Fitbit and the counterparty agreeing to this addendum (“Partner”) have entered into an agreement for the provision of the Processor Services (as amended from time to time, the “Agreement”). 

This Fitbit Data Processing Addendum (including the appendices, “Data Processing Addendum”) is entered into by Fitbit and Partner and supplements the Agreement.  This Data Processing Addendum will be effective, and replace any previously applicable terms relating to their subject matter (including any data processing amendment or data processing addendum relating to the Processor Services), from the Terms Effective Date.

If you are accepting this Data Processing Addendum on behalf of Partner, you warrant that: (a) you have full legal authority to bind Partner to this Data Processing Addendum; (b) you have read and understand this Data Processing Addendum; and (c) you agree, on behalf of Partner, to this Data Processing Addendum.  If you do not have the legal authority to bind Partner, please do not accept this Data Processing Addendum.

1. Introduction

This Data Processing Addendum reflects the parties’ agreement on the terms governing the processing and security of Partner Personal Data in connection with the European Data Protection Legislation and Non-European Data Protection Legislation, as applicable.

2. Definitions and Interpretation

2.1 In this Data Processing Addendum:

“Additional Product” means a product, service or application provided by Fitbit or a third party that: (a) is not part of the Processor Services; and (b) is accessible for use within the user interface of the Processor Services or is otherwise integrated with the Processor Services.

“Additional Terms for Non-European Data Protection Legislation” means the additional terms referred to in Appendix 3, which reflect the parties’ agreement on the terms governing the processing of certain data in connection with Non-European Data Protection Legislation, as applicable.

“Adequate Country” means:

a) for data processed subject to the EU GDPR: the EEA, or a country or territory that is the subject of an adequacy decision by the Commission under Article 45(1) of the EU GDPR;

b) for data processed subject to the UK GDPR: the UK or a country or territory that is the subject of the adequacy regulations under Article 45(1) of the UK GDPR and Section 17A of the Data Protection Act 2018; and/or

c) for data processed subject to the Swiss FDPA: Switzerland, or a country or territory that (i) is included in the list of the states whose legislation ensures an adequate level of protection as published by the Swiss Federal Data Protection and Information Commissioner, or (ii) is the subject of an adequacy decision by the Swiss Federal Council under the Swiss FDPA.

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party.

“Alternative Transfer Solution” means a solution, other than SCCs, that enables the lawful transfer of personal data to a third country in accordance with the European Data Protection Legislation.

“Partner Personal Data” means personal data that is processed by Fitbit on behalf of Partner in Fitbit’s provision of the Processor Services.

“Data Incident” means a breach of Fitbit’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Partner Personal Data on systems managed by or otherwise controlled by Fitbit.  “Data Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Partner Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

“Data Subject Tool” means a tool (if any) made available by a Fitbit Entity to data subjects that enables Fitbit to respond directly and in a standardised manner to certain requests from data subjects in relation to Partner Personal Data (for example, online advertising settings or an opt-out browser plugin).

“EEA” means the European Economic Area.

“EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

“European Data Protection Legislation” means, as applicable: (a) the GDPR; and/or (b) the Swiss FDPA.

“European or National Laws” means, as applicable: (a) EU or EU Member State law (if the EU GDPR applies to the processing of Partner Personal Data); and/or (b) the law of the UK or a part of the UK (if the UK GDPR applies to the processing of Partner Personal Data).

“GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR.

“Fitbit” means the Fitbit Entity that is party to the Agreement.

“Fitbit Affiliate Subprocessors” has the meaning given in Section 11.1 (Consent to Subprocessor Engagement).

“Fitbit Entity” means Fitbit LLC (formerly known as Fitbit, Inc.), Fitbit International Limited, or any other Affiliate of Google LLC.

“Non-European Data Protection Legislation” means data protection or privacy laws in force outside the EEA, Switzerland, and the UK.

“Notification Email Address” means the email address (if any) designated by Partner, through the user interface of the Processor Services or such other means provided by Fitbit, to receive certain notifications from Fitbit relating to this Data Processing Addendum.

“Processor Services” means the Fitbit Health Solutions products or services described in the applicable Fitbit Health Solutions Client Terms.  

“Security Documentation” means security certifications or documentation that Fitbit may make available in connection with the Processor Services.

“Security Measures” has the meaning given in Section 7.1.1 (Fitbit’s Security Measures).

