Products shall be subject to you meeting the requirements set forth in the Program Materials.
3.1 Marketing. You shall 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 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. In marketing the Products to End Users, you shall disclose that Product pricing reflects a subsidy provided by you; you shall not imply that the subsidized price reflects a discount from 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’s services 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 and its Products in a positive and professional manner at all times.
3.3 Technical Proficiency. In addition to technical information related to the Products and included in the Program Materials, Fitbit may, from time to time, provide its resellers and other clients with access to webinars or in-person informational sessions designed to provide sales and technical training. You will be responsible for utilizing such training and materials in order to ensure that its staff has a reasonable level of technical proficiency with respect to the Products.
3.4 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, the 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.
3.5 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. Upon request, you shall provide Fitbit with certificates of insurance or evidence of coverage before commencing performance under this Agreement.
3.6 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. Non-payment by End Users shall not relieve you of your obligation to pay fees to Fitbit. You shall be responsible for all taxes (including value added tax), withholdings, duties, shipping expenses and levies arising from your purchases under this Agreement (excluding taxes based on the net income of Fitbit).
3.7 Your Wellness Program. You have reviewed the best practices listed in the Wellness Community Pledge, available at https://healthsolutions.fitbit.com/wellnesspledge/. 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 wellness or population health program, including registering with local works councils or data protection authorities if applicable.
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; provided, however, that Fitbit may agree to implement a bulk RMA (Return Merchandise Authorization) process under special circumstances. If Fitbit determines, in its sole discretion, that a refund is necessary to satisfy a warranty claim, upon return of the defective Product: (a) for Company Storefront orders, Fitbit shall refund the purchase price paid by the End User directly to the End User and the Subsidy True-Up paid by Client directly to Client; and (b) for all other orders, Fitbit shall refund the purchase price paid by you directly to you and you shall be responsible for refunding the End User. For refunds issued by you, you shall issue any such refund within thirty (30) days of receipt of such amounts from Fitbit. Notwithstanding the foregoing, Fitbit may issue any refund directly to the applicable End User (and in such case you will remit to such End User the difference between the amount refunded by Fitbit and any amounts previously received from such purchase by you, if applicable). In no event will Fitbit be liable for refunds exceeding the purchase price of the defective Product paid to Fitbit. For orders placed via Distributor, Distributor’s return policies will apply.
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. Your program administrator may escalate issues affecting multiple End Users directly to Fitbit by email via the contact information on the Key Terms Schedule, and Fitbit will use reasonable efforts to promptly respond to such requests.
4.4 U.S. Clients: HIPAA. Unless otherwise specified in writing by Fitbit, Fitbit does not intend uses of the Fitbit Group Health Offering to create obligations under the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”), and makes no representations that the Fitbit Group Health 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 Group Health 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.
5.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated as provided for herein. Unless otherwise specified on the applicable Key Terms Schedule, each Subscription Term shall automatically renew for successive twelve (12) month periods unless either party provides written notice of cancellation at least thirty (30) days prior to expiration of the then-current Subscription Term. Fitbit reserves the right to increase the Subscription Fee (if applicable), Product pricing and Minimum Order Quantities specified on the Key Terms Schedule for any renewal Subscription Term.
5.2 Termination. Either party may terminate this Agreement (including all related Order Forms and the Key Terms Schedule) 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). You acknowledge and agree that if you are in material breach of this Agreement, Fitbit has no obligation to fulfill any outstanding orders until such breach has been cured. In addition, either party may terminate this Agreement with thirty (30) days’ advance written notice if there is no active Key Terms Schedule in place for a period of at least six (6) months.
5.3 Effect of Termination. Upon any expiration or termination of this Agreement, you shall cease to be an authorized reseller and have no right to market or distribute the Products. Any access to a Company Storefront, online Program Management Dashboard (if applicable) or Order Link will cease and you shall destroy any and all Confidential Information and End User Data in your possession at the time of expiration or termination. 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. All amounts payable to Fitbit hereunder shall survive termination or expiration of this Agreement and become immediately due and payable. Within ten (10) days following termination, you shall furnish Fitbit with an inventory of unsold Products and Fitbit shall have the right to repurchase any unsold Product. Within ten (10) days after receipt of such inventory, Fitbit shall notify Client in writing whether or not Fitbit intends to repurchase from Client all or part of such inventory at the original invoice price (less any discount or other credit previously granted). Fitbit shall pay all transportation and other costs associated with shipping the Products to Fitbit.
