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CREATOR AGREEMENT

DATE OF LAST REVISION: July 23, 2019

Welcome! Magic Leap is looking for innovative and engaged creators to develop incredible content for our platform and help bring our vision of mixed reality to life. To help those creators that are up for the challenge, we've built the Magic Leap creator portal ("portal" for short) to serve as a home-base for tools, resources, updates, and the collective wisdom of our creator community. This creator agreement ("Agreement") governs your use of the portal, and includes other important terms regarding your relationship with Magic Leap and each party's rights. This includes an Arbitration Provision regarding binding arbitration of disputes and a waiver of certain rights to jury trials and/or class actions. By accessing or using the portal, or by clicking that you agree when prompted by Magic Leap, you accept this Agreement and will be considered part of our creator community (welcome!). If you don't agree to the terms of this Agreement, you may not access the portal.

Please note that this Agreement is binding on you personally - it doesn't cover your employer or company. Companies can join our creator community by registering as publishers, which is a separate process that will enable them to submit and publish applications to our application store, Magic Leap World.

Magic Leap is based in the U.S. but is excited to welcome (with a special "cheers," "bonjour," and "guten tag") new community members in 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. We want to be crystal clear — nothing in this Agreement 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 applicable laws (referred to as the "special terms" throughout this Agreement and in our other agreements for our platform). You can find the special terms that may apply to our International Friends at the end of this Agreement.

Creator Resources

Portal Access

You will need a Magic Leap ID to access certain resources in the portal. Don't allow anyone else to access such resources using your Magic Leap ID. Remember that the Magic Leap Account Terms and Conditions apply to all uses of your Magic Leap ID, including access to certain resources in the portal. In addition, you represent and warrant that you are at least 18 years old and that you have the right to enter into this Agreement.

Portal Content

If you access the portal, you will have the ability to access and/or download:

  • certain Magic Leap creator materials, such as software development kits ("SDKs"), tools, documentation, learning resources, Example Assets (as defined below), and other content (collectively, the "Magic Leap Materials"); and
  • certain third-party software, tools, services, features, applications, or content (collectively, "Third-Party Materials," and together with the Magic Leap Materials, the "Portal Content").

Subject to the terms of this Agreement, Magic Leap grants you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement, under any intellectual property rights Magic Leap and its licensors of the Third-Party Materials ("Licensors") may have (as applicable), to use the Portal Content for development and testing of software applications for use on or with, and distribution through, Magic Leap's Platform ("Applications"), developing tools that interoperate with or support the Platform, or any other purpose approved in writing in advance by Magic Leap. "Platform" means Magic Leap's spatial computing technology platform, including Magic Leap's mixed reality hardware device(s) manufactured by or on behalf of Magic Leap, Magic Leap's operating systems and other on-device software, the portal, Portal Content, Magic Leap World, our websites and software applications, and all other aspects of our mixed reality ecosystem.

If we provide you with an update to any Portal Content, we may terminate the above license for prior versions of that Portal Content, which means you'll have to immediately discontinue using those prior versions. Also, if the update is accompanied by a separate license, the terms of that license will apply; otherwise, the update will be subject to the terms of this Agreement.

To the extent any Portal Content is provided to you outside of the portal (e.g., via Github or similar public repositories, or direct electronic transfers) and is expressly provided pursuant to the terms of this Agreement, you agree that this Agreement governs your use of such Portal Content.

Example Assets

Magic Leap may provide you with example or template source code, projects or content delivered within the "samples" or "templates" folder in the install directory of a Magic Leap SDK, or expressly made available as a "sample", "tutorial", "example" or "template" project (e.g., Magic Kit Samples, Experience Samples, Goat_Labs Samples, etc.) through the portal as a starting point in creating your own Application pursuant to the terms below ("Example Assets").

