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:
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 trademarks and designs, circuit layouts, data and databases, trade secrets, 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, its related companies or an authorised StretchSense reseller or otherwise supplied to you by StretchSense, its related companies or an authorised StretchSense reseller (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:
StretchSense grants to you, and you accept, a non-exclusive and non-transferable license for the duration of this Agreement to use the Software and the Documentation:
4. LICENCE CONDITIONS
6.1 StretchSense will provide you with the support services set out in clause 6.2, provided you have:
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:
6.3 The provision of support by StretchSense under clause 6.2 is conditional on you:
6.4 StretchSense may, at its discretion, from time to time provide you with Updates, in which case the following applies:
7.1 You must pay the Fees to StretchSense for the license 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:
8.2 StretchSense owns all Intellectual Property Rights in:
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 5.2.
If you provide StretchSense with ideas, comments or suggestions relating to the Software or the Documentation (together feedback):
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:
The indemnity in clause 8.5 does not apply to the extent that an IP Claim arises from or in connection with:
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):
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.a, 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:
10.2 To the maximum extent permitted by law and only to the extent clause 10.a 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:
10.3 Without limiting clause 10.1, StretchSense is not liable to you under or in connection with this Agreement for any:
11.1 This Agreement will terminate, and the Software will be electronically disabled, on expiry of the term of the license you have purchased or the period you have subscribed for, unless you renew your license or subscription. StretchSense is under no obligation to renew your license or subscription. The Fees may change without notice at any time between the initial purchase of a license or subscription and when you wish to renew a license or subscription.
11.2 Following termination under clause 11.1, the Software will deactivate and you will no longer be able to access any features 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.
12.2 You 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 licenses 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.