TERMS AND CONDITIONS

The terms and conditions (“terms”) set forth the terms of this business-to-business contract by which the cus-tomer has agreed to purchase, and 3Shape has agreed to supply, the products and services in the order the cus-tomer submits and 3Shape accepts via the 3Shape ecommerce platform and, unless the parties otherwise agree, each subsequent order between the parties.

1. DEFINITIONS

  1. "3Shape" means, collectively 3Shape A/S and 3Shape TRIOS A/S.
  2. "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.
  3. "Customer" means, collectively, the entity identified as the owner of the 3Shape Account and any affiliate identified on the Order.
  4. "Customer Data" means data and information Customer provides or makes avail-able to 3Shape in connection with the Order or Customer’s use of Software, including information concerning Customer’s pa-tients, suppliers, employees, and agents.
  5. "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.
  6. "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.
  7. "EULA" means the End User License Agreement accompanying the Software [or available at https://www.3shape.com/en/eula-dpa].
  8. "Intellectual Property Rights" means all copyrights, patents, trade secrets, trademarks, trade-mark rights, service marks, trade names, industrial designs, dis-coveries, inventions (whether patented or not), developments or other intellectual proprietary rights registered or recognized by EU or national law.
  9. "Law" means all applicable laws, rules, statutes, decrees, decisions, or-ders, regulations, judgments, codes, ordinances, and require-ments of any government authority (EU or national) having ju-risdiction.
  10. "Order" has the meaning given in Section 2(b) below.
  11. "Product" means Software or Equipment.
  12. "Services" means any and all delivery, installation, training, and support ser-vices provided to Customer by 3Shape, in each case as specified by the Order.
  13. "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, enhance-ments and error corrections to the Software.
  14. "TRIOS Product" means the TRIOS Scanners, TRIOS Scanning Software, MOVE+.
  15. "Warranty Period" means the twelve (12) month period following the date of delivery.

2. CUSTOMER ACCOUNT; ORDERS

  1. 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. Custom-er is solely responsible for all activities that occur under its ac-count 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 unauthor-ized access to Customer’s account. Customer is not permitted to sell or otherwise transfer its account without prior written approval from 3Shape.
  2. Orders. The Order will be deemed accepted only when 3Shape sends an email to Customer accepting the Order (such accept-ed 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 con-stitute acceptance. Each accepted Order will be deemed a sep-arate agreement between the parties, governed by these Terms.
  3. 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.
  4. Cancellation; Returns. An Order may be cancelled by 3Shape or Customer at any time before shipment of the applicable Prod-uct(s). Customer may return Products within thirty (30) days from delivery, provided that the Product is unopened and re-mains 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 return-ing and handling to the applicable 3Shape entity, which is equivalent to the initial shipping fee paid by Customer. Please go to help.3shape.com and contact customer support for assis-tance. Any Software packages purchased as separate, stand-alone products (such as TRIOS Clinic apps or TRIOS Studio apps) may not be cancelled or returned.

3. CUSTOMER DATA

  1. Customer Data. 3Shape acknowledges that the Customer Data is the Confidential Information of the Customer and the Cus-tomer Data is, and will, remain the sole and exclusively property of the Customer. In compliance with applicable data protection laws, Customer grants 3Shape an irrevocable, perpetual, assign-able, worldwide, royalty-free, fully paid right to use, modify, copy, process, display and prepare derivative works of the Cus-tomer 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 ac-cess and use, and will retain all right, title and interest in transac-tional and performance data related to use of the Product col-lected by 3Shape.
  2. Patient Consent. The Customer indemnifies 3Shape for any fail-ure to obtain necessary patient consent in relation to the trans-fer of any personal data to 3Shape necessary for the use of the hardware or software, including but not limited to data trans-ferred via the 3Shape Unite platform.