“Standard Contractual Clauses” or “SCCs” means the European Commission’s standard contractual clauses listed below.  All references to ‘Google’ in the links contained in this definition and in the Standard Contractual Clauses are replaced with ‘Fitbit’, as applicable:

1. “SCCs (EU Controller-to-Processor)” means the terms at business.safety.google/gdprcontrollerterms/sccs/eu-c2p-dpa.
2. “SCCs (EU Processor-to-Controller)” means the terms at business.safety.google/gdprprocessorterms/sccs/p2c.
3. “SCCs (EU Processor-to-Processor)” means the terms at business.safety.google/gdprprocessorterms/sccs/eu-p2p-dpa.
4. “SCCs (EU Processor-to-Processor, Google Exporter)” means the terms at business.safety.google/gdprprocessorterms/sccs/eu-p2p-intra-group.
5. “SCCs (UK Controller-to-Processor)” means the terms at business.safety.google/gdprprocessorterms/sccs/uk-c2p-dpa

“Subprocessors” means third parties authorised under this Data Processing Addendum to have logical access to and process Partner Personal Data in order to provide parts of the Processor Services and any related technical support.

“Supervisory Authority” means, as applicable: (a) a “supervisory authority” as defined in the EU GDPR; and/or (b) the “Commissioner” as defined in the UK GDPR and/or the Swiss FDPA.

“Swiss FDPA” means the Federal Data Protection Act of 19 June 1992 (Switzerland).

“Term” means the period from the Terms Effective Date until the end of Fitbit’s provision of the Processor Services under  the Agreement.

“Terms Effective Date” means the date on which Partner clicked to accept or the parties otherwise agreed to this Data Processing Addendum. 

“Third-Party Subprocessors” has the meaning given in Section 11.1 (Consent to Subprocessor Engagement).

“UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.

2.2 The terms “controller”, “data subject”, “personal data”, “processing”, and “processor” as used in this Data Processing Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.

2.3 The terms “including”, “include” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.  Any examples in this Data Processing Addendum are illustrative and not the sole examples of a particular concept.

2.4 Any reference to a legal framework, statute or other legislative enactment is a reference to it as amended or re-enacted from time to time.

3. Duration of this Data Processing Addendum

This Data Processing Addendum will take effect on the Terms Effective Date and, regardless of whether the Term has expired, will remain in effect until, and automatically expire upon, deletion of all Partner Personal Data by Fitbit as described in this Data Processing Addendum.

4. Application of this Data Processing Addendum

4.1 Application of European Data Protection Legislation.  Sections 5 (Processing of Data) through 12 (Contacting Fitbit; Processing Records) (inclusive) will only apply to the extent that the European Data Protection Legislation applies to the processing of Partner Personal Data, including if: 

(a) the processing is in the context of the activities of an establishment of Partner in the EEA or the UK; and/or 

(b) Partner Personal Data is personal data relating to data subjects who are in the EEA or the UK and the processing relates to the offering to them of goods or services or the monitoring of their behaviour in the EEA or the UK.

4.2 Application to Processor Services.  This Data Processing Addendum will only apply to the Processor Services for which the parties agreed to this Data Processing Addendum (for example: (a) the Processor Services for which Partner clicked to accept this Data Processing Addendum; or (b) if the Agreement incorporates this Data Processing Addendum by reference, the Processor Services that are the subject of the Agreement). 

4.3 Incorporation of Additional Terms for Non-European Data Protection Legislation. The Additional Terms for Non-European Data Protection Legislation supplement this Data Processing Addendum.

5. Processing of Data

5.1 Roles and Regulatory Compliance; Authorisation.

5.1.1 Processor and Controller Responsibilities.  The parties acknowledge and agree that:

(a) Appendix 1 describes the subject matter and details of the processing of Partner Personal Data;

(b) Fitbit is a processor of Partner Personal Data under the European Data Protection Legislation; 

(c) Partner is a controller or processor, as applicable, of Partner Personal Data under the European Data Protection Legislation; and

(d) each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of Partner Personal Data.

5.1.2 Authorisation by Third-Party Controller.  If Partner is a processor, Partner warrants to Fitbit that Partner’s instructions and actions with respect to Partner Personal Data, including its appointment of Fitbit as another processor, have been authorised by the relevant controller.

5.2 Partner’s Instructions.  By entering into this Data Processing Addendum, Partner instructs Fitbit to process Partner Personal Data only in accordance with applicable law: (a) to provide the Processor Services and any related technical support; (b) as further specified through Partner’s use of the Processor Services (including in the settings and other functionality of the Processor Services) and any related technical support; (c) as documented in the form of the Agreement, including this Data Processing Addendum; and (d) as further documented in any other written instructions given by Partner and acknowledged by Fitbit as constituting instructions for purposes of this Data Processing Addendum.  

5.3 Fitbit’s Compliance with Instructions.  Fitbit will comply with the instructions described in Section 5.2 (Partner’s Instructions) (including with regard to data transfers) unless European or National Laws to which Fitbit is subject require other processing of Partner Personal Data by Fitbit, in which case Fitbit will inform Partner (unless any such law prohibits Fitbit from doing so on important grounds of public interest). 

