Magic Leap Enterprise Services Agreement
Date of last revision: Monday, August 31, 2020
This Magic Leap Enterprise Services Agreement is entered into between Magic Leap, Inc. (“Magic Leap”) and the customer named below or in the applicable Order Form (“Customer”). As used herein, “Agreement” means, collectively, this Enterprise Services Agreement and all Order Forms.
By executing an Order Form that references this Agreement, or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by Magic Leap, Customer agrees to be bound by the terms and conditions of this Agreement as of such applicable date (the “Effective Date”). Any individual accepting this Agreement on behalf of a Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to this Agreement. Customer may use the Enterprise Services only in compliance with this Agreement and only if Customer has the power to form a contract with Magic Leap. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE ENTERPRISE SERVICES.
1. SCOPE OF ENTERPRISE SERVICES
1.1. Enterprise Services. This Agreement governs Customer’s access to, use of and receipt of Magic Leap’s Enterprise Services. As used in this Agreement, “Enterprise Services” means (a) access to and use of Magic Leap’s proprietary, software-as-a-service solutions for enterprise customers of the Magic Leap Platform (as applicable, the “Enterprise Solutions”) and (b) the support, maintenance and training services that Magic Leap provides to Customer with respect to the Enterprise Solutions and use of the Magic Leap Platform (“Support Services”). The specific Enterprise Services that Customer will be entitled to receive under this Agreement will be set forth in an “Order Form” (i.e., quotation, purchase order, confirmation or similar ordering documentation) that is entered into by the Customer (either directly with Magic Leap or through a Reseller (as defined in Section 4.4. below)). No software will be provided to Customer on any media under this Agreement; any software delivered by Magic Leap to Customer is subject to a separate software license.
1.2. Magic Leap Platform. The “Magic Leap Platform” means Magic Leap’s spatial computing technology platform, which includes hardware device(s) manufactured by or on behalf of Magic Leap (each, a “Device”), Magic Leap’s operating systems and other on-Device software, all other software applications and content published or made available by Magic Leap, Magic Leap’s developer resources and tools, including its developer portal, SDKs, learning resources and other materials, Magic Leap websites and application store, and all other aspects of its spatial computing ecosystem. While Customer’s use of the Enterprise Services is governed by this Agreement, additional terms and conditions (the “User Terms”) apply to the purchase and use of the Magic Leap Platform by Customer and its Users (defined below).
1.3. Users. Customer’s employees, contractors or other personnel that access and use the Enterprise Services on Customer’s behalf are its “Authorized Users” under this Agreement. The Enterprise Services provide Customer and its Authorized Users with tools and services to provision, support and manage the use of the Magic Leap Platform by end users within Customer’s businesses (such end users, the “Platform Users” and, together with Authorized Users, the “Users”).
1.4. Documentation. The specific features, functionality and offerings that comprise the Enterprise Services are described in the applicable Documentation. “Documentation” means the Enterprise Services descriptions attached in Exhibit A and any other documentation, training guides or similar materials for the Enterprise Services that Magic Leap provides to Customer, including via a Magic Leap website, as may be updated by Magic Leap from time to time.
2. MAGIC LEAP RESPONSIBILITIES
2.1. Enterprise Services. Subject to this Agreement, Magic Leap will (a) provide Customer and its Authorized Users with access to and use of the Enterprise Solutions, (b) provide the Support Services; (c) provide the Enterprise Services in material conformance with the terms and conditions of this Agreement and the applicable Documentation, (d) use commercially reasonable efforts to make the Enterprise Solution available 24 hours a day, 7 days a week except for instances of scheduled maintenance or downtime or unavailability caused by circumstances outside of Magic Leap’s reasonable control (e.g., emergency downtime, force majeure and similar events), and (e) provide the Enterprise Services in accordance with the laws and government regulations applicable to the provisioning of the Enterprise Services and to Magic Leap’s business. Magic Leap is responsible for the performance of its employees and contractors and their compliance with Magic Leap’s obligations under this Agreement. Magic Leap may use non-employee contractors, service providers or agents for the purpose of providing Enterprise Services hereunder.
