Desktop Software End User License Agreement
Date of last revision: Monday, March 16, 2020
IMPORTANT: PLEASE READ THIS DESKTOP SOFTWARE END USER LICENSE AGREEMENT (THIS “LICENSE”) CAREFULLY BEFORE USING ANY DESKTOP SOFTWARE APPLICATIONS PROVIDED BY MAGIC LEAP. THE TERMS OF THIS LICENSE ARE ALSO AVAILABLE ON MAGIC LEAP’S WEBSITE LOCATED AT WWW.MAGICLEAP.COM/LEGAL.
THIS LICENSE DESCRIBES THE LIMITED RIGHTS YOU HAVE TO USE THE SOFTWARE (AS DEFINED BELOW) AND IS A BINDING CONTRACT BETWEEN YOU AND MAGIC LEAP, INC. ("MAGIC LEAP"). BY CLICKING “ACCEPT,” OR BY INSTALLING OR USING THE SOFTWARE, YOU REPRESENT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.
IF YOU DO NOT AGREE TO THIS LICENSE, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER REFERENCED IN SECTION 11, THEN YOU MAY NOT CONTINUE WITH THE INSTALLATION OR USE OF THE SOFTWARE.
MAGIC LEAP IS BASED IN THE U.S. BUT IS EXCITED TO WELCOME (WITH A SPECIAL “CHEERS,” “BONJOUR,” AND “GUTEN TAG”) NEW COMMUNITY MEMBERS WHO ARE RESIDENTS OF JURISDICTIONS WHERE WE ARE MAKING OUR PRODUCTS AVAILABLE FOR COMMERCIAL SALE (OUR “INTERNATIONAL FRIENDS”). YOUR PARTICULAR COUNTRY OR JURISDICTION MAY HAVE ENACTED CERTAIN LAWS, STATUTES AND OTHER LEGISLATION THAT APPLY TO OUR LEGAL RELATIONSHIP AND WHICH CANNOT BE DEROGATED FROM BY CONTRACT. WE WANT TO BE CRYSTAL CLEAR — NOTHING IN THIS LICENSE WILL AFFECT YOUR LEGAL RIGHTS UNDER THE LAWS APPLICABLE IN YOUR COUNTRY OR JURISDICTION. WE’VE NOTED BELOW WHERE OUR INTERNATIONAL FRIENDS MAY BE ENTITLED TO DIFFERENT OR ADDITIONAL TERMS BASED ON APPLICABLE LAWS (REFERRED TO AS THE “SPECIAL TERMS” THROUGHOUT THIS AGREEMENT). YOU CAN FIND THE SPECIAL TERMS THAT MAY APPLY TO OUR INTERNATIONAL FRIENDS AT THE END OF THIS LICENSE. NOTICES REGARDING OSS (AS DEFINED BELOW) AND OTHER ITEMS ARE ADDRESSED AT THE END OF THIS LICENSE.
1. LICENSE TO SOFTWARE AND UPDATES
1.1 This License covers your use of the Software, except any particular Software component or application may be governed by separate terms which either accompany the Software component or application or are contained in the Software’s NOTICES file. In that case, the separate terms will solely govern the applicable Software component or application. As used herein, the term “Software” includes (a) the desktop software applications acquired from or delivered by Magic Leap which are accompanied by this License; (b) certain OSS; (c) all related documentation; and (d) any updates, upgrades, error corrections, bug fixes, patches, changes or revisions to any of the items listed in subsections (a) -(c) (collectively, “Update(s)”). For the avoidance of doubt, the following items are governed by separate terms and conditions: all software on Magic Leap devices, including but not limited to Lumin OS and any on-device applications for the Magic Leap platform; any applications provided via Magic Leap’s developer portal (e.g., The Lab) or Magic Leap-owned Github or other similar repositories; applications other than desktop applications (e.g., mobile applications); and all cloud services provided by Magic Leap to its end users.
1.2 Magic Leap hereby grants you a personal, revocable (at-will), limited, nontransferable, nonsublicensable and nonexclusive license to use the Software on a single computer, solely for the purpose of using the Software as intended and described in the documentation accompanying the Software. You do not have any other rights to the Software.
