Addendum to THE BURTON CORPORATION Authorized Dealer Agreement
(United States)
THIS ADDENDUM (the “Addendum”) is entered into as of April 21, 2009 by and between
THE BURTON CORPORATION and its wholly owned brands, located at 80 Industrial
Parkway, Burlington, Vermont 05401 (“BURTON”) and Sierra Snowboards, 920 Hillview
Court. Suite160 Milpitas, Ca. 95035 (“Dealer”).
A. WHEREAS, BURTON and Dealer entered into an Authorized Dealer Agreement (the “Dealer Agreement”) dated May 4, 2004 whereby Dealer is authorized to sell certain BURTON products at its retail location(s) specifically listed in the Dealer Agreement.
B. WHEREAS, per the terms of the Dealer Agreement, Dealer is not authorized to sell BURTON products via the Internet.
C. WHEREAS, BURTON wishes to grant Dealer and Dealer wishes to receive the authorization to sell BURTON products via the Internet based on the terms and conditions contained herein. For purposes of this Addendum, “BURTON products” shall be only those products set forth in Schedule A, attached hereto.
D. WHEREAS, BURTON and Dealer desire to amend certain other sections of the Dealer Agreement as further described herein. NOW THEREFORE the parties agree as follows:
1. Definitions.
a. “Content” means all data pertaining to BURTON products (as set forth in Schedule A) as used on Dealer’s website, including but not limited to, text, pictures, graphics, and sound.
b. “Domain Name” means the domain name for the Website(s) as specified in Section 3 below and registered within the Internet Domain Name System.
c. “Intellectual Property Rights” means any and all known or hereafter known tangible and intangible: (a) rights associated with works of authorship throughout the universe including but not limited to copyrights, moral rights and mask works; (b) trademark, trade dress and
trade name rights and similar rights; and (c) trade secret rights.
d. “Website” means the pages under Dealer’s domain name on the Internet.
e. All capitalized terms not defined herein shall have the meanings assigned to them in the Dealer Agreement.
2. Acknowledgement of Dealer Agreement. The parties acknowledge the existence of the Dealer Agreement and agree that its terms will remain in full 2 force and effect. All the terms and conditions of the Dealer Agreement are incorporated herein by reference and remain unaffected by this Addendum, except to the extent this Addendum grants the Dealer the authorization to sell BURTON products via the Internet. With the exception of the authorization granted hereunder for Internet sales, should any provisions of the Dealer
Agreement and this Addendum conflict, the provisions of the Dealer Agreement
shall control. This Addendum supersedes any previous addendum between the
parties related to this subject matter.
3. Authorized Internet Sales. Dealer will have the right to offer and sell only the BURTON products listed in Schedule A attached hereto on the following website(s) only: www.sierrasnowboards.com (“Online Dealer’s Website(s)”). All incoming links from Burton or its wholly-owned brands’ websites must be directed to a dedicated BURTON brand-specific landing page. In addition to any other remedy BURTON may have pursuant to this Addendum or the Dealer Agreement, the failure of Dealer to abide by any of the terms or conditions of this Addendum shall be considered a material breach of this Addendum and Dealer’s link(s), if any, will be immediately removed from BURTON’s website(s). No competitor logos or products may be displayed on the BURTON landing page.
The authorization to sell via the Internet will be limited strictly to the website(s)
identified above and to the BURTON products which Dealer has purchased via the Dealer Agreement for sale in its retail location(s). Said website will exist as a freestanding, independent entity, separate from outside framed sites and shopping networks. BURTON will have the right, in its sole discretion, to limit the products sold on Dealer’s website. BURTON will also have the right, in its sole discretion, to require Dealer to provide information regarding BURTON products sold on its website, even before such products are actually available for sale. Dealer shall not market, advertise, offer to sell, sell and/or fulfill orders for BURTON products from any co-branded, affiliate or portal websites or locations
(including but not limited to Amazon and auction websites such as eBay or other online auctions) unless Dealer has received BURTON’s prior written approval of such portal.
a. No Shipment of Products outside the U.S. Unless otherwise authorized by BURTON in writing, Dealer will only consummate sales via its Online Dealer Website to addresses within the United States. Dealer will not ship BURTON products outside the United States. Additionally, Dealer will not ship to any U.S. based forwarding addresses or companies for purposes of shipping BURTON products outside of the United States. Any and all international sales of BURTON products via the Internet (including sales to Canada) are specifically prohibited.
