IF THE PARTIES HAVE PREVIOUSLY EXECUTED A WRITTEN AGREEMENT (THE “MASTER AGREEMENT”) RELATING TO THE PURCHASE OF SELLER’S GOODS OR SERVICES COVERED BY THE APPLICABLE PURCHASE ORDER (THE “PURCHASE ORDER”), THEN THE TERMS AND CONDITIONS OF THE MASTER AGREEMENT SHALL BE CONTROLLING. OTHERWISE, THE PURCHASE ORDER AND THESE PURCHASE ORDER TERMS AND CONDITIONS (COLLECTIVELY, THE “AGREEMENT”) SET FORTH THE TERMS AND CONDITIONS THAT APPLY TO ALL PURCHASES OF GOODS AND RECEIPT OF SERVICES BY FITBIT FROM SELLER BY MEANS OF THE PURCHASE ORDER. As used herein, the term “Fitbit” shall mean the Fitbit legal entity indicated on the Purchase Order and the term “Seller” shall mean the seller of the goods or services to whom the Purchase Order is directed and its Affiliates. “Affiliates” shall mean with respect to a party hereto, any legal entity, whether existing now or in the future, that either directly or indirectly controls, is controlled by or is under common control with such party.

 

CONTROLLING DOCUMENT

 

IN THE EVENT THERE IS NO EXISTING MASTER AGREEMENT BETWEEN FITBIT AND SELLER, THE DELIVERY OF THE PURCHASE ORDER CONSTITUTES A REJECTION OF ANY PRIOR OFFER MADE BY SELLER WITH RESPECT TO THE GOODS AND/OR SERVICES SPECIFIED ON THE PURCHASE ORDER AND IS AN OFFER TO PURCHASE SUCH GOODS AND/OR SERVICES ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND NO OTHERS. The parties shall be bound by the provisions of this Agreement, whether Seller acknowledges or otherwise signs this Agreement or the Purchase Order, unless Seller objects thereto in writing prior to its acceptance of the Purchase Order, shipment of the Goods or commencement of the Services, and the terms and conditions set forth herein and in the Purchase Order constitute the entire agreement of the parties with respect to the subject matter hereof and thereof and cancel and supersede all prior communications, understandings and agreements. No additional terms or amendments, including, without limitation, any additional or inconsistent terms or conditions contained in any sales quotation, order acknowledgment, order confirmation or invoice provided by Seller are acceptable to Fitbit and NOTICE OF OBJECTION to any such additional terms or amendments is hereby given to Seller. A Purchase Order does not constitute a firm offer and may be revoked at any time prior to acceptance.

 

GOODS, SERVICES & DELIVERABLES

 

Seller agrees to provide the goods or deliverables (collectively, referred to as the “Goods”) and/or perform the services (the “Services”) described in the Purchase Order in accordance with the terms and conditions of this Agreement, including, without limitation, the Purchase Order, which terms are incorporated herein by this reference. Fitbit hereby reserves the right to reschedule any delivery of Goods and/or Services or cancel the Purchase Order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Fitbit shall not be subject to any charges or other fees as a result of such a rescheduling or cancellation.

 

DELIVERY

 

It is understood and agreed by Seller that time is of the essence with respect to the Purchase Order because any Goods or Services ordered thereunder are needed to enable Fitbit to provide critical, timely goods and/or services to its customers. Unless other shipping terms are specifically provided in the Purchase Order, the Goods ordered hereunder shall be delivered DDP (Incoterms) the destination specified on the Purchase Order; provided that title and risk of loss shall pass to Fitbit at the DDP delivery point, except that risk of loss shall remain with Seller as to any Goods that are rejected by Fitbit pursuant to this Agreement. Delivery of Goods shall be made pursuant to the schedule, via the carrier, and to the place specified on the Purchase Order. Fitbit reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule, whether partial or complete. If no delivery schedule is specified in the Purchase Order but the order is designated as a rush order, the order shall be filled promptly and delivery will be made by the most expeditious manner of transportation by land or sea. If no carrier is specified on the Purchase Order, Seller shall use the least expensive reputable carrier. In the event Seller fails to deliver the Goods within the time specified, Fitbit may, at its option, decline to accept the Goods and cancel the Purchase Order without liability or may demand its allocable fair share of Seller's available Goods and cancel the balance of the Purchase Order without liability. Unless otherwise specified on the Purchase Order, when the price of Goods ordered under the Purchase Order is based on the weight of the ordered Goods, such price is to be calculated based only on the net weight of Goods ordered (e.g., not including the weight of any packaging), and no charges will be allowed for packing, handling, transportation, storage or other packing requirements. Unless otherwise specified on the Purchase Order, Seller will package all goods in a manner which is: (i) in accordance with good commercial practice; (ii) acceptable to common carriers for shipment at the lowest rate (or the most expeditious manner if the shipment is designated as a rush order); (iii) in accordance with International Chamber of Commerce regulations; and (iv) adequate to ensure safe arrival of the Goods to the place of delivery. Seller will mark all containers with necessary lifting, handling, and shipping information (including, without limitation, the country of origin) and with the Purchase Order number, date of shipment, and the names of the consignee and consignor, if applicable. Seller shall, in marking the Goods, comply with the requirements of the customs authorities of the country of shipment and receipt. An itemized packing list must accompany each shipment of Goods. Any documents necessary to enable Fitbit to obtain the Goods from the carrier when tendered shall be provided to Fitbit in a timely manner. Upon Fitbit’s request, Seller shall provide Fitbit with an appropriate certification stating the country of origin for the Goods, sufficient to satisfy the requirements of (x) the customs authorities of the country of receipt, and (y) any applicable export licensing regulations, including, without limitation, those of the United States.

