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The Company implemented and adopted this Minimum Advertised Price Policy (the “Policy”) to support Distributors in achieving the Company’s goals of protecting its image and reputation, promoting its brand and providing excellent service. The Company has unilaterally determined that it will sell Covered Products only to those Distributors that:

 

1.   Properly represent and promote the quality image and superior goodwill associated with the Covered  Products from physical locations and where applicable on the Internet.

2.   Do not sell or market the Covered Products in any way that disparages or injures the Company or its products or the products or services of any other company.

3.     Do not engage in any form of advertising or advertising practices that violate any federal, state or local laws or ordinances, including without limitation “bait and switch.”

4.     Clearly identify the specific model being advertised (e.g., Catalyst® case for iPhone 6 in Black & Space Gray)

5.     Do not use the Internet (including, but not limited to, business-to-consumer and other websites, auction sites, electronic bulletin boards, browsers, portals, and on-line services and service providers) to advertise (such advertising, “Internet Advertising”) the Covered Products to the general public at a “Net Adjusted Price” (defined below) that is equal to or greater than the list price set forth in the effective the Company's Price List (such prices referred to herein as the “MAP Price”). The requirements set out in this Section 5 apply to all publicly accessible levels/pages on a website. This includes any price published on the Internet, including but not limited to prices displayed through links, pop-ups and other methods of publication, even through another website. For example, reseller may not include statements such as “click here for best price” or “click here to see pricing.”

6.     Do not offer, advertise or provide one or more of the Covered Products on any Internet auction site, including but not limited to ebay.com; webstore.com; ebid.com; OnlineAuction.com; ubid.com; epier.com; OZtion.com; CQOut.com; Webidz.com; yahoo.com; MSN.com; Amazon.com; Auction Addict.com; Auction-Warehouse.com; publicsurplus.com; bid-alot.com; Auctionet.com; Auctions.com; dealdash.com; auctionfire.com; ItsGottaGo.com; or by selling one or more of the Covered Products to any person or entity, which Distributor knows or should reasonably know might offer or sell the Covered Products on an Internet auction site. The only exception to this Section 6 Internet Auction prohibitions applies when the Covered Product is offered using a “buy it now,” or comparable established price, instant purchase at an advertised price at or above MAP Price. As used in this Policy, the term “Net Adjusted Price” means the lower of the advertised price at which a Covered Product is offered by or on behalf of a Distributor to a customer (potential or actual) after (i) applying all discounts, rebates, allowances, coupons and similar price reductions advertised in connection with the Covered Product, (ii) excluding certain taxes and shipment charges paid by the customer, and (iii) giving effect to the value of free or reduced-price bundles advertised in connection with the Covered Product.

7.   Comply with requirements set forth under the heading “DO NOT SELL LIST” in this Policy in cases where a Distributor is selling the products to another Distributor.

 

This Policy applies to all forms of dealer advertising including mailings, catalogs, displays at consumer exhibitions and shows, and any and all other forms of advertising media, including, without limitation, the Internet and any other electronic network.  Any price information relating to Company products on an Internet website which can be accessed directly through any hypertext link or by any other method which uses the hypertext transfer protocol (http), including shopping cart pricing, is considered to be advertising for purposes of this policy.  Mail in rebates, promotional coupon codes or electronic mail sent in direct response to a customer inquiry shall not be considered advertising.

 

THIS POLICY ADDRESSES ONLY ISSUES SURROUNDING THE ADVERTISEMENT OF PRICES ON THE INTERNET, BROADCAST, AND IN PRINT. ALTHOUGH THE COMPANY SUGGESTS RESALE PRICES, THIS POLICY DOES NOT REGULATE ACTUAL SELLING PRICES, THE RIGHT TO SET ACTUAL SELLING PRICES, OR THE ABILITY TO COMMUNICATE AN ACTUAL SALES PRICE IN A DIFFERENT MANNER, SUCH as telephone, e-mail response, and product purchase confirmation communications.

 

This Policy supersedes any similar policies that were in effect prior to its effective date. The Company, at any time, may vary the MAP Price for a Covered Product, or add products, or delete products from the catalogue of the Covered Products.  This Policy may be modified, extended, suspended, discontinued, or rescinded, in whole or in part, by written notice from the Company at any time. Any such notice will describe the nature of any such modification, extension, suspension, discontinuation, or rescission of the Policy. Because this is a unilateral Policy concerning the manner in which the Company chooses to do business in its sole discretion, if there is any disagreement over the interpretation, application or enforcement of the Policy, the Company's interpretation or decision will control.

 

The Company will endeavor to provide prior notice of each new MAP Price or such change in the Covered Products. While the Company will communicate each MAP Price, each Distributor is responsible for making sure that it is aware of the appropriate MAP Price and the Covered Products in each circumstance.

 

The Policy is a unilateral statement of the Company’s preferences concerning the type of Distributor through which the Company chooses to distribute the Covered Products. It is not the intent or purpose of this Policy to restrict, coerce, force, or reach agreement with a retailer to charge a particular price for any products, including, without limitation, the Covered Products. The Policy is not a contract or an offer to form a contract, agreement or any other form of mutual understanding.  Tthe Company will not engage in any sort of negotiation with a reseller related to the matters addressed by this Policy. Rather, the Policy describes the terms under which the Company may, in its sole discretion, choose to sell the Covered Products. The Company does not ask for, has not asked for, and will not accept, any agreement to comply with the Policy. To the extent any person or authority misconstrues this Policy as any sort of “agreement,” it shall be interpreted in accordance with the laws of the State of Delaware.