1.3 Magic Leap may provide or make available from time to time Updates to the Software, and the Software may automatically connect to Magic Leap or third-party servers via the Internet to check for available Updates and may either: (a) automatically install an Update to the version of the Software; or (b) give you the option of manually installing an Update. By installing the Software and not disabling any automated check for Updates, if applicable, you consent to automatically request and receive Updates from Magic Leap or third-party servers and agree that this License will apply to all such Updates unless provided with separate terms, in which case those separate terms will solely apply. Magic Leap encourages you to download, install and use such Updates to maximize your experience with the Software. If you choose not to install and use an Update, you may experience issues with delays, interruption, performance or security. Certain Updates are mandatory (e.g., updates for security concerns or otherwise), which you are required to install within any time period of which Magic Leap notifies you when provided with such Update. If you do not install the mandatory Updates within the applicable time period, you may lose access to certain Magic Leap services. To the maximum extent permitted by applicable law, Magic Leap will not be responsible for any liability that may arise due to your failure to install and use an Update where use of such Update would have avoided the liability.
2. RESERVATION OF RIGHTS AND RESTRICTIONS
2.1 The Software is licensed and not sold. Magic Leap and its licensors retain all right, title and interest in and to the Software, and all intellectual property rights therein, including any Updates and improvements, copies, translations, adaptations, modifications, derivations and enhancements of the Software. Magic Leap does not transfer to you any right, title or interest in or to the Software.
2.2 You may not do, nor allow a third party to do, any of the following: (a) make any archival copies of the Software; (b) work around, interfere with, exceed, or circumvent any technical limitations or software protection measures in the Software; (c) modify, adapt, alter, rent, lease, loan or distribute the Software or use the Software in the operation of a service bureau or for the benefit of a third party; (d) reverse engineer, decompile, translate, disassemble or otherwise attempt to derive any source code of the Software (except as and only to the extent permitted by applicable law); (e) create derivative or merged works of the Software or separate the component parts of the Software; (f) input, upload, transmit or otherwise provide to or through the Software any unlawful or malicious information, materials or code; (g) alter or remove any proprietary rights notices or legends on or in the Software; (h) use the Software in hazardous environments requiring fail-safe performance, including, without limitation, the operation of nuclear facilities, aircraft navigation, or communication systems, air traffic control, direct life support machines or weapons systems (collectively, “Restricted Use”); or (i) use the Software for the development, provision or use of a competing software service or product.
4. THIRD-PARTY MATERIALS
4.1 The Software may contain third-party materials that are subject to separate terms and conditions. With regards to third-party materials that are not OSS, those separate terms, and not this License, will solely govern such third-party materials. “OSS” means software and materials distributed by its licensor under a license (an “OSS license”) as “free software,” “open source software” or under similar licensing or distribution terms. Accordingly, OSS licenses include, but are not limited to, the MIT open source license, the BSD open source license, the Apache Software License, the General Public License, the Lesser General Public License and the Eclipse Public License.
4.2 Portions of the Software contain or are derived from third-party OSS. OSS received by Magic Leap under an OSS license which permits sublicensing under this License are sublicensed to you by Magic Leap under the terms and conditions of this License. OSS received by Magic Leap under an OSS license which does not permit sublicensing under this License are directly licensed to you from the OSS’s licensor. Derivative works created by Magic Leap of OSS received by Magic Leap under an OSS license which does permit licensing of such derivative works under this License are licensed to you by Magic Leap under the terms and conditions of this License. Derivative works created by Magic Leap of OSS received by Magic Leap under an OSS license which does not permit licensing of such derivative works under this License are licensed to you by Magic Leap as required by the terms of the OSS license (e.g., to you by Magic Leap under the same OSS license).
4.3 To the extent permitted by any third-party materials’ terms and conditions, or any OSS license, Magic Leap provides that third-party material, OSS, and/or derivative work to you “as is," without warranty of any kind, express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose, and noninfringement. In no event shall Magic Leap be liable for any claim, damages or other liability, whether in an action of contract, tort, or otherwise, arising from, out of, or in connection with that third-party material, OSS, and/or derivative work, or the use or other dealings in that third-party material, OSS, and/or derivative work. Notwithstanding the foregoing, nothing in this section will limit or exclude liability that cannot be limited or excluded under applicable law. For our International Friends, please see the provisions specific for your jurisdiction in the special terms.
Certain Magic Leap services that may be accessed, linked to or displayed through the Software may not be available in all languages or in all countries or regions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGIC LEAP AND ITS LICENSORS MAKE NO REPRESENTATION AND EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT ANY SUCH MAGIC LEAP SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR LOCATION. To the extent you choose to use or access such Magic Leap services using the Software, you are responsible for compliance with any applicable laws.
This License is effective on the date you first install or use the Software and continues unless and until terminated by Magic Leap at its sole discretion. Without prejudice to any other Magic Leap rights, this License terminates automatically without notice if you fail to comply with your obligations under this License. Upon termination of this License: (a) your License to use the Software terminates; (b) you must immediately stop use of the Software; (c) you must return, destroy or delete, as may be directed by Magic Leap, all copies of the Software; and (d) the following provisions will also continue to apply: Third Party Materials, Termination, Disclaimers of Warranty, Limitation of Liability, U.S. Government End Users, Export Restrictions, Governing Law and Arbitration, and General.
