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3SHAPE SOFTWARE

GENERAL LICENSE TERMS AND CONDITIONS

The general terms and conditions set forth below apply to any 3Shape Software (as defined below), except as otherwise explicitly agreed with 3Shape (as defined below) or with anyone having proper authorization from 3Shape to agree such deviations.

A. GENERAL PROVISIONS

For purposes of this document (including Sections B and C below), the following definitions apply generally unless otherwise stated or clear from the context:

  1. - "3Shape" is defined in relation to any particular piece of 3Shape Software to mean the specific 3Shape Entity identified on or in the relevant 3Shape Software as the proprietor of the copyrights to that particular 3Shape Software.
  2. - "3Shape Entity" means any legal entity (i.e., a legal person such as, without limitation, 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, (i) the holding of a beneficial interest in the shares or similar equity interest representing more than 50% of the issued shares or equity interest in the capital of such legal entity; or (ii) the ability, by virtue of the holding of shares or the possession of voting power in or in relation to such legal entity or by virtue of any powers conferred by the articles of incorporation, bylaws or other document relating to such legal entity or the shareholders of such legal entity, to cause the affairs of such legal entity to be conducted in accordance with the wishes of the party who is thereby deemed to have control of such legal entity.
  3. - "3Shape Label" means any Label that is owned by a 3Shape Entity.
  4. - "3Shape Software" means any software which is developed and/or owned by a 3Shape Entity and is marketed by a 3Shape Entity or anyone authorized by the relevant 3Shape Entity to do so, no matter whether such software is only branded with one or more 3Shape Labels or it is OEM-branded/dual-branded such that the private Label of a third party that is not a 3Shape Entity appears on or in the software alone or in addition to one or more 3Shape Labels. For the avoidance of doubt, the concept of 3Shape Software includes without limitation any customizations and extensions developed by 3Shape to the aforesaid software.
  5. - "Interface" means any software or software component that enables a piece of 3Shape Software to communicate or interact with a non-3Shape hardware device and/or with non-3Shape software.
  6. - "Label" means any trademark, service mark, trade name, logo or other commercial or product designation.
  7. - "Library" means any set of files which contain a digitized representation of objects or functions.

All rights, including any and all intellectual property rights, to any 3Shape Software are owned by 3Shape (as defined above) and/or 3Shape's licensors.

Below, in Sections B and C, are two separate sets of terms and conditions (the 3Shape License Terms and the OEM Terms, respectively) pertaining to 3Shape Software. Only one set of terms and conditions can apply to you in any specific case. The determination of which set may apply is made as follows:

  1. - 3Shape License Terms (Section B below): In relation to any specific 3Shape Software product, the 3Shape License Terms apply if you have acquired a license to use that 3Shape Software product directly from 3Shape or from an authorized 3Shape reseller (meaning any legal or natural person authorized by 3Shape to market and resell licenses to the said 3Shape Software). Notwithstanding the foregoing, the 3Shape License Terms do not apply to you if the conditions for application of the OEM Terms are fulfilled (see immediately below); in such case, the OEM Terms apply instead.
  2. - OEM Terms (Section C below): In relation to any specific 3Shape Software product, the OEM Terms apply if (i) the 3Shape Software product in question is one which is OEM-branded/dual-branded such that the private Label of a third party that is not a 3Shape Entity appears on or in the software, either alone or in addition to one or more 3Shape Labels, (ii) the 3Shape Software in question is being licensed to you by a third party licensor that is not a 3Shape Entity, under license terms and conditions that are to be provided to you by the third party, and (iii) such third party licensor has proper authority from 3Shape to carry out such licensing of the 3Shape Software in question to you. In the event you are uncertain as to whether the above conditions are fulfilled – e.g. in a situation where the 3Shape Software in question is OEM-branded/dual-branded and is provided to you by a third party that is not a 3Shape Entity but you have not received from such third party any specific information on the terms and conditions of the applicable software license – please contact 3Shape to obtain clarification as to (a) whether the third party is properly authorized by 3Shape to provide licenses to the 3Shape Software in question and, if so, (b) whether any such licenses are governed by the 3Shape License Terms in Section B below or governed by separate license terms and conditions that are to be provided to you by the third party (in which case you are, in relation to 3Shape, bound by the OEM Terms in Section C below). For the avoidance of doubt, criterion (i) above shall not be deemed to be fulfilled if the private Label of a third party is used only in connection with the designation of separate components, e.g. Interfaces or Libraries, that are supplied as integrated into or bundled with the 3Shape Software in question.

The terms set out in Special Section I (as regards the 3Shape OrthoAnalyzerTM) and in Special Section II (as regards the 3Shape Software Implant Studio) shall constitute an integral part of both Section B and Section C, thus will apply (in relation to OrthoAnalyzerTM and Implant Studio, respectively), irrespective of whether it is Section B or Section C that applies to you in any specific case.

IN RELATION TO ANY SPECIFIC 3SHAPE SOFTWARE PRODUCT, IN CASE YOU HAVE NOT ACQUIRED A LICENSE TO THAT SOFTWARE PRODUCT (INCLUDING ANY REQUIRED SUBLICENSES) IN ANY OF THE WAYS DESCRIBED ABOVE, YOU DO NOT HAVE ANY RIGHT TO INSTALL OR USE THAT SOFTWARE PRODUCT.

B. 3SHAPE LICENSE TERMS

Where applicable (see Section A above), the following terms and conditions relating to the Software (as defined below) constitute an agreement between you (referred to below as a "Customer") and 3Shape (meaning the specific 3Shape Entity identified on or in the Software as the proprietor of the copyrights to the Software) which you must accept as a condition for your installation and/or use of the Software.

