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EcoTech Marine, LLC (“EcoTech”) implemented a Unilateral Minimum Retail Price (MRP) Policy and a Unilateral Minimum Advertised Price (MAP) Policy (the “Original Policies”) effective as of August 15, 2011. To accommodate certain changes to the Original Policies, an amended and restated version combining both of them has replaced the Original Policies effective as of March 15, 2013 (the “Replacement Date”), but the replacement policy will not be enforced until May 1, 2013 (the “Replacement Enforcement Date”).
The replacement policy (this “Policy”) is set out below and is applicable to each EcoTech-authorized retailer (and to the Retail Operation, if any, as defined in the Authorized Distributor Agreement between EcoTech and each Authorized Distributor (individually, a “Distributor”) located in either or both of the United States of America and Canada receiving this Policy (individually, a “Retailer”) with respect to each of the EcoTech products for which a minimum resale price (“Minimum Resale Price” or “MRP” and, referring to either the singular or the plural or both, “MRP(s)”) is specified on the price list(s) or product list(s) provided or otherwise made available to such Retailer by EcoTech or otherwise communicated in writing or electronically by EcoTech to such Retailer (individually, a “Covered Product” and collectively, the “Covered Products”):
Violations of this Policy
Although each Retailer remains free to establish its own resale prices, EcoTech, without assuming any liability, will take one or more of the following actions immediately following verification by EcoTech to its satisfaction that such Retailer has violated this Policy by (a) offering (whether through advertising, promotion, proposal, quotation or otherwise and regardless of place or medium used), (b) selling (whether face-to-face, in-store, online, through a catalog or otherwise) or (c) otherwise providing (except in exchange for bona fide returns) one or more of the Covered Products during the Policy Period at a net adjusted price less than the corresponding MRP(s) established by EcoTech from time to time and communicated to such Retailer:
For the first violation during a Policy Period: If such violation is due to:
(i) an offer, such Retailer will remove or stop or cause to be removed or stopped the offending reference(s), text or conduct after receiving notice thereof from EcoTech: (A), in the case of a violation involving the Internet, no later than one (1) business day later, and (B), in all other cases, no later than three (3) business days later or by the conclusion of the time period otherwise specified by EcoTech or
(ii) a sale or otherwise providing one of the Covered Products, EcoTech will provide notice of such violation to such Retailer.
For the second violation during a Policy Period: If (i) the offending reference(s), text or conduct that caused the first violation is or are not so removed or stopped (if EcoTech determines that it or they can be) after receiving notice of such first violation from EcoTech or (ii) such Retailer violates this Policy a second time with the same item(s) of the Covered Products or violates this Policy with any other item(s) of the Covered Products, effective as of the date specified in notice from EcoTech to such Retailer and for the sixty (60) day period thereafter, the prices paid for EcoTech products will be ninety percent (90%) of the MRP for covered products.
For the third violation during a Policy Period: If (i) the offending reference(s), text or conduct that caused the second violation is or are not so removed or stopped (if EcoTech determines that it or they can be) after receiving notice of such second violation from EcoTech (A), in the case of a violation involving the Internet, no later than one (1) business day later, and (B), in all other cases, no later than three (3) business days later or the conclusion of the time period otherwise specified by EcoTech or (ii) such Retailer violates this Policy a third time with the same item(s) of the Covered Products or violates this Policy with any other item(s) of the Covered Products, effective as of the date specified in notice from EcoTech to such Retailer and continuing for the next sixty (60) days, the authorization of such Retailer to purchase any or all of the EcoTech products designated by EcoTech is immediately revoked by EcoTech, so that all pending orders (even if accepted) will be cancelled and no new orders will be accepted from such Retailer for any or all of such products.
For the fourth violation during a Policy Period: If (i) the offending reference(s), text or conduct that caused the third violation is or are not removed or stopped (if EcoTech determines that it or they can be) after receiving notice of such third violation from EcoTech (A), in the case of a violation involving the Internet, no later than one (1) business day later, and (B), in all other cases, no later than three (3) business days later or the conclusion of the time period otherwise specified by EcoTech or (ii) such Retailer violates this Policy a fourth time with the same item(s) of the Covered Products or violates this Policy with any other item(s) of the Covered Products, effective as of the date specified in notice from EcoTech to such Retailer and continuing until EcoTech provides notice to such Retailer otherwise, if ever, the authorization of such Retailer to purchase any or all of the EcoTech products designated by EcoTech is immediately revoked by EcoTech, so that all pending orders (even if accepted) will be cancelled and no new orders will be accepted from such Retailer for any or all of such products.
Each violation of this Policy is cumulative. The consequences of each subsequent violation take effect regardless whether the consequences for the prior violation(s) are still running. The same act(s) or failure(s) to act may result in multiple violations. In the case of a Retailer that purchases through one or more distributors, this Policy will be enforced through a Do-Not-Sell List or the equivalent issued to each such distributor.
For purposes of this Policy: (a) a “Policy Period” with respect to a Retailer consists of the time period beginning on the Replacement Enforcement Date and ending on the day preceding the fifth (5th) anniversary thereof and, thereafter, each successive five (5) year period until this Policy is discontinued, rescinded or terminated effective on the date described in a future written or electronic notice to such Retailer from EcoTech; and (b) “net adjusted price” means the lower of the price at which a Covered Product is offered by or on behalf of a Retailer to a customer (potential or actual) or that actually paid to or for the benefit of a Retailer for a Covered Product by such customer after (i) applying all discounts and similar price reductions, (ii) excluding certain taxes and shipment charges and (iii) giving effect to the value of free or reduced-price bundles. Specifically, net adjusted price will be calculated by:
Examples of things that will be closely examined include without limitation: (a) rebate checks, (b) free gift cards, (c) extended warranties and (d) free or discounted items. From time to time, EcoTech may communicate to a Retailer in writing or electronically what it considers to be the fair market value for particular goods or services.