2.2. Changes to Enterprise Services. From time-to-time during the Term, Magic Leap may update or change the features, functionality or other aspects of the Enterprise Services, provided that such changes do not materially reduce the functionality of the Enterprise Services unless deemed necessary or useful, for example to: (a) maintain or enhance (i) the quality or delivery of the Enterprise Services to its customers, (ii) the competitive strength of or market for the Enterprise Services or (iii) the Enterprise Services’ efficiency or performance; or (b) to comply with applicable law and regulation. Magic Leap will use reasonable efforts to provide electronic notice to Customer in advance of any such updates or changes. Customer agrees that its purchase of the Enterprise Services is not contingent upon the delivery of any future functionalities or features.
3. CUSTOMER RESPONSIBILITIES
3.1. Enterprise Registration. In order to access and use the Enterprise Solutions, Customer must create a company account (an “Enterprise Account”) through the Enterprise Solutions. Customer will (a) provide accurate, truthful, current and complete information with respect to its Enterprise Account; and (b) maintain and promptly update all Enterprise Account information. Customer is responsible for protecting and safeguarding any passwords, user IDs or other credentials and login information that have been provided to Customer or that are generated in connection with Customer’s Enterprise Account. Customer will use reasonable efforts to prevent unauthorized access to, or use of, its Enterprise Account. Customer will immediately notify Magic Leap in writing of any unauthorized use of the Enterprise Account that comes to Customer’s attention.
3.2. Okta. Certain features of the Enterprise Solutions use sign-on technology that Magic Leap has licensed from its third party identity management solutions provider, Okta, Inc. (“Okta”). As part of the Enterprise Services, Magic Leap personnel will provide support for Authorized Users’ use of Okta in order to access the Enterprise Solution. For information about Okta’s privacy and data security practices, please visit https://www.okta.com/security/ and https://www.okta.com/privacy-policy/.
3.3. User Terms. In order to access and use the Enterprise Solutions and/or the Magic Leap Platform, all Users must register for a Magic Leap ID and will be required to accept the applicable User Terms (including Magic Leap’s Account Terms and Conditions). For the avoidance of doubt, Customer is liable for the acts and omissions of its Users, including their compliance with the applicable User Terms. Notwithstanding anything to the contrary in the User Terms, in the event of a dispute, Magic Leap will bring claims under any User Terms against Customer as an entity (and not against individual Users) unless Magic Leap deems it necessary in its sole discretion to preserve or pursue a claim or action.
3.4. Authorized Use. Customer will use the Enterprise Services in accordance with the terms and conditions of this Agreement, the Documentation, and the applicable Order Form, including any applicable usage restrictions on subscription term, number of Users or Devices and/or other usage parameters for the Enterprise Solutions set forth in an Order Form (collectively, “Approved Use”). Customer is permitted to access and use the Enterprise Services solely for its internal business purposes. Certain Enterprise Solutions include access to features which enable Customer to distribute applications developed for the Magic Leap Platform, such as the enterprise app distribution channel available through Magic Leap’s developer portal (“Enterprise App Distribution”) and the ability to generate certificates that enable distribution of applications to all enterprise users (“Enterprise Certificates”). In order to use Enterprise App Distribution, Customer will be required to register as a publisher through Magic Leap’s Developer Portal. If Customer chooses to register as a publisher to make use of Enterprise App Distribution, Customer will: (a) register using the same legal entity that executed this Agreement, and (b) register with an email address that uses the same email domain. With respect to Enterprise Certificates, Customer’s right to generate and sign applications with Enterprise Certificates is limited to applications that are owned or licensed by Customer. Customer represents and warrants that it has all necessary right and authority with respect to any applications it chooses to (i) distribute to its Users using Enterprise App Distribution, and/or (ii) sign with Enterprise Certificates generated by Customer. Customer may only use Enterprise Solution distribution features (including Enterprise App Distribution and Enterprise Certificates) to distribute applications internally to its Users. The use of such tools to distribute applications to third parties or otherwise commercialize or monetize applications for the Magic Leap Platform requires a separate written agreement between Customer and Magic Leap.
