End User Licence Agreement

Please read the terms and conditions of this End User License Agreement (“Agreement”) carefully before you use the DP Connect app and the Dermapen 4 (as defined below). This is a legally binding contract. By assenting electronically, or installing the DP Connect app or using DP Connect, you accept all the terms and conditions of this Agreement on behalf of yourself and any entity or individual you represent or for whose Device you acquire the DP Connect app for (collectively “you”). If you do not agree with the terms and conditions of this Agreement, do not continue the installation process, do not use DP Connect and delete or destroy all copies of DP Connect in your possession or control.

This Agreement relates to your use of certain software or services, including any Updates (“DP Connect”) whether in the app or downloaded to use the Dermapen 4 (“DP4”) device in connection with which you are accepting this Agreement, and any related Documentation. In this Agreement, “Vendor” means Dermapenworld and all Authorised distributors providing the products in the terms and conditions of sale of Dermapenworld products including the DP Connect App and the DP 4 to you; “Documentation” means any user manuals and instructions provided with the DP Connect App and Dermapen 4; and “Applicable Conditions” means collectively the Terms together with the types of Devices including the DP4, Permitted Number of Devices, other transaction terms, conditions and documents you accepted when you acquired the DP Connect app and DP4 (including any terms and conditions of sale), and any partner agreement or other agreement between you and Vendor or other member of Vendor Group, as well as the other limitations described by Section 2 of the End User Licence Agreement (“EULA”) and the Documentation.

Vendor may amend this Agreement at any time by notice provided to you in accordance with this Agreement, and your continued use of any affected DP Connect at any point at least 7 days after the notice date will constitute your acceptance of the amendment of this Agreement. Vendor may require that you accept the amended Agreement in order to continue using any affected DP Connect app or DP4 you have previously acquired. If you decline to accept the amended Agreement, Vendor may terminate your use of such affected DP Connect app and or DP4 with no refund or restitution.

1. LICENSE

   The Vendor grants to you a non-exclusive license to use DP Connect app, software and the Documentation for the period you continue to use Dermapen 4 (“DP4”) and associated genuine products, provided that you agree to the terms and conditions of this Agreement including registering your account and continuing to purchase genuine consumables. In this agreement “DP Connect “ means and includes the DP Connect App, software, documentation that is used or is meant to be used in connection with the Dermapen 4.

2. PERMITTED USE OF DP CONNECT

   • 2.1. You may use DP Connect with your DP4, or to support the DP4, on up to the agreed number (the “Permitted Number of Devices”) of mobile phones, smartphones, tablets, mobile network appliances, other mobile devices (each, a “Mobile Device”), personal computers, Internet-connected devices, or other device compatible with the DP Connect (each, including each Mobile Device, a “Device”) indicated in the Applicable Conditions exclusively:

   • 2.1.1. In the case of DP Connect that Vendor designates for corporate, commercial or business use (each, a “Business DP Connect”), by you or your affiliates (those entities controlling you, controlled by you or under common control with you) for internal business purposes. In the event of any such use of the Business DP Connect by your affiliate, you are responsible for your affiliate’s compliance with this Agreement, and a breach by your affiliate will be deemed a breach by you. Any obligations of Vendor under this Agreement will be owed solely to you and not your affiliates that use the Business DP Connect under the terms and conditions of this Agreement.

   • 2.1.2. In the case of all other DP Connect (each, a “Consumer DP Connect”), by a natural person, or members of his household for personal, non-commercial purposes. For the avoidance of doubt, no Consumer DP Connect is provided or licensed for use by any: (i) natural person for commercial purposes; or (ii) business, company, government entity, nongovernmental organization or other not-for-profit entity, or educational institution.

   • 2.2. You may not copy DP Connect or source it from an unauthorised vendor.

   • 2.3. YOUR USE OF DP CONNECT OTHER THAN AS EXPRESSLY AUTHORIZED BY SECTION 2 OF THIS AGREEMENT, OR ANY RESALE OR FURTHER DISTRIBUTION OF THE DP CONNECT, CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.

