The following constitutes the Terms and Conditions of Enrollment governing the agreement (the “Agreement”) between the licensed Florida physician or physician group accepting its terms (hereinafter “Provider”) and CosmeticPerks, LLC (“CosmeticPerks”), a limited liability company duly formed and validly existing pursuant to the laws of Delaware, with a principal place of business at 335 NE 61 Street Miami, Florida 33137. CosmeticPerks and the Provider may be referred to individually as a “Party” or collectively as the “Parties.”
WHEREAS, CosmeticPerks is in the business of marketing licensed medical spas, dermatologists, plastic surgeons and physician groups providing such services primarily through its web based membership platform to individuals seeking cosmetic treatments at a discounted rate; and WHEREAS, the Provider is a licensed Florida physician or a group of affiliated providers each of whom is qualified by virtue of his/her education, training, experience and licensure to provide the cosmetic treatments and services which CosmeticPerks intends to market to its members; and WHEREAS, the Provider desires to establish a presence on CosmeticPerks marketing network; and WHEREAS, the Parties are entering into this Agreement to provide a full statement of their respective understandings in connection with the engagement of Provider as a participating physician or group in CosmeticPerks’ network; and NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties hereto agree as follows:
1. Incorporation. The recitals set forth above and all exhibits and schedules specifically referred to are incorporated into these Articles with the same force and effect as though fully set forth herein; and shall all together constitute this Agreement.
2. CosmeticPerks Services. 2.1. CosmeticPerks works exclusively with licensed physicians, physician groups and licensed medical spas to connect them with individuals (“Members”) seeking discounted cosmetic treatments and Services (as defined herein) by introducing providers of Services and Members through its web-based software platform (“Directory”). 2.2. CosmeticPerks has developed relationships with a network of providers whereby the providers agree to extend free initial consultations and discounted rates to its Members of not less than twenty percent (20%) off the Provider’s published pricing for Services. Additionally, Provider may offer a number of additional benefits or other discounts for services not covered by this Agreement. 2.3. CosmeticPerks will grant Provider access to its “Provider Portal” where the Provider will be able to develop his/her own individual or group profile page to be included in the Directory provider list. The Provider profile page will set forth the minimum discounted percentage rate being offered to Members. 2.4. CosmeticPerks will identify the Provider and the Provider’s practice or group on the Directory; thereby making the Provider discoverable to the Members who search the Directory. Members may search and select a provider by the desired service, geographic location, price, and/or the provider’s name. Member will make the sole determination of what Provider to access and what Services Member is interested in seeking from Provider. CosmeticPerks does not make Member referrals to any Provider but may publish advertising or Provider promotions for fair market value compensation.
3. Nature of the Relationship. CosmeticPerks shall have no control over the exercise of the Provider’s independent medical judgement. The Parties intend for their relationship, as created by this Agreement, to be that of two independent contractors and agree that neither shall represent or take any action, either directly or indirectly, that indicates that either Party is an employee or actual or apparent agent of the other. CosmeticPerks will not provide any healthcare, insurance, employee benefits or other benefits typically associated with an employer/employee relationship. Neither party may bind the other with any act or representation and each Party will be solely and entirely responsible for its acts, paying any taxes and insurances required by law, and for any and all damages and injuries of any kind which may be occasioned on account of either Party’s performance under this Agreement.
