Terms of Sale for Magic Leap 2
Last Revised: September 26, 2022
IMPORTANT: PLEASE READ THESE TERMS OF SALE FOR MAGIC LEAP 2 ("TERMS OF SALE") CAREFULLY BEFORE PURCHASING ITEMS FROM MAGIC LEAP. BY PLACING AN ORDER FROM MAGIC LEAP, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS, INCLUDING OUR MAGIC LEAP 2 RETURN POLICY AND (IF YOU ARE THE END USER OF THE ITEMS) THE MAGIC LEAP 2 WARRANTY POLICY. IF YOU DON'T AGREE WITH OUR TERMS, YOU MAY NOT PLACE AN ORDER. BY PLACING AN ORDER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS WITH US.
These Terms of Sale are a binding agreement between you and Magic Leap, Inc. ("Magic Leap" or "we"). If you are an individual placing an order on behalf of an entity, you represent and warrant that you have the legal authority to bind such entity to these Terms of Sale and that such entity agrees to be responsible to us in the event you violate these Terms of Sale. Except for the prior sentence, when we say "you" throughout the remainder of these Terms of Sale, we mean, collectively, the person placing the order and such legal entity (if applicable).
These Terms of Sale govern your purchase of Magic Leap 2 devices and certain other products manufactured by Magic Leap directly from Magic Leap (collectively, "Magic Leap 2 Products"), as well as certain associated services or offerings, and/or any third-party products offered for sale by Magic Leap (such services and third-party products together with the Magic Leap 2 Products, "Items") directly from Magic Leap. Any quote, order, invoice, confirmation, other documentation and/or related terms and conditions issued or presented by you in connection with the sale of Items (whether before or after you agree to these Terms of Sale, and whether in an invoice, purchase order, online portal or otherwise) shall be of no force or effect and shall be void and canceled.
This version of our Terms of Sale governs the purchase of Items from Magic Leap for our second generation product series, including the Magic Leap 2 augmented reality Headset, Compute Pack and Controller, and Items consisting of related software and accessories. Please visit magicleap.com/legal for copies of the terms of sale, warranty and return policy, and user agreements for Magic Leap's first generation augmented reality devices (Magic Leap 1 and Magic Leap One: Creator Edition), software or ecosystem. Separate agreements govern the purchase and use of such materials.
If you or the entity you represent have entered into a separate written agreement with Magic Leap governing the distribution or resale of Items, that separate agreement governs your relationship with Magic Leap and purchase of Items.
IF YOU HAVE PURCHASED MAGIC LEAP 2 PRODUCTS FROM ONE OF OUR AUTHORIZED RESELLERS, THESE TERMS OF SALE DO NOT APPLY TO YOUR PURCHASE OF MAGIC LEAP 2 PRODUCTS. PLEASE CONTACT YOUR AUTHORIZED RESELLER DIRECTLY WITH QUESTIONS RELATING TO YOUR SALE, INCLUDING APPLICABLE WARRANTY SERVICE AND RETURN POLICIES.
1. Your Purchase
You may only purchase Items for your own use or, for resale to End Customers as expressly authorized by Section 9.
2. Additional Terms
Your purchase and use of Items may be subject to, and you agree to be bound by and comply with, additional terms and conditions applicable to those Items, which may include the Magic Leap 2 Software License Agreement and the applicable Supplemental Terms for Magic Leap 2. Before you use a Magic Leap device, you agree to carefully read the safety and setup information available at magicleap.com/start.
When you purchase third-party Items from us, your purchase and use of such third-party Items may also be subject to terms and conditions, agreements, and policies imposed by that third party manufacturer or provider. Certain third-party Items sold or offered by Magic Leap may require you to use a redemption code or special link to redeem; additional details will be provided to you at the time of shipment.
If you are a reseller, you are obligated under the terms of Section 9 to notify your End Customers of such terms and conditions, and safety and set up information, and to only sell to End Customers who acknowledge and agree to the foregoing.