6. Data Deletion

6.1 Deletion During Term.  

6.1.1 Processor Services With Deletion Functionality.  During the Term, if: 

(a) the functionality of the Processor Services includes the option for Partner to delete Partner Personal Data;

(b) Partner uses the Processor Services to delete certain Partner Personal Data; and 

(c) the deleted Partner Personal Data cannot be recovered by Partner (for example, from the “trash”), 

then Fitbit will delete such Partner Personal Data from its systems as soon as reasonably practicable, unless European or National Laws require storage. 

6.1.2 Processor Services Without Deletion Functionality.  During the Term, if the functionality of the Processor Services does not include the option for Partner to delete Partner Personal Data, then Fitbit will comply with any reasonable request from Partner to facilitate such deletion, insofar as this is possible taking into account the nature and functionality of the Processor Services. Fitbit may charge a fee (based on Fitbit’s reasonable costs) for any data deletion under this Section 6.1.2 (Processor Services Without Deletion Functionality).  Fitbit will provide Partner with further details of any applicable fee, and the basis of its calculation, in advance of any such data deletion. 

6.2 Deletion on Term Expiry.  On expiry of the Term, Partner instructs Fitbit to delete all Partner Personal Data (including existing copies) from Fitbit’s systems in accordance with applicable law.  Fitbit will comply with this instruction as soon as reasonably practicable unless European or National Laws require storage.

7. Data Security

7.1 Fitbit’s Security Measures and Assistance. 

7.1.1 Fitbit’s Security Measures.  Fitbit will implement and maintain technical and organisational measures to protect Partner Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access as described in Appendix 2 (the “Security Measures”).  Fitbit may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Processor Services.  

7.1.2 Security Compliance by Fitbit Staff.  Fitbit will ensure that all persons authorised to process Partner Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

7.1.3 Fitbit’s Security Assistance.  Partner agrees that Fitbit will assist Partner in ensuring compliance with any obligations of Partner regarding security of personal data and personal data breaches (taking into account the nature of the processing of Partner Personal Data and the information available to Fitbit), including (if applicable) Partner’s obligations under Articles 32 to 34 (inclusive) of the GDPR, by:

(a) implementing and maintaining the Security Measures in accordance with Section 7.1.1 (Fitbit’s Security Measures);

(b) complying with the terms of Section 7.2 (Data Incidents); and

(c) providing Partner with the Security Documentation in accordance with Section 7.4.1 (Reviews of Security Documentation) and the information contained in this Data Processing Addendum.

7.2 Data Incidents. 

7.2.1 Incident Notification.  If Fitbit becomes aware of a Data Incident, Fitbit will: (a) notify Partner of the Data Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimise harm and secure Partner Personal Data.

7.2.2 Details of Data Incident.  Notifications made under Section 7.2.1 (Incident Notification) will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps Fitbit recommends Partner take to address the Data Incident. 

7.2.3 Delivery of Notification.  Fitbit will deliver its notification of any Data Incident to the Notification Email Address or, at Fitbit’s discretion (including if Partner has not provided a Notification Email Address), by other direct communication (for example, by phone call or an in-person meeting).  Partner is solely responsible for providing the Notification Email Address and ensuring that the Notification Email Address is current and valid.

7.2.4 Third-Party Notifications.  Partner is solely responsible for complying with incident notification laws applicable to Partner and fulfilling any third-party notification obligations related to any Data Incident.  

7.2.5 No Acknowledgement of Fault by Fitbit.  Fitbit’s notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by Fitbit of any fault or liability with respect to the Data Incident. 

7.3 Partner’s Security Responsibilities and Assessment.

7.3.1 Partner’s Security Responsibilities.  Partner agrees that, without prejudice to Fitbit’s obligations under Sections 7.1 (Fitbit’s Security Measures and Assistance) and 7.2 (Data Incidents):

(a) Partner is responsible for its use of the Processor Services, including:

(i) making appropriate use of the Processor Services to ensure a level of security appropriate to the risk to Partner Personal Data; and

(ii) securing the account authentication credentials, systems, and devices Partner uses to access the Processor Services; and

(b) Fitbit has no obligation to protect Partner Personal Data that Partner elects to store or transfer outside of Fitbit’s and its Subprocessors’ systems.

7.3.2 Partner’s Security Assessment.  Partner acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of the processing of Partner Personal Data, as well as the risks to individuals) the Security Measures implemented and maintained by Fitbit in Section 7.1.1 (Fitbit’s Security Measures) provide a level of security appropriate to the risk to Partner Personal Data.

7.4 Reviews and Audits of Compliance.

7.4.1 Reviews of Security Documentation.  To demonstrate compliance by Fitbit with its obligations under this Data Processing Addendum, Fitbit will make the Security Documentation available for review by Partner.

7.4.2 Partner’s Audit Rights. 

(a) Fitbit will allow Partner or a third-party auditor appointed by Partner to conduct audits (including inspections) to verify Fitbit’s compliance with its obligations under this Data Processing Addendum in accordance with Section 7.4.3 (Additional Business Terms for Audits).  Fitbit will contribute to such audits as described in this Section 7.4 (Reviews and Audits of Compliance).