 

PAYMENT

 

As full consideration for the delivery of the Goods, performance of the Services, and the assignment of the rights to Fitbit as provided in this Agreement, Fitbit shall pay Seller the amount agreed upon and specified on the Purchase Order. Fitbit will pay Seller’s invoices in accordance with the terms specified on the Purchase Order, or if no terms are specified then within forty-five (45) days after Fitbit’s acceptance of the Goods and/or Services covered by the Purchase Order and receipt of Seller’s correct invoice related thereto. Unless otherwise specified therein, the prices set forth on the Purchase Order include, without limitation, all applicable federal, state and local taxes, and Fitbit shall not have any liability to reimburse Seller for any other taxes. In any event, all duties and taxes assessable upon the Goods prior to receipt by Fitbit shall be borne by Seller. Seller’s invoices shall contain the following information to the extent applicable: (i) Purchase Order number; (ii) item number; (iii) description of Goods and/or Services; (iv) size of item(s); (v) quantity of item(s); (vi) unit prices; (vii) each applicable tax; (viii) totals; and (ix) any other information specified elsewhere herein. A bill of lading must accompany each invoice relating to Goods. Once any Goods are shipped, Seller shall have no security interest in such Goods or in the proceeds of such Goods. Payment of any invoice by Fitbit will not constitute acceptance of the related Goods or Services, and they will remain subject to adjustment as provided for elsewhere in this Agreement. Furthermore, all payments due to Seller hereunder shall be subject to offset by Fitbit for any amounts owed by Seller and/or its Affiliates to Fitbit and/or its Affiliates. Payment shall be deemed to have been made under this Agreement on the date of mailing of Fitbit’s check or on the date of Fitbit initiating any form of electronic payment. If Fitbit disputes the accuracy of any invoice (each, a “Billing Dispute”), Fitbit will, not later than the payment due date, notify Seller in writing of the nature of the Billing Dispute. Fitbit may withhold payment of the disputed amount(s) and such payment will not be considered past due during investigation thereof. Seller will use commercially reasonable efforts to completely resolve the Billing Dispute within thirty (30) days following the date on which Seller received Fitbit's notification of the Billing Dispute. If the parties are unable to resolve the Billing Dispute within such thirty (30) day period, it will be resolved pursuant to Section 27.

 

OVERSHIPMENTS

 

Fitbit shall only be liable for the quantities of Goods ordered. Any over-shipments will be held by Fitbit at Seller’s risk and expense awaiting return shipping instructions. Fitbit shall have no obligation to notify Seller of an over-shipment and shall have no liability for failure to do so. If Fitbit does give notice of an over-shipment to Seller and Fitbit does not receive shipping instructions within a reasonable time after giving such notice (not to exceed ten (10) days), Fitbit shall have the option to deem the Goods abandoned and dispose of them at Seller’s expense or return ship the over-shipment to Seller’s point of origin at Seller’s risk and expense. Fitbit shall be entitled to offset any such expenses against any amounts owed by Fitbit and/or its Affiliates to Seller and/or its Affiliates.

 

WARRANTIES

 

Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with the Purchase Order, specifications and any statements of work agreed to by an authorized representative of Fitbit, and shall be correct and appropriate for the purposes stated therein. Seller warrants that it has good and transferable title to the Goods, that all Goods will be new (i.e., will not be used or refurbished) and that all Goods will be free from any claim of infringement. Seller further warrants that all Goods delivered shall for a period of: (i) 15 months from the date of delivery to Fitbit, or (ii) for the period provided in Seller's standard warranty covering the Goods, whichever is longer: (a) be free from defects, including, without limitation, in workmanship, material and manufacture; (b) to the extent design of the Goods is Seller’s responsibility, be free from defects in design; (c) comply with the requirements in the Purchase Order, specifications and any statements of work agreed to by an authorised representative of Fitbit (including, without limitation, any drawings incorporated therein, or samples or descriptions furnished by Fitbit related thereto), and shall be correct and appropriate for the purposes stated therein; and (iv) 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 identifies a warranty issue with the Goods during the warranty period, Fitbit will promptly notify Seller of such issue and will return the Goods to Seller, at Seller's expense. Within five (5) business days of receipt of the returned Goods, Seller shall, at Fitbit's option, either repair or replace such Goods, or credit Fitbit's account for the price thereof. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.

