EULA

EULA - Moka5 Free Version License Agreement

NOTE: This agreement covers the freely downloaded internet versions of our software.Use by customers that purchase licenses from Moka5, or its resellers, are governed by a separate agreement.

THIS MOKA5 FREE VERSION LICENSE AGREEMENT (“Agreement”) IS A LEGAL AGREEMENT BETWEEN YOU AND MOKA5, INC. (“Moka5″) REGARDING THE LICENSE OF MOKA5 GUEST TOOLS (“M5 Guest Tools”), PROJECT USB MONITOR (“Project USB Monitor”), PROJECT IPHONE MONITOR (“Project iPhone Monitor”), M5 PLAYER SOFTWARE (“M5 Player”), M5 CREATOR SOFTWARE (“M5 Creator”) AND THE VMWARE® PLAYER (“VMware Player”) (collectively, the “Software”), AND YOUR USE OF THE HOSTING SERVICES (AS DEFINED BELOW). BY CLICKING “AGREE AND DOWNLOAD NOW” YOU ARE AGREEING TO THE TERMS OF THE AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS, DO NOT CLICK “AGREE AND DOWNLOAD NOW” BELOW, AND YOU WILL NOT BE PERMITTED TO DOWNLOAD M5 PLAYER, M5 CREATOR, M5 GUEST TOOLS AND THE VMWARE PLAYER.

1. The Agreement

This Agreement is a contract between you and Moka5 concerning your use of the Software and Hosting Services. Moka5 reserves the right to change this Agreement at any time upon notice to you. Your continued use of the Moka5 website located at URL: http://www.moka5.com (“Website”) or the Software or Hosting Services after the effective date of such changes constitutes your acceptance of and agreement to such changes. Without limiting the foregoing, and notwithstanding anything contained in this Agreement, Moka5 will have the right from time to time to institute fees relating to the Software and Hosting Services.

All capitalized terms in this Agreement that are not defined in this Agreement have the same meaning as those terms defined in the Moka5 Website Terms of Use Agreement located at http://www.mokafive.com/terms-of-use.php.

2. Moka5 Player, Moka5 Creator and VMware Player License and License Restrictions

(a) License Grant

Moka5 hereby grants you a non-exclusive, non-sublicensable, revocable as specified below, and non-transferable license to install and use Moka5 Player, Moka5 Creator and VMware Player in connection with Moka5’s Website solely for internal use purposes. You shall not allow more than five users to access and use Moka5 Player, Moka5 Creator and VMware Player. Except as expressly set forth herein, this Agreement grants you no rights in the intellectual property of Moka5, its licensors, or any other party. If you violate the terms of this license, Moka5 may terminate this Agreement upon notice, as well as your right to access and use the Website.

(b) License Restrictions

You shall not permit or assist others to: (i) access or use M5 Player, M5 Creator and VMware Player for any purpose other than to create and run LivePCs for internal use purposes; (ii) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from M5 Player, M5 Creator and VMware Player, in whole or in part (or in any instance where the law permits such action, you agree to provide Moka5 at least ninety (90) days advance written notice of your belief that such action is warranted and permitted, and to provide Moka5and its licensors with an opportunity to evaluate if the law’s requirements necessitate such action); (iii) sell, rent, lease, license, sublicense, loan or otherwise transfer in whole or in part M5 Player, M5 Creator or VMware Player and related documentation to any third party; (iv) use M5 Player, M5 Creator or VMware Player in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right; or (v) modify or create derivative works based on M5 Player, M5 Creator and VMware Player. You represent and warrant that you will comply with all applicable federal, state and local laws and regulations pertaining to your use of the Software.

(c) Copying

You may reproduce M5 Player, M5 Creator and VMware Player in machine readable format solely as necessary to exercise the rights granted in Section 2(a) and to make a reasonable number of back-up copies of M5 Player, M5 Creator and VMware Player. You shall not copy M5 Player, M5 Creator and VMware Player, except as permitted by this Agreement.

(d) Beta Release Versions of M5 Player and M5 Creator

Notwithstanding anything to the contrary in this Agreement, in the event that the version of M5 Player or M5 Creator is a “beta release” or other pre-release version (“Beta Release”), your rights in that Beta Release will expire 90 days after you first install and use it. After those 90 days, the Beta Release may cease to function. A Beta Release may contain, in MokaFive’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release of M5 Player or M5 Creator. While Moka5 generally intends to distribute commercial versions of Beta Releases, Moka5 reserves the right not to release a later commercial version of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by Moka5 to be suitable for production use, and that it may contain errors affecting its proper operation.

3. M5 Guest Tools License and License Restrictions

(a) License Grant

Moka5 hereby grants to you: (a) the non-exclusive, nontransferable, non-sublicenseable right to use M5 Guest Tools, in accordance with the terms and conditions of this Agreement, solely to incorporate M5 Guest Tools into your LivePCs for internal use purposes; and (b) the non-exclusive, nontransferable, non-sublicenseable right to reproduce the MokaFive Guest Tools and incorporate the M5 Guest Tools in compiled object code format into your LivePCs solely for internal use purposes and solely in accordance with the terms of this Agreement. You shall allow no more than five users to access and use M5 Guest Tools.

(b) License Restrictions

You shall not permit or assist others to: (i) except to the extent that this restriction is expressly prohibited by law, reverse engineer, decompile, disassemble, or create derivative works of the M5 Guest Tools; or (ii) use M5 Guest Tools in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.

(c) Beta Release Versions

A Beta Release of M5 Guest Tools may contain, in Moka5’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release of M5 Guest Tools. While Moka5 generally intends to distribute commercial versions of Beta Releases, Moka5 reserves the right not to release a later commercial version of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by Moka5 to be suitable for production use, and that it may contain errors affecting its proper operation.

