The terms and conditions (“terms”) set forth the terms by which the customer has agreed to purchase, and 3Shape has agreed to supply, the products and services in the order the customer submits and 3shape accepts via the 3shape ecommerce platform and, unless the parties otherwise agree, each subsequent order between the parties.
- “3Shape” means, collectively, 3Shape Inc., 3Shape A/S, 3Shape TRIOS A/S and 3Shape Medical A/S.
- "3Shape Account" is the account used on the eCom platform or any of the 3Shape platforms. The account will be created by or for ?the customer if the customer does not already have a 3Shape Account prior to the purchase.
- “Customer” means, collectively, the entity identified as the owner of the 3Shape Account and any affiliate identified on the Order.
- “Customer Data” means data and information Customer provides or makes available to 3Shape in connection with the Order or Customer’s use of Software, including information concerning Customer’s patients, suppliers, employees, and agents.
- “Documentation” means the instruction manuals and videos, service manuals and videos, and other similar materials 3Shape provides or makes available to Customer and relating to a Product.
- “Equipment” means hardware products such as a TRIOS Product, and all Software embedded in, integrated with, or otherwise associated with the hardware products, and peripherals that are identified in the Order.
- “EULA” means the End User License Agreement accompanying the Software or available at https://www.3shape.com/en/euladpa.
- “Intellectual Property Rights” means all copyrights, patents, trade secrets, trademarks, trademark rights, service marks, trade names, industrial designs, discoveries, inventions (whether patented or not), developments or other intellectual proprietary rights registered or recognized by the Laws of any country or state.
- “Law” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, ordinances, and requirements of any government authority (federal, state, provincial, local, or international) having jurisdiction.
- “Order” has the meaning given in Section 2(b) below.
- “Product” means Software or Equipment.
- “Services” means any and all delivery, installation, training, and support services provided to Customer by 3Shape, in each case as specified by the Order.
- “Software” means the software program(s), firmware, program interfaces and any tools or object libraries embedded in the software, identified on the Order as being licensed to Customer by 3Shape and includes any customizations, updates, enhancements and error corrections to the Software.
- “TRIOS Product” means the TRIOS Scanners, TRIOS Scanning Software, MOVE+.
- “Warranty Period” means the twelve (12) month period following the date of delivery.
2. CUSTOMER ACCOUNT; ORDERS
- Customer Account. Customer must keep its 3Shape Account profile up to date with accurate information, including contact information, office location, scanners payment card or other payment information, and shipping details. Customer is solely responsible for maintaining the confidentiality of its account and password and for restricting access to its account. Customer is solely responsible for all activities that occur under its account or password. 3Shape never asks Customers for their password, and Customers should never reveal their 3Shape password in any forum. 3Shape is not responsible for unauthorized access to Customer’s account. Customer is not permitted to sell or otherwise transfer its account without prior written approval from 3Shape.
- Orders. The Order will be deemed accepted only when 3Shape sends an email to Customer accepting the Order (such accepted Order being referred to in these Terms as an “Order”). 3Shape’s confirmation on the 3Shape eCommerce Platform that it has received an Order or processed payment does not constitute acceptance. Each accepted Order will be deemed a separate agreement between the parties, governed by these Terms.
- Quotations. Customer, before placing an Order, may request that 3Shape provide Customer with a quotation. Quotations are valid for 30 days unless anything else is stipulated in the quote.
- Cancellation; Returns. An Order may be cancelled by 3Shape or Customer at any time before shipment of the applicable Product(s). Customer may return Products within thirty (30) days from delivery, provided that the Product is unopened and remains in its original packaging. Upon 3Shape’s receipt of the Products, any payments will be refunded to the Customer, however subtracting a restocking fee covering cost of returning and handling to the applicable 3Shape entity, which is equivalent to the initial shipping fee paid by Customer. Please contact 1 888 3SHAPE4 (1.888.374.2734) to speak to a customer service liaison for assistance. Notwithstanding the above, cancellations or returns of Software that can be considered standalone, such
3. CUSTOMER DATA
- Customer Data. 3Shape acknowledges that the Customer Data is the Confidential Information of the Customer and the Customer Data is, and will, remain the sole and exclusively property of the Customer. Customer grants 3Shape an irrevocable, perpetual, assignable, worldwide, royalty-free, fully paid right to use, modify, copy, process, display and prepare derivative works of the Customer Data (i) for purposes of 3Shape performing its obligations under these Terms and the Order, (ii) to standardize, validate, aggregate and process the data in Order to create aggregated and summarized data of the Products that may be used by 3Shape or its affiliates as a data source in connection with the provision of Services to Customer and other 3Shape customers, and (iii) internally by 3Shape for analytical purposes, including to enhance and create 3Shape proprietary algorithms; provided in no event will 3Shape provide any third party with personally identifiable information (including personal health information and PHI originating from such Customer Data. Notwithstanding any other term of these Terms or the Order, 3Shape may access and use, and will retain all right, title and interest in transactional and performance data related to use of the Product collected by 3Shape.
