This Allure MD Membership Agreement (“Agreement”) effective date shall be the date you execute the Agreement (“Effective Date”) is by and between the undersigned member (“Member”) and James H. Rosing, MD, INC. DBA Allure MD Plastic Surgery + Dermatology (“PRACTICE”) located at 1441 Avocado Avenue, Suite 708, Newport Beach, CA 92660. It is agreed the Member is purchasing a Membership from the PRACTICE according to the terms of this Agreement.
Please be advised of the following important terms of your Membership Agreement:
• All Membership Fees paid need to be used during your Membership Term and are not refundable or can be applied to any subsequent Membership renewal.
• Your Membership is not transferable.
1) Membership, Term, and Fees.
a) Membership. Members shall choose the Allure MD Elite Care membership package and to use the premises, facilities, equipment, and services at the PRACTICE location stated in this Agreement (“Allure MD Treatments”). Member understands that all problems related to this Agreement and/or Member’s Membership must be addressed with the PRACTICE in which Member’s Membership was sold. Member acknowledges that the PRACTICE may from time to time sell memberships and packages at different rates and terms than the rate and terms of Member’s Membership. The PRACTICE reserves the right to change from time to time the benefits which are part of Member’s service at its sole discretion. Member represents that Member is eighteen (18) years of age or older. Member acknowledges that it has been explained to Member that this is a legally binding and enforceable contract, and that Member has agreed to maintain Member’s Membership for the period of time specified herein.
b) Membership Fee and Due Date. Member’s monthly Membership fee amount is $99.00 (“Monthly Fee”). The Monthly Fee will be automatically billed and collected once every month beginning on your membership Effective Date and continuing that same day every billing period or as soon thereafter as practical (“Due Date”), until Member’s Membership is properly cancelled as provided in Section 4 of this Agreement, or otherwise terminates as provided herein. The Monthly Fee cannot be offset by any store credit existing. The PRACTICE reserves the right to increase the Monthly Fee upon thirty (30) days’ notice to Member but will not increase the Monthly Fee during the Initial Term (as defined below). ALL MONTHLY FEES PAID DURING THE INITIAL TERM OR ANY SUBSEQUENT RENEWAL TERM ARE NOT REFUNDABLE. SHOULD MEMBER DECIDE NOT TO CONTINUE MEMBERSHIP AFTER INITIAL TERM, ALL MONTHLY FEES ARE REQUIRED TO BE USED DURING 60 DAYS FROM THE TIME OF CANCELLATION.
c) Term. The initial term of this Agreement is for 6 months (the “Initial Term”) and will automatically renew every 30 days thereafter (the “Term”) unless Member provides the PRACTICE thirty (30) days’ written notice of cancellation pursuant to Section 4 of this Agreement. In no event shall this Agreement extend for an Initial Term or Term longer than six (6) months. Allure MD membership is intended as a long-term investment.
d) Automatic Renewal Notice. Member understands that after the Initial Term, this Agreement will automatically renew each month unless Member provides notice of cancellation to the PRACTICE pursuant to the cancellation procedure specified in Section 4 of this Agreement.
2) Use and Scheduling of Allure MD Treatments.
a) Use of Treatments and Scheduling Policy. Member must have an active Membership in good standing to participate in Allure MD Treatments. Member’s Allure MD Treatments are only redeemable at the PRACTICE location in which they were purchased. Member’s Allure MD Treatments may not be shared with or transferred to other members and/or any other person. There are no refunds for unused and/or expired Allure MD Treatments. To ensure that you get an appointment for the date and time you desire, we suggest you book all appointments a few weeks in advance using our Website. Our Website displays the most up to date availability. Please note we require a credit card to reserve your appointment. We accept American Express, Visa, Mastercard. and Discover.
b) Rescheduling of Allure MD Treatments. The PRACTICE reserves the right to assign or reassign any provider to any Allure MD Treatment. The PRACTICE also reserves the right to reschedule, cancel or discontinue a treatment for any or no reason without notice – this includes changes to the day, time, and personnel. Any Allure MD Treatment that is rescheduled will be done as best to accommodate all members involved. If a member cannot attend the rescheduled Allure MD Treatment, the member is still responsible for payments as scheduled.