Minimum Resale Price
EcoTech, at anytime, may vary the Minimum Resale Price for a Covered Product or add to or delete any or all of the Covered Products, which may, among other things, be based on whether such product is offered or sold under or subject to one or more select EcoTech programs or any other EcoTech policy or in any other situation announced by EcoTech from time to time. EcoTech will endeavor to provide prior notice of each new MRP or such change in the Covered Products, generally not less than five (5) days in advance. While EcoTech will communicate each MRP and such change through the price list(s) or product list(s) provided or made available to each Retailer electronically or otherwise, such Retailer is responsible for making sure that it is aware of the appropriate MRP(s) and the Covered Products in each circumstance.
Free or Reduced-Price Shipping Not Considered Discount
Notwithstanding anything to the contrary in this Policy, free or reduced-price shipping (including without limitation drop shipping by a Distributor on behalf of a Retailer) may be offered or provided by a Retailer without it being considered to be a discount when offered or provided in connection with a purchase that includes at least one of the Covered Products, as long as the value thereof is reasonable (as determined by EcoTech).
Use by a Retailer (directly or through another party on behalf or for the benefit of such Retailer) of any or all of the following terms, descriptions, conditions or offers (or the substantive equivalent of any or all of them as determined by EcoTech) in connection (directly or indirectly) with the offering or sale of any or all of the Covered Products will be deemed to be a violation of this Policy with the same effect as advertising, promoting, offering, selling or otherwise providing each of the Covered Products in connection with such use at less than its Minimum Resale Price:
As long as a Retailer does not otherwise violate this Policy, such Retailer offering or selling to a potential or actual customer one or more of the Covered Products after the Replacement Enforcement Date below its or their respective MRP(s) is exempt from this Policy and will not violate it, if such offering or selling is consistent with an exemption described in this Policy (individually, an “Exemption” and collectively, the “Exemptions”). The Exemptions are as follows and apply to offering or selling which is part of a potential or actual sale by such Retailer:
If such Retailer otherwise violates this Policy or EcoTech determines that such Retailer does not qualify for or abused any or all of the Exemptions, such exemptions will be deemed withdrawn by EcoTech retroactive to the Replacement Enforcement Date or such other date specified by EcoTech. Except in extraordinary circumstances, EcoTech will not consider any requests for other exemptions.
Additional Policy Terms and Conditions
Effective as of the Replacement Date, this Policy supersedes and cancels each other policy from EcoTech, if any, regarding minimum advertised prices and resale prices or either thereof, including with limitation the Original Policies. For any reason(s) deemed appropriate by EcoTech (including without limitation based the request of a Retailer for EcoTech to consider such things as, but not necessarily restricted to, limited-time promotional offers for an event in which such Retailer is participating or otherwise), but, in no event other than as EcoTech’s unilateral decision, this Policy may be modified, extended, waived, suspended, discontinued or rescinded in whole or part by EcoTech in writing at any time (including without limitation during any EcoTech-designated promotional period(s)), with such action(s) effective immediately or as otherwise described by EcoTech. If EcoTech negotiates a price with a customer that is less than the MRP(s) and offers a Retailer the opportunity to fulfill one or more orders at such price, acceptance by such Retailer of such opportunity will not constitute a violation of this Policy.
Regardless whether expressly indicated in this Policy, each notice referred to herein: (a) may, as determined by EcoTech, be given in writing or electronically (including without limitation posting on a website) and (b) will be considered to be received as designated by EcoTech. The Explanation (which also may be referred to as “Frequently Asked Questions,” “FAQs” or the equivalent as determined by EcoTech), if any, accompanying this Policy is intended to help answer questions in connection with it, but is not part of this Policy. In the event of any disagreement over the interpretation or enforcement of this Policy, the view of EcoTech view will control.
EcoTech will not discuss any conditions of acceptance related to this Policy. In addition, EcoTech neither solicits, nor will it accept, any assurance of compliance with this Policy. Notwithstanding anything to the contrary which may be expressed or implied in or by one or more agreements between a Retailer and EcoTech or such Retailer and the distributor(s) from which such Retailer obtains any or all of the Covered Products, nothing therein shall constitute an agreement by such Retailer to comply with this Policy, as, among other things, this Policy is not and should not be construed to be one of the EcoTech Policies as such term is or may be used in any or all of such agreements.
Questions, Additional Information or Information Regarding Potential Violations
All questions or requests for additional information regarding this Policy or information regarding potential violations of this Policy (which must be in writing) are to be addressed to the following person (the “Policy Administrator”):
EcoTech Marine, LLC
999 Postal Road, Suite 100
Allentown, PA 18109
Only the Policy Administrator or the Policy Administrator’s designated representative(s) is or are authorized by EcoTech to answer questions regarding this Policy, to comment on this Policy or to accept information regarding potential violations.
April 1st 2013
This FAQ is designed to assist in the interpretation of the EcoTech’s MRP policy legal document that follows this FAQ. In the event of any ambiguity or conflicting information the legal documents takes precedence.
PLEASE REMEMBER: ECOTECH EMPLOYEES ARE NOT AUTHORIZED OR PERMITTEDTODISCUSS OR ANSWER QUESTIONS ABOUT THE MRP POLICY OR ITS IMPLEMENTATION.