StretchSense End User License Agreement
Last updated: 2 November 2020
1. APPLICATION OF AGREEMENT
1.1 This Agreement applies to your use of the Software (as that term is defined below), unless there is a separate written agreement duly executed by both parties which governs your use of the Software and expressly excludes this Agreement. If there is such an agreement and it does not expressly excludes this Agreement, both this Agreement and the terms of that agreement apply, and that other agreement prevails if there is any inconsistency. By downloading, installing and/or using the Software:
- you agree to this Agreement; and
- where you download, install and/or use the Software on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.
1.2 If you do not agree to this Agreement, you are not authorised to access and use the Software, and you must not download, install and/or use the Software.
2.1 In this Agreement:
Approved Purpose means your internal business purposes solely in conjunction with legitimate use of the StretchSense Products. Where the Software is supplied to you in conjunction with StretchSense Products that are supplied for trial or evaluation purposes, the Approved Purpose is limited solely to the purpose of trialling and evaluating the StretchSense Products.
Derived Data means the data calculated by the Software using the Raw Sensor Data, including data relating to hand joint angles and/or poses.
Documentation means the user and technical documentation for the Software provided by StretchSense, and includes any update of the documentation.
Fees means the fees StretchSense has quoted or invoiced to you or as agreed otherwise in writing between you and StretchSense, as may be updated from time to time in accordance with clause 7.2.
Intellectual Property Rights includes copyright, and all worldwide rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Raw Sensor Data means raw capacitance data generated by the StretchSense Products.
Software means the software supplied to you by StretchSense including any StretchSense Reference Data.
StretchSense means Sensor Holdings Limited, company number 7730356, trading as StretchSense.
StretchSense Products means StretchSense products purchased by you from StretchSense or otherwise supplied to you by StretchSense (e.g. on loan).
StretchSense Reference Data means data (including data relating to hand joint angles and/or poses) included in the Software on delivery or otherwise provided by StretchSense.
Update means a new version of the existing Software released to you by StretchSense.
You or your means you, or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Your Reference Data means data (including data relating to hand joint angles and/or poses) you input into the Software as reference data (excluding data generated through use of the StretchSense Product or the Software).
2.2 In this Agreement:
- clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
- words in the singular include the plural and vice versa;
- a reference to:
- a party to this Agreement includes that party’s permitted assigns;
- personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include StretchSense;
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit; and
- a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
- no term of this Agreement is to be read against a party because the term was first proposed or drafted by that party.
StretchSense grants to you, and you accept, a non-exclusive and non-transferable licence for the duration of this Agreement to use the Software and the Documentation:
- solely for the Approved Purpose;
- subject to the restrictions set out in StretchSense’s quote or invoice or otherwise agreed in writing between you and StretchSense;
- during the term of the licence you have purchased >or the period you have subscribed for; and
- on the terms and conditions of this Agreement.
4. LICENCE CONDITIONS
- use the Software and the Documentation for lawful purposes only and must not copy (except for your own legitimate back-up purposes), reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the Software or the Documentation except:
- as expressly provided for in this Agreement; or
- to the extent expressly permitted by law;
- only use the Software in conjunction with the StretchSense Products;
- ensure the Software and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
- maintain all proprietary notices on the Software and the Documentation;
- not transfer, assign or otherwise deal with or grant a security interest in the Software, the Documentation or your rights under this Agreement;
- not challenge StretchSense’s ownership of (including the Intellectual Property Rights in) the Software, the Documentation or any other item or material created or developed by or on behalf of StretchSense under or in connection with this Agreement; and
- notify StretchSense in writing immediately after you become aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the Software or the Documentation.
- the Software is supplied to you for trial or evaluation purposes or in conjunction with StretchSense Products that are supplied for trial or evaluation purposes; and
- you do not purchase or subscribe to, and StretchSense does not otherwise grant you, a commercial licence to the Software (e.g. where a commercial licence is included with a purchase of StretchSense Products):
- at the end of the trial or evaluation period your right to access and use the Software will end and you must return to StretchSense or destroy all copies of the Software and Documentation in your possession or control; and
- you must not use the Software or any Derived Data for commercial purposes including:
- using the Derived Data or StretchSense Reference Data in a commercial product;
- selling or otherwise commercialising the Software or the Derived Data or; and
- incorporating the Software in a commercial product.
6.1 StretchSense will provide you with the support services set out in clause 6.2, provided you have:
- paid all Fees due;
- maintained a proper operating environment for the use of the Software in accordance with any guidance from StretchSense, including in the Documentation; and
- complied with this Agreement and the Documentation.
6.2 Unless otherwise agreed in writing and signed by you and StretchSense, where you consider on reasonable grounds that there is a material failure of the Software to perform in accordance with the Documentation (Issue), StretchSense will:
- provide email support in the form of consultation, assistance and advice in relation to the Issue; and
- use reasonable efforts to assist in the resolution of the Issue (taking into account the nature and severity of the Issue).
6.3 The provision of support by StretchSense under clause 6.2 is conditional on you:
- first using reasonable efforts to resolve the Issue by referring to the Documentation; and
- contacting StretchSense during the business hours publicised on its website, via the support contact details published on its website.
