Computes Tech Preview Terms and Conditions
Date of last revision: Wednesday, November 14, 2018
THESE COMPUTES TERMS AND THE COMPUTES RESOURCES ARE MAGIC LEAP’S CONFIDENTIAL INFORMATION (AS DEFINED IN SECTION 6) UNTIL OR UNLESS THEY ARE PUBLICLY ANNOUNCED BY MAGIC LEAP AS PUBLIC RESOURCES (THE “PUBLIC RELEASE DATE”).
We’re thrilled that you want to take a sneak peek at our new mesh computing platform! Please read these computes tech preview terms and conditions (“Computes Terms”) carefully before accessing or downloading an evaluation version of Computes (defined below), creating or using the associated digital license keys to activate Computes (“keys”), or using any other subset of Services (as defined in our Account Terms) that are branded with ‘computes’ that Magic Leap Inc. (“Magic Leap”, “we”,”us”, “our”) makes available via magicleap.com or computes.com (collectively, “Computes Resources”).
These Computes Terms are a binding and enforceable legal agreement between you and us and they govern your use of the Computes Resources. If you can’t agree to these Computes Terms, that’s ok; though, you may not use Computes Resources unless you do.
The Computes Resources are one of the Services provided by us under our Account Terms and Conditions (“Account Terms”), which include the following notable provisions: “Agreement to Arbitrate and Waiver of Class Action,” “Warranty Disclaimer and Limits on Liability,” and “Governing Law and Venue”. Remember, our Account Terms apply to all uses of your Magic Leap ID, including your access to and use of Computes Resources. If there is any conflict between our Account Terms and these Computes Terms, these Computes Terms will prevail only as the conflict relates to Computes Resources. If you opted out of the Arbitration Provision in our Account Terms, that opt-out will apply to disputes relating to these Computes Terms too.
NOTICES REGARDING OSS (AS DEFINED BELOW) AND OTHER ITEMS ARE ADDRESSED AT THE END OF THESE COMPUTES TERMS.
1. COMPUTES RESOURCES
“Computes” means, individually or collectively, an evaluation version of the (a) software computing daemon we provided for download that allows you to create a private mesh network, (b) Computes Third-Party Materials (defined below), (c) command line interface tool we provide for download, and (d) related documentation provided with Computes or through the Computes Resources. Computes includes any updates, upgrades, error corrections, bug fixes, patches, changes or revisions to Computes provided by Magic Leap (collectively, “Updates”). You fully understand and agree that, based on the tasks launched on Computes, all hardware running Computes can gain access to utilize all the other hardware, operating systems, files, and other programs and information in your private mesh network.
License to Computes
These Computes Terms cover your use of Computes unless any particular component or application of Computes is accompanied by separate terms. In that case, the separate terms will solely govern the applicable component or application of Computes. If the separate terms do not accompany the Computes component or application, they may be found in our Computes Open Source Software Notices. Magic Leap hereby grants you a personal, revocable (at-will), limited, non-transferable, non-sublicensable, and non-exclusive license to make copies of Computes for your personal and noncommercial purposes for the purpose of creating a private mesh network solely on hardware that (i) you own, control or have permission from the owner to run Computes on (“Your Hardware”), (ii) for which Computes is intended to be used, and (iii) for which you were provided a key from Magic Leap. You do not have any other rights to Computes.
We may make available to you or allow you to create and use keys to activate Computes on Your Hardware. Computes must be activated with an authorized key provided by Magic Leap on all Your Hardware. You are responsible for maintaining the confidentiality of, and preventing unauthorized access, use or disclosure of, any keys we make available to you or allow you to create and use. You will use keys solely as permitted by Magic Leap for your personal, non-commercial use. We may revoke keys from you or cap the number of keys you can create, at any time, in our sole discretion. Please notify us immediately if you find out that any of your keys are being used without your permission.
We may make available from time to time Updates to Computes. You may manually install each Update. We encourage you to download, install, and use optional Updates to maximize your experience with Computes. If you choose not to install and use an optional Update, you may experience issues with delays, interruption, performance or security. Certains Updates are mandatory (e.g., updates for security concerns or otherwise), which you are required to install immediately and at least within two weeks of first being made available by us. We 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 liability.
