Common use of Management and Operation Clause in Contracts

Management and Operation. The Parties have negotiated a division of responsibilities that is reflected in this Agreement and in the Services to be provided by Manager. Those items, services and responsibilities not included with the Services are and remain the responsibility of Walmart. Manager shall provide the Centers with the services and the Manager Personnel at Manager’s sole expense (the “Services”), which are as follows: 1. Provide licensed and non-licensed retail employees for the Centers and optical laboratory technicians for Manager’s optical laboratories (collectively, the “Manager Personnel”). Manager Personnel will be trained and licensed. If applicable, and appropriately qualified to provide Services to the Centers. Manager shall employ or otherwise retain and shall be responsible for selecting, hiring, training, supervising, and terminating, all management, administrative, technical, clerical, secretarial, bookkeeping, accounting, payroll, billing and collection and other Management Personnel as Manager deems reasonably necessary and appropriate for the operation of the Centers and for Manager’s performance of the Services in accordance with applicable federal and state laws, subject, however, to Regulatory Uncertainty. Manager reserves the right to change the number, composition or employment terms of such personnel in the future at Manager’s discretion. Manager shall maintain personnel records for Manager Personnel that satisfy licensing, accreditation and certification requirements of the Centers; 2. Arrange at its sole expense for all necessary and appropriate continuing education of all Manager Personnel; 3. Arrange and verify annual training for material regulatory compliance issues, including Code of Business Ethics, HIPAA, Medicare and Medicaid billing, fraud, waste and abuse, ethics and safety and furnish copies of such training materials to Walmart within three business days of Walmart’s request. Not less often than annually, Manager shall complete compliance training for Manager Personnel covering the following subjects: a. Fraud, waste and abuse as required by and in accordance with Centers for Medicare and Medicaid Services requirements and 42 C.F.R. Section 422.503(b)(4)(vi); and b. The training required by § 6032 of the Deficit Reduction Act of 2005, the Federal False Claims Act including, but not limited to, 31 U.S.C. §§ 3729 through 3733, the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730, the administrative remedies for false claims and state laws pertaining to civil or criminal penalties for false claims particularly as those laws relate to the prevention and detection of fraud, waste and abuse in state and federal health care programs. 4. No later than sixty days after the Effective Date, install at the Centers, in locations specified by Walmart, the signage shown on Exhibit 2, which Walmart will manufacture and for which Manager will pay Walmart its out of pocket costs, without ▇▇▇▇ up; 5. Arrange for all receipts given to customers for purchases in the Centers booked to Walmart to be generated by a cash register in the form of the attached Exhibit 3; 6. Exercise commercially reasonable efforts to arrange, subject to Regulatory Uncertainty, for the provision of professional services in accordance with law by health plans, optometrists, ophthalmologists or professional corporations or other entities owned by such individuals in the Offices; 7. Obtain and maintain either through a commercial insurer or a program of self-insurance, general liability, professional liability insurance, employment practices liability insurance, workers’ compensation and, if available on commercially reasonable terms, contractual liability endorsement with respect to the obligations contained in Section X, on behalf of itself and Manager Personnel and provide Walmart with evidence of such coverage upon execution of this Agreement and thirty days prior to each anniversary of the Effective Date; 8. Subject to the obligations of Walmart under this Agreement, keep the Centers in a clean and professional condition and maintain all equipment, furnishings, and supplies necessary, in Manager’s reasonable judgment, for the proper operation of the Centers; 9. Provide for use in the Centers all furniture, furnishings, trade fixtures, and office equipment already in place or reasonably required for the operation of the Centers (collectively, “FF&E”); immediately repair any substantially damaged or inoperable FF&E; immediately replace any FF&E that cannot be repaired within a reasonable period, immediately replace any FF&E that is missing, lost, stolen, or has been reclaimed or repossessed (if such FF&E had been subject to a lien); 10. Unless prohibited under applicable law, notify Walmart immediately of any lawsuits or actions, including without limitation governmental audit requests, subpoenas, civil