Last updated: March 5, 2020

Terms & Conditions

Services

Services. Dental Whale, LLC, (“Dental Whale”) directly or through an affiliate, subsidiary, or designee (“Affiliate”)will provide to the Practice the services or products selected by the Practice (the “Services”) on the applicable Services Agreement (the “Services Agreement”), which is incorporated herein by reference. Dental Whale may change the Services offered (whether adding additional Services or cancelling Services) at any time upon delivery of a revised Services Agreement. The Practice, may, but shall not be required to, add additional or any new Services during the Term of the Agreement.

Term and Termination

The Term of the Services Agreement shall begin on the date of execution by the Practice and, unless otherwise stated in the Service Agreement, shall be a month to month term. The Practice shall provide all necessary and required information to Dental Whale, its affiliate, subsidiary, or designee as required to provide the Services, and the Services shall commence within seven (7) business days of receipt of the required information. Unless otherwise terminated as provided in these Terms and Conditions or the Services Agreement contracts will automatically renew on a month-to-month basis. The initial Term and all renewal terms are referred to herein as the “Term”. Unless otherwise stated in the Service Agreement, either Party may terminate the Service Agreement for any or no reason by providing 30 days prior written notice to the other Party. Dental Whale may also terminate the Services Agreement and immediately cease providing all Services to the Practice, without notice, if the Practice fails to pay any amounts due under the Services Agreement within ten (10) days of the due date.

Service Fees

In consideration for Dental Whale’s Services, Practice will pay Dental Whale, or its designees, the amounts corresponding to the Practice’s elections of Services on the Services Agreement.

Breakaway Seminars Refunds Policy

All sales are final and no refunds will be granted. In the event an attendee has to cancel or cannot attend or if a seminar is cancelled or re-scheduled, funds will be credited to a future event of attendee’s choosing. If you have any questions or comments about the Payment Terms & Conditions, please contact us by email at [email protected].

Administrative Fees

Dental Whale or its Affiliate may receive a fee from some or all suppliers which fee shall not exceed 10%. On an annual basis, and in accordance with 42 CFR § 1001.952, Dental Whale or its Affiliate will provide the Practice a report showing the amount received from each vendor with respect to purchases made by or on behalf of the Practice.

Third Party Vendor Agreements

The Practice may be required to enter into third party vendor agreements with Dental Whale vendors. Any such contract does not change or amend these Terms and Conditions or the Services Agreement. The Practice should not pay any service fees to any vendor unless specifically noted and agreed to by the Parties in writing.

Electronic Billing and Payment of the Monthly Fee via Recurring Credit Card

Practice shall provide, a valid credit card and accompanying authorization for recurring use. Dental Whale shall not store or maintain credit card data, but such credit card day may be retained by Dental Whale’s merchant processor(s). Dental Whale will automatically charge the appropriate monthly (or annual) fee to the credit card and shall provide Practice with a receipt for the charge. The Practice will be charged interest on amounts past due at the rate of fifteen percent (15%) per annum or the maximum interest rate permitted by law, whichever is less.

Independent Contractor Status

Notwithstanding any provision contained herein or in the Services Agreement to the contrary, the Practice and Dental Whale, along with each Affiliate, each understand and agree that the Parties hereto are independent contractors and that therefore neither the Practice nor Dental Whale, its affiliate, subsidiary, or designee is an employee, partner, joint venturer, or agent of the other. Neither Party shall have the right to make any promises, warranties or representations, or to assume or create any obligations, on behalf of the other Party.

Indemnity and Limitation of Liability

THE PRACTICE AGREES TO INDEMNIFY, DEFEND AND HOLD DENTAL WHALE, AND ITS AFFILIATES, OFFICERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY CLAIMS ASSERTED BY ANY THIRD PARTIES AGAINST DENTAL WHALE AND ITS AFFILIATES ARISING FROM DENTAL WHALE’S RELATIONSHIP WITH THE PRACTICE PURSUANT TO THE SERVICES AGREEMENT. THE PRACTICE AGREES TO FURTHER INDEMNIFY, DEFEND AND HOLD HARMLESS DENTAL WHALE, AND ITS AFFILIATES, OFFICERS, DIRECTORS, AND EMPLOYEES FROM ANY AND ALL LIABILITY, LOSS, DAMAGE, CLAIM OR EXPENSE OF ANY KIND, INCLUDING COSTS AND ATTORNEYS’ FEES WHICH RESULT FROM THE ACTS OR OMISSIONS BY THE PRACTICE, ITS AGENTS OR EMPLOYEES, REGARDING THE DUTIES AND OBLIGATIONS OF THE PRACTICE UNDER THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS. DENTAL WHALE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUES. IN NO EVENT SHALL DAMAGES FOR EITHER PARTY EXCEED THE VALUE OF THE TERM OF THE SERVICES AGREEMENT.