 

Violations of this Policy

The Company intends to act in its sole interest, based on its own discretion, in addressing violations of this Policy.  Although each Distributor remains free to establish its own resale prices, the Company, without assuming any liability, will take one or more of the following actions immediately following verification by the Company to its satisfaction that such Distributor has violated this Policy by advertising one or more of the Covered Products at a Net Adjusted Price less than the MAP Price:

 

For the first violation:

Each Distributor that does not act in accordance with this Policy shall receive notification of the violation and an explanation of the consequences of continuing violations. The noncompliant Distributor will have twenty four (24) hours from time date of the notification to bring itself into compliance with this Policy.  A Distributor known to be supplying a noncompliant Distributor shall likewise be deemed a noncompliant Distributor.

 

For the second violation:

If a noncompliant Distributor does not bring itself into compliance with this Policy within twenty four (24) hours from the time of notification of the first violation, the Company will respond by transmitting a second notification and removing any and all marketing related support, promotional benefits, incentives, discounts or warranty service provided directly to that Distributor. The Company, at its own discretion, may also increase the wholesale price to that Distributor by an amount deemed reasonable by the CompanyThe Company may also limit the supply of new product to the noncompliant Distributor

 

For the third violation:

If a noncompliant Distributor does not bring itself into compliance with this Policy within five (5) calendar days from the date of second notification the Company will respond by no longer selling to that Distributor and terminating any relationship between the Company and the noncompliance Distributor.

 

Each violation of this Policy is cumulative. The consequences of the violations are additive and take effect regardless of whether the consequences of the preceding violations are still in effect. If a Distributor continues to violate the Policy (as determined by the Company) after receiving notice thereof from the Companythe Company will treat such violation as a subsequent violation, so that the same act(s) or failure(s) to act may result in multiple violations.

 

Do-Not-Sell List

The Company reserves the exclusive right to sell or not to sell to the Distributors included on the Company’s Do-Not-Sell List, which will be identified and enforced through use of written or electronic notice from the Company.

 

Immediately upon receipt of a notice by a Distributor or posting by the Company of each Do-Not-Sell List (whichever occurs first), the Company will treat any sales by a Distributor (including pending orders) to any entity on the Do-Not-Sell List as a violation of this Policy and the consequences of a first and a second Do-Not-Sell List violations shall correspond to the consequences for previously described advertising violations.

 

Use of Trademarks or Copyrighted Materials by Direct Customers

One reason for the implementation of this Policy is the protection by the Company of the image of Catalyst products and the value of Catalyst trademarks and copyrighted materials including but not limited to Catalyst product information and photographs, renderings, documents, advertising copy, articles, website content and layout, images, files, videos, webinars, text and graphics displays, service manuals, training materials, web banners, and other digital assets, (collectively, the “IP”). Advertisements in violation of this Policy (including with prices below the MAP) will likely result in diminishing, diluting or weakening the value of such IP. Accordingly, any Distributor that violates this Policy shall not be authorized to sell or advertise the Covered Products and be restricted from using the IP and any materials derived from such IP.

 

Notification of restriction shall come via a Cease and Desist letter. In conjunction, the Company shall let it be known that the selling of Covered Products during the period in which the Distributor is restricted from using the IP shall void any and all of Company product warranties for such products.

 

Use of Trademarks or Copyrighted Materials by Customers of Distributors

With respect to any customer of a Distributor that advertises or otherwise promotes Covered Products at a Net Adjusted Price below the MAP, the Company shall take all steps necessary to prevent that customer’s unauthorized use of any of the IP. Further, the Company shall let it be known that the selling of Covered Products by any customer of a Distributor in violation of this Policy, during the period of the restriction, shall void any and all the Company product warranties for such products.

 

Communications

the Company's representatives and employees are strictly prohibited from discussing the Policy with any Distributor. The Company's representatives and employees are also strictly prohibited from seeking or accepting any assurances of any Distributor’s compliance with the Policy.

 

All inquiries regarding the Policy should be directed in writing to:

 

ThornCrest Law

ATTN: Kathleen M. Walker

1310 Rosecrans Street, Suite B

San Diego, California 92106

Attn: Minimum Advertised Price Policy Administrator

e-mail: info@thorn-crest.com

 

No representative of the Company has the authority to speak to or to modify the terms and conditions of this Policy. This Policy may only be modified in writing and the only authorized communication regarding the Policy will be through the above-referenced email address.

 

The Company does not and will not discuss the business dealings of any Distributor with any other Distributor. The Company does not seek and will not accept any complaints or comments about the advertising or pricing policies of any other Distributor. The Company reserves the right to change or discontinue the Policy at any time, and no Distributor has the right to rely on the continued existence of the Policy or the Company’s enforcement of the Policy.  The Company reserves the right to choose any Distributor with which it will do business and reserves the right to accept or reject any purchase order from any account at any time.  The Company may, at its discretion, provide a “Frequently Asked Questions” reference (FAQ) to this Policy to Distributors.

 

This Policy shall not apply in any jurisdiction in which such policies have been deemed by any court or governmental authority to be unenforceable.  

 

 


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