Terms of Use

Updated 10/1/2021


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 (“Client”, “Member”).

By using our associated websites, software, mobile applications, payment portals, and notifications (collectively, the “Services”) you agree to be bound by these Terms of Use (“Terms”), Disclosure Statement, and any other terms, policies and guidelines applicable to the Services as presented to you or outlined in the Order Form (the "Agreement"). We utilize third-party providers to provide certain aspects of the Services, and you may be required to agree to those third-party providers terms of service, as further described in these Terms.

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 & Support

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer with the Services. As part of the registration process, Customer will identify an administrative user names and passwords for Customer’s admin users and complete the standard account creation and setup process. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

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, Client, and any user of the Services 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; 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 Customer, Client, and any user of the Services agrees that the copyright in all material on the Services, including without limitation the text, data, articles, design, source code, software, photos, images and other information, is held by Pearly or by the original creator of the material and is protected by U.S. and International copyright laws or treaties, and it therefore may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, without the express prior written consent of Pearly.

2.3 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.

2.4 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 and payment services only and is not an administrator of any type of dental savings, membership, or discount plans. Customer is solely responsible for complying with any state and federal regulations, including required terms and disclosures, relating to all in-house dental membership programs and plans the Customer creates through the Services. In addition, Customer is responsible for ensuring any Client contact information entered, integrated, submitted, and/or used as part of the Services complies with CAN-SPAM Acts and that the Client has provided any neccessary legal constent 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.

2.5 Client acknowledges that Company does not offer medical services, in-house membership plans, nor does Pearly make payments to any Customer offering medical services or in-house membership plans. Client acknowledges that Company is a software provider to Customer only. Client acknowledges that Company does not make any representation, guaranty, or warranty regarding any of the services provided by Customer. Customer is solely responsible for all professional advice, treatment, care, quality, and outcomes provided to Client. Company has no responsibility or liability with regards to any and all services provided to Client by Customer. Client acknowledges that when Client access any Company Services, it is to faciliate a direct payment or relationship between Client and Customer.

2.5 Customer and Clients 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”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. Confidentiality

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, and is Client Accounts, 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 three (3) 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 Customer gives Company express permission to use Customer's trademarks, service marks, trade names, logos, domain names, and non-confidential metrics for marketing purposes.

4. Payment of Fees

4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon ten (10) days 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 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@pearly.co.

4.2 Company may charge Customer in advance or via invoice for Services Fees and any additional fees incurred as outlined in the Order Form. If an invoice is issued, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the electronic mailing (email) date of the invoice. 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.

5. Term & Termination

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form or as long as the Customer or Client accesses the Services, whichever is greater, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term, unless either party requests termination at least ten (10) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon ninety (90) 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 & Disclaimer

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

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. Miscellaneous

8.1 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 Customer.

8.2 This Agreement, to the extent applicable, is supplemented by the Business Associate Addendum located here: https://www.pearly.co/legal/baa/.

8.3 The Services may incorporate various third-party providers, including, not limited to, Stripe, Twilio, Plaid, Sikkasoft, and the Customer agrees to any third-party terms or agreements required by third-party providers, which can be provided to Customer by Company upon request.

8.4 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 California without regard to its conflict of laws provisions.

If you have any questions regarding these Terms, please email us at support@pearly.co.

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