 

The foregoing warranties are in addition to all other warranties, whether express or implied (including, without limitation, all written and oral express warranties made by Seller's agents, and all warranties provided for by the California Commercial Code), and will survive any delivery, inspection, acceptance or payment by Fitbit. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Fitbit, Seller's standard warranty and service guaranty applicable to the Goods and Services. All warranties shall run to the benefit of Fitbit, its Affiliates and its and their customers.

 

The foregoing warranties and terms and conditions related thereto form part of the “basis of the bargain” and Fitbit would not purchase the Goods and/or Services without receiving such warranties and related terms and conditions. Fitbit’s approval of Seller’s materials or designs will not relieve Seller of any warranties stated herein.

 

Seller represents and warrants that the provisioning of Goods and performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.

 

INSPECTION AND ACCEPTANCE; REMEDIES

 

Fitbit shall have a reasonable period of time, but in no event less than thirty (30) days, after receipt of Goods or Service deliverables and before payment to inspect them for conformity to the Purchase Order, applicable specifications and any statements of work agreed by an authorized representative of Fitbit (collectively, the “Inspection Criteria”). Goods and Service deliverables received by Fitbit that have yet to be inspected shall not be deemed accepted until Fitbit has run adequate tests to determine whether the Goods conform to the Inspection Criteria. Use of a portion of the Goods or Service deliverables for the purpose of inspection shall not constitute an acceptance of the Goods or Service deliverables. If any Goods or Service deliverables do not wholly conform to the Inspection Criteria, then Fitbit shall have the right to reject such Goods and Service deliverables. With respect to any such rejected Goods and Service deliverables, at Fitbits option, and in addition to any other remedies that may be available to Fitbit: (i) Seller shall within five (5) business days correct any such rejected Goods or Service deliverables by repair or replacement at Seller’s expense; (ii) Seller shall accept return of such rejected Goods or Service deliverables at Seller’s risk and expense and credit Fitbit’s account for the price thereof, or (iii) Fitbit shall accept the rejected Goods or Service deliverables subject to an appropriate reduction in price agreed to in writing by the parties. If after a request by Fitbit pursuant to clause (i) of the foregoing sentence Seller fails to repair or replace any or all rejected Goods or Service deliverables within five (5) business days, Fitbit may at its option: (x) correct or replace such Goods or Service deliverables and recover from Seller the cost thereof, or (y) accept such Goods or Service deliverables subject to an appropriate reduction in price as determined in good faith by Fitbit alone. Any failure of Fitbit to specify the reason why Goods or Service deliverables were rejected shall not prevent Fitbit from relying on such reason to establish rejection, even though Seller could have cured the issue upon proper notification.

 

CHANGE ORDERS

 

Fitbit may at any time with respect to any Goods or Services ordered in the Purchase Order increase or decrease any quantities, change the delivery date, method of shipment or packing, place of delivery or make changes to the applicable specifications and any statements of work agreed by an authorized representative of Fitbit, including, without limitation, any related drawings or designs.

 

If within five (5) business days of being notified of any such changes the Seller notifies Fitbit that the changes shall result in an increase in the cost or the time required by Seller for performance of the applicable Purchase Order, then upon written agreement of Fitbit and Seller, an adjustment shall be made to the price and/or delivery schedule, and the Purchase Order will be modified accordingly in writing. If Seller fails to so notify Fitbit within such five (5) business day period, then Seller shall perform under the Purchase Order without any modification to the price and/or delivery schedule and Fitbit shall have no liability to Seller as a result of the changes.

 

Nothing in this Section 9 is intended to excuse Seller from proceeding with a Purchase Order as modified by the parties pursuant hereto.
 

TERMINATION

 

Fitbit may immediately terminate this Agreement upon written notice to Seller if in Fitbit’s good faith opinion Seller fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. Fitbit may otherwise terminate this Agreement for any other reason upon ten (10) days' written notice to Seller. Seller may only terminate this Agreement upon written notice to Fitbit if Fitbit fails to pay Seller within sixty (60) days after Seller notifies Fitbit in writing that payment hereunder is past due.

 

In the event of any termination pursuant to the preceding paragraph: (i) Seller shall cease to perform the Services and/or provide the Goods under this Agreement on the date of termination specified in the notice; (ii) Fitbit shall pay Seller for those conforming Goods delivered to Fitbit and that portion of the Services satisfactorily performed through the date of termination, less appropriate offsets, including, without limitation, any additional costs to be incurred by Fitbit in order to complete the Services; and (iii) if all or a portion of the Purchase Order is cancelled as a result thereof, Fitbit may require Seller to transfer title and to deliver to Fitbit, in the manner and to the extent directed by Fitbit, all completed Goods not yet delivered to Fitbit and any partially completed Goods and related materials that Seller has produced or acquired in connection with its intended performance of the terminated portion. Nothing in this Section is intended to excuse Seller from proceeding with any uncancelled portion of the Purchase Order prior to the date of termination.

 

Upon any expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration, and (b) Seller will promptly notify Fitbit of all Fitbit Confidential Information (as defined below) or any Work Product (as defined below) in Seller's possession and, at the expense of Seller and in accordance with Fitbit's instructions, will promptly deliver to Fitbit all such Fitbit Confidential Information and/or Work Product.

