These Grocery TV Terms of Service for Grocery Outlet Operators (the “Operator TOS”) govern the provision of GTV Services (as defined below) by Clerk Retail, Inc. DBA Grocery TV (“GTV”) to an operator of Grocery Outlet stores that operates its store(s) under agreement(s) with Grocery Outlet Holding Corp. and/or its affiliates (“GOHC”) and that has entered into an Operator Agreement (as defined below) with GTV for the provision of such services (“Operator”). GTV and Operator are referred to individually as a “Party” and collectively as the “Parties.”
1. Definitions. In addition to capitalized terms that are defined when first used, the following terms have the meanings given to them in this Section.
a. “Advertising” means all videos and/or images for third-party products and services shown on the GTV-Powered Displays.
b. “GTV CMS” means GTV’s proprietary cloud-based content management application that enables Operator to view and manage Operator Content on the GTV-Powered Displays.
c. “GTV Displays” means all digital displays owned and provided by GTV.
d. “GTV Entertainment Content” means videos and/or images provided by GTV that are not Advertising.
e. “GTV Hardware” means all physical assets provided by GTV, including but not limited to GTV Displays, GTV Media Players, and associated fixtures and mounts.
f. “GTV Media Players” means all media players provided by GTV.
g. “GTV-Powered Displays” means all digital displays utilized by GTV for the provision of the GTV Services, including GTV Displays and any Operator Displays with a GTV Media Player installed.
h. “GTV Services” means the services made available by GTV and ordered by Operator pursuant to the Operator Agreement and these Operator TOS.
i. “Operator Agreement” means the written agreement that is executed by Operator and GTV pursuant to which Operator has ordered the GTV Services specified in that agreement, subject to these Operator TOS.
j. “Operator Content” means all videos and/or images provided by Operator via the GTV CMS.
k. “Operator Displays” means all digital displays owned by Operator.
2. Ordering GTV Services; Operator Agreement. GTV will provide the GTV Services that GTV and Operator have agreed to in an Operator Agreement, subject to these Operator TOS. The list of GTV Services available from GTV and their descriptions as of the date of these Operator TOS are set forth in Exhibit A to these Operator TOS, but the Parties are only obligated as to those GTV Services specified in an Operator Agreement executed by the Parties. The Parties may add new GTV Services at any time by executing a new Operator Agreement. Each Operator Agreement is subject to these Operator TOS. In the event of a conflict between the terms of any Operator Agreement and these Operator TOS, these Operator TOS control except to the extent the Operator Agreement reflects an express intent to override one or more specific terms of these Operator TOS (including a reference to the section or subsection to be modified or overridden). GTV shall use commercially reasonable efforts to continuously provide the GTV Services but shall not be responsible for any costs incurred by Operator or any third party for any interruptions to or unavailability of the GTV Services.
3. Responsibilities of GTV and Operator.
a. Hardware.
(i) GTV Hardware. GTV will provide such GTV Hardware at the times and places set forth in the Operator Agreement. All title and ownership in the GTV Hardware shall remain exclusively with GTV. GTV will remotely monitor the GTV Hardware and provide replacements in the event any GTV Hardware becomes defective.
(ii) Operator Responsibilities. Upon installation of GTV Hardware by GTV or its authorized personnel, Operator will promptly inspect such installation and notify GTV of any issues with the safety, placement, or operation of the GTV Hardware. Operator will promptly communicate its acceptance of the installation if no such issues are present, or, if Operator has notified GTV of issues, then it will communicate its acceptance once such issues are resolved. Operator shall use best efforts to keep the GTV-Powered Displays clean and unobstructed, and shall provide GTV with reasonable access to its stores to install, uninstall, and service the GTV Hardware. Operator agrees to provide continuous Wi-Fi access and 110-volt power to each GTV-Powered Display and GTV Media Player and keep all such devices connected to power and installed in their original locations. If a GTV-Powered Display is moved or disconnected from power for any reason (for instance, during floor cleanings), Operator shall return the display to its original location and reconnect to power as soon as commercially practical. Operator shall also work in good faith with GTV to resolve any Wi-Fi related issues as they arise.
(iii) Damage and Loss. Except as otherwise set forth in these Operator TOS or the Operator Agreement, GTV will bear the risk of loss for the GTV Hardware. However, Operator is responsible and liable for any loss, damage, or destruction to GTV Hardware caused by the reckless or intentional conduct of Operator and/or its employees, contractors, and agents.
