Marketing Guidelines
1. Definitions.
a. The terms “you” and “your” shall refer to Affiliate and any individual or entity associated in any way with Affiliate that shall promote or market Think Energy-branded products or services, or engage in any activities relating thereto, including without limitation any individual or entity representing or conducting activities with, for, on behalf of, or for the benefit of Affiliate, whether or not such activities are authorized, permitted, tolerated, or acquiesced by Affiliate.
b. The terms “we,” “us,” “our,” or “Think” shall refer to EE REP 2, LLC d/b/a Think Energy.
c. The term “Think Energy-Branded Services” refer to the Think Energy-branded retail electricity products and services provided by Think to end-use residential and small commercial customers within those territories where Think is authorized to provide such services.
d. The term “Advertisements” as defined herein specifically includes without limitation: television ads, infomercials, radio ads, print media, billboards, posters, internet banner ads, pop-up ads, emails and other internet content and advertising, among other forms, formats and venues for advertising, as well as all portions of the third party web sites (“Sites”), web pages, publicly displayed areas, or any other advertising that references us, the Think Marks or the Think Energy-Branded Services. The term “Advertisements” shall further refer to any and all activities relating to the publishing, use, or display of Advertisements and/or similar activities designed or intended to promote the Think Energy-Branded Services, irrespective of the media.
b. The term “Think Marks” here is defined the same as in Section VII of the Agreement.
2. Approval of Advertisements. Only Advertisements expressly approved by us in writing prior to use may be used to promote the Think Energy-Branded Services. We shall use commercially reasonable efforts to approve or disapprove such Advertisements in a timely manner; provided, however, that failure to approve or disapprove any Advertisement shall not be deemed approval by us. Approved Advertisements are deemed in final form and must be specifically associated with a particular promotional or marketing campaign. Any approved Advertisements that are subsequently modified, amended, altered or changed in any manner by you are no longer deemed approved and must be submitted for approval in their final modified form. Similarly, each marketing campaign, promotion or context is subject to the approval process, irrespective of whether a prior campaign or promotion used the same or similar materials in an Advertisement. Upon a sale, transfer, removal, change of URL or cessation of use of any approved Site or web page, any such website will no longer be deemed approved for purposes of advertising the Think Energy-Branded Services. Any request from you to us for any approval or consent required or contemplated hereunder may be denied, withheld or withdrawn by us at our sole and absolute discretion for any reason or for no reason.
3. Restricted Activities. Without limiting the generality of any of the restrictions, limitations or prohibitions contained in this Agreement, you expressly acknowledge and agree that you shall not, without our prior written consent, conduct, perform, engage in, participate in or acquiesce to any of the following:
(i) Displaying Advertisements on any unsuitable websites, including but not limited to Sites. Unsuitable websites shall include, without limitation: websites that are under construction; websites containing hate, violence, sexually explicit, offensive, and/or illegal content; websites promoting alcohol, drugs, tobacco, gambling or associated activities, or any unlawful activities; websites that promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, and/or age; websites with materials that can be considered libelous, disparaging, and/or defamatory; websites misusing or misspelling any Think Mark or any trademark, service mark, trade name or logos of third parties; websites that incorporate materials that infringe upon copyright, trademark or other intellectual property rights of a third-party; or websites which, in our sole opinion, may negatively affect our brand in any way.
(ii) Sending unsolicited direct print mail to any persons that are not your members or customers and with whom you do not have a current existing business relationship which includes their permission for you to send to them promotional materials for third party service providers (provided that you have received our prior written approval with regard to each such mail campaign, which may be withheld for any or no reason); provided, that, all approved direct print mail Advertisements, if any, shall conspicuously mail contain your extension and promotional code reflecting your identification and with clear communication that the direct mail is being sent by you.
