TERMS OF SERVICE
1. Terms of Service Definitions
Agreement(s): Every agreement between MOKA LABS and its site visitors and customer(s).
Confidential Information: All information from the Customer that is recorded and marked as confidential or secret or the information that reasonably should be classified as confidential or secret considering the circumstances of the disclosure of the information to MOKA LABS.
Customer: Every person or company who enters into an agreement with MOKA LABS.
General Terms: This document represents General Terms and Conditions regarding MOKALABS.COM
License: the right of the Customer to receive updates and/or support from MOKA LABS.
Parties: MOKA LABS and the Customer.
Product(s): All products offered and provided by Moka Labs, including but not limited to applications designed and built by Moka Labs, including but not limited to: WordPress Plug-Ins, WordPress Themes, Applications, Forms, Blueprints, Layouts and Graphics.
Service(s): All services offered and provided by MOKA LABS, including but not limited to the MOKA LABS Web Services.
MOKA LABS: The registered company Moka Labs organized and existing under the laws of Ontario Canada, having its registered office in Toronto.
2. About MOKA LABS
MOKA LABS owns and operates the websites MOKALABS.COM, MOKA1.COM, KEITHAGNEW.COM, MOKA.MEDIA, through which these websites, MOKA LABS offers its Products and Services to Costumers.
MOKA LABS sells Products and provides Services with the aim of developing and improving its Customers’ websites, online presence, and digital marketing efforts. Included in, but not limited to, the area of SEO, speed, security, efficiency, exposure, and effectiveness.
3.1 The General Terms apply to all use of the MOKALABS.COM website, all offers by MOKA LABS at MOKA LABS and all the agreements contained herein.
3.2 The applicability of any general conditions from the Costumer are expressly rejected.
3.5 In the event one of the articles in this document General Terms appears to be void or declared void, all other terms/articles in these General Terms will remain valid. MOKA LABS and the Customer will hold consultations in order to replace these void or voidable provision(s) with new provision(s).
4.1 All offers and other statements issued by MOKA LABS shall be subject to contract,
except where specified otherwise in writing by MOKA LABS.
4.2 The Customer guarantees the accuracy and completeness of the information
that it submits to MOKA LABS and on which MOKA LABS bases its offer. 2 out of 9
4.3 The Customer shall at all time exercise the greatest possible care to ensure that the requirements that MOKA LABS’ services must meet are accurate and comprehensive.
4.4 The Agreement is concluded at the time that MOKA LABS confirms the acceptance by the Customer of MOKA LABS’ offer.
5. Changes in the General Terms
5.1 MOKA LABS reserves the right, at its sole discretion, to modify, change or replace any terms in these General Terms. If MOKA LABS decides to modify, change or replace the General Terms, it will inform its Customer about it by email and will post the changes on MOKALABS.COM.
5.2 If the Customer continues the use of or access to the Products and Services following an amendment of the General Terms as mentioned in this article, this will constitute acceptance of the amended General Terms.
6. Term of the Agreement
6.1 Unless Parties agree otherwise, the Agreement will have a duration of one (1) year.
6.2 The term of the Agreement shall be extended automatically for the duration of the originally agreed period unless the Customer or MOKA LABS terminates the Agreement in writing with due observance of a notice period of three (3) months before the end of the relevant period.
7.1 The Customer shall indemnify MOKA LABS against any claims by individuals whose personal data is recorded or processed within the context of a register of personal data maintained by the Customer or for which the Customer is responsible pursuant to the law or otherwise, unless the Customer is able to demonstrate that the acts that form the basis of the claim are exclusively attributable to MOKA LABS.
7.2 Responsibility for the data processed using the service provided by MOKA LABS shall rest solely with the Customer. The Customer shall guarantee MOKA LABS that the content, the use and/or the processing of the data is not unlawful and does not infringe the rights of third parties. The Customer shall indemnify MOKA LABS against legal claims by thirds parties, of whatever nature, in relation to this data or the execution of the Agreement.
