Hi, friends. We’re delighted to have you join us on this magical (sometimes crazy) journey into a new kind of mixed reality. Before we get started, we need to let you know about certain rules and conditions that govern your creation of your Magic Leap account and use of Magic Leap’s services, including the services we provide via our products or devices (our “Services”), including transactions that you make using your Magic Leap account to buy, get, license, rent or subscribe to apps (“Apps”), and other in-app content, products, services or materials (“In-App Materials”). These terms include an Arbitration Provision requiring binding arbitration of disputes and a waiver of certain rights to jury trials and/or class actions. If you don’t want to be subject to arbitration, you can opt out of the Arbitration Provision by following the instructions provided at the end of the Arbitration Provision. We’ve tried to make these terms as easy to read as possible, but sometimes we have to use precise legal language. Forgive us. If you can’t agree to these terms, that’s ok – though, you may not use our Services unless you do. As you read through these terms, remember that by accepting these terms, you are entering into a legal contract with Magic Leap - and we couldn’t be happier.
You will need to create a Magic Leap account (“Magic Leap ID”) before first using our Services. It’s the way we identify you and authorize your access and use of the Services. You may only create one Magic Leap ID.
You must be at least 18 years old to create a Magic Leap ID and to use our Services. By accepting these terms, you represent and warrant that you are at least 18 and have the legal authority to enter into these terms with Magic Leap.
You agree that:
Your Magic Leap ID is valuable, and you are responsible for maintaining its confidentiality and security. Magic Leap is not responsible for any losses arising from the unauthorized use of your Magic Leap ID. Please notify us immediately if you find out that your Magic Leap ID is being used without your permission.
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. Generally, we expect you to act like a grown up. *high five*
In addition, you won’t:
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.
Our Services may include interactive features and areas where you can create, upload, store, and/or share content with us or others (“Your Content”). Your Content is considered non-confidential. Magic Leap does not have any ownership rights in Your Content, but you do grant Magic Leap some rights to use it. Specifically, you hereby grant Magic Leap a worldwide, irrevocable (except as set forth below), perpetual, non-exclusive, transferable, royalty-free and fully sublicensable right and license to use, copy, display, store, adapt, publicly perform and distribute Your Content so that Magic Leap can operate, deliver, and improve our Services. The license granted to Magic Leap to display or publicly perform Your Content is revocable by you if and when you choose to independently remove or delete any of Your Content uploaded to interactive features of our Services (e.g., message boards we may provide), to the extent that such Services provide 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 community from our Services, but may choose to do so at any time, including if Your Content violates these terms. For repeat or serious violations, we may suspend or otherwise disable your access to our Services. Sad face.
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 these terms; (b) Your Content, and our use of Your Content as permitted under these terms, will not infringe, misappropriate or violate any third party’s intellectual property rights, or 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.
We know you may have some ideas, feedback, or suggestions for us about our existing products and services including the Services (“Feedback”). If you do, we hope you’ll tell us. If you provide Magic Leap with Feedback, you hereby grant Magic Leap a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including to incorporate 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.
Third-Party Materials and Web Sites
We may make available through our Services certain additional services, features, or content provided by third parties (“Third-Party Materials”). Your use of Third-Party Materials made available through the Services 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 Third-Party Materials.
Our Services 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.
Technology Required to Use the Services
Magic Leap hardware and/or software may be required to access and use certain Services. If hardware is required to use a particular Service, then it is up to you to acquire such hardware. 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 the Services
Sometimes things happen. And we reserve the right to modify, suspend or discontinue our Services, or any part of our Services, at any time with or without notice to you. Magic Leap will not be liable to you or to any third party should it exercise such rights.
Acquiring Apps and In-App Materials through Magic Leap World
Magic Leap World will enable you to browse, select and obtain a variety of Apps for use on the Magic Leap platform, some of which may offer In-App Materials for further purchase. If you purchase an App or any In-App Materials, you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable Taxes (as defined below) and other charges). We may accept various forms of payment, including credit and debit cards issued by Visa, MasterCard and American Express. Unless otherwise indicated, the purchase price of the Apps or In-App Materials will be billed in full at the time you make your purchase. When you buy Apps or In-App Materials, you represent and warrant that you are authorized to use the payment method you use to purchase access to and use of Apps and In-App Materials. By providing your payment information, you authorize us (or our third-party payment processor) to not only process your payment but also store your payment and related information. In the event the payment method you designate cannot be verified, is invalid, or is not otherwise acceptable, we may suspend or cancel your order. You are responsible for resolving any problems we encounter in order to proceed with your order.
Prices are subject to change without notice. We reserve the right to refuse or cancel orders at any time and in our sole discretion.
