1.1 ‘3Shape’ means the legal entities 3Shape TRIOS A/S, business reg. no. 33 36 87 71, Holmens Kanal 7, 1060 Copenhagen, Denmark and 3Shape A/S, business reg. no. 25 55 34 89, Holmens Kanal 7, 1060 Copenhagen, Denmark.
1.2 ‘3Shape Account’ means the identity provider for 3Shape Software and is used by 3Shape for authentication (user identity verification) and authorisation (access management) feature where the Customer registers its details (entity, address, country, etc.).
1.3 ‘3Shape Account Company’ is a registration of the official site (physical site) to which any 3Shape Account belongs. Patient data, usage data, licenses, user management and lab connections will be grouped under the 3Shape Account Company.
1.4 ‘3Shape Cloud’ means a distributed collection of servers that host software, data and infrastructure and may be accessed through the internet which is administered by 3Shape and provided to the Customer by 3Shape, but which is powered by 3Shape’s external cloud storage provider which may change from time to time.
1.5 ‘3Shape Entity’ means any legal entity (i.e. a legal person such as, but not limited to, a company) that is controlled, directly or indirectly, by the company 3Shape Holding A/S (CVR no. 31 47 32 33), Holmens Kanal 7, 1060 Copenhagen K, Denmark. The verb "control" shall for purposes of this definition be understood to mean, in relation to a legal entity:
1.6 ‘3Shape Software’ means any software which is developed and/or owned by 3Shape or any other 3Shape Entity and is placed on the market by 3Shape or any other 3Shape Entity. For the avoidance of doubt, the concept of 3Shape Software includes without limitation any customizations and extensions developed by 3Shape and/or any 3Shape Entity to the aforesaid software.
1.7 ‘Confidential Information’ means information as defined in Section 10.
1.8 ‘Customer’ means any physical person or legal entity that has acquired a right from 3Shape to use the 3Shape Software.
1.9 ‘Designator’ means the legal entity designating a subscription through 3Shape Account.
1.10 ‘Designee’ means the legal entity who is designated, i.e. receives, licenses under a subscription through 3Shape Account, i.e. is granted access to the 3Shape Software.
1.11 ‘Diagnostic Features’ means software features with diagnostic capabilities, i.e. features that provide indications or patient suggestions on the basis of the digital version of an intra-oral 3D scan.
1.12 ‘Dongle Technology’ means that a physical dongle is used by the Customer for license authentication and/or subscription identification purposes.
1.13 ‘DSO’ means a dental service organization consisting of a chain of dental clinics, regardless of its organizational structure (including, without limitation, common ownership, franchise, or other partnership).
1.14 ‘End User’ shall mean anyone using the 3Shape Software on behalf of the Customer, e.g. employees of the Customer.
1.15 ‘Force Majeure’ means incidents as defined in Section 19.
1.16 ‘Know-how’ means all ideas, concepts, schemes, information, knowledge, techniques, methodology and anything else of the same nature related to the 3Shape Software.
1.17 ‘Input Data’ shall mean all information inserted by the Customer (e.g. account information, treatment information or patient information) or imported/uploaded by the Customer (e.g. scan data) to the 3Shape Software, including scan data from patient treatments, dental treatment and diagnostics data and patient identifier data.
1.18 ‘IPR’ means any patent, utility model, copyright, trade name, trademark or service mark, any application to register any of the aforementioned rights, any right in the nature of the aforementioned rights, trade secrets, rights of attribution, integrity and similarly afforded “moral rights”, rights in unpatented Know-how, inventions and technology, and any other intellectual or proprietary rights of any nature whatsoever in any part of the world.
1.19 ‘Library Materials’ means libraries found in the 3Shape Software with material available to the Customer for its use, either free or payable, and made available either by 3Shape or by 3Shape’s licensors, such as: (i) tooth libraries with 3D tooth examples; (ii) libraries with default 3D crowns, bridges or implants; or (iii) similar treatment related materials.