3.5. Cooperation. Customer’s cooperation is required in order for Magic Leap to efficiently and effectively perform the Enterprise Services. Customer agrees to comply with all of Magic Leap's reasonable requests made in connection with the provision of Enterprise Services to Customer. Magic Leap will have no liability for any delays, deficiencies or failures that occur in the performance of Enterprise Services as a result of (a) delays due to unanticipated Customer requests, (b) Customer’s failure to cooperate (including the cooperation of third parties under Customer’s control), or (c) Customer’s breach of this Agreement.
3.6. Applications. Certain of Magic Leap’s Enterprise Services enable Customer’s Authorized Users to browse, select and obtain a variety of apps from Magic Leap World for use on the Magic Leap platform. App licenses may be provided to Customer by either Magic Leap or a third party, as noted the applicable Enterprise Service (as applicable, the “App Licensor”). Apps licensed to Customer by Magic Leap are “Magic Leap Apps”. Except for Magic Leap Apps, Magic Leap is acting as an agent for the App Licensor in providing Customer with an App and is not a party to the end user license agreement between Customer and the applicable App Licensor. Any App that Customer acquires is governed by the Application End User License Agreement (“Default EULA”) set forth in Magic Leap’s Account Terms and Conditions, unless the applicable App Licensor provides a custom end user license agreement (“Custom EULA”), which will be available for review in the applicable Enterprise Service prior to downloading the App. Download and use of an App by an Authorized User will constitute Customer’s acceptance of the Default EULA or Custom EULA, as applicable. Except for Magic Leap Apps, Magic Leap has no responsibility or liability with respect to Customer’s access to, or use of, Apps, or any content or functionality contained in such Apps, which is solely provided pursuant to a license between Customer and the applicable App Licensor. In no event will Magic Leap be considered the licensor of Apps (other than Magic Leap Apps), to have granted any rights to use such Apps, to have assumed any obligations or responsibility with respect to such Apps including (without limitation) in connection with any support or maintenance, warranties, product liability claims, failure to comply with applicable law, and claims of infringement or misappropriation of intellectual property right, or to have made any representations or warranties with respect to such Apps. To the extent Magic Leap is identified as a third-party beneficiary of the Default EULA or Custom EULA applicable to each App (excluding Magic Leap Apps), it may enforce such agreement. Magic Leap is responsible for providing maintenance and support for Magic Leap Apps and with respect to the Magic Leap World only, or as required under applicable law. App Licensors are responsible for providing maintenance and support for their Apps.
3.7. Other Third Party Products and Services. Customer is responsible for obtaining and maintaining, at its sole cost and expense, any Devices, hardware, equipment, third party software (excluding Okta), and all Internet browsers and connections required to access or use the Enterprise Services as such requirements are specified in the applicable Documentation. Magic Leap shall not be responsible for the contents of any linked external Web sites.
3.8. Compliance with Law. Customer will use the Enterprise Services in accordance with all applicable laws and government regulations. Certain Enterprise Services may provide Customer with usage metrics or other analytics regarding Customer’s Users and their applicable use of Magic Leap’s platform. Customer is solely responsible for providing any required notices related to such use and for other ensuring its use of the Enterprise Services, including any such features, is in accordance with applicable law.
3.9. Restrictions; Limitations. Without limitation of the foregoing, Customer will not (and will ensure that its Users do not): (a) modify, disassemble, decompile, reverse engineer or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Enterprise Services; (b) use or access the Enterprise Services to build a competitive product or service; (c) use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Enterprise Services; (d) download (other than page caching) any portion of or information contained within the Enterprise Services other than as expressly permitted by Magic Leap; (e) perform or disclose any benchmarking or performance testing of the Enterprise Services; (f) sell, license, rent, lease or assign the Enterprise Services or distribute, display, host, disclose, outsource or otherwise commercially exploit the Enterprise Services as part of a product or service provided to any third party; or (g) use the Enterprise Services other than for its intended use. Customer may access the Enterprise Services only through interfaces and protocols provided or authorized by Magic Leap and may not copy, co-brand, frame or mirror any part or content of the Enterprise Services. The use by Customer and its Users of any interactive features within the Enterprise Services (if any) is subject to the acceptable use policies and community guidelines set forth in the User Terms.
