Please carefully read and review this agreement before You use the Fochica™ App
Fochica™ App End User License Agreement (the “Agreement” or “license”)
- This Agreement is a legal agreement between AY Garage Ltd. (“AYG“) and You: the individual who downloaded the Fochica™ app (hereinafter: “You”) (the downloaded Fochica™ app shall be referred to hereinafter, as the “Application” or the “App“).
- The App is part of the Fochica™ system (the “System” or “Fochica™”). The App together with the hardware device (“Device”) form the System. The App is intended to be used in conjunction with the Device. AYG does not provide the hardware components of the Device, nor does it assemble the Device. You are required to purchase the Device’s hardware components on Your own, assemble the Device on Your own (whether by Yourself, or with the help of others), and obtain a license for the software of the Device. AYG only provides the App, and instructions on how to assemble the Device. AYG does not guarantee that the System will operate properly.
- By Your affirmative act of clicking the “Accept” button after You have installed the App on Your smartphone; and/or by Your use of the App, You are signifying electronically that:
- You have read this Agreement, and have agreed to be bound by the terms and conditions of this Agreement, without any qualification, reservation, or exception.
- You may not use Fochica™, other than for the benefit of your child.
- You are fully aware and agree that Fochica™ is merely a supplemental backup aid. Fochica™ is not intended to replace or substitute Your due attention to the safety of Your child, and You are solely responsible for the safety of Your Child. In no event will AYG, or anyone on its behalf, including its directors, officers and Employees, be responsible for the safety of your child, or be responsible in the event Fochica™ fails to provide an alert that Your child was left in the car.
- You are fully aware that Fochica™ may fail to alert You of having left Your child in the car for various reasons, including but not limited to:
- The failure to assemble Fochica™ properly, to configure it properly, or due to misuse or abuse of Fochica™;
- A malfunctioning on any of the Fochica™ parts;
- RF communication problems;
- Your failure to carry the smartphone with You; or if You have disabled the App on your smartphone; or if You disabled Bluetooth Low Energy communication; or if Your smartphone’s battery ran out; or if You placed the smartphone on mute; or if You choose not to update the App to the latest version.
- You are fully aware that Fochica™ may fail to operate as it is still in Beta trial.
- YOU MAY NOT USE Fochica™ in any jurisdiction that will not recognize and enforce the disclaimer of warranties, limitation of liability, indemnification and release set forth herein. you are solely responsible to determine whether your jurisdiction will recognize and enforce these provisions.
- Before Your first use of Fochica™, and on a reasonable periodic basis, check whether it operates properly. If it fails to operate – DO NOT USE IT.
- If You do not agree to be bound by this Agreement You may not use the App. You can remove this App through a standard uninstall process. If You have any questions about this Agreement, or the uninstall process, please contact us at the contact form on fochica.com (for the purposes of this Agreement “the Website“).
- This Agreement governs both the current version of the App and any updated and upgraded version of the App. Your acceptance of this Agreement constitutes acceptance to be bound by this Agreement both with respect to the current version of the App and any Updated (as such term is defined below) App version, unless such Updated App version is accompanied by a separate license in which case the terms and conditions of that license will govern the Updated App (to the extent these new terms and conditions are intended to replace this Agreement, and not to supplement it).
License Grant and Changes to the License
- The App is licensed, not sold, to You subject to all terms and conditions of this Agreement and Your compliance with such terms and conditions. AYG reserves all rights not expressly granted to You.
- The license granted to You for the App by AYG is limited to a personal, limited, non-exclusive, non-sub-licensable license to use the App on any smartphone that You both own and control. You may not use it on any other device, nor allow anyone else to use the App.
- You may not use Fochica™ in any jurisdiction that will not enforce the disclaimer of warranties, the limitation of liability, indemnification and release set forth herein. You are solely responsible to determine whether Your jurisdiction will enforce all these provisions. In the event that You have used Fochica™ in any such jurisdiction it is at your sole responsibility and risk. In no event will AYG be deemed to have consented to Your use of Fochica™ in such jurisdiction, even if it was actually aware that You are using Fochica™ in such jurisdiction.
- This license does not entitle You to receive from AYG any hard-copy documentation, support, telephone assistance, or enhancements or updates to the App.
- AYG reserves the right to alter with or without prior notice to You the terms and conditions of this Agreement (“Change”). Changes will be posted on the Website, and/or notified to You through other reasonable means, including for the avoidance of doubt through the App’s distribution channel, such as the App Store. You shall become bound by such Change upon the posting of the Change on the Website, or upon being notified of such Change.
- AYG may periodically review Your compliance with this Agreement. You agree to provide AYG or an independent auditor with relevant records upon request.
- You shall not:
- Use the App on any smartphone that You do not own or control;
- Copy the App (or any portion thereof).
- Rent, lease, lend, sell, redistribute, assign, sublicense or otherwise transfer the App (or any portion thereof).