3) Notice of Cancellation Rights.
a) Three-Day Right to Cancel. This Agreement may be cancelled by the Member within 3 business days after the first business day this Agreement is signed by the Member, and all monies paid pursuant to this Agreement shall be refunded to the Member. For purposes of this section, “business day” shall mean any day on which the PRACTICE is open for business.
b) Cancellation if PRACTICE is Not Yet open for Business. A Member purchasing a Membership at a PRACTICE which has not yet opened for business at the time this Agreement is signed, or who does not purchase a Membership at an existing facility, shall have seven (7) calendar days in which to cancel this Agreement and receive a full refund of all monies paid. Member’s rights to cancel this Agreement described in this Section are in addition to any other contract rights or remedies provided by law.
c) Cancellation if PRACTICE is Under Construction. If this Agreement is for a Membership at a planned PRACTICE or a PRACTICE under construction, this Agreement may be cancelled at the option of the Member if the facilities and services contracted for are not available within six (6) months from the date this Agreement is entered into, or within 3 months of a date specified in the Agreement, whichever is earlier.
d) Cancellation and Relocation of Member’s Residence. In the event of the relocation of a Member’s residence to farther than 100 miles from the PRACTICE’s facilities, and upon the failure of the original PRACTICE to designate a PRACTICE , with comparable facilities and services within 100 miles of the Member’s new residence, which agrees to accept the original PRACTICE ’s obligations under the Agreement, the Member may cancel the Agreement and shall be liable for only that portion of the charges allocable to the time before reasonable evidence of such relocation is presented to the PRACTICE (such as a utility bill), plus a cancellation fee of $350.
e) Cancellation in the Event of Death or Disability. If the Member, because of death or disability, is unable to use or receive all services contracted for, the Member, or their estate as the case may be, shall be liable for only that portion of the charges allocable to the time prior to the death or the onset of disability. The PRACTICE shall have the right to require and verify reasonable evidence of such death or disability.
f) Early If Member wishes to cancel this Agreement during the Initial Term, Member must provide 90 days’ written notice to the PRACTICE and pay an early cancellation fee (“Early Cancellation Fee”). The Early Cancellation Fee will be $500. If Member’s account is in good standing, Member will be able to attend Allure MD Treatments during the 90-day period after Member’s notice. If the Initial Term has ended and Member’s Membership is now month-to-month, Member must provide the PRACTICE 30 days’ written notice in order to cancel. Member understands that Member will be billed for any scheduled payments due during Member’s notice period.
g) Member cannot downgrade the Membership during the contract term.
h) Member may upgrade its Membership at any time by providing the PRACTICE with written notice prior to any such upgrade. Member may elect to upgrade its Membership immediately, or upon the Member’s next billing payment.
i) Cancellation of an appointment. Any appointment that is canceled without a minimum of 24 hour notice, is subject to a cancellation fee of $100. (“Appointment Cancellation Fee”).
j) Notice of Notice of cancellation of this Agreement by Member (“Cancellation Notice”) shall be made in person at the PRACTICE or in writing and delivered by certified or registered mail to the PRACTICE at the following address: 1441 Avocado Avenue, Suite 708, Newport Beach, CA 92660. After providing the PRACTICE with the Cancellation Notice, Member shall pay the PRACTICE the Monthly Fee for the following month prior to the cancellation taking effect.
k) All refunds to which Member or their estate is entitled shall be made within thirty (30) days of receipt by the PRACTICE of the Cancellation Notice.
4) Billing and payment
a) Billing Information. Member shall be responsible for providing valid billing information for scheduled payment drafts. Member’s billing information must be updated at least three (3) days prior to the scheduled draft date or the existing billing information on Member’s account will be charged.
b) Allure MD Treatments are automatically deducted monthly. This payment option automatically renews the Membership on a monthly basis. Thereafter, the Monthly Fee is auto-renewed for terms of thirty (30) days, unless a 30-day cancellation notice is received in accordance with this Agreement. If Member’s payment is declined or rejected for any reason, the PRACTICE reserves the right to refuse treatment until payment is received. Member understands that the PRACTICE may make daily attempts to collect Member’s declined payments. Any payment that is returned or rejected for any reason will be subject to reasonable bank fees and charges.
