This User Agreement ("Agreement") is between Spear Education, LLC ("Spear") and the person or entity that has checked the "AGREE" box at the end of this Agreement ("you," "your" or "yours"). This Agreement describes the terms under which you may use this website ("Website"). By checking the "AGREE" box you are agreeing to comply with and be bound by all the terms of this Agreement.
YOU REPRESENT THAT YOU ARE A LICENSED DENTAL PROFESSIONAL OR THAT YOU ARE AN EMPLOYEE OR AGENT OF A LICENSED DENTAL PRACTICE. YOU ALSO REPRESENT THAT YOU ARE OVER EIGHTEEN (18) YEARS OF AGE. YOU FURTHER REPRESENT THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
Sign Up Page Registration, Accounts and Practice Information.
The Website contains many features, including the capacity to allow uploading, downloading and streaming of certain photographic and video content. In order to use such uploading, you must first register with Spear. You may register with Spear and create a personal account ("Account") by fully and accurately completing the sign up page, and providing to Spear such fully accurate information as Spear may reasonably require, including without limitation your name, street address, credit card number, email address, zip code and gender (collectively, "Practice Information"); you agree to keep all Practice Information updated and correct. Your Account is personal to you, and you may not share it or allow it to be used by anyone other than you. You are solely responsible to ensure that your Account is used only by you and in a manner consistent with this Agreement. Spear shall allow you to select a user name and password for your Account, subject to Spear's rules. You agree to keep such user name and password confidential, and not allow any third party to access or use such user name or password. You agree to indemnify and defend Spear from and against any losses or liabilities arising from any disclosure or misuse of your user name or password.
Fees and Payment.
- Fees. When you register and create an Account, you will be charged certain fees as described on the sign up page ("Fees") for your use of the Website pursuant to this Agreement, which Fees may include an initial Fee and additional periodic Fees on a monthly or other basis. Spear will charge such Fees to the credit card number you provide as part of the registration process (and such other credit card numbers as you may from time to time provide). If you purchase any other goods or services from the Website, including without limitation any DVDs, downloads or streaming video access, the amounts you will pay for such goods and services will also be deemed Fees, and will be charged to such credit card number as incurred.
- Payment. Any late payment of Fees shall be subject to an interest charge of one and one-half percent (1.5%) per month on all Fees owed and unpaid, or the highest rate allowed by law, whichever is lower. Additionally, any non-payment due to rejection or delay of credit card payment may, at Spear's option, be deemed a material breach of this Agreement.
- Trial Periods. Spear may from time to time offer the opportunity to create a temporary Account on a five (5) day "trial" basis and without any applicable Fees. Any such offer and temporary Account shall be subject to the terms of this Agreement and any such other terms as Spear may require.
Use of the Website.
- Digital Campus. The Website contains a forum in which text, photographs, online videos and other educational materials regarding dentistry are presented (the "Digital Campus").
- Discussion Board and Blog. The Website contains a discussion forum (the "Discussion Board") in which you may post questions regarding dentistry, and in which you may comment upon or answer questions posted by others. The Website also contains a weblog ("Blog") which contains commentary and information from Spear, and on which you may also comment. Your questions, answers and comments with respect to the Discussion Board and the Blog are referred to collectively as "Commentary."
- Streaming Video. Spear may, from time to time, make available on the Website certain still photographs or videos of dental patients and procedures ("Stock Material"). Such Stock Material shall belong solely to Spear or its licensors. Provided, however, that if you have complied with this Agreement and paid any applicable Fees, you may access such Stock Material. Subject to your performance under this Agreement, including without limitation the timely payment of Fees, Spear hereby grants to you a revocable, non-exclusive, non-transferable, Fee-bearing license (without the right to grant sublicense) to use, copy and display Stock Material: (i) solely at your dental offices to facilitate the provision of dental services to your patients; (ii) solely in the manner provided by Spear, without any alteration and with such notices and legends as may accompany such Stock Material; and (iii) solely in an honest and fair manner in order to illustrate to, and for the benefit of, your patients' various dental and periodontal conditions, treatment options and possible outcomes. There are no implied licenses under this Agreement.
- Postings. Spear may from time to time allow you to use your Account to submit your own still or video photographs of your dental patients (collectively, "Postings") to the Website to be stored by Spear on its servers for access by you via your password. In such case, you agree to ensure that you have all rights necessary to submit Postings, and that neither you nor any third party has any expectation of privacy or confidentiality as to any Postings. You shall be solely responsible for your Postings and the consequences of submitting them. In connection with Postings, you represent and warrant that you have all necessary rights to allow inclusion and use of the Postings on the Website.
- Licenses. By submitting Commentary or Postings to Spear, you hereby grant Spear a worldwide, non-exclusive, royalty-free, paid-up, sublicensable, perpetual, irrevocable and transferable license to use, reproduce, distribute, prepare derivative works of, display and perform such Commentary and Postings in connection with the Website and Spear's (and its successors' and affiliates') businesses. You understand and agree that Spear may retain indefinitely copies of Commentary and Postings that have been removed by Spear from the Website.