Currently, Computes Resources are provided to you at no additional cost. We reserve the right to institute Computes Resources as a paid Service in the future, subject to additional billing or payment terms.
Third-Party Material in Computes
Computes may contain third-party materials, including OSS (as defined below), (“Computes Third-Party Materials”) that are subject to separate terms and conditions. With regard to Computes Third-Party Materials that are not OSS (as defined below), those separate terms, and not these Computes Terms, will solely govern such Computes 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. Portions of Computes Third-Party Materials are derived from OSS. OSS received by Magic Leap under an OSS license which permits sublicensing under these Computes Terms are sublicensed to you by us under the terms and conditions of these Computes Terms. OSS received by Magic Leap under an OSS license which does not permit sublicensing under this Computes Terms 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 these Computes Terms are licensed to you by us under the terms and conditions of this Computes Terms. Derivative works created by us of OSS received by us under an OSS license which does not permit licensing of such derivative works under these Computes Terms are licensed to you by us as required by the terms of the OSS license (e.g., to you by us under the same OSS license).
To the extent permitted by any Computes Third-Party Materials, or any OSS license, we provide such Computes Third-Party Material 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 non-infringement. In no event shall we 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 such Computes Third-Party Material and/or derivative work, or the use or other dealings in that Computes Third-Party Material and/or derivative work.
Technology Required to use Computes Resources
Certain hardware and/or software may be required to access and use the Computes Resources. If hardware and/or software is required to use the Computes Resources, or any portion of them, then it is up to you to acquire such hardware and/or software. You may be subject to additional terms and conditions that may apply when you use such hardware and/or software (as defined in the end user license agreement or other similar terms that may accompany such hardware and/or software).
Changes to Computes Resources
Computes Resources are at the alpha stage, and sometimes things happen. We reserve the right to modify, suspend, or discontinue Computes Resources at any time with or without notice to you. Magic Leap will not be liable to you or any third party should it exercise such rights.
2. RESERVATION OF RIGHTS AND RESTRICTIONS
Reservation of Rights
Computes is licensed and not sold. Magic Leap and its licensors retain all right, title, and interest in and to Computes, and all intellectual property rights therein, including any Updates and improvements, copies, translations, adaptations, modifications, derivations and enhancements of Computes. Other than the limited license granted in these Computes Terms, Magic Leap does not transfer to you any right, title, or interest in or to Computes.
The names, logos, and other business identifiers displayed on Computes Resources constitute trademarks, tradenames, service marks or logos (“Marks”) of Magic Leap or other entities. You are not authorized to use any Marks, except that you may use Magic Leap’s Marks as set forth in the Creator Trademark Guidelines. Ownership of all such Marks and the goodwill associated with those Marks remain with Magic Leap and those other entities. Further, Magic Leap’s Marks are registered and unregistered trademarks of Magic Leap.
You may not, nor may you allow or encourage a third party to, do any of the following: (a) work around, interfere with, exceed, or circumvent any technical limitations or software protection measures in Computes; (b) modify, adapt, alter, rent, lease, loan or distribute Computes or use Computes in the operation of a service bureau; (c) reverse engineer, decompile, translate, disassemble or otherwise attempt to derive any source code of Computes; (d) create derivative or merged works of Computes or separate the component parts of Computes; (e) input, upload, transmit, or otherwise provide to or through Computes any unlawful or malicious information, materials or code; (f) alter or remove any proprietary rights or legal notices provided with or in Computes; (g) use Computes in environments requiring fail-safe performance; (h) use Computes for the development, provision or use of a competing service or product.
4. OTHER THIRD-PARTY MATERIALS AND WEBSITES
Aside from Computes Third-Party Materials, we may make available through Computes Resources certain additional third-party services, features, or content (“Other Materials”). Your Use of Other Materials made available through Computes Resources may be subject to additional terms and conditions of the third party. Magic Leap has no responsibility or liability with respect to your access to, or use of, the Other Materials.
