The company ELAN USA CORP shall be hereunder referred to as “ELAN”.
SALES: The Authorized Retailer agrees to sell only the above listed Product Line(s) checked above and only at the location(s) listed on this agreement. Unless otherwise permitted, the Authorized Retailer further agrees to sell the Product Line(s) only to purchasers who are consumers or are end users of the product. The Authorized Retailer agrees to deal only directly with the prospective or actual purchaser of the Product Line(s) and not to offer for sales or sell the Product Line(s) other than through Authorized locations listed below. The Authorized Retailer shall not offer or sell the current year product(s) on any on-line auction site or reseller (i.e. eBay/Amazon or other).
INTERNET AND CATALOG SALES: Elan considers internet and catalog sales are to be treated as a separate form of distribution. No Authorized Retailer may offer Elan/Alpina/Rottefella Branded products on the internet without the prior written approval of Elan. No Elan/Alpina/Rottefella Branded product, images thereof or Elan/Alpina/Rottefella logos are to appear in any internet advertising or promotional materials without the prior written approval of Elan. If an Authorized Retailer has been approved by Elan as an on-line seller, Elan reserves the right to review and approve or disapprove all content prior to being posted on line or in catalog.
Dealers approved for Catalog and or Internet Sales are only authorized for sales in the USA. Dealers may not ship Elan/Alpina/Rottefella Branded products outside the United States. Trans shipping to other countries will result in loss of Catalog and or Internet dealership. Dealers who do not comply with these standards WILL have their dealership revoked. Internet pricing must reflect Elan suggested retails and MAP policies.
ORDERS: Orders will only be accepted on (or in conjunction with) a signed ELAN PRE-SEASON ORDER FORM accepting the terms and conditions of the Authorized Retailer Agreement. Any changes or amendments to pre-season order must be submitted within 30 days of submitting the order to maintain the order status and benefits of a “pre-season” booking and for any qualified discounts to apply. All changes and/or amendments after 30 days of order submission could result in a fifteen-percent (15%) restocking fee. In addition, any orders over 100 pair will be considered a prepack and not subject to revision after May 15th. Either party may terminate this agreement without cause at any time on 30 days written notice to the other party, provided, however, ELAN may terminate this agreement immediately upon Authorized Retailer’s breach of this agreement.
CREDIT: ELAN’s obligations under this agreement are hereby expressly made subject to the complete and continued compliance by the Authorized Retailer with all credit terms, as set forth below and as reflected in the shipping and sales documents of ELAN and all written sales policies of ELAN. Such compliance will be reviewed by ELAN prior to filling each order submitted by the Authorized Retailer and no such order will be filled unless ELAN satisfies itself of such compliance. All invoices from ELAN shall be paid in accordance with their terms. If any amounts are not paid when due, an immediate 5% discount loss will be applied and all amounts owed shall, at the option of ELAN, become immediately due and payable. Interest charges will be added at an interest rate of one percent (1%) per month or part thereof, or the maximum rate allowed by law, whichever is less, commencing from the date such payment is due.
The Authorized Retailer agrees to pay all costs of collection, including reasonable attorney’s fees incurred by ELAN as a result of the failure of the Authorized Retailer to make payments when due. ELAN has the right to obtain, and the Authorized Retailer shall execute upon request, sufficient security agreements and financial statements on inventory and equipment of the Authorized Retailer in order to protect ELAN’s interests. All amounts payable at any time to ELAN, by the Authorized Retailer, shall, at the option of ELAN and upon written notification to the Authorized Retailer, become immediately due and payable, in the event of: insolvency or assignment for the benefit of Authorized creditors by the Retailer; statements or representations made to ELAN by an Authorized Retailer pertinent to its financial condition, which is determined by ELAN to be false or misleading; failure to pay any invoice by the due date.
MINIMUM ADVERTISED PRICE (MAP) POLICY: ELAN has adopted a Minimum Advertised Price (MAP) Policy for all current year products. The terms of this updated policy are through March 1st and is now tiered to represent different milestones during the selling season by model. See details below in Tiered Discount dates and percentages. Certain models (Graphics) will carry over more than one year unchanged and the full MAP policy stays in place. We have implemented MAP pricing to protect retail channels, maintain retail value of product(s), minimize gray market activities, and reduce price wars between retailers. The policy states as follows:
ELAN has built a strong reputation for performance, quality and value within the ski industry. By not adhering to ELAN’s established Minimum Advertised Price (MAP), retailers can have the dramatic effect of diminishing or detracting from the perceived value of ELAN branded products. The internet, with its worldwide impact, has the possibility to cause great harm to our company’s brands if they are advertised at prices that will eliminate any legitimate retail competition. Therefore, by being selected by ELAN as an Authorized Retailer to sell our branded products in a brick-and-mortar store or on the internet, you agree to abide by the following guidelines and restrictions:
This policy applies to all forms of retailer/dealer advertising including mailings, catalogs, displays at consumer exhibitions and shows, and any and all other forms of advertising media, including, without limitation, the Internet and any other electronic network. Electronic mail sent in direct response to a customer inquiry is not considered to be advertising. This policy concerns advertising prices only, and does not relate to actual sales prices of any item. Only ELAN product models that are stocked and sold in the Authorized Retailer’s stores may be advertised, offered, or listed for sale on a retailer’s internet sales website. With respect to specific items being advertised, the MODEL YEAR of Elan skis must be disclosed in all mail order and internet sales advertising including models that carry a two-year graphic, these must be updated for the new year at the end of the seasonal selling cycle.
