Additional terms Faber Cloud

Additional Terms and Conditions of Sale
for Connected Products (Products enabled to connect to the Faber Digital Service)

  1. Definitions

Faber SpA, Viale XIII
Luglio, 160, 60044 Fabriano AN, Italy (“Faber”) is the provider of the Faber Digital Services which can be accessed by connecting the Faber Connected Product and/or other device enabled to connect the Faber Digital Services (e.g. a portable mobile device with the Faber App installed) to the Internet.

The terms used in these Additional Terms of Sale for Connected Product shall have the meaning given to them by the Terms of Service for the Faber Digital Service, unless otherwise defined.

For the purposes of these Additional Terms

– “Additional Terms
means these Additional Terms of Sale for Connected Products
(Products enabled to connect to the Faber Digital Service);

- “Purchase Order
means both the order of specific Faber products and/or services by the End User for his or her own use and by the Reseller for resale, (i.e. the sending by the Reseller of an order for the End User’s products to Faber), by means of an order form or similar digital or physical document specifying the exact product(s) and service(s) ordered, including the price, the main features of the Product and the level of service chosen by the End User, if any.

– “Authorised Reseller” means any Distributor or Reseller authorised by Faber for the resale of Faber Products and/or Services under the terms and conditions of a written distribution agreement between Faber and the Authorised Reseller.

– “Connected Product
means any Faber Product enabled to connect to the Faber Digital Service, either directly or with the help of auxiliary equipment.

  1. Scope of these Additional Terms

The sale of any Faber equipment, including the Product, 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.

These Additional Terms also apply to any purchase or procurement of a Connected Product, and related equipment or components, directly from Faber, whether you are purchasing/acquiring the Connected Product for your own and private use (as an “End User”) or for resale purposes (as a “Reseller” or “Distributor”, for the purposes of these Additional Terms and Conditions, also meaning a commercial enterprise that resells Franke products in its own name and for its own own account for the purposes of these Additional Terms). For the purposes of these Additional Terms, the term “Buyer” means both the End User and the Reseller.

To be clear: if the user is an Authorised Distributor, the underlying distribution agreement may prevent him or her from reselling the Connected Products or establishing specific conditions for the resale of the Connected Products; these Additional Terms do not confer any distribution/resale rights (including, but not limited to, distribution rights in product range, territory, duration or exclusivity) that are not granted by the underlying distribution agreement.

Faber may offer the Reseller the right to participate in additional licensing or service programmes, which may require the Reseller to agree to additional terms.

By accepting these Additional Terms, you acknowledge and agree that these Additional Terms remain in effect and govern all future purchases of a Connected Product, regardless of whether they are repeated to the user and/or the user is required to accept these Additional Terms again when he or she purchases another Connected Product

  1. Relationship between Faber and the End User

All rights to use the software (licenses) incorporated into a Product purchased from Faber (including a Faber agent who sells in the name and on behalf of Faber) or from the Reseller and all Digital Services made available through or in connection with the Product purchased from Faber or the Reseller are provided directly by Faber to the End User and are governed by a direct contractual relationship between Faber and the End User.

The Reseller merely facilitates the End User’s acceptance of Faber’s terms regarding the rights to use the Product Software and the End User’s access to the Faber Digital Service.

The End User acknowledges and agrees that he or she may be asked by Faber to accept the terms of the contract at the time of registration of a user account and/or activation of the connected device and undertakes to interactively accept such terms as required, provided that these terms are not substantially different from those accepted at the time of purchase to the detriment of the End User

  1. Terms of Service applicable to the Faber Digital Service and the Faber EULA

A Faber Connected Product may allow the End User to use the Faber Digital Service.

The use of a Faber Digital Service and equipment connected to the Faber Digital Service is governed by the Terms of Service applicable to the Faber Digital Service (the “Terms of Service”, which can be found here: https://www.faberspa.com/faber_cloud_terms_of_service_IT/).