4. Provider Obligations, Representations, Warranties and Covenants. 4.1. The Provider, after having conducted a diligent inquiry, hereby represents and warrants the following to be true: 4.1.1. The Provider, all members of Provider group and any entity where he/she or they perform Services, holds all licenses, permits, certifications and other permissions in good standing that are required by law and regulation for the operation of Provider and his/her business or group and the Services provided. If any event, criminal, civil, administrative, or otherwise, affects the good standing status of licensure, permits, certifications or any other permissions, Provider shall immediately, within five calendar (5) days, notify CosmeticPerks of such occurrence. 4.1.2. Provider shall offer Services to Members at a discount. Services offered to Members shall include, at a minimum, at least one selected service from each of the following five (5) categories: 1) Injectables/Fillers; 2) Laser/Light Based Treatments; 3) Laser/Fractional Resurfacing; 4) Skin Tightening & Contouring; and, 5) Skin Rejuvenation (“Services”). Provider shall select at least one Service within each category to offer to Members and Provider shall offer to Members a discount for the selected Services of not less than twenty percent (20%) off of Provider’s published “schedule of services and rates” for each Service. Provider is solely responsible for the accuracy of the information it provides to CosmeticPerks and for the information published in the Provider Portal. CosmeticPerks is not responsible for the content published by Providers. Provider shall honor all discounts on published rates to Members as they are represented on the Provider Portal regardless of any notice provided to the contrary to CosmeticPerks. Provider shall hold Members harmless from any and all changes to Provider rates and discounts that are not promptly and accurately published to the Provider Portal prior to any agreement to provide services to a Member. 4.1.3. Provider shall offer the first consultation at no cost for all new members. 4.1.4. Provider shall offer Services to Members at a discount. Services offered to Members shall include, services all of the following five (5) categories that the provider has available in his practice: 1) Injectables/Fillers; 2) Laser/Light Based Treatments; 3) Laser/Fractional Resurfacing; 4) Skin Tightening & Contouring; and, 5) Skin Rejuvenation (“Services”). Provider shall select all Service within each category that they have available through their practice to offer to Members and Provider shall offer to Members a discount for the selected Services of not less than twenty percent (20%) off of Provider’s published “schedule of services and rates” for each Service. Provider is free to publish and offer any discount in excess of 20% to members at their discretion. Provider shall disclose its published rate at their office and shall identify the discount he/she or they are offering Members on each Service on their profile page at cosmeticplans.com . Provider is solely responsible for the accuracy of the information it provides to CosmeticPerks and for the information published in the Provider Profile page. CosmeticPerks is not responsible for the content published by Providers. Provider shall honor all discounts on published rates to Members as they are represented on the Provider Profile Page regardless of any notice provided to the contrary to CosmeticPerks. Provider shall hold Members harmless from any and all changes to Provider rates and discounts that are not promptly and accurately published to the Provider Profile page prior to any agreement to provide services to a Member. 4.1.5. Provider shall confirm Member eligibility prior to providing any Services by verifying on the CosmeticPlans Portal that the member number is active. Provider shall not circumvent this Agreement and independently contact and/or provide Services to any Member introduced to Provider through CosmeticPerks. However, Provider shall be allowed to offer any services and procedures to Members that are not covered by the Agreement, without being in violation of this Agreement. 4.1.6. Provider represents to the CosmeticPerks that it has the power and authority to enter into this Agreement and that it is not a party to any restrictions, agreements or understandings whatsoever which would prevent or make unlawful its/his/her acceptance of the terms set forth in this Agreement or performance hereunder. Provider further represents that acceptance of the terms of this Agreement and the performance of the obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which such party is a party or by which such party is bound.
5. Fees. There is no fee for Provider to join Cosmetic Plan’s Network; rather, in consideration for a listing in CosmeticPerks Network Directory, Provider agrees to discount the Services it provides to Members pursuant to the terms in this Agreement.
6. Term. 6.1. This Agreement shall be effective upon Provider’s acceptance of its terms as provided herein (“Effective Date”). 6.2. The initial term of this Agreement shall be for a period of twelve (12) months (“Term”), and automatically renew for successive twelve (12) months periods unless earlier terminated by either Party as provided for herein.
7. Termination. Notwithstanding the provisions of Section 6, above, this Agreement may be terminated in any of the following ways: 7.1. Either Party may terminate this Agreement with or without cause, or without stating a cause, upon seven (7) calendar days advanced Notice as provided herein. 7.2. This Agreement may be terminated by a mutual written agreement of the Parties. 7.3. Immediately upon the occurrence of a Section 4.1.1 impairment to Provider’s license.
8. Effects of Termination. In the event this Agreement is terminated for any or no reason, all obligations on the part of either Party shall cease on the date of such termination except that: 8.1. Each Party shall return to one another, or destroy, all proprietary software and/or branded marketing material that they had received from the other Party during the Term. 8.2. The covenants contained in Sections 1, 8, 9, 10 and 13 shall survive the termination or expiration of this Agreement for any or no reason.