investigative demands, document requests from government program contractors, or similar requests by applicable federal and state authorities, which may include, but are not limited to, the Office of Inspector General for the U.S. Department of Health and Human Services, State Attorneys General, and U.S. Attorneys, or any known threat thereof, that become known to Manager that could reasonably be expected to have an adverse effect on the operation or business of the Centers; 11. Unless prohibited under applicable law, notify Walmart promptly of any actions by any regulatory board, personal injury or property damage or other loss or damage occurring to or claimed by any party with respect to the Centers and forward promptly to Walmart copies of any summons, subpoena, or other like legal document served upon Manager relating to actual or alleged potential liability of Walmart, with copies to Walmart of all such documents, and cooperate with the investigation and response to any claim in a manner consistent with the established risk management programs of Manager and Walmart; 12. Negotiate, purchase, and manage all Goods sold through or for use in the Centers; 13. Provide a virtual inventory warehouse separate and distinct from Manager’s inventory for its own uses in Manager’s owned and contracted optical laboratories for frame inventory sold by Manager to Walmart pursuant to a supplier agreement between Manager and Walmart, for use by Manager in the fabrication of eyeglasses and sunglasses for Center customers; 14. Implement and manage an electronic records system for prescription and related Goods sold in the Centers on behalf of Walmart Access to the records system for the Centers must be limited to those Manager employees who need access to such information in connection with their responsibilities on behalf of Manager under this Agreement. All records and files of such transactions are the property of Walmart; provided, however, that Manager shall have reasonable access to such records and files at all times as necessary to perform the obligations of Manager under and subject to this Agreement, including Schedule H, and as required or permitted by applicable federal and state laws and regulations. At the end of the Term, Manager shall deliver all such records and files to Walmart in an electronic format reasonably acceptable to Walmart. After the Term, Walmart shall give Manager and its representatives reasonable access to, and electronic or paper copies of all such records and files; 15. Give privacy notices to Center customers and post such notices in Centers, in a form substantially similar to that used by Walmart in its non-Center vision centers to indicate that Center customer data is collected by Manager for and on behalf of Walmart; 16. With direction and oversight from Walmart, assist in the development and administration of policies and protocols for the Centers including, without limitation, menu and pricing for Goods offered in the Centers; 17. Develop and implement marketing plans and materials for the Centers, provided, however, that Walmart shall have final right of approval or rejection over any and all marketing materials, including review of any disclaimer language, which shall be deemed approved unless disapproved within ten calendar days of the date Manager provides such materials to Walmart; provided, however, that Walmart approves any such materials in use at the Centers as of the Effective Date; 18. Obtain and maintain any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 19. Assist Walmart in obtaining and maintaining any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 20. ▇▇▇▇ and exercise commercially reasonable efforts to collect on behalf of Walmart for all Goods, exclusive, however, of: a. Third Party Items, prior to the Third Party Transition Date; b. Contact lenses sold prior to the Contact Lens Transition Date (“Pre-Transition Contact Lens Items”); and c. FS Items. Manager will deposit all such proceeds in the Accounts and remit such proceeds (exclusive of proceeds of sales of Third Party Items, Pre-Transition Contact Lens Items and FS Items) to Walmart pursuant to the provisions of Section IV; Walmart acknowledges that Manager may commingle Walmart’s funds in the Accounts with funds owned by Manager and that Manager may use the Accounts for its general corporate purposes (Walmart further covenants to transfer and deliver to the Accounts all funds received by Walmart or its subsidiaries for the sale of Goods); 21. At Walmart’s reasonable request, make available to Walmart or its designee records and files of Manager’s billing, collection and reconciliation activities under this Agreement for all Goods; 22. Comply with the Center standards set out in Schedule C; 23. Take any action that is not inconsistent with Walmart policies in connection with any aspect of the operations of the Centers; and 24. [*]

