MokaFive reserves the right to change this Agreement at any time upon notice to you. Your continued use of the MokaFive Website and Hosting Services after the effective date of such changes constitutes your acceptance of and agreement to such changes.
To search and consume LivePCs, download the Software, access the Documentation, write your own LivePC, post a link to your LivePC, post your own LivePC and become a contributor ("Contributor(s)") or use the Hosting Services please visit and register with the Website. After registering, a Contributor may create and post his or her own LivePC and/or link to and description of his or her own LivePC (in each case resulting in a "Contribution") on the Website and use the Hosting Services. A Contributor may only contribute his or her own LivePC and/or a link to and description of his or her LivePC to the Website or the Amazon Website; Contributors shall not post any other files to the Website or to the Amazon Website.
MokaFive may in its sole discretion change, modify, suspend, make improvements to or discontinue any aspect of the Website or Hosting Services, temporarily or permanently, at any time and without notice to you. Under no circumstance will MokaFive be liable for any such change, modification, suspension, improvement or discontinuance. Without limiting the foregoing, and notwithstanding anything contained in this Agreement, MokaFive will have the right from time to time to institute fees relating to the Website and Hosting Services. Further, MokaFive may impose limits on Contributions or remove Contributions from the Website and the Amazon Website at MokaFive's sole discretion. If you do not agree with any changes made to the Website or the Amazon Website, you may terminate your account as set forth in Section 14.
2. Contributor Registration
When you create an account, you will be asked to supply a password. You must keep your password confidential, and are responsible for all use of your password and account.
MokaFive shall provide Contributors with Hosting Services for Contributors’ LivePCs, in accordance with the terms set forth in the Web Services Licensing Agreement mentioned above (“Amazon Web Services Agreement”). MokaFive shall not be responsible for the maintenance of the LivePC. However, Contributor may engage MokaFive to maintain the LivePC, or provide other services related thereto, pursuant to a separate written agreement. Contributor represents and warrants that Contributor shall comply with all applicable terms of the Amazon Web Services Agreement. Contributor shall indemnify, defend and hold harmless MokaFive and its employees, representatives, agents, affiliates, directors, officers and shareholders against any and all claims, suits, actions, or other proceedings brought against it, or any of then, arising out of or relating to any claim resulting from Contributor’s breach of this Section or any of the representations and warranties set forth in this Section pursuant to Section 12 (“Indemnity”). “Hosting Services” means (a) storage and access to software applications, data and files; and (b) processing of interactive computer-based transactions, as necessary, to enable Customer’s use of its LivePC.
4. Restrictions on Contributors and Contributions
Contributors are entirely responsible for the content of, and any harm resulting from, their Contributions. When you make a Contribution, you thereby represent and warrant that:
(a) your Contribution does not and will not infringe the proprietary rights, including but not limited to all intellectual property rights of any third party;
(b) you have fully complied with any third-party licenses relating to your Contribution, and have done all things necessary to successfully pass through to consumers of that Contribution any required terms;
(c) your Contribution does not contain any harmful or destructive content;
(d) your Contribution is not obscene, libelous or slanderous, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
(e) if your employer has rights to intellectual property you create, you have either: (i) received permission from your employer to post or make available the Contribution, or (ii) secured from your employer a waiver as to all rights in or to your Contribution;
(f) your Contribution does not constitute spam, or unsolicited advertising sent to those with whom the sender has no existing business relationship;
(g) your Contribution does not spoof, or contain false, misleading or incomplete return address or header information such that MokaFive or others are unable to identify you as the sending party;
(h) your Contribution does not amount to trolling;
(i) your Contribution does not constitute, contain, install or attempt to install spyware, malware or other computer code, whether on MokaFive's or others computers or equipment, designed to enable you or others to gather information about or monitor the online or other activities of another party;
(j) your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation; and
(k) your access to and use of the Website will be in accordance with this Agreement and any other MokaFive policies, and with any applicable laws or regulations.
By entering into this Agreement, you hereby represent and warrant that you possess the legal right and ability to enter into this Agreement and comply with its terms.
