These Full Membership Terms and Conditions (these “Terms and Conditions”) shall apply with respect to all healthcare and wellness services (“Services”) provided by or through Vance Thompson Vision Clinic, Prof. LLC, d/b/a Kalon Medical Spa or any of its affiliated medical practices (together, “Kalon”) pursuant to the Membership (defined below) a Member has selected and purchased. It is expressly agreed that these Terms and Conditions shall constitute a legal and binding instrument with the same effect as a document originally signed by such Member and Kalon, and shall be viewed as an addendum to the Membership Terms and Conditions previously executed by such Member (the “Membership Agreement”).
In consideration of a fee (a “Membership Fee”), Kalon provides Services to individual registered participants (“Members”) pursuant to a range of membership programs (each a “Membership”) as described on the Kalon website, www.kalonmedicalspa.com (the “Kalon Website”). Kalon may vary or update the features and pricing of its Memberships from time to time at its sole discretion.
2. Membership Fee
In order to become a Member, an individual will select a specific Membership at checkout and they shall be obligated to pay to Kalon the Membership Fee specified for the selected Membership. The Membership Fee is generally a non-refundable fee, required to be paid in advance; provided, however, that, Kalon may from time to time vary its fee structure or offer promotional or group rates. Kalon does not guaranty that Membership Fee paid for any Membership will be available for any other Membership or any renewal or subsequent Membership.
Each Member acknowledges that no part of the Membership shall be paid in consideration for medical services covered by its insurer, health plan, or by any governmental program, including Medicare. Each Member agrees to bear sole financial responsibility for the Membership Fee. All or a portion of a Member’s Membership Fee may be purchased or reimbursed by a third-party, such as an employer. Notwithstanding such third-party payment or reimbursement, each Member shall be bound by the terms and conditions of these Terms and Conditions.
Nothing contained in these Terms and Conditions, including any compensation paid or payable, is intended or shall be construed: (a) to require, influence, or otherwise induce or solicit either party regarding referrals of business, or recommending the ordering of any items or services, of any kind whatsoever to the other party or any of its affiliates, or to any other person, or otherwise generate business between the parties; or (b) to interfere with a Member’s right to choose their own health care.
3. Services and Additional/Excluded Services
Upon payment of the Membership Fee specified at checkout for the level of Membership an individual has selected, Kalon will make available to such Member the opportunity to access the Services specified as being included at that level of Membership pursuant to the terms of these Terms and Conditions, the Membership Agreement, and the additional practice policies and procedures described on the Kalon Website or notified to the Members by Kalon from time to time.
Services not specified as being included at the level of Membership selected and paid for are not covered by the Membership Fee. If a Member requires healthcare or other services, procedures or products outside of those specified as being included at the level of Membership selected and paid for (“Additional Services”), such Member will be solely responsible for the cost of such healthcare or other services. Kalon may refer a Member to another physician or other healthcare practitioner for Additional Services. Alternatively, Kalon in its sole discretion may provide such Additional Services for an additional fee. A Member’s insurance, if any, may or may not cover the costs of Additional Services. Additional Services may include, without limitation, the following:
- Emergency and specialist medical services.
- Laboratory tests whether or not performed by Kalon.
- Supplements purchased through Kalon or other sources.
- Healthcare services provided other than by Kalon.
- Non-medical services recommended by Kalon.
- Medications, whether prescribed or over-the-counter.
The Membership Fee is generally a non-refundable fee, required to be paid at checkout in advance of inception of Membership and each renewal thereof. However, Kalon may offer periodic payment programs, in which case payments will be billed monthly, quarterly, semi-annually, or annually as specified by Kalon in connection with the payment program selected. If Additional Services are performed by Kalon, Kalon may require payment for such Additional Services in advance of performance or in accordance with the billing policies adopted by Kalon from time to time. Each Member acknowledges and agrees that Kalon does not bill insurance companies. Kalon will not submit a medical claim to insurance on a Member’s behalf and cannot assist a Member with claim resolution.