(b) If the Standard Contractual Clauses apply under Section 10.2 (Transfers of Data), Fitbit will allow Partner or a third-party auditor appointed by Partner to conduct audits as described in the Standard Contractual Clauses in accordance with Section 7.4.3 (Additional Business Terms for Audits).

7.4.3 Additional Business Terms for Audits.  

(a) Partner will send any request for an audit under Section 7.4.2(a) or 7.4.2(b) to Fitbit as described in Section 12.1 (Contacting Fitbit). 

(b) Following receipt by Fitbit of a request under Section 7.4.3(a), Fitbit and Partner will discuss and agree in advance on the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any audit under Section 7.4.2(a) or 7.4.2(b). 

(c) Fitbit may charge a fee (based on Fitbit’s reasonable costs) for any audit under Section 7.4.2(a) or 7.4.2(b).  Fitbit will provide Partner with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.  Partner will be responsible for any fees charged by any third-party auditor appointed by Partner to execute any such audit. 

(d) Fitbit may object to any third-party auditor appointed by Partner to conduct any audit under Section 7.4.2(a) or 7.4.2(b) if the auditor is, in Fitbit’s reasonable opinion, not suitably qualified or independent, a competitor of Fitbit or otherwise manifestly unsuitable.  Any such objection by Fitbit will require Partner to appoint another auditor or conduct the audit itself. 

(e) Nothing in this Data Processing Addendum will require Fitbit either to disclose to Partner or its third-party auditor, or to allow Partner or its third-party auditor to access: 

(i) any data of any other customer of a Fitbit Entity; 

(ii) any Fitbit Entity’s internal accounting or financial information;

(iii) any trade secret of a Fitbit Entity;

(iv) any information that, in Fitbit’s reasonable opinion, could: (A) compromise the security of any Fitbit Entity’s systems or premises; or (B) cause any Fitbit Entity to breach its obligations under the European Data Protection Legislation or its security and/or privacy obligations to Partner or any third party; or

(v) any information that Partner or its third-party auditor seeks to access for any reason other than the good faith fulfilment of Partner’s obligations under the European Data Protection Legislation.

7.4.4 No Modification of Standard Contractual Clauses.  If the Standard Contractual Clauses apply under Section 10.2 (Transfers of Data), nothing in this Section 7.4 (Reviews and Audits of Compliance) varies or modifies any rights or obligations of Partner or Fitbit under the Standard Contractual Clauses.

8. Impact Assessments and Consultations

Partner agrees that Fitbit will assist Partner in ensuring compliance with any obligations of Partner regarding data protection impact assessments and prior consultation (taking into account the nature of the processing and the information available to Fitbit), including (if applicable) Partner’s obligations under Articles 35 and 36 of the GDPR, by:

(a) providing the Security Documentation in accordance with Section 7.4.1 (Reviews of Security Documentation);

(b) providing the information contained in this Data Processing Addendum; and

(c) providing or otherwise making available, in accordance with Fitbit’s standard practices, other materials concerning the nature of the Processor Services and the processing of Partner Personal Data (for example, help centre materials). 

9. Data Subject Rights

9.1 Responses to Data Subject Requests.  If Fitbit receives a request from a data subject in relation to Partner Personal Data, Fitbit will:

(a) if the request is made through a Data Subject Tool, respond directly to the data subject’s request in accordance with the standard functionality of that Data Subject Tool; or 

(b) if the request is not made through a Data Subject Tool, advise the data subject to submit his/her request to Partner, and Partner will be responsible for responding to such request.  

9.2 Fitbit’s Data Subject Request Assistance.  Partner agrees that Fitbit will assist Partner in fulfilling any obligation of Partner to respond to requests by data subjects (taking into account the nature of the processing of Partner Personal Data and, if applicable, Article 11 of the GDPR), including (if applicable) Partner’s obligation to respond to requests for exercising the data subject’s rights in Chapter III of the GDPR, by: 

(a) providing the functionality of the Processor Services;

(b) complying with the commitments in Section 9.1 (Responses to Data Subject Requests); and

(c) if applicable to the Processor Services, making available Data Subject Tools.

10. Data Transfers

10.1 Data Storage and Processing Facilities.  Subject to the remainder of this Section 10 (Data Transfers), Fitbit may process Partner Personal Data in any country in which Fitbit or any of its Subprocessors maintains facilities.

10.2 Permitted Transfers.

The parties acknowledge that the European Data Protection Legislation does not require the SCCs or an Alternative Transfer Solution in order to process Partner Personal Data in or transfer it to an Adequate Country (“Permitted Transfers”).

