Terms of Use

Updated 7/7/2020


PEARLY PROVIDES DENTAL PRACTICES (“PROVIDERS”) WITH PAYMENT MANAGEMENT SERVICES THAT ALLOW PRACTICES TO OFFER DENTAL MEMBERSHIP PLANS (“MEMBERSHIP PLANS”) DIRECTLY TO THEIR PATIENTS (“MEMBERS”) AS WELL AS OTHER BILLING SERVICES. PEARLY DOES NOT OFFER MEMBERSHIP PLANS NOR DOES PEARLY MAKE PAYMENTS TO ANY PROVIDER OFFERING MEMBERSHIP PLANS. PEARLY PROCESSES MEMBERSHIP FEE PAYMENTS FOR PROVIDERS OFFERING MEMBERSHIP PLANS DIRECTLY TO THEIR PATIENTS.

The Terms of Use ("Terms") is between you ("Member" or "Provider") and Pearly Technology Inc. and its affiliates (“Pearly” or “We”, or “Us” or “Our”). By using our associated websites, software, mobile applications, payment portals, and marketing tools (collectively, “Pearly Pearly Services”), you agree to these Terms, our Privacy Policy, and Disclosures.

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.

These Terms include Terms for Members and Terms for Providers. Members and Providers agree to these Terms so please review closely prior to accessing Pearly Pearly Services.

Terms for Members

MEMBERSHIP PLANS ARE NOT INSURANCE, PRE-PAYMENT FOR FUTURE PEARLY SERVICES, PAYMENT FOR ACCESS TO DISCOUNTED PEARLY SERVICES OR QUALIFIED HEALTH PLANS UNDER THE AFFORDABLE CARE ACT, BUT A DIRECT PAYMENT ARRANGEMENT BETWEEN THE PROVIDER AND MEMBER FOR PEARLY SERVICES RENDERED.

You acknowledge that Pearly does not offer medical services, Membership Plans nor does Pearly make payments to any Provider offering Membership Plans. Pearly processes membership fee payments for Providers offering Membership Plans directly to their patients and Members.

Providers create their own Membership Plan fee schedules and terms. The Membership Plan agreement is made between the Member and the Provider’s legal entity.

You acknowledge that your choice of Provider is your responsibility and is not based on any representation made by Pearly. Pearly does not and cannot guarantee that the Provider will continue to offer Membership Plans and Providers can change the terms and pricing of their Membership Plans at their sole discretion.

Pearly does not make any representation, guaranty, or warranty regarding any of the Pearly Services provided by the Provider you select. Your Provider is solely responsible for all professional advice, treatment, care, quality, and outcomes provided to you. Pearly has no responsibility or liability with regards to any and all Pearly Services provided to you by the Provider of your choice.

WHEN YOU OR ANY FAMILY MEMBERS USE PEARLY PEARLY SERVICES TO ENROLL IN A MEMBERSHIP PLAN DIRECTLY WITH A PROVIDER, YOU HEREBY FOREVER RELEASE PEARLY AND ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND AFFILIATES FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, AND ACTIONS THAT YOU, OR ANY FAMILY MEMBERS, MAY HAVE AS A RESULT OR IN CONNECTION WITH ANY MEDICAL SERVICES PROVIDED BY A PROVIDER. THE SOLE RECOURSE YOU AND ANY FAMILY MEMBER HAS AGAINST PEARLY SHALL BE THE CANCELLATION OF THE MEMBERSHIP PLAN YOU OR YOUR FAMILY MEMBERS HAVE CHOSEN. BY ACCESSING PEARLY PEARLY SERVICES, YOU HEREBY AGREE NOT TO SUE OR VOLUNTARILY ASSIST IN, EXCEPT AS REQUIRED BY LAW, FOR ANY SUITS, CLAIMS, ACTIONS, DAMAGES, LIABILITY, LOSSES OR EXPENSES OF ANY KIND ARISING OUT YOUR PARTICIPATION IN A MEMBERSHIP PLAN.

When you enroll in a Membership Plan, you agree to the payment terms, included treatments, and effective dates stated on the contract provided to you by the Provider. All refunds and disputes are at the discretion of the Provider and as outlined on your specific plan contract. The Provider has the right to cancel your Membership Plan for any reason, with or without, cause or in accordance with additional policies set forth in your specific Membership Plan contract.

In order to receive the benefits stated in your Membership Plan, you must be current in your payments. Any additional treatment received from the Provider, outside of what is included in the Membership Plan, is due payable to the Provider at the time of service or in accordance with the Provider’s payment policies.

IN NO EVENT WILL PEARLY BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS ARISING FROM YOUR PARTICIPATION IN THE MEMBERSHIP PLAN, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ANY WARRANTIES FOR PEARLY SERVICES THAT YOU RECEIVE FROM A PROVIDER. OUT LIABILITY TO YOU FOR ANY CAUSE WILL AT ALL TIMES BE LIMITED TO THE PROCESSING FEE WE HAVE RECEIVED FROM THE PROVIDER FOR YOUR MOST RECENT PAYMENT. IF YOU RESIDE IN A STATE WITH SPECIFIC LAWS THAT DO NOT ALLOW FOR LIMITATIONS ON IMPLIED WARRANTIES OR OTHER DAMAGES, THEN SOME OR ALL OF THE DISCLAIMERS, LIMITATIONS, OR EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

These Terms and associated Privacy Policy, Disclosure Statement, and Cookie Policy, shall be governed by and construed in accordance with the laws of the State of California, without reference to conflicts as to matters affecting copyrights, trademarks and patents, by U.S. federal law.

