Additional terms Faber Cloud
Additional Terms 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 is accessible by connecting your Faber Connected Product and/or other device enabled to connect to the Faber Digital Services (such as a mobile handheld device with installed Faber App) to the internet.
The Terms used in these Additional Terms of Sale for Connected Product shall have the meaning ascribed to them by the Terms of Service for Faber Digital Service, unless defined otherwise.
For the purpose of these Additional Terms
- “Additional Terms” shall mean these Additional Terms of Sale for Connected Products (Products enabled to connect to the Faber Digital Service)
-«Purchase Order“ shall include both the ordering of specific Faber products and/or services by the End-Customer for its own use as well as by the Reseller for resale, (i.e. Reseller‘s submission of an End-Customer‘s product order with the Reseller 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, main Product features and service level chosen by End-Customer, if any.
- «Authorized Reseller» shall mean any Distributor or Reseller authorized 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 Authorized Reseller.
- «Connected Product» shall mean any Faber Product enabled to connect to the Faber Digital Service, whether directly or with the help of ancillary equipment.
2. Scope of these Additional Terms
The sale of any Faber equipment, including the Product, is governed by the terms of sale or the terms and conditions you agreed upon when purchasing the Faber equipment, or, if you are an Authorized Distributor, the distribution agreement in effect as underlying commercial terms. If you are End-Customer, the limited contractual warranty (terms of which are accessible here: https://www.faberspa.com/en/product-warranty/) provided by Faber also applies for any first-hand purchase of Faber equipment, regardless from whom you purchase.
To any purchase or procurement of a Connected Product, and related equipment or components directly from Faber, these Additional Terms apply in addition, whether you are buying/procuring the Connected Product for your own, private use (being the “End-Customer”) or for resale purposes (being a “Reseller” or “Distributor”, for the purpose of these Additional Terms equally meaning a commercial enterprise re-selling Franke products in its own name and for its own account). For the purpose of these Additional Terms, the term “Purchaser” shall mean both the End-Customer and the Reseller.
For the avoidance of doubt: If you are an Authorized Distributor, the underlying distribution agreement may prevent you from reselling Connected Product or set out specific conditions for the resale of Connected Products; these Additional Terms do not confer any distribution/reselling rights (including but not limited to distribution rights regarding product range, territory, duration or exclusivity) that are not granted to you by the underlying distribution agreement.
Faber may offer Reseller the right to participate in additional licensing or service provision programs, which may require Reseller to accept additional terms.
With your acceptance to these Additional Terms you acknowledge and accept that these Additional Terms remain in force and will govern all your future purchases of a Connected Product, regardless of whether you will be made expressly aware again of and/or be requested to again accept these Additional Terms when buying another Connected Product.
3. Relationship between Faber and End-Customer
All use rights to software (licenses) embedded in a Product purchased from Faber (including a Faber agent selling on behalf and in the name of Faber) or Reseller and all Digital Services made available through or in connection with the Product purchased from Faber or Reseller are provided directly from Faber to End-Customer and governed by a direct contractual relationship between Faber and End-Customer.
The Reseller merely facilitates the End-Customer’s agreement to Faber’s terms regarding the use rights for the Product Software and access to Faber Digital Service by the End-Customer.
End-Customer acknowledges and agrees that she/he may be asked by Faber to accept according contract terms upon registration of a user account and/or on activation of connected device and undertakes to interactively accept such terms as prompted, provided that these terms are not materially different from the terms accepted at the moment of purchase to the detriment of the End-Customer.
4. Applicable Terms of Service for Faber Digital Service and Faber EULA
A Faber Connected Product may allow the End-Customer 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 for Faber Digital Service (the “Terms of Service”, available here https://www.faberspa.com/en/faber_cloud_terms_of_service_EN/).
The software embedded in the Product (“Product Software”) or embedded or installed on any equipment enabled for Faber Digital Services, such as Ancillary Devices, and any updates thereto is licensed and governed by the End-User Licensing Agreement of Faber (the “EULA”, available here https://www.faberspa.com/en/faber_cloud_eula_EN/).
If you are an End-Customer you agree, by purchasing the Connected Product and/or Services or Subscriptions to be used in the connection with the Connected Product from Faber, to be bound by Faber’s EULA and the Terms of Service for Faber Digital Service for each Product and device to connect with the Faber Digital Services.
