ELECTRONIC MINIMUM ADVERTISED PRICE (EMAP) POLICY

Transcription

1 ELECTRONIC MINIMUM ADVERTISED PRICE (EMAP) POLICY EFFECTIVE FEBRUARY 1, 2014 REPLACES MINIMUM ADVERTISED PRICING POLICY Introduction As a designer and manufacturer of high-quality audio communication products and wearable devices, the products sold by Plantronics have attained a premium image earned through extensive, detail-oriented product and market development activities and superior service delivered to end users. This image could not have been accomplished without the extraordinary customer experience provided by the knowledgeable sales staffs of Plantronics channel partners ( Partners ). Some Partners have taken or may take advantage of the reputation built by Plantronics and those Partners who provide superior service by advertising products as loss leaders or by promoting unfair discounts, and Plantronics wants to discourage these unfair actions. In an effort to help protect Plantronics reputation, insure the long-term viability of its brands and protect the investment of Partners who provide training and incentives to their employees as a means to deliver valuable assistance to end users, Plantronics has unilaterally adopted this Electronic Minimum Advertised Price (EMAP) Policy ( Policy ). This Policy is intended to replace the Minimum Advertised Pricing Policy previously implemented by Plantronics as of June 30, 2006 ( Original Policy ). This EMAP policy will be effective as of February 1, 2014 ( Policy Effective Date ). Until the Policy Effective Date, the Original Policy remains in full force and effect, and violations will be addressed according to its terms. Application The terms of this Policy below are applicable to each Plantronics-authorized distributor and reseller and to the Reseller Operations, if any, located in either the United States of America ( USA ) or Canada. (For purposes of this Policy, the Authorized Distributors and Authorized Resellers shall collectively be referred to as Partners. ( Reseller in the singular) and Reseller Operations shall have the meaning defined in applicable agreements or supplements between Plantronics and each Authorized Distributor or Authorized Reseller e.g., an Authorized Distributor Agreement, Authorized Reseller Agreement or other similar agreement). This Policy applies to each of the Plantronics products for which an electronic minimum advertised price ( EMAP and referring to either the singular or the plural or both, EMAP(s) ) is in effect and specified on the price list(s) or product list(s) provided or otherwise made available to a Partner by Plantronics or otherwise communicated by notice from Plantronics (each, an EMAP Product and collectively, the EMAP Products ). Except as otherwise expressly stated herein, this Policy applies: (a) only to the price(s) at which any or all of the EMAP Products is or are offered and not to actual sales price(s), so each Partner remains free to sell at any price(s) it chooses and (b) to all forms of Electronic Communications containing Price Information, regardless whether any such Electronic Communication consists of advertising, promotion, proposal, quotation or otherwise (individually and collectively, an offer ) made by or on behalf of a Partner for any or all of the EMAP Products (collectively, Electronic Advertising ). For purposes of this Policy: Price Information means information regarding price, whether, express or implied, such as a discrete price, price formula, reference to price or anything related to price (e.g., representations or inferences regarding savings, discount or value) and anything Plantronics considers to be the substantive equivalent; and Electronic Communications means the transmission or conveyance of written or verbal information which (a) can be accessed directly through any hypertext link, by any other method which uses hypertext transfer protocol (http) or anything which Plantronics considers to be the substantive equivalent or (b), to the extent not covered by the preceding description, is provided by or on (i) one or more mobile apps or mobile sites for devices (such as tablets and smartphones), (ii) social media (e.g., Twitter feeds and Facebook), (iii) Internet shopping sites, marketplaces and comparison search engines (CSEs) to which such Partner supplies pricing information (e.g., Google Shopping, Buy.com, ebay, Amazon and PriceGrabber), (iv) electronic solicitations (e.g., texting and ) and (v) all electronic media advertisements (e.g., newsletters and electronic advertisements (e.g., pop-ups and banners)). When applied to websites, this Policy considers both outside-the-cart (or other container) and in-the-cart (or other container) price information to be subject to this Policy. Policy Violations Each Partner remains free to establish its own resale prices. However, Plantronics, without assuming any liability, will take one or more of the following actions immediately following verification to Plantronics satisfaction that a Partner has violated this Policy by using any form(s) of Electronic Advertising to offer one or more of the EMAP Products at a net adjusted price (defined below) less than the corresponding EMAP(s) then in effect: Electronic Minimum Advertised Price (EMAP) Policy - 1