5.5 Survival. Sections 3.6 (Payment) (with respect to any amounts outstanding), 18.6 (Use of End User Data; Restrictions), 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.
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.
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, Program Management Dashboard, Fitbit Trademarks and any related services, technology or documentation (including promotional materials). Any software in any Product 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 attempt to do so. Fitbit reserves all rights not specifically granted to Client hereunder.
(a) Fitbit Trademarks. Fitbit hereby grants Client a nonexclusive, nontransferable limited license to use Fitbit’s name and the applicable Product trademarks (“Fitbit Trademarks”) solely in its distribution, marketing and advertising of the Products 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 the review and approval of Fitbit and 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, any domain name containing the word “Fitbit” or any product name of a Fitbit product, and if Client has, to immediately effect transfer of such domain name to Fitbit without charge. Client acknowledges that its promotion of Fitbit and the Products 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 Program Management Dashboard made available to you and the Company Storefront, as applicable, 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.
8.1 EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 4.2, THE PRODUCTS, THE PROGRAM MANAGEMENT DASHBOARD (IF APPLICABLE) 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 ANY COMPANY STOREFRONT, ORDER LINK, THE PROGRAM MANAGEMENT DASHBOARD, 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.
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 SECTION 2.1 (RIGHT TO DISTRIBUTE), 18.6 (USE OF END USER DATA; RESTRICTIONS), 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.
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; (b) any other act or omission by you in connection with the marketing or distribution of the Products under this Agreement or your corporate wellness/population health program; or (c) your use of End User Data.
10.2 Indemnification by Fitbit. Fitbit will defend, indemnify and hold harmless Client from and against any loss, cost, liability or damage, including attorneys’ fees, for which Client becomes liable arising from or relating to any third party claim asserted against Client by a third party that Client’s distribution of the Products or use of the Program Management Dashboard (if applicable) in accordance with this Agreement infringes the U.S. registered patent, U.S. copyright or U.S trademark rights of such third party. If Client’s distribution of a Product and/or use of the Program Management Dashboard is (or in Fitbit’s opinion is likely to be) enjoined or if Fitbit determines such actions are reasonably necessary to avoid material liability, Fitbit may, in its sole discretion: (a) substitute functionally similar products or services; (b) procure for Client the right to continue distributing such Product and/or use of the Program Management Dashboard, as appropriate; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Client the unused portion of any fees prepaid by Client for the remainder of the Term.
10.3 Process. Each party’s indemnification obligations are contingent upon receipt from the indemnified party of: (a) prompt notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of the indemnified party. The indemnified party may participate in the defense and settlement of such claim with counsel at its own expense. The indemnified party shall not settle or make any admissions with respect to a claim without the indemnifying party’s prior written consent. The indemnifying party shall not settle any claim without the indemnified party’s consent if such settlement involves an admission of liability on the part of the indemnified party or requires the indemnified party to take or refrain from taking any action (except for settlements by Fitbit with respect to the distribution of the Products or the use or non-use of the Program Management Dashboard (if applicable)).
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.
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.
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.
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 Group Health 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 and receive a pro-rata refund of your Subscription Fee (if applicable) for the terminated period. Fitbit will use reasonable efforts to notify you of the changes through communications via the Program Management Dashboard, 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.
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 90 days, Fitbit may terminate this Agreement by giving 30 days’ written notice to you.
16.1 For U.S. City, County, and State Government Entities. If Client is a United States city, county or state government entity, then the Agreement will be silent regarding governing law and venue.
16.2 For U.S. Federal Government Entities. If Client is a U.S. federal government entity then 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 For 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.
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 signature page to this Agreement (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 email@example.com. This Agreement, together with any Key Terms Schedules, Order Forms, Program Materials 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.
Terms Applicable to Starter and Select Software Offerings
This Section applies only if the relevant order form or Key Terms Schedule indicates that (i) you have selected a “Starter” or “Select” level of the Fitbit Group Health Offering and will therefore receive access to the Program Management Dashboard.
18.1 Access to Program Management Dashboard. You may access and use the Program Management Dashboard solely for your own benefit and in accordance with the terms and conditions of this Agreement during the Subscription Term. You warrant and represent that you shall only use the Program Management Dashboard in accordance with all applicable laws and regulations (including the Privacy Laws and all employment laws and regulations).
18.2 Payment of Subscription Fees. You agree to pay the subscription fees in relation to the Program Management Dashboard (“Subscription Fee”, in accordance with the terms of Section 3.6 (Payment). Within seven (7) days of receipt of payment of the initial Subscription Fee, Fitbit will provide you with access to the Program Management Dashboard.