If your use of the Services or access to and use of Apps or In-App Materials is subject to any type of use or sales tax, duty or other governmental tax or fee (“Taxes”), then we may charge you for those Taxes. Applicable Taxes may be presented at checkout. You are responsible for any Taxes due with respect to your use of the Services and any Apps or In-App Materials you purchase.
You must have a Magic Leap ID in order to purchase Apps or In-App Materials through our Services. You are responsible for all charges incurred in connection with your Magic Leap ID. Magic Leap may attempt to collect unpaid charges, including by attempting additional charges to your payment instrument, use of collections agencies and any other legal means. If you decide to cancel your Magic Leap ID, Magic Leap reserves the right, subject to any limitations under applicable laws, to collect fees, surcharges, or costs incurred before cancellation. Any delinquent or unpaid accounts must be settled before Magic Leap will allow you to register again.
We attempt to be as accurate as possible and to eliminate errors in relation to our Services; however, we do not represent or warrant that any Service description or pricing information is accurate, complete, reliable, current or error-free. In the event of an error, we reserve the right to correct such error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
Returns and Refunds
You may request a refund for an App you have purchased if the request is made within 30 days of purchase and you have only made nominal use of the App. For In-App Materials that are not consumed during the use of the App (e.g., virtual items or in-game currency), you may request a refund for any reason if the request is made within 48 hours of your purchase. We may refuse a refund request, including in instances of fraud, refund abuse, or other behavior that attempts to take advantage of these policies. If you are unable to install, access or use purchased Apps or In-App Materials, please contact our Customer Care team.
Magic Leap will be responsible for all billing questions related to Apps and In-App Materials purchased through Magic Leap World and for support with respect to the Magic Leap platform. Magic Leap has no obligation to provide support for Third-Party Apps or In-App Materials provided by a third party. Please contact our Customer Care team for assistance.
Licenses to Apps
App licenses may be provided to you by either Magic Leap or a third party, as noted in Magic Leap World (as applicable, the “App Licensor”). Apps licensed to you by Magic Leap are “Magic Leap Apps”. Except for Magic Leap Apps, Magic Leap is acting as an agent for the App Licensor in providing you with an App and is not a party to the end user license agreement between you and the applicable App Licensor. Any App that you acquire is governed by the Application End User License Agreement (“Default EULA”) set forth below, unless the applicable App Licensor provides a custom end user license agreement (“Custom EULA”), which will be available for your review in Magic Leap World prior to downloading the App. Except for Magic Leap Apps, Magic Leap has no responsibility or liability with respect to your access to, or use of, Apps, or any content or functionality contained in such Apps, which is solely provided pursuant to a license between you and the applicable App Licensor. In no event will Magic Leap be considered the licensor of Apps (other than Magic Leap Apps); to have granted any rights to use such Apps; to have assumed any obligations or responsibility with respect to such Apps including (without limitation) in connection with any support or maintenance, warranties, product liability claims, failure to comply with applicable law, and claims of infringement or misappropriation of intellectual property right; or to have made any representations or warranties with respect to such Apps. Magic Leap is a third-party beneficiary of the Default EULA or Custom EULA applicable to each App (excluding Magic Leap Apps) and may therefore enforce such agreement.
Apps may offer In-App Materials for use within such Apps. In-App Materials that are consumed during the use of the App (e.g., virtual items or in-game currency) can only be used in connection with the App where you obtained them or where they were developed or acquired by you as a result of usage, unless synchronized access is offered by the applicable App Licensor. You may be able to re-download previously acquired In-App Materials (“Re-download”), but In-App Materials may not be available for Re-download if the In-App Material is no longer offered.
App Maintenance and Support
Magic Leap is responsible for providing maintenance and support for Magic Leap Apps and with respect to the Magic Leap World only, or as required under applicable law. Please contact our Customer Care team for assistance. App Licensors are responsible for providing maintenance and support for their Apps.
We, in our sole discretion, may immediately terminate these terms and consequently your access to our Services at any time if you violate these terms, create possible legal liability or if we believe your use poses a health or safety risk. We take this very seriously. If we terminate these terms: (i) you will remain liable for all amounts due under your Magic Leap ID up to and including the date of termination; (ii) your Magic Leap ID will be deactivated, and (iii) your rights and obligations under these terms will terminate (other than those provisions that survive as described below).
We will not have any liability for any termination of these terms.
As you access our Services, you will be exposed pretty heavily to our secret sauce (or intellectual property as the best dressed people in our office call it). “Our Technology” (that is, the software, code, proprietary methods and systems used to provide the Services and other Magic Leap hardware and software products) is owned by us and/or our licensors under United States and international intellectual property laws. You must abide by all legal notices, information, or restrictions contained in, or attached to, any of Our Technology. Nothing in these terms grants you any rights to receive Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Services, according to these terms. Furthermore, nothing in these terms will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology.