  • Unrestricted Example Assets. The following applies to Example Assets that are not Restricted Example Assets (as defined below) ("Unrestricted Example Assets") and may include, without limitation, certain code, libraries, scenes, scripts, and configuration files. Provided that your changes or additions to Unrestricted Example Assets are sufficiently substantial to create a derivative Application (as determined in Magic Leap's sole discretion), Magic Leap hereby grants you the right to use, modify, publish, and distribute those modified Unrestricted Example Assets as part of your Application. You shall comply with all laws applicable to the foregoing activities. We may provide certain Unrestricted Example Assets that are subject to a Licensor Agreement (as defined below). The rights in this section do not expand or modify your limited rights to any Portal Content that are not Unrestricted Example Assets (including, but not limited to, our SDK).
  • Restricted Example Assets. The following applies only to Restricted Example Assets. Certain Example Assets may be marked as "Restricted", "Not For Redistribution" or similar on the portal, in the file directories of the downloadable package, or in the materials accompanying such assets ("Restricted Example Assets") and may include, without limitation, certain icons, logos, artwork, font files or similar assets. Restricted Example Assets are licensed to you under separate license terms if such terms are included in the materials accompanying the Restricted Example Assets ("Restricted Example Asset Terms"). If separate license terms are not provided with a Restricted Example Asset, then the terms of this Agreement with respect to Portal Content will apply (including the scope of license in this Section 1 and the restrictions in Section 2). In the event of a conflict between the terms of this Agreement and the Restricted Example Asset Terms, the Restricted Example Asset Terms will govern. No other use of the Restricted Example Assets is licensed or permitted, and you may not otherwise use, modify, adapt, alter, reproduce, distribute, sublicense, or transfer Restricted Example Assets. 

Development Certificates

Magic Leap may issue you digital certificates for the development and testing of Applications ("Development Certificates"). All Applications must be signed with a Development Certificate in order to be installed on Devices. You are responsible for maintaining the confidentiality of, and preventing unauthorized access, use or disclosure of, any Development Certificates and corresponding private keys that may be issued to you by Magic Leap. You will be solely responsible for all Applications that are developed under your Development Certificates. You will use any Development Certificates issued to you solely as permitted by Magic Leap to sign your Applications, and will not use any Development Certificates issued to you to sign any third party application. You may revoke Development Certificates issued to you at any time. Magic Leap may also revoke any Development Certificate at any time, in the event Magic Leap believes there are technical issues with a Development Certificate, a Development Certificate (including your use of a Development Certificate) poses a security risk to the Platform, your use of a Development Certificate otherwise contravenes any limitations or restrictions set forth by the Platform, or in any other exigent circumstances. You acknowledge and agree that Development Certificates do not entitle you to distribute Applications through the Platform or otherwise use Development Certificates other than for your internal development and testing purposes, and that you may be required to agree to additional terms to access digital certificates for the purpose of digitally signing and distributing your Applications through our Platform.

Third-Party Materials

Your use of a Third-Party Material made available through the portal may be subject to the Licensor's own license agreement, notices, restrictions, or other terms that the Licensor provides you ("Licensor Agreement"), which, if applicable, may be found in documentation or materials accompanying those Third-Party Materials or the Portal Content, or at https://www.magicleap.com/legal/oss-notices. If your use of a Third-Party Material is not subject to a Licensor Agreement, then the terms of this Agreement will apply. In the event of a conflict between the terms of this Agreement and the terms of a Licensor Agreement, the terms of the Licensor Agreement will govern. Magic Leap has no responsibility or liability with respect to your access to or use of the Third-Party Materials, or any specifications, descriptions, or other materials our Licensors may provide with their Third-Party Materials. Notwithstanding the foregoing, to the extent that any Third-Party Materials consist of OSS (as defined below) and Magic Leap received such OSS from a third party under an upstream license permitting sublicensing under this Agreement, then Magic Leap hereby sublicenses such OSS to you under the terms of this Agreement and not the applicable upstream license. Otherwise, you receive such OSS from the third party directly under the terms of the upstream license. Note that Magic Leap may still provide you with the text of an upstream license permitting sublicensing in accordance with the requirements of that upstream license, but the associated third-party OSS remains sublicensed to you under this Agreement. As set forth in the Warranty Disclaimer and Limits on Liability section of this Agreement, neither Magic Leap nor its licensors shall have any liability for any Third-Party Materials (or any specifications, descriptions, or other materials our Licensors may provide with their Third-Party Materials) and they make no representation or warranty for any Third-Party Materials including, but not limited to, the warranties of merchantability, fitness for a particular purpose, and non-infringement. "OSS" means software distributed as "free software," "open source software" or under similar licensing or distribution terms. Information and terms associated with Third-Party Materials may be found in the NOTICES file, a copy of which may accompany the Portal Content delivered to you, and is incorporated by reference herein in its entirety. The presence and usage of or compliance with Third-Party Materials, including any Licensor Agreements, is Confidential Information. If we mention our Licensors or other third parties, or their products or services, in any materials we provide you, it's for informational purposes only and doesn't constitute our endorsement of those parties, products, or services.