 

INDEMNIFICATION

 

Seller shall indemnify, hold harmless, and at Fitbit’s request, defend Fitbit, its Affiliates and its and their officers, directors, partners, employees, agents, subcontractors, distributors, customers, attorneys and their successors and assigns (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against any liabilities, losses, claims, damages and costs (including, without limitation, attorneys’ fees and costs of suit) (collectively, the “Liabilities”) arising out of or in any way related to the Goods or Services provided pursuant to this Agreement and Seller’s performance related thereto, including, without limitation: (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean-up costs; (ii) any claim based on the negligence, omissions, or wilful misconduct of Seller or any of Seller's Affiliates; (iii) Seller failing to satisfy its obligations with regard to the protection of Confidential Data as described in Sections 15 and 16; (iv) Seller failing to comply with a requirement of applicable law; (v) any claim by a third party against any Indemnified Party alleging that the Goods or Services, the results of such Services, or any other products or processes provided pursuant to the Purchase Order, infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes; and (vi) any allegedly defective Goods provided or Services rendered under the Purchase Order, whether latent or patent, including, without limitation, allegedly improper construction and design, or from the failure of the Goods or Services to comply with the Purchase Order, applicable specifications and any statements of work agreed by an authorised representative of Fitbit.

 

Seller shall not settle any Liabilities against any Indemnified Party indemnified pursuant hereto without Fitbit's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by any Indemnified Party in enforcing this indemnity, including, without limitation, their attorneys' fees and costs of suit. Attorneys’ fees and costs of suit of each Indemnified Party shall be reimbursed by the Seller to the applicable Indemnified Party on a current basis. If Seller should be permitted to assume the defence of any such Liabilities, the Indemnified Party shall nonetheless be permitted to participate in such defence at its own expense; provided that if counsel to an Indemnified Party advises it that there exist actual or potential differing interests between Seller and the Indemnified Party, then the Indemnified Party shall have the right to retain its own counsel at the cost of Seller.

 

If Fitbit’s, any of its Affiliates’, or its or their assigns’, distributors’, subcontractors’ or customers’, use of any Goods or Services be enjoined, whether as a result of a preliminary or permanent injunction, be threatened by injunction or be the subject of any legal proceeding, then Seller shall at its cost use its best efforts to obtain for Fitbit, its Affiliates and its and their assigns, distributors, subcontractors, or customers the right to continue using the Goods or Services. If Seller is unable to do so in a manner and time period that is acceptable to Fitbit (in its sole determination), then Seller shall at its cost and at Fitbit’s option either: (a) substitute fully equivalent non-infringing Goods or Services, or (b) refund in full the price paid by Fitbit for the applicable Goods or Services.

Seller also warrants that there are no liabilities for royalties or other encumbrances on the Goods and/or Services supplied under the Purchase Order and agrees to indemnify each Indemnified Party against any such liabilities on the terms and conditions set forth above.

 

LIMITATION OF LIABILITY

 

FITBIT’S AGGREGATE LIABILITY TO SELLER, ITS AFFILIATES AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE PRICE PAID BY FITBIT FOR THE GOODS OR SERVICES SUBJECT TO THE CLAIM. IN NO EVENT SHALL FITBIT BE LIABLE TO SELLER, ITS AFFILIATES OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, REGARDLESS OF FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF FITBIT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE A FUNDAMENTAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF THIS PROVISION, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

 

INSURANCE

 

Seller shall be solely responsible for maintaining and requiring Seller's Affiliates to maintain such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance as is required by law or as is the common practice in Seller's and Seller's Affiliates' trades or businesses, whichever affords greater coverage. Upon request, Seller shall provide Fitbit with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Seller shall also provide adequate insurance coverage for any Fitbit property under the care, custody or control of Seller or Seller's Affiliates.

 

COMPLIANCE WITH LAWS

 

Seller and Seller’s Affiliates will comply with all applicable laws and regulations (including, without limitation, the applicable laws, orders, policies, and regulations of the U.S. Government, U.S. Customs, and any other jurisdiction in which Goods or Services are provided, relating to import, export and re-export of commodities, technical data and software, privacy, labour and employment, anti-discrimination and anti-harassment, freedom of association, environmental protection, hazardous substances management, pollution prevention and resource sustainability, waste management, recycling, protection of intellectual property, and anti-corruption), and Seller will defend and hold Fitbit and its Affiliates harmless from any expense or damage resulting from Seller and/or its Affiliates violation or alleged violation of any such law or regulation in the performance of this Agreement. Furthermore, Seller shall furnish to Fitbit any information required to enable Fitbit to comply with all applicable laws and regulations.

