4ocean Public Benefit Corporation (“4ocean”) recognizes the value to end users of retailers providing the services of stocking, promoting, and supporting 4ocean products. 4ocean desires to promote such services with advertising that focuses on high quality, superior performance, unique features, customer service, and similar attributes that convey the superior brand image associated with 4ocean and its products. In 4ocean’s opinion, advertising or promoting discounts erodes the perception of 4ocean products and the 4ocean brand in the view of end users, and also reduces the incentives of retailers to support and sell 4ocean products.
Effective as of 7/1/20, 4ocean has adopted the updated policy on brand image and advertised prices described below (“MAP Policy”) to promote advertising that best supports 4ocean’s superior brand image. The MAP Policy is a unilateral policy of 4ocean and is not a part of or incorporated into any agreement that 4ocean has with any distributor, dealer, or retailer. 4ocean applies its MAP Policy to any distributor, dealer, or retailer who purchases and resells 4ocean products in the United States and its territories (“Dealer”).
Section 1: ADVERTISED PRICES
4ocean’s MAP Policy provides that Retailers not advertise any 4ocean product at a price below the then-current minimum advertised price for the product in 4ocean’s current published Retailer price list or on 4oceancoolers.com (“Minimum Advertised Price”). 4ocean, in its sole discretion, may adjust the Minimum Advertised Price at any time. A violation of the MAP Policy occurs at any time a Retailer advertises expressly or by implication a 4ocean product in Covered Advertisements (as defined below) or on any website at a price below the applicable Minimum Advertised Price. The MAP Policy covers advertising only and is not intended to and shall not be deemed to set or limit the prices at which Retailers resell 4ocean products, and Retailers shall have complete discretion to determine the prices they charge end users for 4ocean products.
“Covered Advertisements” means all forms of advertising for 4ocean products in any media, including without limitation: catalogs, newspapers, print ads, inserts in magazines, handbills, flyers, and other print publications; billboards, other outdoor ads, and signage inside a Retailer’s retail location if intended to be viewed from outside the location; and broadcast or direct ads via radio, television, websites, web pages, webcasts, social media sites, mobile apps, or other forms of electronic transmission, and including any other communication delivered to multiple recipients via mailers, email, facsimile transmission or otherwise distributed outside a Retailer’s retail location.
Any Covered Advertisement that expressly or by implication advertises a 4ocean product below its Minimum Advertised Price is considered a violation of the MAP Policy, including any reference to a 4ocean product being on sale, offered at a discount, or eligible for a promotion (or any comparable reference that implies a price below the Minimum Advertised Price), whether or not a specific price is displayed. Under this MAP Policy, a Retailer must exclude 4ocean products from Covered Advertisements advertising Retailer discounts, coupons, sale offers, or any other advertisements that promote a reduced price for Retailer’s products, by prominently stating that the 4ocean brand is excluded. The MAP Policy provides that a Retailer must not advertise in any Covered Advertisement that 4ocean products are included in any promotions, including (a) bundled product promotions, (b) other promotions that imply a price on a 4ocean product below the Minimum Advertised Price, or (c) promotions that include a gift or gift card with a purchase of any 4ocean product.
The MAP Policy provides that no promotion of any 4ocean product at a price below the Minimum Advertised Price may be run via a Retailer’s or its affiliates’ promotional or rebate sites or mobile apps. Notwithstanding this policy, Covered Advertisements that describe a loyalty program’s use of points or other accrued benefits earned under the program are not a MAP Policy violation in connection with a transaction involving 4ocean product; provided, however, that the retail price of the 4ocean product in the transaction (before applying any accrued benefit) is not below the Minimum Advertised Price, and that any accrued loyalty program benefit applied by the Retailer must have been available prior to, and not dependent upon, the 4ocean transaction.
Section 2: ADDITIONAL ONLINE ADVERTISING POLICIES
Resale of 4ocean products by a Retailer at any location or on any website without prior written approval of 4ocean pursuant to a separate agreement with Retailer is strictly prohibited. A Retailer is not allowed to advertise 4ocean products for sale, directly or via referral, on any third-party e-commerce websites, internet forums, discount websites, or online auction sites, including, but not limited to, eBay, Amazon, Etsy, etc. Retailer will likewise not connect e-commerce stores to Google Shopping. In addition, as set forth below, Retailer may not target 4ocean’s trademarked keywords on any digital marketing platforms, including but not limited to Google or social media, for any purpose whatsoever.