10.3 Restricted Transfers. If the processing of Partner Personal Data involves any transfers that are not Permitted Transfers, and the European Data Protection Legislation applies to those transfers (“Restricted Transfer”), then:

(a) if Fitbit announces its adoption of an Alternative Transfer Solution for any Restricted Transfers, then Fitbit will ensure that they are made in accordance with that Alternative Transfer Solution; and/or

(b) if Fitbit has not adopted an Alternative Transfer Solution for any Restricted Transfers, then:

(i) if Fitbit’s address is in an Adequate Country:

a)the SCCs (EU Processor-to-Processor, Google Exporter) will apply with respect to all Restricted Transfers from Fitbit to Subprocessors; and

b)in addition, if Partner’s address is not in an Adequate Country, the SCCs (EU Processor-to-Controller) will apply with respect to Restricted Transfers between Fitbit and Partner (regardless of whether Partner is a controller and/or a processor); or

(ii) if Fitbit’s address is not in an Adequate Country:

a) the SCCs (EU Controller-to-Processor) and/or SCCs (EU Processor-to-Processor) will apply (according to whether Partner is a controller and/or processor) with respect to Restricted Transfers between Partner and Fitbit that are subject to the EU GDPR and/or the Swiss FDPA; and

b) the SCCs (UK Controller-to-Processor) will apply (regardless of whether Partner is a controller and/or processor) with respect to Restricted Transfers between Partner and Fitbit that are subject to the UK GDPR.

10.4 Supplementary Measures and Information. Fitbit will provide Partner with information relevant to Restricted Transfers, including information about supplementary measures protect Partner Personal Data, as described in Section 7.4.1 (Reviews of Security Documentation), Appendix 2 (Security Measures) and other materials concerning the nature of the Processor Services and the processing of Partner Personal Data (for example, help centre articles).

10.5 Termination. If Partner concludes, based on its current or intended use of the Processor Services, that the Alternative Transfer Solution and/or SCCs, as applicable, do not provide appropriate safeguards for Partner Personal Data, then Partner may immediately terminate the Agreement for convenience by notifying Fitbit in writing.

10.6 Data Centre Information.  Information about the locations of Fitbit data centres is available at www.google.com/about/datacenters/locations/index.html.  

11. Subprocessors

11.1 Consent to Subprocessor Engagement.  Partner specifically authorises the engagement of Fitbit’s Affiliates as Subprocessors (“Fitbit Affiliate Subprocessors”).  In addition, Partner generally authorises the engagement of any other third parties as Subprocessors (“Third-Party Subprocessors”). If the Standard Contractual Clauses apply under Section 10.2 (Transfers of Data), the above authorizations constitute Partner’s prior written consent to the subcontracting by Fitbit of the processing of Partner Personal Data.

11.2 Information about Subprocessors.  Information about Subprocessors is available at privacy.google.com/businesses/gdprsubprocessors. 

11.3 Requirements for Subprocessor Engagement.  When engaging any Subprocessor, Fitbit will:  

(a) ensure through a written contract that:

(i) the Subprocessor only accesses and uses Partner Personal Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including this Data Processing Addendum) and, if applicable under Section 10.2 (Transfers of Data), the Standard Contractual Clauses; and 

(ii) if the GDPR applies to the processing of Partner Personal Data, the data protection obligations in Article 28(3) of the GDPR are imposed on the Subprocessor; and

(b) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

11.4 Opportunity to Object to Subprocessor Changes.  

(a) When any new Third-Party Subprocessor is engaged during the Term, Fitbit will inform Partner of the engagement (including the name and location of the relevant subprocessor and the activities it will perform) by sending an email to the Notification Email Address at least 30 days before the new Third-Party Subprocessor processes any Partner Personal Data. 

(b) Partner may object to any new Third-Party Subprocessor by terminating the Agreement immediately upon written notice to Fitbit, on condition that Partner provides such notice within 90 days of being informed of the engagement of the new Third-Party Subprocessor as described in Section 11.4(a).  This termination right is Partner’s sole and exclusive remedy if Partner objects to any new Third-Party Subprocessor. 

12. Contacting Fitbit; Processing Records

12.1 Contacting Fitbit.  Partner may contact Fitbit in connection with this Data Processing Addendum at legal-notices@google.com or through such other means as may be provided by Fitbit from time to time.  

12.2 Fitbit’s Processing Records.  Partner acknowledges that Fitbit is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Fitbit is acting and (if applicable) of such processor’s or controller’s local representative and data protection officer; and (b) make such information available to any Supervisory Authority.  Accordingly, where requested and applicable, Partner will provide such information to Fitbit through the user interface of the Processor Services or via such other means as may be provided by Fitbit, and will use such user interface or other means to ensure that all information provided is kept accurate and up-to-date.