9. Confidentiality, HIPAA, HITECH. 9.1. For purposes of this Section, “Confidential, Proprietary and Trade Secret Information will be deemed to include (i) any information, in whatever form, relating directly or indirectly to the business of a Party (the “Disclosing Party”); and (ii) any of the terms of this Agreement, including without limitation the Services to be provided by CosmeticPerks, the practices and procedures employed by either Party in the course of operating their respective businesses, and the fees payable hereunder. “Confidential, Proprietary and Trade Secret Information” will not be deemed to include (A) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Receiving Party; or (B) any information that becomes available to a Party (the “Receiving Party”) from a source other than the Disclosing Party, provided that such source is not bound by any contractual or other obligation of confidentiality to the Disclosing Party or any other person with respect to any of such information. 9.2. Each Party acknowledges that it will receive Confidential Information from the other Party in the course of their relationship, and that neither of them will use the Confidential Information for any purpose except as necessary to perform their respective obligations under this Agreement. Each Party further agrees that it will not divulge, directly or indirectly, any Confidential Information in any manner whatsoever, in whole or in part, without the prior written consent of the other Party. Each Party will promptly notify the other Party of any breach of this Section 9 that becomes known to them. 9.3. In the event that a Receiving Party is requested or required to disclose any Confidential Information in connection with any legal or administrative proceeding, the Receiving Party will, to the extent not prohibited by law, give the Disclosing Party prompt written notice of such request or requirement so that the Disclosing Party can seek an appropriate protective order or other remedy and/or waive compliance with the provisions of this Section 9. In the event that such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the relevant provisions of this Section 9, the Receiving Party will furnish only that portion of the Confidential Information that, in the written opinion of CosmeticPerks ’s counsel, is legally required to be disclosed and the Receiving Party will use its best efforts to obtain assurances that confidential treatment will be accorded to such information. 9.4. The Parties shall expend commercially reasonable efforts to preserve the confidentiality of all information regarding prospective patients identified as a result of the CosmeticPerks Services, and to only utilize or disclose that information in ways and for purposes consistent with all applicable laws, including but not limited to the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”), as they are amended and updated from time to time. 9.5. For the Term of this Agreement, and continuing for a period of two (2) years following the termination of this Agreement, unless CosmeticPerks consents in advance in writing, Provider shall not, directly or indirectly through another entity, (i) induce or attempt to induce any employee of CosmeticPerks to leave the employ of CosmeticPerks , or in any way interfere with the relationship between CosmeticPerks and any employee thereof, (ii) hire any person, who was an employee of CosmeticPerks at any time during the Term, (iii) induce or attempt to induce any customer, supplier, subcontractor, licensee, licensor, franchisee or other business relation of CosmeticPerks to cease doing business with CosmeticPerks, or in any way interfere with the relationship between any such customer, supplier, subcontractor, licensee or business relation and CosmeticPerks (including, without limitation, making any negative statements or communications about CosmeticPerks ), or (iv) service (except in the capacity as an employee of CosmeticPerks) any customer, licensee, agent or franchisee of CosmeticPerks who was a customer, licensee, agent or franchisee of CosmeticPerks at any time during the Term. At all times after the date hereof, Contractor shall not disparage CosmeticPerks or any of its shareholders, directors, officers, employees, consultants or agents.
10. Consent to Publication. By participating in CosmeticPerks Network Provider acknowledges and agrees to release and grant to CosmeticPerks, LLC, including its subsidiary and affiliated entities, the right to use Provider’ name, biographical information and any other indicia of identity (collectively, "Identifications"), and to publish, market and exhibit Identifications, without charge, compensation, remuneration, restriction or liability, in any media (including, but not limited to, television, internet, web casting, and video streaming) or in various publications (including, but not limited to, Network directories and marketing materials). It is agreed that this consent to publication is limited to the marketing and development of the CosmeticPerks Network and at no time shall CosmeticPerks release or authorize the use of Identifications to a third party for the purpose of endorsement of any unrelated commercial property, product or service without Provider’s written permission.