You may only use valid payment methods acceptable to us to make your purchase (e.g., accepted credit cards, electronic funds transfer or other accepted payment method). When you place an order, you must provide accurate and up-to-date payment information. You authorize us to charge or otherwise initiate (or you agree to initiate, as required) payment for your orders via the designated payment method you have chosen for the total amount of your order, including any applicable taxes and other charges. If your payment method can't be verified, is invalid, or is otherwise unacceptable, your order may be suspended or canceled.
If you are an entity, we may elect (subject to your creditworthiness, as determined by us in our sole discretion) to offer you the option to pay for the Items in your order within a specified number of days from date of invoice for such Items. Extensions of credit or post-delivery payment are not available to sole-proprietors or to purchasers who elect to pay by credit card.
Your purchase may include orders for Items that include entitlements to certain Magic Leap 2 software features that are made available as separate SKUs. We will provide a software license key and activation instructions in your shipping confirmation email. If you are a reseller, you agree to provide your End Customer with the applicable software license keys that apply to their purchase and to provide activation instructions per Magic Leap's guidance.
4. Cancellations and Refunds
We reserve the right to cancel your order, including after you have been billed (for example, if Items you ordered are out of stock). We also reserve the right to reduce the number of Items in any order and reject all or part of any order. If we cancel or only partially fulfill your order after you have paid, we'll provide you a full refund of any amounts you have paid for Items we do not ship or deliver.
The Magic Leap 2 Products are not designed or intended for sale to individual consumers or for personal, household family or similar consumer use cases. We reserve the right to cancel orders if we determine in our reasonable discretion that your use case is for such purposes. Magic Leap 2 is intended for use in trade, business or professions.
5. Pricing and Taxes
Prices for the Items may be shown in U.S. dollars or in the currency of another jurisdiction where we make Items available for sale. We may, at any time, change the prices for Items we offer for sale, but if we do, that change will not apply to orders we have already accepted.
Prices may not include applicable taxes or other charges payable in connection with your purchase, unless required by applicable law. You are responsible for any sales, use, value-added, or other governmental taxes, fees, or duties due with respect to your purchase and use of the Items. When we have a duty to collect applicable taxes, we will present an estimate of such taxes to be collected at the point-of-sale or with our order confirmation, including by indicating that Item prices include such taxes. The actual taxes charged and collected may differ from the amount shown at point-of-sale. Several factors may cause this, such as variances between processor programs and changes in tax rates. We are not required to, and do not, collect taxes in all states. You may have a duty to directly report and pay taxes if we do not collect such taxes.
For resellers seeking to place an order for the resale of Items under Section 9, you will be required to provide a resale tax certificate that is subject to review and approval by Magic Leap before placing any order that seeks a sales or use tax exemption. Before we accept an order for resale, Magic Leap may require you to provide additional information about your business and we reserve the right to reject any order for resale of Items in our discretion.
6. Shipping and Delivery
If we provide you with a delivery estimate, we will use commercially reasonable efforts to ship or deliver orders (for in-stock Items) to your specified shipping address within the delivery estimate we provide, but we do not guarantee that your order will be delivered within the delivery estimate. We reserve the right to extend the delivery period beyond the original delivery estimate provided if necessary.
You agree to pay any delivery or shipping and handling charges shown or communicated to you at the time you place your order. These charges are subject to change at any time, but any such changes will not apply to orders we have already accepted.
If you are a reseller under Section 9, we will drop-ship to your End Customer, unless a separate arrangement has been agreed to in writing between you and Magic Leap.
Risk of loss or damage to an Item passes to you upon delivery of that Item to your specified shipping address. If you have fully paid for an item, title to the Item also passes to you upon delivery of that Item to your specified shipping address. If, however, an Item has not yet been fully paid for by you by the time it is delivered, title to that Item remains with us and we will have the right to retake possession of it (at your expense) at any time until you fully pay for it. Unless otherwise agreed in writing, all partial payments for orders will be applied proportionally to each Item in an order.
We do not warrant that all Item descriptions, photographs, pricing and other information we provide are accurate, complete, current or error-free. If there are errors, we reserve the right to correct them and, at our discretion, revise your order accordingly (which includes charging you the correct price for your Items or cancelling your order and refunding you any amount charged).