1. Definitions

1.1 The definitions listed below apply to these Standard License Terms and Conditions unless otherwise stated or clear from the context:

  1. 1.1.1 The "Agreement" means any agreement entered into between the Customer on the one hand and 3Shape or a 3Shape Reseller on the other hand regarding Customer’s purchase of one or more Software Licenses. Unless otherwise explicitly agreed in writing, these Standard License Terms and Conditions shall, as between the Parties, apply to the Software Licenses comprised by such Agreement. If the Agreement is an agreement between the Customer and 3Shape it may, in its Special Terms, comprise other obligations on the part of 3Shape than those which are explicitly described and undertaken by 3Shape in these Standard License Terms and Conditions. If, on the other hand, the Agreement is entered into between the Customer and a 3Shape Reseller, such that 3Shape is not a party to the Agreement, nothing in these Standard License Terms and Conditions, including, for the avoidance of doubt, any reference herein to the Agreement or its Special Terms, shall ever be deemed to imply that 3Shape has any obligations (including without limitation any obligations arising from warranties) to the Customer other than those which pertain directly to the Software Licenses comprised by such Agreement and which are explicitly described and undertaken by 3Shape in these Standard License Terms and Conditions (as opposed to the Special Terms of such Agreement). Furthermore, for the avoidance of doubt, nothing in these Standard License Terms and Conditions shall be deemed to imply that 3Shape has undertaken any joint liability in relation to the performance of any obligations that the 3Shape Reseller may have undertaken vis-à-vis the Customer under such Agreement between the Customer and the 3Shape Reseller.
  2. 1.1.2 The "Customer" means a legal or natural person having acquired one or more Software Licenses by way of an Agreement with 3Shape or a 3Shape Reseller.
  3. 1.1.3 The "General Limited Warranty" means the limited 90 (ninety) days warranty granted to the Customer in relation to the Software as described in Clause 5 below.
  4. 1.1.4 A "Party" means 3Shape or the Customer, collectively referred to as the "Parties".
  5. 1.1.5 A "Site" means any physical location within a diameter of less than 0.8 kilometers.
  6. 1.1.6 The "Software" means the specific 3Shape Software designated in the Special Terms as being licensed to the Customer.
  7. 1.1.7 A "Software License" means a non-exclusive, non-transferable, and non-sublicensable license to install and use the Software. A Software License is subject to a number of restrictions, see in this regard Clause 2 below.
  8. 1.1.8 The "Special Terms" means any other part of the Agreement than these Standard License Terms and Conditions.
  9. 1.1.9 The "Standard License Terms and Conditions" means these standard license terms and conditions.
  10. 1.1.10 A "Supplied Interface/Library" means any Interface or Library that is supplied (i.e. (sub)licensed) to the Customer by 3Shape – either directly or via a 3Shape Reseller having been authorized by 3Shape to distribute such Interface or Library – for use in conjunction with the Software, irrespective of whether such Interface or Library is supplied as integrated into or bundled with the Software, is made available for downloading within the Software or is otherwise supplied, and irrespective of whether it is supplied at the same time as the Software is first supplied to the Customer or whether it is supplied subsequently (e.g. as something that the Customer can choose to download or as something that is supplied in connection with a new release of the Software).
  11. 1.1.11 "3Shape" means the specific 3Shape Entity identified on or in the Software as the proprietor of the copyrights to the Software.
  12. 1.1.12 A "3Shape Reseller" means any legal or natural person authorized by 3Shape to market and resell Software Licenses.
  13. 1.1.13 The "Warranty Period" means a 90 (ninety) day period from the date of delivery of the Software to the Customer during which the General Limited Warranty shall apply.

2. License

2.1 Rights Reserved: All title and intellectual property rights in and to the Software are owned by 3Shape and/or 3Shape's licensors. The Software is licensed, not sold. All rights not expressly granted are reserved by 3Shape.

2.2 License Acquired: Subject to the Customer's fulfilment of the Customer's obligations under the Agreement, including without limitation payment of any and all applicable license fees, the Customer is granted such number of Software Licenses as specified in the Special Terms of the Agreement. The Customer’s access to the Software is personal and the Customer may not share or otherwise allow a third party such access. The Customer’s Software License is specific for the geographic market for which the Software is intended. The Customer agrees to immediately notify 3Shape of any unauthorized access to the Software or any other breach of security.

  1. 2.2.1 Types of Licenses: Each Software License granted is subject to certain restrictions, depending on the type of license. The type of license granted is specified in the Special Terms. The most common types of licenses are the following (although different types with different restrictions may be specified in the Special Terms):
    • - "Seat License": A single non-exclusive, non-transferable license to install and use certain software on one PC. For the avoidance of doubt, a Seat License may not be shared or used concurrently on different PCs.
    • - "Floating Seat License": A single non-exclusive, non-transferable license to install certain software and use it on one PC at a time within a particular Site. This means that the software licensed under a Floating Seat License may be installed on multiple PCs as long as the PCs on which the software is installed are all located at the same Site, yet at any given point in time the Floating Seat License may not be used concurrently on different PCs. Thus, for the avoidance of doubt, the number of PCs on which the software may be used concurrently at any given point in time at a particular Site is limited to the number of valid Floating Seat Licenses allocated to that particular Site. A Floating Seat License is purchased for use at a particular Site and may only be moved to another Site subject to prior written approval from 3Shape.
    • - "Site License": A non-exclusive, non-transferable user license to install and use certain software on an unlimited number of PCs provided that these PCs are all physically located at a single Site. A Site License is purchased for use at a particular Site and may only be moved to another Site subject to prior written approval from 3Shape.
  2. 2.2.2 Time-Limited vs. Perpetual Licenses: Each Software License granted may be a perpetual license or a time-limited license. It is specified in the Special Terms whether the Software License is a perpetual or a time-limited license. A time-limited license is only valid for such period as specified in the Special Terms (typically one (1) year from the date of delivery of the Software License to the Customer) whereupon it may be extended for subsequent periods of time (typically each such extension period is also one (1) year), each such extension being subject to the Customer having paid to 3Shape (or the 3Shape Reseller in case the Agreement is entered into by the Customer with a 3Shape Reseller) a license extension fee as specified in the Special Terms.
  3. 2.2.3 Other License Restrictions: In addition to such restrictions as follows from the general license type and possible time-limitations on the Software License as mentioned in Clauses 2.2.1 and 2.2.2 above, the Special Terms may specify other restrictions on the rights of use granted under any specific Software License, including without limitation volume restrictions specifying that certain functions of the Software may only be used a limited number of times in any given month or year.
  4. 2.2.4 Use Limited to Such Purpose(s) for which the Software is Intended to be Used: The use permitted under any Software License shall not extend beyond use of the Software for such purpose(s) as the Software is, pursuant to 3Shape's official product descriptions of the Software and/or an official user manual from 3Shape, intended to be used for.
  5. 2.2.5 Dongle Technology: For some 3Shape Software, 3Shape applies dongle technology for license authentication purposes. Thus, the Software may be associated with a physical dongle which has to be used in order for the Software to work. Such physical dongle shall be authorized and used only in the geographic market for which it is intended.
  6. 2.2.6 Product Information and Data Transferred to 3Shape: The Customer acknowledges and accepts that (A) the Software includes a functionality implying that data within the Software is automatically sent to 3Shapeand that 3Shape may use any such transferred data for development/improvements of 3Shape’s products and, regulatory purposes, provided such data is only processed in an anonymized form, and (B) product information concerning performance and usage of the Software is automatically sent to 3Shape. 3Shape uses product information concerning performance and usage to analyze and understand the usage of the Software, for statistical purposes, and for purposes of improving the Software in relation to the needs of 3Shape's customers. Furthermore, for the purpose of providing sufficient training, optimizing usage, and providing better support to the Customer, 3Shape shares data concerning performance and usage of the products with the (i) 3Shape Reseller, who sold the relevant product to the Customer and/or (ii) any dental service organization (DSO) to the extent the Customer has purchased the relevant product through such DSO.
    Such data is handled by 3Shape with the strictest confidentiality and in accordance with our Privacy Policy available https://www.3shape.com/privacy-policy.
  7. 2.2.7 Changes in Hardware and Software Compatibility: The Customer acknowledges and accepts that any new releases that 3Shape may make of the Software may not always run properly or at all on such older PCs, or more generally be compatible with such hardware or third-party software as a previous release was perhaps compatible with, and that, accordingly, it may be necessary for the Customer to upgrade, at the Customer's own expense, its hardware or third-party software in order to be able to use properly any such new releases of the Software.
  8. 2.2.8 Software Licenses Sold by 3Shape Resellers: If the Agreement is entered into between a 3Shape Reseller and the Customer, then, notwithstanding anything stated in these Standard License Terms and Conditions, any Software License comprised by such Agreement shall only be valid, and indeed is only granted by 3Shape, on the condition that the 3Shape Reseller has not in the Special Terms of the Agreement transgressed the authorization granted by 3Shape to the 3Shape Reseller (e.g. by purporting to sell licenses of a type which the 3Shape Reseller does not have proper authorization from 3Shape to sell).