(iii) Outbound telemarketing, telesales, or other form of telephone calling of any type, including but not limited to the use of automated dialers or facsimile advertising (fax blasting);
(iv) Inbound telemarketing, other than referring Customers to our authorized call centers;
(v) Purchasing or bidding on keywords or terms and their variations on any online search engine in order to trigger sponsored links for the Think Energy-Branded Services, including, without limitation, bidding on or purchasing keywords that are substantially similar to the Think Marks or the trade names, trademarks, or service marks of competitive products and/or services. Examples of such keywords and terms include, without limitation: “Think Energy” or “thinkenergy.com”, etc.;
(vi) Except as otherwise authorized in this Agreement, request, take, accept, transcribe, relay or transfer, or purport to take, accept, transcribe, relay or transfer, whether in connection with the Think Energy-Branded Services or in conjunction with your activities relating to this Agreement: (a) any personal identifiable or sensitive information from actual or prospective Customers; or (b) orders for the Think Energy-Branded Services or other products or services offered by us. In no event will Affiliate take or accept any payments or deposits for or in connection with the Think Energy-Branded Services;
(vii) Directly or indirectly charge or collect any fee or sum to Customers in any way connected with the Think Energy-Branded Services or your services associated therewith, or waive, offset or purport to waive or offset any such fee or sum to Customers, or otherwise attempt to any of the foregoing or similar activities;
(viii) Door-to-door solicitations of any kind;
(ix) Any tactics, practices, or actions that are defamatory, disparaging, slanderous, libelous, fraudulent, false, misleading, or which otherwise constitute unfair business practices, nor shall you acquiesce in or permit same to be conducted by third parties;
(x) The breach, violation or non-compliance with any federal, state, or local law, rule or regulation (including without limitation any privacy or “spam” laws);
(xi) Any conduct that disparages or otherwise reflects adversely on us or the Think Energy-Branded Services, Think’s image or any of their products or services, including, without limitation, any use that may be deemed to be or associated with obscenity, pornography, or violence;
(xii) Direct or indirect promotion or encouragement of alcohol, drugs, tobacco, gambling or associated activities, or any unlawful activities;
(xiii) Any actions or communications which expressly state, imply, or suggest that we endorse or sponsor you, your business or your products or services;
(xiv) Linking from any Think Mark or other link that a Customer might believe is associated with us or the Think Energy-Branded Services, to a third party website or to any web page that is not our approved landing page;
(xv) Use in commerce, in connection with any goods or services, any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of you with us or as to the origin, sponsorship, or approval of our goods or services;
(xvi) Marketing, advertising or displaying any Advertisements in any language other than English (or Spanish when required by state regulation and/or when approved by Think);
(xvii) Registering or attempting to acquire trademarks or service marks, domain names, or trade names related to Think Marks, or those of any of its competitors;
(xviii) Use any adware, contextual or behavioral network services, whether through a third party or your internal operations. These services may be defined as pop-up ads, banner ads, page views or other forms of media based on user behavior, including search queries or visits to specific URLs, which are served based on software downloaded by the user;
(xix) Advertisements directly comparing or making direct comparisons between us or the Think Energy-Branded Services and specifically identified competitors or their products and services, including without limitation, with regard to prices for products or services;
(xx) Use of any logo, trademark, trade name, service mark, or other intellectual property of a competitive provider within or in connection with any Advertisements;
(xxi) Placement of banner ads or links anywhere other than the Sites, including without limitation, in newsgroups, chat rooms, ICQ, message boards, banner networks, hit farms, counters, or guest books;
(xxii) Placement of any banner ads, links or materials in a "Desktop" advertising scheme, which includes without limitation, any third party advertising platforms that use a desktop application to display ads in any form;
(xxiii) Placement of display of any Think Marks or promotional materials for the Think Energy-Branded Services in any window that is not the result of a direct click by the end-user;
(xxiv) Print media Advertisement; or
(xxv) Engaging in any form of e-mail marketing, other than to your members or customers with whom you have a current and existing business relationship and who have given you express permission to send them emails for third party service providers (provided that you have received our prior written approval with regard to each such email campaign, which may be withheld for any or no reason); and provided, further, that, in all events and under all circumstances you must:
(a) not engage, participate or acquiesce in any mass, unsolicited e-mailing (i.e. spamming);
(b) not use the Think name or any Think Mark in the “From” line or in any way fail to clearly identify you as the sender of such email;
(c) comply with all applicable laws, including without limitation the CAN-SPAM Act of 2003;
(d) have a process by which email recipients may opt-out of receiving future email from you, including, without limitation, the necessary processes in place to immediately remove an email address from your email list and to maintain at all times a "do not email list" in which every opt-out request must be placed;
(e) honor all opt-out requests and not email recipients who have opted out of receiving communications from you;
(f) if you generate email through a third party vendor, disclose the identity of that vendor to us, in which event you shall be fully responsible for all emails generated on your behalf;
(g) submit for our prior written approval, a marketing plan describing how many times and how often an email will be generated to any one email address; provided that in no event shall you send an email to any one email address more than once in any 30-day period for Advertisements of the Think Energy-Branded Services;
(h) have your email lists scrubbed against your own "do not email" list and our “do not email” list prior to the commencement of any email campaign;
(i) provide reporting containing all relevant statistics regarding each email campaign, which must include, without limitation, the number of emails sent, and the number of recipients who clicked through;
(j) cause all emails offering the Think Energy-Branded Services to contain all necessary disclaimers, together with a campaign code and link to a site or landing page as designated by us;
(k) include valid contact information in all emails, including a physical address for you,
(l) ensure that all domains used must have valid Who Is information associated with their registration, and not use any privacy service or other means to mask you from clearly being identified as the email sender; and
(m) have obtained authorization to email marketing materials to each email address used in connection with the Think Energy-Branded Services and shall maintain a record of such permission, which records shall be provided to us within two (2) business days of request at any time.