The portal may also contain links or provide access to other web sites operated by third parties. Those third-party web sites are not under our control, and we are not responsible for the content of any third-party web site or any link contained in a third-party web site. We provide these links only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to third-party web sites.

Acceptable Use of Services

Magic Leap may also provide our creator community with certain services through the portal, including any forums or support (our "Services"). We're not obligated to provide you with any Services, but we may decide to do so anyway. If we do provide you with Services, they're for your use only, solely in connection with the use or exercise of your rights pursuant to this Agreement.

You'll be able to interact with others through our Services, including by viewing content created by others. You are solely responsible for your interactions with other people through our Services. You must abide by these acceptable use requirements and our Community Guidelines when using our Services – they are also a part of these terms. Magic Leap may, but has no obligation to, monitor your use of the Services to ensure that you are following these acceptable use requirements and Community Guidelines.

In addition, you agree that you won't:

  • Use our Services in a way that negatively affects others or our ability to provide the Services;
  • Use our Services for any illegal or unauthorized purpose;
  • Use any technology or other means not authorized by us to access our Services or to extract data;
  • Attempt to gain unauthorized access to any Magic Leap Services, including by trying to circumvent any restrictions;
  • Attempt to decipher, decompile, reverse engineer, disassemble, reproduce, modify, copy, distribute, publicly perform, publicly display or create derivative works of the Services or the source code of the software used to provide the Services (except as and only to the extent permitted by applicable law);
  • Use our Services to create a competitive product or service, or for benchmarking or vulnerability testing purposes, except as authorized by Magic Leap in writing; or
  • Infringe upon or violate the rights of Magic Leap, other people in our community, or any third party.

By using our Services, you understand that Magic Leap does not endorse or actively review the content posted or sent by others within our Services. We will not be responsible for any liability incurred as the result of your interactions with others or your use of content provided by other people. Your use of any content provided by other people, and any interactions with others, is at your own risk.

Pre-Release Materials

As part of the creator community, you may have the opportunity to receive certain pre-release Magic Leap hardware or other materials at Magic Leap's option. Your use of any pre-release materials may be conditioned on your acceptance of additional terms that we provide you and subject to confidentiality obligations as set forth below. In the event of any conflict between the terms provided for any pre-release materials and this Agreement, the other terms will govern your use of the pre-release materials.

Restrictions

You are not allowed to (directly or indirectly): (a) modify, adapt, alter, or create any derivative works of the Portal Content, except as necessary to develop Applications for our Platform as permitted herein; (b) provide or transfer Portal Content to any third party without Magic Leap's prior written consent or as otherwise permitted herein; (c) work around, interfere with, exceed or circumvent any technical limitations or software protection measures in the portal, the Portal Content, or the Services, including any system alerts, notices, indicators, consent screens, texts, hyperlinks or other messaging intended to be provided to end users of any Application; (d) reverse engineer, decompile, translate, disassemble, or otherwise attempt to derive any source code of the Portal Content not provided in source code format (except as and only to the extent permitted by applicable law); (e) publish, rent, lease, distribute, lend, sell, sublicense, or otherwise commercialize the Portal Content or your access to the portal; (f) release or disclose the results of your use, development, or evaluation of the Portal Content; (g) perform, or release or disclose the results of, any benchmark testing or vulnerability assessments of the Portal Content; (h) introduce into the portal or the Portal Content, or include in or with any Application, any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any software code, which is designed to disrupt, damage, or perform unauthorized actions on a computer system; (i) remove or alter any proprietary notices or labels on or in the portal or the Portal Content; (j) use the portal or Portal Content to directly or indirectly develop any product or service that competes with the Magic Leap Platform; or (k) disclose any source code you may receive through the portal.