4. CUSTOMER ACCOUNT; ORDERS
- Software License. 3Shape grants Customer a personal, nonexclusive, non-transferable license (with no right of sublicense or resale) under 3Shape’s Intellectual Property Rights to use (i) firmware and other Software embedded in, integrated with or otherwise supplied with Equipment solely for use with the Equipment, and (ii) the number of copies of the Software (if any) specified in the Order solely for Customer’s internal business purposes. The license will be for the object code only and will be further limited as provided by the Order. 3Shape may launch new releases of the Software at any time at its sole and absolute discretion. Customer will be responsible for ensuring that all users it authorizes to access and use the Software comply with these Terms, the Order, and the EULA. Customer will be liable for any breach of these Terms, the Order, or the EULA by any such authorized user.
- Limitations. Customer will not alter, modify, decompile, disassemble, reverse engineer, translate, or create derivative works based on, the Software. Without limiting the foregoing, Customer will not reproduce, copy, translate, publish, or use the Software for the benefit of any third party, nor permit any third party to use the Software, without 3Shape’s prior written consent. Customer will not use the Software to process data for the benefit of any third party on a “service bureau” basis or otherwise.
- Operating Environment. Customer acknowledges that the Software is designed to operate in an environment as specified in the applicable Software Documentation.
5. FEES; PAYMENT TERMS
- Prices. The prices for the Products will be as set forth in the Order. Prices may be indicated on 3Shape’s website, but the authoritative price in the event of any discrepancy, is the price set forth in the Order. If the price of a Product or Service is obviously incorrect, regardless of whether it is an error in a price posted on the 3Shape website, eCommerce Platform or otherwise communicated to Customer, 3Shape reserves the right, at 3Shape’s sole discretion, to cancel an Order and refund Customer the amount paid, regardless of how the error occurred.
- Taxes and Fees. Customer will be solely responsible to pay when due any and all taxes, assessments, levies and fees, and any and all other charges, interest and penalties, now or hereafter imposed by any government authority relating to the license granted or services rendered to Customer, excluding taxes based upon the net income of 3Shape. Customer is responsible for the payment of any shipping charges and handling charges.
- Payment Terms.
- Payment will be made by the payment method selected during the Order completion process through the 3Shape eCommerce Platform. 3Shape will charge Customer’s credit or debit card upon Order completion or commencement of Services. 3Shape reserve the right to verify and/or authorize credit or debit card payments prior to accepting an order. 3Shape will have no obligation to process any Order until it has verified Customer’s payment method.
- Customer authorizes 3Shape to charge Customer’s credit card for the initial fees and any renewal fees for the Products and Services. Customer acknowledge that 3Shape’s third party payment provider receives and stores Customer’s credit card information for this purpose. If 3Shape is unable to process Customer’s payment using Customer’s designated payment method, 3Shape reserves the right to charge any payment method it has on file for Customer or that 3Shape obtains through a payment card “updater” service or other similar means.
- Where the Order contemplates that the payment will be done as a bank transfer, each invoice will be due and payable in full by the due date specified on the invoice, and if no date is specified on the invoice, within thirty (30) days of the date of invoice. If Customer fails to pay invoiced amount when due, unpaid amounts will accrue interest at the lesser of (A) one and one-half percent (1.5%) per month or (B) the maximum rate allowed by Law. Customer will reimburse 3Shape for any and all costs and expenses (including but not limited to court costs, legal expenses and reasonable attorney fees, whether by inside or outside counsel and whether or not suit is instituted) incurred in collecting or attempting to collect any amounts due and outstanding from Customer to 3Shape.