1.20 ‘Malicious Code’ means code, files, scripts, agents or programs intended to do harm, including, inter alia, viruses, worms, time bombs and Trojan horses.
1.21 ‘Ortho System’ means the orthodontic software suite Ortho System - including but not limited to the software products Ortho Analyzer, Ortho Planner, Clear Aligner Studio, Appliance Designer and Indirect Bonding Studio - developed by 3Shape.
1.22 ‘Party’ means 3Shape and the Customer referred to individually.
1.23 ’Parties’ means 3Shape and the Customer referred to collectively.
1.24 ‘Patient Data’ means treatment related information such as dental scans, dental scan information, patient address, patient dental health information, dental treatment indications and dental diagnostics information.
1.25 ‘Private Label’ means that 3Shape Software has been sold to the Customer with a brand/label other than 3Shape, i.e. the brand/label of a reseller or other dental company, either alone or in addition to one or more 3Shape brands/labels (so-called dual-branding).
1.26 ‘Private Label Reseller’ means an entity that has a right – according to an agreement with 3Shape - to sell, resell, lend out or in any other way distribute 3Shape Software under a Private Label.
1.27 ‘Sanctions Regimes’ means any local, regional or national sanction regime that may regulate import/export/use of certain products or technologies, including but not limited to the EU Sanctions Regime which is part of EU’s Common Foreign and Security Policy, and which includes the EU dual-use export controls, and the U.S. export controls and sanctions regimes, including the Export Administration Regulation (EAR).
1.28 ‘Terms’ means the general license terms and conditions for 3Shape software as set out in this document.
2.1 Right to Use: Subject to these Terms, 3Shape grants to the Customer a non-exclusive, non-transferable, geographically limited, non-sublicensable, revocable license to access and use the 3Shape Software. All rights not expressly granted to Customer shall be reserved by 3Shape and its licensors.
2.2 Time Limitation: The Customer may have acquired either a time-limited or perpetual right to use the 3Shape Software. If a time-limited right to use the 3Shape Software has been acquired, the Customer’s access to the 3Shape Software shall automatically cease after expiration of such time period. In such case, it is the Customer’s responsibility to ensure that any data provided to 3Shape Cloud, and which the Customer wants to continue to have access to, is downloaded by the Customer to the Customer’s own local device prior to such cessation.
2.3 Seat Limitations: Certain licenses may have seat limitations, i.e. a limit on how many End Users can use the 3Shape Software at the same time. This would appear from the setting/license information in the 3Shape Software. 3Shape reserves the right to monitor that seat limitations are adhered to and implement the necessary control features in such regard.
2.4 Intended Use: The use permitted shall not extend beyond use of the Software for such purpose(s) as the 3Shape Software is, pursuant to official product descriptions of the 3Shape Software and/or an official user manual for the 3Shape Software, intended to be used for.
2.5 Limitations on Use:
2.6 Distribution: Depending on the type of software and the version, the 3Shape Software may be distributed and accessed through one of the following means, all of which shall be subject to these Terms:
2.7 Online/offline use: The 3Shape Software may be used when online. Certain functionalities may also be available when the user is temporarily offline. 3Shape reserves the right to make changes to offline use with immediate effect and without prior notice, and 3Shape similarly reserves the right to prompt the user to authenticate online.
2.8 User Authentication: 3Shape may implement user authentication measures to ensure that the Customer does not share access rights to the 3Shape Software in violation of these Terms and that the 3Shape Software is not accessed by the Customer in geographic locations where (i) the Customer has not acquired such access rights; (ii) the 3Shape Software does not have the necessary regulatory approval; or (iii) where the 3Shape Software may not be launched due to Sanctions Regimes. 3Shape may establish such user authentication measures by the use of Dongle Technology; through control measures in the 3Shape Cloud; multi-factor authentication; captcha technology; or by other means.