5. Payments and Credit Card Authorization
To the extent that a Member provides Kalon with their credit card or other payment information for payments with respect to their Membership, Kalon shall be authorized to charge such Member’s credit card or account for any unpaid Membership Fee, Membership Fees due on renewal of Membership, and fees for Additional Services provided by Kalon to such Member. If a Member has elected to pay their Membership Fee pursuant to a periodic payment program offered by Kalon, Kalon shall be authorized to charge the credit card or account that such Member has provided at the due date of each periodic payment without separate authorization in order to do so. Kalon shall not require a separate authorization for payment upon renewal of Membership. A Member shall not initiate any dispute or chargeback to Kalon’s account without Kalon’s prior written consent, and no Member shall cancel the credit card or account that they have provided to Kalon without first providing Kalon the details for a replacement credit card or account. Each Member will be responsible for any fees or costs incurred by Kalon in connection with collection from such Member, including fees associated with recouping payment on chargebacks. Each Member will update Kalon in advance in the event of a change in their credit card or account information, including changes to the name on their card or account, their billing address, and their reference phone number.
6. Refunds and Cancellation
Except as otherwise specified by Kalon at checkout, Membership Fees are non-refundable and Membership is non-cancelable. Once checkout or renewal is complete a Member may not change the Membership level selected without the prior consent of Kalon which may be granted or withheld at Kalon’s discretion and may require payment of an increased Membership Fee. Notwithstanding the foregoing, the Membership Fees paid by monthly subscribers which have not previously been used on Services may be applied to Services after the Membership is cancelled.
Kalon provides Members the opportunity to access certain Services subject to the terms of these Terms and Conditions, the Membership Agreement, and the additional practice policies and procedures described on the Kalon Website or notified to the Members by Kalon from time to time. So long as Kalon has made such Services available in accordance with the terms of these Terms and Conditions and the additional practice policies and procedures described on the Kalon Website or notified to the Members by Kalon from time to time, a Member’s failure to avail themselves of such Services is not grounds for cancellation or refund/credit. Kalon shall have no liability or responsibility for interruptions in the availability of or access to Services outside of Kalon’s control, and such interruptions shall not be grounds for cancellation or refund/credit.
7. Automatic Renewal and Termination
Unless otherwise specified by Kalon at checkout, Membership has either a one (1) month or a one (1) year term and the Membership Fee covers such period. Except as otherwise specified by Kalon in writing, the term specified for Membership at checkout will automatically renew for successive periods of the same length at the Membership Fee specified on the Kalon Website for such Member’s level of Membership. Each Member expressly consents to auto-renewal of Membership and related charges; provided, however, that a Member may opt-out of automatic renewal at any time prior to the date that is ten (10) days in advance of the renewal date by notifying Kalon in writing at the notice address specified in these Terms and Conditions or in person at Kalon. Such notice must include a specific request for auto-renewal opt-out.
Kalon may terminate a Member’s Membership, at any time, upon:
- such Member’s breach of these Terms and Conditions or any Kalon policy or procedure described on the Kalon Website or notified to the Members by Kalon from time to time, if such breach is not cured within ten (10) days of written notice; or
- such Member’s non-payment of fees when due or having an outstanding balance of $100 or greater if not paid within thirty (30) days after written request to do so; or
- such Member’s harassment, threatening behavior, or any other action by such Member which in Kalon’s reasonable discretion places Kalon personnel at risk of harm.
8. Electronic Communication
Each Member authorizes Kalon to communicate with them by Electronic Communication regarding such Member’s personal health information (“PHI,” as defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations) via their cell phone and/or e-mail such Member provides to Kalon at checkout or in connection with their account. Electronic Communication includes but is not limited to email, text (SMS, MMS, Instant Messaging), and video conference. Each Member acknowledges and agrees that:
- Electronic Communication may not be a secure medium for sending or receiving PHI;
- Although Kalon will make reasonable efforts to keep Electronic Communication with a Member confidential and secure, Kalon cannot assure or guaranty the confidentiality of Electronic Communication;
- At the discretion of Kalon, Electronic Communication may be made a part of a Member’s permanent medical record;
- Members will not use Electronic Communication for communications regarding urgent medical problems, other time-sensitive issues, or for communication regarding sensitive personal information; and
- Kalon will not be liable to a Member for any loss, damage, cost, injury or expense caused by, or resulting from technical failures or any interception of Electronic Communication by a third-party.