- If Customer elects to use the services of a third party payment or billing provider in connection with Customer’s purchase from 3Shape, Customer acknowledges that such services will be subject to the third party provider’s own terms and conditions and will pay any fees charged by the third party provider. Customer may be required to create an account with such third party provider and/or provide that third party provider with Customer’s bank account or credit/debit card details. 3Shape is not responsible for, and Customer will hold 3Shape harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
- If and to the extent Customer elects to finance the purchase of Products or Services including through a finance company affiliated with 3Shape, Customer (as between Customer and 3Shape) will be solely responsible for its relationship with the lender or lessor, provided, that Customer will address any issues or problems relating to the Products, 3Shape Services or 3Shape’s performance of these Terms or any Order solely with 3Shape and not with the lender or lessor.
- 3Shape will not be responsible for any misdirected payments by Customer as a result of cyber fraud (e.g., phishing) or Customer error.
- Without limiting 3Shape’s rights and remedies under these Terms or Law, 3Shape will be entitled to immediately suspend Customer’s access to and use of Products and Services
6. DELIVERY; INSPECTION
- Delivery. 3Shape will make commercially reasonable efforts to deliver the Products specified by each Order at the time and in the manner specified by the Order. 3Shape will promptly notify Customer if it becomes aware of any circumstances that may reasonably be expected to jeopardize the timely and successful delivery of any Product.
- Shipping. Unless otherwise set forth in an applicable Order, all shipments will be made DDP (Incoterms 2020) at Customer.
- Title; Risk of Loss. Title to the Equipment will pass to Customer upon delivery. Risk of loss or damage to the Equipment or any part of the Equipment will pass to the Customer upon delivery.
- Inspection; Remedies.
- Customer or its agent will inspect and accept all Products within ten (10) days following delivery. If any Product does not conform to the Order or its Product specifications, Customer must notify 3Shape, in accordance with Section 16(h) below, within such 10-day period, cf. section 16 (h).
- 3Shape, on receiving Customer’s notice of nonconformity, will provide Customer with instructions for the return of the nonconforming Product. Upon verifying that such Product is nonconforming, 3Shape will, in its sole and absolute discretion, repair or replace such non-conforming Product. Shipping costs to return nonconforming Product(s) will be paid by 3Shape, provided that 3Shape determines that the returned Product conforms to the Order and Product specifications, and 3Shape will invoice Customer for the costs associated with the returned Product. This Section sets forth 3Shape’s sole obligation and Customer’s sole remedy with respect to the delivery of nonconforming Products.
7. SHIPMENT AND INSTALLATION SCHEDULES
- 3Shape will use commercially reasonable efforts to meet shipment schedules. However, all shipment and installation dates provided by 3Shape are estimates only. 3Shape will have no liability whatsoever because of any delay in the delivery of all or any part of any Order or installation of the Products for any reason. Unless otherwise agreed in writing by 3Shape, Customer will reimburse 3Shape for all costs and expenses, including 3Shape’s personnel time, for any installation postponement requested by Customer within two (2) days of the scheduled installation date. Customer acknowledges that any such requested postponement may result in significant delay in rescheduling the Product installation.
8. INSTALLATION AND TRAINING
- 3Shape may offer training and installation and in its discretion, may charge a fee.
- Customers must seek 3Shape-authorized training from 3Shape.
9. SUPPORT SERVICES
- 3Shape commits to offer remote support. 3Shape may at its discretion charge a fee for offering support. Customer may contact support at https://help.3shape.com/en-US/ .
10. PROPRIETARY RIGHTS
- 3Shape (or third party licensor(s) having licensed such rights to the 3Shape) will retain all Intellectual Property Rights in and to the Products, Services and Documentation, and Customer during or at any time after the expiry or termination of these Terms and the Order will not in any way question or dispute the ownership thereof by 3Shape (or the third party licensor(s), as the case may be). Customer will not alter, obscure, remove, conceal or otherwise interfere with any eye-readable or machine-readable marking on or in the Products or its packaging which refers to 3Shape as author or developer of the Products or otherwise refers to the 3Shape’s copyright or other Intellectual Property Rights in the Products.
