TERMS AND CONDITIONS

1. DEFINITIONS

1.1. ‘3Shape’ means the legal entity 3Shape TRIOS A/S, business reg. no. 33 36 87 71, Holmens Kanal 7, 1060 Copenhagen, Denmark.

1.2. ‘3Shape LMS’ means the cloud-based platform, 3Shape lab management software, offered by 3Shape that assists the dental labs with case and order management; production flows and scheduling; and invoicing and shipping of dental restorations.

1.3. ‘API’ means an application programming interface that enables communication and data exchange between different software systems.

1.4. ‘Case’ means an order of dental lab work managed by 3Shape LMS, e.g. a crown or a bridge, regardless of whether the case arrives digitally or is entered manually in 3Shape LMS.

1.5. ‘Confidential Information’ means information as defined in Section 11.

1.6. ‘Customer’ means any physical person or legal entity that has registered an account at 3Shape LMS.

1.7. ‘Force Majeure’ means incidents as defined in Section 19.

1.8. ‘Know-how’ means all ideas, concepts, schemes, information, knowledge, techniques, methodology and anything else of the same nature related to the Services and/or 3Shape LMS.

1.9. ‘Input Data’ shall mean all data uploaded by the Customer to 3Shape LMS, including but not limited to intra-oral scans, x-rays, patient photos, patient data (name, birthdate, gender, tooth number, shade, restoration), dentist data (legal entity, address, contact information) and production data (batch number of material).

1.10. ‘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.

1.11. ‘Malicious Code’ means code, files, scripts, agents or programs intended to do harm, including, inter alia, viruses, worms, time bombs and Trojan horses.

1.12. ‘Party’ means 3Shape and the Customer referred to individually.

1.13. ’Parties’ means 3Shape and the Customer referred to collectively.

1.14. ‘Services’ means the software services offered by 3Shape to the Customer on the 3Shape LMS platform.

1.15. ‘Terms’ means the terms set out in this document.

1.16. ‘User’ means any physical person accessing 3Shape LMS or using the Services on behalf of the Customer.

2. SERVICES

2.1. Right to use: Subject to these Terms, 3Shape grants to the Customer a non-exclusive, non-transferable, non-sublicensable, time-limited, revocable license to access and use the Services for an unlimited number of User(s). All rights not expressly granted to Customer shall be reserved by 3Shape and its licensors.

2.2. Modifications: 3Shape reserves the right to make changes, modifications and enhancements to the Services from time to time. 3Shape explicitly does not promise any future functionality or features, and 3Shape does not warrant that any current features or functionality will be maintained in the future.

3. IPR

3.1. 3Shape IPR: The Customer acknowledges and agrees that title to and ownership of 3Shape LMS, the Services, any related software or technology, algorithms, user-interface designs, architecture, network designs and documentation will remain vested in 3Shape at all times and for all purposes. Similarly, any enhancements, modifications, extensions and derivative works shall belong to 3Shape. The Customer will not take any action inconsistent with 3Shape’s rights in and to the Services.

3.2. Customer IPR: The Customer shall retain IPR to any Input Data provided by the Customer to 3Shape LMS, but derivative works based hereon, i.e. when Input Data is used for product development, statistical or commercial purposes, shall belong to 3Shape.

3.3. Feedback: The Customer grants to 3Shape a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into 3Shape LMS and the Services any suggestion, enhancement, request, recommendation, correction or other feedback provided by the Customer relating to 3Shape LMS or the Services.

4. CUSTOMER DATA

4.1. Appropriate rights: The Customer represents and warrants that the Customer has all appropriate rights, including IPR, to any Input Data or any other data shared by Customer with 3Shape in any way.

4.2. Responsibility: The Customer shall have sole responsibility for ensuring the accuracy, quality, integrity, legality, reliability and appropriateness of any Input Data and any other data shared by Customer with 3Shape in any way.

4.3. License to use: 3Shape shall have a worldwide, perpetual, irrevocable, royalty-free license to:

(i) handle Input Data provided by the Customer when providing the Services on 3Shape LMS;

(ii) use the Customer’s Input Data on an anonymised basis for product development, statistical and commercial purposes; and

(iii) use the Customer’s identifying materials, e.g. trademarks and branding, when the Customer uses such identifying materials in the process of using the Services (e.g. for invoices to customers of the Customer).

4.4. Data sharing: 3Shape reserves the right to share data, including Input Data, with external parties on an aggregated level for dental services, e.g. material stock management. Usage data may also be shared with 3Shape resellers for on-boarding and support purposes.

4.5. Data retention: The Customer agrees and acknowledges that:

(i) 3Shape has no obligation to retain Input Data for longer than 30 days after termination or expiry of the subscription; and

(ii) 3Shape has no obligation to retain data, and may delete data, if the Customer has breached these Terms, including but not limited to failure to pay outstanding fees.

5. BETA VERSION

5.1. Background: 3Shape may choose, e.g. as part of launch of 3Shape LMS and/or the Services or as part of the launch of new versions or features, to provide a beta version (“Beta”). 3Shape will inform the Customer that 3Shape LMS and/or the Services are run in Beta. In Beta, the Customer may get full access to Premium features that may otherwise require payment.

5.2. Payment: 3Shape will not charge the Customer as long as 3Shape LMS and/or the Services are running in Beta. 3Shape will inform the Customer of the time when the Beta ends, and hereafter the Customer may be charged, as regulated elsewhere in these Terms.

5.3. Beta Condition: The Customer acknowledges and agrees that:

(i) 3Shape LMS and/or Services run in Beta (together “Beta Services”) have not been commercially released and are expected to have defects, which may be material;

(ii) Beta Services may not operate properly or operate at the level of performance or compatibility of a final, generally available

product offering;

(iii) Beta Services may contain errors, design flaws or other problems;

(iv) the information obtained using the Beta Services may not be accurate;

(v) use of the Beta Services may result in unreliable results, loss of data or other unpredictable damage or loss; and

(vi) 3Shape is under no obligation to release a commercial version of the Beta Services.

5.4. Customer Responsibilities: The Customer acknowledges and agrees that it should not rely on the Beta Services for any reason. 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 Beta Services. 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 Beta Services.

5.5. BETA WARRANTIES: BETA PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. 3SHAPE MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, THAT BETA PRODUCTS, INCLUDING ANY SERVICES RELATED THERETO OR RESULTS THEREOF, WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. 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, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TESTER BEARS THE SOLE RESPONSIBILITY AND RISK FOR ITS AND ITS REPRESENTATIVES’ USE OF AND RELIANCE ON THE BETA PRODUCTS AND ANY LEGAL COMPLIANCE RELATED THERETO.

6. API

6.1. API license: To the extent that the Customer needs an API and such API usage has been approved by 3Shape, 3Shape grants to the Customer a non-exclusive, non-transferable, time-limited and non-sublicensable license to use the API provided by 3Shape to communicate with the 3Shape LMS platform and/or the Services. The API license can be terminated with immediate effect by 3Shape, including but not limited to situations where the Customer has violated these Terms. The API license shall automatically terminate if the Customer’s subscription expires.

6.2. Confidential Information and Know-how: The Customer acknowledges that the APIs may contain Confidential Information and Know-how and that such Confidential Information and/or Know-how may only be used to the extent necessary.

6.3. Open source software: If the Customer uses open source software in conjunction with the APIs, the Customer must ensure that the use of such open source software does not

(A) create, or purport to create, obligations on 3Shape with respect to the software; or

(B) grant, or purport to grant, to any third party any rights to or immunities under 3Shape’s IPR in the APIs.

6.4. Customer obligations: The Customer undertakes not to

(a) disclose any performance, benchmarking, or feature-related information about the APIs;

(b) distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the APIs;

(d) disclose, transfer or otherwise provide to any third party any portion of the APIs or Confidential Information or Know-how;

(e) develop an application using the APIs and any open source software that results in any program file(s) that contain code from both the APIs and any open source software (including without limitation libraries), if the open source software is licensed under a license that requires any "modifications" be made freely available. The Customer also may not combine the APIs with programs licensed under the GNU General Public License (GPL) in any manner that could cause, or could be interpreted or asserted to cause, the APIs or any modifications thereto to become subject to the terms of the GPL; and

(f) include or introduce any Malicious Code that may (or are intended to) damage, interfere with or expropriate any system or data.

6.5. 3Shape approval of software: Any application or software created using the API, or connecting to 3Shape LMS through the API, must be submitted for review by 3Shape prior to being made available for use. 3Shape is entitled to restrict the use of any application or software which has not been approved by 3Shape.

6.6. IPR: All IPR to the APIs (including all copies thereof) shall remain with 3Shape. The Customer shall retain ownership and IPR in any applications or software created and utilized by the Customer with the APIs, except that all ownership rights and IPR to any element of the APIs incorporated into or embodied in applications or software developed by the Customer shall remain with 3Shape.

7. CONTENT

7.1. Input Data: The Customer acknowledges that when uploading Input Data any guidelines communicated by 3Shape below must be strictly adhered to, including but not limited to situations where such Input Data is deemed by 3Shape to violate third party rights. 3Shape reserves the right to amend Input Data if required for the functionality of the services, e.g. in related to support where Input Data has been uploaded by the Customer.

7.2. Indemnification: The Customer indemnifies 3Shape for any claims by third parties of infringement of third party rights, including copyrights, trademarks or other proprietary rights, resulting from the Customer’s or its employees’ upload of Input Data or personal data, see Section 7.1.

7.3. Other content: Other than Input Data, the content and information on 3Shape LMS is proprietary to 3Shape, and the Customer agrees not to modify, copy, distribute, transmit, share, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any 3Shape content obtained from the use of 3Shape LMS or the Services.

7.4. Acceptable use: In relation to content uploaded as part of Input Data, or any other communications or actions taken by the Customer, or any User, on 3Shape LMS, the acceptable use standards listed in Appendix I must be strictly adhered to at all times.

8. SUBSCRIPTION

8.1. Subscription Models: 3Shape LMS contains two models: a free model (Essentials) and a paid model (Premium). The model will be chosen by the Customer during the online sign-up process.

8.2. Essentials: The Essentials subscription is free, but is limited in functionality, on-boarding and support.

8.3. Premium: The Premium model is paid for by the Customer on a monthly basis. It is unlimited in functionality but may be limited in the number of cases.

8.4. Changes: The Customer may change subscription model (Essential or Premium) and/or price plan (within Premium) by reaching out to 3Shape. Changes will be effective as follows:

(i) From Essentials to Premium: Effective immediately;

(ii) From Premium to Essentials: Effective on the first day of the next billing cycle;

(iii) Change of price plan within Premium: Effective on the first day of the next billing cycle.

9. PRICING AND PAYMENT

9.1. Pricing: The pricing of the Premium model is subject to change from time to time at 3Shape’s sole discretion. Pricing may be subject to local, state, federal or national taxes as applicable. The Customer shall be responsible for payment of all such taxes, excluding only taxes based on 3Shape’s income. If pricing is based on number of cases, internal remakes (e.g. if the lab makes a faulty product and a new product is required) are not counted, and similarly cancelled cases will not be counted. Digital cases (TRIOS) received in 3Shape LMS, but not yet accepted, will not be counted as additional cases.

9.2. Beta and Free Trials: Beta versions and free trials may be offered by 3Shape from time to time, including beta related to new versions and/or product features, subject to conditions provided in more detail on 3Shape.com.

9.3. Payment: The Customer shall pay all fees and charges. All fees and charges shall be prepaid, unless explicitly stated otherwise. All payment obligations are non-cancellable, and all amounts paid are non-refundable, even in the event of termination.

9.4. Means of payment: Payment for the Premium model, or other paid services on the platform, requested by the Customer shall be paid via an authorised credit card or by other means as indicated on the payment page. If nothing else follows from the payment page, the Services shall be prepaid.

9.5. Non-payment: 3Shape reserves the right to suspend or terminate the subscription and the Customer’s access to 3Shape LMS if:

(i) the Customer’s account becomes delinquent;

(ii) the Customer's credit card cannot be charged; or

(iii) the fees or charges are not transferred timely.

9.6. Interest: Delinquent invoices are subject to interest of 1.5% per commenced month on any outstanding balance, or the maximum permitted by law, whichever is less, from the due date, plus any expenses of collection.

10. CHANGES

10.1. Right to change: 3Shape reserves the right to make changes to 3Shape LMS and the Services without notice. Such changes may both involve improvements or changes in the Services and changes in the information or content provided on 3Shape LMS.

11. CONFIDENTIALITY

11.1. Confidential Information: Through using 3Shape LMS, the Customer may obtain access to 3Shape confidential information. Such information may include but not be limited to bugs and errors and feedback relating hereto; development of 3Shape LMS and new features; and pricing of the Services.

11.2. Confidential Information shall not include information that:

(A) is or becomes a part of the public domain through no act or omission of the Customer;

(B) was in the Customer’s lawful possession prior to the disclosure and had not been obtained by the Customer either directly or indirectly from 3Shape;

(D) is independently developed by the Customer.

11.3. Confidentiality period: The Customer agrees not to disclose Confidential Information for as long as the Customer has access to the Services, and for a period of 3 (three) years thereafter.

12. MARKETING CONSENT

12.1. Marketing consent: As part of the sign-up process, a Customer can choose whether to give consent to marketing. Marketing consent implies acceptance of newsletters and offers from 3Shape.

12.2. Revocation of consent: If the Customer wishes to revoke 3Shape’s right to contact the Customer, the Customer may unsubscribe via the links provided in the marketing material in 3Shape LMS. 3Shape remains entitled to continue to contact the Customer for other relevant purposes, such as unauthorised account access.

13. 3SHAPE WARRANTIES

13.1. LIMITATION OF WARRANTIES: 3SHAPE LMS AND THE SERVICES ARE 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:

(a) THE SERVICES WILL BE PERFORMED ERROR-FREE, UNINTERRUPTED, TIMELY OR SECURE;

(b) ANY STORED DATA WILL BE ACCURATE OR RELIABLE;

(d) THE QUALITY OF ANY PRODUCT, SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED, CREATED OR OBTAINED THROUGH 3SHAPE LMS OR THE SERVICES WILL MEET REQUIREMENTS OR EXPECTATIONS;

(e) THE THIRD-PARTY SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONTENTS;

(f) THE SERVICES WILL OPERATE IN COMBINATION WITH THE CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA; OR

(g) THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.

13.2. TRANSFER OF DATA: THE CUSTOMER ACKNOWLEDGES THAT 3SHAPE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES 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.

13.3. ATTACKS AND INTRUSION: 3SHAPE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE CUSTOMER HEREBY RELEASES 3SHAPE FROM ANY LIABILITY RELATING THERETO.

13.4. 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 3Shape LMS AND/OR THE SERVICES. 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.

13.5. CUSTOMER OR THIRD PARTY CONTENT OR APPLICATIONS: 3SHAPE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES 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.

13.6. INTERNET DELAYS: 3SHAPE LMS AND/OR THE SERVICES 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.

14. CUSTOMER WARRANTIES

14.1. Legal power: The Customer warrants that the Customer has the legal power and authority to enter into these Terms. The Customer further represents and warrants that the Customer has not falsely identified itself nor provided false information to gain access to 3Shape LMS and/or the Services.

14.2. User(s)’ violation of Terms: The Customer warrants that any User(s) acting on the Customer’s behalf or gaining access to 3Shape LMS or the Services by the use of the Customer’s account have been fully informed of these Terms and will adhere to these Terms at all times. Any violation of these Terms by any User(s) acting on the Customer’s behalf or gaining access to 3Shape LMS or the Services by the use of the Customer’s account shall be considered a violation of the Terms by the Customer itself.

14.3. Invoicing: The Services may contain an invoicing module that the Customer can use for invoicing of the Customer’s customers. However, the Customer acknowledges and warrants that the Customer is solely responsible for the proper calculation of prices, rebates, sales tax and other charging elements towards the Customer’s customers. Further, the Customer is solely responsible to the Customer’s adherence to any accounting standards applicable to the Customer. 3Shape disclaims liability for any calculations errors or other errors caused by the invoicing module.

14.4. Regulatory: The Customer acknowledges and warrants that the Customer is solely responsible for compliance with any regulatory requirements that the Customer is subject to, and 3Shape explicitly disclaims liability to the extent that any features or functionality in 3Shape LMS and/or the Services are used by the Customer for regulatory compliance, including but not limited to the tracking of lot numbers for consumed materials, the issuance of patient statements or other regulatory requirements.

14.5. Export control laws: The Customer acknowledges that the Services 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 an embargoed country or prohibited user under applicable laws.

14.6. Payment cards: In the event that the Customer processes credit cards through a payment gateway connected to 3Shape LMS, the Customer acknowledges its obligations under relevant legislation, including but not limited to the Payment Card Industry Data Security Standard (PCI DSS), and the Customer represents and warrants to:

(i) Implement and maintain reasonable security measures to protect cardholder data in its possession;

(ii) Not to store any cardholder data (even if encrypted) in any custom field; and

(iii) adhere to applicable legislation on credit card processing and cardholder data.

15. LIABILITY

15.1. NO LIABILITY FOR INDIRECT DAMAGES: IN NO EVENT WILL 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 3SHAPE LMS OR THE SERVICES, 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.

15.2. CAP ON LIABILITY: THE MAXIMUM AGGREGATE LIABILITY OF 3SHAPE UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO 3Shape LMS, THE SERVICES OR ANY FREE SERVICES 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 SERVICES IN THE SIX (6) 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.

15.3. BETA/FREE TRIALS: 3SHAPE HAS NO LIABILITY OF ANY KIND FOR PRODUCTS OR SERVICES PROVIDED AS BETA VERSIONS OR AS FREE TRIALS.

15.4. 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.

16. DATA LOSS

16.1. 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.

17. PATIENT TREATMENT

17.1. Liability for patient treatment: The Customer acknowledges that 3Shape only makes 3Shape LMS and the Services available to the Customer, but that 3Shape does not provide any patient treatment(s). The Customer further acknowledges that 3Shape shall not be liable for any patient treatments facilitated through the Customer’s use of 3Shape LMS or the Services, 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.

18. INDEMNIFICATION

18.1. No 3Shape indemnification: 3Shape does NOT agree to indemnify, defend or hold harmless against or from any claims, causes of action and/or damages to any third party(ies) resulting from or arising out of the use of 3Shape LMS or the Services, or from any defect in any dental product manufactured or produced by any laboratory, manufacturer or clinician.

18.2. Customer indemnification: The Customer agrees to indemnify, defend and hold harmless 3Shape from and against any loss, cost, claims, liabilities, damage or expenses of any kind, including attorneys fees, arising out of or otherwise resulting from any claim related to these Terms, including breach of these Terms by the Customer, or any claim alleging that use or processing of Input Data or Customer IPR infringes any third-party rights.

19. FORCE MAJEURE

19.1. 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 these Terms arising by reason of force majeure, i.e. circumstances beyond the control of 3Shape which shall include, but not be limited to, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, epidemic or pandemic outbreak and labour disputes of whatever nature and for whatever cause arising including work to rule, overtime bars, strikes and lockouts.

20. ASSIGNMENT

20.1. The Customer’s assignment: The Customer may not assign any rights nor obligations under these Terms or give or transfer the Services or an interest in them to any other individual or legal entity.

20.2. 3Shape’s assignment: 3Shape may assign the Customer’s subscription, including any rights and obligations, to any of its affiliates, i.e. legal entities under the same ultimate control as 3Shape.

21. AMENDMENT

21.1. Right to amend: 3Shape shall have the right to unilaterally amend these Terms at any time. The new version of the Terms shall have effect 30 (thirty) calendar days from the date when it is posted online. Previous versions of the Terms can be obtained by sending an email to: [email protected].

21.2. Acceptance of amendment: 3Shape will use reasonable commercial efforts to notify the Customer and Users if these Terms are changed. If the Customer continues to use the Services after the time when the amended Terms take effect, the Customer shall automatically be considered to have accepted the amended Terms.

22. TERM AND TERMINATION

22.1. Commencement: These Terms shall take effect when accepted by the Customer as part of the sign-up process. 3Shape will use reasonable commercial efforts to ensure that 3Shape LMS cannot be accessed without accepting the Terms, but to the extent that such access control is not functioning, or the Customer or any other User manages to circumvent the requirement of acceptance of the Terms as a precondition for accessing or using 3Shape LMS or the Services, these Terms shall apply nonetheless.

22.2. Moving of Premium Customer to Essentials: If a Premium Customer does not pay timely, 3Shape reserves the right to choose, at 3Shape’s discretion:

(i) to move such Premium Customer to Essentials;

(ii) to put it on hold, at 3Shape’s discretion; or

(iii) to terminate the subscription.

22.3. 3Shape termination of Premium subscription: 3Shape may suspend or terminate the Customer’s use of and access a Premium subscription immediately and without notice for the following reasons;

(a) permitting another person or entity to use your user identification to access 3Shape LMS;

(b) any unauthorized access or use of 3Shape LMS;

(d) tampering with or alteration of any of the software and/or data files contained in, or accessed through, 3Shape LMS or the Services.

22.4. 3Shape termination of Essentials subscription: 3Shape may suspend or terminate the Customer’s use of and access to an Essentials subscription immediately and without notice at its discretion, including situations where:

(i) any of the reasons listed above under termination of a Premium subscription;

(ii) the Customer has not used the Essentials subscription for 90 (ninety) calendar days; and

(iii) the Customer has, by 3Shape’s assessment, uploaded an unreasonable amount of data.

