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 features, 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 and to notify Spear immediately of any changes to your Account or Practice Information. 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 and hold Spear harmless from and against any losses or liabilities arising from any disclosure or unauthorized use 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 Services pursuant to this Agreement, which Fees may include an initial Fee and additional periodic Fees on a monthly or other basis. Spear reserves the right to change or modify its Fees at any time, and such changes or modifications shall be posted online at the Website and effective immediately without need for further notice to you. However, if you have purchased or ordered Services for a specified period of months or years, any subsequent changes or modifications in prices and fees for such services shall be effective only when such period expires. The amount of such Fees may depend on the type of Account you create, and Spear may from time to time offer "Premium" or other different types of accounts which will have a higher Fee than other accounts. All fees are in U.S. Dollars (USD). We are not responsible for any exchange rate variances, currency fluctuations, third party charges or fees associated with payment by any currency other than U.S. Dollars.
- Payment Method. You may pay for Services by utilizing any of the following "Payment Methods": (i) by providing a valid credit card or (ii) by using PayPal (as defined below), each a "Payment Method". Spear will not accept checks or establish any direct debit or payment from a bank account. Spear will automatically charge all Fees for selected Services and charge the primary Payment Method on file for your Account. Confirmation of that order will be sent to the email address on file for your Account. Your Payment Method on file must be kept valid if you have any active Services in your Account. If you purchase any other services from the Website, including, without limitation, any DVDs, downloads or streaming video access, the amounts you will pay for such services will also be deemed Fees, and will be charged as set forth above.
- Billing Date If you are being billed on a monthly basis, your monthly billing date will be based on the date of the month you purchased the Services unless that date falls after the 28th of the month, in which case your billing date will be the 28th of each month. If you are being billed on an annual basis, your billing date will be the date of the year you purchased the Services and each subsequent anniversary date, as applicable.
- Cancellation. Within the first 30 days after the date of purchase of Services under any plan, whether annual, monthly or any other basis, you may cancel such Services and request a full refund of the Fees for the Services. After such 30 days, all Fees are non-refundable, even if your Services are cancelled by you or otherwise suspended or terminated prior to the end of the Services term. With respect to any monthly plan, Spear will charge your Payment Method a $500.00 early cancellation fee for any cancellation after such 30 days, but before the completion of the first year of the monthly Services.
- E. Automatic Renewal for Annual Plans that Are Not Pre-Paid. IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, WE OFFER AN AUTOMATIC RENEWAL OPTION FOR THOSE SERVICES OFFERED ON AN ANNUAL PLAN, OTHER THAN THOSE SERVICES FOR WHICH A ONE-TIME UP-FRONT PAYMENT IN FULL OF THE ANNUAL FEE HAS BEEN MADE. UNLESS OTHERWISE INDICATED, AUTOMATIC RENEWAL IS THE DEFAULT SETTING FOR ALL OF OUR SERVICES, OTHER THAN THOSE SERVICES FOR WHICH A ONE-TIME UP-FRONT PAYMENT IN FULL OF THE ANNUAL FEE HAS BEEN MADE. THEREFORE, UNLESS YOU REQUEST IN WRITING THAT WE DISABLE THE AUTOMATIC RENEWAL OPTION OR NOTIFY US THAT YOU PLAN TO CANCEL THE SERVICES AT LEAST 30 DAYS PRIOR TO THE EXPIRATION OF THE INITIAL SERVICE TERM, SPEAR WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH SPEAR AT SPEAR'S THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. SHOULD YOU ELECT TO DISABLE THE AUTOMATIC RENEWAL OPTION AND FAIL TO MANUALLY RENEW YOUR SERVICES BEFORE THEY EXPIRE, YOU MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND SPEAR SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME. IN ADDITION, CANCELLATION OF THE SERVICES FOLLOWING THE AUTOMATIC RENEWAL IS SUBJECT TO THE TERMS OF SUBSECTION D ABOVE, EXCEPT THAT SPEAR WILL ALSO CHARGE YOUR PAYMENT METHOD AN ADDITIONAL CANCELLATION FEE OF $250.00. FURTHERMORE, SPEAR MAY PARTICIPATE IN "RECURRING BILLING PROGRAMS" OR "ACCOUNT UPDATER SERVICES" SUPPORTED BY YOUR CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON YOUR BANK'S PARTICIPATION). IF YOU ARE ENROLLED IN AN AUTOMATIC RENEWAL OPTION AND WE ARE UNABLE TO SUCCESSFULLY CHARGE YOUR EXISTING PAYMENT METHOD, YOUR CREDIT CARD PROVIDER (OR YOUR BANK) MAY NOTIFY US OF UPDATES TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE YOUR NEW CREDIT CARD ON OUR BEHALF WITHOUT NOTIFICATION TO US. IN ACCORDANCE WITH RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT WE ARE NOTIFIED OF AN UPDATE TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, SPEAR WILL AUTOMATICALLY UPDATE YOUR PAYMENT PROFILE ON YOUR BEHALF. SPEAR MAKES NO GUARANTEE THAT WE WILL REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) SETTING YOUR RENEWAL OPTIONS AND (II) ENSURING YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO, MAY RESULT IN THE INTERRUPTION OR LOSS OF SERVICES, AND SPEAR SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
- Late 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.