11. EXPRESS WARRANTIES; DISCLAIMERS
- Service Warranty. 3Shape warrants that the Services provided by 3Shape pursuant to these Terms and the Order will be of a competent and professional quality and performed in a competent and professional manner. The sole and exclusive remedy for a breach of this warranty is for 3Shape to re-perform the defective Services in a timely manner.
- Limited Product Warranty. Except as otherwise provided in these Terms, 3Shape warrants that any Product supplied by the Supplier under these Terms and the Order will during the applicable Warranty Period:
- conform to the Product specifications; and
- be free from defects in materials and workmanship under normal use and service. This limited warranty will not extend to:
- defects or problems caused by the Product (or parts of the Product) being or having been subjected to accident, acts of God, lightning, misuse, neglect, improper handling, improper transport, improper storage, improper use or application, improper installation, improper testing or unauthorized repair, or subjected to any alteration, modification, addition or customization not performed by the 3Shape or with the 3Shape’s prior written consent;
- cosmetic problems or defects which result from normal wear and tear under ordinary use of the Product;
- the replacement cost of any consumable goods; or
- problems caused by Customer’s failure to install the most recent release of Software.
- TRIOS Care. TRIOS Products may be eligible for the TRIOS Care extended warranty and other additional benefits described in the TRIOS Appendix located at https://www.3shape.com/en/services/trios-care/terms-conditions, which is incorporated into these Terms by reference. If there is a conflict between these Terms and the TRIOS Appendix, the terms of the TRIOS Appendix will control solely with respect to the subject matter thereof.
- Limited Remedy. 3Shape’s sole and exclusive liability for breach of the limited product warranty set forth in Section 11. (b) above will be, at 3Shape’s sole and absolute discretion, to repair or replace the defective Product or correct the problem by patch or new release of any Software or other software component.
- Disclaimer of Warranties. The Products and Services are not intended to diagnose disease, prescribe treatment, or perform any other tasks that constitute or may constitute the practice of medicine or of other professional or academic disciplines. The Products require the involvement of professional personnel. The Services and information provided by 3Shape to Customer and its authorized users is not intended to be a substitute for the advice and professional judgment of a professional dental/clinical personnel, as applicable. Customer and its authorized users will use their best clinical/professional judgment when acting upon information provided through the Products, Services or Documentation. Neither 3Shape nor its subcontractors are responsible for decisions made or actions taken or not taken in the use of the Products, rendering dental or clinical care or for information provided to insurance companies, governmental agencies, or other payers. 3Shape is not responsible for any errors or omissions or for any loss or damage resulting from the Products, including Customer’s reliance on the Documentation, technical advice, illustrations, representations as to quality or capabilities (whether oral or in writing), or any other information unless otherwise set forth in these Terms. SECTIONS 11(A), (B), (C) AND (D) SETS FORTH 3SHAPE’S SOLE WARRANTY OBLIGATIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, AND 3SHAPE MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY PRODUCT, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, AND DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY OF NON-INFRINGEMENT OR ANY WARRANTY EXPRESS OR IMPLIED THAT THE PRODUCT WILL YIELD ANY PARTICULAR RESULTS OR BENEFITS FOR CUSTOMER.
- No Oral Warranties. No employee, agent or representative of 3Shape has the authority to bind 3Shape to any oral representation or warranty concerning the Products or Services. ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THESE TERMS WILL NOT BE ENFORCEABLE BY CUSTOMER.
- The term “Confidential Information” for the purposes of these Terms will mean all confidential and proprietary information and trade secrets (whether or not in writing and whether or not patentable or copyrightable), owned or possessed by either party (the “Disclosing Party”) and disclosed by such party to the other party (the “Receiving Party”) prior to the expiration or termination of these Terms and the Order, including any data processes, computer or software products or programs, data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, manufacturing information and procedures; provided, that Confidential Information will not include information supplied to the Receiving Party that
- is or becomes available to the public other than as a result of disclosure by the Receiving Party or its employees in violation of these Terms;
- was known to the Receiving Party prior to disclosure pursuant to these Terms and the Order, as shown by written record, and was not otherwise restricted by contract or Law;
- becomes available to the Receiving Party, as supported by documentary evidence, on a nonconfidential basis from a third party not restricted by contract or Law regarding such information;
- is disclosed with the prior written consent of the Disclosing Party. The Disclosing Party has the right to inspect the Receiving Party’s records to determine the source of any Confidential Information claimed to be within any of the above exceptions. If the Receiving Party is directed to disclose Confidential Information pursuant to a judicial order or decree, it will first use reasonable efforts to provide the Disclosing Party with advance notice to permit the Disclosing Party to seek a protective order and otherwise restrict the disclosure of Confidential Information.