The names, logos, and other business identifiers displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Magic Leap or other entities. You are not authorized to use any Marks. Ownership of all such Marks and the goodwill associated with those Marks remain with Magic Leap or those other entities.
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. If you believe that anything on our Services infringes any copyright that you own or control, 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
E-Mail Address: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. 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.
The following paragraphs limit our liability to you and also limit your legal remedies. They are important and contain some overly lawyerly words, but we have to include them so we can provide our Services to you. Buckle up.
A. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE PROVIDING OUR SERVICES AND OUR TECHNOLOGY ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) AND OUR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, 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 OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) OR OUR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT 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 AVAILABLE THROUGH OUR SERVICES), PRODUCTS OR DEVICES MAY CHANGE AT ANY TIME AND MAGIC LEAP DISCLAIMS ANY RESPONIBILITY FOR SUCH CHANGES OR ANY STATEMENTS MAGIC LEAP MAKES OR HAS MADE ABOUT THE EXISTENCE OF SUCH FEATURES OR FUNCTIONALITY.
B. IN NO EVENT WILL MAGIC LEAP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) OR OUR TECHNOLOGY, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAGIC LEAP’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS, OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) AND OUR TECHNOLOGY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL 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 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 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.
Magic Leap reserves the right to change and make additions to these terms at any time. If we do, we’ll make sure to notify you, for example, by sending a notification to your Magic Leap ID and/or giving notice through our Services. Unless we say otherwise in our notice, the revised terms will be effective immediately and your continued use of your Magic Leap ID after we provide notice of the changes will confirm your acceptance of the revised terms. We encourage you to review the terms from time to time to ensure you understand the terms and conditions that apply to your use of the Services. Your lawyer friends can be super helpful with this.
These terms and our relationship 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. We hope this never happens, but if either of us has a claim against the other, most claims or disputes will be resolved by binding arbitration, as described in the Arbitration Provision. However, to the extent these terms permit litigation in court, we both agree that all claims and disputes arising out of or relating to these terms will be litigated exclusively in the state or federal courts located in Santa Clara County, California.
You will comply with all applicable laws and regulations and will not, without prior government authorization, export, re-export, or transfer Magic Leap products, services (including the Services) or technology, either directly or indirectly, in violation of such laws and regulations. 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) will not use our Services if any applicable laws in your country prohibit you from doing so in accordance with these terms.
Because we have to get your permission for legal purposes, you (a) consent to receive communications from us in an electronic form, whether via email or posting on our Services or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we send to you electronically satisfy any legal requirement that such communications must be in writing. If you have any questions about this, please reach out to firstname.lastname@example.org.
These terms are personal to you, and you may not assign or delegate your right and/or duties under these terms to anyone else. Any attempted assignment or delegation is void. You acknowledge that we have the right to seek an injunction, if necessary, to stop or prevent your violation of these terms. Any delay or failure by us to exercise or enforce any right or provision of these terms will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is in writing, 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 these terms to be unenforceable, that provision of these terms will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these terms will continue in full force and effect. These terms constitute the entire agreement between us with regard to your access to and use of the Services. The parties have expressly agreed that these terms and all ancillary agreements, documents or notices relating thereto be drafted solely in the English language. Les parties aux présentes ont expressément convenu que ce accord et toute autre convention, document ou avis y afférent soient rédigés en anglais seulement.
Even if our relationship ends, Magic Leap has the right to continue to use Your Content and the Feedback you have provided to us in the ways permitted by these terms, and the following provisions will also continue to apply: Licenses to Apps, In-App Materials, Use of Magic Leap World, Suspension/Termination, Intellectual Property, Warranty Disclaimer and Limits on Liability, Indemnification, Governing Law and Venue, Export Control, Survival, General Provisions, Application End User License Agreement, and the Arbitration Provision.
Apps made available through Magic Leap World are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this Default EULA or a Custom EULA between you and the App Licensor, if one is provided through Magic Leap World. Your license to any Magic Leap App under this Default EULA or a Custom EULA is granted by Magic Leap, and your license to any other App under this Default EULA or Custom EULA is granted by the applicable App Licensor of that App. The App Licensor reserves all rights in and to the App not expressly granted to you under this Default EULA or a Custom EULA.
(a) Scope of License
The App Licensor grants to you a nontransferable license, unless and until this Default EULA is terminated, to install, access and use the App for your personal and noncommercial purposes on a hardware device manufactured by or on behalf of Magic Leap (each, a “Device”) owned or controlled by you. The terms of this Default EULA will govern any In-App Materials used within the App as well as upgrades provided by the App Licensor that replace or supplement the original App, unless such upgrade is accompanied by a Custom EULA. You may not distribute or make the App available over a network where it could be used by multiple Devices at the same time. You may not transfer, redistribute or sublicense the App and, if you sell your Device to a third party, you must remove the App from the Device before doing so. You may not copy (except as permitted by this Default EULA), reverse-engineer, decompile, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App).