(iv) Closed/Sold Stores. If, in Operator’s normal course of business, Operator closes a store where GTV Hardware is located, it may remove such store(s) from the scope of the Operator Agreement by providing notice to GTV and coordinating with GTV to remove the GTV Hardware in such closed/sold store(s). If Operator sells a store as part of a merger, acquisition, divestiture, or sale of assets, then (1) Operator will provide notice to GTV identifying the stores that are subject to the transaction; (2) the Operator Agreement and these Operator TOS will continue to apply to the remaining stores of Operator (or its permitted successor or assignee pursuant to Section 12 (Assignment)) that operate under agreement(s) with GOHC, and (3) Operator will use commercially reasonable efforts to assist GTV in establishing a new agreement with the acquirer.
b. GTV CMS.
(i) Operator Content. GTV will provide Operator with access to the GTV CMS and allocate a percentage of minimum available playtime for Operator Content on the GTV-Powered Displays as specified in Exhibit A (the “Operator Share-of-Voice”). Operator Content shall only be used to run unpaid content. To the extent that any portion of the Operator Share-of-Voice is unutilized by Operator, GTV shall fill the unutilized portion with GTV Entertainment Content.
(ii) License Grant. Subject to Operator’s compliance with the Operator Agreement and these Operator TOS, GTV grants to Operator a limited, non-exclusive, non-transferable (except pursuant to Section 12), non-sublicensable right to access and use the GTV CMS during the term of the Operator Agreement. GTV grants no rights to Operator by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in the Operator Agreement and these Operator TOS.
(iii) Authorized Users. Operator will permit use of the GTV CMS only by those of its employees or contractors that it has expressly authorized to use the GTV CMS on its behalf (“Authorized Users”). To the extent that Operator wishes to authorize any third-party contractor to be an Authorized User (for example, GOHC or an agency that manages Operator Content on Operator’s behalf), Operator must have a written agreement with such third party that obligates the third party to comply with applicable provisions of these Operator TOS in the contractor’s capacity as an Authorized User for Operator. Operator is fully responsible and liable for all acts or omissions by its Authorized Users as if committed by Operator, and Operator will not permit any other person or entity to access or use the GTV CMS. Operator will protect any GTV CMS login credentials from unauthorized use or disclosure. By default, Operator designates GOHC (and its permitted users) to be an Authorized User to upload Operator Content on Operator’s behalf. Operator may opt out of this default designation by submitting a written request to GTV.
(iv) Technical Support. GTV will provide Operator with commercially reasonable technical support in connection with Operator’s use of the GTV CMS, including being reasonably available to answer questions or address bugs or other technical issues that prevent the GTV CMS from operating substantially in compliance with GTV’s published technical documentation.
(v) Service Level Agreement. GTV will make the GTV CMS available with an uptime of at least 99.5% 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GTV shall give at least 8 hours electronic notice and which GTV shall schedule to the extent practicable during the weeknight overnight hours between 8:00 p.m. and 5:00 a.m. Central time), and (b) any unavailability caused by circumstances beyond GTV’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving GTV employees), Internet service provider failure or delay, or non-GTV application (collectively the “Uptime SLA”). Operator may terminate this Agreement upon providing written notice of termination to GTV within a 30 day cure period and without penalty or incurring liability if GTV fails to meet the Uptime SLA during either: (a) three (3) consecutive calendar months; or (b) any three (3) calendar months within any period of six (6) consecutive calendar months. Operator must notify GTV of its intent to terminate this Agreement pursuant to this section within 60 days after the failure to meet service levels giving rise to this termination right.
(vi) Usage Data. GTV may collect aggregate and anonymous data and statistics relating to Operator’s use of the GTV CMS (specifically excluding any data that identifies Operator or any individual or entity) (“Usage Data”). GTV may use any such Usage Data for any purpose relating to its business, including to develop and improve the GTV CMS or other GTV products and to analyze usage and traffic patterns relating to the GTV CMS.
