INTERNET MINIMUM ADVERTISED PRICE POLICY
Effective: September 1, 2020
AVAIL Vapor ("AVAIL") is a leading premium eliquid manufacturer in the United States. AVAIL e-liquids are developed and produced in a state-of-the-art ISO certified class 6 clean facility to the highest standards.
Originating in Richmond, Virginia, AVAIL has over 98 retail locations across the middle and south Atlantic region of the US. Exceptional quality and amazing flavor are the hallmarks of AVAIL vape flavors. Each ingredient in their products, from the nicotine base to each individual flavor element, has been conscientiously sourced and blended with meticulous care, resulting in an unparalleled consistency in their eliquid.
To preserve the value of the AVAIL brand and to properly position AVAIL’s products in today’s market, AVAIL is announcing that, effective September 1, 2020, AVAIL has instituted the following Unilateral Internet Minimum Advertised Price (“IMAP”) Policy for all AVAIL retailers located in the United States (“Retailers” or “You”):
1. In a unilateral policy decision concerning the marketing of its products, AVAIL has determined that AVAIL-branded products should not be advertised on the internet at a price less than AVAIL’s retail price (MSRP) per AVAIL’s price list (the “Designated IMAP Price”). Items that have transitioned to closeout status are not subject to this IMAP Policy.
2. This Policy applies to internet advertised prices (“Internet Advertised Price”). An Internet Advertised Price is the price that a Retailer advertises on the internet for AVAIL’s products in Retailer-initiated media messages aimed at the general public. By way of example, Internet Advertised Prices displayed on the following are covered by the Policy:
Any website accessible to the general public, including traditional retailers, e-tailers, vendors, portals, shopping sites, auction sites, any webpage with a shopping cart prior to sale, or any link to a web-based shopping cart; Banner, pop-up, and pop-under advertisements; Sponsored links, websites operated by, affiliated with, or linked to a retailer’s website(s), including links from within the body of an e-mail advertisement that direct the recipient to a website accessible to the general public.
A “click for price,” “view price in cart,” “mouse over for price,” or “add to cart for lowest price” button, or any other device directing potential customers to place the product in a cart for the lowest price. This Policy also applies to webpages directing potential customers to call or email for the best price.
3. This Policy does not apply to “non-internet advertisements,” “price quotes,” or “sales prices,” as those terms are defined below.
A “non-internet advertisement” is a Retailer-initiated media message and/or message aimed at the general public through a medium other than the internet. For example:
A. Print advertising, including newspapers, magazines, print inserts, coupons, and brochures;
B. Broadcast advertising, including radio and television;
C. Direct advertising, including catalogs, newsletters, direct mail pieces, flyers, and broadcast faxes, whether mailed, hand-delivered, or shipped in-box with the product;
D. E-mail advertisements sent to individual customers. Note, however, that (i) blast emails and (ii) links from within the body of an e-mail that direct the recipient to a website that is accessible to the general public are both covered by the Policy.
A “price quote” is the price that a Retailer communicates to a particular customer who inquires about AVAIL products, whether the inquiry or the quote was transmitted orally, by telephone, by email, or by letter. Price quotes may be subject to AVAIL’s electronic minimum retail price (“eMRP”) policy.
A “sales price” is the price that a customer pays a Retailer for AVAIL’s products, netted down to account for any discounts or other consideration from the Retailer. Sales prices may be subject to AVAIL’s eMRP policy.
4. This Policy applies to all AVAIL-branded products, regardless of whether they are marketed under the AVAIL’s brand name. For clarity, this IMAP Policy applies to any of AVAIL’s products that have been white-labeled by the Retailer.
5. A violation of this IMAP Policy occurs if a Retailer’s Internet Advertised Price is below the Designated IMAP Price for that model of AVAIL’s product. A violation of this IMAP Policy also occurs if a Retailer sells or provides AVAIL’s products to a reseller or other third party whose Internet Advertised Price is below the Designated IMAP Price for that model of AVAIL’s product. AVAIL has instituted the following “three-strike” policy:
First Violation: A first violation will result in an emailed notice from AVAIL identifying the violation and the required remediation. Any identified violations are to be corrected within twenty-four (24) hours. As proof of remediation, the Retailer will send AVAIL an email with the URL link(s) showing the correction. Failure to correct identified violations may result in the issuance of a second violation notice.