 

Seller shall comply with, and shall ensure that all Seller’s Affiliates comply with, all applicable laws and regulations enacted to combat bribery and corruption, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act, the principles of the OECD Convention on Combating Bribery of Foreign Public Officials, and any corresponding laws of all countries where business or services will be conducted or performed pursuant to this Agreement. Seller shall not, and shall ensure that Seller’s Affiliates do not, either directly or indirectly, pay, offer, promise to pay, or give anything of value (including, without limitation, any amounts paid or credited by Fitbit and/or its Affiliates to Seller) to any person including, without limitation, an employee or official of any government, government controlled enterprise or company, or political party, with the reasonable knowledge that it will be used for the purpose of obtaining any improper benefit or to improperly influence any act or decision by such person or for the purpose of obtaining, retaining, or directing business. Any amounts paid by Fitbit and/or its Affiliates to Seller or Seller’s Affiliates pursuant to the terms of this Agreement will be for Services actually rendered, or Goods sold, in accordance with the terms of this Agreement. Seller shall not, and shall ensure that Seller’s Affiliates do not, offer or accept bribes or kickbacks in any form.

 

Seller and Seller’s Affiliates represent and warrant that they, to the best of the Seller’s and Seller’s Affiliate’s knowledge and to the extent permitted by law, shall promptly notify Fitbit, with complete and accurate information relating thereto, regarding any majority owner, partner, officer, director, manager of Seller or Seller’s Affiliates, or any other party who is authorized to conduct business on behalf of Seller or Seller’s Affiliates (collectively, the “Seller Authorised Parties”) that is, has been or will become, an official or employee of a governmental entity or political party or a candidate for political office (each, a “Government Related Party”).

 

Seller shall not, and shall ensure that Seller’s Affiliates do not, either directly or indirectly, offer or give any person or entity any gift, gratuity, payment or other inducement with a view toward securing business from Fitbit or influencing the terms, conditions or performance of this Agreement.

 

At all times during the term of this Agreement, Seller and Seller’s Affiliates will comply with any Fitbit Supplier Code of Conduct (“Code of Conduct”), which may be updated by Fitbit from time-to-time and may be made available on Fitbit’s public website. Notwithstanding anything to the contrary herein, Seller will: (i) allow Fitbit, any of its Affiliates, and/or a third party representative, retained by or representing Fitbit or any of its Affiliates (the “Auditor”), to assess Seller’s and its Affiliates’ compliance with the Code of Conduct by inspecting Seller’s and its Affiliates’ facilities and/or reviewing Seller’s and its Affiliates’ practices, policies, and relevant records, upon reasonable notice, and/or by interviewing Seller’s and its Affiliates’ personnel without monitoring, solely to verify Seller’s and its Affiliates’ compliance with the Code of Conduct (collectively, an “Assessment”); (ii) promptly provide the Auditor with access to any relevant facilities and personnel without disruption or interference, in connection with any Assessment; (iii) promptly provide complete and accurate information and documentation in response to the Auditor’s requests, (iv) allow the Auditor to review and assess working hours and conditions, remuneration and benefits, personnel practices, production, dormitory, and dining facilities, business conduct, and health, safety, and environmental practices, as applicable, in connection with any Assessment; (v) not request or encourage, directly or indirectly, any Seller or its Affiliates personnel to furnish false or incomplete information in connection with any Assessment; (vi) not take retaliatory action against any Seller or its Affiliates personnel interviewed during an Assessment; and (vii) promptly implement corrective action to remedy any material non-conformance with the Code of Conduct. Fitbit may disclose the results of any Assessment in connection with its corporate responsibility, corporate compliance, and periodic reporting activities. Seller will obtain all permits, consents, and authorizations necessary to enable the Auditor to assess Seller’s and its Affiliates’ policies, practices, records, and facilities. Seller’s and/or its Affiliates’ failure to perform its obligations described in this subsection or to remedy any material non-conformance with the Code of Conduct after a reasonable amount of time will constitute a breach of this Agreement.

 

Seller agrees that it will not export, re-export, resell or transfer any export controlled commodity, technical data or software: (a) in violation of such limitations imposed by the United States or any other applicable national government authority, or (b) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or other approvals.

 

Upon Fitbit's request, Seller will promptly provide Fitbit with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States. To the extent that Services will be provided in the United States and/or that Goods will be transported into the United States, Seller represents that either: (x) it is C-TPAT (Customs Trade Partnership Against Terrorism) certified by U.S. Customs & Border Protection, and will maintain that certification while providing services in, or transporting Goods into, the United States, or (y) it will comply with the C-TPAT security procedures that may be found on the U.S. Customs website at www.cbp.gov (or such other website that the C-TPAT security procedures may be moved to by the U.S. Government).

 

If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling, and transportation of such hazardous materials.

 

NON-DISCLOSURE OF CONFIDENTIAL INFORMATION

 

Except as required for Seller to perform its obligations under this Purchase Order (the “Purpose”), Seller shall not use or disclose any Fitbit Confidential Information (as defined below) of Fitbit and its Affiliates. “Fitbit Confidential Information” means any information, technical data, or know-how disclosed by Fitbit and/or its Affiliates to Seller and/or its Affiliates prior to the date of the Purchase Order or thereafter, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, research, products, services, developments, inventions, discoveries, ideas, concepts, software, designs, drawings, engineering, specifications, documentation, processes, techniques, models, source code, object code, diagrams, flow charts, procedures, business and marketing plans or strategies, business opportunities, financial information, pricing information, sales information, and customer information. Fitbit Confidential Information shall not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of Seller, its Affiliates or the Representatives (as defined below); (iii) is already in the possession of Seller at the time of disclosure by Fitbit and/or its Affiliates as shown by Seller’s files and records immediately prior to the time of disclosure; (iv) is obtained by Seller from a third party who has the legal right to disclose such information; or (v) is independently developed by Seller without use of Fitbit Confidential Information.

