Authorized Dealer Resale Price Policy (RPP)
Tork Lift International, Inc. (“TLI”) has unilaterally determined to implement this Authorized Dealer Resale Price Policy (RPP) effective as of February 14, 2015 (the “Policy Effective Date”), which (a) is applicable to each TLI-authorized dealer located in either or both of the United States of America (“USA”) and Canada (individually, a “Dealer”) and (b) establishes a minimum resale price ("Minimum Resale Price” or “MRP” and referring to either the singular or the plural or both, “MRP(s)”) for each of the TLI products as specified on the price list(s) or product list(s) provided or otherwise made available to such Dealer by TLI or otherwise communicated by notice from TLI intended for such Dealer (individually, a “Covered Product” and collectively, “Covered Products”):
Violations of this Policy
Although each Dealer remains free to establish its own resale prices, TLI, without assuming any liability, will take one or more of the following actions immediately following verification by TLI to its satisfaction that such Dealer has violated this Policy: (a) by (i) making available in any way (whether through advertising, promotion, proposal, quotation or otherwise and regardless of place or medium used) (individually and collectively, “offering” and its variants), (ii) selling (whether face-to-face, on-premise, online, through a catalog or otherwise) or (iii) 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 TLI from time to time and communicated to such Dealer or (b) by being deemed to have so offered, sold or provided:
For the first violation during the Policy Period: If such violation is due to:
(A) an offer, such Dealer, after receiving notice of such violation from TLI, will remove or stop or cause to be removed or stopped the offending reference(s), text or conduct (if TLI determines that it or they can be) within the Allotted Period (for purposes of this Policy, the “Allotted Period” means the time period specified in the notice of violation provided by TLI to such Dealer, which typically will be one of the following: [1] no later than one (1) business day (usually for a violation involving the Internet); [2] no later than three (3) business days (generally for all other cases); or [3] by the conclusion of the period otherwise specified by TLI) or
(B) an offending reference or references, text or conduct that TLI determines cannot be removed or stopped, a sale or otherwise providing one or more of the Covered Products, TLI will provide notice of such violation to such Dealer.
For the second violation during the Policy Period: In the event that (A) the offending reference(s), text or conduct that caused the first violation is or are not removed or stopped (if TLI determines that it or they can be) within the Allotted Period or (B) such Dealer otherwise violates this Policy a second time, effective as of the date specified in notice from TLI to such Dealer and continuing for the next forty-five (45) days, the authorization of such Dealer to purchase each stock-keeping unit (“SKU”) in the product family involved in the second violation (as determined by TLI) will be immediately revoked by TLI, so that all pending orders (even if accepted) from such Dealer will be cancelled and no new orders will be accepted from such Dealer for each such SKU.
For the third violation during the Policy Period: In the event that (A) the offending reference(s), text or conduct that caused the second violation is or are not removed or stopped (if TLI determines that it or they can be) within the Allotted Period after receiving notice of the second violation from TLI or (B) such Dealer otherwise violates this Policy a third time, effective as of the date specified in notice from TLI to such Dealer and continuing until TLI provides notice to such Dealer otherwise, if ever, the authorization of such Dealer to purchase any or all of the TLI products designated by TLI (the “Designated Products”) will be immediately revoked by TLI, so that all pending orders (even if accepted) from such Dealer will be cancelled and no new orders will be accepted from such Dealer for any or all of the Designated Products.
For each additional violation during the Policy Period: In the event that, after the third violation of this Policy by such Dealer, either or both of the following is or are relevant: (A) the Designated Products do not include all TLI products or (B) TLI provides notice to such Dealer that TLI has re-authorized such Dealer to purchase any or all of the Designated Products, then each act or failure to act of such Dealer that constitutes a violation of this Policy (or is deemed by TLI to be such a violation) will receive the same treatment as if a new third violation had then occurred.
Each violation of this Policy is cumulative through the Policy Period. Beginning with the third violation, the consequences of each violation take effect regardless whether the consequences for the preceding violation(s) are still running. The same act(s) or failure(s) to act may result in multiple violations. For each Dealer purchasing any or all TLI products from anyone else (such as a distributor), this Policy will be enforced through a Do-Not-Sell List.
