EULA faber
End-user License Agreement for Faber Digital Services (EULA)
By using the software (“Product Software”) that is embedded and enabling the Faber Product (“Product”) or using the Faber Digital Services, you agree to the terms of this End User License Agreement (“EULA”) between you and Faber SpA, Viale XIII Luglio, 160, 60044 Fabriano AN, Italy (“Faber”).
BY SIGNING UP FOR A FABER DIGITAL SERVICE (INCLUDING BY INSTALLING AND ACTIVATING AN ACCORDING FABER APP FOR A MOBILE DEVICE), YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THESE TERMS OF SERVICE, AND IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO BIND SUCH ENTITY AND AGREE TO ALL THE TERMS OF THIS TERMS OF SERVICE REGARDING END-CUSTOMER’S USE OF THE FABER DIGITAL SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE OR ARE NOT AUTHORIZED TO BIND THE END-CUSTOMER TO THESE TERMS OF SERVICE, DO NOT CLICK ON THE “I AGREE”, “I ACCEPT” OR SIMILAR BUTTON OR CLICK THE “I DISAGREE” BUTTON OR CLOSE THE WINDOW TO STOP CREATION OF AN ACCOUNT IN THE CONTEXT OF FABER DIGITAL SERVICES.
This EULA governs your access and use of the Product Software, the remote managing of your Product Software and its updates. It also governs, by analogy, your access and use of any respective Faber App you download onto a Connected Product or onto an Ancillary Device, such as a mobile device, for use in conjunction with your Product (e.g. from Apple’s or Google’s respective online application stores) and the Faber App’s updates. Your use of the Faber Digital Service is governed by the Terms of Service.
Your purchase of any Product enabled for the Faber Digital Services is governed by the terms and conditions you agreed upon with your seller when purchasing the Faber equipment, or, if you are an Authorized Distributor, the distribution agreement in effect as underlying commercial terms. If you are an End-Customer, the limited contractual warranty (terms of which are accessible here: EULA Faber - Faber S.p.A.provided by Faber also applies for any first-hand purchase of Faber equipment, regardless from which party you purchase.
The terms used in this EULA, if not defined in the EULA, shall have the meaning ascribed to them by the Terms of Service for Faber Digital Service.
1. License
Subject to the terms of this EULA, Faber grants to you a limited and nonexclusive license (without the right to sublicense) to execute the Product Software solely on the Product and use it in conjunction with the according, official Faber App installed on one Connected Device that you own or control. This license is granted solely for your personal, non-commercial purposes.
The Customer grants Faber, for the duration of the Terms of Service for Faber Digital Service’s Term and for the purposes set out in these Terms of Service, the right to connect electronically to the Product Software and also grants Authorized Users and Faber full access to read, use and update the Product Software, the control software on the Product and derived device data.
2. Restrictions
Except as specifically provided in this EULA, the license grant under this EULA does not permit End-Customer or a third party (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the Product Software, or any portion thereof, except as expressly permitted by local law and in such case, solely upon prior written notice to Faber; (b) use the Product Software in a greater capacity than identified in a Purchase Order and the Documentation; (c) sublicense, distribute or pledge the Product Software; (d) access, use, or copy any portion of the Product Software to directly or indirectly develop, promote or support any product or service that is competitive with the Product Software; (e) lease, rent or commercially share or otherwise use the Product Software for purposes of third parties; (f) remove any identification, patent, trademark, copyright, or other notice from the Product Software; (g) use any name, mark, or designation of Faber, or any of its affiliates or licensors or their respective products or services, unless explicitly permitted herein or by Faber in writing; (h) interfere with or disrupt the integrity or performance of the Product Software; (i) attempt to gain unauthorized access to the Product Software or the related systems or networks, including access to Faber Digital Services.
Faber reserves the right to block, without liability, any Product Software that violates this section or if it is investigating suspected misconduct.
3. 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 your Product is enabled to connect to Faber Digital Services, such modifications may be done without notice or asking for consent to maintain the Service and/or your Product at a top performance level. You consent herewith to any such automatic update for the duration of the Faber Digital Service’s Term in relation to your Product and your Ancillary Device(s). If you do not want such automated updates, your remedy is to stop using the Faber Digital Services.