(vii) License Restrictions. The GTV CMS is licensed, not sold, to Operator. GTV reserves all rights not expressly granted in these Operator TOS or the Operator Agreement. Operator will not and will not permit or encourage any person or entity (including GOHC or Operator’s Authorized Users) to: (a) copy, modify, or create any derivative work of any portion of the GTV CMS; (b) reverse engineer, decompile, decode, disassemble, or otherwise attempt to derive or gain access to any software component or source code of the GTV CMS; (c) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease, or loan any portion of the GTV CMS to any other person or entity, or otherwise allow any person or entity to use the GTV CMS for any purpose other than for the benefit of Operator in accordance with these Operator TOS; (d) use the GTV CMS in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law or regulation; (e) participate in any attacks on the GTV CMS or any GTV computer systems, including technical attacks, hacking, theft of data or funds, or fraud; (f) access, search, or scrape data from the GTV CMS through the use of any software, tool, agent, device, or mechanism (e.g., spiders, crawlers, or any other data mining tools) other than the GTV CMS features provided by GTV for use expressly for such purposes; (g) use the GTV CMS or any other GTV Confidential Information (as defined below) for benchmarking or competitive analysis of software or technology that may be competitive with the GTV CMS or any other services that GTV makes available or to develop, market, license, or sell any product, service, or technology that could directly or indirectly compete with the GTV CMS or any other services that GTV makes available; or (h) remove or alter any copyright, trademark, or other proprietary markings or notices or confidentiality legends on or in the GTV CMS.
c. Advertising.
(i) License Grant. Subject to Operator’s compliance with these Operator TOS and the Operator Agreement, GTV grants to Operator a limited, non-exclusive, non-transferable (except pursuant to Section 12), non-sublicensable right to display Advertising provided by GTV on applicable GTV-Powered Displays in Operator’s stores during the term of the applicable Operator Agreement. GTV grants no rights to Operator by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in these Operator TOS and the applicable Operator Agreement.
(ii) License Restrictions. The Advertising is owned by the creators or providers of such Advertising, and GTV provides it under these Operator TOS as a sublicense subject to any applicable terms or conditions imposed by such creators or providers. The Advertising is sublicensed, not sold, by GTV to Operator. GTV reserves all rights not expressly granted in these Operator TOS. Operator will not and will not permit or encourage any person or entity to: (a) copy, modify, or create any derivative work of any portion of the Advertising; (b) sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease, or loan any portion of the Advertising to any other person or entity, or otherwise allow any person or entity to use, copy, publish, display, or perform the Advertising for any purpose other than to display the Advertising for the benefit of Operator in accordance with these Operator TOS; or (c) display, perform, publish, or otherwise use the Advertising in any manner that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law or regulation.
(iii) Advertising Inventory. For GTV Services with less than 100% Operator Share-of-Voice, GTV shall utilize the remaining playtime on the GTV-Powered Displays to display Advertising.
(iv) Content Guidelines. GTV will review all Advertising to ensure compliance with the GTV Content Guidelines, which can be found at https://grocerytv.com/legal/content-guidelines/.
(v) Premium Placement. Operator acknowledges that Advertising is represented to advertisers as a premium placement and, as such, Operator A) agrees not to place, or allow any third party to place, any third-party advertising on digital screens within fifteen (15) feet of a GTV-Powered Display, or within areas that a GTV Service specifies as restricted, and B) grants GTV exclusive rights to sell programmatically-transacted advertisements on digital screens in Operator’s stores.
(vi) Optional Sales Data. GTV may on occasion request product sales data to run specific Advertising. Operator, at its sole discretion, may opt-in or opt-out to these requests and, if opted-in, will provide this data to GTV (i.e., specific sales on a given item).
4. Implementation. Upon execution of an Operator Agreement by GTV and Operator, GTV will work with Operator to coordinate installation and provisioning at each of Operator’s stores for any new GTV Services (the “Initial Rollout”). A GTV field technician will visit each store and install any GTV Hardware necessary to provide those services. After the Initial Rollout, additional stores and screens may be added by mutual written consent of GTV and Operator.
5. Term and Termination.
a. These Operator TOS are effective as to Operator on the date that GTV and Operator have executed an Operator Agreement, and they remain in effect for as long as any Operator Agreement is in effect.
b. Either Party may terminate an Operator Agreement for cause if the other Party has substantially breached a material provision of the Operator Agreement or these Operator TOS and such breach is not cured within thirty (30) days of written notice specifying the breach in reasonable detail.
c. Upon expiration or termination of an Operator Agreement, all terms of these Operator TOS that naturally should survive such expiration or termination do survive, including without limitation Sections 1, 3.b(vii), 3.c(ii), 5-13 and 16-22.