- Restrictions. In connection with Commentary and Postings and your use of the Website, you agree that you will not submit material that is illegal, inaccurate, hateful, racist, offensive, vulgar, obscene, indecent or objectionable. In connection with Commentary and Postings, you also agree that you will not submit material that is copyrighted by, protected by trade secrets of or otherwise subject to the proprietary rights (including without limitation privacy and publicity rights) of, any third party, unless you have permission from that third party to do so and to grant Spear all of the license rights granted herein. You agree that Spear shall be the sole arbiter of whether any Commentary and Postings are in breach of any and all of the foregoing obligations. You further understand and agree that the Website (including without limitation the Digital Campus, the Discussion Board and Blog, and further including without limitation any and all Commentary and Postings) may include information that is inaccurate or incomplete. You therefore agree that you will not rely on the Website for professional advice or guidance.
- Removal. Spear does not permit copyright infringing activities and infringement of intellectual property rights on the Website, and Spear reserves the right to remove any and all Commentary and Postings without notice.
Any use of the Website through your Account or otherwise must conform to the following:
- You will not redistribute any part of the Website or any content appearing on or visible through the Website, including without limitation Commentary or Postings.
- You will not change, remove or add to any part of the Website.
- You will not gain access to or view Stock Material through any technology or means other than interface pages of the Website itself.
- If you use a Spear uploader program, you agree to use such uploader solely in conformance with this Agreement to upload Commentary and Postings to the Website.
- You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or other automated programs to access the Website. You will not obtain or attempt to obtain any personally identifiable information from any other users or third parties from the Website.
- You agree that Spear may add to, delete from or modify the Website at any time without notice and without permission from you or any third party.
- You agree that the content on the Website and the trademarks and service marks on the Website are owned by or licensed to Spear.
- You may access others' Commentary and Postings on the Website solely for your own use.
- You agree not to circumvent, disable or otherwise interfere with security-related features of the Website, and you will not impersonate any third party or interfere with any third party's use of the Website.
- You agree to defend, indemnify and hold harmless Spear, its parent, officers, directors, employees and agents, from and against any and all claims, damages, threats, suits, proceedings, losses and liabilities (including attorneys' fees) arising from or related to: (i) your use of and access to the Website; (ii) your violation of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; or (iv) any claim that one of your Commentary or Postings caused damage to a third party. This defense and indemnification obligation will survive the expiration or termination of this Agreement.
Content, Commentary and Postings.
- Use. Spear may terminate your Account and your access to the Website at any time and for any reason. Spear reserves the right to decide whether Commentary or Postings are appropriate and comply with this Agreement in its sole discretion.
Notices. If you are a copyright owner or an agent thereof and believe that any part of the Website infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Spear's Copyright Agent (identified below) with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Spear to locate the material;
- Information reasonably sufficient to permit Spear to contact you, such as an address, telephone number or email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Copyright Agent. Spear's designated Copyright Agent to receive notifications of claimed infringement is: Michael Dunn, email: copyright@Speareducation.com, fax: (480) 588-9072. Only claimed infringement notifications may be sent to the Copyright Agent.
- Notices. If you are a copyright owner or an agent thereof and believe that any part of the Website infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Spear's Copyright Agent (identified below) with the following information in writing:
You understand and agree that perfect security does not exist anywhere, and you will therefore protect your Practice Information in a reasonable way at all times. Accordingly, you will not recklessly disclose or publish your Practice Information to those that would reasonably be expected to improperly use or disclose that Practice Information.
The term of this Agreement will continue until terminated by you or Spear. Spear may suspend access to your Account, and either party may terminate this Agreement, at any time with or without notice and with or without cause.
Limitation of Liability.
IN NO EVENT SHALL SPEAR BE LIABLE TO YOU OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF SPEAR UNDER THIS AGREEMENT OR REGARDING THE WEBSITE EXCEED ONE THOUSAND DOLLARS ($1000). Some jurisdictions do not allow certain limitations of damages so the foregoing may not apply to you.
Jurisdiction and Venue.
This Agreement shall be subject to the laws of the State of Arizona as apply to contracts entered into and performed in Arizona between Arizona residents and without regard to conflicts of laws principles. The State and Federal courts located in Maricopa County, Arizona, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
SPEAR PROVIDES THE WEBSITE AND ALL GOODS AND SERVICES ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY. SPEAR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEAL, USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of Spear. Any purported assignment without such permission shall be void. This Agreement, including corresponding access to your Practice Information, Commentary and Postings, may be assigned by Spear in whole or in part without notice. Any waiver of any rights of Spear under this Agreement must be in writing, signed by Spear, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Website shall at all times comply with all applicable laws, rules and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. You will indemnify and hold Spear (and Spear's officers, directors, agents, subsidiaries, joint ventures, licensees and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or regulation, or the rights of any third party. You agree that: (i) the Website shall be deemed solely located in Arizona; and (ii) the Website is and shall be deemed a passive website that does not give rise to personal jurisdiction over Spear, either specific or general, in jurisdictions other than Arizona. YOU AND SPEAR AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.