c) No-Show and Late Cancellation Fee. The PRACTICE reserves the right to charge a reasonable fee if the Member fails to attend a scheduled treatment (“No-Show Fee”) or cancels a scheduled treatment with less than eight (8)-hours’ notice to the PRACTICE (“Late Cancellation Fee”). Currently, the No-Show Fee is One Hundred Fifty Dollars ($150) and the Late Cancellation Fee is One Hundred Fifty Dollars ($150). Cancellations within one (1) hour of the treatment start time are considered No-Shows. The PRACTICE reserves the right to change the No-Show Fee and Late Cancellation Fee at its sole discretion. Member understands that its scheduled Allure MD Treatments will be deducted if Member is a no-show to its scheduled treatment session.
d) Dues, Fees, Charges, and Taxes. Member is responsible for notifying its bank of any error that appears on its bank or credit card statement in a timely manner. Member shall notify the PRACTICE within sixty (60) days of a claimed error on its bank statement or credit card statement. The PRACTICE has the right to add to any amounts payable to the PRACTICE and/or any tax imposed by any governmental agency. To the extent sales tax rates are imposed, the Monthly Fee will be increased by such tax.
e) Default and Late Payments. Should Member default on any payment obligation as called for in this Agreement, the PRACTICE will have the right to declare the entire remaining balance due and payable and Member agrees to pay allowable interest, and all costs of collection, including but not limited to collection agency fees, court costs, and attorney fees. A default occurs when any payment due under this Agreement is more than ten (10) days late. Member acknowledges that Member will be charged a late fee of Fifteen Dollars ($15) (“Late Fee”). An additional service fee will be charged for any check, draft, credit card, or order returned for insufficient funds or any other reason. Member further acknowledges that if Member pays by electronic funds transfer (EFT), the PRACTICE’s then-current billing company(ies) reserve(s) the right to draft via EFT all amounts owed by Member including any and all Late Fees and service fees, subject to applicable State and Federal Law.
f) In the event Member gets a chargeback from its credit card company, such determination is not determinative and the PRACTICE reserves the right to pursue all such amount(s).
6) Additional Terms and Conditions.
a) PRACTICE Termination Rights. The PRACTICE may suspend or terminate this Agreement or Member’s Membership for any or no reason in its sole and arbitrary discretion. Notification by the PRACTICE of suspension or termination may be made in person or by telephone, mail, or electronic mail.
b) Medical Suspension. Member may suspend its Membership without penalty in the event Member presents the PRACTICE a provider’s notice of physical inability to continue using the PRACTICE. Member must present such provider’s notice at least seven (7) days before its next billing date for such suspension to be effective commencing the immediately following week. Member may suspend its Membership for a maximum of six (6) months.
c) Membership Suspension. Member may suspend its Membership with the PRACTICE for either (i) one month, or (ii) two months. Members will not be required to pay the Monthly Fee during the period in which the Membership is suspended, but will be required to pay a suspension fee of $15 per month (the “Monthly Suspension Fee”). Member agrees and acknowledges that its Membership cannot be cancelled during the period in which the Membership is suspended. Furthermore, the Membership must be active for more than one month before Member may suspend its Membership.
d) Physical Condition and No Medical Advice. Member represents that Member is physically sound and has no medical reason or impairment including but not limited to a virus, infection, or illness that might prevent Member from its intended use of the PRACTICE’s or other participating Allure MD Treatments.
e) Liability for Property. Neither Allure MD Plastic Surgery + Dermatology, Emsculpt Newport Beach, James H. Rosing, M.D., INC. nor any other participating Facility, and their respective affiliates, parents, subsidiaries, owners, managers, members, employees, agents, successors, and assigns is liable to Member or its guest for any personal property that is damaged, lost or stolen while on or around the premises of the PRACTICE or other participating Facility, including damage to a vehicle or its contents or any property left in a locker. If Member or its guest causes any damage to such facilities, Member is liable for its cost of repair or replacement.
f) Rules and Regulations. Member agrees to follow the Membership policies, rules and regulations of Allure MD Plastic Surgery + Dermatology, Emsculpt Newport Beach, James H. Rosing, M.D., INC.. The PRACTICE and other participating Allure MD facilities may, in their sole discretion, modify the policies and any PRACTICE rule without notice at any time. PRACTICE rules vary by location and all signs posted in a PRACTICE or on the premises or verbal communication shall be considered a part of the rules of such PRACTICE . Member agrees that improper or unauthorized use of the PRACTICE, facilities or violation of the rules may result in suspension of Member’s Membership or cancellation at the PRACTICE’s discretion.