4. FEES, PAYMENT AND TAXES
4.1. Free Trial Access to Enterprise Services. If Customer is granted access under the Agreement to a free (no fee) version of the Enterprise Services on a trial basis for a limited period (such period, the “Trial Period”), Customer agrees that (a) Magic Leap has no obligation to provide any particular service level or support services; and (b) Magic Leap may cease providing access to such Enterprise Services at any time without notice. NOTWITHSTANDING SECTION 8 BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. This Section supersedes any conflicting provision of the Agreement.
4.2. Subscriptions and Limitations. Certain Enterprise Services are offered on a subscription basis (each, a “Subscription”) on an annual or other periodic basis as set forth in the applicable Order Form, starting from the date that Customer first gets notification of shipment of the applicable Enterprise Service (the “Subscription Period”). In addition, certain Enterprise Services are offered for use only in accordance with the Approved Use specified in an Order Form. Customer will notify Magic Leap (or the applicable Reseller) immediately upon exceeding the Approved Use set forth in the applicable Order Form, and will pay, on a pro-rated basis, any and all amounts due for such overage through the remainder of the then-current Subscription Period.
4.3. Fees. Customer will pay fees for the Enterprise Services provided by Magic Leap as specified in the applicable Order Form (“Fees”). With respect to Subscriptions, Magic Leap reserves the right to increase the Fees for a subsequent Subscription Period, as indicated on the Order Form for such Subscription Period.
4.4. Enterprise Services Purchased via Resellers. From time-to-time, Magic Leap may offer sales of Enterprise Services through one or more of its authorized reseller partners (each, a “Reseller”). If Customer purchases Enterprise Services through a Reseller, Customer shall pay the Fees set forth in the applicable Order Form to Reseller in accordance with the terms and conditions set forth in the applicable Order Form. All Fees are due and payable by Customer to its Reseller. Any disputes related to the Fees or invoicing shall be handled directly between Customer and the Reseller. In no event will Magic Leap be liable for the acts or omissions of a Reseller.
4.5 Invoiced Payment. Fees are payable in advance of each Subscription Period or the commencement of Enterprise Services, as applicable. All Fees are shown in U.S. dollars, unless otherwise specified. Unless different payment terms are expressly set forth in the applicable Order Form, Customer will pay invoiced Fees at the address or account designated by Magic Leap or the applicable Reseller within the time period set forth on the corresponding invoice. Customer will only dispute invoices in good faith. To be eligible for an invoice adjustment, Customer must provide a written description of the disputed portion of the invoice within 30 days of receipt, otherwise Customer will waive the right to dispute any invoice.
4.6. Taxes. All Fees payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales and use taxes, excise taxes, goods and services taxes, consumption taxes, value-added taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Magic Leap’s income. Customer shall indemnify Magic Leap for any taxes imposed upon Magic Leap for which Customer is responsible.
4.7. Audit. Magic Leap or its designee (including its accountants and auditors) reserves the right to: (a) require Customer to send written certification of compliance with the terms and conditions of this Agreement within 30 days of Magic Leap’s request; or (b) upon reasonable notice, inspect and audit Customer’s use of the Enterprise Services under this Agreement at any time during the Term and for one year following the termination or expiration hereof to confirm Customer’s compliance with the Agreement. Any audit that requires access to Customer’s premises will be conducted during regular business hours, on no less than 15 business days’ notice, and in a manner designed to not unreasonably interfere with Customer’s business operations. Subject to Section 10, Customer will make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Magic Leap with respect to such audit. If the audit determines that Customer’s use of the Enterprise Services exceeded the usage permitted by the applicable Order Form(s), Customer will pay to Magic Leap all amounts due for such excess use and all reasonable costs incurred by Magic Leap in conducting the audit in accordance with the payment terms set forth in Section 4.5.
5. TERM AND TERMINATION
5.1. Term. Unless terminated earlier pursuant to any of the Agreement’s express provisions, the term of this Agreement will commence on the Effective Date and will continue until the Subscription Period for each Enterprise Service under an applicable Order Form has expired (“Term”). Magic Leap (including through its Resellers) and Customer may agree on additional 12-month periods thereafter by executing additional Order Forms.
5.2. Termination. Subject to the terms of this Section 5.2, either party may terminate the Agreement upon written notice to the other party if the other party materially breaches the Agreement. If the breach is capable of being cured and the breaching party fails to cure the breach within 30 days after receiving such written notice, then the non-breaching party may immediately terminate the Agreement with a second written notice to the breaching party at the end of such 30 day period. If the breach is incapable of being cured, then the non-breaching party may terminate the Agreement immediately. Magic Leap may terminate this Agreement effective upon 90 days’ prior written notice to Customer, provided that Magic Leap must provide Customer with a prompt refund any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which such termination is effective.
5.3. Suspension, Limitation or Termination. Magic Leap may, in its sole discretion, immediately suspend Enterprise Services if Customer violates a material restriction or obligation in the Agreement, or if in Magic Leap’s reasonable judgment, the Enterprise Solution or any component thereof is about to suffer a material threat to security or functionality. Magic Leap will provide advance notice to Customer of any such suspension in Magic Leap’s reasonable discretion based on the nature of the circumstances giving rise to the suspension unless Magic Leap determines that prior notice is not feasible. Magic Leap will use reasonable efforts to re-establish Enterprise Services promptly after Magic Leap determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Magic Leap may terminate Enterprise Services if any of the foregoing causes of suspension are not cured within 30 days after Magic Leap’s initial notice thereof. Any suspension or termination by Magic Leap under this Section 5.3 will not excuse Customer from its obligation to make payment(s) under the Agreement if the suspension or termination arises from Customer’s breach of the Agreement.
5.4. Effect of Termination. In the event of any termination: (a) all of Customer’s rights under the Agreement will immediately terminate and Customer will immediately cease any access or use of the Services; (b) if Magic Leap terminates the Agreement for material breach by Customer under Section 5.2, then Customer will remain responsible for the remaining balance of the Fees in Customer’s applicable Order Form(s) and Customer must pay within 30 days all such amounts plus related taxes and expenses; (c) Sections 1, 2.3, 4, 5, 6, 7, 8.3, 9, 10 and 11 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms. If Customer terminates for material breach by Magic Leap under Section 5.2, then Magic Leap will refund to Customer within thirty (30) days of termination any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which the termination is effective.
6.1. By Customer. Customer will defend, indemnify, and hold harmless Magic Leap and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents (the “Magic Leap Parties”) from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) relating to any third-party (including Users) claim to the extent arising out of: (a) Customer’s breach of this Agreement; (b) any claims from Customer’s Users, or (c) any Service Data. If Magic Leap is obligated to respond to a third-party subpoena or other compulsory legal order or process in connection with either of the foregoing, Customer will also reimburse Magic Leap for reasonable attorneys’ fees, as well as the time and materials spent by Magic Leap’s employees and contractors responding to the third party subpoena or other compulsory legal order or process at Magic Leap’s then-current hourly rates. For any claims under this Section 6.1, Customer shall obtain Magic Leap’s written consent prior to (i) selecting and retaining counsel to defend against any claim under this Section 6.1 and (ii) agreeing to any settlement. Magic Leap may also assume control of the defense and settlement of any claim subject to this Section 6.1 at any time.