- The Receiving Party will use the Disclosing Party’s Confidential Information solely for the purposes contemplated in these Terms and the Order and will use the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses for its own confidential or like information. The Receiving Party will not disclose the Confidential Information of the Disclosing Party to any other party or use the Disclosing Party’s Confidential Information other than as required under these Terms or the Order; provided, however, that such Confidential Information may be disclosed to or used by employees, consultants or agents of the Receiving Party who need to know or use the same for the purposes contemplated by these Terms and the Order and who are subject to a contractual obligation not to disclose any of the Confidential Information obtained in the course of its relationship with the Receiving Party.
- Except as otherwise provided in these Terms, upon written request of the Disclosing Party the Receiving Party will return to the Disclosing Party all electronic media and all written material in any form whatsoever that contains the Disclosing Party’s Confidential Information, including all internal notes, memoranda, and all copies, extracts or other reproductions thereof.
- The Receiving Party will promptly notify the Disclosing Party of any breach of these confidentiality provisions committed by any person to whom the Receiving Party has disclosed Confidential Information, will cooperate with the Disclosing Party in its efforts to remedy the breach, and will indemnify the Disclosing Party against all costs, expenses, and damages (including reasonable attorneys’ fees) attributable to any such breach.
- The parties acknowledge that remedies at Law may be inadequate to protect against a breach of the provisions of this Section and both parties consent to the grant of injunctive relief or a restraining order in favor of the other party without proof of actual damages for any breach of this Section.
- For US, confidential Information does not include Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability of 1996 and its implementing regulations, all as amended (“HIPAA”).
- Termination. If either party commits a material breach of these Terms or the Order, the other party by written notice may terminate the applicable Order. Such termination notice will take effect on the eighteen (18th) day following the breaching party’s receipt of the notice unless the breaching party cures its breach within the applicable period, except that if the breach is not capable of cure within such period, termination notice will take effect immediately upon receipt by the breaching party.
- Effect of Termination. Upon the effective date of termination: (i) 3Shape may immediately terminate 3Shape eCommerce Platform access and its provision of Products or Services; (ii) Customer will promptly pay 3Shape any and all unpaid amounts due and owing; and (iii) 3Shape may, at its sole and absolute discretion, terminate any and all Orders, including pending Orders, for Products and Services and refuse to accept any future Orders from Customer. All provisions of these Terms that would, by its nature, be expected to survive termination of these Terms (whether or not so expressly stated), will survive the expiration or termination of these Terms.
14. INDEMNIFICATION, LIMITATIONS OF LIABILITY, INSURANCE AND LEGAL COMPLIANCE
- Indemnification. Customer, at its expense, will indemnify, defend, and hold the 3Shape and its affiliates and their respective officers, directors, employees, contractors, agents, successors and assigns, harmless from all costs, expenses, damages, liabilities, losses and judgments, including attorneys’ fees and legal expenses (collectively, “Losses”), and threatened Losses relating to a third party claim arising from, or in connection with (i) Customer’s breach of these Terms and the Order, (ii) Customer’s negligent acts or omissions and (iii) Customer’s failure to comply with applicable Law, except to the extent that any such Losses arise out of, are based upon, or result from the gross negligence or willful misconduct of 3Shape.
- Limitations of Liability.