 

Neither Seller nor its Affiliates shall disclose any Fitbit Confidential Information to any third parties or to employees of Seller or its Affiliates, except to those of its and their employees, consultants, or agents (“Representatives”) who (i) need to know such information in order to allow Seller to perform its obligations under this Agreement, and (ii) have signed a non-use and non-disclosure agreement applicable to Fitbit Confidential Information in content substantially similar to the provisions hereof, prior to any disclosure of Fitbit Confidential Information to such Representatives. Seller shall be liable for any breach by any Representative of any of the confidentiality obligations set forth in this Agreement.

 

Neither Seller nor its Affiliates shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody Fitbit Confidential Information and which are provided to Seller and/or its Affiliates hereunder. Seller and its Affiliates agree that they shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorised use of Fitbit Confidential Information. Without limiting the foregoing, Seller and its Affiliates shall take at least those measures that it takes to protect its own most highly confidential information. Neither Seller nor its Affiliates shall make any copies of Fitbit Confidential Information without Fitbit’s prior written approval, which may be withheld, delayed or conditioned in Fitbit’s sole and absolute discretion. Seller and its Affiliates shall reproduce Fitbit’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in the original. Seller shall immediately notify Fitbit of any unauthorized use or disclosure of Fitbit Confidential Information of which Seller and/or its Affiliates may become aware. ALL FITBIT CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. FITBIT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.

 

All documents and other tangible objects containing or representing Fitbit Confidential Information furnished by Fitbit and/or its Affiliates to Seller and/or its Affiliates, and all copies thereof that are in the possession of Seller and/or its Affiliates, shall be and remain the property of Fitbit. The Seller shall, promptly following Fitbit’s request, (i) return to Fitbit at the address indicated by Fitbit, all Fitbit Confidential Information that is in tangible form, and (ii) destroy or expunge from its computer systems all Fitbit Confidential Information that is in electronic form or which consists of analyses, compilations, studies or other documents or records prepared by the Seller and/or its Affiliates. Such destruction, if applicable, shall be certified in writing to Fitbit by the authorized officer of the Seller supervising such destruction.

 

Fitbit Confidential Information shall remain the sole property of Fitbit. Nothing in this Agreement is intended to, nor shall, grant any rights to Seller or its Affiliates under any patent, copyright, trademark, trade secret, or other proprietary right of Fitbit and its Affiliates, nor shall this Agreement grant Seller or its Affiliates any rights in or to Fitbit Confidential Information except as expressly set forth herein. The Seller’s and its Affiliates’ obligations hereunder with respect to all Fitbit Confidential Information shall continue in full force and effect notwithstanding the termination or expiration of this Agreement unless and until the information is no longer “Fitbit Confidential Information” pursuant to the definition above.

 

Seller agrees that any breach or threatened breach of these confidentiality obligations will cause irreparable harm to Fitbit, for which monetary damages would be inadequate and that, in addition to any other remedies that may be available, Fitbit shall be entitled to an injunction restraining any such breach or threatened breach, without having to post a bond or other security.

 

Seller will not quote for sale to others, without Fitbit’s prior written authorisation, any Goods or Services purchased or provided under Fitbit’s specifications or drawings.

 

PROTECTION OF PERSONAL DATA AND DATA SECURITY

 

As a result of this Agreement, Seller and Seller’s Affiliates may obtain certain information relating to identified or identifiable individuals (“Personal Data”), and such Personal Data shall be considered Fitbit Confidential Information. Seller shall have no right, title or interest in Personal Data obtained by it as a result of this Agreement. Seller shall, and shall ensure that any of Seller’s Affiliates with access to Personal Data: (i) collect, access, maintain, use, process and transfer Personal Data in accordance with the requirements set forth in this Section and for the sole purpose of performing Seller’s obligations under this Agreement; (ii) comply with Fitbit’s instructions regarding Personal Data, as well as all applicable laws, regulations and international accords, or treaties, including, without limitation, the EU/US Safe Harbor program (collectively, the “Legal Requirements”), and refrain from engaging in any behaviour that renders or is likely to render Fitbit in breach of same; (iii) promptly notify Fitbit’s Legal Department at 405 Howard Street, Suite 550, San Francisco CA 94105 of any requests from an individual with respect to Personal Data, and work with Fitbit to promptly and effectively handle such requests; and (iv) when data is received directly or indirectly from the European Economic Area or from Fitbit’s European Affiliates, abide by the Safe Harbor Privacy Principles of the U.S. Department of Commerce, located at http://www.export.gov/safeharbor, as may be amended from time to time (the “Safe Harbor Principles”), excluding the Notice, Choice and Enforcement provisions contained therein.