2.3 No Assignment, Selling, Sublicensing, Rental, Lending, Displaying, Sharing, Performing, Reproducing, Publishing, Selling, Creating Derivative Works, Transferring or Leasing: The Customer may not assign, sell or resell, sublicense, rent, lease, publish, display, share, perform, reproduce, create derivative works from, transfer, or lend any content obtained from or through 3Shape, including the Software or the Customer's license(s) to the Software (including any sublicense under Special Section II). The Software is authorized for access and use only in its intended geographic market.

2.4 Copying: The Customer may make one backup copy of the media on which the Software is provided to the Customer. Such backup copy may be used only for reinstallation of the Software. Other than the said backup copy the Customer is not allowed to make any copies of the Software, except to the extent expressly permitted by mandatory law applicable notwithstanding this limitation. Similarly, the Customer may not publish the Software for others to copy.

2.5 Limitations on Reverse Engineering, De-compilation, and Disassembly: The Customer is not entitled to reverse engineer, decompile, modify, or disassemble the Software or any device that, when connected to a computing system running the Software, enables the creation and export of a file that can be used to fabricate a dental surgical drill guide using a milling or grinding unit, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

2.6 Restrictions regarding Medical Devices: If the Software is subject to regulations regarding medical devices in a country or union of states, use by the Customer of the Software in any such country or union of states may only take place if the Software is registered and/or approved for use according to the local laws and guidelines applicable in the said country or union of states for the corresponding class of medical devices. In addition, the Customer is required to answer truthfully any and all questions posed by, within, or in operation of, the Software regarding the physical location of the Customer while using the Software.2.7

2.7 Support, Upgrade, Maintenance, etc.: 3Shape is only obliged to deliver to the Customer support, upgrade, maintenance or other services in connection with the Software if an obligation to deliver such services is undertaken by 3Shape in the Special Terms of an Agreement entered into between 3Shape and the Customer or in a separate agreement between 3Shape and the Customer.

3. Special Provisions Regarding Supplied Interfaces/Libraries

3.1 Scope of Clause: The special provisions set forth in this Clause 3 apply to any Supplied Interface/Library. Subject to the deviations set forth in this Clause 3, all provisions of these Standard License Terms and Conditions shall apply equally to any Supplied Interface/Library as they do to the Software.

3.2 Intellectual Property Rights: Any Supplied Interface/Library, including all title and intellectual property rights in and to the Supplied Interface/Library, is the property of 3Shape and/or a third-party licensor having granted 3Shape a license to distribute the Supplied Interface/Library.

3.3 License: Except as otherwise stipulated herein or in the Special Terms, the license(s) granted to the Customer to use a Supplied Interface/Library shall follow and be the same as that/those granted in relation to the Software (and thus also be subject to the same restrictions as apply in relation to the Software, see without limitation Clause 2). Without prejudice to the generality of the foregoing, the Customer accepts that the Customer may only use any Supplied Interface/Library in conjunction with the Software, and only for such purpose(s) as the Software is, pursuant to Shape's official product descriptions of the Software and/or an official user manual from 3Shape, intended to be used for.

3.4 Fees: Special license fees, as stipulated in the Special Terms, may be charged by 3Shape (or the 3Shape Reseller in case the Agreement is entered into by the Customer with a 3Shape Reseller) in respect of Supplied Interfaces/Libraries.

3.5 Exclusion of General Limited Warranty With Regard to Third-Party-Owned or -Controlled Supplied Interfaces/Libraries: As regards any such (parts of) Supplied Interfaces/Libraries as are owned or controlled by third parties, the General Limited Warranty shall not apply. Thus, any third-party-owned or -controlled (part of a) Supplied Interface/Library is provided strictly on an "as is" basis without any liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 3SHAPE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY-OWNED OR -CONTROLLED (PART OF A) SUPPLIED INTERFACE/LIBRARY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

3.6 Exclusion of Liability for Third-Party Owners of Supplied Interfaces/Libraries: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3SHAPE FURTHERMORE ON BEHALF OF ANY AND ALL THIRD-PARTY OWNERS OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES DISCLAIMS LIABILITY IN RESPECT OF SUCH (PARTS OF) SUPPLIED INTERFACES/LIBRARIES, AND EXPRESSLY DISCLAIMS ON SUCH THIRD PARTIES’ BEHALF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH (PART OF A) SUPPLIED INTERFACE/LIBRARY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WHILST ANY SUCH THIRD-PARTY OWNER OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES SHALL NOT BE CONSIDERED TO BE A PARTY TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY SUCH THIRD-PARTY OWNER OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES SHALL VIS-À-VIS THE CUSTOMER BE ENTITLED TO INVOKE THE SAID DISCLAIMER OF LIABILITY.