7. DISCLAIMER OF WARRANTY
FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS LICENSE, INCLUDING THIS SECTION 7, WILL LIMIT OR EXCLUDE LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGIC LEAP PROVIDES THE SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. MAGIC LEAP AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAGIC LEAP, ITS LICENSORS, SUPPLIERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL NOT INCREASE THE SCOPE OF THIS WARRANTY. MAGIC LEAP DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, WILL ACHIEVE PARTICULAR RESULTS OR WILL OPERATE ERROR FREE. THE FEATURES AND FUNCTIONALITY OF THE SOFTWARE MAY CHANGE AT ANY TIME, AND MAGIC LEAP DISCLAIMS ANY RESPONSIBILITY FOR SUCH CHANGES. THE SOFTWARE IS NOT DESIGNED FOR RESTRICTED USE (AS DEFINED IN SECTION 2.2 ABOVE) AND MAGIC LEAP MAKES NO WARRANTIES FOR SUCH USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST OR EXCLUSIONS OR LIMITATIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU, AND MAGIC LEAP’S LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATIONS ARE PERMITTED BY LAW.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL (A) MAGIC LEAP OR OUR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION OR SYSTEM FAILURE OR MALFUNCTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF MAGIC LEAP HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) MAGIC LEAP’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS LICENSE EXCEED THE GREATER OF (i) THE TOTAL AMOUNT PAID BY YOU TO MAGIC LEAP FOR THE SOFTWARE (IF ANY); OR (ii) ONE HUNDRED DOLLARS ($100). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAGIC LEAP AND YOU. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF MAGIC LEAP FOR (A) DEATH OR PERSONAL INJURY CAUSED BY MAGIC LEAP’S GROSS NEGLIGENCE IN CONNECTION WITH THE SOFTWARE; OR (B) ANY DAMAGES CAUSED BY MAGIC LEAP'S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT, OR GROSS NEGLIGENCE.
9. U.S. GOVERNMENT END USERS
Software acquired by the U.S. Government is classified as "Commercial Computer Software" and is provided with Restricted Rights as that term is defined in FAR 52.227-19 and DFARS 227-7202. This License governs the U.S. Government’s use and disclosure of the Software, and supersedes any conflicting terms or conditions, except to the extent that any term or condition is inconsistent with U.S. Federal law. If the U.S. Government requires any rights that are not conveyed under this License, those rights will be separately negotiated and will be set forth in a separate written license or in a written addendum to this License.
10. EXPORT RESTRICTIONS
You will comply with all U.S. or other applicable export control laws regarding the export of items, software or technology including ensuring that: (a) no equipment, technical data, or Software is exported or re-exported to any country, person or entity in violation of any U.S. or other applicable export controls or sanctions; and/or (b) anything received from Magic Leap is not used or re-exported for a prohibited use under U.S. or other applicable export control laws. Further, you represent and warrant that you are (y) not located in a country that is subject to U.S. Government sanctions or has been designated by the U.S. Government as a “terrorist supporting” country; and (z) have not been identified as a sanctioned party by the U.S. Office of Foreign Assets Control or any other applicable sanctions or denied persons lists by any other applicable government agency. You will not use the Software if any applicable laws in your country prohibit you from doing so in accordance with these terms.
11. GOVERNING LAW AND ARBITRATION
This License will be governed by and construed in accordance with the laws of the State of California without resort to its conflict of law provisions. If there is any dispute under this License or otherwise relating to your use of the Software, you expressly agree that all such disputes will be solely governed by the venue and Agreement to Arbitrate and Waiver of Class Action provisions in Magic Leap’s Account Terms and Conditions, which are located at http://www.magicleap.com/account-terms (the “Account Terms”), except to the extent provided in the special terms with respect to our International Friends. Please read the Agreement to Arbitrate and Waiver of Class Action carefully and understand your rights. For our International Friends, please note that different terms regarding governing law and dispute resolution may apply to you – please review the special terms specific to your jurisdiction below. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this License.