Without limiting any of our other remedies, MokaFive has the right (though not the obligation) to, in MokaFive's sole discretion and without limitation: (i) refuse or remove from the Website or Amazon Website any Contribution that in MokaFive's opinion violates this Agreement or any MokaFive policy, or is in any way harmful or objectionable or likely to cause liability for MokaFive; or (ii) terminate the account of, or deny access to and use of the Website or Hosting Service to, any Contributor or other user for any reason, including without limitation any actual or reasonably suspected violation of this Agreement or any MokaFive policy.
5. Restrictions on Users Generally
MokaFive may not have the ability to control the nature of the content available by means of the Website or the Amazon Website. By operating the Website and Hosting Service, MokaFive does not represent or imply that it endorses all Contributions or other content available by means of the Website or the Amazon Website, or that it believes such Contributions or content to be accurate, useful, or non-harmful. As a result of actions by Website users, the Website and the Amazon Website do not necessarily, but may, contain or make available Contributions and other content: (a) that contains technical inaccuracies, typographical mistakes and other errors; (b) that is offensive, indecent or otherwise objectionable; (c) that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties; (d) that is harmful to your computer, data or communications infrastructure; or (e) the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, malicious code, and other harmful or destructive content.
6. Abusing MokaFive
You may not access or use the Website or Hosting Services for any purpose other than that for which MokaFive makes it available (i.e., to create, post links to, publish, broadcast, search and consume LivePCs). Without limiting other remedies, MokaFive may limit, suspend or terminate your access to our service, prohibit your access to our Website and Hosting Services, remove hosted links, and take technical measures to keep users off the Website or from posting materials by means of the Hosting Services if MokaFive thinks that they are creating problems, possible liabilities, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to terminate unconfirmed accounts.
7. Third Party Websites
The Website and the Amazon Website may make available links to, and your computer may enable you to connect to, other websites neither owned nor controlled by MokaFive ("Third-Party Websites"). Such links are provided only as a convenience to you. MokaFive has not reviewed, and cannot review, all of the material, including computer software or other goods or services, made available through Third-Party Websites. The availability by means of the Website or the Amazon Website of a link to a Third-Party Website does not represent, warrant or imply that MokaFive endorses such website or any material, goods or services available thereby. Third-Party materials accessed through or used by means of the Website, Software or Amazon Website may also be protected by copyright and other intellectual property laws.
8. Intellectual Property Rights
By making a Contribution to the Website, you agree to grant, and thereby grant, to MokaFive a nonexclusive, perpetual, transferable, sublicensable, royalty-free, non-revocable, worldwide license to reproduce, make derivative works of, distribute, have distributed, transmit, copy, publicly display and perform, and otherwise use such Contribution for any purpose in any way related to MokaFive's business, including without limitation by making that Contribution available for consumption by other Website users. You hereby irrevocably waive any claim based on moral rights, if any, in any Contribution. You hereby acknowledge and affirm that the use of the Website is sufficient consideration for the grant of this license to MokaFive.
By making a Contribution to the Amazon Website, you agree to grant, and thereby grant, to Amazon.com, Inc. (“Amazon”) a nonexclusive, perpetual, transferable, sublicensable, royalty-free, non-revocable, worldwide license to reproduce, make derivative works of, distribute, have distributed, transmit, copy, publicly display and perform, and otherwise use such Contribution for any purpose in any way related to Amazon's business, including without limitation by making that Contribution available for consumption by other Website and Amazon Website users. You hereby irrevocably waive any claim based on moral rights, if any, in any Contribution. You hereby acknowledge and affirm that the use of the Amazon Website is sufficient consideration for the grant of this license to Amazon.
9. Reporting of Violations
(a) Copyright Infringement and MokaFive's DMCA Policy
As MokaFive asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that a Contribution or other material located on or linked to by the Website or MokaFive’s storage site on the Amazon Website violates your copyright, you are encouraged to notify MokaFive in accordance with MokaFive's Digital Millennium Copyright Act Notice. MokaFive will respond to all such notices, including as required or appropriate by removing the offending material or disabling all links to the offending material. In the case of a Contributor or other user who may infringe, or whom MokaFive reasonably suspects of repeatedly infringing, the copyrights of MokaFive or others, MokaFive may, in its discretion, terminate or deny such Contributor or other user's access to and use of the Website and Hosting Services.