3.7 Special Right of Termination: Notwithstanding anything to the contrary herein or in the Special Terms, any license to use a Supplied Interface/Library may at any point in time be terminated, without liability, by 3Shape without notice, and the Supplied Interface/Library may at any point in time without prior notice be removed from, or no longer supported by, new releases of the Software, such that the Supplied Interface/Library cannot be used anymore with, or as part of, the Software. If the Customer has paid directly to 3Shape a separate fee specifically covering the license to the Supplied Interface/Library in question and such fee covers a license to use the Supplied Interface/Library for a specific limited period of time, such proportionate part of the said fee as corresponds to the non-expired part of the said period of time shall be refunded to the Customer.

4. Expiry and Termination

4.1 Expiry: Any time-limited Software License(s) granted to the Customer shall expire as described in Clause 2.2.2 above if not renewed in accordance with the said clause.

4.2 Termination: The Software License granted to Customer shall terminate immediately if the Software is accessed, used or sold for use in a geographic market other than its intended geographic market. In addition to any other provisions for termination that may be contained in the Agreement, 3Shape may by notice in writing to the Customer terminate the Software License(s) granted to the Customer under the Agreement if Customer is in breach of any term, condition or provision of the Agreement, with these Standard License Terms and Conditions or required by the applicable law and fails to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice of such breach from 3Shape.

4.3 Cease of Use Upon Termination or Expiry: At the termination or expiry, for whatever reason, of the Software License(s) granted to the Customer, the Customer shall discontinue any and all use of the Software and shall destroy, or return to 3Shape or the applicable 3Shape Reseller if so requested, any and all copies that the Customer may have of the Software.

5. General Limited Warranty

5.1 Software Not Error-Free: For the avoidance of doubt, 3Shape does not warrant that the Software will be error-free.

5.2 General Limited Warranty: 3Shape warrants that the Software will, if used in accordance with the instructions, perform substantially in accordance with the accompanying technical software description from 3Shape that the Customer receives in or with the Software. The said limited warranty covers the Software for the Warranty Period. If the Customer discovers a breach of this General Limited Warranty and the Customer notifies 3Shape (or the applicable 3Shape Reseller, as the case may be) thereof immediately after discovering the breach, and in any event before expiry of the Warranty Period, 3Shape shall, to the exclusion of any and all other remedies of breach, use reasonable endeavours to correct, by patch or new release (at 3Shape's option), that part of the Software which has caused the non-compliance with the warranty, PROVIDED THAT

  1. 5.2.1 such non-compliance has not been caused by any modification, variation or addition to the Software not performed by 3Shape or its licensor or caused by the Customer's incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible; and
  2. 5.2.2 the most recent release of the Software that 3Shape (or the applicable 3Shape Reseller, as the case may be) may have provided to the Customer has been installed by the Customer in accordance with applicable installation instructions, such that the release of the Software installed with the Customer is the most recent release provided by 3Shape (or the applicable 3Shape Reseller) to the Customer.

5.3 NO OTHER WARRANTIES: TO THE EXTENT PERMITTED BY APPLICABLE LAW, 3SHAPE DISCLAIMS ALL OTHER WARRANTIES (THAN THE GENERAL LIMITED WARRANTY SET FORTH IMMEDIATELY ABOVE) WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ACCORDINGLY, AFTER THE EXPIRATION OF THE WARRANTY PERIOD THE CUSTOMER WILL NO LONGER BE ENTITLED TO SUBMIT ANY CLAIMS IN RELATION TO DEFECTS IN THE SOFTWARE.

6. Exclusions and Limitations of Liability

6.1 EXCLUSION OF LIABILITY FOR INDIRECT DAMAGES, ETC.: IN NO EVENT WILL 3SHAPE OR ITS LICENSORS (INCLUDING WITHOUT LIMITATION SIRONA (SEE SPECIAL SECTION II)) BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST SAVINGS, LOST DATA OR OTHER SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE, TO ANY SUBLICENSE (SEE SPECIAL SECTION II), TO ANY SUPPLIED INTERFACE/LIBRARY OR TO ANY SERVICE FURNISHED TO THE CUSTOMER, OR UNDERTAKEN BY 3SHAPE TO BE FURNISHED TO THE CUSTOMER, OR TO THE USE THEREOF OR OTHERWISE ARISING OUT OF OR RELATING TO ANY OBLIGATIONS THAT 3SHAPE MAY HAVE UNDER THESE STANDARD LICENSE TERMS AND CONDITIONS OR UNDER SPECIAL TERMS AGREED BETWEEN 3SHAPE AND THE CUSTOMER, 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.

6.2 CAP ON LIABILITY: THE MAXIMUM AGGREGATE LIABILITY OF 3SHAPE UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THE SOFTWARE, TO ANY SUBLICENSE (SEE SPECIAL SECTION II), TO ANY SUPPLIED INTERFACE/LIBRARY OR TO ANY SERVICE FURNISHED TO THE CUSTOMER, OR UNDERTAKEN BY 3SHAPE TO BE FURNISHED TO THE CUSTOMER, OR TO THE USE THEREOF OR OTHERWISE ARISING OUT OF OR RELATING TO ANY OBLIGATIONS THAT 3SHAPE MAY HAVE UNDER THESE STANDARD LICENSE TERMS AND CONDITIONS OR UNDER SPECIAL TERMS AGREED BETWEEN 3SHAPE AND THE CUSTOMER WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY THE CUSTOMER AND FURTHERMORE BE LIMITED TO THE TOTAL AMOUNT OF (LICENSE) FEES (REGARDING THE SOFTWARE OR SUPPLIED INTERFACE/LIBRARY OR SERVICES IN RESPECT OF WHICH THE CAUSE OF ACTION ACCRUED) PAID BY THE CUSTOMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. 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.

6.3 Failure of Essential Purpose: The Customer agrees that the exclusions and limitations of liability specified above will survive and apply even if any exclusion or limitation of remedies set forth herein is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained herein shall limit 3Shape's liability for its own wilful conduct.

6.4 Types of Liability That Are Not Disclaimed: Nothing herein stated shall exclude or limit 3Shape's liability for death or personal injury caused by its negligence or for its fraud or fraudulent misrepresentation or for any other liability that cannot, as a matter of law, be limited or excluded.

7. Indemnification for Third Party-Claims

7.1 Indemnification for Third Party-Claims: To the extent permitted by applicable law, Customer agrees to indemnify and defend 3Shape against any and all third party claims, lawsuits, and proceedings arising or resulting from (1) Customer’s negligence, (2) Customer’s fraud or fraudulent misrepresentation, or (3) Customer’s failure or alleged failure to comply with applicable laws or any violation of a third party’s rights in connection with Customer’s use of 3Shape software (each a “Third-Party Claim” and collectively “Third-Party Claims”). In the event of a Third-Party Claim, Customer will be responsible for any damages, 3Shape’s attorneys’ fees and the cost of enforcing the right to indemnity under this Agreement.