18.4 Available End User Data. Upon your request, Fitbit will seek consent from all of your End Users to share End User Data with you and other End Users (“End User Authorization”), using the process described in Section 18.5 (End User Authorization) below. Fitbit will only share End User Data with you if provided with End User Authorization for the particular End User. With respect to End User Data viewable from the Program Management Dashboard, you will have the option between two types of End User Data (as selected on the Key Terms Schedule): (a) aggregate group data (“Aggregate Data”), or (b) a combination of Aggregate Data and user-specific data (“Aggregate/Individual Data”).
18.5 End User Authorization.
(a) Obtaining End User Authorization. When an End User creates a Fitbit account (or logs into its existing Fitbit account) on the Fitbit website or application to register any Product acquired under this Agreement, Fitbit will present such End User with the opportunity to provide End User Authorization using its then-current End User authorization method. Fitbit reserves the right to modify the End User Authorization method in its sole discretion.
(b) Lack of Consent. If an End User does not provide or later withdraws End User Authorization, Fitbit will not share or will immediately cease sharing such applicable End User Data with Client. Furthermore, upon any notification from Fitbit that an End User has withdrawn End User Authorization, Client will immediately cease using such End User’s End User Data and/or destroy that End User Data as Fitbit directs.
18.6 Use of End User Data; Restrictions.
You agree that the following terms apply with respect to your use of End User Data:
(a) You may only use such End User Data in connection with your corporate wellness or population health program and in a manner consistent with your related documentation and privacy policies, which you agree shall at all times be compliant with all applicable laws and regulations (including the Privacy Laws),
(b) you shall use the End User Data in compliance with all applicable laws and regulations (including the Privacy Laws and employment laws and regulations),
(c) you are solely responsible for ascertaining the adequacy and legality of the documentation and privacy policies presented to End Users to ensure that End User Data may be used for your intended purposes,
(e) you shall in no respect whatsoever cause Fitbit to be in breach of any of its obligations under the Privacy Laws with respect to your use of End User Data,
(f) you shall not share, disclose, or resell the End User Data in any form (whether or not individually identifiable) to any third party,
(g) you shall not seek to access any End User Data other than as expressly authorized under this Agreement,
(h) you shall maintain appropriate technical and organizational measures to protect End User Data downloaded or exported from the Program Management Dashboard against unauthorized or unlawful processing of the End User Data and against accidental loss or destruction of, or damage to, the End User Data,
(i) to the extent you select the provision of Aggregate Data, you shall not re-identify the Aggregate Data or make an attempt to link any such data to any End User.
18.7 Government Inquiries. You shall notify Fitbit immediately upon receiving any notice or communication from any supervisory or government body which relates directly or indirectly to the use of the End User Data.
18.8 Unauthorized Disclosure; Notification. If you have reason to believe that End User Data may have been accessed, collected, used, disclosed, or acquired contrary to the terms of this Agreement, You must notify Fitbit by emailing firstname.lastname@example.org as soon as possible after you become aware of it. The notification will describe the nature of the breach or attempted breach, the status of your investigation, and the potential number of persons affected.
18.9 Suspension. 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), we reserve the right to suspend your access to the Program Management Dashboard (and any related services) without liability until all amounts are paid in full.
This Section applies only if the relevant order form or Key Terms Schedule indicates that you are enrolled in the Fitbit Group Health Offering as a “Select” level participant.
The following Customer Success Services will be included with Client’s Select Package:
19.1 One Dedicated Customer Success Manager (“CSM”)
Client’s CSM will:
19.2 Training Materials. Fitbit will provide Client access to online Fitbit online tutorial materials and recordings
19.3 Support. End Users will have access to a customer support phone number specific to Fitbit Group Health Offerings for any product-related questions or requests.
19.4 Additional Select Services:
The following is a list of items included in the Select Package:
20.1 European Union. For any Client with a billing address in a European Union, the following terms shall apply instead of the definition of “Privacy Laws” and section 18.3 above:
“Privacy Laws" means, to the extent applicable, the Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC) (as implemented in the Territory), and all other applicable laws and regulations relating to the processing of personal data and privacy applicable in the Territory or any territory where you otherwise deal with End User Data (and including, where applicable, the guidance notes and codes of practice issued by any relevant supervisory authority).