4. General Licensing Terms

(a) Updates

Moka5 may, in its sole discretion, require you to perform, or automatically perform, updates, modifications, reinstallations or the downloading of additional software or patches to the Software (“Updates”). By installing, running or using the Software, you agree to permit or to perform all such Updates. Each Update will be deemed a part of M5 Player, M5 Creator, M5 Guest Tools and VMware Player (as appropriate) and will be subject to this Agreement.

(b) Export Law

You may not use, export or re-export the Software except as authorized by United States laws and regulations or by the laws and regulations of any other jurisdiction in which the Software is obtained and used in accordance with this Agreement. You represent and warrant that your use of the Software will be in compliance with those laws and regulations.

(c) Government End Users

The Software contains commercial computer software and commercial computer software documentation belonging to Moka5 and its licensors. In accordance with FAR 12.212 and DFARS 227.7202, use, duplication or disclosure is subject to restrictions under paragraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013, and further restricted by this Agreement. Any use of the Software by the U.S. Government is also subject to the terms and conditions of this Agreement.

5. Open Source Software

The Software may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. A list of these components and the licenses that cover them can be found at: http://opensource.mokafive.com/. If any such license requires Moka5 to deliver the source code for such component to you, Moka5 shall do so upon request at a nominal fee.

6. Intellectual Property Rights

Moka5 and its licensors hereby reserve all right, title, and interest in and to the Software and all intellectual property rights related thereto not expressly granted in this Agreement. Moka5, LivePC, M5 Player, M5 Creator, VMware Player and all other trademarks, service marks, graphics and logos used in connection with Moka5 or the Website are trademarks or registered trademarks of Moka5 or Moka5’s licensors.

7. Services

Moka5 shall provide Contributors with Hosting Services for Contributors’ LivePCs, in accordance with the terms set for in the Web Services Licensing Agreement located at (“Amazon Web Services Agreement“). Moka5 shall not be responsible for the maintenance of the LivePC. However, Contributor may engage Moka5 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 the Moka5 Terms of Use Agreement located at http://www.mokafive.com/legal/tou.html and all applicable terms of the Amazon Web Services Agreement. Contributor shall indemnify, defend and hold harmless Moka5 and its employees, representatives, agents, affiliates, directors, officers and shareholders against any and all claims, suits, actions, or other proceeding brought against it, or any of them, arising out of or relating to any claim resulting from Contributor’s breach of this Section or any of the representations and warranties set for in this Section. “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.

8. Termination

Moka5 may terminate this Agreement, your rights under this Agreement, and your access to and use of the Software and Hosting Services in its sole discretion upon notice to you. Subsequent to termination, Moka5 reserves the right to exercise whatever means it deems necessary to prevent your unauthorized access to and use of the Software, Hosting Services, and Website.

9. Survival

Upon termination, all rights and obligations created by this Agreement will terminate, except 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; publicity; and miscellaneous provisions.

10. No Warranty

YOU AGREE THAT YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE SOFTWARE OR HOSTING SERVICES IS AT YOUR SOLE RISK. THE SOFTWARE AND HOSTING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MOKA5 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. YOU ACKNOWLEDGE THAT THE OPERATION OF THE SOFTWARE AND USE OF THE HOSTING SERVICES MAY NOT 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.

11. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, MOKA5 AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE SOFTWARE OR HOSTING SERVICES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY NEGLIGENCE, OR OTHERWISE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF YOUR CLAIMS AGAINST MOKA5 AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE WEBSITE, THE SOFTWARE, OR THE HOSTING SERVICES EXCEED THE MONEY PAID TO MOKA5 FOR SAID ACCESS OR 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 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.

12. 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 Software, Website, or Hosting Services, including without limitation your or others’ downloading or consumption of Contributions or content or other materials available by means of the Software, Website, Third-Party Websites, Hosting Services, 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 12(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 DOWNLOADING THE SOFTWARE by sending us an email at [email protected]. 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 THE SOFTWARE or use the interactive portions of the Website. If you elect to continue using the non-interactive portion of the website after giving Moka5 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, Moka5 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 12(a), or to obtain an injunction under Section 12(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 SOFTWARE, HOSTING SERVICE, OR WEBSITE, INCLUDING WITHOUT LIMITATION YOUR OR OTHERS’ DOWNLOADING OR CONSUMPTION OF CONTRIBUTIONS OR CONTENT OR OTHER MATERIALS AVAILABLE BY MEANS OF THE 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.

13. Contact Information

All notices and other communications to Moka5 required under this Agreement should be directed to [email protected] or 475 Broadway St., 2nd Floor, Redwood City, CA, 94063.

14. Publicity

In this Agreement, “Licensee Information” means your and/or third party names, likenesses, usernames, profiles, and/or other similar materials that you submit (“Submit”) on or through a Moka5 Site. You agree that any Licensee Information that you Submit is not being Submitted in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and Moka5 in any way, and that you have no expectation of any compensation or consideration. Accordingly, Moka5 and its representatives shall be entitled to exploit and disclose all Licensee Information, and Moka5 shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any Licensee Information. You hereby grant Moka5 and its representatives a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights, to use, reproduce, transmit, display, exhibit, distribute, modify, create derivative works based upon, perform and otherwise exploit such Licensee Information, in whole or in part, in all formats and channels now known or hereafter devised, for any and all purposes including news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Licensee Information License”). By Submitting Licensee Information, you represent and warrant that the Licensee Information and your communication thereof conform to this Agreement and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Licensee Information in all manners contemplated by the Licensee Information License.

15. Miscellaneous

This Agreement constitutes the entire agreement between Moka5 and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Moka5, or by the posting by Moka5 of a revised version. 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. 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 not assign your rights under this Agreement to any third party; Moka5 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.