The software incorporated in the Product (“Product Software”) or embedded or installed on any Faber Digital Services-enabled equipment, such as Auxiliary Devices, and any updates thereto are licensed and governed by Faber’s End User License Agreement (“EULA”, which can be found here: https://www.faberspa.com/faber_cloud_eula_IT/).

If the user is an end user, he or she accepts, by purchasing the Connected Product and/or the Services or Subscriptions to be used in connection with the Faber Connected Product, to be bound by the Faber EULA and the Faber Digital Service Terms of Service for each Product and device to be connected to the Faber Digital Services.

Certain features of the Faber Digital Service may be subject to additional guidelines or terms, which will be published on the Faber Digital Services website selected at the address https://www.faberspa.com/faber_cloud_additional_terms_IT/ and/or, at Faber’s discretion, made available through the Connected Product and/or the Faber App (e.g. privacy policy).

The Buyer is aware and accepts that Faber may introduce, at any time after the original purchase of the Connected Product, new functions, features and options to the Faber Digital Service and that such new functions, features and options may, at Faber’s discretion, only be offered for a fee.

If the user is a distributor and not an End User, he or she is authorised to use the embedded software and the Faber Digital Service only for commercial demonstration/showroom display and installation purposes.

  1. End User requirements

The use of certain functions and features of the Connected Product may depend on whether the End User takes certain actions and whether the End User’s infrastructure meets certain requirements and criteria. These functions, features and respective prerequisites are indicated in detail in the most recent Product Documentation (which may be modified at any time by Faber at its discretion and without prior notice) or in the respective Purchase Order.

The requirements, for example, may include:

  1. New versions and updates of existing Products
  2. New versions and updates of existing Products.
    The Buyer acknowledges and agrees and the Reseller represents and warrants that its End User acknowledges and agrees that Faber may modify a Product, or may release a new version of a Product at any time and for any reason, including, but not limited to, meeting the needs of the End User or to otherwise responding to competitive demands, responding to a governmental regulation, order or law, or advancing innovation in our Product offer. Faber reserves the right to add new features or functions to a Product, or to remove existing features or functions from a Product.
  3. Price

Faber’s prices for the Products are in accordance with Faber’s price list (and any updates thereto) and as specified in the Purchase Order, if purchased/ordered from Franke. The Reseller enjoys the complete discretion to negotiate and establish prices and payment terms with its End Users. The negotiation of such terms by the Reseller shall not be subject in any way to Faber’s review or approval. Faber may notify Authorised Distributors of price changes by e-mail or letter.

  1. Reseller commitments regarding End User compliance

By transmitting a Purchase Order to Faber, the Reseller (i) declares and warrants that it has informed or will inform the End User of the direct contractual relationship with Faber regarding the use of the software and digital services and that it has obtained or will obtain the express consent of the End User to the Faber EULA and Faber’s Terms of Service for the Faber Digital Service and any other terms of Faber that may be applicable (e.g. the terms and conditions of an additional Faber Service Subscription for purchase for a fee by the End User) to the product and/or services ordered by the Reseller for resale. The Reseller undertakes to provide proof of the End User’s consent to Faber’s conditions at Faber’s first request.

If the End User purchases a Connected Product from the Reseller without having duly and validly accepted the terms of the EULA and/or the Terms of Service for the Faber Digital Service, the Reseller will be fully liable to Faber for all costs and damages suffered by Faber as a result of such failure.

  1. Data Protection and the Device’s Data
  2. Data Protection.

Personal data is any information relating to an identified or identifiable natural person (“Data Subject”) as defined in applicable data protection law. Faber may collect, use, transfer, disclose and otherwise process the data of each Data Subject, including personal data, as described in the Terms of Service. If Faber receives the End User’s personal data from the Reseller or a point of sale for the purposes described above, Faber is an independent data controller pursuant to applicable data protection law.

Some of the personal data provided may be stored or processed in other jurisdictions, such as the United States, whose data protection laws may differ from those in this jurisdiction. In such cases, Faber ensures that appropriate safeguards have been implemented to require the data controller in that country to maintain protections on personal data that are equivalent to those that apply in Faber’s country.