6. Royalties and Payments. GTV shall pay Operator a royalty for Advertising that is calculated on a pooled basis, including Operator and any other operators of Grocery Outlet stores that operate their stores under agreement(s) with GOHC and that have entered into agreements with GTV under these Operator TOS (the “Other GO Operators"), as follows:
a. Advertising Royalty. Subject to the terms below in this Section 6 relating to the pooling of royalties and minimum payments, the royalty rate for Royalty-Bearing Advertising is equal to 17% of the gross revenue collected by GTV for Royalty-Bearing Advertising (the “Advertising Royalty”), where “Royalty-Bearing Advertising” means Advertising that is sold by GTV and delivered on the GTV-Powered Displays, excluding: (i) Advertising that is related to products containing alcohol (in compliance with state laws; the benefit to Operator for such Advertising is limited to sales lift of the advertised products), and (ii) Advertising that is sold by Operator, Other GO Operators, GOHC, any trade or marketing groups, and any of such entities’ affiliates (the revenue for which is considered ad serving fees). For avoidance of doubt, an Advertising Royalty is calculated at the time GTV collects the revenue associated with the Royalty-Bearing Advertising, at the royalty rate applicable at the time the Royalty-Bearing Advertising was delivered on a GTV-Powered Display.
b. Minimum Annual Guarantee Amounts; Quarterly Minimum Payments. Operator’s minimum Advertising Royalty payments for each GTV Service are as follows:
(i) Front End: $1,600 per store, per year
(ii) Entrance: $400 per store, per year
At the end of each calendar quarter, GTV shall calculate a prorated minimum payment for that quarter based on the current stores and GTV Services in operation (the “Quarterly Minimum Payment”). GTV Services installed or removed in stores during that quarter shall be included in the calculation of the Quarterly Minimum Payment, prorated to percent of days in operation for each store and GTV Service. Operator’s right to receive a Quarterly Minimum Payment is subject to Operator’s compliance with its obligations under the Operator Agreement and these Operator TOS, including without limitation Operator’s obligations under Section 3 to facilitate GTV’s delivery of Advertising. If Operator fails to fulfill its obligations for any store for 15 days or more in a quarter, the Quarterly Minimum Payment for that quarter will be pro-rated to reflect the number of days that Operator was in compliance with its obligations in each store.
c. Pooled Royalty and Quarterly Payment. After each calendar quarter, GTV shall calculate for that quarter: (1) the aggregate total of the Advertising Royalty calculated for Operator plus the Advertising Royalty calculated for the Other GO Operators under their agreements with GTV that incorporate these Operator TOS (the “Pooled GO Operator Royalty”), (2) the aggregate total of the Quarterly Minimum Payment calculated for Operator and the Quarterly Minimum Payments calculated for the Other GO Operators under their agreements with GTV that incorporate these Operator TOS (the “Pooled GO Royalty Guarantee”), and (3) the difference between the Pooled GO Operator Royalty and the Pooled GO Royalty Guarantee (the “Pooled Royalty Difference”).
(i) If the Pooled GO Operator Royalty is less than or equal to the Pooled GO Royalty Guarantee, then GTV shall: (A) pay Operator the Quarterly Minimum Payment as described in subsection b above, and (B) add the Pooled Royalty Difference to a running total of pooled payment advances that will apply toward future quarters’ royalty calculations as described below (“Pooled Payment Advance”). Because the Pooled Payment Advance is pooled across Operator and the Other GO Operators, the Pooled Payment Advance may have an existing balance as of the date that Operator enters into its Operator Agreement. To the extent that there is any outstanding Pooled Payment Advance upon expiration or termination of the Operator Agreement, Operator shall have no further obligation with respect to such Pooled Payment Advance amount.
(ii) If the Pooled GO Operator Royalty is greater than the Pooled GO Royalty Guarantee, then:
(A) if there is no outstanding Pooled Payment Advance, GTV shall pay Operator an amount equal to:
Operator’s Quarterly Minimum Payment * Pooled GO Operator Royalty / Pooled GO Royalty Guarantee;
(B) if the outstanding Pooled Payment Advance is less than or equal to the Pooled Royalty Difference, the Pooled Payment Advance is drawn down to $0, and GTV shall pay Operator an amount equal to:
Operator’s Quarterly Minimum Payment * [Pooled GO Operator Royalty - Pooled Payment Advance] / Pooled GO Royalty Guarantee; or
(C) if the outstanding Pooled Payment Advance is greater than the Pooled Royalty Difference, GTV shall pay Operator the Quarterly Minimum Payment as described in subsection b above, and shall reduce the Pooled Payment Advance by the amount of the Pooled Royalty Difference.