Certain features of the Faber Digital Service may be subject to additional guidelines or terms, which will be posted on the selected Faber Digital Services website at https://www.faberspa.com/en/faber_cloud_additional_terms_EN/ and/or, at the discretion of Faber, made available through the Connected Product and/or the Faber App (e.g. Privacy Statement).
Purchaser is aware and agrees that Faber may, at any time after the original purchase of the Connected Product, introduce new functionalities, features and options to the Faber Digital Service and that such new functionalities, features and options may, at Faber’s discretion, be offered only against additional fee.
If you are a Distributor and not an End-Customer, you are only entitled to use the embedded software and the Faber Digital Service for commercial demonstration/showroom and installation purposes
5. End-Customer Requirements
The use of certain functionalities and features of the Connected Product may depend on the End-Customer performing certain actions and the End-Customer’s infrastructure meeting certain requirements and criteria. These functionalities, features and respective prerequisites are set out in detail in the Product’s latest Documentation (which may be amended at any time by Faber at its own discretion and without giving notice) or respective Purchase Order.
The requirements may, for example, include:
- Entertaining a Wifi network with internet connection that the Product can connect to; and
- downloading and installing a Faber App (or an App endorsed and indicated by Faber) on an Ancillary Device running one of the specified, compatible operating system versions; and
- creating a Faber online account by signing up and entering data including first name, surname, email address, language, country of residence and accepting the Terms of Use and/or EULA as part of the account creation process; and
- adding and setting up the Product within the installed App.
6. New releases and update of existing Products
b. New releases and update of existing Products. Purchaser acknowledges and agrees and Reseller represents and warrants that its End-Customer 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, to address End-Customer needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in its Product offerings. Faber reserves the right to add new features or functionality to, or remove existing features or functionality from a Product.
7. Pricing
Faber’s prices for Products are according to Faber’s price list (and any updates thereto) and as specified in the Purchase Order, if purchased/ordered from Franke. Reseller has complete discretion to negotiate and set pricing and payment terms and conditions with its End-Customers. Reseller’s negotiation of those terms will not be subject to Faber’s review or approval in any way. Faber may provide notice of price changes to Authorized Distributors through electronic or physical mail.
8. Reseller’s undertakings regarding End-Customer compliance
By placing a Purchase Order with Faber, Reseller (i) represents and warrants to have informed or to inform End Customer of direct contractual relationship with Faber regarding the use of software and digital services and to have obtained or obtain the End-Customer’s express agreement to Faber’s EULA and Faber’s Terms of Service for Faber Digital Service and any other Faber terms that may be applicable (for example the terms and conditions of an additional, payable Faber Service Subscription purchased by End-Customer) to the product and/or services ordered by Reseller for resale. The Reseller undertakes to provide evidence of End-Customer’s agreement to Faber’s terms upon first request by Faber.
If End-Customer acquires a Connected Product from Reseller without duly and validly accepting the terms of the EULA and/or the Terms of Service for Faber Digital Service, Reseller shall be fully liable to Faber for any costs and damages incurred by Faber as a result of such failure.
9. Data protection and Device Data
a. Data protection. Personal data is any information relating to an identified or identifiable natural person (“Data Subject”) as defined in the applicable data protection law. Faber may collect, use, transfer, disclose, and otherwise process each Data Subject’s data, including personal data, as described in the Terms of Service. If Faber is provided and receives personal data pertaining to End-Customer from Reseller or via a point of sale for such purpose describe above, Faber is an independent controller under 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 this jurisdiction. In such cases, Faber ensures that appropriate protections are in place to require the data processor in that country to maintain protections on the personal data that are equivalent to those that apply in the country of Faber.
b. Device Data.
Faber shall have, for the duration of the Term, a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyze or use statistical data relating to the Faber Digital Services, including all data derived from the Connected Product (“Device Data”) as set out in the Terms of Service.