7. Third Party Rights

7.1 No License to Third Party Patents Etc. Granted: Except as described in Special Section II, 3Shape cannot and does not grant to the Customer any license to any third party patent or to any other intellectual property rights held by a third party in respect of which the Customer may need to hold a license in order to be able lawfully to use the Software (and/or any Supplied Interface/Library) for the purposes contemplated by the Customer, including so as to be able lawfully to use the Software (and/or any Supplied Interface/Library) in such specific process, set-up or other context and in such specific combination with other software or devices as may be intended by the Customer. Thus, it is up to the Customer at its own expense to acquire and maintain any such licenses from third parties, and 3Shape cannot be held liable by the Customer if a third party raises a claim for infringement of such third party's patent rights or other intellectual property rights due to the Customer not having acquired and maintained such licenses. If the Customer does not acquire and maintain such third party licenses as mentioned and if this somehow results in a third party raising a claim against 3Shape, the Customer shall indemnify 3Shape against any such third party claim. 3Shape shall not be responsible for any patent infringement, copyright infringement, or trade secret misappropriation claim, including those arising from: (i) unauthorized modifications to the Software (and/or any Supplied Interface/Library); (ii) use of the Software (and/or any Supplied Interface/Library) in a manner or in combination with software, firmware, or hardware not provided by 3Shape to the extent such claim would not have occurred except for such modifications or use; (iii) use of other than the latest version of the Software (and/or any Supplied Interface/Library) made available to the Customer; (iv) use of the Software (and/or any Supplied Interface/Library) outside of its intended geographic market; (v) any use of the Software (and/or any Supplied Interface/Library) not in accordance with this Agreement or the applicable documentation or specifications.)

8. Force Majeure

8.1 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 Agreement arising by reason of force majeure, namely, circumstances beyond the control of 3Shape which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, 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.

9. Miscellaneous

9.1 No Waiver: Failure or neglect by 3Shape to enforce at any time any of the provisions of these Standard License Terms and Conditions or of any Special Terms agreed between 3Shape and the Customer shall not be construed nor shall be deemed to be a waiver of 3Shape's rights under these Standard License Terms and Conditions or such Special Terms nor in any way affect the validity of the whole or any part of the Standard License Terms and Conditions and such Special Terms nor prejudice 3Shape's rights to take subsequent action.

9.2 Headings: The headings of the provisions herein contained 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 Standard License Terms and Conditions.

9.3 Severability: In the event that any of the provisions of these Standard License Terms and Conditions or of any Special Terms agreed between 3Shape and the Customer 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.

9.4 Priority: In the event of inconsistencies between any provision in the Special Terms and any provision in these Standard License Terms and Conditions, the provision in the Special Terms shall supersede the provision in these Standard License Terms and Conditions, see however Clauses 1.1.1, 2.2.8 and 3.7 above.

10. Applicable Law and Venue

10.1 Applicable Law: These Standard License Terms and Conditions and any Special Terms agreed between 3Shape and the Customer shall be governed, construed and enforced in accordance with the laws of Denmark excluding its conflicts of law provisions and the CISG.

10.2 Venue: The Danish courts shall have the exclusive jurisdiction over any dispute between the Parties arising out of or relating to the Agreement with these Standard License Terms and Conditions. The Maritime and Commercial Court in Copenhagen shall be the first instance venue, except that if the Danish rules of procedure prevent that the dispute can be brought before the Maritime and Commercial Court in Copenhagen, the dispute shall be brought before the Copenhagen City Court instead as the first instance venue.

C. OEM TERMS

These OEM Terms, where applicable (see Section A above), sets out a number of principles and prohibitions relating to the Software (as defined below) which you (referred to below as an "End User") must accept as a condition for your installation and/or use of the Software (and any Supplied Interface/Library).

1. Definitions

1.1 The definitions listed below apply to these OEM Terms unless otherwise stated or clear from the context:

  1. 1.1.1 The "End User" means a legal or natural person having acquired one or more Software Licenses from an OEM Reseller under an OEM License Agreement.
  2. 1.1.2 "OEM 3Shape Software" means any 3Shape Software that, while having been developed by 3Shape, is OEM-branded/dual-branded such that the private Label of a third party (e.g. the OEM Reseller) that is not a 3Shape Entity appears on or in the software, either alone or in addition to one or more 3Shape Labels.
  3. 1.1.3 The "OEM License Agreement" means any agreement entered into between the End User on the one hand and an OEM Reseller on the other hand regarding the End User’s purchase of one or more Software Licenses.
  4. 1.1.4 An "OEM Reseller" means any legal or natural person authorized by 3Shape to market and resell Software Licenses.
  5. 1.1.5 The "OEM Terms" means the terms and conditions set forth herein.
  6. 1.1.6 The "Software" means the OEM 3Shape Software designated in the OEM License Agreement as being licensed to the End User.
  7. 1.1.7 A "Software License" means a non-exclusive, non-transferable, and non-sublicensable license to install and use the Software. A Software License is subject to a number of restrictions as set forth in the relevant OEM License Agreement (without limitation, such restrictions can arise from the type of license designated in the OEM License Agreement (e.g., a seat license or a site license); it may also follow from the OEM License Agreement that the Software License is a time-limited license which will expire at some time unless renewed against payment of a license extension fee).
  8. 1.1.8 A "Supplied Interface/Library" means any Interface or Library that is supplied (i.e. (sub)licensed) to the Customer – by 3Shape or an OEM Reseller having been authorized by 3Shape to distribute such Interface or Library – for use in conjunction with the Software, irrespective of whether such Interface or Library is supplied as integrated into or bundled with the Software, is made available for downloading within the Software or is otherwise supplied, and irrespective of whether it is supplied at the same time as the Software is first supplied by the OEM Reseller to the Customer or whether it is supplied subsequently (e.g. as something that the Customer can choose to download or as something that is supplied in connection with a new release of the Software).
  9. 1.1.9 "3Shape" means the specific 3Shape Entity identified on or in the Software as the proprietor of the copyrights to the Software.

2. License Terms and Conditions

2.1 License Terms and Conditions to be Found in the OEM License Agreement: The OEM License Agreement sets out the detailed license terms and conditions governing, as between the OEM Reseller and the End User, the Software Licenses granted by the OEM Reseller to the End User, including information on the number of Software Licenses and on the type of licenses, applicable restrictions, etc. Except if otherwise expressly stated in the OEM License Agreement, the use permitted under any Software License shall not extend beyond use of the Software for such purpose(s) as the Software is, pursuant to official product descriptions of the Software and/or an official user manual for the Software, intended to be used for. The End User’s access to the Software is personal and the End User may not share or otherwise allow a third party such access. The End User agrees to immediately notify 3Shape of any unauthorized access to the Software or any other breach of security.