13. Liability  

13.1 Liability Cap. Regardless of anything else in the Agreement, the total liability of either party towards the other party under or in connection with this Data Processing Addendum will be limited to the maximum monetary or payment-based amount at which that party’s liability is capped under the Agreement (and therefore any exclusion of confidentiality or indemnification claims from the Agreement’s limitation of liability will not apply to claims under the Agreement relating to the European Data Protection Legislation or the Non-European Data Protection Legislation).  Nothing in this Section 13 (Liability) will exclude or limit either party’s liability for: (a) death or personal injury resulting from its negligence or the negligence of its employees or agents; (b) fraud or fraudulent misrepresentation; or (c) matters for which liability cannot be excluded or limited under applicable law.  

13.2 Liability if the Standard Contractual Clauses Apply. If the Standard Contractual Clauses apply under Section 10.2 (Transfers of Data), then the total combined liability of each party and its Affiliates towards the other party and its Affiliates under or in connection with the Agreement and the Standard Contractual Clauses combined will be subject to Section 13.1 (Liability Cap).

14. Third-Party Beneficiaries

If a party’s Affiliate is a party to the Standard Contractual Clauses that apply under Section 10.2 (Transfers of Data), then that Affiliate will be a third-party beneficiary of Sections 6.2 (Deletion on Term Expiry), 7.4 (Reviews and Audits of Compliance), 9.1 (Responses to Data Subject Requests), 10.2 (Transfers of Data), 11.1 (Consent to Subprocessor Engagement), and 13.2 (Liability if the Standard Contractual Clauses Apply). To the extent this Section 14 (Third-Party Beneficiaries) conflicts or is inconsistent with any other clause in the Agreement, this Section 14 (Third-Party Beneficiaries) will apply.

15. Effect of this Data Processing Addendum

If there is any conflict or inconsistency between the Standard Contractual Clauses, the Additional Terms for Non-European Data Protection Legislation, this Data Processing Addendum, and the remainder of the Agreement, then the following order of precedence will apply:

(a) the Standard Contractual Clauses;

(b) the Additional Terms for Non-European Data Protection Legislation;

(c) the remainder of this Data Processing Addendum; and

(d) the remainder of the Agreement.

If this Agreement (including any Addendum) is translated into any other language, and the translated text conflicts or is inconsistent with the English text, the English text will govern.

Subject to the amendments in this Data Processing Addendum, the Agreement remains in full force and effect.

16. Changes to this Data Processing Addendum

16.1 Changes to URLs.  From time to time, Fitbit may change any URL referenced in this Data Processing Addendum and the content at any such URL, except that Fitbit may only change the Standard Contractual Clauses in accordance with Sections 16.2(b) – 16.2(d) (Changes to Data Processing Addendum) or to incorporate any new version of the Standard Contractual Clauses that may be adopted under the European Data Protection Legislation, in each case in a manner that does not affect the validity of the Standard Contractual Clauses under the European Data Protection Legislation.

16.2 Changes to Data Processing Addendum.  Fitbit may change this Data Processing Addendum if the change: 

(a) is expressly permitted by this Data Processing Addendum, including as described in Section 16.1 (Changes to URLs);

(b) reflects a change in the name or form of a legal entity; 

(c) is required to comply with applicable law, applicable regulation, a court order, or guidance issued by a governmental regulator or agency; or

(d) does not (i) result in a degradation of the overall security of the Processor Services; (ii) expand the scope of or remove any restrictions on, (x) in the case of the Additional Terms for Non-European Data Protection Legislation, Fitbit’s rights to use or otherwise process the data in scope of the Additional Terms for Non-European Data Protection Legislation or (y) in the case of the remainder of this Data Processing Addendum, Fitbit’s processing of Partner Personal Data, as described in Section 5.3 (Fitbit’s Compliance with Instructions); and (iii) otherwise have a material adverse impact on Partner’s rights under this Data Processing Addendum, as reasonably determined by Fitbit.

16.3 Notification of Changes. If Fitbit intends to change this Data Processing Addendum under Section 16.2(c) or (d), Fitbit will inform Partner at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect by either: (a) sending an email to the Notification Email Address; or (b) alerting Partner through the user interface for the Processor Services. If Partner objects to any such change, Partner may terminate the Agreement by giving written notice to Fitbit within 90 days of being informed by Fitbit of the change.

Appendix 1: Subject Matter and Details of the Data Processing

Subject Matter

Fitbit’s provision of the Processor Services and any related technical support to Partner. 

Duration of the Processing

The Term plus the period from expiry of the Term until deletion of all Partner Personal Data by Fitbit in accordance with this Data Processing Addendum.

Nature and Purpose of the Processing

Fitbit will process Partner Personal Data for the purpose of providing the Processor Services and any related technical support to Partner in accordance with this Data Processing Addendum (including, as applicable to the Processor Services and the instructions described in Section 5.2 (Partner’s Instructions), collecting, recording, organising, structuring, storing, altering, retrieving, using, disclosing, combining, erasing and destroying Partner Personal Data). 

Types of Personal Data

Partner Personal Data may include (without limitation) the following types of personal data:  name, email address, shipping address, eligibility data or similar information (like a telephone number or subscriber ID).