Effect of Expiration and Termination; Survival

Notwithstanding the expiration or termination of the Services Agreement, Section 3 (as it relates to unpaid Service Fees), 9 (Indemnity, Release and Waiver of Liability), 10 (Survival), 12 (Governing Law; Venue), 18 (Attorneys’ Fees), 20 (HIPAA and State Data Privacy Law Compliance), 21 (No Referral Arrangements), 23 (Warranties), 24 (Access to Records, if applicable), and 25 (Jury Trial) will survive.

Conformance with Law

Each Party shall carry out all activities undertaken by it pursuant to the Services Agreement or these Terms and Conditions in conformance with all applicable federal, state, and local laws, rules, and regulations, including but not limited to: HIPAA privacy laws, OSHA safety laws, Telephone Consumer Protection Act (TCPA), and telephone call recording notification requirements.

Governing Law, Venue

The Services Agreement, these Terms and Conditions and all actions arising, in whole or in part, under or in connection with the Services Agreement or these Terms and Conditions shall be governed by and construed in accordance with the domestic substantive laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The Parties hereby agree that venue for any and all disputes arising from or relating to the Services Agreement or these Terms and Conditions shall be in the state or federal court of competent jurisdiction located in Broward County, Florida, and each of the Parties hereby consent to the exclusive jurisdiction of such courts.

Entire Agreement; No Oral Modification

The Services Agreement and these Terms and Conditions constitute the entire final agreement between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements between the Parties hereto, both oral and written, concerning the subject matter hereof. Except as provided in Section 1 for the amendment of Services to be provided, the Services Agreement and these Terms and Conditions may not be amended or modified except by a writing signed by all of the Parties hereto.

Assignment

Dental Whale may transfer and assign the Services Agreement and these Terms and Conditions without the prior consent of the Practice. The Practice shall not assign the Services Agreement or these Terms and Conditions without Dental Whale’s prior written consent. The term “assign” as used in this Section 12 shall include without limitation, any dissolution, merger, consolidation or other reorganization of a Party; any sale of all or substantially all of the assets of a Party; any issuance, sale, gift, transfer or redemption of any equity ownership of a Party or other interest in a Party (whether voluntary, involuntary or by operation of law, or any combination of the foregoing) of any of the direct or indirect power to affect the management or policies of a Party; or any direct or indirect change in fifty percent (50%) or more of the ownership interest of the Practice.

Severability

If any provision of the Services Agreement or these Terms and Conditions shall be held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any way affect or render invalid or unenforceable any other provision of the Services Agreement and these Terms and Conditions, and the Services Agreement and these Terms and Conditions shall be carried out as if such invalid or unenforceable provision were not contained herein. It is the intention of the Parties that if any such provision is held to be illegal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as possible and be legal, valid and enforceable.

Waiver

The waiver by either Party of any breach of any provision of the Services Agreement and these Terms and Conditions shall not be construed as a waiver of any subsequent breach of the same or other provision.

Further Action

The Parties shall execute and deliver all documents, provide all information and take or refrain from all such action as may be necessary or appropriate to carry out the stated purposes of the Services Agreement and these Terms and Conditions.

Attorneys’ Fees

If any litigation arises as a result of the terms, conditions or provisions of the Services Agreement or these Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys’ fees at all pre-trial, trial and appellate levels, as well as all costs and expenses. In addition, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs incurred in enforcing any judgment arising from a suit under the Services Agreement or these Terms and Conditions. This post-judgment attorney’s fees and costs provision shall be severable from the other provisions of these Terms and Conditions and shall survive any judgment on such suit and is not to be deemed merged into the judgment.

Interpretation

The section headings contained herein are for reference purposes only and are not to be deemed a part of these Terms and Conditions. Whenever the context hereof requires, the gender of all words shall include the masculine, feminine and neuter, and all words shall include the singular and plural.

HIPAA and State Data Privacy Law Compliance

Notwithstanding anything in the Services Agreement or these Terms and Conditions to the contrary, the Practice is a Covered Entity (as that term is defined by HIPAA) and the Parties agree to enter into a Business Associate Agreement executed to be effective as of the Effective Date. The Parties further agree to comply with any federal laws (including, but not limited to, the Health Insurance Portability and Accountability Act) and any state law and regulations (including, but not limited to, California Consumer Privacy Act (CCPA), biometric privacy laws, breach notification laws, data privacy rights laws) that govern or pertain to the confidentiality, privacy, security of, and electronic transactions and code sets pertaining to, protected health information related to patients.