2.9 End Users: Customer shall be fully liable for any End User(s) that is/are using the 3Shape Software on behalf of the Customer, e.g. employees of the Customer. Acceptance of these Terms by the Customer shall mean that these terms are also applicable to the End Users. Any obligations related to the Customer’s use of the 3Shape Software shall equally apply to the End Users’ use of the 3Shape Software.
3.1 Ownership: All rights, including any and all IPR, to any 3Shape Software are owned by 3Shape. All rights to Library Materials shall be owned either by 3Shape or 3Shape’s licensors having granted to 3Shape a license to distribute the Library Materials.
3.2 Input Data: The Customer shall retain IPR to all Input Data. See Data Section below for further info.
3.3 Feedback: The Customer grants to 3Shape a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the 3Shape Software any suggestion, enhancement, request, recommendation, correction or other feedback provided by the Customer relating to the 3Shape Software or any other 3Shape product.
4.1 Types of Data: 3Shape obtains information on the Customer and the Customer’s use of 3Shape Software, including the following (“Data”):
4.2 Encryption: 3Shape shall use reasonable commercial efforts to ensure proper encryption of Data, both stored in 3Shape Cloud and/or on local devices and in transmission. The Customer is aware that emails with patient data sent to the Customer as notifications cannot be encrypted, and, to the extent that the Customer chooses to enable this voluntary functionality, the Customer shall accept any risk in such regard.
4.3 Ownership: All Input Data shall belong to the Customer. All usage statistics data collected by 3Shape shall belong to 3Shape.
4.4 Right to Use Input Data: To the maximum extent permitted by law, 3Shape reserves the right to use Input Data for commercial, technical, statistical and product development purposes. 3Shape shall anonymise the Input Data (i) if required to do so by law; or (ii) whenever personal data are not needed to achieve the purpose.
4.5 PATIENT CONSENT: THE CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING AND KEEPING THE CONSENT FROM PATIENTS THAT IS NECESSARY FOR PROVIDING PATIENT DATA TO 3SHAPE, INCLUDING BUT NOT LIMITED TO PROVIDING ANONYMISED PATIENT DATA TO 3SHAPE OR EXTERNAL PARTIES VIA THE 3SHAPE SOFTWARE. ON WRITTEN REQUEST FROM 3SHAPE, THE CUSTOMER SHALL PROVIDE COPIES TO 3SHAPE OF SUCH PATIENT CONSENT, INCLUDING BUT NOT LIMITED TO THE SITUATION WHERE 3SHAPE IS OBLIGATED TO PROVIDE COPIES OF SUCH CONSENT TO AUTHORITIES.
4.6 Patient Data in 3Shape Account: Patient Data is coupled to 3Shape Account such that anyone who has access to 3Shape Software allocated to a particular 3Shape Account also per se has access to the Patient Data uploaded from that 3Shape Account. IT IS THE RESPONSIBILITY OF THE CUSTOMER TO SET UP AND MANAGE THE 3SHAPE ACCOUNT SO THAT NO OTHER LEGAL ENTITIES OR PHYSICAL PERSONS HAVE ACCESS TO PATIENT DATA UPLOADED BY THE CUSTOMER. THE CUSTOMER MAY NOT SHARE A 3SHAPE ACCOUNT ACROSSS DIFFERENT LEGAL ENTITIES.
5.1 Background: 3Shape may choose from time to time, e.g. as part of a launch of new versions or features, to provide a beta version (“Beta”) to certain Customers who have agreed to act as beta testers for 3Shape on a voluntary or consultancy basis.
5.2 Beta Condition: The Customer acknowledges and agrees that:
5.3 Customer Responsibilities: The Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the 3Shape Software in Beta. The Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of the Customer’s use of the 3Shape Software in Beta.
5.4 BETA WARRANTIES: 3SHAPE MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, THAT BETA PRODUCTS, INCLUDING ANY SERVICES RELATED THERETO OR RESULTS THEREOF, WILL WORK AS REQUIRED OR REQUESTED BY THE CUSTOMER. 3SHAPE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WHETHER BY STATUTE, CUSTOM, USAGE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT OR MERCHANTABILITY. TESTER BEARS THE SOLE RESPONSIBILITY AND RISK FOR ITS AND ITS REPRESENTATIVES’ USE OF AND RELIANCE ON THE BETA PRODUCTS.