3. UPDATES

   Vendor, from time to time during the Subscription Term and without your separate permission or consent, may from time to time deploy an upgrade or update of, or replacement for, any DP Connect (“Update”), and as a result of any such deployment you may not be able to use the applicable DP Connect or Device including the DP4 (or certain functions of the Device) until any such Update is fully installed or activated. Each Update will be deemed to form a part of the “DP Connect” for all purposes under this Agreement. Updates may include both additions to, and removals of, any particular features or functionality offered by a DP Connect or may replace it entirely, and Vendor will determine the content, features and functionality of the updated DP Connect in its sole discretion. Vendor is not required to offer you the option to decline or delay Updates but, in any event, you may need to download and permit installation or activation of all available Updates to obtain maximum benefit from the DP Connect. Vendor may stop providing support for DP Connect or DP4 device until you have accepted and installed or activated all Updates. Vendor in its sole discretion will determine when and if Updates are appropriate and has no obligation to make any Updates available to you. Vendor in its sole discretion may stop providing Updates for any version of the DP Connect other than the most current version, or Updates supporting use of the DP Connect in connection with any versions of operating systems and other software with which the DP Connect is designed to operate.

4. OWNERSHIP RIGHTS

   • 4.1. The DP Connect and Documentation are the intellectual property of Dermapenworld or are licensed to Dermapenworld exclusively and are protected by applicable copyright laws, international treaty provisions and other applicable laws of the country in which the DP Connect is being used. The structure, organization and computer code of the DP Connect are valuable trade secrets and confidential information of Dermapenworld or the licensor. To the extent you provide any comments or suggestions about the DP Connect to Vendor, you grant Dermapenworld and or the licensor the right and license to retain and use any such comments or suggestions for any purpose in its current or future products or services, without further compensation to you and without your approval of such retention or use.

   • 4.2. Except as stated in this Agreement, your possession, use of DP Connect does not grant you any rights or title to any intellectual property rights in DP Connect or Documentation. All rights to DP Connect and Documentation, including all associated copyrights, patents, trade secret rights, trademarks and other intellectual property rights, are reserved by Dermapenworld and the licensor.

5. RESTRICTIONS

   • 5.1. You may not copy or use DP Connect or the Documentation except as set forth in Section 2 of this Agreement. You may not, and may not permit any third party to:

     • 5.1.1. use any authorization code, license number, username/password combination or other activation code or number supplied by Vendor in connection with DP Connect (“Activation Code”) on, or for, more than the number of Devices specified by the Applicable Conditions;

     • 5.1.2. disclose any Activation Code to any party other than Vendor or Vendor’s designated representatives;

     • 5.1.3. except as expressly authorized by law: (i) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract DP Connect or any portion of DP Connect (including any related malware signatures and malware detection routines); or (ii) change, modify or otherwise alter DP Connect (including any related malware signatures and malware detection routines);

     • 5.1.4. except as authorized by a distribution agreement, reseller agreement or other agreement between you and Vendor or other member of Vendor Group, publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any DP Connect app and DP4;

     • 5.1.5. except as expressly authorized by this Agreement, the Applicable Conditions or another agreement between you and Vendor or other member of Vendor Group, use DP Connect to manage the facilities of a third party or grant any third party access to or use of DP Connect on a service bureau, timesharing, subscription service or application service provider or other similar basis;

     • 5.1.6. use DP Connect to provide or build a product or service that competes with the DP Connect app and DP4;

     • 5.1.7. use or attempt to use any DP Connect to: (i) upload, download, stream, transmit, copy or store any information, data, or materials, or engage or assist in any activity that may: (A) infringe the intellectual property rights or other rights of any third party; (B) contain any unlawful, harmful, threatening, abusive, defamatory or otherwise objectionable material of any kind, (C) harm or attempt to harm others; (D) have the potential to incite or produce conduct that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically, religiously or sexually discriminatory or otherwise objectionable; (E) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; (F) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; or (G) assist any fraud, deception or theft; or (H) damage, disable or impair the operation of, or gain or attempt to gain unauthorized access, receipt, use, copying, alteration or destruction of or to, any property, Devices, software, services, networks or data by any means, including by hacking, phishing, spoofing or seeking to circumvent or defeat any firewalls, password protection or other information security protections or controls of whatever nature; (ii) in any way violate any applicable local, national or international law or regulation; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the use of DP Connect; (iv) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or “pyramid schemes”; or (v) collect or store personal data;

