EULA faber

End User License Agreement for Faber Digital Services (EULA)

By using the software (“Product Software”) that is embedded in and enables the Faber Product (“Product”) or by using the Faber Digital Services, the user agrees to the terms of this End User License Agreement (“EULA”) between the user and Faber SpA, Viale XIII Luglio, 160, 60044 Fabriano AN, Italy (“Faber”).

BY SUBSCRIBING TO A FABER DIGITAL SERVICE (INCLUDING INSTALLING AND ACTIVATING A FABER APPLICATION FOR A MOBILE DEVICE), THE USER ACKNOWLEDGES THAT HE OR SHE IS AUTHORISED TO ENTER INTO THESE TERMS OF SERVICE AND, IF THE USER IS ACCEPTING ON BEHALF OF HIS OR HER EMPLOYER OR ANOTHER ENTITY, THE USER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE LEGAL RIGHT TO BIND SUCH ENTITY AND TO ACCEPT ALL OF THE TERMS OF THESE TERMS OF SERVICE RELATING TO THE USE OF THE FABER DIGITAL SERVICES BY THE END USER. IF THE USER DOES NOT AGREE TO THESE TERMS OF SERVICE OR IS NOT AUTHORISED TO BIND THE END USER TO THESE TERMS OF SERVICE, HE OR SHE MUST NOT CLICK ON THE “I AGREE”, “ACCEPT” OR SIMILAR BUTTON OR MUST CLICK ON THE “I DO NOT AGREE” BUTTON OR CLOSE THE WINDOW TO STOP CREATING AN ACCOUNT WITHIN THE FRAMEWORK OF THE FABER DIGITAL SERVICES.

This EULA governs the access to and use of the Product Software, remote management of the Product Software, and updates thereto. It also regulates, by analogy, the access to and use of any Faber App downloaded on a Connected Product or on an Accessory Device, such as a mobile device, for use together with the Product (e.g. from the respective Apple or Google online application shops) and updates to the Faber App. The user’s use of the Faber Digital Service is governed by the Terms of Service.

The purchase of any Product enabled for Faber Digital Services is governed by the terms and conditions agreed by the user with the seller at the time of purchase of the Faber material, or, if the user is an Authorised Distributor, by the distribution agreement in force with regard to the underlying commercial terms. If the user is an End User, the limited contractual warranty (the terms of which can be found here: https://www.faberspa.com/garanzia-dei-prodotti/) provided by Faber also applies to any direct purchase of Faber equipment, regardless of the party from whom the purchase is made.

The terms used in this EULA, if not defined in the EULA itself, shall have the meaning given to them in the Terms of Service for Faber Digital Services.

  1. Licence

Subject to the terms of this EULA, Faber grants the user a limited, non-exclusive license (without the right to sublicense) to run the Product Software exclusively on the Product and use it in conjunction with the relevant official Faber App installed on a Connected Device owned or controlled by the user. The license is granted solely for personal, non-commercial purposes.

The Client grants Faber, for the period of validity of the Terms of Service for the Faber Digital Service and for the purposes indicated in the Terms of Service, the right to electronically connect to the Product Software and also grants Authorised Users and Faber full access to read, use and update the Product Software, the control software on the Product and derived device’s data.

  1. Restrictions

Except as specifically provided in this EULA, the grant of license in this EULA does not permit the End User or any third party (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code or create derivative works from the Product Software, or any part thereof, except as expressly permitted by local law and, in such case, only upon written notice to Faber; (b) use the Product Software in a capacity greater than that identified in a Purchase Order and in the Documentation; (c) sublicense, distribute or pledge the Product Software; (d) access, use or copy any part of the Product software to develop, promote or support, directly or indirectly, any product or service that competes with the Product Software; (e) rent, lease or commercially share or otherwise use the Product Software for any third-party purposes; (f) remove any identification, patent, trademark, copyright or other notices from the Product Software; (g) use any name, trademark or designation of Faber, or any of its affiliates or licensors or their respective products or services, except where explicitly permitted in this document or by Faber in writing; (h) interfere with or disrupt the integrity or performance of the Product Software; (i) attempt to gain unauthorised access to the Product Software or related systems or networks, including access to the Faber Digital Services.

Faber reserves the right to block, without incurring any liability, any Product Software that violates this section or if it is investigating suspected misconduct.

  1. Software updates

Faber may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services.

If the Product in question is enabled to connect to Faber Digital Services, such changes may be made without prior notice or request for consent to keep the Service and/or the Product at the highest level of performance. The user consents to such automatic updates for the duration of the Faber Digital Service Term in relation to the user’s Product and to the user’s Auxiliary/Device(s). If the user does not consent to such automatic updates, the only possibility is to interrupt the use of the Faber Digital Services.

The user further agrees, if and when notified of such possibility or interactively requested to do so, to promptly install the latest versions or patches/updates of the Product Software, and/or the software of any Auxiliary Device and/or, if applicable, any client software provided. Faber excludes all warranties and liability of any kind for the use of any software that has not been updated in accordance with this section 3.

  1. Ownership

The Product Software and all copyrights, trade secrets, and other intellectual property rights contained therein are the exclusive property of Faber and its licensors. Faber and its licensors reserve all rights in and to the Product Software. The Product Software (and all copies thereof) is licensed to the user, not sold, under this EULA, and the user will have no other right or interest in the Product Software.

  1. Duration and termination

This EULA and the license granted herein are effective from the date on which the user first uses the Product Software or the Product and remain valid and effective for the duration of the applicable Faber Digital Service, unless this EULA is terminated early pursuant to this section. Faber may terminate this EULA at any time if the user fails to comply with any of its terms. Upon termination of this EULA, the license granted below to connect to the Faber Digital Services shall lapse and the user shall cease all use of the relevant Product Software and any Faber App that connects to it.