7.3 If the Agreement stipulates that MOKA LABS is obliged to provide some form of information security, this security shall meet the specifications in respect of security agreed between the Parties in writing. MOKA LABS shall not guarantee that the information security will be effective under all circumstances. If the Agreement does not include an explicit description of security measures, the security measures shall be of such a level that, having regard to the state of the art, the sensitivity of the data and the costs associated with the implementation of the security measures are not unreasonable.
7.4 If computer, data or telecommunications facilities are used during the execution of the Agreement or otherwise, MOKA LABS shall be entitled to assign access or identification codes to the Customer. MOKA LABS shall be entitled to change the access or identification codes assigned. The Customer shall treat the access and identification codes as confidential and with due care and shall only disclose these codes to authorised members of staff. MOKA LABS shall under no circumstances be liable for any damage or costs arising from the use or misuse of access or identification codes, except where misuse was possible as a result of an act or omission on the part of MOKA LABS.
8. General Representation
8.2 The Customer represents and warrants that its use of MOKA LABS Products and Services will not infringe or misappropriate MOKA LABS’ licenses or intellectual property rights or third party rights.
8.3 The Customer warrants that no rights of third parties preclude the provision of a Product or a Service by MOKA LABS.
8.4 The Customer warrants to refrain itself towards MOKA LABS or third parties from any acts or omissions contrary to generally accepted standards such as:
a) the use or distribution of spam, not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
b) the distribution or maintenance of viruses, worms, malware, Trojan horses or other harmful or destructive content;
c) the distribution or maintenance of pornographic content or content that contains threats or incite violence towards individuals or entities, or a violation of the privacy or publicity rights of any third party;
d) the advertisement of content via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
e) the distribution or maintenance of misleading content.
8.5 The Customer will provide all assistance as reasonably desired by MOKA LABS to the delivery and commissioning of the Products or Services.
8.6 In order to facilitate the proper execution of the Agreement by MOKA LABS, the Customer shall at all times provide MOKA LABS with all data or information that MOKA LABS deems to be useful, necessary and desirable and to give its full cooperation in a timely manner. If the Customer deploys its own personnel and/or agents within the context of providing cooperation in the execution of the Agreement, these personnel and agents shall have the necessary knowledge, expertise and experience.
8.7 The Customer shall bear the risk of the selection, the use, the application and the management within its organization of the software, hardware, websites, data files and other products and materials and of the services to be provided by MOKA LABS.
The Customer itself shall arrange for the correct installation, assembly and commissioning and for the application of the correct settings to the hardware, software, websites, data files and other products and materials. The Customer is also responsible for training and use by employees or other users.
8.8 If the Customer fails to make the data, documents, hardware, software, materials or employees that MOKA LABS deems useful, necessary or desirable for the purpose of executing the Agreement available to MOKA LABS, to make these available in good time or in accordance with the Agreements, or if the Customer fails to meet its obligations in any other way, MOKA LABS shall be entitled to suspend the execution of the Agreement in part or in full and shall also be entitled to invoice the resulting costs in accordance with its standard rates, without prejudice to MOKA LABS’ right to exercise any other statutory and/or agreed right.
8.9 If MOKA LABS employees are carrying out activities on the Customer’s business premises, the Customer shall ensure that any facilities reasonably requested by these employees, such as a workspace containing computer, data and telecommunication facilities, are provided free of charge. The workspace and facilities shall meet all statutory and other applicable requirements in relation to working conditions. The Customer shall indemnify MOKA LABS against any claims by third parties, including MOKA LABS employees, who suffer injury in connection with the execution of the Agreement as a result of an act or omission on the part of the Customer or of unsafe situations within the Customer’s organization.
8.10 If use is made of computer, data or telecommunication facilities, including the internet, during the execution of the Agreement, the Customer shall be responsible for selecting the correct resources required for this purpose and for ensuring that these are available in full and in a timely manner, with the exception of those facilities that fall under the direct use and management of MOKA LABS. MOKA LABS shall under no circumstances be liable for losses or costs arising as a result of transmission errors, breakdowns or the non-availability of these facilities, unless the Customer is able to demonstrate that these losses or costs are the result of intentional acts or deliberate recklessness on the part of MOKA LABS management.
