These General Terms of Services (these “Terms”) are by and between Dermatology Professional Educators, LLC d/b/a Derm for Primary Care (“DPC,” “us,” we,” or “our”) and “you” or “yours” as the Customer or User described below. These Terms and binding and effective at the earlier of the time set out in any face sheet, Statement of Work, Group Plan Service Agreement, internet order or other Service Order (collectively, an “Order”) or upon the Customer’s or User’s creation of an account with us.
These terms supplement and are made a part of any corresponding Order for the acquisition of certain rights to use and access any of our educational programs, services, content, and products produced by us and distributed in any media (collectively, the “Services”) by any user of the Services (a “Customer”). Orders may be made by several categories of Customers, including the customer and plan categories described below or such other categories as we may establish from time to time.
1. Agreement and Certain Definitions
These Terms, along with any applicable SOW, Group Plan, or Individual Plan order (collectively, this “Agreement”), shall constitute the full and complete agreement between DPC and any Customer regardless of category.
SOW: Entities who have accepted a statement of work (“SOW”) from us are referred to herein as an “SOW Customer.” SOW Customers typically acquire rights in the Services for the use or distribution of the Services internally or to groups or individuals affiliated with such SOW Customer. Such persons who are associated with an SOW Customer or a Group Customer and who derive access and use rights to the Services from an SOW Customer or Group Customer are referred to herein as an “Associated User.”
Group Plan: Entities or groups (such as professional associations, schools, or employers) (a “Group Customers”) who have purchased or acquired rights to the Services for use by members, students, or other Associated Users of the Group.
(a) Group Payment. Our arrangement with Group Customers may provide for the Group to pay the cost of the use or license fee for the Group’s Associated User.
(b) Associate User Payment. If requested by Group Customer, we will charge the Associate User directly for his or her access to the Services ordered by the Group Customer.
Individual Plan: Individuals who are not associated with an SOW Customer or Group Customer may acquire rights to access and to use and access a Service directly from us (an “Individual Customer”) according to the terms of the Order submitted by the Individual Customer. Your DPC membership will continue and automatically renew until terminated. You must cancel your membership before it renews in order to avoid billing of the membership fees for the next billing cycle to your Payment Method
2. Conflicting Terms
Each Order shall be considered an integral part of this Agreement; however, if any conflict occurs between the terms of this Agreement and the terms of an applicable Order, the terms of the Order shall prevail. If the provisions of this Agreement address or specify any matter which is not also addressed or specified in an Order, then no conflict will be deemed to exist and the provisions of this Agreement shall control.
3. Limited Use License
In consideration of the Fees paid, DPC hereby grants to Customer and the Associated User during the Term of this Agreement a limited, non-exclusive, non-assignable, revocable, worldwide right and license (i) to use DPC’s proprietary software and tools (the “DPC Software”) as hosted on DPC’s platform for use in connection with the Services, and (ii) to access and use the Services through the DPC Website with a unique login name and password. None of the Customer or any Associate Users may sell, rent, distribute, copy, repurpose, or sub-license the Services or the DPC Software except as expressly provided by this Agreement. In addition, neither a Customer nor an Associated User may use, rent, convey, distribute or transfer the DPC Software or Services in the operation of a service bureau or time-sharing arrangement or use the DPC Software or Services in combination with any software application or program, or otherwise redistribute the DPC Software or the Services to any other person or entity. Any rights not expressly granted to Customer or the Associated User herein are reserved to DPC.
4. Right to Copy Content and Programs
A Customer who is an entity may make one (1) copy of any Service acquired under an Order solely for reference and safekeeping. Such entity Customer agrees not to sell, rent, distribute or otherwise make commercial use of such copy or use such item of Service or any part thereof as part any educational services offered or promoted by such entity unless specifically permitted in a written Order. Individual Customers and Associated Users may also make personal copies of any item of Service; provided, however, that such individuals agree not to sell, rent, distribute, or share such copy for any commercial or non-commercial purpose whatsoever.
5. Title to Services and Intellectual Property
(a) Any content included as part of DPC’s websites or platforms (collectively, the “Site”) or included in the Services, such as text, graphics, marks, logos, images, videos, or documentation, as well as the compilation thereof, and any software, technology, know-how, or techniques used on the Site or in association with DPC’s provision of the Services, is the intellectual property of DPC or its suppliers (the Services and such other intellectual property being referred to collectively herein as the “DPC IP”) and is protected by copyright, trademark, patent, and any other laws that protect intellectual property and proprietary rights.