 

Seller shall take all appropriate legal, organizational and technical measures to protect against unlawful and unauthorised processing of Personal Data or Fitbit Confidential Information (collectively, “Confidential Data”). Seller shall maintain reasonable operating standards and security procedures, and shall use its best efforts to secure Confidential Data through the use of appropriate physical and logical security measures including, without limitation, appropriate network security and encryption technologies, and the use of reasonable user identification or password control requirements, including, without limitation, multiple-factor authentication, strong passwords, session time-outs, and other security procedures as may be directed by Fitbit from time to time. If requested by Fitbit at any time during the term of this Agreement, Seller shall provide Fitbit with a copy of Seller’s then current information security policy. Seller shall promptly notify Fitbit in the event that Seller learns or has reason to believe that any person or entity has breached or attempted to breach Seller’s security measures, or gained unauthorized access to Confidential Data (each, an “Information Security Breach”). Upon any such discovery, Seller will: (x) investigate, remediate, and mitigate the effects of the Information Security Breach, and (y) provide Fitbit with assurances reasonably satisfactory to Fitbit that such Information Security Breach will not recur. If Fitbit in good faith determines that notices (whether in Fitbit’s or Seller’s name) or other remedial measures (including, without limitation, notice, credit monitoring services, fraud insurance and the establishment of a call centre to respond to customer inquiries) are warranted following an Information Security Breach, Seller will, at Fitbit’s request and at Seller’s cost and expense, undertake the aforementioned remedial actions.

 

In the event of an investigation by a data protection regulator or similar authority regarding Personal Data, Seller shall provide Fitbit with reasonable assistance and support, including, without limitation, where necessary, access to Seller’s and its Affiliates’ premises to the extent needed to respond to such investigation. In the event that Seller is unable to comply with the obligations stated in this Section, Seller shall promptly notify Fitbit, and Fitbit may at is option do one or more of the following: (a) suspend the transfer of Personal Data to Seller; (b) require Seller to cease processing Personal Data; (c) demand the return or destruction of Personal Data; or (d) immediately terminate this Agreement. Upon termination of this Agreement for any reason, Seller shall promptly contact Fitbit for instructions regarding the return, destruction or other appropriate action with regard to Personal Data.

 

OWNERSHIP OF WORK PRODUCT

 

If Services are provided under this Agreement, Seller will, as an integral part of the performance of the Services, disclose in writing to Fitbit all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, specifications, biological or chemical specimens or samples, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials of any kind that Seller may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing the Services, or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, the “Work Product”). Work Product includes, without limitation, any deliverables that Seller delivers to Fitbit pursuant to this Agreement.

 

Fitbit and Seller agree that, to the fullest extent permitted by applicable law, each item of Work Product will be a work made for hire owned exclusively by Fitbit. Seller agrees that regardless of whether an item of Work Product is a work made for hire, all Work Product will be the sole and exclusive property of Fitbit. Seller hereby irrevocably transfers and assigns to Fitbit all right, title and interest in and to the Work Product, including, without limitation, all worldwide patent rights (including, without limitation, patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, the “Intellectual Property Rights”) therein. At Fitbit’s request and expense, during and after the performance of the Services hereunder, Seller will assist and cooperate with Fitbit in all respects and will cause all of Seller’s employees and subcontractors (“Seller Personnel”) to assist and cooperate with Fitbit in all respects, and will execute any and all necessary documents and will cause all Seller Personnel to execute any and all necessary documents, and will take such further acts reasonably requested by Fitbit to enable Fitbit to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Work Product. Seller hereby appoints the officers of Fitbit as Seller’s attorney-in-fact to execute documents on behalf of Seller for this limited purpose.

 

To the fullest extent permitted by applicable law, Seller also hereby irrevocably transfers and assigns to Fitbit, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Seller or any Seller Personnel may have in or with respect to any Work Product, during and after the performance of the Services hereunder. “Moral Rights” mean any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.

 

To the extent that Seller owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that may block or interfere with, or may otherwise be required for, the exercise by Fitbit of the rights assigned to it hereunder (collectively, the “Related Rights”), Seller hereby grants or will cause to be granted to Fitbit a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Fitbit to exercise all of the rights assigned to it hereunder.

 

PUBLICITY/MARKS

 

Seller will not use (or permit Seller's Affiliates to use) Fitbit's trademarks, service marks, trade names, logo or other commercial or product designations for any purpose, or make (or permit Seller's Affiliates to make) any public statement whatsoever (including, without limitation, press releases) regarding the existence of this Agreement or the parties' relationship.

 

ASSIGNMENT

 

No right or obligation under this Agreement may be assigned by Seller without the prior written consent of Fitbit, and any purported assignment without such consent will be null and void ab initio. Fitbit may at any time and from time to time assign any or all of its rights and obligations under this Agreement to any of its Affiliates. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any.