10. Not Insurance
Each Member acknowledges and agrees that Membership and these Terms and Conditions do not constitute an insurance plan or a contract for health insurance, and are not a substitute for health insurance or other health plan coverage. The Services provided by Kalon are intended to be services that are not covered by or reimbursable under any private health insurance policy, private health plan, or government program (including, but not limited to, Medicare/Medicaid) in which a Member participates.
Each Member acknowledges and agrees that Membership establishes a direct contractual relationship for the performance of services between such Member and Kalon, as the service provider, governed by these Terms and Conditions. A Member’s Membership is not subject to the guidelines, restrictions, or policies established by health insurance companies, health maintenance organizations, hospital service organizations, or Medicare/Medicaid. Each Member further acknowledges and agrees that Kalon will not fulfill an insurance company’s or HMO’s requirement for an in-network primary care physician.
11. No Emergency or Specialist Service
Kalon does not provide hospital, urgent/emergency or specialist services, and a Member’s Membership will not cover or provide reimbursement for hospital, urgent/emergency or specialist services. Kalon’s practitioners are available only during the business hours specified by Kalon pursuant to the scheduling and contact policies and procedures described on the Kalon Website or notified to the Members by Kalon from time to time. Kalon does not provide for urgent, same-day or emergency appointments. Kalon staff are not on-call 24-hours per day and generally are not available on nights, weekends or holidays. In the event of an emergency or circumstances requiring urgent care, you should immediately call 99, the nearest emergency room or urgent care center, and follow the directions of emergency personnel.
12. Intellectual Property
Kalon’s copyrighted and original materials will be provided to the Members for individual use only and a single-user license. No Member is authorized to use any of Kalon’s intellectual property for their business purposes. No Member is authorized to share, copy, distribute, or otherwise disseminate any materials received from Kalon electronically or otherwise without the prior written consent of the Kalon. All intellectual property, including Kalon’s copyrighted courses, medical and marketing materials, shall remain the sole property of the Kalon. No license to sell or distribute Kalon’s materials is granted or implied.
13. Limitations on Services
Each Member acknowledges and agrees that:
- they are solely responsible for the use of their Membership and the results attained from such use. Kalon makes no representations or guarantees as to results or outcomes (including, for example, cure of a particular disease or resolution of any condition);
- they will only be able to receive the Services or Additional Services as prescribed by the providers at Kalon, that all medically based procedures may have an additional intake and consent form provided by Kalon, and that no Services or Additional Services will be provided if a provider advises against such Services or Additional Services. Kalon makes no representation or guarantees that a Member will be able to receive their desired number and type of Services they request, and no refund will be given in the event such Services are denied; and
- their participation in any program, Services, or Additional Services is contingent upon such Member following advice as is reasonably instructed by the providers at Kalon. In the event a Member fails to follow the reasonable instructions of the providers at Kalon, alter the treatment schedule as originally designed by the providers, or do not attend scheduled Services, this will alter the outcome of the Services.
14. Disclaimer of Warranties; Limitation of Liability
Except as expressly stated in these Terms and Conditions or required by applicable law, Kalon hereby disclaims any and all warranties, both express and implied, including any warranty of non-infringement, fitness for a particular purpose or merchantability. Kalon’s total liability to a Member, their heirs, successors and assigns arising with respect to these Terms and Conditions, a Member’s Membership and any Services performed by Kalon (including Additional Services) shall be limited to the aggregate amount of fees paid to Kalon by such Member for their Membership. In no event shall either party have any liability for indirect, incidental, special, punitive, cover, or consequential damages, however caused and on any theory of liability, arising out of these terms and conditions and the membership agreement, including but not limited to loss of anticipated opportunity or profits, even if advised of the possibility of such damages.
15. No Assignment
A Member’s Membership is personal to such Member and non-transferrable. A Member’s Membership may not be shared, assigned, or transferred to anyone else even if such Member is not using it. A Member’s rights and obligations under these Terms and Conditions may not be transferred or assigned without the prior written consent of Kalon. Kalon shall have the right to assign the benefits or delegate the obligations contained herein to an affiliated or successor entity without first obtaining such consent. Subject to the foregoing, the benefits and obligations herein shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
16. Minor Members
If a person is purchasing a Membership as a parent or guardian of a minor, such minor will be treated as a Member hereunder, and such parent or guardian will be responsible for such minor-Member’s adherence to these Terms and Conditions. Each parent or guardian agrees to hold harmless and indemnify Kalon for, from, and against any claims of such minor. In the case of minor Members, Kalon requires that at least one parent or guardian must be a current Member. Kalon shall not serve as and should not be considered a replacement for a primary care physician with respect to any minor. Kalon’s services with respect to a minor are solely consultative and advisory. Any Member under the age of eighteen (18) must have a separate primary care pediatrician of record who is responsible for urgent care, vaccinations, and all routine pediatric health care services.