Categories of Data Subjects

Partner Personal Data will concern the following categories of data subjects:

• individuals to whom online advertising has been, or will be, directed;

• data subjects about whom Fitbit collects personal data in its provision of the Processor Services; and/or
• data subjects about whom personal data is transferred to Fitbit in connection with the Processor Services by, at the direction of, or on behalf of Partner.

Depending on the nature of the Processor Services, these data subjects may include individuals: (a) to whom online advertising has been, or will be, directed; (b) who have visited specific websites or applications in connection with the Processor Services; and/or (c) who are customers or users of Partner’s products or services.

Appendix 2: Security Measures

As from the Terms Effective Date, Fitbit will implement and maintain the Security Measures in this Appendix 2.  Fitbit may update or modify such Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Processor Services.  

1. Data Centre & Network Security

(a) Data Centres.

Infrastructure. Fitbit maintains geographically distributed data centres. Fitbit stores all production data in physically secure data centres.

Redundancy. Infrastructure systems have been designed to eliminate single points of failure and minimise the impact of anticipated environmental risks. Dual circuits, switches, networks or other necessary devices help provide this redundancy. The Processor Services are designed to allow Fitbit to perform certain types of preventative and corrective maintenance without interruption. All environmental equipment and facilities have documented preventative maintenance procedures that detail the process for and frequency of performance in accordance with the manufacturer’s or internal specifications. Preventative and corrective maintenance of the data centre equipment is scheduled through a standard process according to documented procedures.

Power. The data centre electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, and 7 days a week. In most cases, a primary as well as an alternate power source, each with equal capacity, is provided for critical infrastructure components in the data centre. Backup power is provided by various mechanisms such as uninterruptible power supply (UPS) batteries, which supply consistently reliable power protection during utility brownouts, blackouts, over voltage, under voltage, and out-of-tolerance frequency conditions. If utility power is interrupted, backup power is designed to provide transitory power to the data centre, at full capacity, for up to 10 minutes until the diesel generator systems take over. The diesel generators are capable of automatically starting up within seconds to provide enough emergency electrical power to run the data centre at full capacity typically for a period of days.

Server Operating Systems. Fitbit servers use hardened operating systems which are customised for the unique server needs of the business. Data is stored using proprietary algorithms to augment data security and redundancy. Fitbit employs a code review process to increase the security of the code used to provide the Processor Services and enhance the security products in production environments.

Businesses Continuity. Fitbit replicates data over multiple systems to help to protect against accidental destruction or loss.  Fitbit has designed and regularly plans and tests its business continuity planning/disaster recovery programs.

(b) Networks & Transmission.

Data Transmission. Data centres are typically connected via high-speed private links to provide secure and fast data transfer between data centres.  This is designed to prevent data from being read, copied, altered or removed without authorisation during electronic transfer or transport or while being recorded onto data storage media.  Fitbit transfers data via Internet standard protocols.

External Attack Surface. Fitbit employs multiple layers of network devices and intrusion detection to protect its external attack surface. Fitbit considers potential attack vectors and incorporates appropriate purpose built technologies into external facing systems.

Intrusion Detection. Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. Fitbit’s intrusion detection involves:

1. Tightly controlling the size and make-up of Fitbit’s attack surface through preventative measures;

2. Employing intelligent detection controls at data entry points; and

3. Employing technologies that automatically remedy certain dangerous situations.

Incident Response. Fitbit monitors a variety of communication channels for security incidents, and Fitbit’s security personnel will react promptly to known incidents.

Encryption Technologies. Fitbit makes HTTPS encryption (also referred to as SSL or TLS connection) available.  Fitbit servers support ephemeral elliptic curve Diffie Hellman cryptographic key exchange signed with RSA and ECDSA.  These perfect forward secrecy (PFS) methods help protect traffic and minimise the impact of a compromised key, or a cryptographic breakthrough.

2. Access and Site Controls

(a) Site Controls.

On-site Data Centre Security Operation. Fitbit’s data centres maintain an on-site security operation responsible for all physical data centre security functions 24 hours a day, 7 days a week. The on-site security operation personnel monitor Closed Circuit TV (“CCTV”) cameras and all alarm systems. On-site security operation personnel perform internal and external patrols of the data centre regularly.

Data Centre Access Procedures. Fitbit maintains formal access procedures for allowing physical access to the data centres. The data centres are housed in facilities that require electronic card key access, with alarms that are linked to the on-site security operation. All entrants to the data centre are required to identify themselves as well as show proof of identity to on-site security operations. Only authorised employees, contractors and visitors are allowed entry to the data centres. Only authorised employees and contractors are permitted to request electronic card key access to these facilities. Data centre electronic card key access requests must be made in advance and in writing, and require the approval of the requestor’s manager and the data centre director. All other entrants requiring temporary data centre access must: (i) obtain approval in advance from the data centre managers for the specific data centre and internal areas they wish to visit; (ii) sign in at on-site security operations; and (iii) reference an approved data centre access record identifying the individual as approved.