Certain Definitions
For purposes of this Policy: (a) the “Policy Period” with respect to a Dealer means the time period beginning on the Policy Effective Date and ending on the termination date described in a future notice to such Dealer from TLI; (b) “Do-Not-Sell List” means notice from TLI which indicates that (i) one or more individuals or entities is or are not authorized by TLI to promote or resell TLI products or (ii) the designation of a reseller as an Authorized Dealer has been revoked in whole or part with respect to all TLI products or revoked only with respect to certain of such products; (c) the “Authorized Dealers” means, collectively, each reseller designated as such by notice from TLI, but only to the extent that such reseller is not on the then-current Do-Not-Sell List (individually, an “Authorized Dealer”); and (d) "net adjusted price" means the lower of the price at which a Covered Product is offered by or for the benefit of a Dealer to a customer (potential or actual) or that actually paid to or for the benefit of a Dealer 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:
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taking into account all discounts, deductions, rebates and allowances offered or given to such customer (regardless of source, whether given or taken at the time of sale or otherwise and considered by TLI to be part of such offer or sale), except that an offer or sale using or applying a rebate, coupon or the equivalent (as determined by TLI) will not be considered part of net adjusted price if such rebate, coupon or the equivalent is provided by TLI or its designee(s) (A) directly to such customer or (B) to such Dealer for provision to and use by such customer);
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excluding, if to be paid or paid by such customer, all applicable taxes and all shipping, delivery and insurance charges (However, if such Dealer offers to pay or pays any or all of such taxes and such charges that otherwise would be paid by such customer, the amount so offered or paid by such Dealer will be considered a discount, except as otherwise provided in this Policy.);
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subtracting, in the case of free goods, services and similar benefits for such customer offered or provided by such Dealer, the fair market value (as determined by TLI) of all such goods, services and benefits (regardless of source, whether given or taken at the time of sale or otherwise and considered by TLI to be part of such offer or sale); and
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subtracting, in the case of reduced-price goods and services and similar benefits for such customer offered or provided by such Dealer, the difference between: (A) the fair market value (as determined by TLI) of all such goods, services and benefits (regardless of source, whether given or taken at the time of sale or otherwise and considered by TLI to be part of such offer or sale) and (B) the amount to be paid or actually paid for such goods, services and benefits.
The fair market value for each Covered Product provided for free or at a reduced price with the purchase of another Covered Product will be its MRP.
Minimum Resale Price
TLI, at any time, 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(s) is or are offered or sold under or subject to one or more select TLI program(s) or any other TLI policy or in any other situation announced by TLI from time to time. TLI 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 TLI will communicate each MRP and such change through the price list(s) or product list(s) provided or made available to each Dealer by TLI or otherwise communicated by notice from TLI intended for such Dealer, each Dealer 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 may be offered or provided by a Dealer 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, provided that, as determined by TLI: (a) such offer or provision applies to all other products in the category in which such Covered Product or such Covered Products reside(s) and (b) the value thereof is reasonable.
