UNLESS A SEPARATE SIGNED WRITTEN AGREEMENT GOVERNS THIS SALE, ALL PRODUCT PURCHASES, PURCHASE ORDER ACCEPTANCES, ACKNOWLEDGMENTS, QUOTES AND INVOICES ARE EXPRESSLY CONDITIONED UPON THE BUYER'S ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY PREPRINTED OR HANDWRITTEN TERMS AND CONDITIONS ON BUYER'S PURCHASE ORDER FORM OR SIMILAR DOCUMENTATION SHALL HAVE NO FORCE OR EFFECT. BUYER AGREES TO WAIVE ANY SUCH TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THOSE THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS AND CONDITIONS.
1. ACCEPTANCE BY BUYER; ENTIRE AGREEMENT.
These terms and conditions (“Terms”) shall constitute the entire agreement between Fitbit and the entity purchasing products hereunder (“Buyer”). As used herein, the term “Fitbit” shall mean the Fitbit legal entity indicated on the sales quote or order confirmation (the “Fitbit Contracting Entity”).
These Terms constitute the complete agreement between Fitbit and Buyer and supersede all previous agreements or representations, whether written or oral, with respect to the subject matter set forth herein. Each party acknowledges that it has not entered into these Terms in reliance on any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person except to the extent expressly incorporated in these Terms. Acceptance of Buyer's order by Fitbit is expressly conditioned on Buyer's consent to these Terms. Such consent shall be conclusively determined by any of the following means: (i) acceptance by Buyer of these Terms; and/or (ii) payment for, acceptance of delivery, or use, redistribution or resale of Fitbit’s products provided hereunder (“Products”). The issuance of future orders by Buyer without a separate agreement signed by both parties shall conclusively establish a course of dealing in which these Terms form a binding contract.
2. PRICES AND TAXES.
Any quoted prices are estimates only and final prices for the Products are as per the invoices raised by Fitbit. The price of the Products is exclusive of all applicable taxes, fees or charges including, but not limited to, amounts in respect of value added tax (VAT), goods and services tax ("GST"), duties or other government taxes. The Buyer shall, on receipt of a valid invoice from Fitbit, pay to Fitbit such additional amounts in respect of all applicable taxes, fees or charges, including but not limited to VAT, GST, duties or other government taxes as are chargeable on the supply of the Products. If Fitbit is required to pay any such tax, fee or charge, at the time of sale or thereafter, Buyer shall reimburse Fitbit unless Fitbit is deemed to be, and Buyer can demonstrate that Fitbit is, the relevant tax, fee or charge payer by the applicable authorities. Prior to Fitbit's acceptance of Buyer's order, Fitbit reserves the right to increase prices to cover any price increases in materials, delivery charges or other expenses. If Fitbit does so increase any of the prices Buyer will have the right to cancel any order Buyer has made without any penalty. Buyer shall be solely responsible for setting the price charged by Buyer to End Users for Products. Notwithstanding the foregoing, as a condition of the right granted in Section 5 below, if the Products are purchased for use in a corporate wellness or population health program, Buyer must subsidize at least 25% of the lowest priced Product made available to End Users. If Products are sold to End Users bundled with Buyer’s offering (a “Service Bundle”) Buyer shall be solely responsible for setting the price charged to End Users for the Service Bundle. The Service Bundle shall not be offered for less than 150% of the retail price of the Product.
Products may be designated for shipment to a single address for each order. Buyer shall designate shipping addresses at the time of purchase. Unless otherwise agreed in writing by the parties, shipment will be FOB (in accordance with Incoterms 2010) Fitbit’s shipping point, with Buyer responsible for all shipping costs, including any insurance or additional shipping expenses that may be incurred as a result of Buyer’s specific instructions. In the absence of specific shipping instructions, Fitbit will ship by the method it deems most advantageous in standard commercial packaging.