8. Magic Leap 2 Returns and Limited Warranty
Our Magic Leap 2 Return Policy applies to any Item you purchase directly from us pursuant to these Terms of Sale.
With respect to all hardware devices and accessories that are manufactured by Magic Leap as part of our Magic Leap 2 Product series, Magic Leap offers a one (1) year limited warranty to end users pursuant to the Magic Leap 2 Warranty Policy. If you are a reseller, you are obligated under the terms of Section 9 to notify your End Customers of such warranty and to only sell to End Customers who acknowledge and agree to the foregoing.
Magic Leap makes no warranty with respect to any third-party Items (including their compatibility with Magic Leap 2 Products). For warranty claims on third-party Items, please refer to the warranty policy and any other materials provided by that third party.
9. Requirements for Resale of Items
Magic Leap authorizes you on a non-exclusive basis to market, promote and resell the Items to End Customers. "End Customers" means any person purchasing or otherwise obtaining Items for their own end-use and not for further reselling, distributing, or sub-licensing to others. You may not market, promote or distribute Items, without Magic Leap's prior written approval, (a) to any End Customers that are individual consumers not associated with a trade, business or profession (as the Magic Leap 2 Products are not designed for personal, household family or similar consumer use cases); or (b) through retail storefronts or auction-type websites.
The following additional terms apply if you purchase Items for resale purposes:
- You may not act as a sales representative, or agent of Magic Leap, and no commissions will be payable. The relationship between Magic Leap and you does not constitute a commercial agency, partnership or employment relationship under applicable laws.
- Magic Leap reserves the right to appoint others to, or itself, market, sell, license, install, commission, and service the Items.
- You may only resell Items to End Customers in our supported international jurisdictions. Please visit this article on our Customer Care site for more information.
- You must pass through to the End Customer (in writing prior to End Customer's purchase of the Items) the Magic Leap 2 Software License Agreement and Supplemental Terms, as well as the Magic Leap 2 Warranty Policy. You agree to only resell to End Customers who agree to be bound by such applicable terms and policies.
- You are reselling software entitlements (which may require the use of a Magic Leap-provided license key) as part of the Items; you are not sublicensing Magic Leap software. The Magic Leap 2 Software License Agreement is made directly between Magic Leap and the End Customer.
- Unless expressly authorized by Magic Leap in writing, you may not market or publicize yourself as an "Authorized Magic Leap Reseller" (or similar) or otherwise issue any press releases relating to Magic Leap. You may include the Items in your catalog, provided that you agree to comply with Magic Leap's Trademark Guidelines.
- You agree to defend, indemnify and hold harmless the Magic Leap Parties (defined below) for all claims, demands, causes of action, damages, losses, fines, penalties, or costs, including attorneys' fees, which may arise from your (a) fraud, willful misconduct or deceptive trade practices, (b) resale of third party solutions bundled with the Items, or (c) violations of any applicable laws in any jurisdiction, including without limitation, all laws and regulations related to import/export control, antibribery and anticorruption.
10. Export Restrictions
You will comply with all U.S. or other applicable export control laws, including ensuring that no Items you purchase from Magic Leap are: (a) exported or re-exported to any country, person or entity in violation of any U.S. or other applicable export controls or sanctions; or (b) used or re-exported for a prohibited use under U.S. or other applicable export control laws. Further, you represent and warrant that you (a) are not located in a country that is subject to US Government sanctions or has been designated by the US Government as a "terrorist supporting" country; and (b) have not been identified as a sanctioned party by the US Office of Foreign Assets Control or any other applicable sanctions or denied persons list by any other applicable government agency. You will not purchase or use an Item if any applicable laws in your country prohibit you from doing so in accordance with these Terms of Sale.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY WILL (A) MAGIC LEAP AND ITS SUBSIDIARIES, PARENT COMPANIES AND AFFILIATES AND EACH OF THEIR DIRECTORS, EMPLOYEES, AGENTS, AND LICENSORS (INDIVIDUALLY AND COLLECTIVELY, THE "MAGIC LEAP PARTIES") BE LIABLE TO YOU, YOUR USERS OR ANY THIRD PARTY FOR ANY DAMAGES, COSTS, OR LIABILITIES ARISING FROM OR RELATED TO THE PURCHASE OR SALE OF ANY ITEM OR THESE TERMS, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR EXPENSES OR BUSINESS INTERRUPTION; PROPERTY DAMAGE; ATTORNEYS' FEES; LOSS OF PROFITS, USE, REVENUE, OR GOODWILL; OR VALUE OF ASSETS OR SECURITIES), EVEN IF MAGIC LEAP HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) THE AGGREGATE LIABILITY OF THE MAGIC LEAP PARTIES ARISING OUT OF OR RELATED TO THE PURCHASE AND SALE OF AN ITEM EXCEED THE AMOUNT YOU PAID MAGIC LEAP FOR SUCH ITEM.
THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MAGIC LEAP. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY FOR (A) DEATH, PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY OR PROXIMATELY CAUSED BY THE ITEM YOU PURCHASED FROM MAGIC LEAP; OR (B) ANY DAMAGES CAUSED BY A MAGIC LEAP PARTY'S FRAUD, FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT, OR GROSS NEGLIGENCE OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Disputes, differences, controversies, and claims arising out of or related to these Terms of Sale ("Disputes") shall, except as otherwise stated in this Section 12, be settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce ("ICC") by three (3) arbitrators. Either party may submit a Dispute to arbitration if a period of sixty (60) days has expired since the Dispute first arose between the parties, during which time the parties will attempt in good faith to resolve the Dispute amicably. The arbitration provisions herein, however, shall not preclude either party from (a) petitioning any court of competent jurisdiction or any government agency or entity with competent jurisdiction for temporary injunctive or other emergency relief or (b)seeking to confirm or enforce any arbitral award in any court of competent jurisdiction. Magic Leap and you will each select one arbitrator, and the two arbitrators so selected will select a third arbitrator. The decision of the majority of the three arbitrators will be binding and conclusive. Such decision will be written and will be supported by written findings of fact and conclusions which will set forth the award, judgment, decree or order awarded by the arbitrators. Any award issued hereunder shall be final, binding and fully enforceable, and judgment on the award, judgment, decree or order rendered by the arbitrators may be entered in any court of competent jurisdiction. The place of arbitration shall be in Santa Clara County, California, USA. The language to be used in the arbitral proceedings shall be English. In any arbitration hereunder, the prevailing party will be entitled to recover (in addition to any other relief awarded or granted) its reasonable costs and expenses, including attorneys' fees, incurred in the proceeding. The fees of each arbitrator and the administrative fee of the ICC will be borne equally by both parties. You may opt-out of this arbitration provision by delivering written notice to Magic Leap via email at firstname.lastname@example.org (or to the address set forth below) within 30 days after first becoming subject to this provision; all other provisions of these Terms of Sale will continue to apply to you.
13. Governing Law; Dispute Resolution
These Terms of Sale 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 these Terms of Sale. For any Dispute not subject to arbitration under Section 12, each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in the Santa Clara County, California.
14. Other Important Terms
Magic Leap's delay or failure to exercise or enforce any right or provision of these Terms of Sale will not constitute a waiver of such right or provision. No waiver by Magic Leap will have effect unless such waiver is in writing and signed by us. No waiver of any breach or default in one instance will constitute a waiver of any subsequent breach or default.
If any provision or part of a provision of these terms is determined to be illegal, invalid, or unenforceable in a particular jurisdiction, such provision shall not be affected in any other jurisdiction and the validity of the remaining provisions will not be affected and will be enforced to the fullest extent of applicable law. These Terms of Sale (including as applicable the Magic Leap 2 Return and Magic Leap 2 Warranty Policies incorporated into these Terms of Sale) constitutes the entire agreement between you and Magic Leap with regard to your purchase of any Item from Magic Leap and supersede any prior representation or agreement, oral or written.