Terms and conditions

Last updated: 11 June 2024

StretchSense

Terms of Trade

The following are the terms and condition under which Sensor Holdings Limited, a New Zealand company, company number 7730356, trading as StretchSense, sells and licenses its Products. These terms apply to any purchase by You (“You” or “Customer”) of StretchSense Products, whether ordered via the StretchSense website or via a paper or electronic purchase order or signed quotation. These Terms do not apply if StretchSense has entered into a separate purchase agreement with You that excludes other terms and conditions.

Defined terms are included at the end of these Terms of Trade.

STRETCHSENSE SELLS ITS PRODUCTS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF TRADE AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY EITHER (1) PURCHASING PRODUCTS FROM OUR WEBSITE, OR (2) SIGNING A STRETCHSENSE QUOTATION OR PLACING A PURCHASE ORDER THAT REFERENCES THESE TERMS, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE USING THIS FOR A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY AND BIND IT TO THE LICENSE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, STRETCHSENSE WILL NOT AND DOES NOT SELL ITS PRODUCTS TO YOU.

TO THE EXTENT PERMITTED BY LAW, IF YOU ARE PURCHASING THIS PRODUCT IN THE UNITED STATES, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1) Order and Acceptance

1.1 You may order Products by (i) issuing a purchase order for the applicable Products, (ii) signing and returning a valid StretchSense Quote (i and ii collectively, “Manual Purchases”) or (iii) following the ordering procedures on our website.

1.2 We reserve the right to accept or reject Your order. We will endeavor to provide order acceptance via email, but if, for any reason, we cannot do so, we will only accept Your order by shipping the product. You may not cancel any Order after acceptance by StretchSense.

2) Pricing and Payment

2.1 The price for Products will be (i) as stated in the pricing information on our website, or (ii) as stated in a valid StretchSense Quotation (unless otherwise specifically provided in the Quotation, StretchSense Quotations are valid for thirty days from issuance.)

2.2 Prices do not include and You will be responsible to also pay (i) the shipping and handling charges stated in the Quotation or on our website, (ii) any taxes applicable to the transaction, and (iii) any applicable third party charges. You are also responsible for any import duties on the Products, which are to be paid by You to the taxing authority, not to StretchSense.

2.3 Website purchases must be paid in full at the time of purchase. Manual Purchases must be paid in full within seven days of the purchase, unless different payment terms are provide in the Quotation.

3) Delivery, Title and Risk of Loss

3.1 We will ship the Hardware Products to the SHIP TO address nominated by You when You place the order. Any stated time for delivery is an estimate only. You must accept and pay for the Hardware Products regardless of any delay. We will not be responsible for any loss or damage resulting from any delay, however caused. If the address is incorrect, you will be invoiced an extra shipping charge for redelivering.

3.2 We will ship the Products to You via the carrier we find to be most suited. We will ship Delivered at Place (DAP). Customers outside USA and Canada should be aware that they will be responsible for any local import duties and taxes.

4) Warranty

Hardware Warranty. We warrant that the Hardware Products will, at the time of delivery, meet the speciﬁcations in our Documentation or otherwise agreed in writing, and will, for 12 months from delivery, be free from material defects in workmanship and materials. “Defects,” for purposes of this warranty, mean the following: a seam coming apart, a zip failing, a sensor short-circuit/cable break/disconnection, mechanical failure of a sensor, sensor wash-prooﬁng failure, electronics module not charging, mechanical failure of USB-micro connector, mechanical failure of USB-C connector, and mechanical failure of the sensor breakout ﬂexible PCB except where these defects are a direct result of a defect that is excluded from the warranty.

4.2 All other defects are excluded from the warranty; and the following are specifically excluded from the warranty: rips/tears/holes in fabric or surface abrasion, water damage to electronics module, impact damage (including due to striking with props and ﬁsticuffs), exposure to excessive under/over temperature (including by not following the speciﬁed washing instructions), garment discoloration and general cosmetic wear. In addition, the warranties do not apply to (i) any defect caused by modiﬁcation of the Hardware Product by any person other than us, (ii) Your breach of the Terms, (iii) any damage done as a consequence of failing to follow reasonable use guidelines, or (iv) use of the Hardware Product for a purpose not contemplated by the documentation and not authorized by us in writing.

4.3 Software Warranty. The Software Warranty is provided in the End User License Agreement.

4.4 Remedies. If the Hardware Products do not meet a warranty, StretchSense may, at its option, repair or replace the defective Hardware Products; or refund the purchase price of the Hardware Products to You.

4.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE REMEDIES SET FORTH IN THIS CLAUSE ARE YOUR SOLE REMEDY AGAINST STRETCHSENSE FOR BREACH OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT PERMIT CERTAIN EXCLUSIONS OF WARRANTIES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

4.6 Repair Option. If a defect is not covered by the warranties in this clause, we will, if feasible, provide You with a quote for repair, and it will be at Your discretion whether to proceed with the repair.

5) Support. StretchSense will provide Support via email and through access to online resources available at https://stretchsense.com/support/. We will use reasonable efforts to respond to Support requests in a timely manner but makes no guarantee regarding response times.

