Dakine MINIMUM ADVERTISED PRICE POLICY
Effective: June 1, 2016
DAKINE is a global leader in the development, manufacture and sale of premium products, including packs, bags, apparel, and accessories (“Products”) with a strong reputation and following among consumers. Key to our success is our unparalleled commitment to building close and enduring relationships with our high quality distribution network of retailers who provide consistent, high-quality customer service and represent our brand image appropriately through, among other things, using materials provided by DAKINE at no or nominal cost.
To ensure the legacy of DAKINE and to protect its reputation, brand image, goodwill, standards, marks, and products, DAKINE will not support advertising or promotion of its products that may adversely affect its goodwill, or diminish, detract and/or damage the value of DAKINE products and standards. Effective immediately, DAKINE has established this minimum advertised price (“MAP”) policy for its Products, applicable to all authorized DAKINE retailers in the U.S. The MAP policy is designed to protect the interests of our retailers and to ensure they have the incentive to invest resources into services for customers of DAKINE Products and provide them with the framework for supporting DAKINE premium products and to maximize brand sales opportunities by maintaining and enhancing the DAKINE brand image with consumers at all times.
1. No DAKINE retailer shall advertise or offer any price for any DAKINE Products below the Manufacturer’s Suggested Retail Price (“MSRP”). The MSRP will be unilaterally established, updated and provided by DAKINE to retailers from time-to-time and will reflect any discounted or off-price products. MAP pricing is established by DAKINE and may be adjusted at any time by DAKINE in its sole discretion upon written notice. If a Product is not listed on the most current price sheet, it is not subject to MAP. For avoidance of doubt, all DAKINE retailers remain free to set prices independently and to independently determine whether to abide by or disregard the MSRP and this MAP policy.
2. On or about February 1st (Fall/Winter Season Products) and July 1st (Spring/Summer Season Products) of each calendar year, DAKINE will provide a list of products allowed to be advertised at a discount price, which discount rate is set forth below. If a product UPC is not listed on the discount advertised price list, retailers will only advertise the product as set forth above. For identified discount advertised price products, the following discounts off of MSRP will be deemed acceptable and in compliance with this policy:
Fall Season Products
• November 15th – Dealers may discount 30% off MSRP for Fall/Winter products identified
• One week prior to Thanksgiving – Dakine.com will discount 30% off MSRP for Fall/Winter products identified
• January 1st – Dealers may discount at their discretion any Fall/Winter products identified, provided that such products are not a 12-month product
Winter Season Products
• February 15th – Dealers may discount 30% off MSRP for Fall/Winter products identified
• March 1st – Dakine.com will discount 30% off MSRP for Fall/Winter products identified
• April 1st – Dealers may discount at their discretion any Fall/Winter products identified, provided that such products are not a 12-month product
Spring/Summer Season Products
• July 1st – Dealers may discount 30% off MSRP for Spring/Summer products identified
• July 15th – Dakine.com will discount 30% off MSRP for Spring/Summer products identified
• August 15th – Dealers may discount at their discretion any Spring/Summer products identified, provided that such products are not a 12 month product
3. The MAP policy applies to all advertisements of Products in any and all media, including, without limitation, flyers, posters, coupons, direct mailers, brochures, inserts, newspapers, magazines, catalogs, mail-order catalogs, public signage, other print media, television, radio, email, Internet websites, e-commerce, any method which uses the hypertext transfer protocol (http) or any internal link to a web-based shopping cart, and other electronic media. The MAP policy is not applicable to any in-store advertising that is not distributed to customers.