- Nonpayment. If for any reason Spear is unable to charge your Payment Method for the full amount owed for the Services purchased or ordered by you, or if Spear receives notification of a chargeback, reversal or payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, Spear may deem such nonpayment or penalty a material breach of this Agreement by you. If such breach is not cured by you within 10 days after receiving notice from Spear, Spear may suspend any or all Services. If such breach is not cured by you within 30 days after receiving notice from Spear, Spear may pursue all available lawful remedies in order to obtain payment, an may immediately, without further notice to you, terminate any or all Services and/or purge Spear's systems of your Account and records. Spear also reserves the right to charge you reasonable administrative fees or processing fees up to $50.00 for (i) tasks Spear may perform outside the normal scope of its Services, (ii) additional time and/or costs Spear may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by Spear in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention and (ii) recouping any and all costs and fees, including the cost of Services, incurred by Spear as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with Spear.
- Reinstatement. If your account has been suspended or cancelled, you must cure any default before Spear will reinstate your Account and continue providing the Services. If you request reinstatement after your account has been suspended or cancelled for 10 days or more, Spear will charge a $50.00 reinstatement fee to your primary Payment Method.
- PayPal. By using Spear's pay by PayPal payment option ("PayPal"), you can purchase Services using PayPal. In connection therewith, you agree to allow PayPal to debit the full amount of your purchase from your PayPal account ("PayPal Account") or from credit card(s), bank account(s), or other allowed payment method(s) linked to your PayPal Account ("PayPal Funding Source"). It is your responsibility to keep your PayPal Account and PayPal Funding Source current and funded, and your PayPal Account backed by a valid credit card. You acknowledge and agree that (i) PayPal reserves the right to decline a transaction for any reason (including, but not limited to, payments that fail to go through as a result of your PayPal Account or PayPal Funding Source no longer existing or not holding available/sufficient funds) and (ii) in such event, neither PayPal nor Spear shall be liable to you or any third party regarding the same. If for any reason PayPal is unable to withdraw the full amount owed for your purchase, you agree that PayPal and Spear may pursue all available lawful remedies in order to obtain payment. You agree that if any PayPal transaction is returned unpaid, you will pay a service charge equal to the lesser of $25.00 or the maximum amount allowed by law, which may be debited from your PayPal Account or PayPal Funding Source. By clicking the box labeled "I agree" to the terms of the PayPal payment option, you authorize a debit of the full amount of your purchase from your PayPal Account or PayPal Funding Source.
- Trial Periods. Spear may from time to time offer the opportunity to create a temporary Account on a limited "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.
- Spear Online. The Website contains a forum in which text, photographs, online videos and other educational materials regarding dentistry are presented (the "Spear Online").
- 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 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.
- Except for permitted Commentary and 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 and solely to upload Commentary and Postings to the Website.
- You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "worms," "Trojan horses," 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, and that you have no license or other rights of use with respect to the same.
- You may access others' Commentary and Postings on the Website solely for your own use. We do not monitor, vet or edit, and are not responsible for, any Commentary or Postings on the Website, and your reliance on such Commentary or Postings on the Website is at your own risk.
- 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.
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. Termination of this Agreement shall not relieve you of your payment obligations hereunder or your liability for any breach of this Agreement occurring before the effective time of termination. The provisions of Sections III.E., III.G., IV, V.E., and VII through XIII inclusive shall survive the termination of this Agreement.
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 ($1000.00). Some jurisdictions do not allow certain limitations of damages so the foregoing may not apply to you.
If you have a dispute with one or more users, you release Spear (and our officers, directors, employees, members, shareholders, managers, subsidiaries, affiliates, counsel, insurers, representatives, and agents) from any and all claims (monetary or otherwise), demands, lawsuits, attorneys' fees, costs, losses, liabilities and/or causes of action, whether under contract, tort, or any other theory of legal liability, and whether presently known or unknown, accrued, liquidated or contingent, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
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 and exclusive jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts.
SPEAR PROVIDES THE WEBSITE AND ALL 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 you and Spear 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 our officers, directors, employees, members, shareholders, managers, subsidiaries, affiliates, counsel, insurers, representatives, and agents), 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.
If you have any questions or comments about Spear or this Agreement, you may contact Spear at:
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