7) Miscellaneous Provisions.
a) use of Likeness Waiver. As consideration for the PRACTICE entering into this Agreement, Member hereby grants permission to Allure MD Plastic Surgery + Dermatology, Emsculpt Newport Beach, James H. Rosing, M.D., INC. and their affiliates, parents, and subsidiaries the rights of Member’s image, likeness, and sound of Member’s voice as recorded on audio or videotape. Member understands that its image may be edited, copied, exhibited, published, or distributed and waives the right to inspect or approve the finished product wherein Member’s likeness appears. Additionally, Member waives any right to royalties or other compensation arising or related to the use of Member’s image, voice, or recording. Member understands that this material may be used in diverse commercial settings within an unrestricted geographic area. By executing this Agreement, Member understands that photographic, audio, or video recordings of Member may be electronically displayed via the internet, print, radio and other forms of advertising in the public business setting. By executing this Agreement, Member acknowledges that Member has completely read and fully understands the above release and agrees to be bound thereby. Member hereby releases any and all claims against any person or organization utilizing this material.
b) Assignment. Neither this Agreement nor Member’s Membership may be assigned or transferred by Member and Member may not sell, assign, or transfer this Agreement or Member’s rights, privileges, and obligations hereunder or its Membership to a third party. Any such attempted sale, assignment or transfer shall be null and void. Member may not loan its Membership card to anyone. No membership agreement for Allure MD Treatments shall require or entail the execution of any note by the Member which, when separately negotiated, will cut off as to third parties any right of action or defense which the Member may have against the PRACTICE. No right of action or defense arising out of this Agreement which the Member has against the PRACTICE shall be cut off by assignment of this Agreement whether or not the assignee acquires the Agreement in good faith and for value. Such an assignee is not a holder in due course. The PRACTICE reserves the right to assign or otherwise transfer this Agreement at any time without Member’s consent.
c) Jurisdiction and Venue. This Agreement will be governed by the laws of the State in which the PRACTICE is located, without regard to conflict of laws rules or principles. The state and federal courts of the State in which the PRACTICE is located shall be proper forums for any legal controversy arising in connection with this Agreement, which state, and federal courts of the State in which the PRACTICE is located shall be the exclusive forums for all such suits, actions, or proceedings.
d) Payment Information. By signing this Agreement, Member authorizes the PRACTICE, its assigns, affiliates and other parties authorized by PRACTICE including, but not limited to, James H. Rosing, MD, INC. DBA Allure MD Plastic Surgery + Dermatology, its parent, subsidiaries and affiliates and payment processing and collection companies, to store the Payment Account Information Member provided to PRACTICE and any alternate payment account information provided in person, online, or over the phone for purposes of making any payment in relation to this Agreement and/or Member’s Membership. Member authorizes the PRACTICE and other parties listed above to initiate transfers from Member’s payment account (“Payment Account”) for the purpose of billing all or a portion of the Monthly Fee Member owes to PRACTICE each month and any other fee set forth in this Agreement on or around the date(s) indicated herein until all of Member’s obligations are paid under this Agreement. Member understands that its obligation under this Agreement includes the Monthly Fee, service fees for uncollectable Monthly Fees, applicable taxes, charges and other unpaid fees or dues that are or will become due. Member further understands that the Payment Account Information may be used for any incidental charges Member makes, including retail transactions and/or online purchases initiated by Member. If at any time the PRACTICE or any other party listed above is unable to successfully bill the Payment Account for any fee or other obligation mentioned above or in this Agreement, Member further agrees that the PRACTICE or other party listed above may re-submit the fee to the Payment Account for any fee or obligation or any portion thereof. Member agrees that transfer of partial payments of an overdue balance are authorized by Member under this Agreement. Member agrees that the PRACTICE or other parties listed above may also use the stored Payment Account Information to process payments owed in relation to all subsequent agreements entered into between Member and the PRACTICE. If Member’s Membership automatically renews at the end of the Initial Term or Term, the stored Account Payment Information will be used to process payments owed in relation to such terms. This authorization to store and use the Payment Account will not expire unless it is expressly revoked by Member. Member understands that the amounts debited from the Payment Account may vary each month based on additional amounts owed to the PRACTICE in accordance with the terms of this Agreement. Member confirms that it is authorized under the terms of the applicable agreement with its financial institution to use the account/card designated by Member for the purchase of goods and services from PRACTICE and agrees to comply with Member’s financial institution’s requirements at all times while this authorization is in effect. The general cancellation and refund policies set out in this Agreement will apply to this authorization. If any of Member’s Payment Account Information changes, Member agrees to immediately notify the PRACTICE or other third party of such change.