This Default EULA is effective until terminated by you or the App Licensor. Your rights under this Default EULA will terminate automatically if you fail to comply with any of its terms.
(c) External Services
The App may enable access to the App Licensor’s and/or third-party services and websites (collectively and individually, “External Services”). Use of the External Services is at your sole risk. The App Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and will not be liable for any such third-party External Services. You will not use the External Services in any manner that is inconsistent with the terms of this Default EULA or that infringes the intellectual property rights of the App Licensor or any third party. You will not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and the App Licensor is not responsible for any such use. External Services may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. The App Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
(d) Warranty Disclaimer and Limits of Liability
(i) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APP LICENSOR IS PROVIDING THE APP ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. THE APP LICENSOR DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APP (INCLUDING ANY IN-APP MATERIALS AVAILABLE THROUGH THE APP), WHETHER EXPRESS, 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. THE APP LICENSOR DOES NOT WARRANT THAT YOUR USE OF THE APP (INCLUDING ANY IN-APP MATERIALS AVAILABLE THROUGH THE APP) WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. THE FEATURES AND FUNCTIONALITY OF THE APP (INCLUDING ANY IN-APP MATERIALS AVAILABLE THROUGH THE APP) MAY CHANGE AT ANY TIME AND THE APP LICENSOR DISCLAIMS ANY RESPONSIBILITY FOR SUCH CHANGES.
(ii) IN NO EVENT WILL THE APP LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APP (INCLUDING ANY IN-APP MATERIALS AVAILABLE THROUGH THE APP), WHETHER OR NOT THE APP LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE APP LICENSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS DEFAULT EULA OR THE APP (INCLUDING ANY IN-APP MATERIALS AVAILABLE THROUGH THE APP), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).
(iii) 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 THE APP LICENSOR AND YOU. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF THE APP LICENSOR FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE APP LICENSOR’S GROSS NEGLIGENCE IN CONNECTION WITH THE APPS; OR FOR (B) ANY DAMAGES CAUSED BY THE APP LICENSOR'S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
(iv) 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 THE APP LICENSOR’S LIABILITY WILL BE LIMITED TO THE EXTENT SUCH LIMITATIONS ARE PERMITTED BY LAW.
You will comply with all applicable laws and regulations and will not, without prior government authorization, export, re-export, or transfer any App, either directly or indirectly, in violation of such laws and regulations. You represent and warrant that you (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (iii) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (iv) will not use any App if any applicable laws in your country prohibit you from doing so in accordance with these terms.
(f) Governing Law
This Default EULA and the relationship between you and the App Licensor 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. For Magic Leap Apps, the Arbitration Provision will apply to most claims or disputes, except as otherwise noted therein.
(g) Commercial Items
The App and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Please carefully read the following agreement to arbitrate 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.
Applicability of Arbitration Provision
You agree that any dispute or claim relating in any way to these terms, including this arbitration provision, or to your access to or use of the Services or the Device including any Device software (“Disputes”) will be resolved by binding arbitration, rather than in court, except that (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 these terms. This Arbitration Provision will apply, without limitation, to all Disputes that arose or were asserted before these terms or any prior version of these terms were 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, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available here; all other claims will 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 (“Arbitration 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. However, if you are a consumer (i.e., an individual who uses the Services primarily for personal, family or household purposes), Magic Leap will pay all Arbitration Fees, except that you will be responsible for JAMS’s filing fees not to exceed $250 if you initiate the arbitration. Likewise, Magic Leap will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous, provided that, if you are a consumer, Magic Leap will not be able to recover Arbitration Fees. 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, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of these terms, including this Arbitration Provision including, but not limited to, any claim that all or any part of these terms 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 will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will 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 these terms (including the Arbitration Provision). The arbitrator will 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 will 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 these terms 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 are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section above.
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 email@example.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 provisions of these terms will continue to apply to you. Opting out of this Arbitration Provision has no effect on your agreement to the rest of these terms or your agreement to any other arbitration agreements that you may currently have, or may enter in the future, with us.
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 will be of no force and effect and will be severed and the remainder of the Arbitration Provision will continue in full force and effect.
Survival of Provision
This Arbitration Provision will survive the termination of your relationship with Magic Leap.
Notwithstanding any provision in these terms to the contrary, we agree that if we make any future material change to this Arbitration Provision, such change will not apply to any individual claims of which you had already provided notice to Magic Leap.
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