Additional Restrictions
A Dealer (directly or through another party on behalf or for the benefit of such Dealer) using or engaging in any or all of the following terms, descriptions, conditions, offers or activities (or the substantive equivalent of any or all of them as determined by TLI) in connection (directly or indirectly) with the offering or sale of any or all of the Covered Products (or, if so noted below, any or all TLI products, regardless whether it or they is or are one or more of the Covered Products) will be deemed to be a violation of this Policy with the same effect as offering or selling a Covered Product at less than its Minimum Resale Price:
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using the terms “lowest price, the “lowest prices” or “prices too low to show,” any form of low-price guarantee or the substantive equivalent (as determined by TLI) of any or all of these terms or concepts;
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offering to match a lower price offered by another seller;
Authorized Dealer Resale Price Policy (RPP) - 2
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in connection with the advertising, promotion or sale of any or all of the Covered Products: (a) a strike-through of any MRP(s) regardless whether one or more other prices is or are shown or (b) the failure to show a price for each of the Covered Products depicted, described or to which a reference is otherwise made;
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other than as expressly authorized by TLI, with respect to any or all items of TLI products (or, if so designated by TLI, just one or more particular items of TLI products), knowingly or negligently directly or indirectly (a) advertising, promoting or selling in either or both of the following ways: (i) outside the USA and Canada and (ii) online in any fashion (unless and only to the extent each website used for such purpose by such Dealer is expressly approved by TLI for such use and which approval has not been rescinded by TLI in whole or part) and (b) selling in any or all of the following ways: (i) to anyone for resale other than to any or all of the Authorized Dealers and TLI (such Dealer may drop ship to one or more end users (but not resellers) on behalf of any or all the Authorized Dealers, so long as such Dealer has not received TLI notice to the contrary which rescinds the approval of TLI therefor), (ii) to each individual and entity appearing on the then-current Do-Not- Sell List (including without limitation drop shipping on behalf thereof), except to the extent as may be permitted therein and (iii), except as otherwise allowed by this Policy, to anyone other than actual and prospective end user purchasers (but not resellers) of any or all item(s) of the TLI products permitted by TLI, including without limitation to the Special Accounts (for purposes of this Policy, the “Special Accounts” means, collectively, each individual or entity so designated by notice from TLI);
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with respect to (a) each of the Special Accounts and (b) each individual and entity restricted on the Do-Not-Sell List to the extent of such restriction, doing any or all of the following in its or their entirety or in a manner inconsistent with such restriction regarding any or all of the TLI products affected: (i) failing to cancel all pending orders (even if accepted), (ii) accepting any new order(s) and (iii) otherwise supplying or, on behalf thereof, drop shipping;
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if a price for a Covered Product is shown in Internet advertising or promotion or as part of an Internet sale permitted by this Policy and (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, (iii) the checkout price and (iv) the substantive equivalent of any or all of them as determined by TLI;
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an invitation to click, rollover, call, e-mail, visit a location (such as a website, store or showroom) or otherwise communicate to obtain a price;
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the promotion or sale to group purchasers, except at price(s) no less than each applicable MRP;
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advertising or promoting a trade-in offer for any or all TLI product(s) or any other product(s) in connection with or applicable to any or all of the Covered Products, regardless whether a specific trade-in price or value is advertised or promoted;
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except as otherwise directed by this Policy, on any or all proposals, quotations, contracts, invoices and receipts
provided to or prepared for the benefit of any or all of such Dealer’s potential and actual customers in connection with the offer or sale of any or all of the Covered Products (individually and collectively, “Customer Communications”), the failure of such Dealer 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 of the Covered Products; and
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one or more tactics which TLI determines is or are intended to circumvent application of this Policy.
The Exemptions
As long as a Dealer does not otherwise violate this Policy, such Dealer offering or selling to a potential or actual customer one or more of the Covered Products during the Policy Period 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 (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 Dealer:
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bona fide advertising and promotional materials (including without limitation printed catalogs) that cannot reasonably be modified prior to the Policy Effective Date or the effective date of a change in the MRP(s), the Covered Products or this Policy until such time that it is reasonable to revise such materials (as determined by TLI) to be consistent with this Policy;
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each bona fide written contract between such Dealer and a customer that became effective (a) prior to February 11, 2015 (the “Policy Announcement Date”) or (b) after the Policy Announcement Date, if performance by such Dealer under such contract is completed prior to the Policy Effective Date;
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in the case of a change in the MRP(s), the Covered Products or this Policy, each bona fide written contract between such Dealer and a customer that became effective the day before such change is announced by TLI;