     • 5.1.8. damage, disable or impair the operation of, or gain or attempt to gain unauthorized access to, DP4 or DP Connect app or to any property, Devices, software, services, networks or data connected to, or inter-operating with, such DP4 or DP Connect, or to any content or data stored, accessed or delivered through such DP Connect, by any means, including by hacking, phishing, spoofing or seeking to circumvent or defeat any firewalls, password protection or other information security protections or controls of whatever nature;

     • 5.1.9. test or benchmark, or disclose or publish testing or benchmark results, for any DP Connect without Vendor’s prior written consent; or

     • 5.1.10. defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the use of copies of DP Connect; or

     • 5.1.11. violate Vendor’s policy governing acceptable use of its DP4 and DP Connect (the “Acceptable Use Policy”), which you can find in the terms and conditions for the DP4 product or the general terms and conditions available on the Dermapenworld website. If and to the extent this Agreement and the Acceptable Use Policy conflict, the more restrictive provision will prevail.

   • 5.2. The DP Connect app may grant you or another user administrative privileges that, among other things, may allow the administrator to monitor other Devices and/or the status of DP Connect deployed on other Devices, including for example Subscription Term status, DP Connect messages, and Updates. You represent and warrant that you will not exercise such administrative privileges and will only use DP Connect with respect to Devices for which you are duly authorized and for no other purpose. You also represent and warrant to Vendor that: (i) you have all the requisite authority to accept this Agreement, and install and/or use the DP Connect on the Devices, on behalf of any owners and users of those administered Devices; and (ii) you hereby accept this Agreement for and on behalf of: (A) any such owners and users of those administered Devices; and (B) yourself.

   • 5.3. The DP Connect app may enable you to publish or share publicly with others, content you have generated or obtained from other sources (“User Content”). You retain any and all intellectual property rights you already hold under applicable law in User Content you publish or share through the DP Connect, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of others in any User Content that you may use or modify. You grant to each member of the Vendor Group, a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and royalty-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, adapt, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of the User Content you publish or share through DP Connect (and derivative works thereof), solely for the purpose of providing DP Connect to you under this Agreement. Each time you publish or share any User Content, you represent and warrant to each member of the Vendor Group that you are at least the age of majority in the state or jurisdiction in which you reside, in regard to that User Content: (i) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to publish and share the User Content and grant each member of the Vendor Group the right to use it as described in this Section 5.3, all without any obligation being imposed on any member of the Vendor Group to obtain the consent of any third party and without creating any obligation or liability whatsoever for any member of Vendor Group; (ii) the User Content is accurate; (iii) the User Content does not and, as to each member of the Vendor Group’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; and (iv) the User Content will not violate this Agreement or cause injury or harm to any person.

6. LIMITED WARRANTY; DISCLAIMER AND EXCLUSION OF LIABILITY

   • 6.1. Subject to the remainder of this Section 6, Vendor warrants to you that DP Connect will perform, or will be performed, substantially in accordance with the Documentation for a period of 30 days following your initial acquisition of DP Connect. To make a warranty claim, you must follow the instructions provided by the source from which you acquired the DP4 and DP Connect app. If the DP Connect does not perform substantially in accordance with the Documentation, the entire and exclusive liability of each member of the Vendor Group and each Vendor Partner, and your sole and exclusive remedy, in respect of such warranty will be limited to, at Vendor’s option, to either: (i) replacement of DP Connect; or (ii) return of DP Connect to obtain a refund for the portion of the subscription fee. This warranty applies only to DP Connect app as originally delivered, and does not apply to: (i) any Updates; (ii) any defects caused by the combination, operation or use of the DP Connect with: (A) software, hardware or other materials not provided by Vendor; or (B) Devices, software, or other materials that do not conform to Vendor requirements set forth in the Documentation.