6.2. By Magic Leap. Magic Leap will defend any third party suit against Customer claiming that the Enterprise Solutions as used in accordance with this Agreement infringes a valid United States patent or copyright existing as of the Effective Date and will indemnify Customer for any final judgment against Customer or settlement approved by Magic Leap resulting from such third party suit provided Customer: (i) gives Magic Leap prompt notice when Customer becomes aware of the claim, including the nature of the claim and the amount of damages and nature of other relief sought; (ii) gives complete authority and assistance (at Magic Leap’s expense) for disposition of the claim; and (iii) makes no prejudicial admission about the claim. Magic Leap has no liability for any: (i) use of the Enterprise Solutions other than in accordance with this Agreement; (ii) claims resulting from combining the Enterprise Solutions with a product or software not supplied by Magic Leap; (iii) modification or customizations of the Enterprise Solutions by anyone other than Magic Leap; (iv) compromise or settlement made without written Magic Leap’s consent; (v) claims resulting from Customer’s failure to install updates, upgrades, error corrections, changes, or revisions; or (vi) Third Party Services (excluding Okta). If a claim is made or is likely, Magic Leap may, at its option and expense: (i) obtain the right for Customer to continue using the Enterprise Solutions in accordance with the Applicable Terms; (ii) substitute the allegedly infringing component of the Enterprise Solutions with an equivalent, non-infringing component; or (iii) modify the Enterprise Services to be non-infringing. If options (i) through (iii) are not commercially reasonable as determined by Magic Leap, Magic Leap may terminate this Agreement upon notice to Customer and credit Customer any prepaid fees paid for the Enterprise Solutions but not yet earned by Magic Leap. THIS SECTION 6.2 STATES MAGIC LEAP’S ENTIRE LIABILITY AND CUSTOMER’S SOLE RECOURSE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT. ALL WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE DISCLAIMED. “Third Party Services” means software or services acquired or licensed by Magic Leap from a third party that is included in the Enterprise Solutions or otherwise made available to Customer or its Users.
7. OWNERSHIP RIGHTS
7.1. Ownership by Magic Leap. Magic Leap owns and retains all right, title, and interest in and to the Enterprise Services, the Documentation, any Magic Leap software or technology utilized, created or reduced to practice in the provision of the Enterprise Services, the Magic Leap Platform, and all Intellectual Property Rights contained therein or related thereto, including without limitation all copies, translations, adaptations, modifications, derivations, and enhancements thereof (the “Magic Leap Materials”). Customer acknowledges that (a) no right or interest in the Magic Leap Materials is conveyed other than the limited licenses granted herein, (b) the Magic Leap Materials are protected by copyright and other intellectual property laws, and (c) the Magic Leap Materials embody valuable confidential and secret information of Magic Leap or its licensors, the development of which required the expenditure of considerable time and money. Customer will not take or encourage any action during or after the Term that will in any way impair the rights of Magic Leap in and to the Magic Leap Materials, any proprietary software or technology of Magic Leap, or any Intellectual Property Rights in and to any of the foregoing. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, including applications and registrations for any of the foregoing.
7.2. Service Data. No right, title or interest in and to the Service Data is transferred to Magic Leap. Customer consents to Magic Leap’s use of and access to the Service Data to (a) provide the Enterprise Services to Customer (b) create, improve, market, or provide support for Magic Leap and its products, processes and/or services; (c) compile and/or aggregate analytical or other usage patterns related to use of the Enterprise Services; and (d) otherwise aggregate and analyze the Services Data, provided that in the cases of (b)-(d) the Service Data is used in a form that does not identify Customer.
7.3. Access to and Use of the Enterprise Solutions. During the Term, and subject to Customer’s payment of all applicable fees, Magic Leap (either directly or through its Resellers, as applicable) grants to Customer a limited, nonexclusive, non-transferable, revocable right to permit and enable Customer (including Authorized Users) to implement, configure, access and use the Enterprise Solutions (as set forth in Customer’s the Order Form) solely in accordance with the terms and conditions of the Agreement and to use the Documentation in connection with Customer’s exercise of such right.
7.4. Restrictions. Customer will not: (a) alter, or permit the alteration of, the Magic Leap Materials or any component thereof, (b) copy, or permit the copying of, the Magic Leap Materials or any component thereof, (c) take any action that would foreseeably jeopardize Magic Leap’s or its licensors’ proprietary rights in the Magic Leap Materials, (d) seek to acquire any ownership interest in or to the Magic Leap Materials or any component thereof, (e) attempt to derive source or object code from the Magic Leap Materials or any component thereof, or (f) license, sell, transfer, lease, or disclose the Magic Leap Materials, other than as expressly provided in Section 11.3 below.