(b) Other Violations
If you suspect that a Contributor or other user has violated your rights, or has posted content that is obscene, lewd, lascivious, excessively violent, harassing, objectionable, or otherwise in violation of this Agreement, a MokaFive policy or the law, you should report the suspected violation to MokaFive at firstname.lastname@example.org. Your email should include: (i) a description of the location of the objectionable material sufficiently detailed to allow MokaFive to reasonably locate the suspected violation; (ii) a detailed explanation of the suspected violation; and (iii) the statement that by submitting such email you represent and warrant that the information set forth in such email is true and correct. Actual or suspected violations may result, as determined by MokaFive in its sole discretion, in MokaFive: (1) suspending terminating a user's right to access and use the Website; (2) disabling links to third-party content; (3) removing Contributions from the Website and Amazon Wesbite, and deleting system files and other data relating to the suspected violation; and, (4) in appropriate cases, referring the suspected violation to the appropriate regulatory, administrative or law enforcement authorities.
(c) Monitoring by MokaFive
MokaFive reserves the right, but has no obligation, to monitor interactions between you and other users of the Website and Hosting Services.
10. Communications with MokaFive
All notices and other communications to MokaFive required under this Agreement should be directed to 475 Broadway St, 2nd Floor, Redwood City, CA, 94063 or email@example.com. Notice shall be deemed given 24 hours after email is sent. Alternatively, we may give notice by mail to the address provided during the registration process. In such case, notice is deemed given three days after the date of mailing. All comments submitted to MokaFive and concerning the Website or MokaFive's business will belong to MokaFive, and you agree to assign, and hereby do assign, to MokaFive, to the fullest extent permitted by law, all right, title and interest, including all intellectual property rights, in and to such comments. MokaFive will be free to use all comments, and all ideas, concepts or techniques embodied in all comments, for any purpose whatsoever.
11. Disclaimer of Warranties and Limitation of Liability
(a) Disclaimer of Warranties
YOU AGREE THAT YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE WEBSITE AND HOSTING SERVICES IS AT YOUR SOLE RISK. THE WEBSITE AND HOSTING SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND MOKAFIVE AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, MOKAFIVE AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATION OR WARRANTY THAT YOUR ACCESS TO OR USE OF THE WEBSITE AND HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
(b) Exclusion of Damages
MOKAFIVE AND ITS CONTRACTORS AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH YOUR ACCESS TO OR USE OF THE WEBSITE OR HOSTING SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER MOKAFIVE NOR ITS LICENSORS MAKE ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AS TO THE EXISTENCE OR INTEGRITY OF BACKUPS, IF ANY, OF CONTRIBUTIONS OR OTHER CONTENT OR MATERIALS STORED ON THE WEBSITE OR THE AMAZON WEBSITE. MOKAFIVE MAKES BACKUPS, IF AT ALL, FOR SERVER RESTORATION PURPOSES ONLY. IT IS YOUR RESPONSIBILITY TO MAINTAIN LOCAL COPIES OF YOUR CONTRIBUTIONS. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF YOUR CLAIMS AGAINST MOKAFIVE AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE WEBSITE, HOSTING SERVICES OR SOFTWARE EXCEED THE MONEY PAID TO MOKAFIVE FOR SAID ACCESS AND USE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(c) Personal Information
You agree that your submission to MokaFive, or MokaFive's gathering of information in connection with your access to and use of the Website, Hosting Services or Software is at your sole risk. MokaFive and its contractors, as applicable, do not assume any loss, misuse or other liability relating to such information.
UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify and hold harmless MokaFive and its directors, officers, employees, agents, representatives, affiliates, parents, subsidiaries, licensors, suppliers, services providers and other contractors (collectively, "MokaFive Indemnified Parties") from and against any and all claims, actions, demands, causes of action and other proceedings ("Claims") arising out of or relating to: (i) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) your access to or use of the Website and Hosting Services, including without limitation your or others' downloading or consumption of Contributions or content or other materials available by means of the Website, the Amazon Website or Third-Party Websites, or your purchasing of goods or services from third parties; or (iii) your Contributions or provision to MokaFive of information or other data. The MokaFive Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the MokaFive Indemnified Parties ("Indemnified Claim"). You may not settle any Indemnified Claim without the prior written consent of the concerned MokaFive Indemnified Parties.
