BREAS MINIMUM ADVERTISED PRICE (MAP) POLICY

Effective: August 15, 2020

              Breas Medical, Inc., (“BREAS”) manufactures unique medical devices for respiratory applications.  BREAS has unilaterally adopted this minimum advertised price policy (this “Policy”), which is applicable to all of BREAS’s distributors, dealers, and resellers,  including those of only online presence, (collectively, “Dealers”) effective as of August 15, 2020 for those products described in the table in Exhibit A, as it may be amended from time to time (collectively, the “Covered Products”).  This Policy is being implemented to enhance the BREAS brand and to incentivize Dealers to promote and to provide valuable sales assistance and support and other services to their customers relating to the Covered Products.

              BREAS products for sale in the United States are Class II medical devices and require a physician’s prescription as set forth by the U.S. Food and Drug Administration (FDA).  Certain BREAS products that are manufactured for sale in the U.S. are approved only for sale in the U.S.  Accordingly, resales of such products outside of the U.S. is strictly prohibited.

Minimum Advertised Price (MAP)

              BREAS may from time to time unilaterally establish a minimum advertised price (“MAP”) for Covered Products, as set forth in Exhibit A. The Dealers are free to advertise, promote, or sell the Covered Products at any price they choose in their sole and absolute discretion; provided, however, that Dealers may not advertise or otherwise promote the Covered Products at a net price less than MAP and may not sell the Covered Products to any other person or entity which advertises or otherwise promotes the Covered Products at a net price less than MAP. The Dealers are not required to list prices in advertising.  If a price is listed in an advertisement or promotion (including any advertisement using the Internet), the net price must be at or above MAP.

              For purposes of this Policy, the “net price” shall mean the published or advertised price that the Dealer makes the Covered Product available to its customers taking into account all discounts, deductions, rebates, allowances, credits, charges, trade-ins, the separate price of products bundled with the Covered Products by the Dealer, coupons, premiums, promotions, and free goods and services and gifts offered with the Covered Product. Customer paid taxes shall not be included in the determination of the “net price.”

Coverage

              This Policy applies to any and all forms of advertising, promoting, or selling the Covered Products, including, but not limited to, mailings, catalogs, flyers, in-store advertising, posters, coupons, mailers, inserts, newspaper, magazines, mail order catalogs, television, radio, public signage, displays at exhibitions and shows, advertising via email, e-commerce sites, websites, natural or paid search engine listings, social medial, the Internet or any other electronic network, and any other forms of media. For purposes hereof, a Dealer will be deemed to have used the Internet to advertise or otherwise promote Covered Products if such advertisement or other promotion is delivered through any online format or medium, including, but not limited to, e-mails, text messages, shopping feed and comparison shopping engine advertising and toolbars, metadata, banner ads and other online ads, websites, social media platforms, general online discussion boards, blogs, Internet auction sites, mobiles sites, mobile applications or any other similar online platform or forum. 

              This Policy does not apply to Refurbished (Remanufactured) Products or Used Products, provided however that these products shall be explicitly and clearly identified as such and shall not have the appearance of a new product. The term “Refurbished Product” or “Remanufactured Product” refers to any Product that has been refurbished by Breas or its authorized service centers; and the term “Used Product” refers to any Product that has been used or a product that has been refurbished by a third party other than Breas or its authorized service centers.

              This Policy does not apply to prices that appear on Internet site “checkout” pages where the customer makes its final purchase or in communications directly with a Dealer’s existing customer base or anyone who has agreed to receive from the Dealer’s organization marketing materials including text and email correspondence. In addition, statements such as “call for price,” “call for quote,” “click for price” or “add to cart for price” are acceptable.

Compliance

              Each Dealer is free to independently decide whether or not to follow the Policy.  This Policy does not constitute a contract or an agreement between BREAS and any Dealer.  BREAS does not ask for, nor will it accept, any assurances of compliance or agreement from any Dealer regarding this Policy or Dealer’s intent to comply with the Policy.  BREAS will not discuss or negotiate the terms of this Policy or any conditions relating to any Dealer’s acceptance of this Policy.  No BREAS employee or representative shall seek or accept, or is authorized to seek or accept, any Dealer’s agreement, nor solicit any Dealer’s understanding, to sell or advertise the Covered Products at or above the applicable MAP or to modify or grant exceptions to this Policy.  No Dealer shall have any right, contractual or otherwise, to enforce this Policy against BREAS or any other Dealer.

              BREAS reserves the unilateral right to cancel all orders and refuse to accept any new orders from any Dealer for the Covered Products immediately following verification by BREAS to its reasonable satisfaction that the Dealer has advertised or otherwise promoted a Covered Product at a net price less than MAP or the Dealer has sold a Covered Product to a person or entity which advertised or otherwise promoted a Covered Product at a net price less than MAP. Specifically, in the event that BREAS determines, in its sole discretion, that a Dealer has violated or taken an action that is inconsistent with this Policy, BREAS reserves the right to take one or more of the following actions:

  1. 1st Offense:  Breas will issue a written warning and the offending Dealer has 1 business day to rectify the issue(s) outlined in the written warning.
  2. 2nd Offense:  Breas will refuse to accept any new orders from the offending Dealer, suspend or terminate the offending Dealer’s account, and/or take such other actions as Breas, in its sole discretion, deems appropriate.

Amendments

              BREAS shall communicate from time to time to the Dealers the list of Covered Products subject to the Policy and the applicable MAP for such Covered Products. This Policy is subject to change or cancellation at any time by BREAS in BREAS’s sole and absolute discretion.  BREAS will provide the Dealers at least thirty (30) days advance written notice of any change or cancellation of this Policy. This Policy does not restrict in any way the price at which the Covered Products are sold, which the Dealers may set in their sole discretion.

              All questions with respect to this policy and its enforcement must be directed solely to BREAS via e-mail at SupportUS <SupportUS@breas.com>.

Exhibit A: Covered Products and MAPs

Item No.

Products

Minimum Advertised Price

 

CPAP and Accessories

 

718116

Z2 Auto APAP  System

$489.00

717116

Z2 Base CPAP System

$449.00

005767

Z2 Powershell

$379.00

006910

Z2 Battery

$329.00

 

Ventilator and Accessories

 

224516

Vivo 65 Ventilator (includes power cord, manual, carry bag, oxygen adapter low pressure, single limb insert)

$11,472.00

215516

Vivo 50 Ventilator (includes power cord, manual, oxygen adapter low pressure, carry bag)

$10,472.00

201016

Vivo 40 Ventilator (includes power cord, manual, carry bag, patient tube, filters, rear lid)

$4,160.00

202016

Vivo 30 Ventilator (includes power cord, manual, carry bag, patient tube, filters, rear lid)

$2,990.00

224916

Vivo 65 Factory Refreshed Ventilator (includes power cord, manual, carry bag, oxygen adapter low pressure, single limb insert)

$10,324.80

215916

Vivo 50 Factory Refreshed Ventilator (includes power cord, manual, oxygen adapter low pressure, carry bag)

$9,424.80

004559

Click on battery Li-Ion (compatible with Vivo 50/65)

$1,070.30