Second Violation: A second violation will result in an emailed notice from AVAIL identifying the violation and the required remediation. Failure to correct identified violations within twenty-four (24) hours will result in AVAIL placing a hold on the Retailer’s orders until the violation is corrected. As proof of remediation, The Retailer will send AVAIL an email with the URL link(s) showing the correction.
Third Violation: A third violation will result in an emailed notice from AVAIL identifying the violation. AVAIL will cancel all open orders, refuse to accept new orders, and terminate the relationship with the Retailer.
AVAIL will consider each violation based on its own facts, and any decision by AVAIL to discontinue the supply of AVAIL product cannot be appealed. Retailers will have 24 hours from transmission of the e-mail notice to correct any and all identified violations. AVAIL may unilaterally decide to review a Retailer’s status—including any suspensions or terminations—after an independently determined period of time.
6. AVAIL may revise this IMAP Policy or its price list at any time and in any respect. When and if it does, best efforts will be made to provide those revisions to You. However, AVAIL takes no responsibility for ensuring that You receive updates or revisions to the IMAP policy and IMAP prices. The latest versions will be available to You on AVAIL’s website at www.availvapor.com/IMAP.
Retailers are free to determine on their own the prices at which they will advertise AVAIL’s products. Nothing in AVAIL’s IMAP Policy or price list is to be construed as an agreement between AVAIL and any Retailer on the resale price of AVAIL’s products. AVAIL does not seek and will not accept any such agreement. To be eligible for uninterrupted supply of AVAIL’s products, however, a Retailer must be in compliance with AVAIL’s IMAP Policy. If any Retailer believes that any person associated with AVAIL has attempted to depart from this Policy by attempting to agree or agreeing on a price at which the Retailer will advertise, quote, or sell an AVAIL product, then the Retailer should immediately notify AVAIL in writing at the address provided in Paragraph 11, below.
8. AVAIL is not asking or requiring Retailers to agree to any aspect of this IMAP Policy. AVAIL is implementing the IMAP Policy as its own policy and advising Retailers that there will be certain consequences if they advertise AVAIL’s products on the internet at prices less than the applicable Designated IMAP Price. Importantly, Retailers remain free to determine if they wish to follow AVAIL’s IMAP Policy or not.
9. Only AVAIL can determine if a violation of this Policy has occurred, and AVAIL alone is responsible for enforcing its IMAP Policy when it determines that the Policy has been violated. The details of AVAIL’s enforcement decisions will be strictly between the Retailer that has violated the IMAP Policy and AVAIL. AVAIL’s salespeople are not allowed to discuss these details with other Retailers, and they cannot modify the Policy’s provisions.
10. AVAIL has unilaterally created certain limited exceptions to this IMAP Policy. Internet Advertised Prices for the following product categories are not subject to this Policy:
A. Sales of products discontinued by the factory. Factory authorized closeout items and overstock products.
B. AVAIL authorized promotions. From time to time, AVAIL may authorize Retailers to advertise specific products on the internet at a price below the Designated IMAP Price for a specified period of time.
C. Private Consumer Listings. Products that are marketed to a private consumer listing not available to the general public.
11. If you are in doubt as to whether You are in compliance with AVAIL’s IMAP Policy, we encourage You to contact AVAIL’s Internet Minimum Advertised Price Policy Administrator by e-mail at [email protected]
12. AVAIL has unilaterally implemented this IMAP Policy in accordance with its right to choose the Clients with whom it wishes to work. Just as a Client may cease purchasing AVAIL products at any time and for any reason, AVAIL reserves its right to cease doing business with any Client with or without cause.
13. This IMAP Policy is effective immediately and will remain in effect until further written notice from AVAIL’s IMAP Administrator. AVAIL reserves the right to terminate or amend this Policy in its sole discretion at any time without prior notice. This IMAP Policy supersedes all prior policies established by AVAIL on the same subjects.
14. This Policy only concerns the internet advertised prices of AVAIL products. All other terms and conditions of sale remain in effect, as do any other AVAIL distribution policies provided to You.
15. To further explain the terms of this Policy, AVAIL is providing Retailers with an IMAP Policy Question and Answer document, which answers many questions that a Retailer may have about this Policy. The document is incorporated herein as an integral part of AVAIL’s IMAP Policy.