6.1 Updated 3Shape Account: The Customer shall be responsible for keeping the Customer’s information in 3Shape Account updated at all times. It is the Customer’s responsibility that the information in 3Shape Account is correct and updated. Non-correct information may be a violation of regulatory and/or sanctions legislation and 3Shape reserves the right to terminate subscriptions, licenses and 3Shape Account with immediate effect and without notice.
6.2 Subscriptions linked to 3Shape Account: All subscriptions to the 3Shape Software shall be linked to a particular 3Shape Account in order to function. One 3Shape Account may have several subscriptions linked to it.
6.3 Inactivity: 3Shape reserves the right to de-activate or delete inactive accounts. De-activated accounts can be opened by contacting 3Shape Support, see Section 13. Accounts will only be deleted after minimum 6 (six) months of inactivity and a prior email notification from 3Shape to the account holder.
7.1 3Shape Account Company: For each site (physical location), a 3Shape Account Company must be set up and used.
7.2 Corporate Groups: Customers can link up and enable one 3Shape Account Company to control another 3Shape Account Company’s usage data, user management, and lab connections (not patient data). The immediate link will be subject to mutual consent. Further 3Shape Account Companies joining the group – which may equally view usage data and manage users and lab connections - may only trigger a notification. This functionality is meant for DSOs, and 3Shape shall have no liability for its use.
7.3 Data Sharing with 3Shape Accounts: Patient data, usage data, licenses, user management and lab connections may be shared between 3Shape Account users which belong to the same 3Shape Account Company.
7.4 Compliance: Customers that connect one 3Shape Account Company with another 3Shaoe Account Company - for the purpose of sharing data, user management and lab connections - shall comply with all applicable legislation, including but not limited to regulatory requirements, HIPAA and data privacy laws. Specifically, users and licenses belonging to a 3Shape Account Company may not be delegated to anyone outside of that 3Shape Account Company.
8.1 Designation: 3Shape may enable the designation of a subscription by the account holder of the subscription. Designation means that the license(s) (access to the 3Shape Software) is designated, made available, from one 3Shape Account (the Designator) to another 3Shape Account (the Designee). Designation is between 3Shape Accounts on company level.
8.2 Terms and Liability: In case of designation, both the Designator and the Designee shall be subject to these Terms. The Designator shall at all times be fully and directly liable for any violations of these Terms by the Designee.
8.3 Restrictions: 3Shape reserves the right to put limitations to designation in place without prior notice. Such limitation could include geographic limitations and limitations to the frequency of designation.
8.4 Termination: 3Shape reserves the right to shut down the Customer’s right to designate immediately and without notice, including but not limited to cases of misuse.
9.1 Liability for Diagnostic Features: 3Shape Software include Diagnostic Features. Diagnostic Features shall only be considered suggestive in nature, and the End User shall always verify the suggestions or indications provided by the Diagnostic Features. The End User maintains the full liability for the patient treatment, regardless of any use of Diagnostic Features. Diagnostic Features are provided “as is” and 3Shape does not provide any guarantees, warranties or representations relating to the accuracy of the output of any Diagnostic Feature.
9.2 Territorial restriction: The End User may only use Diagnostic Features in the country where the End User is registered and has purchased the 3Shape Software. The End User acknowledges that 3Shape may not have obtained regulatory approval for Diagnostic Features in all countries globally.
10.1 Liability: 3Shape shall have no liability for any modifications of the 3Shape Software that have been done by or on behalf of any Private Label Reseller, and 3Shape shall have no liability for any data, text, visuals, advertisements or any other types of information provided by a Private Label Reseller to the Customer. Further, 3Shape disclaims any liability for data, text, visuals, advertisements, or any other information types provided by a Private Label Reseller to the Customer.