   • 6.2. EXCEPT AS STATED IN SECTION 6.1 OF THIS AGREEMENT, MEMBERS OF THE VENDOR GROUP AND VENDOR PARTNERS DO NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING ANY DP CONNECT OR DOCUMENTATION. EXCEPT AS STATED IN SECTION 6.1 OF THIS AGREEMENT, DP CONNECT IS PROVIDED “AS IS” AND MEMBERS OF THE VENDOR GROUP AND VENDOR PARTNERS MAKE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS IMPLIED BY STATUTE, COMMON LAW, JURISPRUDENCE OR OTHER THEORIES OF LAW, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, SUITABLE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. VENDOR DOES NOT WARRANT THAT THE OPERATION OF DP CONNECT WILL BE UNINTERRUPTED OR ERROR FREE, THAT DP CONNECT WILL WORK PROPERLY ON ANY GIVEN DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF HARDWARE AND/OR SOFTWARE, OR THAT DP CONNECT WILL PROVIDE COMPLETE PROTECTION FOR THE INTEGRITY OF SELECTED DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.

   • 6.3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DP CONNECT PROVIDED TO YOU WITHOUT FEES (INCLUDING DP CONNECT PROVIDED AS A “FREE,” “TRIAL” OR “BETA” DP CONNECT) IS PROVIDED ON AN “AS IS”, “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT SUPPORT OR OTHER SERVICES BY VENDOR.

   • 6.4. TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT WILL VENDOR OR ANY COMPANY THAT CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH VENDOR (COLLECTIVELY, THE “VENDOR GROUP”) OR THEIR RESPECTIVE AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK OR SYSTEMS DP CONNECT IS PROVIDED, OR ANY OTHER BUSINESS PARTNER OF ANY MEMBER OF THE VENDOR GROUP (COLLECTIVELY, THE “VENDOR PARTNERS”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR:

     • 6.4.1. ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY;

     • 6.4.2. ANY DAMAGES FOR ANY LOSS OF BUSINESS, PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY DEVICE OR DP CONNECT (INCLUDING DP CONNECT APP), WASTED EXPENDITURE, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS, SERVICES OR DIGITAL PRODUCTS, BUSINESS INTERRUPTION, ANY UNAUTHORIZED DISCLOSURE OR LOSS (INCLUDING ANY CORRUPTION, DEGRADATION OR UNAVAILABILITY) OF ANY DATA OR INFORMATION OF ANY NATURE (WHETHER OR NOT ANY OF THE FOREGOING LOSSES, DAMAGES, COSTS OR EXPENDITURE ARE DIRECT OR INDIRECT LOSSES OR DAMAGES); OR

     • 6.4.3. ANY OTHER PECUNIARY OR NONPECUNIARY LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR DP CONNECT PROVIDED HEREUNDER;

   • EVEN IF SUCH MEMBER OF THE VENDOR GROUP OR VENDOR PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, NO MEMBER OF THE VENDOR GROUP OR ANY VENDOR PARTNER WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE (WHETHER DIRECT OR INDIRECT) FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, DEGRADATION, UNAVAILABILITY, ERASURE, THEFT, DESTRUCTION, ALTERATION, DISCLOSURE OR LOSS OF ANY DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED BY OR IN CONNECTION WITH ANY DP CONNECT REGARDLESS OF THE CAUSE. TO THE FULL EXTENT PERMITTED BY LAW, IN NO CIRCUMSTANCES WILL ANY MEMBER OF VENDOR GROUP OR ANY VENDOR PARTNER’S TOTAL AGGREGATE LIABILITY FOR ALL LOSS OR DAMAGE TO YOU OR ANY THIRD PARTY ARISING FROM OR RELATING TO DP CONNECT, THE SUBSCRIPTION OR THIS AGREEMENT EXCEED THE GREATER OF: (I) FIVE DOLLARS AUD (AUD$5.00); AND (II) THE AMOUNT OF THE SUBSCRIPTION FEES YOU HAVE PAID FOR THE IMMEDIATELY PRECEDING 12 MONTHS OF THE SUBSCRIPTION TERM.