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b. Resale Limitations. Dealer may sell BURTON products to consumers directly but will not sell or divert products to any individual or entity for resale or export. Specifically, no BURTON products will be sold to any individual or entity that Dealer might reasonably believe has the intention of reselling the goods or exporting them from the United States. Dealer will institute appropriate security measures to the satisfaction of BURTON to fulfill its obligations under this Section 3. Dealer agrees that it will reimburse the purchase price and all associated freight, taxes and other costs to BURTON for the repurchase of BURTON products by BURTON that were diverted or exported in violation of this
Section 3.
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c. Restricted Products. Dealer understands and agrees that online sales of Coalition, Burton Restricted and Idiom products are prohibited unless prior written approval is received from BURTON. Dealer’s online sales shall be limited to only those Products set forth in Schedule A.
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4. Pricing. Except as permitted in this Section 4, all BURTON products must be sold at or above MSRP. Dealer understands and agrees that all prices for BURTON products must be posted at “$XX.95”” including, but not limited to, for purposes of search engine optimization. a. Range Pricing. Range pricing is not permitted unless it is done on
single styles with BURTON created price ranges. In other words, “Price: $155.95
- $165.00” is not an allowed price representation unless, for example, a set of
luggage has different pricing for each size bag or separate pricing for a limited
fabric option.
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b. Promotional Pricing. Promotional pricing and advertising of
Products by Dealer shall be limited according to the following schedules:
2009 Spring/Summer Product
Dates: Maximum Discount:
Prior to 6/15/09 0%
6/15/09 – 8/1/09 20%
2010 Fall Winter Apparel
(F/W Apparel does not include outerwear, first layer, socks, gloves, bags
and luggage)
Dates: Maximum Discount:
6/15/09 - 12/25/09 0%
12/25/09 - 1/25/10 20%
1/25/10 - 2/12/10 40%
2010 Fall/Winter Product
Dates: Maximum Discount:
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Prior to 2/12/10 0%
2/12/10 - 3/1/10 20%
3/2/10 - 4/1/10 40%
c. Advertising Restrictions. Dealer understands and agrees that BURTON products shall not be advertised at any time (i) as discounted greater than 40% off of MSRP; or (ii) for prices that reflect a discount of greater than 40% off of MSRP, unless otherwise authorized by BURTON in writing. “Advertising” includes, but is not limited to all affiliate sites, promotions, email communications, portals, banners, pop-ups, or any other print or electronic communication.
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5. Coupon, Sale and Discount Prohibitions. Except for the promotional pricing permitted above in Section 4(b), Dealer must exclude all BURTON products from Dealer Website discounts, coupons, and sale offers or any other offer that reduces the price of the BURTON product at the time of the consumer purchase. Year-end payback or discounted/free-shipping offers are permitted. Gift with purchase promotions are prohibited unless pre-approved by BURTON in writing. The following discount and sales methods are strictly
prohibited unless specifically authorized by BURTON. Such prohibited discount and sales methods shall include, but not be limited to the following:
(a) gift with purchase
(b) sales
(c) coupons
(d) portal shopping
(e) co-branding
(f) broken cart discounts
(g) web portals or auctions
(e.g. eBay, Craig’s List,
Amazon, etc…)
(h) live chat or P.M. sales
(i) promotional codes
(j) package deal discounts on current
year product
(k) package deals mating current year
product with past product.
BURTON reserves the right, at its sole discretion, to utilize third-party
enforcement to ensure compliance.
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6. Duration / Termination. This Addendum will remain in full force and effect so long as the Authorized Dealer Agreement remains in full force and effect, for the period, June 1, 2009 through May 31, 2010, except that this Addendum shall terminate immediately upon the expiration or termination of the Authorized Dealer Agreement. This Addendum may, also independently of the Authorized Dealer Agreement, be terminated upon thirty (30) days written notice by either party.
a. The parties specifically acknowledge and agree that strict adherence to
the provisions in Sections 3, 4, and 5 above are important and material portions
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of this Addendum, and that BURTON may, at its sole discretion, immediately
terminate this Addendum and the Authorized Dealer Agreement upon a violation
of those Sections and may immediately invoke the provisions in subsections b
and c below.
b. Upon termination of this Addendum, Dealer agrees to immediately:
(1) Discontinue the sale of BURTON products on any of its Online Dealer Website(s); and
(2) Cease and desist from any further reference to BURTON or its products on any of Dealer’s Online Dealer Website(s).