2 For the first violation during the Policy Period: Such Partner will remove or stop or cause to be removed or stopped the offending Electronic Advertising (if Plantronics determines that it or they can be) after receiving notice from Plantronics: (a), in the case of a violation involving the Internet, no later than 1 day later, and (b), in all other cases, no later than 3 days later or by the conclusion of the time period otherwise specified by Plantronics (collectively, the Cure Period ). For the second violation during the Policy Period: In the event that (a) all the offending Electronic Advertising that caused the first violation is not removed or stopped (if Plantronics determines that it or they can be) within the Cure Period or (b) such Partner otherwise violates this Policy a second time during the Policy Period, such Partner s privileges to purchase each stockkeeping unit ( SKU ) in the product family involved in the second violation (as determined by Plantronics) will be immediately revoked, so that all pending Partner orders (even if previously accepted) will be cancelled and no new orders will be accepted for each such SKU for a period of 90 days commencing on a date established by Plantronics. For the third violation during the Policy Period: In the event that (a) the offending Electronic Advertising that caused the second violation is or are not removed or stopped (if Plantronics determines that it or they can be) within the Cure Period or (b) such Partner otherwise violates this Policy a third time during the Policy Period, the privileges of such Partner to purchase each of the products designated by Plantronics will be immediately revoked, so that all pending Partner orders (even if previously accepted) will be cancelled and no new orders will be accepted for any such products and Plantronics in its sole discretion may suspend, revoke or terminate such Partner s eligibility or participation in any one or more other programs. Each violation of this Policy is cumulative through the Policy Period. The consequences of the third violation take effect regardless whether the consequences for the second violation are still running. The same act(s) or failure(s) to act may result in multiple violations. For each Partner purchasing any or all Plantronics products from one or more other Partners, this Policy will be enforced through a Do-Not-Sell List provided to all appropriate Partners. Certain Definitions For purposes of this Policy: Policy Period with respect to a Partner means the time period beginning on the Policy Effective Date and ending on the termination date described in a future notice to such Partner from Plantronics; "net adjusted price" means the price at which an EMAP Product is offered by or for the benefit of a Partner to a customer (potential or actual) after (a) applying all discounts and similar price reductions, (b) excluding certain taxes and shipment charges and (c) giving effect to the value of free or reduced-price bundles. Specifically, net adjusted price will be calculated by: o taking into account all discounts, deductions, rebates and allowances offered or otherwise made available to such customer (regardless of source, whether given or taken at the time of sale or otherwise and considered by Plantronics to be part of such offer or sale); except that an offer using or applying a rebate, coupon or the equivalent (as determined by Plantronics) will not be considered part of net adjusted price if such rebate, coupon or the equivalent is provided by Plantronics or its designee(s) (i) directly to such customer or (ii) to such Partner for provision to and use by such customer; o excluding, if to be paid by such customer, all applicable taxes and all shipping, delivery and insurance charges (However, if the Partner offers to pay any or all of such taxes and such charges that otherwise would be paid by such customer, the amount offered by the Partner will be considered a discount, unless otherwise authorized in this Policy.); o subtracting, in the case of free goods, services and similar benefits provided or made available by the Partner for such customer, the fair market value (as determined by Plantronics) of all such goods, services and benefits (regardless of source, whether given or taken at the time of sale or otherwise and considered by Plantronics to be part of such offer or sale); and o subtracting, in the case of reduced-price goods and services and similar benefits provided or made available by the Partner for such customer, the difference between: (i) the fair market value (as determined by Plantronics) of all such goods, services and benefits (regardless of source, whether given or taken at the time of sale or otherwise and considered by Plantronics to be part of such offer or sale) and (ii) the amount to be paid for such goods, services and benefits. Examples of practices that will be closely examined include, without limitation, the offering or provision of: (a) rebate checks, (b) extended warranties without charge or at reduced rates and (c) free or discounted items. The fair market value for each EMAP Product provided for free or at a reduced price with the purchase of another EMAP Product will be its Electronic Minimum Advertised Price. From time to time, Plantronics may communicate to any or all Partners in writing or electronically what it considers to be the fair market value for particular goods or services. Electronic Minimum Advertised Price Plantronics, at any time, may vary the Electronic Minimum Advertised Price for an EMAP Product or add to or delete from the list of EMAP Products, which may, among other things, be based on whether such product(s) is or are offered or sold under or subject to (a) one or more select Plantronics program(s), (b) any other Plantronics policy, or (c) in any other situation periodically announced by Plantronics. Plantronics will endeavor to provide prior notice of each new EMAP or change in EMAP Products, generally not less Electronic Minimum Advertised Price (EMAP) Policy - 2