- Modify or create any derivative works based on the App, including by way of customization, translation, or localization;
- Incorporate or integrate the App or any portion thereof in another product or service.
- Decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the App (except as and only to the extent the foregoing restriction is prohibited by applicable law);
- Use the App in any way that violates this Agreement, or any other agreements to which You are a party, or any law by which You are bound;
- Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the App (“Trademarks and Notices”), or use these Trademarks and Notices without permission.
- Permit any third party to use the App.
- Disclose results of any benchmark or other performance tests of the App.
- Use the App to provide an alert in respect of a minor who is not Your child.
- The System and the App are in Beta version.
- AYG is under no obligation to provide You with any error corrections, updates, upgrades, bug fixes and/or enhancements.
- AYG reserves the right to modify, suspend or stop the use of the App (or any part thereof). You agree that AYG shall not be liable to You or any third party nor shall You have any remedy for any modification, cessation or termination of the App (including modification, cessation or termination of Your right to use the App). You acknowledge that AYG has no express or implied obligation to provide, or continue to provide, the App, or any part thereof, now or in the future.
- You acknowledge that feedback concerning users’ experiences with the App and System is essential to the improvement of the System. You agree that AYG may use Your feedback and incorporate it in its products free-of-charge.
Updates and Upgrades
- AYG may provide updates, upgrades, and other modifications to address issues such as – but not limited to – security and performance (collectively “Updates“). By using the App You agree to keep the installation of the App updated to the most recent release.
- AYG and its licensors own all legal right, title and interest in the App, including any intellectual property rights in the App (whether those rights are registered or not, and wherever in the world those rights exist). You agree that You will not take any action to interfere with AYG’s or its licensors’ ownership of or rights in the App.
- AYG currently provides the App free of charge. However, AYG may at any time in the future, require payment of fees for a commercial version of the App (“Commercial Version”). Use of the Commercial Version shall be subject to payment of non-refundable fees.
Third Party Products
- The App may come bundled, integrated or otherwise be distributed with third party code. Copyright notices and licensing terms applicable to these third party code can be found in fochica.com/legal.
- Use of Fochica™ requires besides the App certain hardware. You are solely responsible for acquiring such hardware, assembling the Device on Your own, and obtaining the Device’s software. In no event will AYG, or anyone on its behalf (including its directors, officers and employees) be responsible to You for the costs and expenses spent by You in acquiring these hardware components and/or assembling the Device AND/OR OBTAINING THE DEVICE’S SOFTWARE, even if at the end of the day, the system does not operate properly.
Term and Termination
- The license to use the App is effective until terminated by You or AYG.
- Your rights under this license will terminate, in any of the following events:
- Automatically with immediate effect with or without notice from AYG if You fail to comply with any terms of this Agreement. You acknowledge and agree that, Your breach of this Agreement may cause AYG irreparable damage for which recovery of money damages may be inadequate and that AYG, therefore, may obtain timely injunctive relief to protect its rights under this Agreement and/or the law in addition to any and all other remedies available at law or in equity.
- If AYG terminates this Agreement. AYG may terminate this Agreement with or without cause at any time with immediate effect. AYG shall notify You of the Agreement’s termination through its Website, or through other reasonable means.
- If You uninstall the App.
- Upon termination of this Agreement, You shall cease all use of the App, and destroy all copies, full or partial, of the App.
- Termination of Your right to use the App shall not entitle You to any right or remedy against AYG or anyone acting on its behalf, including its directors, officers and employees.
- The terms in Sections 19 (Ownership), 25-26 (Term and Termination), 31, 34, 35 (Limitation of Liability), 36 (Indemnification), 37 (Release), 38-47 (Miscellaneous) of this Agreement shall survive the termination of this Agreement.
Consent to Use of Data
- You agree that AYG may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the App. AYG may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
Representations and Warranties
- You represent and warrant that (a) You understand and will abide by the terms of this Agreement, (b) You have the capacity to agree to this Agreement, (c) You will use the App only for lawful purposes and in accordance with this Agreement, (d) You will not use the App in violation of any applicable law, or any right of AYG, and (e) You will not use the App in any jurisdiction that will not enforce the disclaimer of warranties, limitation of liability, indemnification and release provisions set forth herein.
Disclaimer of Warranties
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP AND SYSTEM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP AND BY THE SYSTEM (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AYG HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, SYSTEM AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, VIRUS FREE, FREE FROM DEFECTS, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. AYG DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, OR THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP, OR SYSTEM WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP, SYSTEM OR SERVICES WILL BE UNINTERRUPTED, SECURE, RELIABLE OR ERROR-FREE, OR THAT DEFECTS IN THE APP, SYSTEM OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AYG OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE APP, SYSTEM OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF REPRESENTATIONS AND WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE IS AUTHORIZED HEREUNDER (AND NO LICENSE GRANTED) EXCEPT UNDER THIS DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
Limitation of Liability
- IN NO EVENT (OTHER THAN IN THE EVENT OF FRAUD BY AYG, WILLFUL INJURY BY AYG, OR CULPABLE GROSS NEGLIGENCE BY AYG) SHALL AYG, OR ANYONE ON ITS BEHALF (INCLUDING ITS DIRECTORS, OFFICERS AND EMPLOYEES), BE LIABLE TO YOU OR ANYONE ELSE FOR PERSONAL INJURY, DEATH, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, DEVICE, OR SYSTEM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) AND EVEN IF AYG (OR ANYONE ON ITS BEHALF, INCLUDING ITS DIRECTORS, OFFICERS AND EMPLOYEES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR LOSSES, OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORSEEABLE. SUBJECT TO THE ABOVE TERMS, AYG’S TOTAL LIABILITY TO YOU FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT YOU PAID AYG FOR THE RIGHT TO USE THE APP.