11.1 Data Transfers: 3Shape Software includes a functionality implying that data within the software is automatically sent to 3Shape. The Customer acknowledges and accepts that product information concerning performance and usage of the Software is automatically sent to 3Shape.
11.2 Usage of Transferred Data: 3Shape may use any such transferred data for support, statistics, product development, software subscription compliance, improvements of 3Shape Software and for regulatory purposes. 3Shape also uses product information concerning performance and usage to analyze and understand the usage of the 3Shape Software, for statistical purposes, and for purposes of improving the 3Shape Software in relation to the needs of 3Shape's customers.
11.3 Sharing of Transferred Data: For the purpose of providing sufficient training, optimizing usage, and providing better support to the Customer, 3Shape may share data concerning performance and usage of the products with:
11.4 Confidentiality and Privacy: Any transferred data is handled with confidentiality and in accordance with 3Shape’s Privacy Policy: https://support.3shape.com/privacy-compliance-center/privacy-policy.
12.1 Right to change: 3Shape reserves the right to make changes, modifications and enhancements to the 3Shape Software without notice. Such changes may both involve changes to the software and features and changes in the information or content facilitated through the 3Shape Software. 3Shape explicitly does not promise any future functionality or features, and 3Shape does not warrant that any current features or functionality will be preserved in subsequent updates.
12.2 Upgrading: As part of making such changes, 3Shapes reserves the right to force the Customer to upgrade to a new version. 3Shape shall use commercially reasonable efforts to inform the Customer of any changes or updates that have a significant impact on the Customer’s use of the 3Shape Software. Upgrades, including forced upgrades, may require that the Customer upgrades its computer hardware and operating system.
13.1 Confidential Information: The term “Confidential Information” shall be defined to include all information whether or not marked or identified as confidential by 3Shape, which is used in the business of 3Shape and which includes all oral, written and machine readable information and data, including but not limited to the following types of information:
13.2 Exclusions: Confidential Information shall not include information that:
13.3 Period of Confidentiality: The Customer agrees not to disclose Confidential Information for as long as the Customer has access to the 3Shape Software, and for a period of 3 (three) years thereafter.
14.1 LIMITATION OF WARRANTIES: THE 3SHAPE SOFTWARE IS PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS, WITH THE SOLE EXCEPTION(S) THAT FOLLOW EXPLICITLY FROM THIS SECTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3SHAPE PROVIDES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN PARTICULAR, 3SHAPE DOES NOT WARRANT THAT:
14.2 TRANSFER OF DATA: THE CUSTOMER ACKNOWLEDGES THAT 3SHAPE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE 3SHAPE SOFTWARE, INCLUDING 3SHAPE CLOUD, MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. 3SHAPE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
14.3 ATTACKS AND INTRUSION: 3SHAPE DOES NOT REPRESENT OR WARRANT THAT THE 3SHAPE SOFTWARE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE CUSTOMER HEREBY RELEASES 3SHAPE FROM ANY LIABILITY RELATING THERETO.
14.4 MALICIOUS CODE: THE PARTIES REPRESENT AND WARRANT THAT THE PARTIES SHALL TAKE COMMERCIALLY REASONABLE ACTIONS AND PRECAUTIONS TO PREVENT THE INTRODUCTION AND PROLIFERATION, AND REDUCE THE EFFECTS, OF ANY MALICOUS CODE INTO THE 3SHAPE SOFTWARE. IF ANY MALICOUS CODE IS DETECTED, AND SUCH MALICIOUS CODE HAS BEEN INTRODUCED AS A RESULT OF 3SHAPE’S GROSS NEGLIGENCE OR WILFUL CONDUCT, 3SHAPE SHALL USE COMMERCIALLY REASONABLE ENDEAVOURS TO REMOVE SUCH MALICIOUS CODE WITHOUT UNDUE DELAY AND AT NO COST TO THE CUSTOMER. 3SHAPE’S LIMITED OBLIGATION TO REMOVE IS THE CUSTOMER’S ONLY REMEDY FOR MALICIOUS CODE.
