FOAMit has unilaterally adopted a Minimum Advertised Price (MAP) policy, which shall apply to certain FOAMit products identified from time to time by FOAMit and offered for sale by dealers or distributors in the United States and Canada (“Merchants”).
FOAMit is adopting this policy in order to protect its brand position and reputation for superior technology, quality products, and strong sales support.
This policy has been unilaterally adopted by FOAMit and will be uniformly enforced.
- Identification of Products Covered by this MAP Policy. FOAMit will distribute via email a list substantially in the form of Attachment A (Annual Minimum Advertised Price Update) to this MAP Policy identifying minimum advertised prices for select products for the applicable year. The products listed in the Annual Minimum Advertised Price Update are referred to herein as the “MAP Products.” At any time, FOAMit may unilaterally decide to issue a new Annual Minimum Advertised Price Update reflecting new minimum advertised prices, to be effective at a date to be determined in FOAMit’s sole discretion. Products not specifically mentioned in the Annual Minimum Advertised Price Update are not subject to the MAP Policy.
- The MAP Policy applies to all advertisements of Map Products in any and all media, including, without limitation, flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, mail-order catalogs, Internet or similar electronic media including websites, electronic “marketplaces,” email newsletters, email solicitations, television, radio, and public signage. The MAP Policy is not applicable to any in-store advertising that is displayed only in the store and not distributed to any customer and is not applicable to prices displayed at the point of sale.
- Prices advertised and communicated to the public using any of the methods described in paragraph 2, above, must be equal to or greater than the prices set forth in the Annual Minimum Advertised Price Update for the applicable quarter. For purposes of this MAP Policy, advertised price includes any advertisement of free or discounted products or services included or “bundled” with other FOAMit products if the inclusion of such products or services would lower the net price of the covered Map Product below the MAP guideline.
- If pricing is displayed in any aforementioned advertisement, any strike-through or other alteration of the Minimum Advertised Price is prohibited. Further, advertising any MAP Product in a manner that implies that the price of the MAP Product is lower than the price listed for that product in the Annual Minimum Advertised Price Update in effect at the time of the advertisement is also prohibited and a violation of this MAP Policy. By way of example, following is a non-exhaustive list of practices that would violate this MAP Policy:
- Advertising a price for a MAP Product that is below the price listed for that product in the applicable Annual Minimum Advertised Price Update.
- Listing a MAP Product for sale on an auction site with advertised “buy it now” or similar pricing below the price listed for that product in the applicable Annual Minimum Advertised Price Update.
- Advertising that suggests or implies that a price below the applicable Annual Minimum Advertised Price Update is available with language such as “price too low to list,” “call for lower price,” “add to cart for lower price,” or similar.
- Advertising a price for any MAP Product lower than the applicable Annual Minimum Advertised Price on any email, website or other electronic means in any way that is visible by any viewer before the Product is placed in a shopping cart or other electronic point of sale.
- The MAP Policy applies only to advertised prices and does not apply to the price at which the products are actually sold or offered for sale to a customer. Merchants remain free to sell products at any prices they choose.
- From time to time, FOAMit may discontinue products or engage in promotions with respect to particular products. In such events, FOAMit reserves the right to unilaterally suspend or modify application of this MAP Policy with regard to such products by notifying all resellers of such change.
- In the event a Merchant chooses not to follow the MAP Policy, the following sanctions will be unilaterally imposed by FOAMit:For the first violation in a quarter (“Initial Violation”):
- Issue a written warning.
For the second violation within 90 days of an Initial Violation:
- Loss of discounts available to Merchant from FOAMit for a period of 30 days
For the third violation within 150 days of an Initial Violation:
- Indefinite loss of discounts available to Merchant from FOAMit
If a customer violates the MAP Policy in any two quarters in a calendar year, the first violation in the second quarter is treated as a 3rd violation in that quarter (i.e., the penalty applied is the penalty described above for the 3rd violation in a quarter).
- Issue a written warning.
- This MAP Policy is solely the decision and responsibility of FOAMit. No employee or sales representative of FOAMit has any authority to discuss or modify this policy and any action of any person, which claims to modify this policy or to solicit or obtain the agreement of any person to the policy, is unauthorized and invalid. Any questions about this policy should be in writing and directed to FOAMit’s Policy Administrator at email@example.com, who will respond only in writing. No oral communications about this policy are authorized. The foregoing MAP Policy and any MAP Product Listing is subject to modification or discontinuance by FOAMit, in its sole and absolute discretion, at any time.
- FOAMit is not seeking, and will not accept, agreement from any Merchant to adhere to this MAP Policy. It is entirely within the discretion of the Merchant whether to comply or not comply. FOAMit will monitor and enforce compliance with this MAP Policy unilaterally, and will not accept or discuss reports or complaints regarding alleged violations of this Policy or requests to enforce this Policy from any other party.
- This MAP Policy applies to sales of MAP Products made directly by Merchant, and also to sales made by other individuals or entities who purchase MAP Products from Merchant for the purpose of resale. FOAMit expects Merchants with a direct purchase relationship with FOAMit to communicate this MAP Policy to any downstream reseller receiving MAP Products from Merchant, and Merchant will be responsible for adherence to this MAP Policy by any such downstream reseller.