2.2 Product Information and Data Transferred to 3Shape: The End User acknowledges and accepts that (A) the Software includes a functionality implying that data within the Software is automatically sent to 3Shape and that 3Shape may use any such transferred data for development/improvements of 3Shape’s products, and regulatory purposes, provided such data is only processed in an anonymized form, and (B) product information concerning performance and usage of the Software is automatically sent to 3Shape. 3Shape uses product information concerning performance and usage to analyze and understand the usage of the Software, for statistical purposes, and for purposes of improving the Software in relation to the needs of 3Shape's End Users. Furthermore, for the purpose of providing sufficient training, optimizing usage, and providing better support to the End User, 3Shape shares data concerning performance and usage of the products with the (i) OEM Reseller, who sold the relevant product to the End User and/or (ii) any dental service organization (DSO) to the extent the End User has purchased the relevant product through such DSO.
Such data is handled by 3Shape with the strictest confidentiality and in accordance with our Privacy Policy available at www.3shape.com. https://www.3shape.com/privacy-policy.

2.3 Validity of the OEM License Agreement: All title and intellectual property rights in and to the Software are owned by 3Shape and/or 3Shape's licensors. Accordingly, the OEM Reseller's grant to the End User of any Software License(s) under the OEM License Agreement and any subsequent extensions of such Software Licenses are only valid subject to the OEM Reseller holding a valid authorization from 3Shape to (sub)license the Software to the End User in such way and under such terms and conditions as would be described in the OEM License Agreement, including without limitation as to any terms and conditions that apply to any applicable Additive Manufacturing Sublicense (as defined in Special Section II) and/or Milling Sublicense (as defined in Special Section II).

2.4 Supplied Interfaces/Libraries: Notwithstanding anything to the contrary herein or in the OEM License Agreement, the End User may only use any Supplied Interface/Library in conjunction with the Software, and only for such purpose(s) as the Software is, pursuant to official product descriptions of the Software and/or an official user manual for the Software, intended to be used for. Furthermore, notwithstanding anything to the contrary herein or in the OEM License Agreement, any Supplied Interface/Library may at any point in time without prior notice be removed from, or no longer supported by, any new release of the Software, such that the Supplied Interface/Library cannot be used anymore with, or as part of, the Software.

2.5 Changes in Hardware and Software Compatibility: The End User acknowledges and accepts that new releases (if any) of the Software may not always run properly or at all on such older PCs, or more generally be compatible with such hardware or third-party software, as a previous release was perhaps compatible with, and that, accordingly, it may be necessary for the End User to upgrade, at the End User's own expense, its hardware or third-party software in order to be able to use properly any such new releases of the Software.

3. 3Shape Has No Obligations; Provisions on Liability

3.1 3Shape Has No Obligations towards the End User: 3Shape is not a party to the OEM License Agreement; rather 3Shape and its applicable licensors are only third-party beneficiaries of the OEM License Agreement between the OEM Reseller and the End User. Furthermore, no contractual obligations shall be deemed to be created on 3Shape by way of these OEM Terms. Accordingly, 3Shape has no contractual obligations vis-à-vis the End User in respect of the Software or of any Supplied Interface/Library.

3.2 Disclaimer: As 3Shape has no contractual obligations to the End User in respect of the Software or any Supplied Interface/Library, no contractual claims from the End User regarding defects in the Software or any Supplied Interface/Library or otherwise pertaining to the Software or any Supplied Interface/Library can be directed towards 3Shape. FOR THE AVOIDANCE OF DOUBT, 3SHAPE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, TO THE END USER. 3SHAPE SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL, ARISING FROM THE USE OF THE SOFTWARE, ANY SUBLICENSE (SEE SPECIAL SECTION II), AND/OR ANY SUPPLIED INTERFACE/LIBRARY BY THE END USER.

3.3 Residual Liability: IF, NOTWITHSTANDING THE ABOVE, 3SHAPE INCURS ANY LIABILITY TOWARDS THE END USER (E.G., LIABILITY WHICH AT LAW APPLIES NOTWITHSTANDING THAT 3SHAPE HAS NO CONTRACTUAL OBLIGATIONS TOWARDS THE END USER AND WHICH CANNOT AT LAW BE VALIDLY EXCLUDED IN SUCH WAY AS STATED ABOVE), THE END USER AGREES, CF. ALSO CLAUSE 6.1 BELOW, THAT ANY AND ALL SUCH LIABILITY ("RESIDUAL LIABILITY") SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF DENMARK EXCLUDING ITS CONFLICTS OF LAW PROVISIONS AND THE CISG. FURTHERMORE, WITH RESPECT TO ANY SUCH RESIDUAL LIABILITY, SHOULD IT OCCUR, THE END USER AGREES (A) THAT TO THE MAXIMUM EXTENT PERMITTED AT LAW 3SHAPE DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST SAVINGS, LOST DATA OR OTHER SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, AND (B) THAT, EXCEPT WHERE MANDATORY APPLICABLE LAW PREVENTS SUCH LIMITATION OF LIABILITY, 3SHAPE'S LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY THE END USER FOR THE SOFTWARE LICENSE, SUBLICENSE (SEE SPECIAL SECTION II) OR SUPPLIED INTERFACE/LIBRARY LICENSE IN RELATION TO WHICH SUCH RESIDUAL LIABILITY MAY ARISE. FINALLY, IN ACCORDANCE WITH CLAUSE 6.2 BELOW, THE END USER SUBMITS EXCLUSIVELY TO THE JURISDICTION OF THE DANISH COURTS FOR THE RESOLUTION OF ANY AND ALL DISPUTES BETWEEN THE END USER AND 3SHAPE IN RELATION TO ANY RESIDUAL LIABILITY.

3.4 Exclusion of Liability for Third-Party Owners of Supplied Interfaces/Libraries: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3SHAPE FURTHERMORE ON BEHALF OF ANY AND ALL THIRD-PARTY OWNERS OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES DISCLAIMS LIABILITY IN RESPECT OF SUCH (PARTS OF) SUPPLIED INTERFACES/LIBRARIES, AND EXPRESSLY DISCLAIMS ON SUCH THIRD PARTIES’ BEHALF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH (PART OF A) SUPPLIED INTERFACE/LIBRARY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WHILST ANY SUCH THIRD-PARTY OWNER OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES SHALL NOT BE CONSIDERED TO BE A PARTY TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THE END USER ACKNOWLEDGES AND AGREES THAT ANY SUCH THIRD-PARTY OWNER OF (PARTS OF) SUPPLIED INTERFACES/LIBRARIES SHALL VIS-À-VIS THE END USER BE ENTITLED TO INVOKE THE SAID DISCLAIMER OF LIABILITY.