4. SOFTWARE

  1. Software License. 3Shape grants Customer a personal, nonex-clusive, 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.
  2. Limitations. Customer will not alter, modify, decompile, disas-semble, reverse engineer, translate, or create derivative works based on, the Software. Without limiting the foregoing, Cus-tomer 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 con-sent. Customer will not use the Software to process data for the benefit of any third party on a “service bureau” basis or other-wise.
  3. 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

  1. Prices. The prices for the Products will be as set forth in the Or-der. Prices may be indicated on 3Shape’s website, but the au-thoritative price in the event of any discrepancy, is the price set forth in the Order. If the price of a Product or Service is obvi-ously incorrect, regardless of whether it is an error in a price posted on the 3Shape website, eCommerce Platform or other-wise communicated to Customer, 3Shape reserves the right, at 3Shape’s sole discretion, to cancel an Order and refund Cus-tomer the amount paid, regardless of how the error occurred.
  2. 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 im-posed 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.
  3. Payment Terms.
    1. Payment will be made by the payment method selected during the Order completion process through the 3Shape eCom-merce 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.
    2. Customer authorizes 3Shape to charge Customer’s credit card for the initial fees and any relevant renewal fees for the Prod-ucts 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.
    3. 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 ex-penses and reasonable attorney fees, whether by inside or out-side counsel and whether or not suit is instituted) incurred in collecting or attempting to collect any amounts due and out-standing from Customer to 3Shape.
    4. 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. Cus-tomer 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 omis-sions of any third party payment or billing provider.
    5. If and to the extent Customer elects to finance the purchase of Products or Services including through a finance company affil-iated 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 prob-lems relating to the Products, 3Shape Services or 3Shape’s per-formance of these Terms or any Order solely with 3Shape and not with the lender or lessor.
    6. 3Shape may provide links to other third party websites or re-sources in relation to the purchase process. 3Shape is not re-sponsible for the security of such external sites or resources and does not endorse nor is responsible or liable for any con-tent, advertising, products, or other materials on or available from such sites or resources. 3Shape is not responsible or lia-ble, either directly or indirectly, for any damage or loss caused or allegedly caused by or in connection with the use of, inability to use or reliance on any such privacy policy, content, goods or services available on third party sites or resources.
    7. 3Shape will not be responsible for any misdirected payments by Customer as a result of cyber fraud (e.g., phishing) or Customer error.
    8. 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 if 3Shape does not receive payment of fees in full when due.

6. DELIVERY; INSPECTION

  1. 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.
  2. Shipping. Unless otherwise set forth in an applicable Order, all shipments will be made DDP (Incoterms 2020) at Customer.
  3. 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.
  4. Inspection; Remedies.
    1. Customer or its agent will inspect and accept all Products within ten (10) days following delivery. If any Product does not con-form 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).
    2. 3Shape, on receiving Customer’s notice of nonconformity, will provide Customer with instructions for the return of the non-conforming Product. Upon verifying that such Product is non-conforming, 3Shape will, in its sole and absolute discretion, re-pair or replace such non-conforming Product, and then 3Shape will pay the return shipping costs. However, if any defect is a re-sult of the Customer’s misuse, 3Shape shall have the right to in-voice Customer for the costs associated with repair and return shipping. This Section sets forth 3Shape’s sole obligation and Customer’s sole remedy with respect to the delivery of non-conforming Products.

7. SHIPMENT AND INSTALLATION SCHEDULES

  1. 3Shape will use commercially reasonable efforts to meet ship-ment schedules. However, all shipment and installation dates provided by 3Shape are estimates only. 3Shape will have no lia-bility whatsoever because of any delay in the delivery of all or any part of any Order or installation of the Products for any rea-son. 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 re-quested by Customer within two (2) days of the scheduled in-stallation date. Customer acknowledges that any such request-ed postponement may result in significant delay in rescheduling the Product installation.

8. INSTALLATION AND TRAINING

  1. 3Shape may offer training and installation and in its discretion, may charge a fee.
  2. Customers must seek 3Shape-authorized training from 3Shape.

9. SUPPORT SERVICES

  1. 3Shape commits to offer remote support. 3Shape may at its dis-cretion charge a fee for offering support. Customer may con-tact support at https://help.3shape.com/en-US/ .

10. PROPRIETARY RIGHTS

  1. 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 dur-ing or at any time after the expiry or termination of these Terms and the Order will not in any way question or dispute the own-ership thereof by 3Shape (or the third party licensor(s), as the case may be). Customer will not alter, obscure, remove, con-ceal 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 oth-erwise refers to the 3Shape’s copyright or other Intellectual Property Rights in the Products.