7.5. Feedback. Customer may have the option to provide Magic Leap with feedback, suggestions or comments regarding the Enterprise Services and the Magic Leap Platform more generally. From time to time, Magic Leap may request that Customer provide Feedback in a specified form, manner and/or frequency, provided that all such Feedback will be at Customer’s discretion. Without limiting the generality of the foregoing, Customer will use commercially reasonable efforts to submit notice of any and all hardware or software bugs, defects, or other issues with the features, functionality, or performance of the Enterprise Services to Magic Leap promptly upon occurrence. Any such notices will be deemed Feedback. Customer hereby grants Magic Leap a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including incorporating such Feedback within its products and services, without providing payment or any other consideration to Customer. Magic Leap has no confidentiality or other obligations with respect to Feedback.
8. LIMITED WARRANTIES AND REMEDIES
8.1. Warranties. Magic Leap represents and warrants that: (a) the Enterprise Solutions will conform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation and Approved Use; and (b) it will provide Support Services with commercially reasonable care and skill and in material compliance with applicable laws. The warranties specified in this Warranty clause will not be effective and Magic Leap will have no obligation or liability to Customer if: (a) Enterprise Services are not used according to the applicable Documentation and Approved Use; (b) Customer’s computer hardware or network malfunctions; (c) Customer uses Enterprise Services with any computer hardware or software not approved or recommended by Magic Leap as compatible with Service in its documentation; or (d) the warranty claim is unrelated to a defect in Enterprise Services.
8.2. Remedy. In the event of a breach of the warranty in Section 8.1, Customer must give Magic Leap notice of a material defect or nonconformance within 30 days from when Customer becomes aware of such defect or nonconformance. Magic Leap’s sole obligation with respect to a breach of the warranties in Section 8.1 will be to use commercially reasonable efforts to correct any nonconformance of the Enterprise Services.
8.3. DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ENTERPRISE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE ENTERPRISE PLATFORM OR ANY ENTERPRISE SERVICE OR RESULT INCLUDING ANY WARRANTY THAT THE ENTERPRISE PLATFORM OR ANY ENTERPRISE SERVICE OR RESULT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, MAGIC LEAP AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT OR IN TORT) UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST OPPORTUNITIES OR PROFITS), OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE AGGREGATE LIABILITY OF EACH PARTY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO MAGIC LEAP (INCLUDING, FOR THE AVOIDANCE OF DOUBT, FEES PAID VIA A RESELLER) FOR ENTERPRISE SOLUTIONS UNDER THE ORDER FORMS ENTERED INTO UNDER THIS AGREEMENT IN THE PRECEDING 12 MONTHS OR $5,000. THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO ANY DAMAGES ARISING FROM (I) EITHER PARTY’S BREACH OF ANY CONFIDENTIALITY TERMS SET FORTH HEREIN, (II) AMOUNTS OWED PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (III) EITHER PARTY’S BREACH OF ANY INTELLECTUAL PROPERTY TERMS SET FORTH HEREIN, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
10.1. “Confidential Information” means any information that one party (or its affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information of Magic Leap includes any Documentation and any reports or other materials made available via the Enterprise Services. Each party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The receiving party of Confidential Information hereunder (“Recipient”) will protect the Confidential Information of the disclosing party (“Discloser”) against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information. The Recipient will use any Confidential Information of the Discloser solely to exercise rights or perform obligations under this Agreement. The Recipient will not disclose any Confidential Information of the Discloser other than: (a) as required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (unless prohibited by law), so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; (b) with the written consent of the Discloser; or (c) to contractors or service providers who are subject to confidentiality obligations at least as stringent as contained in this Agreement.
10.2. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. Upon expiration or termination of the Agreement for any reason, the Recipient will, upon request of the Discloser, return to the Discloser, or destroy (with written certification of the same), all copies of the Discloser’s Confidential Information.