     6.5. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY OF MEMBERS OF THE VENDOR GROUP AND VENDOR PARTNERS CONTAINED IN THIS AGREEMENT WILL NOT LIMIT OR EXCLUDE THEIR POTENTIAL LIABILITY FOR:

     • 6.5.1. DEATH, PERSONAL INJURY OR FRAUD BEYOND THE EXTENT PERMITTED BY APPLICABLE LAWS; AND

     • 6.5.2. ANY MATTER THAT MAY NOT OTHERWISE BE LIMITED OR EXCLUDED BY APPLICABLE LAWS.

7. PRIVACY; PROCESSING OF PERSONAL AND OTHER INFORMATION

   • 7.1. You acknowledge and agree that the DP Connect app may communicate automatically with Vendor’s cloud-based technology to function, and to make the DP Connect and other Vendor products and services more effective. You may withdraw your consent to such communication only by uninstalling and/or deactivating the DP Connect app.

   • 7.2. Vendor processes certain information and data (which may include personally identifiable information and/or personal data) relating to: (i) the user of the DP Connect app and/or any Device on which the DP Connect app is used; (ii) the DP Connect app and/or any Device on which the DP Connect app is used. Vendor’s applicable privacy policy which you can find here describes how Vendor collects, uses and otherwise processes such information and data.

   • 7.3. You authorize the Vendor to use, copy, store, and transmit your information and data in order to provide DP Connect to you, to develop and improve the DP Connect app, and to implement Vendor’s disaster recovery and business continuity plans.

8. TERMINATION

   • 8.1. This Agreement will immediately terminate upon your breach of any of your obligations in this Agreement (including any breach of your obligations in Sections 2, 5 or 9, which will result in forfeiture of any rights you may have to receive Updates or to obtain a refund for the portion of the subscription fee you have paid for the unexpired or unused portion of the Subscription Term). Vendor reserves the right to any other remedies available under law in the event your breach of any of your obligations under this Agreement adversely affects any member of the Vendor Group or any Vendor Partner. The exclusions and limitations of liability of members of the Vendor Group and Vendor Partners contained in this Agreement will survive termination of this Agreement.

   • 8.2. Vendor, by notice to you, may immediately terminate this Agreement for convenience at any time with respect to the DP Connect app or all DP Connect associated products and the entire and exclusive liability of each member of the Vendor Group and each Vendor Partner, and you will have no recourse or remedy for any loss. From the effective date of such termination you will no longer be entitled to use any affected DP Connect app version and Documentation.

9. BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

   • 9.1. This Section 9 applies to any Dispute arising from or related to the DP Connect app, subscription for any DP Connect or this Agreement, and involving you and Vendor. “Dispute,” for the purposes of this Section 9, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, misrepresentation or fraud, indemnification, tort (including negligence) violation of statute or regulation).

   • 9.2. In the event of a Dispute, you must provide Vendor with a notice of Dispute, which is a written statement of your name, address and contact information, the facts giving rise to the Dispute, and the relief requested by you. You must send any notice of Dispute by email to Vendor at shaun.kerrigan@fecclaw.com (stating Subject: Section 9 Notice of Dispute Under EULA).

   • 9.3. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.

   • 9.4. If you and Vendor do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration governed by commercial arbitration rules. Except as provided in Section 9.5 below, you are giving up the right to litigate (or participate in litigation as a party or class member) all Disputes in court before a judge. Instead, all Disputes will be resolved before a neutral arbitrator. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

   • 9.5. The arbitration requirement of this Section 9 is subject to the following exceptions:

     • 9.5.1. You may litigate any Dispute in small claims court, in the county or other similar political subdivision in which you reside, if the Dispute meets all requirements to be heard in the small claims court. If you initiate a claim in small claims court, you are responsible for all court costs and fees including the vendors attorneys fees.

