ESSILOR PERC PASS PROGRAM
TERMS AND CONDITIONS
1. Overview. The ESSILOR PERC® PASS PROGRAM (the “Program”) is sponsored by Essilor of America, Inc. (“Essilor” or “Sponsor”) on behalf of its participating laboratories. The Program offers participating eyecare practices the ability to earn price reductions in connection with the purchase of specific product packages containing certain Essilor Ultimate Lens Package® lenses. The more lenses purchased through Essilor laboratories, the more a practice can save.
2. Terms and Conditions. These ESSILOR PERC® PASS PROGRAM TERMS AND CONDITIONS ("Terms and Conditions") shall govern the operation of the Program, superseding any and all terms, conditions, rules and practices previously in effect, if any. In the event of a discrepancy between these Terms and Conditions and any advertising or other collateral material, the Terms and Conditions shall govern.
3. Program Period. The Program, as set forth by these Terms and Conditions, shall take effect for the 2nd Quarter 2020 on April 1, 2020, and expire June 30, 2020, and for each subsequent calendar quarter on the first day of the quarter and end on the last day of the quarter (the “Program Period”). If an Eligible Practice enrolls in the Program during the first or second month of any calendar quarter, the Rebate Tiers shall be prorated for any partial quarter by the number of subsequent months remaining in the quarter. In other words, if a Practice enrolls during the first month of the quarter, its Purchase Tiers will be prorated for two months; if a Practice enrolls in the second month of the quarter, its Purchase Tiers will be prorated for one month; and finally, if a Practice enrolls in the Program during the last month of a quarter, its Purchase Tier will not be prorated and will begin on the first day of the next calendar quarter. For example, in the 2nd quarter 2020, all qualified purchases made by any Enrolled Practice that enrolls in April 2020 will be prorated by 1/3, which means the Rebate Tier 50-99 will be 33-66 jobs. If an Enrolled Practice enrolls in May 2020, all qualified purchases made by that Practice will be prorated by 2/3, which means the Rebate Tier 50-99 will be 17-33 jobs.
4. Program Cost. The cost to participate in the Program is $149 per quarter per location, up to three (3) locations (“Program Cost”). For purposes of clarity, an Enrolled Practice may have more than three locations enrolled, but the Program Cost is capped at three locations. The Program Cost is currently waived. In the event Sponsor determines, in its sole discretion, to collect the payment of Program Costs, thirty (30) days prior to the end of the Quarter, Sponsor will send an email to the Enrolled Practices requiring the Enrolled Practice to respond in order to opt-in to the Program for the following Quarter. If the Enrolled Practice does not respond, they will not be enrolled in the Program for the next Quarter. Upon opting in for the Quarter, the Program Cost for the Quarter will be billed on Enrolled Practice’s monthly lab statement.
5. Eligibility. The Program is open to professional eyecare practices only, not individuals, that are: (a) located in one of the fifty (50) United States or the District of Columbia, (b) in good standing with Sponsor and PERC, (c) a member of the PERC buying group with a valid PERC account ID throughout the Program Period, and (d) are not excluded, debarred or suspended from participation in any federal health care program (“Eligible Practices”). The term "federal health care program" is defined at 42 C.F.R. §1320a-7b (f) and includes Medicare, Medicaid, TRICARE and certain other government funded programs.
6. Enrollment. Enrollment and participation are limited to Eligible Practices. Eligible Practices with multiple practice locations under the same ownership and direction must register each practice location separately to participate. Thus, for purposes of the Program, the term "Eligible Practice" shall mean an Eligible Practice location in those situations where a professional eyecare practice has more than one practice location. Accordingly, the two terms, "Eligible Practice" and "Eligible Practice location" are used interchangeably herein.
In order to participate in this Promotion, an owner, director, or officer of the Eligible Practice ("Practice Principal") must: (a) enroll the Eligible Practice online at www.EssilorUSA.com/PercPass , (b) the Eligible Practice must be a current PERC member not participating in the Try Us Before You Buy Us Promotion or not currently participating in any other Essilor sponsored promotions that may provide benefits on the same products as this PERC Pass promotion, and (c) remain in good standing with PERC. Only enrollments completed online, as set forth below, will be accepted. To that end, the Practice Principal must fill out an online document at www.EssilorUSA.com/PercPass and provide the following information:
a. Eligible Practice’s name;
b. Eligible Practice’s complete address;
c. Eligible Practice’s email;
d. Eligible Practice’s phone number;
e. Eligible Practice Principal’s name;
f. Eligible Practice Principal’s contact information (email and phone number); and
g. Account number (and participating labs for each account number).