You also may not combine the portal, or any Portal Content with any OSS or other materials under any "Excluded License." An "Excluded License" is a license that, as a condition of use, modification and/or distribution of software subject to such license, would restrict the ability of Magic Leap to protect its proprietary interests in the Portal Content, including protecting its intellectual property rights therein, or (1) requires the disclosure or distribution in source code form of any software subject to the license or any software used, based on, or distributed in connection with software subject to the license; (2) requires the licensing of any software subject to the license or any software used, based on, or distributed in connection with software subject to the license for the purpose of making derivative works; (3) imposes any restriction on the consideration to be charged for the distribution of any software subject to the license or any software used, based on, or distributed in connection with software subject to the license; or (4) creates, or attempts to create, obligations for Magic Leap or any Licensor with respect to any intellectual property rights or grant, or attempt to grant, to any third party, any rights or immunities under any intellectual property rights of Magic Leap or a Licensor. Examples of Excluded Licenses include, but are not limited to, licenses incorporating copyleft requirements, such as the GNU General Public License, GNU Lesser General Public License, SleepyCat License, or Mozilla Public License.

Applications

We may publish certain application guidelines and/or content rulebooks in the portal. You agree to develop any Applications in compliance with those guidelines. Applications that are developed by you may only be distributed through Magic Leap World or via other distribution methods developed by Magic Leap for our Platform and generally offered to our creator community for such distribution.

Applications that comply with this Agreement and any application guidelines issued by us may be submitted to us for evaluation for distribution through Magic Leap World or other permitted distribution methods. You acknowledge and agree that prior to submission of any Application for such consideration, you (or another authorized agent of the organization that you are working on behalf of) must register as a publisher and agree to the terms of our Publisher Registration Agreement.

Confidentiality Obligations

Magic Leap IP and Other Information

You acknowledge that you may receive non-public information relating to Magic Leap, its business, products, services, and related intellectual property, including the Magic Leap IP (as defined below) (collectively, "Confidential Information") in connection with your use of any pre-release materials accessed through the portal. You agree to keep the Confidential Information confidential, not to publish or disclose any Confidential Information to a third party, and only use such information to the extent necessary to exercise your rights under this Agreement. You will use at least a reasonable standard of care in maintaining the confidentiality of the Confidential Information. Your obligations with respect to Confidential Information will continue even after you have stopped using the portal. You agree to destroy or return any Confidential Information at Magic Leap's request.

Permitted Disclosures

Your confidentiality obligations won't apply to any information that we publicly disclose outside of the portal about our pre-release materials, except that even after we make such disclosures, you still can't post screen shots of those materials outside of the portal or redistribute those materials outside the portal except as permitted in this Agreement or with our prior, express written approval in each instance.

Notwithstanding the above paragraphs, you may disclose Magic Leap's Confidential Information to the extent the disclosure is required by law or by order of a court or governmental agency. However, in such event, you will assist Magic Leap in obtaining a protective order or similar protection to maintain the confidentiality of the Confidential Information to the extent possible and legally permitted.

Remedies

You also acknowledge that if you breach this Confidentiality Obligations section, it will cause immediate and irreparable injury to Magic Leap and Magic Leap will have the right to seek and obtain injunctive relief, and to pursue any other remedies available at law or in equity, 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.