11. EXPRESS WARRANTIES; DISCLAIMERS

  1. 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 compe-tent and professional manner. The sole and exclusive remedy for a breach of this warranty is for 3Shape to re-perform the de-fective Services in a timely manner.
  2. 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 appli-cable Warranty Period: (i) conform to the Product specifica-tions; and (ii) be free from defects in materials and workman-ship under normal use and service. This limited warranty will not extend to: (A) defects or problems caused by the Product (or parts of the Product) being or having been subjected to acci-dent, acts of God, lightning, misuse, neglect, improper handling, improper transport, improper storage, improper use or appli-cation, 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; (B) cosmetic problems or de-fects which result from normal wear and tear under ordinary use of the Product; (C) the replacement cost of any consuma-ble goods; or (D) problems caused by Customer’s failure to in-stall the most recent release of Software.
  3. 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.
  4. 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 re-place the defective Product or correct the problem by patch or new release of any Software or other software component. If a re-performance does not lead to the elimination of any defect, any mandatory right of withdrawal under national law shall not be affected by this provision, however, in case of an insignifi-cant reduction in value and/or service suitability, Customer shall have no claims based on liability for defects.
  5. Disclaimer of Warranties. The Products and Services are not in-tended 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 den-tal/clinical personnel, as applicable. Customer and its author-ized users will use their best clinical/professional judgment when acting upon information provided through the Products, Services or Documentation. Neither 3Shape nor its subcontrac-tors 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, gov-ernmental agencies, or other payers.
    3Shape is not responsible for any errors or omissions or for any loss or damage resulting from the Products, including Custom-er’s reliance on the Documentation, technical advice, illustra-tions, 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 RE-SPECT TO THE PRODUCTS AND SERVICES, AND 3SHAPE MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IM-PLIED, 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 IM-PLIED 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.
  6. No Oral Warranties. No employee, agent or representative of 3Shape has the authority to bind 3Shape to any oral representa-tion or warranty concerning the Products or Services. ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THESE TERMS WILL NOT BE EN-FORCEABLE BY CUSTOMER.

12. CONFIDENTIALITY

  1. 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 infor-mation, manufacturing information and procedures; provided, that Confidential Information will not include information sup-plied to the Receiving Party that (i) 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; (ii) 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; (iii) becomes available to the Receiving Party, as supported by documentary evidence, on a non-confidential basis from a third party not re-stricted by contract or Law regarding such information; (iv) is disclosed with the prior written consent of the Disclosing Party. The Disclosing Party has the right to inspect the Receiving Par-ty’s records to determine the source of any Confidential Infor-mation 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 oth-erwise restrict the disclosure of Confidential Information.
  2. 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 Receiv-ing 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, con-sultants 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.
  3. Except as otherwise provided in these Terms, upon written re-quest 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, memo-randa, and all copies, extracts or other reproductions thereof.
  4. 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 ef-forts to remedy the breach, and will indemnify the Disclosing Party against all costs, expenses, and damages (including rea-sonable attorneys’ fees) attributable to any such breach.
  5. The parties acknowledge that remedies at Law may be inade-quate to protect against a breach of the provisions of this Sec-tion 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.
  6. This confidentiality obligation shall remain applicable from pro-vision of the confidential information and for a period of 5 (five) years thereafter.

13. TERMINATION

  1. Termination. If either party commits a material breach of these Terms or the Order, the other party by written notice may ter-minate 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 ca-pable of cure within such period, termination notice will take effect immediately upon receipt by the breaching party.
  2. Effect of Termination. Upon the effective date of termination: (i) 3Shape may immediately terminate 3Shape eCommerce Plat-form access and its provision of Products or Services; (ii) Cus-tomer will promptly pay 3Shape any and all unpaid amounts due and owing; and (iii) 3Shape may, at its sole and absolute discre-tion, terminate any and all Orders, including pending Orders, for Products and Services and refuse to accept any future Or-ders 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