Management and Operation. The Parties have negotiated a division of responsibilities that is reflected in this Agreement and in the Services to be provided by Manager. Those items, services and responsibilities not included with the Services are and remain the responsibility of Walmart. Manager shall provide the Centers with the services and the Manager Personnel at Manager’s sole expense (the “Services”), which are as follows: 1. Provide licensed and non-licensed retail employees for the Centers and optical laboratory technicians for Manager’s optical laboratories (collectively, the “Manager Personnel”). Manager Personnel”).Manager Personnel will be trained and licensed. If applicable, and appropriately qualified to provide Services to the Centers. Manager shall employ or otherwise retain and shall be responsible for selecting, hiring, training, supervising, and terminating, all management, administrative, technical, clerical, secretarial, bookkeeping, accounting, payroll, billing and collection and other Management Personnel as Manager deems reasonably necessary and appropriate for the operation of the Centers and for Manager’s performance of the Services in accordance with applicable federal and state laws, subject, however, to Regulatory Uncertainty. Manager reserves the right to change the number, composition or employment terms of such personnel in the future at Manager’s discretion. Manager shall maintain personnel records for Manager Personnel that satisfy licensing, accreditation and certification requirements of the Centers; 2. Arrange at its sole expense for all necessary and appropriate continuing education of all Manager Personnel; 3. Arrange and verify annual training for material regulatory compliance issues, including Code of Business Ethics, HIPAA, Medicare and Medicaid billing, fraud, waste and abuse, ethics and safety and furnish copies of such training materials to Walmart within three business days of Walmart’s request. Not less often than annually, Manager shall complete compliance training for Manager Personnel covering the following subjects: a. Fraud, waste and abuse as required by and in accordance with Centers for Medicare and Medicaid Services requirements and 42 C.F.R. Section 422.503(b)(4)(vi); and b. The training required by § 6032 of the Deficit Reduction Act of 2005, the Federal False Claims Act including, but not limited to, 31 U.S.C. §§ 3729 through 3733, the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730, the administrative remedies for false claims and state laws pertaining to civil or criminal penalties for false claims particularly as those laws relate to the prevention and detection of fraud, waste and abuse in state and federal health care programs. 4. No later than sixty days after the Effective Date, install at the Centers, in locations specified by Walmart, the signage shown on Exhibit 2, which Walmart will manufacture and for which Manager will pay Walmart its out of pocket costs, without ▇m▇▇▇ up; 5. Arrange for all receipts given to customers for purchases in the Centers booked to Walmart to be generated by a cash register in the form of the attached Exhibit 3; 6. Exercise commercially reasonable efforts to arrange, subject to Regulatory Uncertainty, for the provision of professional services in accordance with law by health plans, optometrists, ophthalmologists or professional corporations or other entities owned by such individuals in the Offices; 7. Obtain and maintain either through a commercial insurer or a program of self-insurance, general liability, professional liability insurance, employment practices liability insurance, workers’ compensation and, if available on commercially reasonable terms, contractual liability endorsement with respect to the obligations contained in Section X, on behalf of itself and Manager Personnel and provide Walmart with evidence of such coverage upon execution of this Agreement and thirty days prior to each anniversary of the Effective Date; 8. Subject to the obligations of Walmart under this Agreement, keep the Centers in a clean and professional condition and maintain all equipment, furnishings, and supplies necessary, in Manager’s reasonable judgment, for the proper operation of the Centers; 9. Provide for use in the Centers all furniture, furnishings, trade fixtures, and office equipment already in place or reasonably required for the operation of the Centers (collectively, “FF&E”); immediately repair any substantially damaged or inoperable FF&E; immediately replace any FF&E that cannot be repaired within a reasonable period, immediately replace any FF&E that is missing, lost, stolen, or has been reclaimed or repossessed (if such FF&E had been subject to a lien); 10. Unless prohibited under applicable law, notify Walmart immediately of any lawsuits or actions, including without limitation governmental audit requests, subpoenas, civil investigative demands, document requests from government program contractors, or