TERMS AND CONDITIONS

1. Overview. The WALMAN OPTICAL PEAK IMPACT PROGRAM (the “Program”) is sponsored solely by Walman Optical. (“Sponsor”).  The "Program" is an industry trade program pursuant to which professional eyecare practices may earn price reductions in the form of discounts and rebates.

    

2. Terms and Conditions. These WALMAN OPTICAL PEAK IMPACT 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. This Program is effective from June 1, 2024 onward, and shall continue, in annual increments based on the Eligible Practice’s enrollment in the Program, until modified or canceled by Sponsor. (As set forth in Section 16 below, Sponsor reserves the right to modify or cancel the entire or part of the Program for any reason).  For Eligible Practices that enroll after the first of a month, the Program will begin on the first of the subsequent month.  For example, if an Eligible Practice enrolls in the Program on July 2, 2024, the Program will begin August 1, 2024.  

    

4. Eligibility. The Program is open to professional eyecare practices (“Practices”) only, not individuals that are: (a) 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; (c) are members of Sponsor’s ADO Practice Solutions group purchasing organization; 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.  

    

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 at www.walmanoptical.com/PEAK (“Website”).  Provided that Eligible Practice completes its enrollment as required, and complies with these Terms and Conditions, it will be eligible to receive the rebates and in-kind rebates offered under this Program. 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 the Rebates 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.

    

7. Program Overview.
   1. As described in Section 8 below, the Program consists of three (3) purchasing thresholds involving private pay jobs (“Tiers”)—Peak Essentials, Peak Performance, and Peak Accelerator, and each Tier includes associated rebates (“Program Benefits”).
   2. Tier Placement:  Tier placement will be determined solely by Sponsor.  Sponsor will review the Enrolled Practice’s private pay purchases through Walman for the quarter prior to enrollment for initial Tier placement.  Once active in the Program, Sponsor will review the Enrolled Practice’s performance monthly.  If the Enrolled Practice does not meet the Tier requirements, it will not be eligible for the Program Benefits for that month.  It is possible to meet the Tier requirements in one month and not another.  
8. Program Benefits for Each Tier. Under the Program, the price reductions earned by Enrolled Practice take the form of statement credits, discounts and rebates which will be tracked and summarized in an annual report by Sponsor for price transparency and reporting and disclosure purposes.

    

   1. Peak Essentials:
      1. Rx Rebate – Sponsor will provide a one percent (1%) rebate on all prescription lens purchases made through Walman Optical labs and billed through ADO.  The rebate will be paid as a statement credit on the ADO billing statement the month following the relevant purchase(s).
      2. ADO will offer a one percent (1%) statement credit rebate on all Contact Lenses that bill through ADO.
      3. One percent (1%) rebate from Cooper Vision and J&J on all Contact Lenses that are pointed to ADO.
      4. Free Frame Shipping Rebate –Sponsor will provide a one-dollar ($1) rebate on all incremental orders that are ordered through the ADO Free Frames Shipping (“FFS) program.  Incremental orders shall mean sales in excess of an established baseline which is determined by averaging the previous three months FFS usage prior to the enrollment date. Each Enrolled Practice’s baseline will be provided by Sponsor in advance.

          

   2. Peak Performance:
      1. Rx Rebate – Sponsor will provide a three percent (3%) rebate on all prescription lens purchases made through Walman Optical labs and billed through ADO.  The rebate will be paid as a statement credit on the ADO billing statement the month following the relevant purchase(s).
      2. ADO will offer a three percent (3%) statement credit rebate on all Contact Lenses that bill through ADO.
      3. Three percent (3%) rebate from Cooper Vision and J&J on all Contact Lenses that are pointed to ADO.
      4. Free Frame Shipping Rebate –Sponsor will provide a three-dollar ($3) rebate on all incremental orders that are ordered through the ADO Free Frames Shipping (“FFS) program.  Incremental orders shall mean sales in excess of an established baseline which is determined by averaging the previous three months FFS usage prior to the enrollment date. Each Enrolled Practice’s baseline will be provided by Sponsor in advance.