17. Independent Contractor
The purchase of a Membership establishes a fee for service relationship pursuant to which Kalon is acting as an independent contractor providing Services in accordance with these Terms and Conditions. A person’s status as a Member does not mean that such Member is an investor or has an ownership interest in Kalon.
18. Notices; Communications
Any communication required or permitted to be sent under these Terms and Conditions shall be in writing and sent via U.S. mail or email. Notices to a Member may be sent to the address (mailing or email) such Member provides to Kalon at checkout or subsequently in connection with their account. Notices to Kalon may be sent to:
Kalon Medical Spa
3101 W. 57th Street
Sioux Falls, SD 57108
A Member shall promptly notify Kalon of any change of address.
In the event that any provision of these Terms and Conditions, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of these Terms and Conditions shall continue in full force and effect and the application of such provision to other persons or circumstances shall be interpreted so as reasonably to effect the intent of the parties. This Section 19 shall survive termination or expiration of these Terms and Conditions.
20. Entire Agreement; Amendment
These Terms and Conditions constitute the entire understanding and agreement between the parties with respect to its subject matter and supersede all prior agreements or understandings, whether written or oral, with respect to the same subject matter. No amendment of these Terms and Conditions shall be binding on a party unless made in writing and signed by all parties. Notwithstanding the foregoing, Kalon may unilaterally amend these Terms and Conditions to the extent required by law or regulation by sending a Member advance written notice of any such change.
21. Force Majeure
Neither party will be liable to the other for any cause beyond its reasonable control, and the party’s performance of its obligations hereunder, other than payment obligations, will be excused if such party’s performance is prevented by any cause or causes beyond its reasonable control without the fault or negligence of such party. In no event shall financial difficulty or inability constitute force majeure.
22. Controlling Agreement
In the event of any conflict between the provisions contained in these Terms and Conditions, the Membership Agreement, the Kalon Website and any marketing or descriptive materials used by Kalon, Kalon’s representatives, or employees, the provisions in these Terms and Conditions shall be controlling.
23. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with laws of the State of South Dakota, without regard to South Dakota’s conflicts of laws provisions.
All disputes between the parties arising out of or related to these Terms and Conditions, the Membership Agreement, or a Member’s Membership shall be submitted to binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The Arbitration shall be held in the State of South Dakota. The arbitrator(s) shall apply the substantive law of the State of South Dakota, or federal substantive law where state law is preempted. Subject to the limitations of liability contained herein, the arbitrator(s) shall have the power to grant all legal and equitable remedies and award compensatory damages as provided pursuant to the foregoing applicable State or federal law. The arbitrator(s) shall prepare in writing and provide to the parties an award including factual findings and the legal reasons on which the award is based. The prevailing party in any arbitration hereunder shall be awarded reasonable attorneys’ fees, expert and non-expert witness costs and any other expenses incurred directly or indirectly with said Arbitration, including without limitation the fees and expenses of the arbitrator(s). Any award rendered pursuant to such arbitration shall be final and binding upon the parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over parties. Except as specified herein, each party shall bear its own costs and attorneys’ fees in connection with any such arbitration. Each party understands that by signing the membership agreement and acknowledging and agreeing to these terms and conditions, the party agrees to submit any claims arising out of, relating to, or in connection with these terms and conditions or the membership agreement, or the interpretation, validity, construction, performance, breach, or termination thereof to arbitration, and that the dispute resolution provisions set forth in this Section 24 constitute, to the greatest extent permissible by law, a waiver of the party’s right to to a jury trial.
The intellectual property, disclaimer of warranties, limitation of liability, non-disparagement, proprietary rights, any provisions relating to the payment of sums owed set forth in these Terms and Conditions, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination or lapse these Terms and Conditions.