Pearly Technology, Inc. (“Pearly”, “Company”, “We”, “Us”, “Our”) provides dental practices (“Customer”, “Provider”) with modern software tools designed to help Customer engage, manage, and collect payments from their patients or users.
We reserve the right to make changes to the Terms at any time and for any reason. We will alert you about any changes by updating the “Updated” date of this Terms page and you waive the right to receive specific notification of changes. Any changes or modifications will be effective immediately upon posting the updated Terms.
1. SOFTWARE SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer with the Services referenced in the Order Form. As part of the onboarding process, Customer will identify administrative user names and passwords for Customer’s admin users and assist the Company as required as part of the standard account new account creation and setup process.
1.2. Subject to the terms of this Agreement, Company will provide Customer with onboarding and technical support according to its standard practice or as detailed in the Order Form.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services).
2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer acknowledges that Company is a provider of software services only and it not an administrator or provider of any type of medical or referral services. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Customer is solely responsible for complying with any state and federal regulations, including required terms and disclosures, relating to all patient billing, membership, and/or payment plans the Customer creates or utilizes through the Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
2.4. Customer is responsible for ensuring any patient contact information entered, integrated, submitted, and/or used as part of the Services complies with CAN-SPAM Acts and that the Customer has received any necessary legal consent for electronic or telephonic contact. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service.
Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4. Notwithstanding anything to the contrary in this Agreement, Company may use Customer’s logo and other publicly available information for publicity, marketing, and/or sales purposes.
4. PAYMENT OF FEES
4.1. Customer shall pay Company the applicable Services Fees described in the Order Form for the Services accordance with the terms therein. Company reserves the right to change the Services Fees or applicable charges and to institute new charges at the end of the Agreement Term or then-current renewal term, upon one (1) month prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department at support (at) pearly.co.
4.2. Company shall charge Customer the Services Fees, and any additional fees incurred as outlined in this Agreement, beginning on the Billing Start Date and each calendar month thereafter using the payment method provided by Customer in accordance with the Payment Terms stated in the Order Form. Unpaid amounts are subject to a finance charge of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services, other than U.S. taxes based on Company’s net income.
4.3. Customer acknowledges Services incorporate Stripe Connect for merchant account provisioning and payment processing and, for the Services to perform, the Customer must have each office complete the Stripe Connect merchant onboarding and agree to the Connected Account Agreement (currently located at www.stripe.com/connect-account/legal , but subject to change). Payment processing fees are charged by Stripe on a per transaction basis and the net proceeds are direct deposited into the bank account details provided by Customer. The payment processing related Services Fees are defined in the Order Form, but subject to change. There may be an additional processing fee charged by Stripe to Customer for chargebacks, refunds, or other non-standard processing related items.
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, this Agreement is for the Agreement Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Agreement Term (collectively, the “Term”), unless either party requests termination in accordance with the Termination notice timeframe provided in the Order Form.
5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
7. LIMITATION OF LIABILITY
7.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1. Customer or Company may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, without the consent of the other party.
8.2. This Agreement, to the extent applicable, is supplemented by the attached or previously executed Business Associate Addendum as well as any previously executed Non-Disclosure Agreements.
8.3. The Services incorporate integrating with the Customer’s practice management software and, for the Services to perform, the Customer must agree to any 3rd party or direct integration requirements as reasonably specified by the Company. The Company currently uses Sikka Software Corp. as a 3rd party integration tool for many of the integrations and Customer hereby agrees and acknowledges that Customer shall agree to the Sikka Software Terms of Services, currently located here: www.sikkasoft.com/terms-of-service, but subject to change.
8.4. Customer users and patients who access Company’s online software applications as users agree to the Company’s various Privacy, Cookie, and Accessibility Policies provided on the Company’s website.
8.5. Customer acknowledges that the Services are an evolving software platform that will continue to update and improve over time, while the core capabilities will remain intact.
8.6. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.