     • 9.5.2. All Disputes concerning any alleged misappropriation of your or Vendor’s intellectual property will be resolved in court.

     • 9.5.3. If you are a consumer and live in the European Union, Norway, Iceland or Lichtenstein, you may be entitled to address your Dispute through an internet platform for online dispute re DP Connect established by the European Commission (the “ODR Platform”). The ODR Platform is intended to facilitate out-of-court reDP Connect relating to online purchases of goods and services between consumers and traders based in the European Union, Norway, Iceland and Lichtenstein. You will find the ODR Platform by following this link: http://ec.europa.eu/consumers/odr/.

10. GENERAL

    • 10.1. Notice. Vendor may at any time deliver any notice to you via electronic mail, pop-up window, dialog box or other means, even though in some cases you may not receive the notice unless and until you launch a DP Connect. Any such notice will be deemed delivered on the date Vendor first makes it available through a DP Connect, irrespective of when you actually receive it.

    • 10.2. Questions About This Agreement. If you have any questions regarding this Agreement or wish to request any information from Vendor, please write to Dermapenworld Building 2, 283 Mona Vale Road Terrey Hills NSW Australia 2084, e-mail: info@dermapenworld.com, tel.: +61 9889 3636 or visit our support page at www.dermapenworld.com/support.

    • 10.3. Separate Agreements. If you acquired two or more DP Connect, even in a single transaction, or you acquired subscriptions to any one DP Connect in multiple transactions, you may have accepted this End User License Agreement multiple times. Although the terms and conditions you accepted may be similar or identical, each time you accepted the terms and conditions of this End User License Agreement you entered into a different and separate agreement between you and the Vendor providing the applicable DP Connect.

    • 10.4. Entire Agreement. This Agreement constitutes the entire agreement between you and Vendor relating to your use of the DP Connect and Documentation. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, statements, warranties and representations with respect to your installation and/or use of the DP Connect or Documentation. Notwithstanding the foregoing, nothing in this Agreement will diminish any rights you may have under existing consumer protection legislation or other applicable laws in your jurisdiction that may not be waived by contract. This Agreement, the Applicable Conditions and the Documentation, to the greatest extent reasonably practicable, will be construed to be consistent with each other, but in the event of a conflict they will govern in the following order of precedence: (i) the Applicable Conditions; (ii) this Agreement; and (iii) the Documentation.

    • 10.5. Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. The words “includes” and “including” will be construed as followed by the words “without limitation.” Any reference to “use” of any software, DP Connect or Update by you shall be deemed to include any installation of any such software, DP Connect or Update by you (unless the context otherwise requires). This Agreement was originally prepared in the English language. Although Vendor may provide one or more translated versions of this Agreement for your convenience, the English language version of this Agreement will be the governing version of this Agreement in the case of any conflict or discrepancy. In the event that an ambiguity or question of intent or interpretation arises, in any judicial proceeding or otherwise, the terms of this Agreement will be construed as having been drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

    • 10.6. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any applicable laws, it shall to that extent be deemed not to form part of this Agreement but the remainder of this Agreement will remain valid and enforceable to the greatest extent permitted by applicable law.

    • 10.7. Impossibility. Vendor will not be liable for any failure or delay in performance, due in whole or in part, to utility failures (including power), failure of the internet, failure of telecommunications or information technology services, failure of telecommunications or information technology equipment, strikes or other labour disturbances (including without limitation a strike or other labour disturbance arising in respect of any members of the Vendor Group or any Vendor Partners), acts of war or terror, denial of service attacks or other information technology attacks or breaches affecting any member of the Vendor Group or any Vendor Partner, floods, sabotage, fire, other natural disasters or Acts of God, or any other cause beyond any member of Vendor Group or Vendor Partner’s reasonable control.

    • 10.8. Waiver. The failure of either party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with this Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.