4. Miscellaneous Prohibitions and Restrictions

4.1 Rights To the Software Are Owned by 3Shape: All title and intellectual property rights in and to the Software (and any Supplied Interface/Library) are owned by 3Shape and/or 3Shape's licensors.

4.2 Status of the Prohibitions and Restrictions: In addition to any restrictions and prohibitions imposed on the End User in the OEM License Agreement, and notwithstanding anything stated to the contrary in the OEM License Agreement, the following prohibitions and restrictions shall be complied with by the End User and may be enforced by 3Shape.

4.3 No Assignment, Selling, Sublicensing, Rental, Lending Displaying, Sharing, Performing, Reproducing, Publishing, Selling, Creating Derivative Works, Transferring or Leasing: The End User may not assign, sell or resell, sublicense, rent, lease, publish, display, share, perform, reproduce, create derivative works from, transfer, or lend any content obtained from or through 3Shape, including the Software (or any Supplied Interface/Library) or the End User's license(s) to the Software and/or Supplied Interface/Library (including any sublicense under Special Section II). The Software is authorized for access and use only in its intended geographic market.

4.4 Copying: The End User may make one backup copy of the media on which the Software (with any Supplied Interface/Library) is provided to the End User. Such backup copy may be used only for reinstallation of the Software. Other than the said backup copy the End User is not allowed to make any copies of the Software (or any Supplied Interface/Library), except to the extent expressly permitted by mandatory law applicable notwithstanding this limitation. Similarly, the End User may not publish the Software (or any Supplied Interface/Library) for others to copy.

4.5 Limitations on Reverse Engineering, De-compilation, and Disassembly: The End User is not entitled to reverse engineer, decompile, or disassemble the Software (or any Supplied Interface/Library) or any device that, when connected to a computing system running the Software, enables the creation and export of a file that can be used to fabricate a dental surgical drill guide using a milling or grinding unit, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

4.6 Restrictions regarding Medical Devices: If the Software is subject to regulations regarding medical devices in a country or union of states, use by the End User of the Software in any such country or union of states may only take place if the Software is registered and/or approved for use according to the local laws and guidelines applicable in the said country or union of states for the corresponding class of medical devices. In addition, the End User is required to answer truthfully any and all questions posed by, within, or in operation of, the Software regarding the physical location of the End User while using the Software.

4.7 Cease of Use Upon Termination, Expiry, etc. of the Software License(s): At the termination or expiry, for whatever reason, of the Software License(s) granted to the End User under the OEM License Agreement, the End User shall discontinue any and all use of the Software (and any Supplied Interface/Library) and shall destroy, or return to the OEM Reseller if so requested, any and all copies that the End User may have of the Software (and of any Supplied Interface/Library).

5. Miscellaneous

5.1 No Waiver: Failure or neglect by 3Shape to enforce at any time any of the provisions of these OEM Terms shall not be construed nor shall be deemed to be a waiver of 3Shape's rights hereunder nor in any way affect the validity of the whole or any part of these OEM Terms nor prejudice 3Shape's rights to take subsequent action.

5.2 Headings: The headings of the provisions herein contained 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 OEM Terms.

5.3 Severability: In the event that any of the provisions of these OEM 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 to the fullest extent permitted by law.

6. Applicable Law and Venue

6.1 Applicable Law: These OEM Terms shall be governed, construed and enforced in accordance with the laws of Denmark excluding its conflicts of law provisions and the CISG.

6.2 Venue: The Danish courts shall have the exclusive jurisdiction over any dispute between 3Shape and the End User arising out of or relating to the OEM Terms. The Maritime and Commercial Court in Copenhagen shall be the first instance venue for any dispute between 3Shape and the End User arising out of or relating to the OEM Terms, except that if the Danish rules of procedure prevent that the dispute can be brought before the Maritime and Commercial Court in Copenhagen, the dispute shall be brought before the Copenhagen City Court instead as the first instance venue.

SPECIAL SECTION I:

ORTHOANALYZER 2017: IMPORTANT INFORMATION AND LEGAL DISCLAIMER

The functionality of the OrthoAnalyzerTM software allows you to manipulate a 3D visual model of a patient’s dentition by dragging and moving individual teeth in the model, whereby you may explore how the visual appearance of the dentition may change if such tooth movements are implemented.

Please be informed that the OrthoAnalyzerTM software 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.

Furthermore, the software 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.

The risks pertaining to any such treatment attempt shall be assumed entirely by the person carrying out the treatment.

3Shape A/S disclaims any and all liability for the results of any treatment attempts made on the basis of the visualizations generated within the OrthoAnalyzerTM software.

SPECIAL SECTION II

ADDITIONAL TERMS APPLICABLE TO ALL IMPLANT STUDIO SOFTWARE LICENSES

In respect of the 3Shape Software Implant Studio, the terms set forth in this Special Section II shall constitute and integral part of Sections B and C. In case of conflict between the terms set forth in the main part of Section B or C (as applicable) and this Special Section II, the terms in this Section II shall take precedence.

DEFINITIONS:

The special definitions listed below apply for purposes of this Special Section II, unless otherwise stated or clear from the context:

  1. “Additive Manufacturing Sublicense” means a sublicense from a 3Shape Entity or an Authorized Distributor (defined below) that grants a non-exclusive license under the Sirona Patent Rights (defined below) to use the Implant Studio software in the Sirona Patent Rights Territory (defined below) to create a Plan and export the plan to a third party, and to use additive manufacturing equipment with the Implant Studio software to fabricate dental surgical drill guides based on a Plan. The Additive Manufacturing Sublicense does not include the right to mill or grind, or have milled or ground, a dental surgical drill guide, except on a milling or grinding unit that is subject to a Milling Sublicense (as defined below).
  2. “Authorized Distributor” means a third-party distributor of the Implant Studio software that has been approved as such in a separate agreement with 3Shape.
  3. “Milling Sublicense” means a sublicense from a 3Shape Entity or an Authorized Distributor that grants a non-exclusive license under the Sirona Patent Rights to use a single milling or grinding unit with the Implant Studio software to practice the Sirona Patent Rights in the Sirona Patent Rights Territory in the fabrication of dental surgical drill guides based on a Plan.
  4. “Plan” means any order, request, collection of data, instructions or other materials (including an STL or similar output file) that are useful in the fabrication of a dental surgical drill guide and which include patient CT data and optical scan data of the teeth and/or gums.
  5. “Sirona” shall mean Dentsply Sirona, Inc., Sirona Dental Systems GmbH, Sirona Dental, Inc., and SICAT GmbH & Co. KG.
  6. “Sirona Patent Rights” shall mean (i) U.S. Patent No. 6,319,006 (ii) all parents, reissues, reexaminations, renewals, extensions, divisionals, continuations, continuations-in-part, and other patent applications that claim a priority date based upon, or that share a priority application with, U.S. Patent No. 6,319,006, including foreign counterparts thereof, including: US 6,319,006 B1, EP1101451B1 (DE, AT, CH, LI, IT, GB), JP05124063B2 and JP05523487B2, and (iii) any patents which may be granted anywhere in the world on any of the patent applications recited in clause (ii).
  7. “Sirona Patent Rights Territory” shall mean US, JP and EP (AT, CH, LI, IT, DE and GB) and any other territory in which a patent issues with a valid claim of priority to U.S. Patent No. 6,319,006 or an application to which U.S. Patent No. 6,319,006 claims priority.