9. Intellectual Property
9.1 All intellectual property rights to the software, websites, data files, hardware or other materials such as analyses, designs, documentation, reports, quotations and related preliminary material developed or made available to the Customer on the basis of the Agreement shall remain exclusively vested in MOKA LABS, its licensors or its own suppliers. The Customer shall only acquire those rights of use that are explicitly granted in these General Terms and by law. Any rights of use granted to the Customer shall be non-exclusive, non-transferable to third parties and non-sublicensable.
9.2 The Customer shall not be permitted to remove or amend any details in relation to the confidential nature or in relation to copyrights, brand names, trade names or any other intellectual property right from the software, websites, data files, hardware or materials.
9.3 Even if the Agreement does not explicitly provide for such authority, MOKA LABS shall be permitted to install technical provisions for the purpose of protecting the software, hardware, data files, websites and suchlike in relation to an agreed restriction on the content or the term of the right to use these objects. The Customer shall under no circumstances be permitted to remove or circumvent such technical provisions or to arrange for this to be carried out.
9.4 In the case the use of a Product or Service intellectual property rights arise on the part of the Customer, at MOKA LABS’ discretion, the Customer will give MOKA LABS a worldwide, royalty free and non-exclusive license to use these intellectual property and reproduce, modify, adapt and publish the content solely for the purpose or transfer the intellectual property rights to MOKA LABS. To the extent necessary the Customer will promptly cooperate and take such actions and execute such documents as necessary or desirable to effect such transfer of rights, including but not limited to, executing separate deeds of transfer.
10. Updates & Support/License
10.1 In the event the Agreement refers to the purchase of a Product as well as a License, the License will have a duration of one year. Unless the Parties agree otherwise, the License will consist of obtaining updates and support from MOKA LABS. After one (1) year, the Customer must purchase a new License to retain the right to updates and support.
10.2 In the event the Agreement refers to the purchase of a Service as well as a License, the License will have a duration of six (6) weeks and the License will consist of obtaining support by MOKA LABS. The six (6) week period commences on the day the Agreement is concluded (see Article 4.4 of these General Terms). After the aforementioned period the (rights with regard to the) License will expire. The Customer will have to purchase a new License to retain the right to support.
10.3 MOKA LABS reserves the right to charge the Customer additional costs for maintenance fee if the terms as mentioned in 10.1 and 10.2 expire.
10.4 The Customer is not allowed to share or resell the License.
10.5 Without any liability to compensate the Customer MOKA LABS reserves the right to disable updates and support in case of abuse and / or in the event the Customer is in violation of the preceding paragraph. This will not grant the Customer the right to a refund.
11. Prices and Payment
11.1 All prices are exclusive of VAT and other levies and any other additional costs. Except where agreed otherwise, all prices are in US Dollars and the Customer must effect all payments in US Dollars.
11.2 Payments will be charged immediately and will only be refundable under the refund policy in article 12.
11.3 MOKA LABS accepts the following payment methods:
b) Bank Transfer
c) Credit Cards (some).
11.4 MOKA LABS is entitled to adjust the price of a Product or Service, even after conclusion of the Agreement, if one of the price-determining factors changes without the liability to compensate the Customer.
11.5 The Customer is, under the provisions of the previous paragraph, not entitled to terminate the Agreement, unless the first agreed price is increased by more than 10%.
12. Refund Policy
12.1 For questions, concerns, problems or complaints, the Customer can contact MOKA LABS via MOKALABS.COM.
12.2 Products can be returned within thirty (30) days after the Agreement has been concluded in which case MOKA LABS will refund the full purchase price. The Customer can contact MOKA LABS by replying to the purchase e- mail or through the contact form, with a clear explanation of why the Product is not to the satisfaction of Customer.
12.3 The right to a refund will expire after thirty (30) days after the Agreement has been concluded.
12.4 Article 12.2 and 12.3 shall not apply to Agreements relating the purchase of a Service.
12.5 In the event a Service does not meet its standards the Customer must contact MOKA LABS via MOKALABS.com and explain why the Customer is not satisfied with the Service. MOKA LABS will consider the complaints of the Customer, while it remains at MOKA LABS sole discretion to grant a refund.