14.5 CUSTOMER OR THIRD PARTY CONTENT OR APPLICATIONS: 3SHAPE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE 3SHAPE SOFTWARE THAT ARISE FROM THE CUSTOMER’S CONTENT OR APPLICATIONS, OR THIRD PARTY CONTENT OR APPLICATIONS. 3SHAPE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT OR APPLICATIONS, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR APPLICATIONS. THIRD PARTY APPLICATIONS AND CONTENT IN THIS REGARD SHALL INCLUDE THIRD PARTY APPLICATIONS AND CONTENT ACCESSIBLE THROUGH THE 3SHAPE SOFTWARE.
14.6 INTERNET DELAYS: THE 3SHAPE SOFTWARE, INCLUDING 3SHAPE CLOUD, MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATION. 3SHAPE IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES OR ANY DAMAGE RESULTING FROM SUCH PROBLEMS.
15.1 Legal power: The Customer warrants that the Customer has the legal power and authority to accept these Terms. The Customer further represents and warrants that the Customer has not falsely identified itself nor provided false information to gain access to the 3Shape Software.
15.2 Export control laws: The Customer acknowledges that the 3Shape Software may be subject to EU, U.S. and/or other countries’ export control laws, and the Customer represents and warrants that Customer is not a citizen of – and will not access the 3Shape Software from - an embargoed country under EU, U.S. and/or other countries’ export control laws.
16.1 3Shape may, at its discretion, offer separate support packages to the Customer, either free or subject to payment. For the avoidance of doubt, such support packages shall enable and enhance the Customer’s use of any intra-oral scanner together with the 3Shape Software, but shall not alter 3Shape’s warranties, liability or other obligations towards the Customer in relation to the 3Shape Software as regulated in these Terms.
16.2 The scope and pricing of such support packages shall be regulated separately, see inter alia terms for 3Shape’s current offerings (TRIOS Care, TRIOS Care Corporate and TRIOS Only) on https://www.3shape.com/en/services/trios-care/terms-conditions.
17.1 NO LIABILITY FOR INDIRECT DAMAGES: IN NO EVENT SHALL 3SHAPE BE LIABLE TO THE CUSTOMER OR ANY OTHER LEGAL OR PHYSICAL PERSON FOR ANY INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST REVENUE, LOST DATA OR OTHER SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THE 3SHAPE SOFTWARE, EVEN IF 3SHAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING EXCLUSION OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS.
17.2 CAP ON LIABILITY: THE MAXIMUM AGGREGATE LIABILITY OF 3SHAPE UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THE 3SHAPE SOFTWARE WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY THE CUSTOMER AND FURTHERMORE BE LIMITED TO THE LOWEST AMOUNT OF ANY OF THE FOLLOWING: (I) THE PAYMENTS MADE BY THE CUSTOMER FOR THE 3SHAPE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED; OR (II) EUR 10,000.00. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS.
17.3 BETA: 3SHAPE HAS NO LIABILITY OF ANY KIND FOR PRODUCTS OR SERVICES PROVIDED IN BETA.
17.4 Liability not disclaimed: Nothing herein shall exclude or limit 3Shape's liability for death or personal injury caused by its negligence; for fraud or fraudulent misrepresentation; for its own wilful conduct; or for any other liability that cannot, as a matter of law, be limited or excluded.
18.1 No warranty: 3Shape shall use reasonable efforts to secure the Customer’s data, including by way of back-up, but 3Shape does not provide any warranties or take on any liability in case of data loss, regardless of whether the data is stored by the Customer on a local device or in the 3Shape Cloud.