d. Payments. GTV shall remit the amounts due to Operator, as calculated above, on a quarterly basis via ACH transfer within 30 days of the end of the calendar quarter. Upon execution of an Operator Agreement, Operator shall provide to GTV a current copy of IRS Form W-9 and ACH payment information. Any and all payments by GTV to Operator shall be withheld until such W-9 and ACH payment information is provided.
e. Taxes. The fees and other amounts charged by GTV and royalties or other amounts paid by GTV under these Operator TOS and/or the Operator Agreement do not include any applicable federal, state, local, or taxes, duties, or other governmental charges of any kind, including but not limited to sales, use, service, value added taxes, duties, withholding, or any amounts levied or imposed by any federal, state, or local governmental entity for products or services provided by GTV (collectively “Taxes”). All such Taxes are Operator’s responsibility. However, Operator has no responsibility for taxes based on GTV’s net income. If GTV invoices Operator for any Taxes in connection with an invoice for products and services, Operator will pay such amounts on or before the due date of the invoice. Unless included as a line item on an invoice, Operator is responsible for determining and paying all Taxes. If any applicable law requires Operator to withhold amounts from any payments to GTV, then Operator shall (i) effect such withholding, remit amounts due to the appropriate taxing authorities, and promptly furnish GTV with tax receipts evidencing the payments of such amounts; and (ii) increase the sum payable to GTV upon which the deduction or withholding is based to ensure that, after such deduction or withholding, GTV receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount GTV would have received and retained in the absence of such required deduction or withholding.
7. Independent Contractors. GTV is an independent contractor, and nothing in these Operator TOS and/or any Operator Agreement shall create any employer-employee relationship, partnership, joint venture, or agency between the Parties. Except as expressly set forth in these Operator TOS, neither Party shall have the right or authority to bind or obligate the other Party, or incur any liability or obligation on behalf of the other Party, nor shall either Party be responsible for the acts or omissions of the other Party.
8. Intellectual Property Rights.
a. Subject only to the licenses expressly granted in these Operator TOS, GTV owns sole and exclusive right, title, and interest in and to the GTV Services, the GTV CMS, all content created or authored by GTV in connection with the GTV Services, all software and hardware provided by GTV, all data collected and provided in connection with the GTV Services, and all copyright and other intellectual property rights related to any of the foregoing. To the extent any person or entity other than GTV creates or authors any Advertising or GTV Entertainment Content, the applicable creator or author owns all right, title, and interest in and to such Advertising or GTV Entertainment Content, including all copyright and other intellectual property rights in and to it.
b. Subject only to the licenses expressly granted in these Operator TOS, Operator owns or otherwise has all necessary rights in and to its names, logos, and copyrights, any images, audio, video, or other content or materials provided by Operator (including all Operator Content) and any and all intellectual property rights therein (the “Operator IP”). Operator grants to GTV a limited, non-exclusive, non-transferable (except as set forth in Section 12), royalty-free, right and license during the term of the applicable Operator Agreement to use, copy, display, and publicly perform the Operator IP as necessary and appropriate in connection with GTV’s performance of GTV Services.
9. Confidential Information. Each Party (as the “Receiving Party”) understands that the other Party (as the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (“Confidential Information” of the Disclosing Party). Confidential Information of GTV includes non-public information and data regarding features, functionality and performance of GTV’s products and services. Confidential Information of Operator includes non-public information and data provided by Operator to GTV to enable the provision of the GTV Services. The Receiving Party will not share or use the Disclosing Party’s Confidential Information unless: (i) such disclosure is to the Receiving Party’s personnel, including employees, agents, advisors and subcontractors, on a “need-to-know” basis in connection with the Receiving Party’s performance of these Operator TOS and/or the Operator Agreement (in which case the Receiving Party is responsible and liable for such personnel’s compliance with these Operator TOS), and (ii) such disclosure is by GTV to GOHC for purposes of entering into or performing an agreement with GOHC (in which case Operator authorizes GTV to disclose Operator Confidential Information to GOHC). The Receiving Party will take the necessary precautions to maintain the confidentiality of the Disclosing Party’s Confidential Information by using at least the same degree of care as the Receiving Party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The Receiving Party’s obligations under this Section shall not apply to information that (a) was rightfully known by the Receiving Party without obligations of confidentiality prior to receipt from the Disclosing Party, or (b) is or becomes public knowledge through no fault of the Receiving Party; or (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality. In addition, if the Receiving Party is required by a court or government agency to disclose Confidential Information of the Disclosing Party, the Receiving Party shall, subject to any applicable lawful restrictions, provide advance written notice to the Disclosing Party as soon as practicable before making such a disclosure and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. The Receiving Party shall use commercially reasonable efforts to limit such disclosure to the minimum required to comply with such demand. The obligations of this Section with respect to Confidential Information shall continue for so long as the Receiving Party is in possession of the Confidential Information.