12.6 If MOKA LABS can not provide the Customer with the Service within two (2) months after the Agreement has been concluded, MOKA LABS may cancel the Contract without any notification of default and without any liability to compensate the Customer. In the event of such a cancellation, MOKA LABS will provide the Customer with a refund.
13. Delivery date
13.1 All (delivery) periods and (delivery) dates agreed or specified by MOKA LABS shall be established to the best of MOKA LABS’ knowledge on the basis of the information available to it at the time of entering into the Agreement. Interim (delivery) dates agreed between the parties or specified by MOKA LABS shall in all cases be target dates, shall not have a binding effect on MOKA LABS and shall in all cases be merely indicative.
13.2 MOKA LABS shall make every reasonable effort to observe final (delivery) periods and final (delivery) dates wherever possible. MOKA LABS shall not be bound by a (delivery) period or (delivery) date, final or otherwise, that can no longer be achieved as a result of circumstances outside of MOKA LABS’ control that occurred after the date on which the Agreement was concluded. MOKA LABS shall also not be bound by a (delivery) date or (delivery) period, final or otherwise, if the parties have agreed on a change to the content or scope of the Agreement (additional work, change in specifications etc.) or a change in the approach to the execution of the Agreement. If there is a risk that a time period will be exceeded, MOKA LABS shall consult with the Customer in order to discuss the implications of the overrun for the rest of the schedule.
13.3 The mere fact that a (delivery) period or (delivery) date, final or otherwise, specified by MOKA LABS or agreed between the parties has been exceeded, shall not mean that MOKA LABS is in default. In all cases – therefore also in the event that the parties have agreed a final (delivery) period or (delivery) date explicitly in writing – MOKA LABS shall not be in default as a result of the fact that a delivery period or date has been exceeded until such time as the Customer has given written notice of default. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that MOKA LABS has the opportunity to respond adequately.
13.4 If it is agreed that the fulfilment of the agreed work in stages, MOKA LABS is entitled to postpone the commencement of the work to a further stage until the Customer has approved the results of the previous stage
14.1 The Customer agrees to indemnify and hold harmless MOKA LABS, its contractors, and its licensors (i.e. WordPress and GPL), from and against any and all claims and expenses, including attorneys’ fees, arising out of its use of MOKA LABS Products and Services, including but not limited to a violation of the Agreement or these General Terms.
14.2 The Products and Services are provided “as is”. Customer understands and agrees that its usage of the Products and Services are at its sole risk.
14.3 MOKA LABS, its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement.
14.4 Neither MOKA LABS nor its suppliers and licensors, make any warranties that the Products and Services will:
a) meet the Costumer requirements;
b) be error free; or
c) that access thereto will be
14.5 None of these General Terms or any of MOKA LABS’ expressions can be understood
or construed as a guarantee for any specific result on any Product or Service.
15.1 MOKA LABS is not liable for damage or loss caused as a result of any default in the fulfillment of its obligations towards the Customer or on any other ground.
15.2 If MOKA LABS were to be held liable towards the Customer, MOKA LABS would only be liable for direct damages or loss caused by acts on the part of MOKA LABS. MOKA LABS will never be liable for any indirect damages or loss such as resulting loss, loss due to delay, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims from the Customer’s clients, loss in connection with the use of items, materials or software provided by third parties and loss in connection with the engagement of secondary suppliers by MOKA LABS on the Customer’s instructions. The liability of MOKA LABS due to the scrambling, destruction or loss of data or documents is also excluded.
15.3 MOKA LABS’ total liability for direct as damages are limited to the value of the Agreement which the liability follows from, with a maximum amount of $10,000.00 (ten thousand Canadian Dollars). If the Agreement is essentially a continuing performance contract with a term of more than six months, the sum stipulated in the Agreement shall be set at the total fees (excl. applicable taxes) stipulated for six months.
15.4 The exclusions and restrictions to MOKA LABS’ liability, as described in the preceding paragraphs, shall not affect the remaining exclusions and restrictions to MOKA LABS’ liability set out in this General Terms in any way.
15.5 The exclusions and restrictions referred to in this article shall no longer apply if and in so far as the loss is the result of intentional acts or deliberate recklessness on the part of MOKA LABS’ management.