19.1 Liability for patient treatment: The Customer acknowledge that the professional duty to the patient in providing healthcare services lies solely with the healthcare professional and/or health care institution providing patient treatments, and that 3Shape or 3Shape Software do not replace or substitute them and do not in any way enter into any other healthcare relationship with patients. The Customer thus acknowledges that 3Shape shall not be liable for any patient treatments facilitated through the Customer’s use of the 3Shape Software, neither vis-à-vis the Customer nor vis-à-vis third parties, regardless of whether the patient treatments are provided by the Customer or by a third party.
20.1 Acceptable Use Standards: The Customer shall at all times strictly adhere to the acceptable user standards listed in Appendix 1 to these Terms.
21.1 Functionality: The functionality of the Ortho System software enables the Customer to manipulate a 3D visual model of a patient’s dentition by dragging and moving individual teeth in the model, whereby the User may explore how the visual appearance of the dentition may change if such tooth movements are implemented.
21.2 Disclaimer regarding Tooth Movements: Ortho System does not in any way attempt to check if any specific tooth movement or combination of tooth movements visualized in the software is actually possible to implement on the patient in real life. Manipulations visualized in the software may not be possible to implement in real life, e.g. because the teeth may not actually be moved as visualized. A visualization created in the software of any tooth movements may also be inaccurate, e.g. because such movements, if implemented in real life, might cause more or different effects than as shown in the visualization created within the software.
21.3 No 3Shape Liability for Implementation: Furthermore, Ortho System does not contain any functionality attempting to check whether any such real-life implementation attempt might result in damage, e.g. to the patient’s teeth or jaw. Any treatment attempt to implement on a patient a tooth movement or other manipulation visualized by way of the software should be planned and made only by a dental professional having with due diligence assessed whether the visualized manipulation can actually be implemented without causing damage to the patient.
21.4 Treatment Provider Solely Liable: The risks pertaining to any such treatment attempt shall be assumed entirely by the person carrying out the treatment. 3Shape disclaims any and all liability for the results of any treatment attempts made on the basis of the visualizations generated within the Ortho System software.
22.1 No Liability in case of Force Majeure: 3Shape shall be under no liability to the Customer in respect of anything which, in the absence of this provision, may constitute breach by 3Shape of the Terms arising by reason of force majeure, namely, circumstances beyond the control of 3Shape which shall include (but shall not be limited to) perils of the sea or air, fire, flood, drought, pandemic, epidemic, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts.
23.1 The Customer’s assignment: The Customer may not assign any rights nor obligations under these Terms or give or transfer its rights under the Terms, including access to the 3Shape Software, to any other individual or legal entity, unless specifically provided for elsewhere in these Terms.
23.2 3Shape’s assignment: 3Shape may assign its rights and obligations under these Terms, to any of its affiliates, i.e. legal entities under the same ultimate control as 3Shape.
24.1 No Waiver: Failure or neglect by 3Shape to enforce at any time any of the provisions of these Terms shall not be construed nor shall be deemed to be a waiver of 3Shape's rights under these Terms nor in any way affect the validity of the whole or any part of the Terms nor prejudice 3Shape's rights to take subsequent action.
24.2 Headings: The headings of the provisions contained herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the provisions of these Terms.
24.3 Severability: In the event that any of the provisions of these Terms shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such provision shall to that extent be severed from the remaining provisions which shall continue to be valid between the Parties to the fullest extent permitted by law.
25.1 Applicable Law: These Terms shall be governed, construed and enforced in accordance with the laws of Denmark excluding its conflicts of law provisions and the CISG.
25.2 Venue: Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the SCC Arbitration Institute. The seat of arbitration shall be Copenhagen, Denmark. The language to be used in the arbitral proceedings shall be English.
Appendix 1: Acceptable use standards
1.1 To help ensure a safe and productive environment, the Customer, and all End Users accessing the 3Shape Software, shall comply with the following acceptable use standards when using the 3Shape Software:
1.2 Further, the User, agrees NOT to do any of the following:
2.1 If the Customer experiences inappropriate behaviour or content, including, but not limited to, violations of these acceptable use standards, the Customer shall promptly report such inappropriate behaviour or content to 3Shape on: [email protected].