3 than 5 days in advance. While Plantronics will communicate each EMAP and change through the price list(s) or product list(s) provided or made available to each Partner electronically or otherwise, such Partner is responsible at all times for making sure it is aware of the appropriate EMAP(s) and which Plantronics are then-designated as EMAP Products. Free or Reduced-Price Shipping Not Considered Discount Notwithstanding anything to the contrary in this Policy, free or reduced-price shipping may be offered by a Partner without it being considered a discount when offered in connection with a purchase of at least one of the EMAP Products, as long as: (a) such offer applies to all other products in the category in which such EMAP Product(s) reside(s) (as determined by Plantronics) and (b) the value thereof is reasonable (as determined by Plantronics). Additional Restrictions A Partner (directly or through another party) using or engaging in any or all of the following terms, descriptions, conditions, offers or activities (or their substantive equivalent as determined by Plantronics) in connection (directly or indirectly) with the offering of any EMAP Product (or, if noted below, any Plantronics product, whether or not one of the EMAP Products) will be deemed in violation of this Policy with the same effect as offering an EMAP Product at less than its Electronic Minimum Advertised Price: prices too low to show or any form of low-price guarantee or the substantive equivalent thereof which are below the then-current price(s) set by Plantronics for the applicable EMAP Product(s) (as determined by Plantronics); except as otherwise expressly permitted by this Policy, offering to match a lower price offered by another seller which price is below the then-current price set by Plantronics for the applicable EMAP Product; in connection with the advertising or promotion of any or all of the EMAP Products: (a) a strike-through of any EMAP(s) regardless whether one or more other prices are shown or (b) the failure to show a price for each EMAP Product depicted, described or to which a reference is otherwise made; offering a discount, coupon or rebate applicable to any or all of the EMAP Products in return for a Facebook Like or the substantive equivalent thereof (as determined by Plantronics); other than as authorized by express written or electronic notice from Plantronics, knowingly or negligently directly or indirectly advertising, promoting or selling any or all items of Plantronics products (or, if so designated by Plantronics, just one or more particular items of Plantronics products) in any or all of the following ways: (a) outside the Partner s designated territory in either the USA or Canada, (b) to anyone for resale (other than to Plantronics); and (c) an online site which is not or is no longer approved by Plantronics. (Notwithstanding the foregoing, such Partner may advertise, promote and sell such products on its own (non-auction) website, as long as such Partner (i) has not received notice from Plantronics disapproving of such site and (ii) otherwise complies with this Policy and each agreement between Plantronics and such Partner); if a price for a EMAP Product is shown in Electronic Advertising permitted by this Policy: (a) the price for such product does not appear on the initial webpage mentioning, depicting or describing such product or (b) such price varies with respect to such product (exclusive of applicable taxes and all shipping, delivery and insurance charges) across any or all of (i) such initial webpage, (ii) the in-the-cart (or other container) price and (iii) the substantive equivalent of either or both as determined by Plantronics; (a) the failure to expressly exclude any and all of EMAP Products (using a disclaimer provided by Plantronics or, if not so provided, a disclaimer acceptable to Plantronics) from an offer of a coupon, discount or rebate that applies to all or many of the products offered by such Partner or in a category of products offered by such Partner relevant to the EMAP Products (such as headsets) when such offer has or would have the effect of reducing the price of any or all EMAP Products below the applicable EMAP(s) or (b) the use of any statement(s) or material(s) promoting such coupon, discount or rebate that mentions, uses, depicts or otherwise refers to any EMAP Product, except for such disclaimer; an invitation to click, visit a location (such as a website, store or showroom) or otherwise communicate to obtain a price, except that indicating the ability of customers to make specific inquiries by telephone or to obtain a price is permissible, as long as no automated call or bounce-back pricing is used; the promotion to group purchasers, except at price(s) no less than each applicable EMAP; advertising or promoting a trade-in offer for any or all Plantronics products and other products in connection with or applicable to any or all EMAP Products, regardless whether a specific trade-in price or value is advertised or promoted; and except as otherwise directed by this Policy, on any or all proposals and quotations provided to or prepared for the benefit of any or all of such Partner s potential and actual customers in connection with the offer of any or all EMAP Products (individually and collectively, Customer Communications ), the failure of such Partner to itemize the price charged for each of the products and services shown or referred to on such Customer Communications, regardless whether such Customer Communications contain(s) any reference to any or all EMAP Products. Policy Exemptions As long as a Partner does not otherwise violate this Policy, such Partner using Electronic Advertising to offer to a potential or actual customer one or more EMAP Products below its or their respective EMAP(s) is exempt from this Policy and will not violate it, if such Electronic Minimum Advertised Price (EMAP) Policy - 3