Feedback

You will have the option to provide us with feedback, suggestions, comments, changes, enhancements, updates and modifications relating to the portal, Portal Content or other existing Magic Leap products or services in your discretion (collectively, "Feedback"). From time to time, Magic Leap may request that you provide Feedback in a specified form, manner and/or frequency, provided that all such Feedback will be at your discretion. Without limiting the generality of the foregoing, you 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 any Portal Content to Magic Leap promptly upon occurrence. Any such notices will be deemed Feedback. You hereby grant 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 you. Magic Leap has no confidentiality or other obligations with respect to your Feedback.

Privacy

Your privacy is important to us. Our Privacy Policy describes how we collect, use and disclose information we collect about you. Please read our Privacy Policy carefully so you understand how we use and share information we collect about you.

Your Content

The portal may include interactive features and areas where you can create, upload, store, and/or share content (other than Applications) with us or others ("Your Content"). Your Content is considered non-confidential. Magic Leap does not obtain any ownership rights in Your Content, but you grant Magic Leap a worldwide, irrevocable (except as set forth below), perpetual, non-exclusive, transferable, fully paid, royalty-free and fully sublicensable right to use, copy, display, store, adapt, publicly perform and distribute Your Content so that Magic Leap can operate, deliver, and improve the portal. The license granted to Magic Leap for Your Content is revocable by you only if and when you choose to independently remove or delete any of Your Content uploaded to the Portal, to the extent that the Portal provides the functionality to do so.

You are solely responsible for Your Content. Magic Leap has no obligation to review, approve, monitor, endorse, reject, refuse to post, screen, edit, move or remove any of Your Content or similar content created by other members of our creator community from the portal, but may choose to do so at any time, in its discretion. If Your Content violates this Agreement, we may remove it. For repeat or otherwise serious violations, we may suspend or otherwise disable your access to the portal and terminate this Agreement.

You represent and warrant that (a) you either control or own Your Content, or you have obtained all rights necessary to share Your Content in compliance with this Agreement; (b) Your Content, and our use of Your Content as permitted under this Agreement, will not infringe, misappropriate or violate any third-party's intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations; and (c) Your Content does not violate our Community Guidelines.

Complaints

In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others or post other content that violates this Agreement or any of our other applicable terms (including our Community Guidelines) and applicable law. If you believe that anything on our Services infringes any copyright that you own or control or would like to bring a similar issue to our attention, you may notify our Designated Agent as follows: Designated Agent: Anastasia Lang Address: Magic Leap, Inc., Attn: DMCA Agent, 7500 W. Sunrise Boulevard, Plantation, FL 33322 Telephone: 954-889-7010 E-Mail Address: copyright@magicleap.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification under the DMCA and similar provisions under applicable law. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Magic Leap for certain costs and damages.

Intellectual Property Rights

Your Ownership

Unless otherwise specified in a separate agreement with Magic Leap, you retain, and will own, all rights (including intellectual property rights), title, and interest in and to each Application, (excluding any Magic Leap IP incorporated in or necessary to use such Application), and Your Content.

Magic Leap Ownership

Except for the limited rights granted under this Agreement, Magic Leap and its Licensors retain, and will own, all rights (including intellectual property rights), title, and interest in and to the portal and Portal Content (collectively, the "Magic Leap IP"). You must abide by all copyright notices, information, or restrictions contained in or attached to the portal and/or the Portal Content.

No Implied Licenses

You may not use the Magic Leap IP except as expressly permitted under this Agreement. Furthermore, except as expressly set forth in this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to the Magic Leap IP.

Magic Leap Marks

Subject to the terms of this Agreement, Magic Leap hereby grants you, during the term of this Agreement, under any trademark rights Magic Leap may have, permission to use certain Magic Leap display names, trademarks, trade names, service marks or logos made available to you by Magic Leap ("Marks") solely in accordance with the Magic Leap Trademark Guidelines as may be amended from time to time by Magic Leap. Other than as set forth in this section, Magic Leap reserves all right, title, and interest in and to the Marks.

Except as expressly stated above, you're not allowed to use any Marks or any other trademarks of Magic Leap. Ownership of all the Marks and the goodwill associated with the Marks remains with us or those other entities.