c. If this Addendum is terminated by BURTON for any reason, BURTON may at its option, elect to:
(1) Repurchase any and all BURTON products that remain in Dealer’s possession at the time of termination. Any such re-purchase by BURTON will be at the price invoiced to Dealer, less a twenty (20%) percent restocking charge;
(2) Immediately remove Dealer’s link from Burton or its wholly-owned brands’ websites;
(3) Rescind any discounts offered to Dealer for current season products, by re-invoicing Dealer at non-discounted prices;
(4) Require all amounts owed to BURTON to be paid within ten (10) business days; and/or
(5) Immediately terminate the Dealer Agreement.
7. Website Standards. Online Dealer’s Website must meet the following minimum standards and contain the following elements (as the case may be):
a. Information Architecture. Clear design, high-quality navigation, search capabilities, high resolution images. Keyword and brand search capabilities. Easy site access to all consumer service telephone numbers, addresses, e-mail addresses, hours of operation and return policies and procedures. b. Order Process. At the time of the customer’s purchase, Dealer must advise the customer of the availability and anticipated ship date of the products
ordered by the customer. Dealer must use a “Shopping Cart” in which a consumer can change quantities and/or remove items, a checkout process that provides a clear statement of all charges including shipping and taxes, and an order confirmation number upon the submission of a completed order that, at a minimum, allows the consumer to track purchased products through Dealer’s consumer service department.
c. Technology Standards. Dealer’s Online Dealer Website(s) must secure data submission and transactions using SSL and with a minimum of 128-bit encryption. Maintain high standard of transaction security as technology advances becomes available. Page load times must remain acceptable by current standards for consumers with high-speed access to the Internet. Website must have browser compatibility with Internet Explorer 6.0 and above. The use of Macromedia’s Flash® platform (or such other comparable technology) should be appropriate and an alternate means of viewing the Online Dealer’s Website
should be provided. Dedicated IS and/or web design and engineering personnel
in-house or web agency that provides dedicated personnel to Dealer.
(1) Unless prior written approval is received from BURTON, Dealer understands and agrees that the official “go live” date for sales by Dealer of all 2010 Burton-branded snowboards, boots, bindings and outerwear is August 3, 2009. Dealer may display, post pricing and
offer for sale all other BURTON product categories upon delivery to Dealer by BURTON.
(2) All content on Dealer’s Website(s) featuring or mentioning BURTON (including all BURTON brands), along with the design of Dealer’s Website link from BURTON’s website, must be submitted to BURTON for review and approval prior to July 15, and in any case prior to commencement by Dealer of any Internet sales of BURTON products. Dealer shall maintain the Website to BURTON’s satisfaction, in accordance with the retail standards set forth in the Dealer Agreement and at BURTON’s instruction.
8. Product Representation.
a. Print and Online Advertising Requirements. Except in accordance with the requirements below, Dealer may not otherwise advertise BURTON products in connection with its Online Dealer Website (e.g. ad space or banners on Amazon.com, eBay, etc…) without the prior written consent of
BURTON.
(1) Dealer’s BURTON landing page(s) shall be organized and arranged as brand specific, as applicable (“Brand Specific”). Products displayed on Dealer’s Brand Specific web pages shall be arranged by their different categories (for instance: snowboards, bindings, boots,
optics and helmets), with different links to pages displaying such products in their applicable category.
(2) Dealer’s Website pages featuring BURTON products may only contain logos, products and descriptions of BURTON branded products, including RED, anon and other BURTON brands as applicable.
(3) Products should be represented using two images, a thumbnail image and a larger image accompanied by the appropriate product description and technical specifications.
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(4) Product descriptions and technical specifications for BURTON products must be accurate and appropriate for each product.
(5) Any products sold by Dealer online that are not current year (e.g. are close-out, discontinued or prior year product) must be conspicuously and proximately labeled as “Past Season,” “Discontinued” or “Closeout” on Dealer’s website.
(6) Any products sold by Dealer online that are not first quality products
(e.g. are “blemished,” “second quality” or otherwise flawed) must be conspicuously and proximately labeled as such on Dealer’s
website.