No Referral Arrangements

The Parties hereby acknowledge and agree that no benefits to the Parties hereunder require or are in any way contingent upon the admission, recommendation, referral or any other arrangement for the provision of any item or service offered by the Practice or any of its affiliates, to any patients of the Practice, or the Practice’s employees or agents. Dental Whale shall neither have nor exercise any control or direction over the number, type or recipient of patient referrals made by physicians, and nothing in the Services Agreement or these Terms and Conditions shall be construed as directing or influencing such referrals. None of Dental Whale’s activities contemplated under the Services Agreement or these Terms and Conditions or otherwise shall constitute obligations of Dental Whale to generate patient flow or business to the Practice in a manner that is in violation of any applicable health care laws. Further, there is absolutely no intent for Dental Whale in any manner to be compensated to generate patients for the Practice. Rather, the Practice has engaged Dental Whale to provide the Services in order to enable the Practice to focus on delivering the highest quality of patient care.

Clinical Responsibility

Practice understands and agrees it is solely responsible for all clinical decisions made within the Practice, including but not limited to selection and use of proper Personnel Protective Equipment (PPE), supplies, and equipment. Nothing within the Services Agreement or the in the services actually provided is intended to constitute the practice of dentistry and the Practice agrees clinicians remain fully responsible for the clinical services provided and for the clinical judgment with regard to patient care. Dental Whale expresses no opinion on the appropriateness of particular supplies, equipment, and parts or as to the compliance of those supplies, equipment and parts with federal, state, or local laws or regulations.

Warranties

Practice may, through the Service Agreement, purchase goods or services directly or indirectly through Dental Whale.  DENTAL WHALE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS OR SERVICES SOLD PURSUANT TO THE SERVICES AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN PRACTICE AND DENTAL WHALE,INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Nothing herein shall limit Practices’ warranty from the manufacturer or claims against a manufacturer. For texting and emailing campaigns through Dental Whale or one of its subsidiaries, Practice warrants to Dental Whale that it has obtained express written consent of those customers/patients to receive text or email communication from or on behalf of the Practice and in accordance with the Telephone Consumer Protection Act or the CAN-SPAM Act.

Access to Records

If Dental Whale and the Practice are subject to the disclosure provisions contained in the Social Security Act, then each of the Parties agrees to comply with same and agrees to make available upon request from the Secretary of the Department of Health and Human Services or the Comptroller General, or any of their duly authorized representatives, the Services Agreement, these Terms and Conditions and any other documents and records of such Party deemed necessary by the requesting Party to verify the nature and the extent of the costs hereof. If either of the Parties carries out any of its obligations hereunder through subcontractors (subject to the assignment restrictions and other provisions hereof), pursuant to a contract for a value of Ten Thousand Dollars ($10,000) or more, said Party shall require such subcontract to contain a provision allowing similar access. The Parties’ obligations hereunder and the terms to be placed in any subcontracts shall provide that such contracts, subcontracts, books and records shall be made available for a period of four (4) years after the provision of services specified hereunder or under any of the subcontracts.

Waiver of Jury Trial

THE PRACTICE AND DENTAL WHALE HEREBY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN CONNECTION WITH THE ENFORCEMENT OR INTERPRETATION BY JUDICIAL PROCESS OF ANY PROVISION OF THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS, AND IN CONNECTION WITH ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION OR SIMILAR CAUSES OF ACTION OR ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES FOR ANY CLAIMS ARISING OUT OF THE SERVICES AGREEMENT, THESE TERMS AND CONDITIONS OR THE RELATIONS BETWEEN THE PARTIES, WHETHER NOW EXISTING OR ARISING IN THE FUTURE.

Dental Whale Savings Network

For additional terms and conditions applicable to Dental Whale Savings Network (DWSN) please log in to your member account on the member portal at dwsavingsnetwork.com.

Breakaway Seminar Subject Matter

To the extent Breakaway Seminars involve topics regarding compliance with laws, the seminars do not constitute legal advice. The Practice is solely responsible for complying with any state and federal applicable laws (including, but not limited to, HIPAA and CCPA, biometric privacy laws, breach notification laws, data privacy rights laws).

Online Course Material

Some of our Services require online registration and or access to our portal, websites, or databases (“Sites”). You acknowledge that you are solely responsible for the proper use of your account, the site, and the content therein. All content within the sites is, and remains property of Dental Whale or its affiliate; you are granted a non-exclusive license to access, download and use the Site content. At no time may you copy, reproduce, or share in any manner content which you might have access to, whether downloaded or not. Any such sharing or reproduction shall be a violation of your license, in which case Dental Whale reserves the right in its sole discretion to revoke the license. Upon revocation of any license, you agree to return or certify destruction of the licensed materials.