  1. Indemnification. Customer, at its expense, will indemnify, de-fend, and hold the 3Shape and its affiliates and their respective officers, directors, employees, contractors, agents, successors and assigns, harmless from all costs, expenses, damages, liabili-ties, 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) Cus-tomer’s breach of these Terms and the Order, (ii) Customer’s negligent acts or omissions and (iii) Customer’s failure to com-ply with applicable Law, except to the extent that any such Loss-es arise out of, are based upon, or result from the gross negli-gence or willful misconduct of 3Shape.
  2. Limitations of Liability.
    UNLESS OTHERWISE REGULATED IN THE FOLLOWING CLAUSES, 3SHAPE SHALL ONLY BE LIABLE, IRRESPECTIVE OF THE LEGAL BASIS, FOR DAMAGES CAUSED BY INTENTIONAL OR GROSS NEGLIGENT CONDUCT OF 3SHAPE, ITS REPRE-SENTATIVES OR EXECUTIVES:
    1. IN PARTICULAR, 3SHAPE WILL NOT BE LIABLE FOR INCI-DENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST REVENUE OR LOST PROFITS, LOSS OF DATA, LITI-GATION EXPENSE, DAMAGE TO REPUTATION, LOSS OF BUSI-NESS OR ANY OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES, IN-CLUDING INSTALLATION, PERFORMANCE, FAILURE, USE OR INTERRUPTED USE OF THE PRODUCTS OR SERVICES OR ANY COMPONENT THEREOF, OR FROM 3SHAPE’S NEGLIGENCE. 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 INI-TIALLY AROSE; AND (B) WITH RESPECT TO EQUIPMENT, EX-CEED TOTAL FEES PAID BY CUSTOMER TO 3SHAPE FOR THE EQUIPMENT UNDER THE ORDER, AMORTIZED OVER A PERI-OD OF [FIVE (5)] YEARS.
    2. 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 PAY-MENTS DUE HEREUNDER.
    3. ANY LIABILITY FOR CLAIMS ARISING FROM INJURY TO LIFE, BODY OR HEALTH SHALL ONLY BE EXCLUDED TO THE EX-TENT THAT SUCH EXCLUSION IS COMPATIBLE WITH APPLI-CABLE NATIONAL LAW.
  3. Customer Insurance. Customer will maintain commercial gen-eral liability insurance and medical malpractice insurance in an amount that complies with the Laws of the jurisdiction in which the Products are used.
  4. Compliance with Laws. Customer will comply with all Laws ap-plicable to Customer’s use of the Products, including but not limited to, promotional activities and all rules of the relevant EU and national authorities. Customer acknowledges that applicable 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.
  5. Customer undertakes to report any incidents that shall be re-ported in accordance with any applicable laws and regulations, especially Regulation (EU) 2017/745 of 5 April 2017 on medical devices (or subsequent versions thereof), insofar as they are re-lated to the Products, even if the incidents do not simultaneously constitute a warranty case.

15. APPLICABLE LAW; DISPUTE RESOLUTION; ATTORNEYS’ FEES

  1. Applicable Law and Jurisdiction. These Terms and the Order will be governed by, and construed in accordance with, the laws of Denmark without regard to conflict of law principles and the CISG (the 1980 United Nations Convention on Contracts for the International Sale of Goods), and unless otherwise stated the general rules of Danish law apply to the relationship between the Parties.
  2. Dispute Resolution. Any dispute arising out of or in connection with these Terms and the Order, including any disputes regarding the existence, validity or termination of these Terms and/or the Order, shall be settled by arbitration arranged by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are com-menced. The place of arbitration shall be Copenhagen, Denmark. The arbitration shall be conducted in the English language.

16. GENERAL PROVISIONS

  1. 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 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.
  2. 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.
  3. Force Majeure. 3Shape will not be responsible for delays or fail-ure in performance resulting from acts beyond the control of 3Shape, including acts of God, terrorist attacks, strikes, lock-outs, riots, acts of war, epidemics, pandemics, public health cri-ses, fire, communication line failures, power surges or failures, earthquakes, or other disasters.
  4. Sole Agreement. These Terms and the Order, including any at-tachments to the Order, constitutes the complete agreement between the parties and supersedes all previous communica-tions 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 par-ticular Order as modifying or amending a specific provision of these Terms, which terms will control over that particular provi-sion in these Terms for that Order only.
  5. Amendment. 3Shape may amend these Terms at any time by no-tice 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.
  6. 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 pri-or, 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 or become 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 re-maining 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 provi-sion or provisions, and the rights and obligations of the parties will be construed and enforced accordingly.
  7. 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.
  8. Notices. All notices, requests, demands and other communica-tions 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 ad-dress 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 busi-ness 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 A/S, Holmens Kanal 7, 1060 Copenha-gen, Denmark or to such other address as 3Shape may specify by written notice to Customer, with a required copy to general.counsel@3shape.com.
  9. No Third Party Beneficiaries. There are no third party benefi-ciaries to these Terms or the Order.
  10. If any clause in these Terms is found by a competent court or arbitration court to be invalid or unenforceable, that construc-tion does not affect the remainder of these Terms which shall be given full force and effect without regard to the invalid or unenforceable clause. If any valid and enforceable means is rea-sonably available to achieve the same objective as the invalid or unenforceable clause, the competent court shall apply such al-ternative means to achieve the same objective.