StretchSense End User License Agreement

Last updated: June 11th 2024.

Software License Agreement

This Software License Agreement, (this “Agreement“), is a binding agreement between Sensor Holdings Limited, a New Zealand company, company number 7730356, trading as StretchSense,  (“Licensor” or “StretchSense”) and the person or entity clicking to “Accept” this License and use the Software (“Licensee” or “You”).

This is a License to use the StretchSense Software (“Software” as further defined below) that is provided in conjunction with your purchase of various StretchSense Products.  This purchase may be memorialized and effected via the acceptance of a StretchSense Quote, a Purchase Order from You or an on-line purchase through the StretchSense website.  You may also have purchased the StretchSense Products from an authorized StretchSense reseller.  The Software is licensed to you, according to these terms and not sold to you outright.

Defined terms are included at the end of this License Agreement.

STRETCHSENSE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON 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 LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD AND/OR INSTALL THE SOFTWARE.

TO THE EXTENT PERMITTED BY LAW, IF YOU ARE PURCHASING THIS LICENSE 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. Subscription and License Grant

1.1       For and in consideration of the License fee paid by You and on the terms and conditions of this Agreement, StretchSense grants to You, and You accept, a non-exclusive and non-transferable license  to use the Software and the Documentation, solely in conjunction with the related StretchSense Products, utilizing the features and with the level of functionality that you purchased. The Term of Your license grant may be perpetual or may be limited in time, based on the License Term that you purchased.

1.2       Restrictions.  You may only use the Software in conjunction with StretchSense Products with which it was purchased. You may not use the Software, the StretchSense Reference Data, the Raw Sensor Data or the Derived Data to train machine learning models for commercial purposes, but you may use the Software, the StretchSense Reference Data, the Raw Sensor Data and/or the Derived Data to train machine learning models for non-commercial uses, e.g. education or academic research.

1.3       Installation and Transfer. You may install the Software on any computer or server owned or controlled by you and may transfer it to any other computer or server owned by you, provided you comply with the Restrictions in Section 1.2 above. If you sell the StretchSense Products to another party, you may transfer the Software to them, provided that they will have to register the Software with StretchSense and you will have to delete all copies of the Software in your possession.

1.4       Intellectual Property Protection. Except as expressly permitted by law without the possibility of contractual waiver, You agree that you will not attempt to reverse engineer, decompile or reverse assemble the Software or otherwise seek to gain access to source code or underlying algorithms for the Software. You may not modify or create derivative works from the Software. You may make copies of the Software in object code form for archival and backup purposes only. You shall not delete, modify or obscure any trademark, copyright notice or other proprietary notice on the Software. 

2. Fees. In order to use the Software you must pay the Fees charged for the StretchSense Products that you have purchased.  If, for whatever reason, you do not pay in full, your license to use the Software terminates, without further notice.

3. Warranty and Support.

3.1       StretchSense warrants that for one year from the date of purchase, the Software will perform materially in conformance with the Documentation.  If the Software does not perform in conformance with the Documentation, then, as your sole remedy and StretchSense’s sole responsibility, StretchSense will provide its standard support, as referenced on the StretchSense website, to attempt to bring the Software into conformance.  If StretchSense is unable to do so, despite having a reasonable time to address the issue, then StretchSense may, in its sole discretion, accept return of the StretchSense Products and refund the Fee you paid.

3.2       During the Warranty Period StretchSense will provide Software Upgrades for no additional charge. Following expiration of the Warranty, You must purchase Upgrades separately.

3.3       EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 3, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITHOUT ANY OTHER WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

4. Collection of Use Information. StretchSense Software has the capability to send use metrics and information to StretchSense.  If you do not want StretchSense to obtain this 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.  StretchSense will only use this information on an anonymous basis to improve the StretchSense Products.  When You provide any 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/.

5. Term and Termination. This Agreement will terminate and your License to use the Software will terminate when and if you no longer own or use the StretchSense Products with which you acquired the Software or, if applicable, upon expiration of your license term. In addition, StretchSense shall have the right to terminate this Agreement and your license to use the Software if you breach the terms of this Agreement and do not cure such breach within ten days of notice from StretchSense.

6. Limitation of Liability

6.1       EXCLUSION OF DAMAGES. SUBJECT TO THE EXCEPTION BELOW, IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER 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. 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, or liability arising from breaches of license grants or conditions hereunder. 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. This Agreement does not change Your rights under applicable mandatory local laws if such laws do not permit it to do so.

6.2       CAP ON LIABILITY. IN NO EVENT WILL STRETCHSENSE OR ITS SUPPLIERS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, OR RELATING TO ITS SUBJECT MATTER, EXCEED WITH RESPECT TO ANY STRETCHSENSE PRODUCT, THE AMOUNT PAID BY YOU FOR THE STRETCHSENSE PRODUCT GIVING RISE TO THE CLAIM.

7. Intellectual Property Indemnity

StretchSense shall defend any claim, suit or proceeding brought against You so far as it is based on a claim that the  StretchSense Software 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 license fee for the remainder of your license term, to a maximum term of three years.  StretchSense has no liability to the extent that any claim is based upon (i) the combination, operation or use of any Software supplied hereunder with equipment, devices or software not supplied by StretchSense, (ii) alteration or modification of any Software by anyone other than StretchSense or (iii) use of the Software 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.

8. ARBITRATION AND CLASS ACTION WAIVER

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

LICENSOR 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 YOU’ PURCHASE OF PRODUCTS OR SOFTWARE FROM YOU, 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 document. (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 to be frivilous.

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.

Licensee agrees 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.

9. US Government Rights. Each of the Documentation and the Software is a “commercial product” as that term is defined at the United States 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. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.

10. Export. The Software may be subject to export control laws, including the United States Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee 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 Software available to any third party.

11. Miscellaneous

11.1      Neither party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, however, either party may assign all of its rights and obligations hereunder to a successor party in the event that such party merges or sells its relevant assets to such successor party, or engages in a similar type transaction, and provided that such successor party agrees to be bound by all of the terms and conditions of this Agreement.  Each party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement. Subject to Section 8 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.

11.2      Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement. No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought. The waiver by either party of a particular breach of this Agreement by the other party shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements.

11.3      If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby. The parties agree that this Agreement is the complete and exclusive statement of their agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants and all other communications between the parties relating to the licensing of the Software. The Parties may amend this Agreement only by a written instrument that refers to this Agreement and is duly signed by both parties.

12. Definitions

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 made available by StretchSense, and includes any update of the documentation.

Raw Sensor Data means raw capacitance data generated by the StretchSense Products.

StretchSense Products means StretchSense products purchased or otherwise acquired by you from StretchSense, its related companies or an authorized StretchSense reseller.  Current StretchSense Products include, but are not limited to the StretchSense Studio Glove, Pro Studio Glove and Pro Fidelity Glove. StretchSense Products are generally listed on the StretchSense website, https://stretchsense.com/

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.

StretchSense Software or Software means the software programs that are provided by StretchSense as part of the StretchSense Products, including the StretchSense server software and all plug-in software, utility software or firmware provided by StretchSense.