If a Retailer is authorized by 4ocean to sell online on a specified website pursuant to a separate agreement, additional MAP Policy provisions apply to Retailer’s online advertising activity. A Retailer will violate the MAP Policy any time the Retailer (a) keywords or advertises a sale, discount, or promotion of any kind in connection with online 4ocean advertisements, or (b) uses any form of digital marketing to communicate a price for 4ocean products on a third-party website, mobile app, or other electronic media below the Minimum Advertised Price, including through the use of paid keyword campaigns, feeds to pricing aggregators, search engines, or advertisements of any kind displayed on such websites or other media (e.g., retargeting ads). However, advertising free or reduced cost shipping is not a violation of this MAP Policy as long as such advertising is not used to imply a price on 4ocean products below the Minimum Advertised Price.
Except as provided in the last sentence of this paragraph, 4ocean’s MAP Policy is that a Retailer shall not, at any time, bid through any paid search engine marketing or keyword campaigns (e.g., pay-per-click or product listing ads) available on any website, including without limitation any online marketplace site or social media site, on the following terms or on any broad phrase or exact match terms using any combination or misspelling of our brand name, or bracelet names, including but not limited to:
- for ocean
- four ocean
- 4 ocean
A 4ocean Retailer may use and bid on a 4ocean brand; provided, however, that such actions are taken in connection with an offer to sell such products or on search engines dedicated to assisting consumers shop.
“4ocean” is a registered trademark of 4ocean. A Retailer may not use “4ocean” or any other trademark, service mark, trade dress, trade name, logo, copyright, or other intellectual property right of 4ocean to solicit sales, except to the extent such use is in strict compliance with the Retailer Agreement.
Section 3: ADVERTISING AND BRAND IMAGE
Retailers must not use, advertise or promote 4ocean products in an illegal or deceptive manner, as such actions would have a negative impact on the brand image of 4ocean and 4ocean’s products. 4ocean may respond to violations of any of the foregoing as described in Section 4.
Section 4: 4OCEAN’S RESPONSE TO MAP POLICY VIOLATIONS
If 4ocean determines in its sole discretion that a Retailer has violated a provision of this MAP Policy and so notifies the Retailer, then in addition to requesting that the violation be remedied in a timely manner, 4ocean may immediately and without notice (a) reduce Retailer’s allocation of 4ocean products; (b) refuse to accept orders from Retailer on new or limited edition 4ocean products for a period of time; (c) deny Retailer’s access to custom 4ocean products; and/or (d) require that Retailer forfeit any marketing, merchandising or other advertising benefit generally made available to 4ocean Retailers. In addition to these responses, 4ocean may terminate any agreement with, or suspend or decline to make any further sales to, any Retailer who violates any terms of the MAP Policy, if 4ocean believes its relationship with Retailer may no longer be in the best interest of the 4ocean brand, subject to such advance notice as 4ocean may provide, in its sole discretion, on a case by case basis.
Section 5: GENERAL TERMS
4ocean is not limited by the terms of the MAP Policy and has the right to exercise its own judgment in determining the Retailers with which 4ocean will do business, subject to the terms of any agreement with a Retailer.
Notwithstanding anything to the contrary contained herein, the MAP Policy is a unilateral policy of 4ocean and is not a contract or agreement with or by any Retailer. 4ocean, in its sole discretion, is responsible for interpreting and enforcing the MAP Policy and may modify, suspend, or terminate the MAP Policy at any time. In the future 4ocean may also, in its sole discretion, announce MAP “Holidays,” which refer to a period of time during which the MAP Policy will be temporarily modified by 4ocean in a defined manner.
Retailers should email questions regarding the MAP Policy to Brenton.Schulze@4ocean.com. All interpretations and representations in respect of 4ocean’s MAP Policy shall be made by 4ocean’s Chief Marketing Officer. No other representative of 4ocean is authorized to make any representations or interpretations in respect of the MAP Policy, and any such attempted representation or interpretation is unauthorized and invalid.
The MAP Policy applies to Retailers only in the United States and its territories, and the terms of the MAP Policy do not apply to the extent any state or United States territory by statute or other applicable law expressly prohibits policies on minimum advertised prices.
The MAP Policy is confidential and Retailers should not disclose the MAP Policy or communications on the MAP Policy to any other person or entity.