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(7) BURTON logos, product images and product descriptions must be current and obtained from BURTON or BURTON’s website and may be reproduced by Dealer on its Online Dealer Website without any alteration, at a lesser or identical size, and must be saved in JPEG
format, unless otherwise authorized in writing by BURTON. Dealer may not use any image from BURTON’s website other than BURTON’s logos, product images and product descriptions. (8) Advertising Restrictions. Per Section 4(c) of this Addendum, Dealer
understands and agrees that BURTON products shall not be advertised at any time (i) as discounted greater than 40% off of MSRP; or (ii) for prices that reflect a discount of greater than 40% off of MSRP. “Advertising” includes, but is not limited to all affiliate sites,
promotions, email communications, portals, banners, pop-ups, or any other print or electronic communication.
b. Catalog, Print and Online Advertising Approval.
(1) All print and web advertising (including, but not limited to, email blasts) must have prior approval by BURTON two (2) weeks in advance of use. Dealer must submit final proofs of all proposed print advertising to BURTON prior to releasing any such advertising to any
media outlet. BURTON, in its sole discretion, reserves the right to modify or reject such advertising. All proofs and related materials should be sent to the attention of Stephanie Hauser, Burton North America Sales at Stephanieh@burton.com.
(2) Dealer must submit all Dealer-produced catalogs and direct-mail pieces to BURTON for BURTON’s review and approval at least two
(2) weeks prior to scheduled print date. All catalogs and direct-mail pieces should be sent to the attention of Stephanie Hauser, Burton North America Sales at Stephanieh@burton.com.
9. Inventory.
a. Adequate Product. Dealer must purchase and inventory a comprehensive assortment representing the depth of the BURTON product divisions relevant to the Dealer’s retail market. It is the responsibility of the Dealer to meet and maintain an adequate product assortment as defined by BURTON for the Dealer’s retail market. Dealers should contact their territory sales representatives to discuss adequate and required product assortments.
b. Inventory Representation. Dealer will maintain a full inventory of all products offered for sale on Dealer’s Online Dealer Website. Website must represent all available BURTON product information, provide once daily updates (minimum) to inventory and remove out of stock items from the Online Dealer’s Website.
c. In Stock. Dealer is only authorized to market, advertise and promote those products listed in Schedule A that are actually in Dealer’s current inventory and stock. Dealer is not authorized to market, advertise, promote or sell products not currently in Dealer’s inventory and stock. Dealer shall not rely on special orders to fulfill sales not otherwise reflected in Dealer’s current inventory and stock.
10. Dealer’s Customer Responsibilities.
a. Customer Service. Dealer must provide a toll free consumer service telephone number, provide seven (7) day a week consumer service within normal business hours of operations, and fast and accurate responses to consumer inquiries within twenty-four (24) hours of receipt. Consumer service representatives must have high-quality BURTON product knowledge. Dealer will use its best efforts to provide best in class customer service and BURTON reserves the right to randomly monitor customer satisfaction.
b. Shipping. Dealer will make its best efforts to ship all BURTON products to the consumer within forty-eight (48) hours of the placement of an order at the quoted shipping cost, and will state the anticipated shipping date for any products for sale on its website that would not be available for shipping within said fortyeight (48) hour period. Information must be provided to the consumer regarding the expected arrival of any backordered items within forty-eight (48) hours of consumer order. The consumer must have the option to cancel the order upon notification of the item being on backorder. Dealer will provide a product returns
policy and credit system that is adequate for consumers to return merchandise to the Dealer and receive credit for items purchased through the Dealer’s Website. All freight and applicable sales taxes will be the responsibility of Dealer. Dealer will also be responsible for credit card fees and will implement the appropriate policy to ensure security and confidentiality of all transactions.
11. Business Records.
a. Business Records. Dealer will maintain detailed business records pertaining to all internet sales of BURTON products in such a manner to establish compliance with the terms of this Addendum. Specifically, Dealer will maintain all invoices or other documentation setting forth the name and address of each customer, the date of the order, the date of shipment of the order and the amount charged in total and per unit. Dealer must also provide detailed Website traffic, sales and inventory information specific to BURTON products upon such request.
b. Sell-Through Reports. BURTON may require upon reasonable notice that Dealer provide to BURTON sell-through reports for all Internet sales by Dealer of BURTON products. Reports should be sent in Microsoft Excel format and organized by category. All reports should be sent to the attention of Stephanie Hauser, Burton North America Sales at StephanieH@burton.com.