Independent Development

Nothing in this Agreement prevents Magic Leap or other creators who may have relationships with Magic Leap from developing or having developed products, content, software, concepts, systems or techniques that are similar to or compete with Applications, or other products, content, software, concepts, systems or techniques that you may develop pursuant to this Agreement. You acknowledge that multiple products may be in simultaneous development for Magic Leap's Platform at any time. In addition, nothing in this Agreement prevents you from developing or having developed products, content, software, concepts, systems or techniques for use on other platforms that may be similar to or compete with products, content, software, concepts, systems or techniques of Magic Leap, provided that your use of the Portal Content is in compliance with this Agreement.

Termination

We reserve the right to monitor your use of the portal to make sure you're complying with this Agreement. We really want you to use the portal to develop cool stuff for our Platform. However, we may suspend or disable your access to the portal and and/or terminate this Agreement if we think you're violating this Agreement or any other Magic Leap terms, agreements, guidelines or policies; violating any laws, rules or regulations; creating possible legal liability or if we believe your use poses a security, health or safety risk. We will not have any liability for termination of this Agreement.

You have the right to terminate this Agreement at any time for any reason.

If this Agreement is terminated for any reason, your access to the portal and your license to the Portal Content will immediately terminate. However, even if this Agreement is terminated, (a) Magic Leap may continue to use Your Content and Feedback in accordance with this Agreement, and (b) the Restrictions, Confidentiality Obligations, Your Content and DMCA Notices, Intellectual Property Rights, Warranty Disclaimer and Limits on Liability, Indemnification, General Provisions, and Arbitration Provision of this Agreement will survive any such termination and continue to apply.

Warranty Disclaimer and Limits on Liability

The following paragraphs limit our liability to you and also limit your legal remedies. They are important and contain some lawyerly words, but we have to include them to provide you access to the portal and Portal Content.

We've said it before, we say it below, and we'll say it again here one more time for good measure — nothing in this section will limit or exclude liability that cannot be limited or excluded under applicable law.

A. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE PROVIDING THE PORTAL AND MAGIC LEAP MATERIALS ON AN "AS-IS" BASIS FOR USE AT YOUR OWN RISK. MAGIC LEAP AND ITS LICENSORS (AS APPLICABLE) DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PORTAL, THE PORTAL CONTENT (INCLUDING THIRD-PARTY MATERIALS, OR CONTENT AND SERVICES AVAILABLE THROUGH THE PORTAL), OTHER MAGIC LEAP IP, AND MAGIC LEAP TECHNOLOGY OR CONTENT, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INTERFERENCE, SYSTEM INTEGRATION, OR ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF THE PORTAL CONTENT (INCLUDING ANY THIRD-PARTY MATERIALS, OR CONTENT AND SERVICES AVAILABLE THROUGH THE PORTAL) OR ANY MAGIC LEAP IP OR RELATED PRODUCT OR SERVICE WILL BE UNINTERRUPTED ERROR-FREE, VIRUS-FREE, OR SECURE. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AND DISCLAIM ALL WARRANTIES OR LIABILITY, WHETHER EXPRESS IMPLIED, OR STATUTORY, ON BEHALF OF ANY OF OUR AFFILIATES, AGENTS, SUPPLIERS, DISTRIBUTORS, PARTNERS, OR LICENSORS ("MAGIC LEAP PARTIES"). THE FEATURES AND FUNCTIONALITY OF OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS, OR CONTENT AND SERVICES AVAILABLE THROUGH OUR SERVICES), PRODUCTS OR DEVICES MAY CHANGE AT ANY TIME AND MAGIC LEAP DISCLAIMS ANY RESPONSIBILITY FOR SUCH CHANGES OR ANY STATEMENTS MAGIC LEAP MAKES OR HAS MADE ABOUT THE EXISTENCE OF SUCH FEATURES OR FUNCTIONALITY.