similar requests by applicable federal and state authorities, which may include, but are not limited to, the Office of Inspector General for the U.S. Department of Health and Human Services, State Attorneys General, and U.S. Attorneys, or any known threat thereof, that become known to Manager that could reasonably be expected to have an adverse effect on the operation or business of the Centers; 11. Unless prohibited under applicable law, notify Walmart promptly of any actions by any regulatory board, personal injury or property damage or other loss or damage occurring to or claimed by any party with respect to the Centers and forward promptly to Walmart copies of any summons, subpoena, or other like legal document served upon Manager relating to actual or alleged potential liability of Walmart, with copies to Walmart of all such documents, and cooperate with the investigation and response to any claim in a manner consistent with the established risk management programs of Manager and Walmart; 12. Negotiate, purchase, and manage all Goods sold through or for use in the Centers; 13. Provide a virtual inventory warehouse separate and distinct from Manager’s inventory for its own uses in Manager’s owned and contracted optical laboratories for frame inventory sold by Manager to Walmart pursuant to a supplier agreement between Manager and Walmart, for use by Manager in the fabrication of eyeglasses and sunglasses for Center customers; 14. Implement and manage an electronic records system for prescription and related Goods sold in the Centers on behalf of Walmart Access to the records system for the Centers must be limited to those Manager employees who need access to such information in connection with their responsibilities on behalf of Manager under this Agreement. All records and files of such transactions are the property of Walmart; provided, however, that Manager shall have reasonable access to such records and files at all times as necessary to perform the obligations of Manager under and subject to this Agreement, including Schedule H, and as required or permitted by applicable federal and state laws and regulations. At the end of the Term, Manager shall deliver all such records and files to Walmart in an electronic format reasonably acceptable to Walmart. After the Term, Walmart shall give Manager and its representatives reasonable access to, and electronic or paper copies of all such records and files; 15. Give privacy notices to Center customers and post such notices in Centers, in a form substantially similar to that used by Walmart in its non-Center vision centers to indicate that Center customer data is collected by Manager for and on behalf of Walmart; 16. With direction and oversight from Walmart, assist in the development and administration of policies and protocols for the Centers including, without limitation, menu and pricing for Goods offered in the Centers; 17. Develop and implement marketing plans and materials for the Centers, provided, however, that Walmart shall have final right of approval or rejection over any and all marketing materials, including review of any disclaimer language, which shall be deemed approved unless disapproved within ten calendar days of the date Manager provides such materials to Walmart; provided, however, that Walmart approves any such materials in use at the Centers as of the Effective Date; 18. Obtain and maintain any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 19. Assist Walmart in obtaining and maintaining any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 20. ▇B▇▇▇ and exercise commercially reasonable efforts to collect on behalf of Walmart for all Goods, exclusive, however, of: a. Third Party Items, prior to the Third Party Transition Date; b. Contact lenses sold prior to the Contact Lens Transition Date (“Pre-Transition Contact Lens Items”); and c. FS Items. Manager will deposit all such proceeds in the Accounts and remit such proceeds (exclusive of proceeds of sales of Third Party Items, Pre-Transition Contact Lens Items and FS Items) to Walmart pursuant to the provisions of Section IV; Walmart acknowledges that Manager may commingle Walmart’s funds in the Accounts with funds owned by Manager and that Manager may use the Accounts for its general corporate purposes (Walmart further covenants to transfer and deliver to the Accounts all funds received by Walmart or its subsidiaries for the sale of Goods); 21. At Walmart’s reasonable request, make available to Walmart or its designee records and files of Manager’s billing, collection and reconciliation activities under this Agreement for all Goods; 22. Comply with the Center standards set out in Schedule C; 23. Take any action that is not inconsistent with Walmart policies in connection with any aspect of the operations of the Centers; and 24. [*]

