PERC - TRY US BEFORE YOU BUY US PROMOTION
TERMS AND CONDITIONS
1. Overview. The PERC – TRY US BEFORE YOU BUY US PROMOTION (the “Promotion”) is sponsored by Essilor of America, Inc. (“Sponsor”). The Promotion is an industry trade promotional program pursuant to which professional eyecare practices, which meet the eligibility criteria set forth in Section 4 below and are properly enrolled in, and accepted into, the Promotion pursuant to the requirements of Section 5 below, may earn price reductions in the form of invoice/shipping document discounts.
2. Terms and Conditions. These PERC - TRY US BEFORE YOU BUY US PROMOTION terms and Conditions ("Terms and Conditions") govern the operation of the Promotion, superseding any and all terms, conditions, rules and practices previously discussed or in effect, if any. In the event of a discrepancy between these Terms and Conditions and any advertising/collateral material, the Terms and Conditions shall apply.
3. Promotion Period. The Promotion shall take effect on April 1, 2020, or your Approval Date (defined below), whichever comes later. (the “Promotion Period”). Each Eligible Practice (as defined in Section 4 below) will be able to participate in the Promotion for a total of sixty (60) days from the date that it is approved to participate by Sponsor (“Approval Date”).. To be clear, Eligible Practice will be eligible to receive the discounts offered under this Promotion for Jobs (defined in Section 8 below) ordered within 60 days of the Approval Date.
4. Eligibility. The Promotion is open only to professional eyecare practices that: (a) are located in one of the fifty states United States or the District of Columbia, (b) are invited by Sponsor to participate in the Promotion, (c) are current members in good standing with PERC, (d) have done five (5) or less Varilux® Jobs (defined in Section 8 below) in the ninety (90) consecutive days preceding its enrollment date, (e) are on the PERC G29054 pricing list, and (f) 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 the Medicare, Medicaid, TRICARE and certain other government funded programs.
5. Enrollment. Enrollment and participation are limited to Eligible Practices, or, in the case of a single Eligible Practice with multiple practice locations, its individual practice locations. In other words, if an Eligible Practice has more than one practice location, each practice location may enroll and participate separately as its own Enrolled Practice, as defined below. Accordingly, the term "Eligible Practice," shall mean either an Eligible Practice as a whole or an individual Eligible Practice location in those situations where a professional eyecare practice has more than one practice location and each location will be enrolled separately.
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/PercPromo, (b) the Eligible Practice must be a current PERC member not participating in any other Essilor sponsored promotions that may provide benefits on the same products as this 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.EssilorPRO.com/PercPromo, by providing 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);
g. Name of Essilor sales consultant that invited Eligible Practice to participate in the Promotion;
h. Unique code provided by the Essilor sales consultant (if applicable);
i. PERC Member ID; and
j. 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.
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.
6. Participation Requirements. By enrolling in the Promotion, the Enrolled Practice and the Practice Principal warrant and represent that:
a. None of the Enrolled Practice, the Practice Principal, and any of the Enrolled Practice employees is excluded, debarred or suspended from participation in any federal health care program; and
b. In order to earn discounts under this Promotion, an Enrolled Practice must currently be and remain in good standing with Sponsor, which means that the Enrolled Practice must be current on all payments due to Sponsor in accordance with the Sponsor’s established payment terms. To be clear, Sponsor may withhold or offset any and all rebates, statement credits or other Benefits under this Program until an Enrolled Practice is in good standing with Sponsor.
7. Lens Offer. Under the Promotion, Enrolled Practice is eligible to receive Varilux® X Series™, Varilux® Physio® W3+, Varilux Comfort® W2+, and Eyezen™+ lens designs in poly or plastic only at no cost on any Job (as defined in Section 8 below) for sixty (60) days following the Enrolled Practice’s Approval Date (“Lens Offer”). Each Enrolled Practice is limited to a maximum of three hundred (300) Jobs under the Lens Offer. Enrolled Practice must remain a PERC member in good standing in order to receive the Lens Offer. Enrolled Practice will be solely responsible for the cost of anti-reflective coatings, other lens designs (besides poly or plastic), polarization, shipping and handling, or any other additions to a Job.
