Alcon Consignment Agreement
- Consigned Inventory: Alcon may provide Customer with a supply of certain Alcon-manufactured products (“Product(s)”) that Customer may retain on consignment (“Consigned Inventory”) within its owned and operated facility (“Consignment Facility”). Alcon is under no obligation to supply Customer with a minimum number of Products for consignment purposes and Alcon may refuse to deliver Products for any lawful reason, including, but not limited to, Customer’s nonpayment of any outstanding invoice. This Agreement pertains only to consignment conditions and does not alter any applicable terms otherwise agreed to in writing governing Product purchases between Alcon and Customer.
- Shipping & Handling: Products will be shipped using Alcon’s then-current standard shipping and handling policy. All shipping-related claims for shortages, shipping errors, lost, stolen or damaged Products must be made to Alcon within 30 days of receipt or expected delivery.
- Taxes: Unless Customer is exempt from applicable taxes and provides proof of such to Alcon, Customer shall be responsible for and will pay to Alcon all applicable sales and use taxes resulting from purchases of Products pursuant to this Agreement.
- Title: Alcon will retain title to the Products in Consigned Inventory until the Product is used, opened, lost, or damaged, while in the Consignment Facility’s possession (“Used Product(s)”), at which time the Used Product will be deemed to have been purchased, title will be transferred to Customer, title in the sale proceeds shall vest in and belong to Alcon, and Customer will be invoiced and obligated to pay Alcon for such Products. Customer hereby appoints Alcon or its agent as Customer's limited attorney-in-fact to execute and record all documents (including, without limitation, UCC financing statements) necessary to perfect or maintain the perfection of Alcon’s ownership or security interest in the Consigned Inventory or proceeds, and as may be reasonably requested, Customer agrees to execute documents in this regard.
- Consigned Inventory Management: Customer assumes all liability for the safe storage, handling and use of the Consigned Inventory in accordance with the applicable instructions for use and/or important safety information. In addition, Customer agrees not to deface or otherwise place any stickers, labels, or other markings on the Product packaging. Customer must use reasonable efforts to (i) identify all Consigned Inventory as being the property of Alcon, (ii) separate Consigned Inventory from other property of Customer, and (iii) maintain complete and accurate records concerning the Consigned Inventory. All shipments of Products will be accompanied by a packing sheet specifying applicable Product information. Customer acknowledges and agrees that Alcon may ship replacement Products that may differ from the original Product being replaced and that Alcon may adjust the Consigned Inventory at its sole and reasonable discretion. Customer agrees to allow Alcon representatives to access the Consigned Inventory for auditing (“Audit”) the Consigned Inventory. If an Audit reflects a shortage of Products in the Consigned Inventory, Alcon will invoice Customer for the same. Customer agrees to notify Alcon immediately if Products are traded, borrowed or exchanged with any other entity (each, a “Transferred Product”); provided, however, that Customer agrees not to sell or donate lenses to any doctor, hospital, or any other entity. Customer is responsible for monitoring the expiration dates of the consigned Products, ordering Product replacements or adding new Products to its Consigned Inventory.
- RFID Technology: Product packaging may include radio-frequency identification (“RFID”) tags for use in the management of Consigned Inventory. Alcon may provide Customer with an RFID scanner (“Scanner”) on loan to perform automated inventory scans of Consigned Inventory (“Scans”). Alcon shall retain title and ownership of the Scanner at all times; provided, however, that Customer shall assume all liability for the safe storage, handling, and use of the Scanner, excepting reasonable wear through normal use. Customer agrees to perform regular Scans as reasonably necessary to timely monitor inventory according to its business operations. Use of the RFID technology to assist in Consigned Inventory management shall not relieve Customer of the obligations and requirements hereunder.
- Insurance Requirements: Customer represents and warrants that it shall maintain All Risk property insurance in a sufficient amount to insure against the loss of the Consigned Inventory, and if requested by Alcon, shall name Alcon Vision, LLC or its affiliate as a loss payee.
- Implanted Used Products: Customer agrees (as to each Product’s style, power and size, if applicable) to implant consigned Products on a “first-in, first-out” basis as determined by the (1) Product’s expiration and (2) delivery date. For each implanted Used Product, Customer will immediately provide Alcon with any information on such Product as required by regulatory agencies, including, but not limited to, the applicable serial number. Customer is solely responsible for checking each consigned Product’s expiration date before implantation. Customer assumes all liability for the implantation of an expired or Transferred Product and agrees to indemnify and hold Alcon harmless with regard to any claims, demands, or damages arising out of the use of any such expired or Transferred Product.
- Invoicing Used Product: Alcon will invoice Customer for Products hereunder pursuant to the most current Product pricing applicable to Customer. Payment shall be due Net 30 days after the date of the invoice, unless otherwise agreed to in writing between Alcon and Customer. Delays in invoicing shall not excuse Customer’s payment obligation. If Customer requires reference to a Customer-issued purchase order (“PO”) on an invoice, Customer must provide the PO information when notifying Alcon of a Used Product. Customer agrees that the omission of a PO on any invoices shall not relieve Customer of its obligation to pay for any Products hereunder. For Customer’s convenience, Customer may separately provide Alcon in writing with a standing PO for invoices issued pursuant to this Agreement. Customer may update the standing PO information at any time by notifying Alcon in writing.
- Returns and Exchanges: Product returns will be subject to Alcon’s then-current standard return goods policy. All Product returns require a return authorization number, which may be obtained by contacting Alcon Customer Service.
- Termination: Either party may terminate this Agreement by giving at least 30 calendar days’ advance written notice to the other party at the address specified in this Agreement. This Agreement may be immediately terminated by Alcon upon written notice to Customer for Customer’s breach of any of the terms this Agreement. This Agreement may be terminated by either party, immediately upon written notice to the other, if the other party is adjudicated insolvent or seeks protection under any bankruptcy proceeding. Customer shall return all Consigned Inventory within 14 calendar days of the termination of this Agreement. Thereafter, Alcon may invoice Customer for all unreturned Products.
- Governing Law/Entire Agreement/Assignment: This Agreement shall be governed by the laws of the State of Texas. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous negotiations or agreements. This Agreement may be assigned by Alcon to an affiliated entity; Customer shall not assign this Agreement without Alcon’s prior written consent.
- Confidentiality: In connection with the performance of this Agreement, Alcon may communicate certain data and information to Customer, and Customer agrees that such material shall be kept strictly confidential by Customer, and Customer agrees to not disclose any such data and information to any third party without Alcon’s prior written consent.
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