4. The inclusion in advertising of free or discounted products, cash rebates, BOGO (buy one, get one) or bundled promotions (whether made by DAKINE or another manufacturer) with a product covered by the MAP policy, is contrary to the policy if it has the effect of discounting the advertised price of the Product below the MAP. Free shipping and/or handling or free financing promotions do not violate the MAP policy. Promotions that provide a free gift with purchase are not a violation of this MAP policy provided the gift is not DAKINE branded Product. Promotions commonly referred to as “Friends and Family Sales Promotions” are not a violation of this MAP policy provided that these promotions (a) occur no more frequently than twice per calendar year and for periods no longer than one week at a time, (b) are offered only to a limited group of prior loyal customers and family members of the retailer, (c) are not advertised through digital means, and (d) require original non-transferrable invitations. A “click for price” or “call for price” button on a website that displays a price lower than MAP is a violation of this policy. The MAP policy, however, does not apply once an item is placed in a customer’s “virtual shopping cart” on an Internet website. DAKINE’s MAP policy does not in any way limit the ability of any retailer to advertise that “they have the lowest prices” or use other phrases of similar meaning. Prices may be omitted from advertisements.
5. From time to time, DAKINE may engage in promotions with respect to certain Products. In such events, DAKINE reserves the right to modify or suspend the MAP with respect to the affected Products upon notice of such change. DAKINE further reserves the rights to unilaterally suspend, amend, or adjust the MAP at any time with respect to all or certain Products in its sole discretion upon providing written notice. DAKINE’s primary, non-exclusive method of communication will be via its price sheets for retailers. Any changes to MAP will apply equally to all retailers.
6. If a retailer advertises Product in a manner inconsistent with MAP, to prevent any damage to brand integrity, DAKINE may unilaterally and without further warning, discontinue its business relationship with such retailer. While DAKINE reserves the right to immediately terminate any retailer for any violation of the MAP policy, DAKINE understands that there may be instances where a violation is inadvertent. As such, DAKINE will typically provide notice of a retailer’s first failure to abide by this Policy, though it is not required to do so. Within 24 hours of receiving any such notice, DAKINE expects that the violation will be cured and that there will be no further violations of the MAP policy. By providing such notification, DAKINE does not seek or invite, and shall not accept, any retailer’s agreement to raise its resale prices, cure the violation, or otherwise continue to abide by this policy. If a violation is not cured within 24 hours, DAKINE will typically elect to do any of the following, all in its sole discretion: (a) cancel some or all pending orders for Products; (b) limit availability of certain Products to the retailer in the future; (c) cancel any Vendor Supplied Marketing (VSM) funds or pre-season discounts to which retailer is otherwise eligible; (d) alter any payment terms; (e) suspend a retailer for period of time; or (f) terminate the relationship with the retailer. DAKINE reserves the right to inspect all books, records, and other documents of its retailers relating to any DAKINE product or transaction to determine compliance with this Policy. DAKINE does not undertake any obligation to enforce this policy as against any other retailer. DAKINE’s determination concerning whether there has been a violation of this Policy shall be final and binding.
7. This policy does not confer any direct or indirect rights on any retailer, as a third-party beneficiary or otherwise. Retailers are expressly prohibited under this policy from discussing the resale prices of any other retailer or with any DAKINE employee or representative.
8. This MAP policy is not a contract or agreement, and DAKINE does not seek nor will it solicit or accept any retailer’s agreement with our policy, nor will DAKINE discuss pricing of any retailer. This MAP policy is a unilateral policy upon which DAKINE is willing to market Products. DAKINE sales personnel have no authority to modify or grant exceptions or otherwise discuss any Retailer’s actual or alleged violation of this policy. DAKINE does not intend to nor shall it coerce any Retailer to comply with this Policy or otherwise raise prices for any DAKINE product. If any Retailer believes that it is being subject to any such coercion, it must notify DAKINE in writing immediately. If any employee or representative engages in such discussion, the Retailer shall notify DAKINE in writing immediately. Failure to provide any written notification required by this paragraph within 30 days of such incident shall constitute a waiver of any claim the Retailer may have under state or federal law concerning such activity.
9. All matters of interpretation and application of the terms of this policy shall remain within the sole discretion of DAKINE. DAKINE reserves the right to modify this policy at any time without notice.