4. TERMS OF PAYMENT.
If Buyer has been approved for credit by Fitbit, payments shall be made in the currency identified in the Buyer's order within thirty (30) days of Buyer’s receipt of the applicable invoice from Fitbit; otherwise, all orders must be paid before shipment. If the Buyer does not make payment on or before the date on which it is due, interest shall be payable on the overdue amount at one (1) % of the amount due per month or the maximum amount allowed by law, whichever is less. Fitbit reserves the right, in its sole discretion, to change Buyer’s credit terms and/or require C.O.D. payment for shipment should Buyer fail to pay invoices in a timely manner. To the extent Fitbit has permitted resale or distribution to End Users as described below, non-payment by End Users shall not relieve Buyer of its obligation to pay fees to Fitbit.
5. RIGHT TO REDISTRIBUTE.
Subject to these Terms, for a period of twelve (12) months following shipment, Buyer has a non-exclusive, non-sublicensable, non-transferable right to resell and distribute Products purchased hereunder to: a). Buyer’s or its clients’ employees, or b). participants in Buyer’s wellness or health management program (in each case, “End Users”) for their personal use without any right of redistribution. Buyer shall have no right to resell or distribute the Products to other third parties. In addition, Fitbit may, from time to time, supply Buyer with certain written and online program materials containing guidelines, restrictions and other details about resale and distribution of Products. Continued eligibility to resell or distribute Products shall be subject to Buyer meeting the requirements set forth in such program materials.
6. END USER RELATIONSHIPS.
7. 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 hereunder and not to Buyer. Each End User must contact Fitbit directly in the event of any warranty issues; provided, however that Fitbit and Buyer may agree to implement a bulk RMA 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 Fitbit shall refund the purchase price paid by Buyer directly to Buyer and Buyer shall be responsible for refunding the End User 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. In no event will Fitbit be liable for refunds exceeding the purchase price of the defective Product paid to Fitbit.
8. FITBIT END USER SUPPORT OBLIGATIONS.
9. WARRANTY DISCLAIMER.
EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 7, THE PRODUCTS AND ALL FITBIT SERVICES ARE PROVIDED TO BUYER “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, 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.
10. NO END USER DATA SHARING.
Buyer has no right to receive any information collected, directly or indirectly, from any End User through use of the Products or Fitbit service (“End User Data”) under these Terms. Any sharing of End User Data by the parties shall only be pursuant to a separately executed agreement between the parties.
11. BUYER OBLIGATIONS AND INDEMNITY.
Buyer 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 Buyer hereunder. In no event shall Buyer make any other representation, warranty or guarantee by or on behalf of Fitbit. Buyer shall represent Fitbit and the Products in a positive and professional manner at all times. Buyer agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Fitbit or the Products. Buyer agrees to comply with all applicable international, federal, state and local laws and regulations (including, without limitation, employment, personal data protection, privacy and import and export compliance laws and regulations) in connection with its activities hereunder. Buyer 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 the issuance by Buyer of any warranty or representation not authorized in writing by Fitbit or any other act or omission of Buyer in connection with the distribution or resale of Products. Fitbit may participate in the defense of any such claims by counsel of its own choosing, at its cost and expense. Buyer will not settle any claim without Fitbit’s prior written consent if the settlement requires Fitbit to take any action, refrain from taking any action or admit any liability.
12. INTELLECTUAL PROPERTY OWNERSHIP.
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, designs 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 Buyer). Any software in any Product is provided under license only. To the extent permitted by relevant law, Buyer 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 Buyer hereunder.
13. FITBIT TRADEMARKS.
Fitbit hereby grants Buyer a nonexclusive license to use Fitbit’s name and the applicable Product trademarks (collectively, “Trademarks”) solely in its distribution, marketing and advertising of Products to End Users in accordance with these Terms. All use of Trademarks shall be limited to twelve (12) months from the date of the Order and subject to the review and approval of Fitbit. Buyer will cease any problematic, non-approved or infringing use of Trademarks within a reasonable period of being notified by Fitbit. Buyer 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. Buyer 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 Buyer has, to immediately effect transfer of such domain name to Fitbit without charge. Buyer 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 these Terms.