- 3SHAPE WILL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST REVENUE OR LOST PROFITS, LOSS OF DATA, LITIGATION EXPENSE, DAMAGE TO REPUTATION, LOSS OF BUSINESS OR ANY OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES, INCLUDING INSTALLATION, PERFORMANCE, FAILURE, USE OR INTERRUPTED USE OF THE PRODUCTS OR SERVICES OR ANY COMPONENT THEREOF, OR FROM 3SHAPE’S NEGLIGENCE OR OTHER FAULT IN CONNECTION THEREWITH. 3SHAPE’S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM THE PRODUCTS OR SERVICES, 3SHAPE’S PERFORMANCE OR BREACH HEREOF, WILL NOT: (A) WITH RESPECT TO CLAIMS ARISING OUT OF THE SOFTWARE OR SERVICES, EXCEED THE TOTAL OF ALL SUMS PAID BY CUSTOMER TO 3SHAPE FOR THE AFFECTED SOFTWARE OR SERVICE UNDER THE ORDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION INITIALLY AROSE; AND (B) WITH RESPECT TO EQUIPMENT, EXCEED TOTAL FEES PAID BY CUSTOMER TO 3SHAPE FOR THE EQUIPMENT UNDER THE ORDER, AMORTIZED OVER A PERIOD OF [FIVE (5)] YEARS.
- CUSTOMER ACKNOWLEDGES THAT THE DISCLAIMER OF WARRANTY IN SECTION 11 AND THE LIMITATION OF LIABILITY IN THIS SECTION ARE ESSENTIAL PARTS OF THESE TERMS, WITHOUT WHICH 3SHAPE WOULD NOT ENTER INTO THESE TERMS. CUSTOMER ACKNOWLEDGES THAT THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION SETS FORTH AN ALLOCATION OF RISK REFLECTED IN THE FEES AND PAYMENTS DUE HEREUNDER.
- Customer Insurance. Customer will maintain commercial general liability insurance and medical malpractice insurance in an amount that complies with the Laws of the jurisdiction in which the Products are used.
- Compliance with Laws. Customer will comply with all Laws applicable to Customer’s use of the Products, including but not limited to, promotional activities and all rules of the relevant authorities in US and Canada. Customer acknowledges that Federal law requires that the Products may only be sold to a Dentist or other legally qualified healthcare professionals. Customer will permit 3Shape to affix to the Equipment additional notices as it deems necessary or advisable. Customer will not remove or tamper with any such notices or labels affixed to the Equipment.
15. APPLICABLE LAW; DISPUTE RESOLUTION; ATTORNEYS’ FEES
- Applicable Law and Jurisdiction. These Terms and the Order will be governed by, and construed in accordance with, the laws of the State of Delaware without regard to conflict of law principles. Subject to the Dispute Resolution requirements in Section 15(b) below, the parties will submit all disputes related to these Terms to the courts in the State of Delaware, and each party consents to the jurisdiction of those courts and waives any objection it may have with respect to venue. The United Nations Convention on the International Sales of Goods will not apply to these Terms.
- Resolution. If any dispute arises between the parties, the parties will consult with each other and undertake in good faith to settle all disputes between themselves. Failing settlement, such dispute will be referred to arbitration pursuant to this Section, except for claims for equitable relief for breach of confidentiality provisions of Section 12 of these Terms. All arbitrators must be knowledgeable in medical devices. Matters referred to arbitration will be (i) referred to a single arbitrator if the parties can agree on such arbitrator within seven (7) days after notice of one party to the other of its intentions to arbitrate or will be (ii) referred to three arbitrators as follows: after the expiration of such initial seven (7) day period, each party will, within seven (7) days, appoint its respective arbitrator and the two (2) arbitrators thus chosen will together, within seven (7) days of their appointment, nominate a third arbitrator. If the two (2) arbitrators fail within such seven (7) days of their selection to select a third arbitrator, upon the written request of any party, the third arbitrator will be appointed by the American Arbitration Association. If a party fails to appoint an arbitrator as required, the arbitrator appointed will be the sole arbitrator of the matter referred to arbitration. The decision of the arbitrator(s) will be made within seven (7) days of the close of the hearing in respect of the arbitration (or such longer time as may be agreed to by the parties) and the decision when reduced to writing and signed will be final, conclusive, and binding upon the parties to the Order and may be enforced in any court, federal or state or provincial, having jurisdiction. The arbitration will be held in such location as will be mutually agreed upon, and will be conducted in accordance with the then existing rules of the American Arbitration Association. Each party, at the commencement of the arbitration, will submit to the arbitrators and the other party, the party’s single best and final offer (“BAFO”) for resolving the dispute. The arbitrators will be required to choose one BAFO or the other in its entirety and without change or adjustment. The arbitrator(s) will determine who will assume the expense of arbitration or the proportion of such expenses which each party will bear consistent with the provisions of these Terms. The decision of the arbitrators will be supported by a detailed written decision. Nothing in this Section will prohibit either party from exercising any right in these Terms to terminate these Terms and the Order.