10.3. The obligations under this Section 10 will not be interpreted or construed to apply to information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) that is independently developed by the Recipient; or (c) that is acquired by the Recipient from another source without restriction as to use or disclosure.
10.4. Notwithstanding the foregoing, Magic Leap may disclose this Agreement and any Confidential Information contained herein to actual or potential investors or purchasers, including Magic Leap’s legal and financial representatives, in connection with any Magic Leap financing, merger, or acquisition activities and the standard legal and financial due diligence conducted therewith; provided, however, that such investors or purchasers (and their legal and financial representatives) are bound by confidentiality obligations (whether written or professional standards of conduct) no less restrictive than the non-disclosure obligations contained in this Section 10.
11.1. Independent Contractors. This Agreement does not create any agency, partnership, or joint venture between the parties. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement unless it expressly states that it does.
11.2. Publicity. Magic Leap will not identify Customer, or use Customer’s trademarks, in any advertising, marketing, promotions, or otherwise to imply Customer’s endorsement, of any Magic Leap (or any third party) goods or services, without Customer’s express written consent in each instance.
11.3. Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, provided that Magic Leap may assign this Agreement without the Customer’s consent in connection with the sale of all or substantially all of its assets or business related to this Agreement, or a sale or other transfer of a controlling interest of Magic Leap or to any affiliate of Magic Leap, whether by merger, change of control, operation of law, reorganization, consolidation, sale of securities, or other legal means. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
11.4. Force Majeure. Neither party will be liable for, or be considered to be in, breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party.
11.5. Applicable Law. This Agreement will be governed by the laws of the state of California interpreted, construed and enforced in all respects in accordance with the laws of the State of California without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in the Santa Clara County, California with respect to any claim arising under or by reason of this Agreement.
11.6. Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Any preprinted terms appearing in any Customer purchase order or similar document that differ from, are inconsistent with, or are in addition to the terms of this Agreement, shall be void. If a conflict occurs between this Agreement and any Order Form , this Agreement will control unless (a) an Order Form expressly identifies a specific provisions of this Agreement that is to be modified and the manner in which it is to be modified or (b) otherwise required by applicable law. Any amendment must be in writing and signed by both parties. If any provision or part of a provision of this Addendum 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. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
11.7. Notices. Notices under this Agreement are sufficient if given in writing and in English to: (a) in the case of notices to Customer, Customer’s email or postal address set out in the Order Form; and (b) in the case of notices to Magic Leap, to email@example.com. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
11.8. Export. Customer will comply with all applicable law regarding the export of items, software or technology, including ensuring that: (a) no equipment, technical data or software received from Magic Leap is exported or re-exported to any country, person or entity in violation of any U.S. sanctions or export controls (including to any sanctioned or restricted entities); and (b) that anything received from Magic Leap is not used or re-exported for a prohibited use under applicable law. Further, Customer represents and warrants that it and its Users (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (iii) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (iv) will not use any equipment, technical data or software received from Magic Leap if any applicable laws in its country prohibit you from doing so in accordance with this Agreement.
Documentation & Services Descriptions
- Customers receive an enterprise identity solution that enables Users to use their existing company credentials to log-in across Magic Leap platform and services using a provided OKTA instance and Authorized Users to manage access Device Manager via OKTA, Magic Leap’s provided Identity Management solution
- Authorized Users can create and manage provisioning profiles for Devices.
- Authorized Users can remotely install public applications to managed Devices.
- Authorized Users can link their Enterprise applications to Device Manager through Magic Leap’s Enterprise App distribution channel (requires registration as a publisher on Magic Leap’s Developer Portal) and, once linked, remotely install them to managed Devices.
- Authorized Users can remotely view certain types of Device activity, update Device profiles, and lock or wipe managed Devices.
Authorized Users can generate Enterprise Certificates for use in distributing the enterprise’s applications to its Users offline.
- Dedicated enterprise support email address.
- Priority call routing to minimize wait times.
- Priority escalation management.