Computes Resources may also contain links or provide access to other web sites or other online services operated by third parties. Those third-party services are not under our control, and we are not responsible for the content on any third-party service or any link contained in a third-party service. We provide these links only as a convenience and we don’t have any obligation to review, approve, monitor, endorse, move, remove, warrant, or make any representations with respect to third-party services.
5. FEEDBACK AND ANALYTICS
We may periodically contact you or make available to you in-person events or programs to request that you provide ideas, suggestions, and other information (including, without limitation, information about operating results, bugs, errors, compatibility problems, or features) (“Feedback”) about the use, design, usability, and/or the functionality of Computes Resources. You agree that any Feedback you provide us is at your own risk and we have no obligations with respect to such Feedback. You hereby grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, and create derivative works of, and otherwise commercially exploit such Feedback. Further, we will be free to use any ideas, concepts, know-how, or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. We will exclusively own any improvements or modifications to Computes Resources based on or derived from any Feedback, including all intellectual property rights therein or thereto. We are not obligated to provide any support or aid your provision of Feedback, but may do so in our sole discretion.
You are solely responsible for the tasks run on Your Hardware using Computes Resources. We may, but have no obligation to, automatically collect information about such tasks, and monitor, screen, and retain such information on an aggregated basis to understand how Computes Resources are used, and improve or enhance our systems and Computes Resources.
6. CONFIDENTIAL INFORMATION
“Confidential Information” means any information that Magic Leap discloses to you before the Public Release Date, either directly or indirectly, in writing, orally, or by inspection of tangible and intangible objects, including, but not limited to, the Computes Resources, the existence and terms of these Computes Terms and Conditions, the Authorized Key, the relationship between you and Magic Leap, Magic Leap’s proprietary information, technical data, trade secrets or know-how, processes, marketing documents, technology, designs, customer and product development plans, and information we disclose to you related to the Computes Resources.
Until the Public Release Date, you will (a) maintain in confidence Confidential Information and will not disclose Confidential Information to any third parties without Magic Leap’s prior written consent; (b) use reasonable efforts to protect Confidential Information from unauthorized use or disclosure; and (c) use Confidential Information solely for the purpose of evaluating the Computes Resources in accordance with the terms and conditions of these Computes Terms.
You acknowledge that each obligation in this Section 6 is necessary and reasonable in order to protect Confidential Information and that monetary damages would be inadequate to compensate Magic Leap for any breach of this Section 6. You agree that any such violation or threatened violation will cause us irreparable injury; and in addition to any other remedies that may be available to us at law, in equity or otherwise, we will be entitled to seek injunctive relief against any threatened breach of this Section 6 or the continuation of any such breach, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
These Computes Terms are effective on the earlier of the date you first accept these Computes Terms, create a key, or install or use Computes, and continue unless terminated by us or you in either party’s sole discretion. Without prejudice to any other Magic Leap rights, these Computes Terms will terminate automatically without notice if you fail to comply with your obligations under these Computes Terms, if you create possible legal liability, or if we believe your use poses a health or safety risk. We take this very seriously.
Upon termination of these Computes Terms, you will immediately stop using Computes Resources, and destroy or delete Computes Resources from Your Hardware. These remedies are cumulative and in addition to any other remedies available to Magic Leap. Even if these Computes Terms are terminated, Magic Leap has the right to continue to use the Feedback you provided us in the ways permitted by these Computes Terms, and the following provisions will also continue to apply: Reservation of Rights and Restrictions, Confidential Information, Suspension/Termination, Warranty Disclaimer, Limitation of Liability, U.S. Government End Users, Export Restrictions, Governing Law and Arbitration, and General.
We will not have any liability for any termination of these Computes Terms.
8. WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPUTES RESOURCES ARE PROVIDED “AS-IS,” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. MAGIC LEAP AND OUR LICENSORS DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF PERFORMANCE. 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.