(b) All right, title and interest in and to the DPC-IP along with the technology and intellectual property that comprise DPC’s hosting environment as currently exists and as may be in the future modified or enhanced are and shall be solely owned by DPC. Neither Customer nor any Associated User may claim any ownership rights in the DPC-IP.
(c) Customer and any applicable Associated User may not use the DPC IP in any way or for any purpose other than accessing and using the Services as provided in this Agreement. Nothing contained herein shall be construed to transfer from DPC to Customer or it's Associated Users any rights in the DPC IP other than the limited license rights granted herein. All right, title and interest in and to the DPC IP shall remain solely with DPC and its suppliers.
(d) Neither Customer nor any Associated Users may, directly or indirectly, alter, disclose, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from, or create derivate works, or in any way exploit any of the DPC IP. In addition, none of the Customer or an Associated User may remove or alter any copyright or trademark notices on the DPC Software, the Services, or any user manuals or other documentation provided by DPC in connection with the DPC Software and the Services.
DPC will provide, and Customer will purchase and pay for, the right to use and access the Services specified in the applicable Order at the fees, charges, costs, expenses, and taxes in connection with the applicable Order (the “Fees”).
(a) Customer shall pay the Fees as set forth in the applicable Order.
(b) For any Fee paid by a credit card, we will charge you a processing fee at a rate of two and nine/tenths percent (2.9%) for such transaction.
(c) If the Order permits installment payments, we may (i) charge interest on any amounts not paid when due at the lower of eighteen percent (18%) per annum or the maximum amount permitted under applicable law, and (ii) suspend access or use of the Services until payment has been made in full.
(d) Customer shall reimburse DPC for amounts incurred in connection with collection activities, including, but not limited to, collection agency charges and costs, reasonable attorneys’ fees and costs, and court costs. If any check is returned for insufficient funds, DPC may impose a processing charge of thirty dollars ($30) per returned check.
8. No Refund
Unless we expressly agree otherwise in writing, all Fees paid are final and are not refundable. DPC will in no event provide any refund, reimbursement, or credit of any kind to Customer for any reason, including, but not limited to, in connection with early termination of any applicable SOW, Group Plan, or Individual Plan transaction.
At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
9. Term and Termination
(a) SOW Customers. The term of this Agreement (“Term”) for SOW Customers shall be set forth in the SOW. Unless otherwise specified in the SOW, Customer may terminate the Term at any time with thirty (30) days’ prior written notice to DPC; provided, however, that if the Order allows for installment payments which are not paid as of such early termination, DPC may require Customer to pay a cancelation fee equal to seventy-five percent (75%) of the aggregate amount of any unpaid Fees per the Order that would have been paid if the Term were not terminated early.
(b) Group Customers. For Customers who acquire rights in the Services purchase the Services under a Group Plan, the Term shall commence upon the earlier of (i) the Group’s execution or acceptance of a Group Plan agreement with us, or (ii) the Group’s creation of an account with us. Unless earlier terminated under the provisions of the Group Plan or these Terms, such Term shall end as provided in the Group Plan agreement or as provided in these Terms.
(c) Individual Customers. For purchases of Services under an Individual Plan, the Term shall commence on the date Customer submits payment and continues until the end of the monthly, annual, or such other access period purchased by the Customer on the Order. Unless you cancel your membership before your billing date, you authorize us to charge the membership fee for the next billing cycle to your Payment Method.
(d) Early Termination. Notwithstanding anything to the contrary herein or in any Order, DPC may terminate this Agreement immediately by giving electronic notice to Customer if any Fees become overdue for thirty (30) days, or if DPC determines in good faith that Customer’s use of DPC’s Services, websites, or other materials violates the Agreement.
10. Effect of Termination
Our right to terminate this Agreement and retain all Fees or other pre-paid charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies available to us. Upon termination of the Agreement for any reason, neither you nor we have further rights or obligations under the Agreement, except for your payment to us of any Fee or other liability to us and as otherwise expressly set forth herein. Sections 2, 3, 5, 6(a), 6(c), 6(d), 7, 9, 11 through 14 of these Terms shall survive the expiration or termination of the Agreement.
11. Customer's Obligations
(a) Customer and the Associated Users are solely responsible for their use of the Services and obtaining any equipment or software that may be necessary for use of the Services. Delays in Customer’s use of the Services will not extend the time to access the Services or the time for DPC’s performance under this Agreement.