These Terms and associated Privacy Policy, Disclosure Statement, and Cookie Policy, represent the entire agreement between you and Pearly pertaining to your use of Pearly Pearly Services and participation in a Membership Plan from a Provider.

If you have any questions regarding your Membership Plan or these Terms, please email us at support@pearlyplan.com.

Terms for Providers

Unless a separate Terms of Providers has been executed by Pearly and the Provider, the Provider agrees to the following terms when accessing the Pearly Services during the Initial Service Term and Term renewals.

1. PEARLY SOFTWARE & PAYMENT SERVICES

1.1 Subject to the terms of these Terms and previously executed Order Form, Pearly will use commercially reasonable efforts to provide Provider the Pearly Services (also referred to as “Software”, “Payment Services”, or “Services”. As part of the registration process, Provider will identify an administrative user name and password for Provider’s Pearly account. Pearly reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2 Subject to the terms hereof, Pearly will provide Provider with reasonable technical support of Pearly Services in accordance with Pearly’s standard practice.

1.3 Provider hereby acknowledges that Pearly does not offer medical services, Membership Plans nor does Pearly make payments to you, the Provider, offering Membership Plans. Pearly processes membership fee payments, or other payments, for Providers offering Membership Plans, or other treatment, directly to their patients and Members. The Provider creates their own Membership Plan fee schedules and terms. The Membership Plan agreement is made between the Member and the Provider’s legal entity, without association to Pearly outside of payment processing and support.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Provider 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 Pearly Services or any software, documentation or data related to the Pearly Services; modify, translate, or create derivative works based on the Pearly Services or any Software (except to the extent expressly permitted by Pearly or authorized within the Pearly Services); use the Pearly Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2 Further, Provider may not remove or export from the United States or allow the export or re-export of the Pearly 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 these Terms and will be prohibited except to the extent expressly permitted by the terms of these Terms.

2.3 Provider represents, covenants, and warrants that Provider will use the Pearly Services only in compliance with Pearly’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Provider hereby agrees to indemnify and hold harmless Pearly 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 Provider’s use of Pearly Services. Although Pearly has no obligation to monitor Provider’s use of the Pearly Services, Pearly may do so and may prohibit any use of the Pearly Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Provider shall be responsible for obtaining and maintaining any equipment and ancillary Pearly Services needed to connect to, access or otherwise use the Pearly Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Provider shall also be responsible for maintaining the security of the Equipment, Provider account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Provider account or the Equipment with or without Provider’s knowledge or consent.

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 Pearly includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Provider includes non-public data provided by Provider to Pearly to enable the provision of the Pearly Services (“Provider 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 Pearly 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 Pearly shall own and retain all right, title and interest in and to (a) the Pearly Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Pearly Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Notwithstanding anything to the contrary or as stated in the Business Association Addendum, Pearly shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Pearly Services and related systems and technologies (including, without limitation, information concerning Provider Data and data derived therefrom), and Pearly will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Pearly Services and for other development, diagnostic and corrective purposes in connection with the Pearly Services and other Pearly 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.

4. PAYMENT OF FEES

4.1 Provider will pay Pearly the then applicable fees described in the Order Form for the Pearly Services and the implementation of Pearly Services in accordance with the terms therein (the “Services Fees”). Pearly 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 thirty (30) days prior notice to Provider (which may be sent by email). If Provider believes that Pearly has billed Provider incorrectly, Provider must contact Pearly no later than 60 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 Pearly’s support department at support@pearlyplan.com.

4.2 Pearly typically bills fees immediately upon usage of Pearly Services, but may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pearly thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% 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 Pearly Services. Provider shall be responsible for all taxes associated with Pearly Services other than U.S. taxes based on Pearly’s net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, these Terms is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least five (5) 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 these Terms upon thirty (5) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms. Provider will pay in full for the Pearly Services up to and including the last day on which the Pearly Services are provided. Upon any termination, Pearly will make all Provider Data available to Provider for electronic retrieval for a period of thirty (30) days, or as stated in the Business Association Addendum. All sections of these Terms 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

Pearly shall use reasonable efforts consistent with prevailing industry standards to maintain the Pearly Services in a manner which minimizes errors and interruptions in the Pearly Services and shall perform the Implementation Pearly Services in a professional and workmanlike manner. Pearly Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pearly or by third-party providers, or because of other causes beyond Pearly’s reasonable control, but Pearly shall use reasonable efforts to provide advance notice in writing, by e-mail, or as updated on Pearly’s Status Page, of any scheduled service disruption. HOWEVER, PEARLY DOES NOT WARRANT THAT THE PEARLY 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 PEARLY SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PEARLY SERVICES AND IMPLEMENTATION PEARLY SERVICES ARE PROVIDED “AS IS” AND PEARLY 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, PEARLY 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 THESE TERMS 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, PEARLY SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PEARLY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY PROVIDER TO PEARLY FOR THE PEARLY SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PEARLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. MISCELLANEOUS

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms is not assignable, transferable or sublicensable by Provider except with Pearly’s prior written consent. Pearly may transfer and assign any of its rights and obligations under these Terms without consent. These Terms 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 these Terms, 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 these Terms and Provider does not have any authority of any kind to bind Pearly in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms 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. These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The Provider allows Pearly to reference their name, logo, and use of Pearly Services in marketing materials and agrees to reasonably cooperate with Pearly to serve as a reference account upon reasonable request.

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

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