10. Indemnification.
a. Mutual Indemnification. Each Party (as the “Indemnifying Party”) shall defend or settle any claims, suits, demands, or proceedings (collectively, “Claims”) brought by a third party against the other Party, such other Party’s parents, subsidiaries, and affiliates, and each of their respective directors, officers, employees, and agents (collectively, the “Indemnified Party”) to the extent such Claim alleges or arises out of the Indemnifying Party’s breach of its obligations under these Operator TOS or the Operator Agreement. The Indemnifying Party will indemnify the Indemnified Party against, and hold it harmless from, any resulting judgments, settlements, fees, expenses, costs, fines, and other reasonable out-of-pocket expenses incurred in connection with the Claim (including attorneys’ fees, but not including the cost of separate counsel for the Indemnified Party) (collectively, “Losses”).
b. Additional GTV Indemnification. In addition, GTV shall defend or settle any Claim brought by a third party against Operator, its parents, subsidiaries, and affiliates, and each of their respective directors, officers, employees, and agents (collectively, the “Operator Indemnified Parties”) alleging that the GTV Services (expressly excluding any Advertising) infringe, violate, or misappropriate the third party’s patent, copyright, or other intellectual property or proprietary right. GTV will indemnify the Operator Indemnified Parties against, and hold them harmless from, any resulting Losses. If such a Claim is asserted by a third party, GTV may (i) continue to enable Operator to use the GTV Services, (ii) modify the GTV Services to avoid the alleged infringement, or (iii) if GTV determines that these alternatives are not reasonably available, GTV may terminate the GTV Services upon written notice to Operator.
c. Additional Member Indemnification. In addition, Operator shall defend or settle: (i) any Claim asserted by or against GTV, its parents, subsidiaries, and affiliates, and each of their respective directors, officers, employees, and agents (collectively, the “GTV Indemnified Parties”) arising from or relating to any movement, rearrangement, or displacement of any kind of the GTV Hardware by any person or entity other than GTV or its authorized personnel or contractors, including but not limited to Operator, its employees, contractors, and customers; and/or (ii) any Claim asserted by a third party against any GTV Indemnified Party alleging that the Operator Content infringes, violates, or misappropriates the third party’s patent, copyright, or other intellectual property or proprietary right. Operator will indemnify the GTV Indemnified Parties against, and hold them harmless from, any resulting Losses.
d. Process. The party seeking indemnification under this Section must: (i) notify the party from whom indemnification is sought under this Section promptly in writing upon knowledge of a Claim for which indemnification is sought (but in any event with sufficient notice time for the indemnifying party to respond without prejudice); (ii) permit the indemnifying party to have exclusive control of the defense or settlement of any Claim brought by a third party (provided, however, that if the indemnifying party does not promptly and diligently assume the defense of the Claim, the party seeking indemnification may assume control of the defense at the other Party’s expense); and (iii) at the indemnifying party’s expense, provide all authority, information, cooperation, or assistance reasonably necessary to permit the indemnifying party to defend or settle the Claim. The indemnified party may participate in the defense of any Claim at its own expense. The indemnifying party will not, without the prior written consent of the indemnified party, enter into any settlement or compromise of a Claim that includes any admission or stipulation to any guilt, fault, liability, or wrongdoing by the indemnified party or that adversely affects the rights or interests of the indemnified party.
11. Representations and Warranties. GTV and Operator expressly represent and warrant that (a) each, respectively, has the full right and authority to enter into, execute, and perform its obligations under the Operator Agreement (including these Operator TOS), (b) it will comply with all applicable laws and regulations in connection with its performance of the Operator Agreement and these Operator TOS, and (c) no pending or threatened claim or litigation known to it would have a material adverse impact on its respective ability to perform as required by the Operator Agreement and these Operator TOS.