- Attorney Fees. If any dispute resolution or other legal proceeding is initiated with respect to these Terms and the Order, the substantially prevailing party in such proceeding, in addition to all other remedies available to it, will be reimbursed for its reasonable attorneys’ fees, costs and expenses associated with the proceeding.
- ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING UNDER THE ORDER OR THESE TERMS IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. CUSTOMER WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
16. GENERAL PROVISIONS
- Independent Status of Parties. Nothing contained in these Terms or the Order, nor in the relationship created by the Order, will be interpreted to evidence a joint venture, partnership or principal- agent relationship between 3Shape and Customer. Neither party will have any right or authority to act on behalf of, or incur any obligation for, the other party. 3Shape will have sole responsibility for the withholding of all federal, state and local income taxes, unemployment insurance tax, social security tax, and other withholding with respect to payments made by 3Shape to 3Shape’s employees and other persons performing services pursuant to these Terms.
- Nonexclusive Agreement; Assignment. It is expressly understood and agreed that these Terms and the Order do not grant to Customer any exclusive right to do business with 3Shape. Customer may not assign its rights or obligations under any Order or these Terms without the 3Shape’s prior written consent.
- Force Majeure. 3Shape will not be responsible for delays or failure in performance resulting from acts beyond the control of 3Shape, including acts of God, terrorist attacks, strikes, lockouts, riots, acts of war, epidemics, pandemics, public health crises, fire, communication line failures, power surges or failures, earthquakes, or other disasters.
- Sole Agreement. These Terms and the Order, including any attachments to the Order, constitutes the complete agreement between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof. If there is a conflict between a provision of these Terms and the Order, these Terms will control except as to terms specifically identified in a particular Order as modifying or amending a specific provision of these Terms, which terms will control over that particular provision in these Terms for that Order only.
- Amendment. 3Shape may amend these Terms at any time by notice provided to Customer, and Customer’s continued use of the Products at any point at least thirty (30) days after the notice date will constitute Customer’s acceptance of the amended Terms.
- Waiver; Severability. No waiver of any breach of any provision of these Terms and the Order by either party or the failure of either party to insist on the exact performance of any provision of these Terms or the Order will constitute a waiver of any prior, concurrent, or subsequent breach of performance of the same or any other provisions of these Terms or the Order, and no waiver will be effective unless made in writing. If any of the provisions of the Order or these Terms will be deemed to be orbecome invalid or contrary to public policy or unenforceable under applicable law, the provision will be deemed removed and neither party will be bound by the provision. Such removal, however, will not invalidate or render unenforceable the remaining provisions of the Order or these Terms. Instead, the entire Order and these Terms will be construed as though it never contained the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties will be construed and enforced accordingly.
- Interpretation. In these Terms, (a) any terms defined in these Terms may, unless the context otherwise requires, be used in the singular or the plural, (b) any use of the masculine, feminine or neutral will be deemed to include a reference to each of the other genders, (c) the words “includes” or “including” will be construed as followed by the words “without limitation,” and (d) references to section numbers are to sections of these Terms unless the context otherwise requires.
- Notices. All notices, requests, demands and other communications that are required or permitted to be given under these Terms and the Order will be in writing. Any notice provided to Customer by 3Shape will be sent via electronic mail to the address set forth in the 3Shape Account and will be deemed to have been duly given that same day if sent on a business day, otherwise, the following business day. Any notice to 3Shape must be in writing and will be deemed to have been duly given (i) upon receipt if delivered in person, or (ii) within three business days of mailing, if mailed first class certified, registered mail, return receipt requested and postage prepaid, or (iii) the following business day if sent by recognized courier, with proof of delivery requested and charges prepaid, to the attention of General Counsel, 3Shape Inc. 430 Mountain Avenue Suite 205, New Providence, NJ 07974 or to such other address as 3Shape may specify by written notice to Customer, with a required copy to email@example.com.
- No Third Party Beneficiaries. There are no third party beneficiaries to these Terms or the Order.
- Language. The Parties have requested that this agreement be drawn up in the English language. Les Parties ont exigé que la présente entente soit rédigée en langue anglaise.