In addition, if the Enrolled Practice becomes a member of Essilor Experts™ (separate written contract required) between its enrollment date and the sixty (60) days of its applicable Lens Offer, then it will receive an additional, consecutive sixty (60) days of the Lens Offer (i.e., an additional three hundred (300) Jobs for a total of six hundred (600) Jobs under the Lens Offer). Enrolled Practice must remain a PERC member and Essilor Experts member in order to receive this special offer under the Lens Offer.
Please note that no substitutions or replacements are allowed. This Promotion may not be combined with any other discount, rebate or promotion sponsored by Essilor.
8. Job. A “Job” is defined for purposes of this Promotion as the sale of a single lens (if prescribed by Enrolled Practice for the patient’s needs) or pair of lenses to a patient under one prescription that is fulfilled by the Enrolled Practice ONLY through an Eligible Lab. “Eligible Labs” include Essilor Laboratories of America base laboratories and partner labs. Enrolled Practice must select the Eligible Lab(s) it will use for purposes of this Promotion during the enrollment process. Jobs are private pay purchases only.
9. 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 Promotion, including the construction and meaning of the Terms and Conditions, are final in all respects.
10. 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 provided under this Promotion.
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 Promotion or any other incentive program or promotion sponsored by Sponsor and/or Essilor Laboratories of America, Inc. ("Essilor Labs").
11. Discounts. The discounts, as made available under the Terms and Conditions of this Promotion, will be reflected in Customer's monthly statement and/or invoices/shipping documents that accompany the order. By referencing the monthly statement and/or order invoices/shipping documents, Customer will have the necessary information to determine its net effective prices for purposes of any price disclosure and reporting obligations that it may have as set forth in Section 12 below. Please note that Essilor reserves the right to provide the information regarding the discounts in a separate report (rather than in the monthly statement and invoice/shipping document that accompanies each fulfilled order) at some point in the future.
12. 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*** for all products it purchases and receives from Sponsor under this Promotion or any other incentive program or promotion sponsored by Sponsor or Essilor Laboratories of America, Inc. To that end, Enrolled Practice covenants and agrees that it will, if requested, (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 or receives from Sponsor under this Promotion or any other incentive program or promotion sponsored by Sponsor or Essilor Laboratories of America, Inc., 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).
13. Indemnity. By entering the Promotion and/or accepting any of the discounts, each Enrolled Practice agrees to indemnify, release and hold harmless the Sponsor, Essilor Laboratories of America, Inc., and PERC, and their respective promotional, advertisement, marketing and fulfillment agencies, and each of their respective parent companies, subsidiaries, affiliates, 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 Promotion, including, without limitation for or from (a) the acceptance, possession, use or misuse of any Credit, and (b) publicity, rights of privacy or defamation.
14. 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 Promotion; (d) other errors of any kind, whether human, mechanical, electronic, network, typographical, printing or otherwise, relating to or arising under the Promotion or the earning or receipt of discounts; (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 Promotion; or (f) injury or damage to any computer or network related to or resulting from enrollment or participation in the Promotion.
15. Reservation of Rights. Sponsor reserves the right:
a. To terminate the participation of any Enrolled Practice in the Promotion.
b. To correct or amend the Terms and Conditions retroactively in the event of an error in the drafting of these Terms and Conditions. (Sponsor reserves the right to correct such error(s) and to have such correction apply retroactively to the start of the Promotion Period.)
c. To cancel the entire or part of the Promotion, or to modify the Promotion for any reason.
Such actions may be taken by Sponsor in its sole discretion and for any reason. Notice of any of these actions will be posted by Sponsor via email.
16. Termination of Enrolled Practice. If an Enrolled Practice is terminated from the Promotion, it will no longer be eligible to earn discounts under the Promotion, but any discounts earned prior to termination will be honored. The exclusion, debarment or suspension of an Enrolled Practice from participation in any federal health care program is grounds for immediate termination from the Promotion.
17. 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 Promotion 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 Promotion but in no event 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.
18. 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 Promotion.
20. CAUTION. ANY ATTEMPT BY ANY PERSON OR ENTITY TO DISRUPT OR DAMAGE THE LEGITIMATE OPERATION OF THE PROMOTION WILL BE PURSUED TO THE FULLEST EXTENT OF THE LAW.