If any provision of the License is determined to be illegal, invalid or unenforceable, the validity of the remaining provisions will not be affected and will be enforced to the fullest extent of applicable law. This License, together with the Account Terms, contain the entire agreement between you and Magic Leap regarding your use of the Software and supersedes any prior representation or agreement, oral or written. If there is any conflict between the terms of this License and the Account Terms concerning the Software, the terms of this License will prevail. The failure of either party to enforce at any time any provision of this License may not be construed to be a continuing waiver of those provisions or any other provision. All rights and remedies under this License are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. You will not delegate, transfer or assign, by operation of law or otherwise, this License, or your rights or obligations under it without Magic Leap’s prior written consent, and any attempt to do so is void. This License binds any permitted successors or assigns and you must present this License to any permitted assignee.
13. SPECIAL TERMS AND CONDITIONS FOR INTERNATIONAL JURISDICTIONS
Hey, International Friends! These special terms set forth additional rights and supplemental terms that may apply to our relationship. If there is a provision in the standard License that is inconsistent with these special terms, the applicable special terms for your jurisdiction will apply.
General. The following special terms apply to all residents of the United Kingdom (U.K.) or the European Union (“EU Customers”):
This License shall not limit any of our obligations or your rights under applicable data protection or other laws that cannot be limited by contract.
Nothing in this License will limit your rights to reverse engineering for the purpose of achieving interoperability with other programs where permitted without consent by mandatory law.
Please be advised that the following terms constitute “key” terms between you and Magic Leap: Sections 1, 2 and 10.
The laws of the State of California will continue to apply to our relationship, subject to any applicable mandatory local law. You may bring a legal action relating to these terms or your relationship with Magic Leap in either the state or federal courts located in Santa Clara County, California or in the courts located in your country of residence. In other words, the choice of where to bring your action is up to you.
If you are not happy with the way Magic Leap deals with any disagreement in connection with this License we may collectively agree to refer the matter to a form of dispute resolution (including as described in the Arbitration Agreement in the Account Terms), but neither of us are restricted from bringing court proceedings. In other words, the Arbitration Agreement in the Account Terms is optional, not mandatory. The European Commission provides for an online dispute resolution platform, which you can access here: http://ec.europa.eu/consumers/odr/. If you would like to bring a matter to our attention, please email firstname.lastname@example.org.
France. If you are an EU Customer who is a resident of France, the following special terms also apply:
Pursuant to Article L. 213-1 of the French Consumer Code, you are entitled to request access to all agreements entered into with you for a value of €120 or more. Your right to access such agreements may be exercised at any time by contacting email@example.com.
You may benefit from the statutory warranty of conformity and the statutory warranty against latent defects regarding the Software (capitalized terms used below are defined in the applicable statute):
Statutory warranty of conformity: as per Articles L217-4 to L217-14 of the Consumers Code the Customer has two years from the delivery of the product to obtain a repair or replacement of the Product (subject to costs considerations as detailed under Article L217-9 of the Consumer Code).
Statutory warranty against latent defects: as per Articles 1641 to 1649 of the Civil Code the Customer has two years from the discovery of the defect to claim a return of the product. The Customer will have to prove that the defect existed when Customer purchased the product.
Germany. If you are an EU Customer who is a resident of Germany, the following special terms also apply:
Sections 7 (Disclaimer of Warranty) and 8 (Limitation of Liability) will be replaced by the following clauses:
No provision of this agreement should be understood as a promise of a guarantee, except where specifically named as such. Magic Leap specifically excludes a guarantee for initial defects pursuant to section 536a (1) of the German Civil Code.
In cases of slight negligence we will not be liable in case of a breach of non-material contractual obligations. In such cases as well as in cases of gross negligence our liability will be limited to typical foreseeable damages. This limitation does not apply to the extent damages have been caused by our managing employees or legal representatives.
Our liability for intent and gross negligence, for claims under the German Product Liability Act, in the case of fraudulent concealment of defects or a guarantee in respect to characteristics as well as for damages to life, body or health shall remain unaffected and will be determined exclusively in accordance with statutory law.
Please note that according to section 36 (1) VSGB (German Consumer Dispute Settlement Act), we are not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board.
Spain. If you are an EU Customer who is a resident of Spain, the following specific terms also apply:
- Magic Leap does not limit or exclude any liability for defective products under Articles 128 to 134 of the Spanish Consumer Protection Act.
UK. If you are an EU Customer who is a resident of the U.K., the following special terms also apply:
- Magic Leap does not limit or exclude any liability for defective products under the Consumer Protection Act 1987.
The following special terms apply to all residents of Japan:
This License shall not limit any of our obligations or your rights under laws that cannot be limited by contract.
The laws of the State of California will continue to apply to our relationship, subject to any applicable mandatory local law. You may bring a legal action relating to these terms or your relationship with Magic Leap in either the state or federal courts located in Santa Clara County, California or in the courts in Japan. In other words, the choice of where to bring your action is up to you.