22.5. Customer/User termination of subscription: A subscription may be terminated at any time by emailing 3Shape on [email protected]. Any outstanding credit will be lost upon termination, and 3Shape shall have no liability as a result of the Customer’s or User’s termination of a subscription.

22.6. Terms surviving termination: Provisions that survive termination or expiration of these Terms are those relating to IPR, Customer Data, confidentiality, 3Shape warranties, Customer’s warranties, liability, patient treatment, indemnification, applicable law and venue and other provisions which by their nature are intended to survive.

23. APPLICABLE LAW AND VENUE

23.1. Applicable law: These SaaS Terms 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.

23.2. 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.

24. APPENDICES

Appendix 1: Acceptable use

APPENDIX I: ACCEPTABLE USE

1. ACCEPTABLE USE STANDARDS

1.1. To help ensure a safe and productive environment, all Users accessing 3Shape LMS, shall comply with the following acceptable use standards when using the 3Shape LMS:

(a) Comply with all applicable laws and government regulations, including, without limitation, privacy laws, intellectual property laws, export control laws, labor and employment laws, tax laws, and regulatory requirements;

(b) Upload and distribute only Input Data to which the Customer owns all required rights under law and under contractual relationships and do so only in compliance with all applicable laws and governmental regulations;

(d) Use commercially reasonable efforts to prevent unauthorized access to 3Shape LMS;

(e) Protect passwords and access to sensitive personal information and other information that is confidential in nature;

(f) Monitor and control activities conducted through the 3Shape LMS account;

(g) Promptly notify 3Shape of any illegal or unauthorized activity or security breach, including any loss, theft or unauthorized disclosure or use of a username or password;

(h) Review and comply with notices and guidelines sent by 3Shape concerning 3Shape LMS and/or the Services;

1.2. Further, the User, agrees NOT to do any of the following:

(a) License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way;

(b) Publish or input inaccurate information;

(d) Upload, post, transmit or otherwise make available any content that:

(i) is unlawful, abusive, obscene, discriminatory or otherwise objectionable;

(ii) includes information that the User does not have the right to disclose or make available under any law or under contractual or fiduciary relationships;

(iii) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; or

(iv) contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of 3Shape or any other User.

(e) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide 3Shape LMS or the Services;

(f) Utilize or copy information, content or any data the User views on and/or obtains from 3Shape to provide any service that is competitive, in 3Shape’s sole discretion, with 3Shape LMS or the Services;

(g) Adapt, modify or create derivative works based on 3Shape intellectual property or technology underlying 3Shape LMS or the Services;

(h) Rent, lease, loan, trade, sell/re-sell access to 3Shape LMS or any information therein, or the equivalent, in whole or part;

(i) Remove any copyright, trademark or other proprietary rights notices contained in or on 3Shape LMS;

(j) Infringe or use 3Shape’s brand, logos and/or trademarks, including, without limitation, using the word “3Shape” in any business name, email, or URL, except as expressly permitted by 3Shape;

(k) Access 3Shape LMS for purposes of monitoring 3Shape LMS or the Services’ availability, performance or functionality for any competitive purpose, including for purposes of building a similar or competitive product or service or to copy any ideas, features, functions or components of 3Shape LMS;

(l) Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of 3Shape LMS or the Services;

(m) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

(n) Attempt to or actually access 3Shape LMS or the Services in any unauthorized manner or by any means other than through the interfaces provided by 3Shape;

(o) Attempt to or actually override any security component included in or underlying 3Shape LMS or the Services;

(p) Use 3Shape LMS or the Services in a manner that may harm minors or that interacts with or targets people who are under the age of 18 (eighteen);

(q) Plan or engage in any illegal, fraudulent or unethical activity;

(r) Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on 3Shape’s infrastructure, including, but not limited to, attempting to gain unauthorized access to 3Shape LMS or the Services, or transmitting or activating software viruses, worms, Trojan horses or other harmful code, files, scripts, agents or programs through or on 3Shape LMS or the Services; or

(s) Interfere with or disrupt 3Shape, 3Shape LMS or the Services, including, but not limited to, any servers or networks connected to 3Shape.

1.3. These acceptable use standards shall not hinder the Customer in utilizing the Services for its internal business purposes by allowing the customers of the Customer to access certain functionalities of the Services, as enabled by 3Shape.

2. REPORTING

2.1. If a User experiences inappropriate behaviour or content, including, but not limited to, violations of these acceptable use standards, the User shall promptly report such inappropriate behaviour or content to 3Shape on: [email protected].