13. Dispute Resolution
(a) Binding Arbitration
All disputes arising out of or relating to this Agreement (including its formation, performance, or alleged breach) of your access to or use of the Website and Hosting Services, including without limitation your or others' downloading or consumption of Contributions or content or other materials available by means of the Website, the Amazon Website or Third-Party Websites, or your purchasing of goods or services from third parties, will be exclusively resolved under confidential binding arbitration held in San Mateo County, California before and in accordance with JAMS. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. The parties also may seek an order or judgment by a court of competent jurisdiction compelling arbitration or confirming any arbitration award secured under this Section 13(a).
IF YOU DO NOT WISH TO ACCEPT THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS AFTER REGISTERING WITH THE WEBSITE BY SENDING US AN EMAIL AT SUPPORT@MOKAFIVE.COM. IF YOU NOTIFY US BY THAT TIME THAT YOU DO NOT ACCEPT THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION, YOU MAY CONTINUE TO USE THE NON-INTERACTIVE PORTION OF THE WEBSITE; HOWEVER, YOUR REGISTRATION WILL BE CANCELLED AND YOU WILL NOT BE ABLE TO DOWNLOAD MOKAFIVE SOFTWARE OR USE THE INTERACTIVE PORTIONS OF THE WEBSITE. IF YOU ELECT TO CONTINUE USING THE NON-INTERACTIVE PORTION OF THE WEBSITE AFTER GIVING MOKAFIVE SUCH NOTICE, YOU AGREE TO ACCEPT ALL OF THE TERMS OF THIS AGREEMENT EXCEPT FOR THE BINDING ARBITRATION PROVISIONS CONTAINED IN THIS SECTION.
(b) Injunctive Relief and Confirmation Proceedings
Notwithstanding the foregoing, MokaFive will have the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights.
(c) Jurisdiction and Venue
In the event of litigation or to compel arbitration or to enforce an arbitration award under Section 13(a), or to obtain an injunction under Section 13(b), the parties hereby irrevocably consent and submit to the personal jurisdiction and venue of the state and federal courts located in Santa Clara County, California.
(d) Applicable law
EXCEPT TO THE EXTENT APPLICABLE LAW, IF ANY, PROVIDES OTHERWISE, THIS AGREEMENT AND ANY ACCESS TO OR USE OF THE WEBSITE AND HOSTING SERVICES, INCLUDING WITHOUT LIMITATION YOUR OR OTHERS' DOWNLOADING OR CONSUMPTION OF CONTRIBUTIONS OR CONTENT OR OTHER MATERIALS AVAILABLE BY MEANS OF THE WEBSITE, THE AMAZON WEBSITE OR THIRD-PARTY WEBSITES, OR YOUR PURCHASING OF GOODS OR SERVICES FROM THIRD PARTIES, WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, U.S.A.
MokaFive may terminate this Agreement, your rights under this Agreement, and your access to and use of the Website and Hosting Services in its sole discretion, for any reason or no reason at all, with or without cause, and without notice or liability to you or any third party. Any termination of this agreement automatically terminates the license to use this Website and Hosting Services, including without limitation your rights to access and use the Software, Hosting Services and Website, and to create, publish, broadcast, search and consume LivePCs. Upon termination, MokaFive may, in its sole discretion, delete from the Website or the Amazon Website any files or other information or data relating to your account and Contributions. Subsequent to termination, MokaFive reserves the right to exercise whatever means it deems necessary to prevent your unauthorized access to and use of the Software, Website and the Hosting Services, including without limitation technological barriers such as IP mapping and direct contact with your Internet Service Provider.
Upon termination, all rights and obligations created by this Agreement will terminate, except that that you will continue to be bound by those terms that would by their nature survive such termination, including without limitation those concerning intellectual property rights; disclaimers of warranties and limitations of liability; representations, warranties and indemnity obligations; and general provisions.
This Agreement constitutes the entire agreement between MokaFive and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of MokaFive, or by the posting by MokaFive of a revised version. This Agreement is governed by the laws of the State of California, without reference to conflict of law principles, and any dispute between you and MokaFive regarding this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts in Santa Clara County, California. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. You and MokaFive are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement only with the express written permission of MokaFive; MokaFive may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.