6.4 StretchSense may, at its discretion, from time to time provide you with Updates, in which case the following applies:
- where StretchSense provides an Update, you must promptly install the Update; and
- if you fail to install the Update, StretchSense may, at its option cease providing the support services; or
- increase the Fees with immediate effect by an amount StretchSense considers reasonable to cover any additional cost of StretchSense continuing to provide the support services in set out in clause 6.2.
7.1 You must pay the Fees to StretchSense for the licence of Software under this Agreement in accordance with the payment terms set out in StretchSense’s quote or invoice and the Terms of Trade.
7.2 StretchSense may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate this Agreement on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate this Agreement in accordance with this clause, you are deemed to have accepted the increased Fees.
8. INTELLECTUAL PROPERTY
8.1 Subject to clauses 8.2 and 8.3, the following Intellectual Property remains the property of the current owner:
- Intellectual Property that existed prior to the date the Software is first downloaded, installed and/or accessed by you; and
- Intellectual Property that was created or developed independently of this Agreement.
8.2 StretchSense owns all Intellectual Property Rights in:
- the Software and the Documentation; and
- any other item or material created, developed or provided by or on behalf of StretchSense under or in connection with this Agreement.
8.3 You own all Intellectual Property Rights in Your Reference Data and the Raw Sensor Data and Derived Data you generate. To avoid doubt, if clause 5 applies, your rights to use Derived Data are subject to clause 5d.
If you provide StretchSense with ideas, comments or suggestions relating to the Software or the Documentation (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material enhancements, modifications or derivative works), are owned solely by StretchSense; and
- StretchSense may use or disclose any feedback for any purpose.
8.5 StretchSense indemnifies you against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the Software in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to you:
- promptly notifying StretchSense in writing of any IP Claim;
- making no admission of liability and not otherwise prejudicing or settling the IP Claim, without StretchSense’s prior written consent; and
- giving StretchSense complete authority and information required for StretchSense to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for StretchSense’s account.
The indemnity in clause 8.5 does not apply to the extent that an IP Claim arises from or in connection with:
- your breach of this Agreement;
- the use of the Software in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by StretchSense;
- any third party data or data owned by you (including Your Reference Data);
- modification or alteration of the Software by a person other than StretchSense; or
- the use or incorporation of the Software in, or in combination with, other products or software not contemplated by the Documentation, where, but for such use or incorporation, the Software would not have given rise to a claim for infringement of such third party’s rights.
If at any time an IP Claim is made, or in StretchSense’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, StretchSense may (at StretchSense’s option):
- obtain for you the right to continue using the items that are the subject of the IP Claim; or
- modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing.
9.1 The Software is provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. the entire risk as to the quality and performance of the Software is with you.
9.2 Without limiting clause 9.1, StretchSense makes no representation concerning the quality of the Software, and does not promise that the Software will be error-free, bug-free, or will operate without interruption.
10.1 To the maximum extent permitted by law:
- you use the Software at your own risk; and
- StretchSense is not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection with this Agreement, the Software, or your use of (or inability to use) the Software. This exclusion applies regardless of whether StretchSense’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
10.2 To the maximum extent permitted by law and only to the extent clause 10.1 does not apply, the maximum aggregate liability of StretchSense under or in connection with this Agreement or relating to the Software, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited (at StretchSense’s option) to:
- remedying, repairing or replacing the Software; and/or
- refunding the Fees paid by you in the 12 month period preceding the first event giving rise to liability.
10.3 Without limiting clause 10.1, StretchSense is not liable to you under or in connection with this Agreement for any:
- loss of profit, revenue, savings, business, data and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
11.1 This Agreement will terminate, and the Software will be electronically disabled, on expiry of the term of the licence you have purchased or the period you have subscribed for, unless you renew your licence or subscription. StretchSense is under no obligation to renew your licence or subscription. The Fees may change without notice at any time between the initial purchase of a licence or subscription and when you wish to renew a licence or subscription.
11.2 Following termination under clause 11.1, the Software will:
- continue to operate for a further period of up to 30 days from the date of termination; and
- at end of that period will cease to generate Derived Data.
- If you use the Software following termination in accordance with clause 11.2, clauses 3 and 4 continue to apply to your use of the Software.
11.3 You may terminate this Agreement at any time by returning to StretchSense or destroying all copies of the Software and Documentation in your possession or control.
11.4 StretchSense may, by notice to you, immediately terminate this Agreement if you are in breach of this Agreement.
11.5 On termination of this Agreement, you must return to StretchSense or destroy all copies of the Software and Documentation in your possession or control.
11.6 No compensation is payable by us to you as a result of termination of this Agreement for whatever reason.
11.7 Termination of this does not affect each party’s rights and obligations accrued before the termination date, including your obligations to pay all Fees payable before termination.
12.1 Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by events beyond our reasonable control.
12.2You may not assign or transfer any right or obligation under this Agreement without StretchSense’s prior written approval. You remain liable for your obligations under this Agreement despite any approved assignment or transfer.
12.3 You must comply with all applicable export control laws and not export or re-export the Software or technical data you receive other than in compliance with the applicable export control laws. You are responsible for obtaining any required licences required by you to export, re-export or import the Software or technical data.
12.4 Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.
12.5 Any variation to this Agreement must be in writing and signed by both parties.
12.6 Subject to clause 1.1, this Agreement sets out everything agreed by the parties relating to the Software and supersedes and cancels anything discussed, exchanged or agreed prior. The parties have not relied on any representation, warranty or agreement relating to the Software that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect.
12.7 This Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement.