ECP TERMS AND CONDITIONS
1. Overview. The 2017-2018 ULTIMATE OFFER PROGRAM (the “Program”) is sponsored by Essilor of America, Inc. (“Essilor” or “Sponsor”). The Program is an industry trade program pursuant to which professional eyecare practices may earn price reductions in the form of invoice/shipping document discounts.
2. Terms and Conditions. These ULTIMATE OFFER 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. 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 updated by these Terms and Conditions, shall initially take effect on September 12, 2017 or the day following your enrollment, whichever comes later, and expires on March 31, 2018 (“Initial Term”) and subsequently also take effect on July 16, 2018 or the day following your enrollment, whichever comes later, and expires on December 31, 2018 (“Additional Term”, the Initial Term and Additional Term shall be referred to collectively as the “Program Period”). If you previously enrolled during the Initial Term, you do not need to re-enroll during the Additional Term.
4. Eligibility. The Program is open to professional eyecare practices (“Practices”) only, not individuals, that (a) are located in one of the fifty (50) United States or the District of Columbia, (b) are invited by the Sponsor to participate in the Program, and (c) 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.
5. Enrollment. Enrollment and participation are limited to Eligible Practices.
The terms "Eligible Practice" and "Eligible Practice location" are used interchangeably for purposes of the Program and the Terms and Conditions.
To participate in this Program, an owner, director, or officer of the Eligible Practice ("Practice Principal") must enroll the Eligible Practice online. As long as an Eligible Practice completes its enrollment before or during the Program Period, as that term is defined in Section 3 above, and affirmatively agrees to accept these Terms and Conditions as indicated on the applicable website, it will be eligible to receive the invoice discounts offered under this Program starting from completion of the enrollment process. Upon completion of the enrollment process, 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 Program.
6. Good Standing. In order to earn invoice discounts under this Program, an Enrolled Practice must remain in good standing with Sponsor and/or participating IDD labs (“IDD”), as applicable, which means, among other things, that (a) the Enrolled Practice must be current on all payments due to Sponsor and/or IDD in accordance with the Sponsor’s and/or IDD’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.
7. Ultimate Offer Lenses. Each of the following two combinations of lenses constitutes a pair of “Ultimate Offer Lenses”:
a. “PAL Qualifier Job”: Varilux® X Series™ plus Crizal Sapphire®360°UV plus Transitions® Signature® VII; OR
b. “Single Vision Qualifier Job”: Eyezen+™ plus Crizal Sapphire®360°UV plus Transitions® Signature® VII.
The placement and fulfillment of an order by Eligible Practice to Sponsor labs or IDD for one pair of Ultimate Offer Lenses (either a PAL Qualifier Job or a Single Vision Qualifier Job) is a “Qualifier Job.” Under this Program, safety and/or industrial lenses, frame and lens bundles and/or other packages are not eligible as Ultimate Offer Lenses. Thus, safety and/or industrial lenses, frame and lens bundles and/or other packages cannot serve as a Qualifier Job or Bonus Job (defined below).
8. Bonus Offer. Under the Program, Eligible Practice is eligible to receive a buy one, get one offer (“Bonus Offer”). Specifically, for each Qualifier Job, Eligible Practice will receive a complimentary second pair of lenses that is ordered on the same date and is for, and to be worn by, the same patient as the Qualifier Job (“Bonus Job”). The Bonus Job must be equal to, or of lesser value than, the Qualifier Job (including applicable lab fees). A Bonus Job does not include the cost of frames. There are no limits to the total number of Bonus Jobs that an Eligible Practice may be eligible to receive, provided that the required criteria is met. This Bonus Offer may not be combined with the Pair 50 promotion sponsored by Essilor.
A Bonus Job must consist of one or more of the following lenses depending on whether the Qualifier Job is a PAL Qualifier Job or Single Vision Qualifier Job. No other lenses or coatings may be included. Not all combinations are possible for one pair of lenses (e.g., cannot have Transitions® with Xperio UV™ or Varilux® with Eyezen+™/single vision):
a. If the Qualifier Job is a PAL Qualifier Job, the Bonus Job must be one or a combination of the following Essilor products only: Any Varilux, Crizal, Transitions, Eyezen+, Xperio UV, or single vision design lenses (single vision design must have at least one of the following: Crizal, Transitions or Xperio UV)
b. If the Qualifier Job is a Single Vision Qualifier Job, the Bonus Job must be one or a combination of the following Essilor products only: Any Eyezen+, Crizal, Transitions, Xperio UV, or single vision design lenses (single vision design must have at least one of the following: Crizal, Transitions or Xperio UV)
Requests for Bonus Jobs that do not meet the above-referenced criteria will not be processed by the lab for this Bonus Offer.
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. “Eligible Labs” include Essilor Laboratories of America base laboratories, partner laboratories, and IDD. For purposes of this Program, a “Qualifier Job” or a “Bonus Job” shall each constitute a “Job.” Jobs ordered using a managed vision care plan will serve solely as Qualifier Jobs and will not be discounted.
10. Consumer Discount. Eligible Practice hereby acknowledges and agrees to pass on the Bonus Offer to its patients. That is, Eligible Practice will not charge a patient for any costs associated with a Bonus Jobs. The only out of pocket cost for a patient on a Bonus Job would be the cost of frames for the Bonus Job. There is no limit to total number of Bonus Jobs available to patients. That is, for every Qualifer Job a patient purchases, he/she is eligible for a Bonus Job.
11. ECP Locator. Provided that Eligible Practice is an Enrolled Practice and in compliance with these Terms and Conditions during the Program Period, Eligible Practice will be included on Sponsor’s ECP Locator indicating that Eligible Practice is a “participating eye care practice” in the Program.
12. Invoice/Shipping Document Discounts. Under the Program, if an Enrolled Practice orders a Bonus Job on the same date as ordering a Qualifying Job for the same patient from the same lab, then Sponsor or IDD, as applicable, will indicate on the invoice/shipping documents that the Bonus Job is provided to the Enrolled Practice at “no cost/charge”. For a discount to be applied, an Enrolled Practice must enter “Ultimate Offer” in the special comments section for both the Qualifying Job and Bonus Job orders.
13. 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.
14. Compliance with Laws. Sponsor, IDD, 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 and IDD covenant and agree that they 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 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.
15. 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 and/or IDD, as applicable, under this Program or any other incentive program or promotion sponsored by Sponsor or IDD. 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 and/or IDD under this Program or any other incentive program or promotion sponsored by Sponsor; 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).
Example. Assume that the Enrolled Practice orders a Qualifier Job for $500 and a Bonus Job worth $400. One potential approach for an Enrolled Practice to allocate the discounts provided under the Program is as follows: add the cost of the non-discounted Qualifier Job and the non-discounted Bonus Job – in other words, the usual price to purchase both products ($500 + $400= $900). Then, divide the Qualifier Job by this total (500/900 = 0.556) and the Bonus Job by this total (400/900 = 0.444). Then, Enrolled Practice needs to determine how much of the discount applies to the Qualifier Job and how much of the discount applies to the Bonus Job. For the Qualifier Job, multiply 0.556 X 400 (the non-discounted price of the Bonus Pair) = 222.40. For the Bonus Job, multiply 0.444 X 400 (the non-discounted price of the Bonus Pair) = 177.6. Then, upon allocating the $400 discount between the Qualifier Job and the Bonus Job, Enrolled Practice would get the following “net purchase price” for each of the two pairs of lenses: Qualifier Job (500-222.40 = $277.60; Bonus Job (400-177.60 = $222.40).
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.
16. Reservation of Rights.
a. Sponsor and/or IDD reserve(s) the right in its/their 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.
17. 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.
18. Indemnity. By entering the Program, each Enrolled Practice agrees to indemnify, release and hold harmless Sponsor and IDD, and their affiliates and their 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.
19. 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.
20. 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.
21. 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.
23. CAUTION. ANY ATTEMPT BY ANY PERSON OR ENTITY TO DISRUPT OR DAMAGE THE LEGITIMATE OPERATION OF THE PROGRAM WILL BE PURSUED TO THE FULLEST EXTENT OF THE LAW.