14. LIMITATION OF LIABILITY.
IN NO EVENT SHALL FITBIT (OR ANY THIRD- PARTY SUPPLIER) 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. FITBIT’S (AND ITS THIRD-PARTY SUPPLIERS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PRODUCTS PURCHASED HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS PAID BY BUYER TO FITBIT HEREUNDER. NOTHING IN THESE TERMS WILL LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR ANYTHING FOR WHICH A PARTY CANNOT AT LAW LIMIT OR EXCLUDE ITS LIABILITY. The parties agree that the limitations specified in this Section 14 will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Buyer will not disclose to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except as required by law the following types of information: (a) any terms of sale, including any prices or discounts offered by Fitbit or these Terms, (b) any information regarding the Products, including without limitation performance characteristics or specifications, and (c) any information disclosed by Fitbit regarding its business or technology. This Section 15 shall survive any termination or expiration of these Terms.
If Buyer suspends, or threatens to suspend payment of its debts or is deemed unable to pay its debts within the meaning of section 123(1) Insolvency Act 1986, or ceases or threatens to cease to carry on its business or enters into a judicial management or composition or scheme of arrangement with its creditors (or if any event similar or analogous to the events in this clause shall occur in any jurisdiction in which the Buyer is incorporated, carries on business or has its billing address) Fitbit may terminate these Terms or any order immediately by written notice without prejudice to any other right or remedy of Fitbit.
17. BRIBERY AND COMPLIANCE.
Buyer represents and warrants that (a) in connection with these Terms, it has not and will not engage in any activity, practice or conduct which would constitute an offence under any applicable laws, statutes, regulations, and codes relating to anti-bribery and/or anti-corruption to which Fitbit is subject; (b) Buyer 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 (c) Buyer will comply in all respects with the Foreign Corrupt Practices Act (or any similar law). If the Products are purchased for use in a corporate wellness or population health program, Buyer agrees to review the best practices listed in the Wellness Community Pledge, available at www.fitbit.com/group-health/pledge, and acknowledges that these best practices are meant to provide general guidance. Buyer acknowledges that Buyer is solely responsible for establishing and maintaining the compliance of any wellness program, including registering with local works councils or data protection authorities if applicable.
18. FORCE MAJEURE.
Fitbit shall not be liable for any loss, damage or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Fitbit, including, but not limited to, supplier delay, force majeure, acts of God, labour unrest, diseases, floods, fire, explosion or earthquake. In any such event, the delivery date shall be deemed extended for the period equal to the delay. However, if such cause continues for a period of more than 1 (one) month, Fitbit may terminate these Terms (and any related order) on written notice to the Buyer.
19. AMENDMENTS AND WAIVERS.
Buyer acknowledges and agrees that Fitbit may make changes to these Terms from time to time in its sole discretion; provided, however, that changes to the version of these Terms then in effect at the time of any purchase shall be binding on either party only if in writing and signed by a duly authorised representative of such party.
20. APPLICABLE LAW:
a) if the Fitbit Contracting Entity is Fitbit, Inc., all claims arising out of or relating to these Terms 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 Fitbit Contracting Entity is Fitbit Australia Pty. Ltd., these Terms 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 these Terms 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 Fitbit Contracting Entity is Fitbit International Limited, these Terms 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 these Terms 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) If the Fitbit Contracting Entity is Fitbit Singapore Pte. Ltd., these Terms 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 these Terms 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.
e) In any case under this Section, the prevailing party in any action to enforce these Terms 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.
21. INDEPENDENT CONTRACTORS.
The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
22. GOVERNMENT END USERS.
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 these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defence Federal Acquisition Regulation Supplement 227,7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
If any provision of these Terms 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 these Terms shall otherwise remain in effect.
No purported variation of these Terms shall be valid unless it is in writing (which excludes email) and signed by or on behalf of each party.
No failure or delay by a party to enforce or exercise any right or remedy under these Terms or by law shall be deemed to be a waiver of that or any other right or remedy, nor shall it operate so as to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of these Terms shall not be deemed to be a waiver of any subsequent breach.
26. EXCLUSION OF THIRD PARTY RIGHTS.
Unless expressly provided in these Terms, no term of these Terms is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any similar or analogous legislation in any jurisdiction in which the Buyer is incorporated, carries on business or has its billing address, by any person who is not a party to it, and no term is intended to confer any benefit on any third party.