e) TCPA Consent, Privacy and Contact. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from the PRACTICE, James H. Rosing, MD, INC. DBA Allure MD Plastic Surgery + Dermatology, the PRACTICE’s agents, representatives, subsidiaries, members, managers, affiliates, or anyone calling on the PRACTICE’s behalf (including any payment/debt collection service), you expressly consent to be contacted by the PRACTICE, its agents, representatives, affiliates, or anyone calling on the PRACTICE’s behalf for any and all purposes (including any marketing purpose) arising out of or relating to this Agreement and/or Payment Account Information provided, at any telephone number, or physical or electronic address Member provides or at which Member may be reached. Member agrees the PRACTICE may contact Member in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered whether by Member or someone else. In the event that an agent or representative calls, he, she, or they may also leave a message on Member’s answering machine, voice mail, or send one via SMS message (including text messages). Member consents to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from the PRACTICE, its agents, representatives, affiliates or anyone calling on the PRACTICE’s behalf at the specific number(s) Member has provided to the PRACTICE, or numbers the PRACTICE can reasonably associate with Member’s account (through skip trace, caller ID capture or other means), with information or questions about this Agreement and Member’s Payment Account Information. Member certifies, warrants, and represents that the telephone numbers that Member has provided to the PRACTICE are Member’s contact numbers. Member represents that Member is permitted to receive calls at each of the telephone numbers Member has provided to the PRACTICE. Member agrees to promptly alert the PRACTICE whenever Member stops using a particular telephone number. Member’s cellular or mobile telephone provider will charge Member according to the type of plan Member carries. Member also agrees that the PRACTICE (or anyone acting on the PRACTICE’s behalf, including debt collection services) may contact Member by e-mail, using any email address Member has provided to the PRACTICE or that Member provides to the PRACTICE in the future. Member agrees and acknowledges that its consent herein is not a condition to the contemplated Membership and that Member may “opt out” at any time. The PRACTICE may listen to and/or record phone calls between Member and the PRACTICE’s representatives without notice to you as permitted by applicable law. For example, listen to and record calls for quality monitoring purposes.
f) Construction of Agreement. Member acknowledges that neither Allure MD Plastic Surgery + Dermatology, Emsculpt Newport Beach, James H. Rosing, M.D., INC. their affiliates, parents, and subsidiaries nor any party acting on behalf of the PRACTICE, made any representations or promises upon which Member relied that are not stated in this Agreement. Member expressly disclaims reliance upon any facts, promises, undertakings or representations made by the PRACTICE, or on behalf of the PRACTICE. This Agreement contains the entire contract between Member and the PRACTICE and replaces any oral or other written contract. No provision of this Agreement will be interpreted in favor of, or against, any party by reason of the extent to which such party or its counsel participating in the drafting of this Agreement. If a court declares any part of this Agreement invalid, it will not invalidate the remaining parts, which continue unaffected. If the PRACTICE does not enforce any right in this Agreement for any reason, the PRACTICE does not waive its right to enforce it at some other time. If legal action is commenced in connection with the enforcement, interpretation, or breach of any provision of this Agreement, the court as part of its judgment shall award reasonable attorneys’ fees and costs to the prevailing party. No changes to this Agreement are permitted unless mutually agreed in a signed instrument executed by both the PRACTICE and Member. Member acknowledges and agrees that this Agreement represents the entire contract by and between the PRACTICE and Member and that this Agreement shall supersede all contracts, oral or otherwise. The PRACTICE may assign this Agreement, and Member’s obligations privileges hereunder, as the PRACTICE determines from time to time in its sole discretion.
MEMBER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO MEMBER’S CANCELLATION RIGHTS AND BILLING POLICIES SET FORTH IN THIS AGREEMENT AS ACKNOLWEDGED BY THE MEMBERSHIP CHECK OUT PROCESS.