Management and Operation. The Parties have negotiated a division of responsibilities that is reflected in this Agreement and in the Services to be provided by Manager. Those items, services and responsibilities not included with the Services are and remain the responsibility of Walmart. Manager shall provide the Centers with the services and the Manager Personnel at Manager’s sole expense (the “Services”), which are as follows: 1. Provide licensed and non-licensed retail employees for the Centers and optical laboratory technicians for Manager’s optical laboratories (collectively, the “Manager Personnel”). Manager Personnel”).Manager Personnel will be trained and licensed. If applicable, and appropriately qualified to provide Services to the Centers. Manager shall employ or otherwise retain and shall be responsible for selecting, hiring, training, supervising, and terminating, all management, administrative, technical, clerical, secretarial, bookkeeping, accounting, payroll, billing and collection and other Management Personnel as Manager deems reasonably necessary and appropriate for the operation of the Centers and for Manager’s performance of the Services in accordance with applicable federal and state laws, subject, however, to Regulatory Uncertainty. Manager reserves the right to change the number, composition or employment terms of such personnel in the future at Manager’s discretion. Manager shall maintain personnel records for Manager Personnel that satisfy licensing, accreditation and certification requirements of the Centers; 2. Arrange at its sole expense for all necessary and appropriate continuing education of all Manager Personnel; 3. Arrange and verify annual training for material regulatory compliance issues, including Code of Business Ethics, HIPAA, Medicare and Medicaid billing, fraud, waste and abuse, ethics and safety and furnish copies of such training materials to Walmart within three business days of Walmart’s request. Not less often than annually, Manager shall complete compliance training for Manager Personnel covering the following subjects: a. Fraud, waste and abuse as required by and in accordance with Centers for Medicare and Medicaid Services requirements and 42 C.F.R. Section 422.503(b)(4)(vi); and b. The training required by § 6032 of the Deficit Reduction Act of 2005, the Federal False Claims Act including, but not limited to, 31 U.S.C. §§ 3729 through 3733, the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730, the administrative remedies for false claims and state laws pertaining to civil or criminal penalties for false claims particularly as those laws relate to the prevention and detection of fraud, waste and abuse in state and federal health care programs. 4. No later than sixty days after the Effective Date, install at the Centers, in locations specified by Walmart, the signage shown on Exhibit 2, which Walmart will manufacture and for which Manager will pay Walmart its out of pocket costs, without ▇m▇▇▇ up; 5. Arrange for all receipts given to customers for purchases in the Centers booked to Walmart to be generated by a cash register in the form of the attached Exhibit 3; 6. Exercise commercially reasonable efforts to arrange, subject to Regulatory Uncertainty, for the provision of professional services in accordance with law by health plans, optometrists, ophthalmologists or professional corporations or other entities owned by such individuals in the Offices; 7. Obtain and maintain either through a commercial insurer or a program of self-insurance, general liability, professional liability insurance, employment practices liability insurance, workers’ compensation and, if available on commercially reasonable terms, contractual liability endorsement with respect to the obligations contained in Section X, on behalf of itself and Manager Personnel and provide Walmart with evidence of such coverage upon execution of this Agreement and thirty days prior to each anniversary of the Effective Date; 8. Subject to the obligations of Walmart under this Agreement, keep the Centers in a clean and professional condition and maintain all equipment, furnishings, and supplies necessary, in Manager’s reasonable judgment, for the proper operation of the Centers; 9. Provide for use in the Centers all furniture, furnishings, trade fixtures, and office equipment already in place or reasonably required for the operation of the Centers (collectively, “FF&E”); immediately repair any substantially damaged or inoperable FF&E; immediately replace any FF&E that cannot be repaired within a reasonable period, immediately replace any FF&E that is missing, lost, stolen, or has been reclaimed or repossessed (if such FF&E had been subject to a lien); 10. Unless prohibited under applicable law, notify Walmart immediately of any lawsuits or actions, including without limitation governmental audit requests, subpoenas, civil investigative demands, document requests from government program contractors, or similar requests by applicable federal and state authorities, which may