    • 10.9. Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of Vendor. Vendor may assign this Agreement at any time in its sole discretion without any prior written consent by you.

    • 10.10. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any person other than you, members of the Vendor Group and Vendor Partners, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No person other than you, Vendor and members of the Vendor Group may bring a cause of action pursuant to this Agreement. Vendor will be entitled (but not obligated) to enforce any rights, remedies, limitations and exclusions of liability, and legal defences of any member of Vendor Group or Vendor Partner under this Agreement, including any rights and remedies for any loss, damage or claim suffered or incurred by any member of Vendor Group or Vendor Partner: (i) arising from or in connection with any failure by you to comply with any term or condition of this Agreement; or (ii) you are required to indemnify under this Agreement. No such loss, damage or claim will be deemed excluded as indirect, consequential or incidental loss or damage under Section 6.4.1 as a result of such loss, damage or claim having been suffered or incurred by another member of Vendor Group or Vendor Partner rather than by Vendor.

    • 10.11. Governing Law. The governing law of this Agreement will be the substantive law of the State of NSW Australia. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.

    • 10.12. Internet connection. Certain DP Connect may require an active and stable connection to the Internet in order to function. It is therefore your responsibility to ensure that you have at all times an active and stable Internet connection. This includes an active and stable Bluetooth connection.

    • 10.13. Product names. Vendor from time to time may change the name of a DP Connect, or change the name or logo applied to the DP Connect to the name or logo of another member of the Vendor Group or a Vendor Partner. These changes do not alter your subscription for any DP Connect, the Subscription Term or this Agreement, and do not give you any right to terminate your subscription/agreement for a DP Connect, the Terms or this Agreement.

11. SPECIAL TERMS

    • 11.6. Mobile Apps. This Section 13.6 applies to any DP Connect intended for use on Mobile Devices.

      • 11.6.1. For any DP Connect downloaded from Google Play (http://play.google.com), the license granted by this Agreement is in lieu of any rights to use a DP Connect that would otherwise be granted by the default terms for applications downloaded from the Google Play Store.

      • 11.6.2. For any DP Connect downloaded from the Apple App Store, the following terms apply:

        • (a) The licenses granted by this Agreement are limited to a non-transferable license to use the DP Connect on any iPhone, iPod Touch or other Apple-powered Device that you own or control and as permitted by the Usage Rules set forth in the Apple App Stores Terms of Service, available online at http://www.apple.com/legal/internet-services/itunes/us/terms.html or through such sites and other means made available to you by Apple.

        • (b) This Agreement is concluded solely between the parties, and not with Apple. Vendor, not Apple, is solely responsible for the DP Connect and the content of such DP Connect.

        • (c) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the DP Connect.

        • (d) If the DP Connect fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the DP Connect to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the DP Connect, and that, as between you, Vendor and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Vendor’s sole responsibility.

        • (e) Vendor, not Apple, is responsible for addressing any claims by you or any third party relating to the DP Connect or your possession and/or use of that DP Connect, including: (i) product liability claims; (ii) any claim that the DP Connect fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

        • (f) In the event of any third party claim that the DP Connect or your possession and use of that DP Connect infringes that third party’s intellectual property rights, Vendor, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

        • (g) You must comply with any applicable third party terms when using the DP Connect. For example, for a VOIP DP Connect, you must not violate your wireless data service agreement when using the DP Connect.

        • (h) Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and, on your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.

      • 11.6.3. For DP Connect downloaded from the Amazon Appstore, Amazon may designate certain customer terms of use for the Amazon Appstore as “Default EULA Terms.” Those Default EULA Terms will apply to your use of DP Connect you purchase through the Amazon Appstore. The Default EULA Terms will specify, among other things, that Vendor is the licensor of the DP Connect and Amazon is not a party to this Agreement. If there are any conflicts between the Default EULA Terms and this Agreement, then to the extent of such conflict the Default EULA Terms will govern and take precedence. Amazon does not have any responsibility or liability related to compliance or non-compliance by Vendor or you with the Default EULA Terms.