4 offer is consistent with an exemption described below (collectively, the Exemptions ). The Exemptions are as follows and apply to the offering which is part of a potential or actual sale by such Partner: individualized sent or live telephone communication in direct response to a specific customer initiated inquiry; bona fide advertising and promotional materials that cannot reasonably be modified prior to the Policy Effective Date or the effective date of a change in the EMAP(s), the EMAP Products or this Policy until such time that it is reasonable to revise such materials (as determined by Plantronics) to be consistent with this Policy; the offer of one or more EMAP Products based on a bona fide proposal or quotation given prior to (a) the Policy Effective Date or (b) the effective date of a change in the EMAP(s), the EMAP Products or this Policy which makes such proposal or quotation non-compliant with this Policy (as long as it complied with this Policy at the time such proposal or quotation was given); provided that, in either case, (i) such proposal or quotation is effective for no longer than 30 days after the Policy Effective Date or 10 days after the effective date of such change and (ii) each of the EMAP Products subject to such accepted proposal or quotation will be delivered to such customer no later than 30 days after such acceptance; the offer under one or more special programs (if any) designated by Plantronics; (a) a card benefit consisting of a discount, credit or rebate associated with the use of a specified credit or debit card or (b) a coupon or other discount that in either case would, after its, application result in offer price(s) for any or all EMAP Products below its or their respective EMAP(s), as long as (i) such card benefit or coupon or other discount may be applied to all or almost all of the products offered by such Partner or, in the case of a category-wide sale (such as headsets), all or almost all of the other products in the category and (ii) none of the statements or materials promoting such card benefit or coupon or other discount mentions, uses, depicts or otherwise refers to any or all EMAP Products; the accrual of points or other things of value ( Loyalty Points ) in connection with the purchase of any or all Plantronics products and the application of Loyalty Points, even if such application results in price(s) for any or all EMAP Products below its or their respective EMAP(s), as long as: (a) Loyalty Points may be accrued and applied to all or almost all of the products offered by such Partner and (b) the everyday accumulation rate for Loyalty Points applicable to the purchase of any or all Plantronics products is no more than that applicable to all other brands of products offered by such Partner (regardless of category). (Notwithstanding the foregoing, such Partner may offer for a reasonable, limited time or times (as determined by Plantronics) a greater accumulation rate applicable to the purchase of any or all Plantronics products, provided that such offer applies to one or more products of at least one other brand in the same category as such Plantronics product(s) (as determined by Plantronics)); the offer of one or more units of any or all used EMAP Products, rather than new, such as demonstration or display units; the offer to an employee of such Partner for his or her personal use (and not for resale), provided that such offer is reasonable (as determined by Plantronics); and the offer of one or more units of any or all EMAP Products to government agency end users through a General Services Administration agreement or otherwise as pre-approved in writing by Plantronics from time to time. If a Partner otherwise violates this Policy or Plantronics determines that such Partner does not qualify for or abused any or all of the Exemptions, such Exemption(s) will be deemed withdrawn by Plantronics as to such Partner retroactive to the Policy Effective Date or such other date specified by Plantronics. Additional Policy Terms and Conditions Effective as of the Policy Effective Date, this Policy supersedes and cancels each other policy from Plantronics regarding minimum advertised prices and/or resale prices for any and all Plantronics products. At any time and for any reason(s) deemed appropriate by Plantronics (including without limitation based on the request of a Partner for Plantronics to consider such things as, but not necessarily restricted to, limited-time promotional offers for an event in which such Partner is participating or otherwise), but, in no case other than as the unilateral decision of Plantronics, this Policy may be modified, extended, waived, suspended, discontinued or rescinded in whole or part by notice from Plantronics including without limitation during any Plantronics-designated promotional period(s). Any such action(s) will be effective immediately unless otherwise stated by Plantronics. If Plantronics negotiates a price with a customer that is less than the EMAP(s) and provides a Partner the opportunity to fulfill one or more orders at such price, acceptance of such opportunity by Partner 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 Plantronics, be given in writing or electronically (including without limitation posting on a website) and (b) will be considered to be received as designated by Plantronics. The term Explanation (which also may be referred to as Frequently Asked Questions, FAQs or the equivalent as determined by Plantronics), if any, accompanying or associated with 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 Plantronics will control. Plantronics will not discuss any conditions of acceptance related to this Policy. In addition, Plantronics 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 Partner and Plantronics, nothing therein shall constitute an agreement by such Partner Electronic Minimum Advertised Price (EMAP) Policy - 4

5 to comply with this Policy, as, among other things, this Policy is not and should not be construed to be one of the Plantronics 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 person at Plantronics responsible for this Policy (the EMAP Administrator ): EMAP Administrator Plantronics, Inc. 345 Encinal Street Santa Cruz, CA Fax: (831) Only the EMAP Administrator is authorized to answer questions regarding, to comment on, or to accept information regarding potential violations of this Policy. Electronic Minimum Advertised Price (EMAP) Policy - 5