10. Representation and Warranties
a. Reseller’s Representations and Warranties. Reseller represents and warrants that it will (i) ensure that End-Customer purchasing from Reseller is bound by Terms of Service and the limited usage rights ordered under the applicable Purchase Order (ii) ensure End-Customer’s acceptance of the terms of the EULA for each connected device as set out in Clause 7; and; (iii) promptly notify Faber about any known or suspected violations of the Terms of Service or the EULA by an End-Customer.
b. Product Warranties. Faber warrants its Products purchased directly from Faber according to its general Terms of Sale and, with regard to Digital Services, as described in the Terms of Service; if you are an Authorized Distributor, the product warranty is governed by the underlying commercial terms such as a Distribution Agreement between Faber and yourself instead. Reseller’s instructions to End-Customers on the use of Products must be consistent with Faber’s written warranty document, Terms of Service, Faber’s Documentation, and the EULA. Reseller must not make any representation, condition or warranty about the Products on behalf of Faber.
Unless required by applicable laws, Faber gives no other express warranties, representations or conditions. To the maximum extent permitted under applicable laws, Faber excludes all implied warranties and conditions, such as implied warranties of merchantability, and fitness for a particular purpose. Faber makes no warranties or conditions as to any equipment enabled for the Faber Digital Services which are distributed, sold, managed or controlled by Reseller.
11. Limitation of liability
UNLESS APPLICABLE LAW REQUIRES OTHERWISE, THE ONLY REMEDY THAT PURCHASER WILL HAVE FOR ANYTHING RELATED TO THESE ADDITIONAL TERMS IS TO OBTAIN DIRECT DAMAGES FROM FABER UP TO THE AMOUNT ACTUALLY PAID BY PURCHASER TO FABER DURING THE PRIOR ONE-YEAR PERIOD WITH REGARDS TO THE AFFECTED PURCHASE ORDER, UNLESS OTHER CONTRACTUAL DOCUMENTS (INCLUDING TERMS AND CONDITIONS) APPLICABLE TO SAME PURCHASE ORDER LIMIT FABER’S LIABILITY TO A LOWER AMOUNT IN WHICH CASE THE LIMITATION TO A LOWER AMOUNT SHALL BE APPLICABLE. FABER SHALL NOT BE LIABLE TO PURCHASER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST INCOME, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGES FOR GOODWILL, PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OR IN ANY WAY RELATED TO FABER DIGITAL SERVICES, THE USE OR THE INABILITY TO USE THE FABER DIGITAL SERVICES OR THE CONTROLLED PRODUCT. IN NO EVENT SHALL FABER BE LIABLE FOR ANY DAMAGES HOWEVER ARISING FROM MANAGING PRODUCT SOFTWARE, RELATED COMPONENTS, CONTROLLED OR CONNECTED DEVICES OR THE DISTRIBUTION, SALE OR PROVISONING OF SERVICES BY RESELLER AS PROVIDED UNDER THIS AGREEMENT.
12. Amendment of these Additional Terms
Faber reserves the right to revise, amend or modify these Additional Terms at any time and without giving notice. Any revised version of these Additional Terms will govern all subsequent purchases of a Connected Product from the Purchaser’s first acceptance of the revised Additional Terms.
13. Miscellaneous
a. Severability. If any one or more of the provisions of this Additional Terms shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
b. No assignment. Unless foreseen by these Additional Terms, no rights or obligations under these Additional Terms shall be assigned or sublicensed by Purchaser, including by operation of law, without prior written consent from Faber. Faber may assign rights from these Additional Terms without the consent of the Purchaser. Any attempted assignment or transfer in violation of the foregoing shall be void and shall entitle Faber to block Purchaser’s access to the Faber Digital Service without any liability and/or to terminate the EULA without any liability. Subject to this restriction, these Additional Terms will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
c. Force majeure. Except for payment for fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under these Additional Terms due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, epidemics, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond the reasonable control of the party delayed.
d. Export. Faber Digital Service, Related Components and the Documentation may be subject to export control laws and its associated regulations and may be subject to export or import regulations of other countries. Purchaser hereby agrees that it will not export or re-export the Faber Digital Service, Related Components or Documentation in any form in violation of any applicable export or import laws of any jurisdiction.
e. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, limitation on liability, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
f. No waiver. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
14. Governing Law / Jurisdiction
All matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of Italy without regard to any conflicts of law, provisions, or international treaties, including particularly the Vienna Convention on the Sale of Goods. The legal venue set out by the underlying Faber 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, issued by Faber SpA, 12/05/2021, Fabriano (AN)