EXCEPT AS EXPRESSLY STATED IN THESE OPERATOR TOS, NEITHER GTV NOR OPERATOR MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GTV DOES NOT WARRANT THAT THE GTV CMS OR ANY OTHER SERVICES WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED. GTV MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY CONTENT OR INFORMATION PROVIDED BY OPERATOR, GOHC, OR ANY THIRD PARTY.
12. Assignment. Neither Party may assign its rights or delegate its obligations under the Operator Agreement and/or these Operator TOS without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign all of its rights and obligations under the Operator Agreement and these Operator TOS to any successor by way of merger or consolidation or in connection with the sale or transfer of all or substantially all of its business and assets relating to the Operator Agreement. Any attempt to assign or delegate in violation of this Section is null and void. Except to the extent forbidden in this Section, the Operator Agreement and these Operator TOS will be binding upon and inure to the benefit of the respective successors and assigns of the Parties.
13. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR A PARTY’S LIABILITY FOR BREACH OF CONFIDENTIALITY, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND/OR THE PARTY’S GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT: (A) NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE OPERATOR AGREEMENT, THESE OPERATOR TOS, AND/OR THE TRANSACTIONS CONTEMPLATED BY THE OPERATOR AGREEMENT AND/OR THESE OPERATOR TOS, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION OR DELAY, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; AND (B) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL LOSSES, DAMAGES, COSTS, OR EXPENSES ARISING FROM OR RELATING TO THE OPERATOR AGREEMENT AND THESE OPERATOR TOS SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES NOT EXCEEDING AN AMOUNT EQUAL TO THE GREATER OF (1) THE FEES PAID BY OPERATOR TO GTV DURING THE 12 MONTHS LEADING UP TO THE EVENT GIVING RISE TO THE CLAIM, OR (2) US$1,000. NOTWITHSTANDING THE FOREGOING, GTV SHALL HAVE NO LIABILITY OF ANY KIND TO OPERATOR OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND THAT ARISE, RELATE TO, OR RESULT FROM ANY MOVEMENT, REARRANGEMENT, OR DISPLACEMENT OF ANY KIND OF THE GTV HARDWARE BY ANY PARTY OTHER THAN GTV OR ITS AUTHORIZED PERSONNEL OR CONTRACTORS. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION SHALL APPLY TO ANY AND ALL LIABILITIES ARISING FROM OR RELATING TO THE OPERATOR AGREEMENT AND THESE OPERATOR TOS, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY).
14. Insurance. During the term of the Operator Agreement, GTV shall maintain insurance with the minimum coverage amounts listed below:
| Commercial General Liability | $5,000,000 per occurrence / $5,000,000 aggregate |
| Automobile Liability | $5,000,000 per occurrence / No aggregate |
| Workers Compensation | Statutory |
| Employers Liability | $5,000,000 per occurrence & per employee for bodily injury and occupational disease and policy limit for bodily injury by disease |
| Cyber Liability | $5,000,000 per occurrence / $5,000,000 aggregate |
15. Use of Name. Operator hereby consents to GTV’s use of Operator’s name and marks to refer publicly to Operator as a customer of GTV and to accurately describe the relationship of GTV and Operator in marketing materials (including press releases, website and social media). Operator represents and warrants that it has procured any necessary rights and consents (including from GOHC) to provide the consent given in this section. Any other use of Operator’s name or marks requires Operator’s prior consent.
16. Notices. All notices under the Operator Agreement or these Operator TOS shall be in writing. Notices shall be deemed delivered to and received by the other Party when: (i) actually received, if hand delivered; (ii) on the next business day when by Federal Express or other twenty-four (24) hour delivery service with fees prepaid; or (iii) on the day of transmission if sent by e-mail. Notices to GTV must be sent to GTV at the following contact information. Notices to Operator must be sent to Operator at the contact information provided in the Operator Agreement. Either Party may update such contact information for notices via written notice in compliance with this Section.
17. Governing Law; Venue. The laws of the State of Delaware govern the Operator Agreement, these Operator TOS, and all matters arising from or relating to them, without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either Party arising from or relating the Operator Agreement and/or these Operator TOS must be brought and resolved exclusively in the federal or state courts in the State of Delaware. The Parties agree to such courts’ exclusive personal jurisdiction with respect to any such matters, and they waive any defense of improper or inconvenient forum.
18. Severability. Should any provisions of the Operator Agreement or these Operator TOS be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions shall not be affected or impaired, provided that the Parties’ essential rights and obligations remain legal, valid, and enforceable.