You further agree to, if and when notified about such possibility or interactively prompted to do so, to promptly install the latest versions of or patches/updates for the Product Software, and/or any Ancillary Device’s software and/or, if applicable, any supplied client software. Faber excludes any warranty for and any kind of liability whatsoever from the use of any software that has not been updated in accordance with this section 3.
4. Ownership
The Product Software and all copyrights, trade secrets, and other intellectual property rights 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 you, not sold, under this EULA, and you shall have no other right or interest in the Product Software.
5. Term and Termination
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for the duration of your Faber Digital Service’s Term, unless this EULA is terminated earlier pursuant to this section. Faber may terminate this EULA at any time if you fail to comply with any term(s) hereof. Upon termination of this EULA, the license granted hereunder to connect with the Faber Digital Services will terminate and you must stop all use for the respective Product Software and any Faber App connecting to it.
This EULA is automatically terminated if you validly withdraw from any underlying purchase contract related to the Product and ends, without notice from Faber or another party you purchased from, at the moment the contract withdrawal becomes effective.
6. Warranty Disclaimer
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FABER PROVIDES THE PRODUCT SOFTWARE AND SOFTWARE EMBEDDED OR INSTALLED ON ANCILLARY DEVICES “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (such as monitoring of air quality for safety purposes or receiving maintenance or air quality alerts or prevention of mechanical Product defects or wear), COMPLETENESS AND ACCURACY. FABER DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF SUCH SOFTWARE. FABER MAKES NO WARRANTY THAT SUCH SOFTWARE WILL BE UNINTERRUPTED IN USE, FUNCTIONAL OR RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, SECURE, OR ERROR-FREE.
YOU USE ALL DEVICE DATA, THE PRODUCT OR ANCILLARY DEVICE SOFTWARE, AND THE PRODUCT AND ANY ANCILLARY DEVICE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND FABER DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
7. Limitation of Liability
FABER’S AGGREGATE LIABILITY TO END-CUSTOMER, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO EUR 3000 PER INCIDENT AND CALENDAR YEAR OR ANY FEES PAID UNDER A SUBSCRIPTION BY THE END-CUSTOMER, WHICHEVER IS LOWER. FABER SHALL NOT BE LIABLE TO THE END-CUSTOMER 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 THESE TERMS OF SERVICE, 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 ANY RESPECTIVE ANCILLARY DEVICES AS PROVIDED UNDER THESE TERMS OF SERVICE. THESE LIMITATIONS WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE.
8. Limitations of Product Software
You acknowledge (a) to only allowing Authorized Users or Faber to use the Product Software (b) to promptly notify Faber you become aware, or should be aware, of any actual or suspected unauthorized use of Product Software, or any other breach or suspected breach of security related to the Faber Digital Services. Faber will not be liable for any loss or damage arising from unauthorized use of Product Software; (c) to allow installation of new software releases, such as bug fixes and patches when prompted do so.
9. Miscellaneous
a. Severability. If any one or more of the provisions of this EULA shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this EULA. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
b. Modifications. Faber, at its sole discretion, reserves the right to modify the terms and conditions as set forth under this EULA at any time, the revised EULA being published on the Faber website, available here EULA Faber - Faber S.p.A.always provided that the modification is not to the material detriment of your contractual rights from this EULA. In the event you signed up, according to the relevant Purchase Order, to a Faber Digital Service Subscription, the EULA is always valid in the version being current when the Subscription came up for the latest renewal, even without expressly notifying you of an EULA revision. Your continued use of the Product is your agreement to this EULA.
c. No assignment. This EULA, and any rights or obligations hereunder, shall not be assigned or sublicensed by you, including by operation of law, without prior written consent from Faber. Faber may assign this EULA without your consent. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this EULA. Subject to this restriction, this EULA will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
d. 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 this EULA due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, epidemic, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond the reasonable control of the party delayed.
e. Export. The Product Software, the 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. You hereby agree that you 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.
f. Survival. Any provision of this EULA that contemplates performance or observance subsequent to any termination or expiration of this EULA, including, without limitation, all provisions with respect to confidentiality, limitation on liability, and indemnification, shall survive any termination or expiration of this EULA and continue in full force and effect.
g. No waiver. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
10. Governing Law / Jurisdiction
All matters relating to your access to or use of the Product Software, 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 for all disputes arising from the EULA shall be the courts responsible for Fabriano, AN (Italy).
Version 1.0, issued by Faber SpA, Version, 12/05/2021