6) LIMITATION OF LIABILITY

SUBJECT TO THE EXCEPTION BELOW, IN NO EVENT WILL STRETCHSENSE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. STRETCHSENSE’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT), SHALL BE LIMITED TO THE PURCHASE PRICE FOR THE PARTICULAR PURCHASE OF PRODUCT(S) THAT CAUSED THE DAMAGES OR ARE THE SUBJECT MATTER OF THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. Notwithstanding the foregoing, this Agreement does not limit liability due to death or physical personal injury caused by gross negligence, or liability due to fraudulent misrepresentations or willful misconduct. You acknowledge that StretchSense would not be able to provide the StretchSense Product(s) without the limitations set forth in this Section 6. You may have other rights under applicable mandatory local laws.

7) Privacy

StretchSense collects information about your purchase and use of the Products, which it uses in an anonymized manner for Product improvement purposes. If you do not want StretchSense to obtain Product use information and to prevent the Software from sending this information, you can disable tracking from the ‘Settings’ section of your StretchSense My Account, available at stretchsense.com/my-account. When You provide personal information to us, such as when you place a purchase order, we will comply with applicable privacy and data protection laws and with our privacy policy set out at stretchsense.com/privacy-policy/.

8) Intellectual Property

StretchSense and its licensors own all intellectual property rights in and to the Products. StretchSense grants to You a license to use the software/firmware (“Firmware”) installed and contained in the Hardware Products (Your license to use the Firmware and other StretchSense software is further defined in a separate End User License Agreement.) As a condition of Your license to use the Firmware, You must not use the Products or data generated from use of the Products to train machine learning models for commercial purposes, but You may use the Products and/or data generated from use of the Products to train machine learning models for non-commercial uses, e.g. education or academic research.

8.2 StretchSense shall defend any claim, suit or proceeding brought against You so far as it is based on a claim that any Product supplied hereunder infringes a patent, copyright or trade secret, and shall pay all damages and costs finally awarded therein against You, provided that StretchSense is notified promptly in writing of the claim and given full authority, information and assistance for the defense of such claim. If a claim has occurred, or in StretchSense’ opinion is likely to occur, You agrees to permit StretchSense, at its option and expense, either to procure for You the right to continue using the Product or to replace or modify the same so that it becomes non-infringing, or, if neither of the foregoing alternatives is reasonably available, remove the Product, and refund to You the price thereof as depreciated or amortized by an equal annual amount over the three-year lifetime of the Product. StretchSense has no liability to the extent that any claim is based upon (i) the combination, operation or use of any Product supplied hereunder with equipment, devices or software not supplied by StretchSense, (ii) alteration or modification of any Product by anyone other than StretchSense or (iii) use of the Product in a manner or for a purpose not reasonably contemplated in the Documentation. The foregoing states the entire obligation of StretchSense with respect to infringement or the like.

9) Export Control

The Products may be subject to export control laws, including the United States Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Products to, or make the Products accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Product available to any third party.

10) ARBITRATION AND CLASS ACTION WAIVER

(APPLICABLE ONLY IF YOU ARE RESIDENT OR DOMICILED IN THE UNITED STATES)

STRETCHSENSE AND YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND STRETCHSENSE ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Section 11. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

We will be responsible for paying any individual consumer’s arbitration/arbitrator fees unless the arbitrator finds your claim(s) to be frivolous.

You may elect to pursue Your claim in small-claims court rather than arbitration if You provide us with written notice of Your intention do so within 60 days of Your purchase. The arbitration or small-claims court proceeding will be limited solely to Your individual dispute or controversy.

You agree that arbitration on an individual basis. In any dispute, NEITHER YOU NOR STRETCHSENSE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

11) Contracting entity and governing law. Subject to Section11 above, for United States residents this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (excluding its choice of law rules) for all other users this Agreement shall be governed by and construed in accordance with the laws of New Zealand, without reference to its conflict of laws provisions.

Miscellaneous

Any waiver by us must be in writing and signed by us. The United Nations Convention on Contracts for the international Sale of Goods 1980 does not apply to this transaction for the Products. Any illegality, enforceability or invalidity of a provision of the Terms does not affect the legality, enforceability or validity of the remaining provisions. Any variation to the Terms must be in writing and signed by both parties. These Terms set out everything agreed in relation to the supply of the Hardware Products, Software and Support and supersede and cancel anything discussed, exchanged or agreed prior to You agreeing to these Terms. Regardless of the form of Your order, these terms and conditions and the related End User License Agreement exclusively govern Your purchase. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Terms that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date You agreed to the Terms. If there is any inconsistency between the Quotation (if applicable) and the other Terms, the other Terms prevail. You must not assign or transfer Your rights or obligations without our prior written consent. We are not responsible for any failure to perform caused by any forces beyond our control such as acts of nature, actions of a governmental authority or war, shortage of supplies, raw materials or means of production, riot or pandemic.

Definitions

Products means the StretchSense hardware and software Products purchased under these Terms, such and the StretchSense Fidelity Pro Gloves, the StretchSense Studio Gloves or other Products that StretchSense offers from time to time.

Hardware Products means the Hardware component of the Products, including all installed firmware, but excluding any installed or server-side software.

Documentation means the user and technical documentation for the Software made available by StretchSense and includes any update of the documentation.