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the offer or sale of one or more of the Covered Products based on a bona fide proposal or quotation given prior to (a) the Policy Announcement Date or (b) the effective date of a change in the MRP(s), the Covered Products or this Policy which makes such proposal, quotation or sale non-compliant with this Policy (as long as, if this Policy was in place at the time such proposal, quotation or sale was given or made, it complied with this Policy), provided that, in either case, (i) such proposal or quotation is effective for no longer than thirty (30) days after the Policy Effective Date or ten (10) days after the effective date of such change and (ii) each of the Covered Products subject to such accepted proposal or quotation will be delivered to such customer no later than thirty (30) days after such acceptance;
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the offer or sale under one or more special programs (if any) designated by TLI;
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(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 or sale price(s) for any or all of the Covered Products below its or their respective MRP(s), as long as: (i) such discount, credit, rebate, coupon or other discount may be applied to all or most of the products offered by such Dealer or, in the case of a category-wide sale (such as recreational vehicle equipment), all or most of the other products in the category and (ii) none of the statements or materials promoting such discount, credit, rebate, coupon or other discount mentions, uses, depicts or otherwise refers to any or all of the Covered Products, unless two (2) or more competitive products of other suppliers (as determined by TLI) are mentioned, used, depicted or otherwise referred to in such statements or materials with the same prominence as that for the each such TLI product;
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the accrual of “points” or other things of value (“Loyalty Points”) in connection with the purchase of any or all TLI products and the application of Loyalty Points, even if such application results in price(s) for any or all of the Covered Products below its or their respective MRP(s), as long as: (a) Loyalty Points may be accrued and applied to all or almost all of the products offered by such Dealer; (b) the accumulation rate for Loyalty Points applicable to the purchase of any or all TLI products is no more than that applicable to all or almost all other brands of products offered by such Dealer (as determined by TLI regardless of category); and (c) none of the statements or materials promoting Loyalty Points mentions, uses, depicts or otherwise refers to any or all TLI products, unless two (2) or more competitive products of other suppliers (as determined by TLI) are mentioned, used, depicted or otherwise referred to in such statements or materials with the same prominence as that for the each such TLI product;
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the offer or sale of one or more units of any or all of the Covered Products that are used, rather than new, such as demonstration or display units; and
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the offer or sale of one or more items of the Covered Products to an employee of such Dealer for his or her personal use (and not for resale), provided that such offer is reasonable (as determined by TLI).
If such Dealer otherwise violates this Policy or TLI determines that such Dealer does not qualify for or abused any or all of the Exemptions, such exemption(s) will be deemed withdrawn by TLI retroactive to the Policy Effective Date or such other date specified by TLI. Except in extraordinary circumstances, TLI will not consider any requests for other exemptions.
Additional Policy Terms and Conditions
Effective as of the Policy Effective Date, this Policy supersedes and cancels each other policy applicable to each Dealer from TLI, if any, regarding minimum advertised prices and resale prices or either thereof for any or all TLI products. For any reason(s) deemed appropriate by TLI (including without limitation based the request of a Dealer for TLI to consider such things as, but not necessarily restricted to, limited-time promotional offers for an event in which such Dealer is participating or otherwise), but in no case other than as the unilateral decision of TLI, this Policy may be modified, extended, waived, suspended, discontinued or rescinded in whole or part by notice from TLI at any time (including without limitation during any TLI-designated promotional period(s)), with such action(s) effective immediately or as otherwise described by TLI. If TLI negotiates a price with a customer that is less than the MRP(s) and offers a Dealer the opportunity to fulfill one or more orders at such price, acceptance by such Dealer 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 TLI, be given in writing or electronically (including without limitation posting on a website) and (b) will be considered to be received as designated by TLI. The Explanation (which also may be referred to as “Frequently Asked Questions,” “FAQs” or the equivalent as determined by TLI), 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 TLI will control.
TLI will not discuss any conditions of acceptance related to this Policy. In addition, TLI 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 Dealer and TLI or such Dealer and the distributor(s) (if any) from which such Dealer obtains any or all TLI products, nothing therein shall constitute an agreement by such Dealer to comply with this Policy, as, among other things, this Policy is not and should not be construed to be one of the TLI Policies (as such term is or may be used in any or all of such agreements) where such compliance is mandatory.
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 must be in writing and are to be addressed to the following persons at TLI responsible for this Policy (“Policy Administration”):
Policy Administration, Tork Lift International, Inc., 322 Railroad Ave N, Kent, WA 98032 USA e-mail: policyadmin@torklift.com ● Fax: (253) 854-8003
Only Policy Administration or Policy Administration’s designated representative(s) is or are authorized by TLI to answer questions regarding this Policy, to comment on this Policy or to accept information regarding potential violations.