YOU ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW COMPUTES RESOURCES (A) ARE DEVELOPMENTAL AND EXPERIMENTAL IN NATURE, (B) MAY CONTAIN ERRORS, (C) ARE PROVIDED ONLY FOR LIMITED EVALUATION PURPOSES ON YOUR HARDWARE, (D) MAY NOT MEET YOUR REQUIREMENTS OR ACHIEVE PARTICULAR RESULTS, (E) WILL CONTINUE TO UNDERGO TESTING AND MAY CHANGE AT ANY TIME, (F) MAY NOT BE UNINTERRUPTED, AND (G) YOUR USE OF COMPUTES RESOURCES ARE ENTIRELY AT YOUR OWN DISCRETION AND RISK.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OF 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 WILL BE LIMITED TO THE EXTENT SUCH LIMITATIONS ARE PERMITTED BY LAW.
9. LIMITATION OF LIABILITY
TO THE FULLEST 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, 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 THESE COMPUTES TERMS OR COMPUTES RESOURCES, 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; AND/OR (B) MAGIC LEAP’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE COMPUTES TERMS EXCEED 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 FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW. 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 COMPUTES RESOURCES; OR (B) ANY DAMAGES CAUSED BY MAGIC LEAP'S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
10. U.S. GOVERNMENT END USERS
When acquired by the U.S. Government, Computes 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. These Computes Terms govern the U.S. Government’s use and disclosure of Computes, and supersede 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 these Computes Terms, those rights will be separately negotiated and will be set forth in a separate written amendment or addendum to these Computes Terms.
11. 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 Computes 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) that anything received from us 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 (y) are 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 Computes Resources if any applicable laws in your country prohibit you from doing so in accordance with these Computes Terms.
12. GOVERNING LAW AND ARBITRATION
These Computes Terms 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 these Computes Terms or otherwise relating to your use of the Computes Resources, 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 our Account Terms. Please read the Agreement to Arbitrate and Waiver of Class Action carefully and understand your rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the subject matter of these Computes Terms.
13. MODIFICATIONS TO THESE COMPUTES TERMS
We might make changes to these Computes Terms. If we do, we’ll make sure to notify you (for example, by sending a notification to your Magic Leap ID or giving notice through our Services). Unless we say otherwise in our notice, the revised Computes Terms will be effective immediately and your continued use of your Magic Leap ID or the Computes Resources after we provide notice of the changes will confirm your acceptance of the revised Computes Terms. We encourage you to review these Computes Terms from time to time to ensure you understand the terms and conditions that apply to your use of Computes Resources. Your lawyer friends can be super helpful with this.
If any provision of these Computes Terms are 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 permitted by applicable law. These Computes Terms, together with the Account Terms, contain the entire agreement between you and Magic Leap regarding your use of the Computes Resources and supersede any prior representation or agreement, oral or written. The failure of either party to enforce any provision of these Computes Terms may not be construed to be a continuing waiver of those provisions or any other provision. You will not delegate, transfer or assign, by operation or law or otherwise, these Computes Terms, or your rights or obligations under it without Magic Leap’s prior written consent, and any attempt to do so is void. These Computes Terms bind any permitted successors or assigns and you must present these Computes Terms to any permitted assignee.
The list below is the table of contents for the notices file. The full notices file is available on our Computes Open Source Software Notices page. This listing provides notice and guidance regarding the indicated items and should not be construed as an admission that the listed component appears in the distribution or in the manner indicated. For example, the listing may include various dependencies applicable only to development, testing, and evaluation, which may not be included in the distribution and, indeed, may have been deprecated in favor of alternatives. Similarly, fulfilling a license’s compliance requirements for a particular form of distribution is not an admission that the software is in fact distributed in that form. For example, some dependencies may be dual-licensed and may permit redistribution under different licenses. Distributions and packaging vary and not all third party components are relied upon in the same manner or degree. The presence of a dependency under a given header below is merely for organizational purposes and is not necessarily indicative of the relevant, or elected, license. Where dependency authors provided incomplete or inconsistent documentation, inferences have been made with the intention of giving effect to the dependency author’s desired intent. Note that some compliance documentation may be found in the software itself.
Where third-party licenses require that an offer to provide relevant source code be made, in accordance with the terms of the third-party license, please contact Magic Leap if you wish to receive such a copy.
MIT / BSD AND VARIANT LICENSED THIRD PARTY CODE
APACHE 2 LICENSED THIRD PARTY CODE