On-site Data Centre Security Devices. Fitbit’s data centres employ an electronic card key and biometric access control system that is linked to a system alarm. The access control system monitors and records each individual’s electronic card key and when they access perimeter doors, shipping and receiving, and other critical areas. Unauthorised activity and failed access attempts are logged by the access control system and investigated, as appropriate. Authorised access throughout the business operations and data centres is restricted based on zones and the individual’s job responsibilities. The fire doors at the data centres are alarmed. CCTV cameras are in operation both inside and outside the data centres. The positioning of the cameras has been designed to cover strategic areas including, among others, the perimeter, doors to the data centre building, and shipping/receiving. On-site security operations personnel manage the CCTV monitoring, recording and control equipment. Secure cables throughout the data centres connect the CCTV equipment. Cameras record on-site via digital video recorders 24 hours a day, 7 days a week. The surveillance records are retained for at least 7 days based on activity.

(b) Access Control.

Infrastructure Security Personnel. Fitbit has, and maintains, a security policy for its personnel, and requires security training as part of the training package for its personnel. Fitbit’s infrastructure security personnel are responsible for the ongoing monitoring of Fitbit’s security infrastructure, the review of the Processor Services, and responding to security incidents.

Access Control and Privilege Management. Partner’s administrators and users must authenticate themselves via a central authentication system or via a single sign on system in order to use the Processor Services.

Internal Data Access Processes and Policies – Access Policy. Fitbit’s internal data access processes and policies are designed to prevent unauthorised persons and/or systems from gaining access to systems used to process personal data.  Fitbit aims to design its systems to: (i) only allow authorised persons to access data they are authorised to access; and (ii) ensure that personal data cannot be read, copied, altered or removed without authorisation during processing, use and after recording.  The systems are designed to detect any inappropriate access.  Fitbit employs a centralised access management system to control personnel access to production servers, and only provides access to a limited number of authorised personnel. LDAP, Kerberos and a proprietary system utilising SSH certificates are designed to provide Fitbit with secure and flexible access mechanisms. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information. Fitbit requires the use of unique user IDs, strong passwords, two factor authentication and carefully monitored access lists to minimise the potential for unauthorised account use.  The granting or modification of access rights is based on: the authorised personnel’s job responsibilities; job duty requirements necessary to perform authorised tasks; and a need to know basis. The granting or modification of access rights must also be in accordance with Fitbit’s internal data access policies and training. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g. login to workstations), password policies that follow at least industry standard practices are implemented. These standards include restrictions on password reuse and sufficient password strength. 

3. Data

(a) Data Storage, Isolation & Authentication.

Fitbit stores data in a multi-tenant environment on Fitbit-owned servers. Data, the Processor Services database and file system architecture are replicated between multiple geographically dispersed data centres.  Fitbit logically isolates each customer’s data.  A central authentication system is used across all Processor Services to increase uniform security of data.

(b) Decommissioned Disks and Disk Destruction Guidelines.

Certain disks containing data may experience performance issues, errors or hardware failure that lead them to be decommissioned (“Decommissioned Disk”). Every Decommissioned Disk is subject to a series of data destruction processes (the “Data Destruction Guidelines”) before leaving Fitbit’s premises either for reuse or destruction. Decommissioned Disks are erased in a multi-step process and verified complete by at least two independent validators. The erase results are logged by the Decommissioned Disk’s serial number for tracking. Finally, the erased Decommissioned Disk is released to inventory for reuse and redeployment. If, due to hardware failure, the Decommissioned Disk cannot be erased, it is securely stored until it can be destroyed. Each facility is audited regularly to monitor compliance with the Data Destruction Guidelines.

4. Personnel Security

Fitbit personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. Fitbit conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations.

Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, Fitbit’s confidentiality and privacy policies.  Personnel are provided with security training.  Personnel handling Partner Personal Data are required to complete additional requirements appropriate to their role.  Fitbit’s personnel will not process Partner Personal Data without authorisation

5. Subprocessor Security

Before onboarding Subprocessors, Fitbit conducts an assessment of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once Fitbit has assessed the risks presented by the Subprocessor then, subject always to the requirements in Section 11.3 (Requirements for Subprocessor Engagement), the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms.

Appendix 3: Additional Terms for Non-European Data Protection Legislation

The following Additional Terms for Non-European Data Protection Legislation supplement this Data Processing Addendum.  All references to ‘Google’ in the links below are replaced with ‘Fitbit’:

• CCPA Service Provider Addendum at privacy.google.com/businesses/gdprprocessorterms/ccpa (dated 27 August 2020)

• LGPD Processor Addendum at privacy.google.com/businesses/gdprprocessorrterms/lgpd (dated 27 August 2020)

Fitbit Data Processing Addendum

9 December 2021