B. IN NO EVENT SHALL MAGIC LEAP OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PORTAL (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AND SERVICES AVAILABLE THROUGH THE PORTAL) OR MAGIC LEAP IP OR THIS AGREEMENT, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAGIC LEAP PARTIES' TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PORTAL (INCLUDING ANY THIRD-PARTY MATERIALS, OR CONTENT AND SERVICES AVAILABLE THROUGH THE PORTAL), OR THE MAGIC LEAP MATERIALS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

C. 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 YOU AND MAGIC LEAP. 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 SERVICES; OR FOR (B) ANY DAMAGES CAUSED BY MAGIC LEAP'S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.

D. 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.

Indemnification

You agree to indemnify, hold harmless and, at our option, defend Magic Leap (including our affiliates, officers, directors, employees, stockholders, agents, Licensors, suppliers, distributors, and any third-party information providers) from and against all damages and expenses we may incur as a result of your use of the portal (including any Portal Content), your or our use of Your Content, or your violation of this Agreement.

General Provisions

Changes

We may change or modify this Agreement at any time. If we do, we'll make sure to notify you, by sending, for example, a notification to your Magic Leap ID and/or giving notice through the portal. Unless we say otherwise in our notice, the revised terms will be effective immediately and your continued use of the portal and/or Portal Content after we provide notice of the changes will constitute your acceptance of any changes to this Agreement. If you don't agree to any changes to this Agreement, you must stop using the portal and the Portal Content (though we'll be sorry to see you go). Please review this Agreement from time to time – it's important you understand the terms and conditions that apply to your use of the portal and the Portal Content.

We also reserve the right, at any time, to modify, suspend, or discontinue the portal, the Portal Content, or any part thereof, at any time with or without notice to you. Magic Leap won't be liable to you or to any third party should it exercise such rights.

Your Relationship with Magic Leap

You and Magic Leap are independent contractors, and nothing in this Agreement will be construed as creating a partnership, joint venture, employee, or agency relationship between you and Magic Leap.

Governing Law and Venue

This Agreement and the relationship between you and Magic Leap will be governed by the laws of the State of California, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both of us agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Santa Clara County, California.

For our International Friends, please see the governing law and dispute resolution provisions specific to your jurisdiction in the special terms.

Compliance

You will comply with all applicable laws and regulations (including U.S. sanctions or export controls laws) and will not, without prior government authorization, export, re-export, or transfer the Magic Leap IP or any other Magic Leap products, services or technology, either directly or indirectly, in violation of such laws and regulations (including to any sanctioned or restricted entities). Further, you represent and warrant that you (a) 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; (b) have not been identified as a "Specially Designated National" by the Office of Foreign Assets Control, (c) have not been placed on the U.S. Commerce Department's Denied Persons List, and (d) have not been listed on any other U.S. Government or other applicable sanctioned party lists; and (e) will not use the portal if any applicable laws in your country prohibit you from doing so in accordance with this Agreement.

Communications

By accepting this Agreement, you (a) consent to receive electronic communications from us, whether via email or posting on the portal or other reasonable means; and (b) agree that this Agreement and any related notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications must be in writing.

General Provisions

This Agreement is personal to you, and you may not assign or delegate your rights and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right to seek an injunction, if necessary, to stop or prevent a breach of your obligations under this Agreement. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us 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 for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, the provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement (along with any other agreements, guidelines or documents referenced herein) constitutes the entire agreement between us with regard to the matters described in this Agreement.

Agreement to Arbitrate and waiver of Class Action

Please carefully read the following agreement to arbitration and waiver of class action ("Arbitration Provision"). It requires you to arbitrate disputes with Magic Leap and limits the manner in which you can seek relief from us. It prevents you from bringing any class, collective, or representative action against Magic Leap, it prevents you from participating in or recovering any relief in any class, collective, or representative action anyone else might bring against Magic Leap, and it prevents you from suing Magic Leap in court or from having a jury trial.