(b) With respect to the use of the Services by Associated Users, the Customer assumes full responsibility for notifying its Associated Users of the availability of the Services and how to access the Services via the secured internet link associated with the use of the Service (the “Link”). We will not be responsible for or offer refunds for any incorrect or repetitive accounts resulting from Customer or Associated User signing up under an incorrect access plan or address. Customer and Associated User also agree that the Link is for Customer and/or Associated User’s exclusive use and may not be shared with any third party.
12. Customer's Representations
(a) Each Customer and Associated User represent and warrant that neither is subject to any law, court order, or contractual obligation that would prohibit such person’s performance of the Agreement or render such performance unduly burdensome or a breach of such contractual arrangement. If Customer is an entity, Customer represents and warrants that its acceptance, delivery, and performance of the Agreement is duly authorized by all requisite corporate or company action on the part of the Customer.
(b) Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer or its Associated Users sends to DPC relating to the Services will be treated as being non-confidential and non-proprietary. DPC may use, disclose, or publish any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever.
13. Confidential Information
(a) All non-public, confidential, or proprietary information of DPC, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by DPC to Customer or its Associated Users, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer or its Associated User without the prior written consent of DPC. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer or Associated User at the time of disclosure; or (iii) rightfully obtained by Customer or Associated User on a non-confidential basis from a third party.
(b) Customer shall use, and shall cause its Associated Users, if applicable, to use the Confidential Information only for accessing and using the Services.
(c) DPC shall be entitled to injunctive relief for any violation of this non-use and non-disclosure obligation without the need of alleging monetary damages or posting a bond or other security.
14. Use Policies
15. Limited Warranty
(a) DPC represents and warrants to Customer that DPC will provide the Services in connection with the SOW, Group Plan, or Individual Plan in the same manner as DPC provides the Services to other customers at the same level and type of services.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, DPC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND DPC HEREBY EXPRESSLY DISCLAIMS THE SAME. DPC PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(a) Customer or an Associated User, a applicable, shall defend, indemnify and hold harmless DPC, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “DPC Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the DPC Indemnitees may suffer, incur or sustain resulting from or arising out of (i) breach of any representation, warranty, or covenant of Customer or an Associated User contained of the Agreement, (ii) use of the DPC-IP by Customer or an Associated User, (iii) violation by Customer or an Associated User, or any of their respective officers, directors, employees, agents, or Associated Users of any applicable law, and (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks, or other claims arising from the use of the Services in combination with hardware, software, or content not provided by DPC.
(b) Promptly after receipt by DPC of a threat of any claim or suit, or a notice of the commencement of filing of any claim or suit, against which DPC may be indemnified hereunder, DPC shall give written notice thereof to Customer, provided that failure to give or delay in giving such notice to Customer shall not relieve Customer of any liability it may have to DPC hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Customer shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, DPC may participate in the defense of any such claim or suit at DPC’s own expense.
17. Limitation of Liability
(a) In no event will DPC’s liability in connection with the DPC-IP provided under this Agreement, whether caused by failure to deliver, non-performance, defects, breach of warranty, or otherwise, exceed the sum of One Thousand Dollars ($1,000.00).
(b) DPC SHALL NOT BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(c) The limitations contained in this Section 16 apply to all causes of action in the aggregate, whether based in contract, tort, or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct.
18. Changes to these Terms
You can review the most current version of these Terms of Service at any time at this page. We reserve the right, at our sole discretion, to update, change, or replace any part of these Terms of Service by posting updates and changes to our Site. It is your responsibility to check our Site periodically for changes. Your continued use of or access to our Site or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
(a) Governing Law; Jurisdiction. This Agreement shall be interpreted and enforced in accordance with the substantive laws of the State of Georgia, without regard to its principles of conflicts of law. Any dispute arising under this Agreement or out of the performance of the obligations hereunder shall be brought exclusively in the state and federal courts sitting in Fulton County, Georgia, and the Northern District of Georgia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(b) Headings. The headings herein are for convenience only and are not part of this Agreement.
(c) Entire Agreement. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
(d) Severability. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(e) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by overnight delivery, upon receipt if delivered by e-mail or by facsimile (with the receipt being confirmed by the recipient). DPC may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in DPC’s billing records.
(f) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(g) Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of DPC. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. DPC may assign its rights and obligations under this Agreement and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(h) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
(i) No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any person, firm or entity other than the parties hereto and their respective successors and permitted assigns.
Derm for Primary Care
5962 Zebulon Road, Suite 306
Macon, GA 31210