The Practice Principal must also enter his/her initials in a tick box indicating that the Eligible Practice understands, accepts, and agrees to abide by the Terms and Conditions. An Eligible Practice may enroll anytime during the Quarter, but purchases made prior to the 1st of the month following the Enrollment Date will not be applied towards earning the Program Benefits.
After an Eligible Practice submits its enrollment, it will receive confirmation of its acceptance or rejection to participate in the Program from an Essilor sales consultant via email in approximately 5-10 business days. If accepted, the email communication will include the relevant Approval Date for purposes of participating in this Promotion. Upon completion of the enrollment process and acceptance into the Promotion by Sponsor, each Eligible Practice or Eligible Practice location will be called an “Enrolled Practice.”
Enrolled Practices agree to the receipt of mail, faxes, phone calls and/or email at the numbers/emails provided in the enrollment form for all purposes relating to the Promotion.
7. Good Standing. In order to earn favorable pricing under this Program, an Enrolled Practice must remain in good standing with Sponsor, which means, among other things, that (a) the Enrolled Practice must be current on all payments due to Sponsor in accordance with the Sponsor’s payment terms, and (b) the Enrolled Practice and all of its owners and employees must not be ineligible to participate in any federal health care programs. To be clear, Sponsor may withhold any and all rebates owed to Enrolled Practice under this Program until Enrolled Practice is in good standing with Sponsor. Additionally, Sponsor may, in its sole option, choose to reduce the amount of any statement credit otherwise payable to Enrolled Practice by the amount of any obligation of the Enrolled Practice to Sponsor that is overdue according to Sponsor’s standard payment terms and the Enrolled Practice shall be deemed to have consented to such reduction.
8. Program Benefits. During the Program Period, Enrolled Practices will be able to purchase eligible Single Vision or Progressive Packages containing, for Single Vision Packages, Eyezen+, Crizal Sapphire® 360° UV or Crizal Prevencia®, and any Transitions® product; and for Progressive Packages, Varilux® X, Crizal Sapphire® 360° UV or Crizal Prevencia®, and any Transitions® product (defined below) from an Eligible Lab (defined in Section 8 below) at the Package Prices set forth below. Package Prices may be effectively reduced by earning rebates depending on the number of Packages purchased during the Program Period. Specifically, Enrolled Practice will be eligible to receive a rebate on all Eligible Single Vision Package Jobs and Eligible Progressive Package Jobs provided the Enrolled Practice purchases at least fifty (50) Jobs, or the prorated amount for Enrolled Practices that enroll mid-quarter, of Eligible Single Vision Packages and/or Eligible Progressive Packages during the Program Period. An Enrolled Practice may combine purchases of the Single Vision Package with purchases of the Progressive Package to achieve each rebate tier. An Enrolled Practice can use purchases paid for by a third party payer to determine the qualifying tier, but only private pay purchases are eligible for rebates set forth below. As an Enrolled Practice achieves different tiers of purchases for the applicable product packages, the amount of the rebate the Enrolled Practice will receive increases as set forth below. The rebate(s) will be paid in the form of a statement credit on Eligible Practice’s laboratory bill the month following the close of the applicable Quarter. The eligible product packages and tiers of rebates are defined below:
Eligible Single Vision Package*: Eyezen+™ plus Crizal Sapphire®360°UV or Crizal Prevencia® plus any Transitions® on polycarbonate lenses (“Single Vision Package”)
Single Vision Tier Pricing*: $168 Package Price (Package Price based on the PERC G29054 price list).
*Not including any applicable taxes
Eligible Progressive Package: Varilux® X Series™ plus Crizal Sapphire®360°UV or Crizal Prevencia® plus any Transitions® on polycarbonate lenses (“Progressive Lens Package”**).
Progressive Tier Pricing**: $317 Package Price (Package Price based on the Varilux X P533 price list).
*Not including any applicable taxes
**For special discounts/rebates involving Varilux® X Series™, the discount/rebate will apply to the lens treatment only (Crizal® and Transitions®)
Rebate Tiers & Amounts:
· 0-49 Jobs –No rebate offered.
· 50-99 Jobs –
· Single Vision Package: Rebate of $20 per Job (i.e., Cost of $168 per Job minus $20 rebate per Job = $148 net effective price per Job);
· Progressive Package Rebate of $20 per Job (i.e., $317 per Job minus $20 rebate per Job = $297 net effective price per Job)
· 100-149 Jobs –
· Single Vision Package: Rebate of $25 per Job (i.e., $168 per Job minus $25 rebate per Job = $143 net effective price per Job);
· Progressive Package: Rebate of $25 per Job (i.e., $317 per Job minus $25 rebate per Job = $292 net effective price per job)
· 150+ Jobs –
· Single Vision Package: Rebate of $30 per Job (i.e., $168 per Job minus $30 rebate per Job = $138 net effective price per Job)
· Progressive Package: Rebate of $30 per Job (i.e., $317 per Job minus $30 rebate per Job = $287 net effective price per Job)
The highest tier achieved will determine the rebate paid on all qualifying Jobs. For example, if an Eligible Practice purchased 60 Eligible Progressive Package Jobs and 20 Eligible Single Vision Jobs during the Program Period, then all 80 of those Jobs would receive a $20 rebate.
No substitutions or replacements are allowed. Prices indicated above are for polycarbonate lenses only. Enrolled Practices will be solely responsible for the additional cost of Trivex or other hi-index materials, shipping and handling, taxes, or any other additions to a Job. If the Enrolled Practice upgrades the lens material, that upgraded order will still qualify as a Job under this Agreement and count towards the rebate tiers provided all other requirements are met.
9. Job. A “Job” is defined for purposes of this Program as the sale of a single lens (if prescribed by Eligible Practice for the patient’s needs) or pair of lenses to a patient under one prescription that is fulfilled by the Eligible Practice ONLY through an Eligible Lab. Jobs paid for in whole or in part by any managed vision care plan may be used to determine the Rebate Tier, but are not eligible for rebates this Program. “Eligible Labs” include Essilor Laboratories of America base laboratories and partner laboratories.
10. Compliance with Terms. Enrolled Practices agree to comply with these Terms and Conditions, and understand and agree that the decisions of Sponsor with respect to all aspects of the Program, including the construction and meaning of the Terms and Conditions, are final in all respects.
11. Compliance with Laws. Sponsor and each Enrolled Practice covenant and agree that they will comply with all applicable laws and regulations, including, but not limited to, the federal health care program anti-kickback statute, 42 U.S.C. §1320a-7b(b) (the "Anti-Kickback Statute") and its state law counterparts.
a. Sponsor covenants and agrees that it will satisfy the requirements imposed on a "seller" (or an "offeror") under the discounts exception, 42 U.S.C. §1320a-7b(b)(3)(A), and discounts safe harbor, 42 C.F.R. §1001.952(h), to the Anti-Kickback Statute with respect to all discounts or rebates provided under this Program.
b. Each Enrolled Practice covenants and agrees that it will satisfy the requirements imposed on a "buyer" under the discounts exception, 42 U.S.C. §1320a-7b(b)(3)(A), and discounts safe harbor, 42 C.F.R. §1001.952(h), to the Anti-Kickback Statute with respect to all price reductions provided the Enrolled Practice under this Program or any other incentive program or promotion sponsored by Sponsor and/or Essilor Laboratories of America, Inc. ("Essilor Labs").
12. Rebate Report. On or before sixty (60) days following the end of the Quarter, Sponsor shall send the following data (“Rebate Report”) to each Enrolled Practice:
a. The type and quantity of Enrolled Practice’s Jobs in the Program Period;
b. The dollar amount of Enrolled Practice’s Purchases of Single Vision Packages and Progressive Packages in the Program Period (i.e., the effective prices of the Jobs its purchased without taking the Rebates into account);
c. The total dollar amount of the Rebates for Single Vision Packages and the total dollar amount of the Rebates for Progressive Packages earned by Enrolled Practice in the Program Period;
d. Other rebates or discounts, if any, provided to Enrolled Practice in connection with the Jobs
Each Enrolled Practice should keep the Rebate Report for ten (10) years following the date of the Rebate Report.