It is ELAN’s unilateral policy to impose sanctions upon any retailer/dealer whose advertising of the product (or to any distributor who sells to a retailer/dealer whose advertising of the product) contains a price lower than the Minimum Advertised Price (MAP) set forth in the current ELAN products price lists. ELAN does not seek, nor will it accept, any agreement or understanding with you or anyone else with respect to the prices you may charge at any time. This policy applies only to retailer/dealer advertising. This policy may be modified by ELAN from time to time.
Tiered Discount Dates and Percentages allowed:
· After March 1st Tier 1 = 25% off MAP for all in line product
· After April 1st Tier 2 = 35% off MAP for all in line product
· After Oct. 15th Tier 3 = MAP Expires (only on all non-carry over product*)
*most models have a 2 year graphic cycle and must stay on MAP for the full 2 years
FAILURE TO COMPLY WITH MAP POLICY:
First Violation. Should ELAN Authorized Retailer fail to comply with the terms of this agreement, a warning will be issued stating that product(s) are being advertised below MAP. Authorized Retailer shall then comply within twenty four (24) hours.
Second Violation. Upon the second violation a second warning will be issued stating that product(s) are being advertised below MAP. Dealer shall then comply within twenty-four (24) hours. Should Authorized Retailer fail to comply within twenty-four hours, after a second violation, Authorized Retailer’s privileges to order ELAN products and all deliveries shall be suspended for sixty (60) days.
Third Violation. Should Authorized Retailer commit a third violation, or fail to remedy prior violations, Authorized Retailer’s status as an ELAN dealer shall be suspended for one (1) year, and all unpaid balances outstanding to ELAN shall become immediately due and payable. After the suspension period, former dealer would have to once again apply to have its Authorized Retailer status reinstated.
ELAN reserves the right, at its sole discretion, to determine all violations of its MAP policy and, in the sole discretion of ELAN, Dealer’s status as an Authorized Retailer may be revoked at any time, resulting in the permanent loss of Dealer’s dealership.
TRAINING & TECHNICAL SUPPORT BY ELAN: ELAN will provide Authorized Retailer with sales and technical training materials, including, Technical Manual(s), for the purpose of developing and maintaining the expertise of the Authorized Retailer with respect to Product Line(s). ELAN shall have no obligation whatsoever to provide warranties, defense, indemnity or any other support for products that were not originally distributed by ELAN in the USA.
AUTHORIZED RETAILER OBLIGATIONS: Authorized Retailer shall maintain at all times during the ski season (August through March) a complete and representative display and inventory of the current ELAN Product Line(s). Authorized Retailer shall maintain the current technical knowledge of ELAN Product Line(s) as explained in all Technical Manual(s) and materials along with any updates provided by ELAN, and shall maintain and update, as required, the equipment and knowledge required to provide proper technical support for ELAN Product Line(s). Authorized Retailer shall deliver all ELAN Product Line(s) with all warnings, instructions and other documents that are provided by ELAN for distribution with ELAN products, and shall cooperate with ELAN in all consumer information and technical support programs that ELAN may announce from time to time. Authorized Retailer acknowledges that warranty programs, consumer information and technical support are integral to the overall marketing efforts for the Product Line and Authorized Retailer shall implement all current policies of ELAN with respect to warranties, consumer information, technical support and customer satisfaction.
INDEMNIFICATION: ELAN will indemnify and defend Authorized Retailer for liabilities imposed by law to a customer of Authorized Retailer as a direct result of the customer's use of an ELAN BINDING product sold, rented or serviced by Authorized Retailer. The complete terms and conditions of the ELAN BINDING Authorized Retailer Program are stated in the current ELAN BINDING Technical Manual, incorporated herein by reference, which may be modified by ELAN from time to time. Authorized Retailer's cooperation and strict compliance with all requirements of the ELAN Authorized Retailer Program are absolute conditions precedent to consideration for any defense, indemnity or any other benefit. This provision provides the sole remedy against ELAN in the event of a claim or suit against Authorized Retailer, its owners, officers, directors, agents or employees. It supersedes any and all other agreements, representations or obligations regarding insurance, defense, contribution or indemnification, including any which may be stated or referenced in purchase orders or other documents which post-date this agreement, as well as any contribution, defense or indemnity obligations that are imposed by law or equity. The Authorized Retailer Program is not insurance nor is it an offer to provide insurance. Authorized Retailer shall defend and indemnify ELAN, affiliated entities and their owners, officers, investors, agents and employees from all claims, litigation costs, attorney's fees, expenses and other liabilities arising from Authorized Retailer's breach of this Agreement or any addendum.
TERMINATION: This Agreement is not assignable, and any attempt to assign this Agreement or any right hereunder shall immediately void any obligation of ELAN to Authorized Retailer and any assignee. Either party may terminate this Agreement upon thirty (30) days written notice. Upon termination, ELAN shall have no obligation to consider further product orders or to ship outstanding orders.
SOLE AGREEMENT, ADDITIONAL TERMS: This Agreement and its Terms and Conditions shall secede any prior agreements or representations. The terms of this Agreement shall prevail over any terms set forth in any purchase order or shipping document submitted by or on behalf of Authorized Retailer at any time. This Agreement, and all related rights, remedies and obligations, shall be governed by the laws of the State of New Hampshire. Past practice and course of dealings between the parties shall not be used to amend the terms of this Agreement. The failure of either party to perform any terms of this Agreement, or the waiver by either party of any breach, shall not prevent subsequent enforcement of such terms, nor be deemed a waiver of any subsequent breach. This Agreement may not be modified, except in writing, signed by an authorized officer of ELAN. ELAN sales and technical representatives are not authorized to modify or interpret this agreement on behalf of ELAN. If any provision of this Agreement is deemed illegal, invalid or unenforceable, the remainder shall be given full force and effect. The term of this agreement starts January 1 of the year in which it is signed and remains in force until such time that the agreement is replaced or amended.