Whether to agree to arbitration is an important decision. It is your decision to make and you shouldn't rely only on the information in this Arbitration Provision, because it is not intended to explain the pros and cons of arbitration. You should conduct your own research and ask others about the consequences of this decision, and you can opt out of this Arbitration Provision if you want to, by following the instructions below.

For our International Friends, this Agreement to Arbitrate and Waiver of Class Action may not be binding for your relationship with us - please see the dispute resolution provisions specific for your jurisdiction in the special terms

Applicability of Arbitration Provision

You agree that any dispute or claim relating in any way to these terms, including this Arbitration Provision, to our privacy policy or data security generally, or otherwise related to the Services or our devices or products, including any software ("Disputes") will be resolved by binding arbitration, rather than in court. Notwithstanding the foregoing sentence, (a) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (b) you or Magic Leap may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents); and (c) Magic Leap may seek equitable relief in court (including an injunction), if necessary, to stop or prevent your violation of this Agreement. This Arbitration Provision shall apply, without limitation, to all Disputes that arose or were asserted before this Agreement or any prior version of this Agreement was in effect, as well as to all Disputes arising thereafter.

Waiver of Class Relief

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND MAGIC LEAP WILL NOT COMMENCE AGAINST THE OTHER, OR PARTICIPATE IN, A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND MAGIC LEAP ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Arbitration Rules and Forum

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Paracorp Incorporated, 2804 Gateway Oaks Drive #200, Sacramento, CA 95833-3509. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available here; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available here. JAMS's rules are also available here or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will jointly select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Magic Leap will pay them for you. In addition, Magic Leap will reimburse all such JAMS's filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Magic Leap will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in-person in the country where you live or at another mutually agreed location. Any final decision made by the arbitrator may be entered in any court of competent jurisdiction.

Authority of Arbitrator

The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Agreement, including this Arbitration Provision including, but not limited to any claim that all or any part of this Agreement or this Arbitration Provision are void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Magic Leap. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement (including the Arbitration Provision). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

Waiver of Jury Trial

YOU AND MAGIC LEAP HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Magic Leap are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Provision, except as specified in the Applicability of Arbitration Provision section above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor Magic Leap is entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in this section.

Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Provision by sending written notice of your decision to opt out to the following address: Magic Leap, Inc., Attn: General Counsel, 7500 W. Sunrise Blvd, Plantation, FL 33322, and/or arbitration@magicleap.com, within 30 days after first becoming subject to this Arbitration Provision. Your notice must include your name and address, your Magic Leap ID, and an unequivocal statement that you want to opt out of this Arbitration Provision. If you opt out of this Arbitration Provision, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Provision has no effect on your agreement to the rest of this Agreement or your agreement to any other arbitration agreements that you may currently have, or may enter in the future, with us.

Severability

If any part or parts of this Arbitration Provision are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Provision shall continue in full force and effect.

Survival of Provision

This Arbitration Provision will survive the termination of your relationship with Magic Leap.

Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Provision, it will not apply to any individual claim(s) that you had already provided notice of to Magic Leap.

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 this Agreement that is inconsistent with these special terms, the applicable special terms for your jurisdiction will apply.

European Union

General. The following special terms apply to all residents of the United Kingdom (U.K.) or the European Union ("EU Customers"):

  • These terms 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 these terms 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: Acceptable Use of Services, Restrictions, Confidentiality Obligations, Intellectual Property Rights and Compliance.

  • 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 these terms we may collectively agree to refer the matter to a form of dispute resolution (including as described in the Arbitration provision above), but neither of us are restricted from bringing court proceedings. In other words, the Arbitration Provision is optional, not mandatory. The European Commission provides for an online dispute resolution platform, which you can access here. If you would like to bring a matter to our attention, please email legal@magicleap.com.

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 legal@magicleap.com.

Germany. If you are an EU Customer who is a resident of Germany, the following special terms also apply:

  • The section "WARRANTY DISCLAIMER AND LIMITS ON 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.
    • As our access to our portal is provided for free, we exclude any warranties and liabilities for our portal in connection with this agreement. 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 Sect. 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.

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.

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