  1. The Device’s Data.

Faber has, for the entire Term, a non-exclusive, non-transferable, worldwide, perpetual and irrevocable license to collect, analyse or use statistical data relating to the Faber Digital Services, including all data derived from the Connected Product (“Device Data”) as set forth in the Terms of Service.

  1. Representations and warranties
  2. Representations and warranties of the Reseller.

The Reseller represents and warrants that (i) it will ensure that the End User purchasing from the Reseller is bound by the Terms of Service and limited use rights ordered pursuant to the applicable Purchase Order; (ii) it will ensure the End User’s acceptance of the terms of the EULA for each connected device as set forth in Clause 7; and (iii) will promptly notify Faber of any known or suspected breach of the Terms of Service or the EULA by an End User.

  1. Product Warranties.

Faber guarantees its Products purchased directly from Faber in accordance with its General Terms and Conditions of Sale and, with regard to Digital Services, as described in the Terms of Service; if the user is an Authorised Distributor, the product warranty is governed by the underlying commercial terms as a Distribution Agreement between Faber and the user himself or herself. The Reseller’s instructions to End Users on the use of the products must be consistent with Faber’s written warranty document, the Terms of Service, Faber’s Documentation and the EULA. The Reseller shall not make any representations, conditions or warranties on behalf of Faber.

Except where required by applicable laws, Faber makes no other express warranties, representations or conditions. To the fullest extent permitted by applicable laws, Faber excludes all implied warranties and conditions, such as the implied warranties of merchantability and fitness for a particular purpose. Faber does not provide any warranties or conditions with respect to Faber Digital Services-enabled equipment that is distributed, sold, managed or controlled by the Reseller.

  1. Limitation of Liability

Unless applicable law requires otherwise, the BUYER’s sole remedy with respect to these ADDITIONAL TERMS is to obtain from Faber direct compensation up to the amount actually paid by the BUYER to Faber during the preceding one-year period in respect of the relevant purchase order, in the absence of other contractual documents (including terms and conditions) applicable to the same purchase order that limit the Faber’s liability to a lower amount, in which case the limitation to a lower amount will apply. FABER SHALL NOT BE LIABLE TO THE BUYER 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 TO THE USE OF DIGITAL SERVICES, OR TO THE USE OR INABILITY TO USE THE FABER DIGITAL SERVICES OR THE PRODUCT CONTROLLED. IN NO EVENT SHALL FABER BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE HANDLING OF THE PRODUCT SOFTWARE, ITS COMPONENTS, CONTROLLED OR CONNECTED DEVICES, OR THE DISTRIBUTION, SALE, OR PROVISION OF SERVICES AS CONTEMPLATED BY THIS CONTRACT.

  1. Changes to these Additional Terms

Faber reserves the right to revise, amend or modify these Additional Terms at any time and without prior notice. Any revised version of these Additional Terms will govern all subsequent purchases of a Connected Product beginning upon the Buyer’s first acceptance of the revised Additional Terms.

  1. Miscellaneous
  2. Severability.

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

  1. Prohibition of transfer.

Except as provided for in these Additional Conditions, no right or obligation under these Additional Terms may be transferred or sub-licensed by the Buyer, including by operation of law, without the prior written consent of Faber. Faber may transfer the rights to these Additional Terms of Service without the consent of the Buyer. Any attempted assignment or transfer in violation of the foregoing shall be null and void and will entitle Faber to block the Buyer’s access to the Faber Digital Service without incurring any liability and/or to terminate the EULA without incurring any liability. Subject to the foregoing restriction, these Additional Terms of Service are 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 these Additional Terms of Service due to unforeseeable circumstances, acts of governmental authorities, hostile acts, terrorism, war, riots, floods, 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 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 End 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 Contract that provides for performance or compliance after any termination or expiration of this Contract including, but not limited to, all provisions relating to confidentiality, limitation of liability, and indemnification, shall survive any termination or expiration of this Contract 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 access to or use of the Service, 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 jurisdiction established by Faber’s underlying Terms of Sale or the applicable distribution agreement, as the case may be, shall also be applicable for all disputes arising from these Additional Terms.

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