11. Indemnification. Provider agrees to indemnify, hold harmless and defend CosmeticPerks from and against any and all third-party claims, suits and actions and all related damages, settlements, losses, liabilities, costs and expenses, including without limitation, reasonable attorneys’ fees (collectively “Liabilities”) which CosmeticPerks may sustain or incur, to the extent such Liabilities result from a breach of this Agreement, any act or omission of Provider or the alleged negligence or willful misconduct of Provider, or any individual affiliated with Provider.
12. Notices. Provider consents that all Notices provided hereunder shall be made electronically via email as provided on the CosmeticPerks website and shall be deemed to have been given at the time when such communication is sent provided sender retains a copy with proof of email receipt.
13. Assignment. The Provider may not assign its rights or obligations under this Agreement without the expressed written consent of CosmeticPerks, which may be withheld in CosmeticPerks’ sole discretion. A transfer of more than forty-nine (49%) percent of the economic or voting interests of the Provider shall constitute an assignment under this section.
14. Construction. 14.1. The Parties intend for this Agreement to comply with all applicable state and Federal law and regulation prohibiting or limiting: (i) the payment or receipt of rebates, discounts, inducements and/or kickbacks with the intent of inducing the referral of patients for health care services; (ii) fee-splitting between licensed and unlicensed entities; and (iii) any other applicable law relating to fraud, use or false claims as those laws and regulations may be amended and updated from time to time. The Parties shall therefore construe this Agreement in a manner that is consistent with complying with the aforementioned laws and regulations, and shall conduct themselves likewise. 14.2. Each Party has had the opportunity to consult with its respective counsel and suggest changes to this Agreement before executing it. The Parties therefore agree that the rule of construction that ambiguities in the agreement shall be construed against the draftsman shall not apply to this Agreement.
15. Entire Agreement. This Agreement contains the complete, full and exclusive understanding of the Provider and CosmeticPerks with respect to the CosmeticPerks Services, and supersedes any and all other oral or written agreements between the Parties in that regard.
16. Electronic Signature. Provider consents to use Electronic Records and Signatures with CosmeticPerks, LLC. Provider shall acknowledge their agreement to the Terms and Conditions of this Agreement by clicking the ENROLL NOW button below and in doing so Provider accepts that such online enrollment shall have the same legally binding force and effect as a manual signature to this Agreement.
17. Successors. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns.
18. Amendments. In order to be effective and binding, any amendments, additions or supplements to this Agreement must be in writing and signed by both the Provider and CosmeticPerks.
19. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted, unless to do so would result in either Party not receiving the benefit of its bargain.
20. Governing Law/Venue. This Agreement shall be interpreted pursuant to and enforced under the laws of the State of Florida, without giving effect to statutes and principles affecting choice or conflicts of law. Each party hereby irrevocably agrees that any legal action or proceeding against it arising out of this Agreement or the transactions contemplated hereby shall be brought only in Miami-Dade County, Florida.
21. No Waivers. The waiver of any Party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of any Party to insist upon strict adherence to any term of this Agreement shall not constitute a waiver by such Party to require at some subsequent time strict adherence to such term. Any waiver must be in writing and signed by the person or Party against whom charged.
22. Costs and Attorney’s Fees. The Party that prevails in any dispute arising from this Agreement shall be entitled to recover all costs of such proceeding, including but not limited to reasonable attorney’s fees.
23. Force Majeure. Neither Party shall be deemed to be in default of this Agreement if prevented from performing any obligation hereunder for any reason beyond its control, including but not limited to acts of god, war, riot, fire, flood, casualty, labor shortages or union strikes; however, financial inability shall not be considered a matter that is beyond a Party’s control. In the event a Party cannot, or anticipates not being able to, perform its obligations due to a reason beyond its control, that Party shall give notice to the other Party as soon as possible under the circumstances.
24. Authority to Contract. Each Party represents and warrants that he/she or it, as the case may be, is authorized to enter into this Agreement and to be bound, and to cause their respective group or entity to be bound, by the terms of it. Moreover, each Party represents that he/she/it is not violating another agreement by entering into this Agreement.