          

   3. Peak Accelerator:
      1. Rx Rebate – Sponsor will provide a three percent (3%) rebate on all prescription lens purchases made through Walman Optical labs and billed through ADO.  The rebate will be paid as a statement credit on the ADO billing statement the month following the relevant purchase(s).
      2. ADO will offer a three percent (3%) statement credit rebate on all Contact Lenses that bill through ADO.
      3. Three percent (3%) rebate from Cooper Vision and J&J on all Contact Lenses that are pointed to ADO.
      4. Free Frame Shipping Rebate –Sponsor will provide a three-dollar ($3) rebate on all incremental orders that are ordered through the ADO Free Frames Shipping (“FFS) program.  Incremental orders shall mean sales in excess of an established baseline which is determined by averaging the previous three months FFS usage prior to the enrollment date. Each Enrolled Practice’s baseline will be provided by Sponsor in advance.
      5. $250 discount on the monthly DONE4YOU Marketing fee. DONE4YOU is an ADO customized marketing platform for ECP members.
      6. Sponsor will provide a $500 per month rebate for DONE4YOU, issued via a credit to Enrolled Practice’s ADO monthly billing statement.

          

9. Purchase Requirements for Each Tier.  In order to be eligible for the Program Benefits offered under each Tier, Enrolled ECP must achieve one of the following:

    

   1. Peak Essentials – Active ADO Member and maintains at least $2,500 in monthly private pay purchases with Sponsor.

       

   2. Peak Performance - Active ADO Member, enrolled in the DONE4YOU package pricing program, and maintains at least $2,500 in monthly private pay purchases with Sponsor.

       

   3. Peak Accelerator - Active ADO Member, enrolled in the DONE4YOU package pricing program, and maintains at least $5,000 over its pre-Program three-month average private pay purchases with Sponsor (“Baseline”), This Baseline will be recalculated every 12 months. 

       

10. Payment. The Program Benefits will be paid by Sponsor no later than thirty (30) days following the end of the applicable month in the form of an ADO statement credit, except for the contact lens manufacturer rebate, which will be paid no later than thirty (30) days following the end of the applicable quarter.   

     

11. Laboratory Services.
    1. Sponsor warrants that it will provide surfacing, finishing, mounting and coating of prescription lenses (“Laboratory Services”) for all jobs ordered by Enrolled Practice in accordance with Sponsor’s then-current business practices in particular, as may be revised from time-to-time.  Enrolled Practice’s orders for Laboratory Services are subject to each Sponsor’s then current price lists, payment terms and invoicing.  Sponsor warrants that it will provide Laboratory Services according to and in compliance with normal and customary industry standards and in accordance with any standards that may be promulgated by the American National Standards Institute (“ANSI”).  If Sponsor breaches the warranty set forth in this Section 11.a, the sole and exclusive remedy is to (i) have the product or service at issue redone at no charge, or (b) to obtain a refund of the purchase price of the product or service at issue.
    2. EXCEPT AS PROVIDED ABOVE, SPONSOR HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO ENROLLED PRACTICE WILL BE AS PROVIDED ABOVE.  IN NO EVENT WILL SPONSOR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ON ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. 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.

     

13. 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.
    1. 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 Rebates provided under this Program.
    2. 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.
14. Rebate Report.  Within ninety (90) days following the end of the calendar year, Sponsor shall provide the following purchasing and pricing data (“Rebate Report”) to Enrolled Practice with respect to the just concluded calendar year:
    1. The total amount of monthly private pay purchases that Enrolled Practice ordered; and
    2. Aggregate dollar value of the price reductions / rebates provided to Enrolled Practice.
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 under this Program. Toward that end, Enrolled Practice covenants and agrees that it will:
    1. 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; and
    2. 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 "Monthly Lab Purchases" includes 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.

16. Reservation of Rights.

     

    1. Sponsor reserve(s) the right in its sole discretion to terminate the participation of any Enrolled Practice in the Program.

        

    2. Sponsor reserves the right in its sole discretion to correct or amend the Terms and Conditions retroactively to the start of the Program Period.

        

    3. 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. An Enrolled Practice may exit the Program at any time during the Term.  In the event Sponsor terminates an Enrolled Practice 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 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.

     

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, Enrolled 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. Enrolled 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.

     

22. Privacy. Personal information (if any) collected online in connection with this Program shall be subject to the privacy policy posted on the Program’s or Sponsor’s website (as applicable).

     

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.