For purposes of this Special Section II, "Customer" shall mean a Customer as defined in Section B (where applicable) and "End User" shall mean an End User as defined in Section C (where applicable).

SUBLICENSES RELATING TO SIRONA PATENT RIGHTS:

A license to the 3Shape Software Implant Studio includes an Additive Manufacturing Sublicense only, unless a separate Milling Sublicense has been entered into and paid for. If a Milling Sublicense is obtained, the terms will be specified in a separate agreement and the Customer's/End User's use of the Implant Studio software shall be subject thereto.

ADDITIONAL RESTRICTIONS:

On top of the restrictions set forth in Sections B and C (as applicable), (use of) the Implant Studio software is subject to additional restrictions as set forth in any applicable Special Terms for the Implant Studio software and/or pursuant to any applicable Additive Manufacturing Sublicense and/or Milling Sublicense, including the following:

(a) Additive Manufacturing Sublicense: The Additive Manufacturing Sublicense sublicensee hereby agrees and affirmatively covenants not to use the Implant Studio software to mill or grind, or to have milled or ground, a dental surgical drill guide, except with a milling or grinding unit that is subject to a valid Milling Sublicense. An Additive Manufacturing Sublicense is not transferable and does not include the right to sublicense or any other right concerning the Sirona Patent Rights beyond that expressly set forth in definition of the Additive Manufacturing Sublicense. An Additive Manufacturing Sublicense shall automatically terminate in the event sublicensee mills, grinds, or has milled or ground, a dental surgical drill guide based on a Plan where such milling or grinding is not conducted pursuant to a valid Milling Sublicense. A 3Shape Entity may terminate the Additive Manufacturing Sublicense upon breach by the sub-licensee of any provision of the Additive Manufacturing Sublicense terms set forth herein and/or any additional rights/restrictions set forth in the applicable Special Terms for the 3Shape Implant Studio Software. Sirona and its successors and assigns are intended third-party beneficiaries of the Additive Manufacturing Sublicense due to their rights in the Sirona Patent Rights that claim technology in the Implant Studio software, and have the right to enforce the terms of the Additive Manufacturing Sublicense directly against the sublicensee. No person, other than Sirona and its successors and assigns, shall have any rights or remedies as a third-party beneficiary under the Additive Manufacturing Sublicense.

(b) Milling Sublicense: A Milling Sublicense is not transferable and does not include the right to sublicense or any other right concerning the Sirona Patent Rights beyond that expressly set forth in definition of Milling Sublicense above and any additional rights/restrictions set forth in the applicable Special Terms for the 3Shape Implant Studio Software. For clarity, a separate Milling Sublicense shall be required for any additional or replacement outside of warranty milling or grinding unit. The Milling Sublicense sublicensee hereby agrees and affirmatively covenants not to use the Implant Studio software to mill or grind, or have milled or ground, a dental surgical drill guide, except on the single milling or grinding unit that is subject to the Milling Sublicense. A 3Shape Entity may terminate the Milling Sublicense upon breach by the sublicensee of any provision of the Milling Sublicense terms set forth herein and/or any additional rights/restrictions set forth in the applicable Special Terms for the 3Shape Implant Studio Software. Sirona and its successors and assigns are intended third-party beneficiaries of the Milling Sublicense due to their rights in the Sirona Patent Rights that claim technology in the Implant Studio software, and have the right to enforce the terms of the Milling Sublicense directly against the sublicensee. No person, other than Sirona and its successors and assigns, shall have any rights or remedies as a third-party beneficiary under the Milling Sublicense.

ADDITIONAL WARRANTY DISCLAIMERS FOR ADDITIVE MANUFACTURING SUBLICENSE AND MILLING SUBLICENSE:

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY ADDITIVE MANUFACTURING SUBLICENSE AND/OR MILLING SUBLICENSE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. NEITHER SIRONA NOR 3SHAPE MAKE ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE ADDITIVE MANUFACTURING SUBLICENSE OR MILLING SUBLICENSE HEREUNDER WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT. Nothing herein will be construed as: (a) a warranty or representation by 3Shape as to the validity or scope of any of the Sirona Patent Rights; (b) a warranty or representation that anything made, used, sold or otherwise disposed of under any sublicense granted herein is or will be free from infringement of patents of third parties; (c) an obligation to bring or prosecute actions or suits against third parties for patent infringement; (d) conferring by implication, estoppel or otherwise any license or rights under any rights of a 3Shape Entity other than the Sirona Patent Rights as defined herein, regardless of whether such patents are dominant or subordinate to the Sirona Patent Rights; or (e) an obligation to furnish any know-how not provided in the Sirona Patent Rights.

APPLICABLE LAW AND VENUE:

Any dispute between Sirona and a Customer/End User arising out of or relating to this Special Section II, and/or to Section B or C (as applicable) as it relates hereto, shall be governed by the laws of the State of New York, notwithstanding any choice-of-law principle that might dictate a different governing law. All disputes between Sirona and a Customer/End User arising out of or relating to this Special Section II, and/or to Section B or C (as applicable) as it relates hereto, shall be subject to the exclusive jurisdiction of the New York courts, including the U.S. District Court for the Southern District of New York.

INTENDED THIRD-PARTY BENEFICIARIES:

Sirona and its successors and assigns are intended third-party beneficiaries of any OEM License Agreement (as defined in Section C) regarding the Implant Studio software due to their rights in the Sirona Patent Rights that claim technology in the Implant Studio software, and have the right to enforce the terms of such OEM License Agreement (to the extent the terms concern the subject matter of this Special Section II) directly against the applicable End User.