13. Price Transparency. Each Enrolled Practice understands and acknowledges that it may be required―pursuant to applicable federal or state laws or regulations, including, but not limited to, the Anti-Kickback Statute, or pursuant to its contractual arrangements with third party payers―to fully and accurately report and disclose the net purchase price (as that term is defined below) for all products it purchases from Sponsor under this Program or any other incentive program or promotion sponsored by Sponsor and/or Essilor Labs. Toward that end, Enrolled Practice covenants and agrees that it will:
a. fully and accurately report and disclose―to the relevant government authority, health care plan or program, or third party payer―the net purchase price for all products it purchases and/or receives from Sponsor under this Program or any other incentive program or promotion sponsored by Sponsor or Essilor Labs; and
b. provide such further information as may be requested by the relevant government authority, health care plan or program, or third party payer.
For purposes of these Terms and Conditions, the term "net purchase price" means the net discounted price that the Enrolled Practice paid for each Job at issue (i.e., the purchase price minus all price reductions, including discounts, rebates and free or discounted items or services such as, by way of example, free product sample voucher redemptions).
Enrolled Practice may wish to consult its legal advisers regarding how and when to calculate, report and disclose its net purchase prices under the Program, including whether and how invoice discounts should be allocated among the products that Enrolled Practice purchases under the Program.
14. Reservation of Rights.
a. Sponsor reserve(s) the right in its sole discretion to terminate the participation of any Enrolled Practice in the Program.
b. Sponsor reserves the right in its sole discretion to correct or amend the Terms and Conditions retroactively to the start of the Program Period.
c. Sponsor reserves the right in its sole discretion to modify or cancel the entire or part of the Program for any reason.
Notice of any of these actions will be posted by Sponsor on the Program’s website or via email.
15. Termination of Enrolled Practice. If an Enrolled Practice is terminated from the Program, it will no longer be eligible to earn discounts under the Program, but any discounts earned prior to termination will be honored. The exclusion, debarment or suspension of an Enrolled Practice or any of its owners from participation in any federal health care program is grounds for immediate termination from the Program.
16. Indemnity. By entering the Program, each Enrolled Practice agrees to indemnify, release and hold harmless Sponsor, and its affiliates and its respective officers, directors, shareholders, employees, agents and representatives (collectively “Released Parties”) from any and all liability, damages, rights, claims, actions, losses, costs, expenses, including attorney's fees and expenses (collectively “Losses”) of any kind relating to or arising under the Program, including, without limitation for or from (a) the payment or failure to pay sales or use taxes and (b) and publicity, rights of privacy or defamation.
17. Limitation of Responsibility. The Released Parties are not responsible for: (a) lost, late, incomplete, inaccurate, undelivered, garbled, or lost enrollments or Job orders; (b) interrupted or unavailable network, server, Internet Service Provider (ISP), website or other connections; (c) other technical failures or difficulties experienced with respect to the Program; (d) other errors of any kind, whether human, mechanical, electronic, network, typographical, printing or otherwise, relating to or arising under the Program; (e) any incorrect or inaccurate information, whether caused by site users, tampering, hacking, or by any equipment or programming associated with or utilized in the Program; (f) injury or damage to any computer or network related to or resulting from enrollment or participation in the Program; (g) any personal injury, property damage, or any other loss, injury, or damage suffered by any person relating in any way to the items or services purchased, in whole or in part; and (h) in states in which Sponsor does not have the legal responsibility to charge and collect sales or use tax, the Enrolled Practice's failure to pay, in whole or in part, such sales or use tax to the applicable State taxing authority, and any penalty or interest imposed on the Enrolled Practice as a result of such failure.
18. Dispute Resolution. Except where prohibited by law, Eligible Practices and Enrolled Practices agree that any and all disputes, claims, and causes of action brought or otherwise asserted by them or on their behalf against any of the Released Parties that relate to or arise under this Program shall be (a) resolved individually, without resort to any form of class action, and exclusively by an action in state or federal court located in the State of Texas; and (b) limited to actual out-of-pocket costs incurred, including costs associated with participating in this Program but in no event include attorneys' fees and costs. All disputes, including those that involve the construction, validity, interpretation and enforceability of these Terms and Conditions, shall be governed by, and construed in accordance with, the laws of the State of Texas, without regard to conflicts of law principles.
19. Waiver of Certain Damages. Eligible Practices and Enrolled Practices expressly waive any and all rights that they may have for punitive, incidental, and consequential damages or any damages other than actual out-of-pocket costs and expenses against any of the Released Parties in any dispute that relates to or arises under this Program.