- SOME JURISDICTIONS DO NOT ALLOW OR RESTRICT THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH (EVEN IF AYG IS NOT ACCUSED OF FRAUD, WILLFUL CONDUCT OR CULPABLE GROSS NEGLIGENCE), SO THE LIMITATION OF LIABILITY SET FORTH HEREIN MAY NOT APPLY TO YOU, IN WHICH CASE YOU MAY NOT USE THE APP IN THAT JURISDICTION, AND/OR SUE AYG OR ANYONE ON ITS BEHALF (INCLUDING ITS DIRECTORS, OFFICERS AND EMPLOYEES) IN THAT JURISDICTION.
- You understand that, in return for agreement to these Limitation of Liability provisions set forth herein, AYG is able to offer the App to You on the designated terms, and that Your agreement to these Limitation of Liability provisions is an indispensable condition upon which You were granted a license for the App.
- In this Agreement, the term “gross negligence”, whether or not capitalized, refers to conduct that evinces a reckless disregard for or indifference to the rights of others, smacking of intentional wrongdoing; it differs in kind, not only degree, from ordinary negligence.
- The limitation of liability provisions are (as stated) intended to benefit AYG’s directors, officers and employees, and they may rely and enforce these provisions.
- You shall defend, indemnify, and hold AYG, its directors, officers and employees harmless from all liabilities, actions, claims, demands, damages and expenses, including attorney’s fees (that arise from Your use of Fochica™ (or related to such use) in a manner which is not in strict conformance with this Agreement (including Your use of Fochica™ in a jurisdiction that will not recognize or enforce all of the following provisions: disclaimer of warranties, limitation of liability, indemnification and release that are set forth herein), or for a claim by Your child or his estate. For the avoidance of doubt, AYG reserves the right, at its own expense, to assume the exclusive defense and control of any matter which is subject to Your indemnification obligation. You hereby undertakes to fully cooperate with AYG in asserting any available defenses. This indemnification provision is as stated intended to benefit AYG’s directors, officers and employees, and they may rely and enforce it.
- Other than in the event of fraud by AYG, willful injury by AYG, or culpable gross negligence by AYG, You, as a parent or guardian of the child for whose benefit You intend to use Fochica™, hereby EXPRESSLY ASSUME ALL RISKS associated with the use of Fochica™ and forever RELEASE, acquit, discharge AYG, its directors, officers and employees, from any and all liabilities, actions, claims, demands, damages and expenses, including attorney’s fees (“Claims”) that arise from or are related to Your use of Fochica™, and also all Claims which Your child (or his estate) has or hereafter may acquire, either before or after he/she has reached his/her majority resulting or to result from Your use of Fochica™ or related to such use. This release provision is as stated intended to benefit AYG’s directors, officers and employees, and they may rely and enforce it.
- You may not bring a legal action against AYG related to the App more than one (1) year after the cause of action arose, unless otherwise provided by applicable law without the possibility of contractual waiver.
- YOU AND AYG AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR AYG WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR AYG ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND AYG FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, AYG, AND ALL PARTIES TO ANY SUCH PROCEEDING.
- This Agreement constitutes the entire agreement between You and AYG concerning the App.
- If any term of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect.
- The failure of AYG to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein, including transfer of the App. AYG may assign this Agreement without Your consent to any 3rd party, Notice of such assignment by AYG shall be posted on the Website, or will be notified through other reasonable means.
- AYG shall not be in default or be liable for any delay, failure in performance resulting directly or indirectly from any cause beyond its reasonable control.
- You are responsible for complying with any applicable law in Your jurisdiction which might impact Your use of the App.
- The laws of the State of California (without giving effect to its conflict of laws rules) govern all matters arising out of or relating to this Agreement, including without limitation, its validity, interpretation, construction, performance, enforcement, and termination.
- The competent courts of Tel-Aviv, Israel shall have exclusive jurisdiction with respect to any dispute or disagreement arising out of or relating this Agreement, and You hereby consent to their exclusive jurisdiction. Notwithstanding the above, AYG retains the right to seek judicial assistance from other courts: (i) to obtain interim measures (including injunctions or other. equitable relief) of protection; and (ii) to enforce any decision of the Israeli courts.