15.6 Except where performance by MOKA LABS is permanently impossible, MOKA LABS shall only be liable as a result of an attributable failure to perform an agreement if the Customer gives MOKA LABS immediate notice of default in writing, setting a reasonable term in which the breach can be remedied, and MOKA LABS still attributively fails to meet its obligations after this period. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that MOKA LABS has the opportunity to respond adequately.
15.7 A condition for the existence of any right to compensation shall in all cases be that the Customer notifies MOKA LABS in writing of the loss or damage as soon as possible after it occurs. Any claims for damages against MOKA LABS shall expire by the mere passage of thirty (30) days from the date on which the claim arose.
15.8 The Customer shall indemnify MOKA LABS against all claims by third parties due to (product) liability as a result of a fault in a product or system delivered by the Customer to a third party and that partly consisted of hardware, software or other materials provided by MOKA LABS, unless and in so far as the Customer is able to demonstrate that the damage or loss was caused by this hardware, software or other materials.
15.9 The provisions of this article and all other restrictions and exclusions of liability referred to in these General Terms shall also apply in favour of all (legal) persons that MOKA LABS engages to execute the Agreement.
16. Statement of non-disclosure
16.1 This article will apply if MOKA LABS desires to disclose, examine or use Confidential Information.
16.2 MOKA LABS undertakes to disclose, examine or use the Confidential Information only for the purpose and execution of the Agreement.
16.3 MOKA LABS will keep the Confidential Information secure and the Confidential Information will not be disclosed to any third party, except to their employees and professional advisors.
16.4 Nothing in this article will prevent MOKA LABS from disclosing Confidential Information as required to comply with applicable law and regulations and binding orders of governmental entities or regulatory authorities that have jurisdiction over it.
16.5 Confidential Information does not include information that:
a) was in MOKA LABS possession before such Confidential Information was imparted by the Customer or is independently developed by any servant, agent or employee or otherwise developed on behalf of MOKA LABS without access to or use or knowledge of the Confidential Information imparted by the Customer;
b) is in or subsequently comes into the public domain;
c) is received by MOKA LABS without restriction on disclosure or use from a third party which third party has a lawful right to make such disclosure, or
d) can be shown to have been independently developed by MOKA LABS or on behalf of MOKA LABS by means other than through his access to any Confidential Information.
16.6 The statement of non-disclosure as mentioned in this article will endure for as long as the Agreement endures.
17. Force Majeure
In the event of force majeure, MOKA LABS is entitled to terminate the agreement wholly or partially, or postpone the execution thereof without any liability to compensate the Customer.
Amongst other situations, force majeure shall include:
(i) a situation of force majeure encountered by MOKA LABS’ own suppliers;
(ii) failure by secondary suppliers engaged by MOKA LABS on the Customer’s instructions to duly meet their obligations;
(iii) the defectiveness of items, hardware, software or materials provided by third parties that MOKA LABS has been instructed to use by the Customer;
(iv) government measures;
(v) electricity failure;
(vi) faults affecting the internet, computer network or telecommunication facilities;
(ix) strike action;
(x) general transport problems;
(xi) the unavailability of one or more members of staff and/or unforeseen consequences for putting into use an update or support action of (a Product or Service from) MOKA LABS
18.2 If the Customer has made a (down) payment and MOKA LABS subsequently terminates the agreement, the Customer owes MOKA LABS this down payment as a penalty, notwithstanding MOKA LABS’ entitlement to compensation.
18.3 The Customer is not entitled to terminate any Agreement with MOKA LABS with the exception of the provisions in article 11.5.
18.4 In the event of a situation as mentioned in article 12.6 MOKA LABS is entitled to terminate the Agreement without any notification of default and without any liability to compensate the Customer.
19. Applicable Law
19.1 All Agreements, offers, or use of the Products and Services or the General Terms are governed by Ontario and Canadian Law.
19.2 Any disputes that may arise between MOKA LABS and the Customer on the basis of an agreement concluded between MOKA LABS and the Customer or as a result of further agreements that arise from such an agreement, shall be brought before a Federal or Provincial Court of Ontario.