19. Force Majeure. Neither Party will be liable for delay or default in the performance of its obligations under the Operator Agreement or these Operator TOS if such delay or default is caused by conditions beyond its reasonable control, including but not limited to fire, flood, accident, war, terrorism, riot, earthquakes, pandemics, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. A Party affected by a force majeure event will notify the other Party as soon as practicable, and report, at a minimum, an estimate of the impact and estimated time to resolution. Parties will use commercially reasonable efforts to minimize the impact of any force majeure event.
20. Waiver. The waiver by either Party of a breach of any provision of the Operator Agreement and/or these Operator TOS by the other Party must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach by the other Party.
21. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of the Operator Agreement and/or these Operator TOS, the prevailing Party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which the Party may be entitled.
22. Entire Agreement; Modifications and Amendments. The Operator Agreement and these Operator TOS collectively constitute the entire agreement between the Parties relating to its and their subject matter and supersede all prior oral or written agreements concerning such subject matter. The Operator Agreement may only be modified or amended by mutual written agreement signed by the authorized representatives of the Parties. GTV may modify these Operator TOS at any time in its sole discretion. GTV will notify Operator of any such change (which may be via the GTV CMS).
EXHIBIT A
List of Available Grocery TV Services
FULLY-MONETIZED SERVICES
All Fully Monetized Services are provided at no cost to Operator and are entirely supported by Advertising. GTV supplies all GTV Displays, GTV Media Players, and mounting hardware. The form and placement of GTV Displays for each service are determined on a store-by-store basis. The Operator Share-of-Voice for Fully-Monetized Services is 50%.
Front End: GTV Displays mounted above the front-end merchandisers and/or self-checkout.
Entrance: GTV Displays and/or pre-existing Operator Displays located in the store entrance areas. The Operator Service may be configured with utility fixtures depending on the needs and eligibility of Operator’s stores. Operator is solely responsible for the procurement and management of any consumables related to any fixturing provided by GTV, such as sanitizer wipes or circulars.
Pharmacy: GTV Displays and/or pre-existing Operator Displays located in the in-store pharmacy area.
PARTIALLY-MONETIZED AND NON-MONETIZED SERVICES
Partially-Monetized and Non-Monetized Services are provided at a cost to Operator. GTV will provide GTV Media Players which control the GTV-Powered Displays via an HDMI connection. Operator is responsible for procuring, installing, and maintaining any GTV-Powered Displays covered under Partially-Monetized and Non-Monetized Services.
For each GTV Media Player provided, Operator will elect either the Partially-Monetized Service or Non-Monetized Service at the beginning of the term. Monthly fee accruals will be based on then-current elections. Operator may change its election for any GTV Media Player at any time, up to once per year for each GTV Media Player, by notifying GTV’s support team by email. Election changes will be completed within 5 business days of the request. GTV reserves the right to refuse a Partially-Monetized Service election by Operator and require a Non-Monetized Service election if the GTV-Powered Display is not adequately monetizable, in GTV’s sole opinion.
Partially-Monetized Service: Operator Share-of-Voice for the Partially-Monetized Service is 80%, and the remaining 20% is reserved for Advertising which discounts the service cost to Operator and generates Advertising Royalties. Most common use cases are departmental marketing screens (e.g. produce, deli).
Non-Monetized Service: Operator Share-of-Voice for the Non-Monetized Service is 100%. There is no Advertising or royalties. Most common use cases include menu boards, end caps, and staff room displays.
SUPPORT SERVICES
Support by GTV for GTV Hardware is included at no additional cost. If Operator wishes GTV to procure, install, and/or provide any maintenance or support of any hardware not owned by GTV (such as Operator Displays), GTV and Operator must execute a separate agreement for those services.
Installation and Provisioning: GTV will send field technicians to each of Operator’s stores and manage all provisioning, setup, and installation of GTV Hardware.
Servicing: Within 2 business days of detection of an issue with a GTV Display or GTV Media Player, GTV will work with the relevant store manager to determine whether the issue has been caused by a store operations issue such as loss of power or Wi-Fi. Within 15 business days of confirmation that the issue is unrelated to store operations, GTV will dispatch a field service technician to diagnose the issue. If any GTV Hardware is found to be defective, the technician will repair or replace the defective GTV Hardware on-site. Otherwise, the technician will submit a report to Operator detailing the issue observed with hardware not owned by GTV (such as Operator Displays) and make any relevant recommendations.