20.2 France. For any Client with a billing address in France, the following terms shall apply instead of Section 3.6, above:
3.6 Payment. If you have been approved for credit by Fitbit, payments shall be made in the currency identified in the Order Form within thirty (30) days of your receipt of the applicable invoice from Fitbit. For the Program Management Dashboard, Fitbit will invoice upon granting access to Client. For purchases of Products, Fitbit will invoice upon shipment. If you have not been approved for credit by Fitbit, all orders must be pre-paid. If you do not make payment on or before the date on which it is due, interest shall be payable on the overdue amount at (i) two (2)% per annum above the Bank of England base rate from time to time, or (ii) the minimum rate permitted by law, that is for France three times the legal interest rate, whichever is higher, from the date such payment was due until the date paid. In addition, you shall pay, upon request, a fixed penalty for collection costs of forty (40) Euros in accordance with the French Commercial Code and attorneys’ fees and any supplementary expenses incurred by Fitbit in relation with the collection of the fees owed to Fitbit in accordance with this Agreement and/or the Order Form. 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. Non-payment by End Users shall not relieve you of your obligation to pay fees to Fitbit. You shall be responsible for all taxes (including value added tax), withholdings, duties, shipping expenses and levies arising from your purchases under this Agreement (excluding taxes based on the net income of Fitbit).
20.3 Italy. For any Client with a billing address in Italy then the following additional terms shall apply:
Pursuant to Section 1341 Italian Civil Code, Client has read and understood all Sections and it recognizes and agrees that some Sections might be burdensome to itself, specifically Sections 2.3(a)(iv) Prior Orders; 4.2 Warranty and Returns; 5.1 Term; 5.5 Survival; 8 Disclaimer of Warranties; 17 General. Client expressly agrees and accepts to be bound by Sections 2.3(a)(iv) Prior Orders; 4.2 Warranty and Returns; 6.1 Term; 6.5 Survival; 8 Disclaimer of Warranties; 17 General.
20.4 Japan. For any Client with a billing address in Japan then the following additional terms shall apply:
Client represents, warrants, and covenants that:
(a) it, its parent, subsidiaries, related companies, and those employees and shareholders with 50% voting rights (collectively, including the parties, the “Related Parties”) do not or shall not in the future fall under the following categories (collectively, the “Anti Social Forces”): (i) an organized crime group; (ii) a member of an organized crime group; (iii) a quasi-member of an organized crime group; (iv) a related company or association of an organized crime group; (v) a corporate racketeer; or (f) any other groups equivalent to the above; and
(b) the Related Parties themselves, or through the use of third parties, have never engaged in and in the future will not engage in, any of the following actions: (i) a demand with violence; (ii) an unreasonable demand beyond the legal responsibility; (iii) use of intimidating words or actions in relation to transactions; (iv) an action to defame the reputation or interfere with the business of the other party or any of its affiliates by spreading rumors, using fraudulent means, or resorting to force; or (v) other actions equivalent to the above.
20.5 New Zealand. For any Client with a billing address in New Zealand then the following additional terms shall apply instead of Sections 8 and 9, above:
8. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 4.2, THE PRODUCTS, THE PROGRAM MANAGEMENT DASHBOARD AND ALL FITBIT SERVICES ARE PROVIDED “AS IS”. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAWS (INCLUDING UNDER THE CONSUMER GUARANTEES ACT 1993 (NZ)), NEITHER FITBIT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, INCLUDING ANY WARRANTY THAT ANY COMPANY STOREFRONT, ORDER LINK, THE PROGRAM MANAGEMENT DASHBOARD, 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
9. Limitation of Remedies and Damages. NOTHING IN THIS AGREEMENT SHALL LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; AND (III) ANYTHING ELSE FOR WHICH A PARTY CANNOT AT LAW LIMIT OR EXCLUDE ITS LIABILITY. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY SHALL BE LIABLE FOR: (i) ANY LOSS OF USE; (ii) LOST DATA; (iii) FAILURE OF SECURITY MECHANISMS; (iv) INTERRUPTION OF BUSINESS; (v) LOST PROFITS OR REVENUE; OR (vi) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, 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. TO THE FULLEST EXTENT PERMITTED BY LAW, FITBIT AND CLIENT AGREE TO CONTRACT OUT OF SECTIONS 9, 12A, 13 AND 14(A) OF THE FAIR TRADING ACT 1986 (NZ) AND THE PROVISIONS OF THE CONSUMER GUARANTEES ACT 1993 (NZ). THE FOREGOING SENTENCES 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 SECTION 2.1 (RIGHT TO DISTRIBUTE), 18.6 (USE OF END USER DATA; RESTRICTIONS), 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 INDEMNFICATION 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.