12. Trademarks. Dealer agrees that it will not sell or display any products on its Website that infringe BURTON’s Intellectual Property rights. a. License. Subject to the terms and conditions of this Addendum, BURTON hereby grants to Dealer a limited non-exclusive, royalty-free, world wide right and license, without the right to sublicense, to use BURTON’s
trademarks, trade names, logos and other product designations (collectively, the “Marks”) for the purposes of creating content directories or indexes. Unless agreed to by BURTON in writing, Dealer has no right to otherwise use the Marks in any of Dealer’s advertising, publicity or promotion, or express or imply any endorsement by BURTON of Dealer’s services, or in any manner whatsoever. Specifically, and without limitation, Dealer must prohibit affiliates, by way of written agreement, from uploading any BURTON product information or utilizing the Marks in any manner whatsoever.
b. Registered URL. Dealers may not register any URL or derivative thereof using the BURTON registered trademarks, including but not limited to, burton.com, burton-snowboards.com, series13.com, gravisfootwear.com, anonoptics.com, burton.info, burtonsnowboards.net, burtononline.com, burtonstore.com, or any BURTON product or brand names. If a Dealer is found to own or have assisted with registration of this type of URL, Dealer will be required to (i) relinquish ownership over such URL to BURTON; (ii) immediately transfer all Dealer’s right, title and interest in any such URL to BURTON; and (iii)
pay for all related costs in connection with such assignment and/or transfer of
any URL to BURTON.
13. Indemnification. The parties acknowledge that their respective websites may be subject to temporary shutdowns due to causes beyond the operating party’s reasonable control and each party holds the other party harmless from any liability arising from any such shutdown. Further, BURTON agrees to defend and hold Dealer harmless from any and all claims, actions, suits or proceedings brought by any third party relating to: (a) the purchase of BURTON products on the BURTON website; (b) the operation of the BURTON
website; or (c) the violation of any third party’s Intellectual Property Rights by BURTON; and BURTON will indemnify Dealer for all losses, damages, liabilities and all reasonable expenses and costs arising from any such claim, action, suit or proceeding. Dealer agrees to defend and hold BURTON harmless from and against any and all claims, actions, suits or proceedings brought by any third party relating to any of Dealer’s acts or omissions relating to: (a) Dealer’s business; (b) the operation of its Online Dealer Website(s); (c) any breach of security relating to customer and/or credit information; or (d) the violation of any
third party’s Intellectual Property Rights by Dealer; and Dealer will indemnify BURTON for all losses, damages, liabilities and all reasonable expenses and costs arising from any such claim, action, suit or proceeding.
14. Governing Law; Arbitration. This Addendum will be governed, enforced under and construed in accordance with the laws of the State of Vermont, exclusive of Vermont's conflict of laws provisions. The parties hereby consent to the jurisdiction and venue of the state or federal courts of the State of Vermont. Notwithstanding the foregoing, each dispute arising out of or in connection with this Addendum will be finally settled by binding arbitration in Burlington, Vermont in accordance with the Arbitration section in the Dealer
Agreement.
THE PARTIES UNDERSTAND THAT THIS ADDENDUM
CONTAINS AN AGREEMENT TO ARBITRATE. AFTER SIGNING THIS
ADDENDUM THE PARTIES UNDERSTAND THAT THEY WILL NOT BE ABLE
TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE
WHICH IS COVERED BY THIS ARBITRATION PROVISION, UNLESS IT
INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS.
INSTEAD, THE PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN
IMPARTIAL ARBITRATOR.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS
AGREEMENT AS OF THE DATE SET FORTH ABOVE:
THE BURTON CORPORATION DEALER
By:___________________________ By:
_____________________________
Name: ________________________ Name:
__________________________
Title: _________________________ Title:
___________________________
Date: _________________________ Date:
___________________________
Rev. March 30, 2009
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Schedule A
Products
Dealer’s online sales are limited to the following BURTON brands and categories
and more specifically, only those products previously ordered and confirmed by
2010 BURTON preseason order acknowledgements. Dealer must maintain a full
inventory of all products offered for sale on Dealer’s website. Dealer must obtain
written permission from BURTON to reorder and sell different products online.
• 2010 in-line Burton product
• 2010 in-line RED product
• 2010 in-line Anon product
• 2010 in-line Program product
*NOTE: “In-line” BURTON products allowable for sale by Dealer on the internet
shall not include Idiom and Coalition products.
Yelp
Facebook
Myspace
Twitter
Youtube
Asianave
Bebo
Xanga
Orkut
Pandora
Photobucket
Friendster
Burton Outlaws All 50% Discounts. FOREVER!
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