 

AUDIT RIGHTS

 

Fitbit or its nominee may, upon reasonable notice to Seller, audit the relevant books and records of Seller and its Affiliates to ensure their compliance with the terms and conditions of this Agreement. Any such audit shall be conducted during normal business hours at Seller’s offices and shall not unreasonably interfere with Seller’s business activities. If any such audit reveals that Seller or its Affiliates have breached any material term of this Agreement, as determined in Fitbit’s reasonable discretion, then Seller shall pay Fitbit’s costs and expenses of conducting such audit.

 

NOTICES

 

Except for Purchase Orders, which may be sent by mail, facsimile, or otherwise electronically transmitted, all notices required or permitted by this Agreement must be in writing addressed to the authorised representative(s) of the other party. Notice will be deemed given: (i) when delivered personally; (ii) when sent by confirmed facsimile; (iii) one day after having been sent by commercial overnight carrier specifying next-day delivery with written verification of receipt; and (iv) three days after having been sent by first class or certified mail postage prepaid. A copy of any notice sent to Fitbit must also be sent simultaneously to Fitbit's Legal Department at 405 Howard Street, Suite 550, San Francisco CA 94105.

 

NOTICE OF DELAYS

 

Whenever any event delays, or threatens to delay, the timely performance of this Agreement, Seller will immediately notify Fitbit of such event and furnish all relevant details. Receipt by Fitbit of such notice will not constitute a waiver of the due dates hereunder.

 

INDEPENDENT CONTRACTOR

 

Fitbit and Seller agree that Seller is an independent contractor and that no partnership or joint venture shall be deemed to exist between them. This Agreement does not constitute authority for Seller to act for Fitbit as its agent or make commitments for Fitbit. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide its own supplies and equipment. Fitbit may require a background check of any of Seller's personnel who perform Services on Fitbit premises, and Seller hereby agrees to conduct such investigation in accordance with background check standards to be provided by Fitbit, and shall at all times comply with all laws and regulations applicable to background check investigations. Fitbit shall keep the results of any such investigation confidential, and provide such information only to those persons with a business need to know, or as required by applicable law. Seller's personnel shall observe the working rules of all Fitbit premises when on such premises. Fitbit reserves the right to prohibit any of Seller's personnel from performing Services on Fitbit's premises.

 

NONEXCLUSIVE AGREEMENT

 

This is not an exclusive agreement. Fitbit is free to engage others to provide goods or perform services the same as or similar to the Goods and/or Services provided by Seller hereunder. Seller is free to advertise, offer, and provide Seller's goods and/or services to any third party so long as in doing so Seller does not otherwise breach this Agreement.

 

SEVERABILITY

 

If any provision of this Agreement is held invalid or unenforceable to any extent or in any application, the remainder of the terms of this Agreement, or the application thereof to different persons or circumstances or in different jurisdictions, shall not be affected thereby.

 

APPLICABLE LAW

 

This Agreement will be governed by and construed in accordance with the laws of the State of California as applied to agreements entered into and to be performed entirely within California between California residents, without giving effect to any conflict of laws principles that may require the application of the law of a different state. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or to their relationship.

 

DISPUTE RESOLUTION, JURISDICTION AND VENUE

 

If there is a dispute between the parties arising out of, or in connection with, this Agreement the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If the parties are unable to resolve the dispute within thirty (30) days after the date the dispute arose, then either party may commence litigation in the state or federal courts in San Francisco County, California. The parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of which will be conclusive evidence of the judgment) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit or proceeding. Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process.

 

EQUITABLE RELIEF

 

Notwithstanding Section 27, either party may seek equitable relief in order to protect its confidential information or intellectual property at any time, provided it does so in the state or federal courts in San Francisco County, California (and only those courts). The parties hereby waive any bond or other security requirements for obtaining equitable relief. The confidentiality provisions of this Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended.

 

ATTORNEYS' FEES

 

In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.

 

REMEDIES

 

If Seller breaches this Agreement, Fitbit shall have all remedies available to it by law, at equity and otherwise. Seller's sole remedy in the event of a breach of this Agreement by Fitbit shall be the right to recover damages in the amount equal to the purchase price of the Goods and/or Services covered by this Agreement, subject further to any other limitations of liability set forth herein. Seller acknowledges and agrees that the obligations of Seller under this Agreement are of a unique, intellectual nature giving them particular value. Seller's breach of any of its obligations contained in this Agreement will result in irreparable and continuing damage to Fitbit for which there will be no adequate remedy at law and, in the event of such breach, Fitbit will be entitled to seek injunctive relief, or a decree of specific performance.

 

SURVIVAL OF OBLIGATIONS

 

Any rights and obligations that by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

 

FORCE MAJEURE

 

Neither party will be liable for any failure to perform, including, without limitation, failure to accept delivery of any Goods or accept performance of any Services, caused by circumstances beyond its reasonable control, including, without limitation, acts of God, acts of war, or government action, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.

 

NO WAIVER

 

No failure or delay of either party in exercising at any time any of its rights, powers or remedies under this Agreement, in exercising any election or option provided herein, or in requiring the performance by the other party of any of the provisions herein will in any way be construed to be a waiver of such provisions, and any waiver of any provision granted on one occasion shall not be deemed a waiver of such provision on other occasions.