include, but are not limited to, the Office of Inspector General for the U.S. Department of Health and Human Services, State Attorneys General, and U.S. Attorneys, or any known threat thereof, that become known to Manager that could reasonably be expected to have an adverse effect on the operation or business of the Centers; 11. Unless prohibited under applicable law, notify Walmart promptly of any actions by any regulatory board, personal injury or property damage or other loss or damage occurring to or claimed by any party with respect to the Centers and forward promptly to Walmart copies of any summons, subpoena, or other like legal document served upon Manager relating to actual or alleged potential liability of Walmart, with copies to Walmart of all such documents, and cooperate with the investigation and response to any claim in a manner consistent with the established risk management programs of Manager and Walmart; 12. Negotiate, purchase, and manage all Goods sold through or for use in the Centers; 13. Provide a virtual inventory warehouse separate and distinct from Manager’s inventory for its own uses in Manager’s owned and contracted optical laboratories for frame inventory sold by Manager to Walmart pursuant to a supplier agreement between Manager and Walmart, for use by Manager in the fabrication of eyeglasses and sunglasses for Center customers; 14. Implement and manage an electronic records system for prescription and related Goods sold in the Centers on behalf of Walmart Access to the records system for the Centers must be limited to those Manager employees who need access to such information in connection with their responsibilities on behalf of Manager under this Agreement. All records and files of such transactions are the property of Walmart; provided, however, that Manager shall have reasonable access to such records and files at all times as necessary to perform the obligations of Manager under and subject to this Agreement, including Schedule H, and as required or permitted by applicable federal and state laws and regulations. At the end of the Term, Manager shall deliver all such records and files to Walmart in an electronic format reasonably acceptable to Walmart. After the Term, Walmart shall give Manager and its representatives reasonable access to, and electronic or paper copies of all such records and files; 15. Give privacy notices to Center customers and post such notices in Centers, in a form substantially similar to that used by Walmart in its non-Center vision centers to indicate that Center customer data is collected by Manager for and on behalf of Walmart; 16. With direction and oversight from Walmart, assist in the development and administration of policies and protocols for the Centers including, without limitation, menu and pricing for Goods offered in the Centers; 17. Develop and implement marketing plans and materials for the Centers, provided, however, that Walmart shall have final right of approval or rejection over any and all marketing materials, including review of any disclaimer language, which shall be deemed approved unless disapproved within ten calendar days of the date Manager provides such materials to Walmart; provided, however, that Walmart approves any such materials in use at the Centers as of the Effective Date; 18. Obtain and maintain any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 19. Assist Walmart in obtaining and maintaining any Licenses required for, or beneficial to, the Centers, in accordance with Section II.F; 20. ▇B▇▇▇ and exercise commercially reasonable efforts to collect on behalf of Walmart for all Goods, exclusive, however, of: a. Third Party Items, prior to the Third Party Transition Date; b. Contact lenses sold prior to the Contact Lens Transition Date (“Pre-Transition Contact Lens Items”); and c. FS Items. Manager will deposit all such proceeds in the Accounts and remit such proceeds (exclusive of proceeds of sales of Third Party Items, Pre-Transition Contact Lens Items and FS Items) to Walmart pursuant to the provisions of Section IV; Walmart acknowledges that Manager may commingle Walmart’s funds in the Accounts with funds owned by Manager and that Manager may use the Accounts for its general corporate purposes (Walmart further covenants to transfer and deliver to the Accounts all funds received by Walmart or its subsidiaries for the sale of Goods); 21. At Walmart’s reasonable request, make available to Walmart or its designee records and files of Manager’s billing, collection and reconciliation activities under this Agreement for all Goods; 22. Comply with the Center standards set out in Schedule C; 23. Take any action that is not inconsistent with Walmart policies in connection with any aspect of the operations of the Centers; and 24. [*]Manager shall apply a twenty percent (20%) discount off the regular retail price of all Goods sold to Walmart employees or their immediately family members.