This EULA is automatically terminated in the event of a valid withdrawal from any underlying purchase contract relating to the Product and shall lapse, without prior notice from Faber or another party from whom the purchase was made, when the withdrawal of the contract becomes effective.

  1. Exclusion of warranty

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FABER PROVIDES THE PRODUCT SOFTWARE AND SOFTWARE EMBEDDED IN OR INSTALLED ON AUXILIARY DEVICES “AS IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (such as monitoring air quality for safety purposes or receiving maintenance or air quality alerts or the prevention of mechanical defects or wear and tear of the Product), COMPLETENESS AND ACCURACY. FABER DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF SUCH SOFTWARE. FABER DOES NOT GUARANTEE THE UNINTERRUPTED USE OF SUCH SOFTWARE, NOR THAT IT IS FUNCTIONAL OR RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, SECURE OR ERROR-FREE.

THE USER SHALL USE ALL DATA OF THE DEVICE, PRODUCT OR ACCESSORY DEVICE SOFTWARE AT HIS OR HER OWN DISCRETION AND RISK. THE USER WILL BE SOLELY RESPONSIBLE (AND FABER DISCLAIMS ALL LIABILITY) FOR ANY LOSS, LIABILITY OR DAMAGE ARISING FROM THE USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE OR PRODUCT.

  1. Limitation of Liability

FABER’S OVERALL LIABILITY TO THE END USER, WHETHER FOR FAULT, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER BASIS FOR ACTION, SHALL BE LIMITED TO THE LESSER BETWEEN EUR 3,000 PER CLAIM AND CALENDAR YEAR AND ANY CHARGE PAID UNDER A SUBSCRIPTION BY THE END USER. FABER SHALL NOT BE LIABLE TO THE END USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, CONSEQUENTIAL DAMAGES, LOST INCOME, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL, PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE, OR TO THE USE OR INABILITY TO USE THE FABER DIGITAL SERVICES OR THE CONTROLLED PRODUCT. IN NO CASE SHALL FABER BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE HANDLING OF THE PRODUCT SOFTWARE, RELATED COMPONENTS, CONTROLLED OR CONNECTED DEVICES OR ANY RESPECTIVE AUXILIARY DEVICES AS PROVIDED FOR IN THESE TERMS OF SERVICE. THESE LIMITATIONS WILL APPLY EVEN IF THE ESSENTIAL PURPOSE HAS NOT BEEN FULFILLED.

  1. Limitations of the Product Software

The user agrees (a) to allow only authorised users or Faber to use the Product Software; (b) to promptly notify Faber if it becomes aware, or should become aware, of any unauthorised, actual or suspected use of the Product Software, or of any other breach or suspected breach of security relating to the Faber Digital Services. Faber shall not be liable for any loss or damage arising from unauthorised use of the Product Software; (c) to allow the installation of new versions of the software, such as bug fixes and patches when required.

9.Miscellanea

  1. Severability.

If one or more provisions of this EULA, for any reason, shall be deemed to be invalid, illegal or unenforceable, this shall not affect any of the other parts of this EULA. The failure or delay of either party in exercising any right hereunder shall not constitute a waiver of such right.

  1. Changes.

Faber, at its sole discretion, reserves the right to modify the terms and conditions of this EULA at any time, by publishing the revised EULA on the Faber website, which can be consulted here: https://www.faberspa.com/faber_cloud_eula_IT/, always provided that the modification does not adversely affect the user’s contractual rights arising from this EULA. In the event that the user has subscribed, according to the relevant Purchase Order, a Subscription to Faber Digital Services, the EULA is still valid in the version in force at the time of the last renewal of the Subscription, even without an express notification of a revision of the EULA. The continued use of the Product constitutes the user’s acceptance of this EULA.

  1. Prohibition of transfer.

This EULA, and any rights or obligations contained therein, may not be assigned or sub-licensed by the End User, including by operation of law, without the prior written consent of Faber. Faber may transfer this EULA without the user’s consent. Any attempted assignment or transfer in violation of the foregoing shall be null and void and will result in the immediate and automatic termination of this EULA. Subject to the foregoing restriction, this EULA is binding upon and inure to the benefit of the parties, their successors and transferees.

  1. Force majeure.

Except for payment of fees due hereunder, neither party shall be liable for any losses resulting from the delay or interruption of the performance of its obligations under this EULA due to unforeseeable circumstances, acts of governmental authorities, hostile acts, terrorism, war, riots, floods, epidemics, civil unrest, adverse weather conditions, unplanned system downtime, or any other cause which is beyond the reasonable control of the party thus hindered.

  1. Export.

The Product Software, Faber Digital Service, Related Components and Documentation may be subject to export control laws and related regulations and may be subject to the export or import regulations of other countries. The user agrees not to export or re-export the Faber Digital Service, the Related Components or the Documentation in any form in violation of any export or import law of any jurisdiction.

  1. Survival.

Any provision of this EULA that provides for performance or compliance after any termination or expiration of this EULA, including, but not limited to, all provisions relating to confidentiality, limitation of liability, and indemnification, shall survive any termination or expiration of this EULA and shall continue in full force and effect.

  1. Waiver.

The failure or delay of either party in exercising any right hereunder shall not constitute a waiver of such right.

  1. Governing Law / Jurisdiction

All matters relating to the access to or use of the Product Software, including any disputes, shall be governed by the laws of Italy without regard to any conflict of laws, provisions or international treaties, including in particular the Vienna Convention on the Sale of Goods. The place of jurisdiction for all disputes arising from the EULA shall be Fabriano, AN (Italy).

Version 1.0, published by
Faber SpA on 12/05/2021, Fabriano (AN)