Any notice to be given to a party under these Terms shall be in writing (which excludes email) signed by or on behalf of the party giving it, and shall be delivered personally, or sent by recorded delivery, to the address of the party. Either party may, by a notice given in accordance with this clause, change its address for the purposes of this clause. A notice shall be deemed to have been served: (i) at the time of delivery if delivered personally; or (ii) 2 (two) business days after posting.
If Fitbit provides a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
29. ADDITIONAL TERMS DEPENDANT ON LOCATION OF BUYER.
29A. For any Buyer with a billing address in France then the following additional terms shall apply instead of Section 4, above: TERMS OF PAYMENT. If Buyer has been approved for credit by Fitbit, payments shall be made in the currency identified in the Buyer's order within thirty (30) days of Buyer’s receipt of the applicable invoice from Fitbit; otherwise, all orders must be paid before shipment. If the Buyer does 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, the Buyer shall pay, upon request, a fixed penalty for collection costs of 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 these Terms and/or the Buyer’s order. Fitbit reserves the right, in its sole discretion, to change Buyer’s credit terms and/or require C.O.D. payment for shipment should Buyer fail to pay invoices in a timely manner. To the extent Fitbit has permitted resale or distribution to End Users as described in these Terms, non-payment by End Users shall not relieve Buyer of its obligation to pay fees to Fitbit.
29B. For any Buyer with a billing address in New Zealand then the following additional terms shall apply instead of Section 9, above: WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXTENDED DIRECTLY TO END USERS IN ACCORDANCE WITH SECTION 7, THE PRODUCTS AND ALL FITBIT SERVICES ARE PROVIDED TO BUYER “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW (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 OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NONINFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, FITBIT AND THE BUYER AGREE TO CONTRACT OUT OF SECTIONS 9, 12A, 13 AND 14(A) OF THE FAIR TRADING ACT 1986 (NZ) AND THE RELEVANT PROVISIONS UNDER THE CONSUMER GUARANTEES ACT 1993 (NZ).
29C. For any Buyer with a billing address in Italy then the following additional terms shall apply: UNDERSTANDING. Pursuant to Section 1341 Italian Civil Code, BUYER has read and understood all Sections and it recognizes and agrees that some Sections might be burdensome to itself and in specific those ones as under 4. Terms of payment, 9. Warranty disclaimer, 14. Limitation of liability 20 applicable law. BUYER expressly agrees and accepts to be bound by Sections 4. Terms of payment, 9. Warranty disclaimer, 14. Limitation of liability 20 applicable law.
29D. For any Buyer with a billing address in Japan then the following additional terms shall apply: EXCLUSION OF ANTI SOCIAL FORCES. Buyer represents, warrants, and covenants that it, its parent, subsidiaries, related companies, and those employees and shareholders with 50% of the voting rights (collectively, including Buyer, the “Related Parties”) do not or shall not in the future fall under the following categories (collectively, the “Anti Social Forces”): (a) an organized crime group; (b) a member of an organized crime group; (c) a quasi-member of an organized crime group; (d) a related company or association of an organized crime group; (e) a corporate racketeer; or (f) other groups equivalent to the above. Buyer represents, warrants, and covenants that 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: (a) a demand with violence; (b) an unreasonable demand beyond the legal responsibility; (c) use of intimidating words or actions in relation to transactions; (d) an action to defame the reputation or interfere with the business of Fitbit or any of its affiliates by spreading rumors, using fraudulent means, or resorting to force; or (e) other actions equivalent to the above. Buyer shall immediately provide Fitbit with documents or information of the Related Parties (including, without limitation, office or residential address, formal names, and birth dates) requested by Fitbit for the purpose of identity verification and screening of the Anti Social Forces by Fitbit. If Fitbit determines that it is not appropriate to maintain business transactions with Buyer after becoming aware that the representations and warranties made in the in this Section are not or were not true, or that Buyer breached any of the covenants, Fitbit has the right to immediately terminate these Terms. If Fitbit terminates these Terms for this reason, Fitbit will not be liable for any loss or damages arising out of or related to the termination.