These Grocery TV Terms of Service for Retailers (the “Retailer TOS”) govern the provision of GTV Services (as defined below) by Clerk Retail, Inc. DBA Grocery TV (“GTV”) to an owner and/or operator of grocery stores who has entered into a Retailer Agreement (as defined below) with GTV for the provision of such services (“Retailer”). GTV and Retailer 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. “Entertainment Content” means audiovisual content that is for entertainment purposes, not for advertising or promotion of products and services.
b. “GTV Advertising” means all audiovisual advertising for third-party products and services sold by GTV to be displayed on GTV-Powered Displays.
c. “GTV CMS” means GTV’s proprietary cloud-based software suite that allows Retailer to manage certain content shown on the GTV-Powered Displays.
d. “GTV Displays” means all digital displays owned and provided by GTV.
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 in Retailer’s stores, including GTV Displays and any Retailer Displays with a GTV Media Player installed.
h. “GTV Services” means all services made available to Retailer by GTV and ordered by Retailer pursuant to the Retailer Agreement.
i. “Retailer Advertising” means audiovisual advertising sold by Retailer to be displayed on GTV-Powered Displays.
j. “Retailer Agreement” means that certain written agreement executed by GTV and Retailer pursuant to which Retailer has ordered the GTV Services specified in that agreement, subject to these Retailer TOS.
k. “Retailer Content” means, collectively, Retailer Advertising, Retailer Promotions, and Entertainment Content provided by Retailer.
l. “Retailer Promotions” means audiovisual content provided by Retailer to be displayed on GTV-Powered Displays (i) that promotes Retailer, its services and/or brand, or products sold in Retailer’s stores, and (ii) for which Retailer receives no compensation to deliver or report on ad impressions or plays. For example, a Retailer Promotion may promote a third-party product on GTV-Powered Displays where the third party has paid Retailer to promote that product broadly (e.g., product placement on an endcap, or a pricing discount) but has not paid for delivery or reporting of ad impressions or plays.
m. “Retailer Displays” means all digital displays owned by Retailer.
2. Ordering GTV Services; Retailer Agreement. GTV will provide the GTV Services that GTV and Retailer have agreed to in a Retailer Agreement, subject to these Retailer TOS. The list of GTV Services available from GTV and their descriptions as of the date of these Retailer TOS are set forth in Exhibit A to these Retailer TOS, but the Parties are only obligated as to those GTV Services specified in a Retailer Agreement executed by the Parties. The Parties may add new GTV Services at any time by executing a new Retailer Agreement. Each Retailer Agreement is subject to the terms and conditions of these Retailer TOS. In the event of a conflict between the terms of the Retailer Agreement and the terms of these Retailer TOS, the terms of these Retailer TOS control except to the extent the Retailer Agreement reflects an express intent to override one or more specific terms of these Retailer 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, except as expressly provided in the Retailer Agreement and these Retailer TOS, shall not be responsible for any costs or damages incurred by Retailer or any third party for any interruptions to or unavailability of the GTV Services.
3. Responsibilities of GTV and Retailer.
a. Hardware.
(i) GTV Hardware. GTV will provide such GTV Hardware at the times and places set forth in the Retailer 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) Retailer Responsibilities. Upon installation of GTV Hardware by GTV or its authorized personnel, Retailer will promptly inspect such installation and notify GTV of any issues with the safety, placement, or operation of the GTV Hardware. Retailer will promptly communicate its acceptance of the installation if no such issues are present, or, if Retailer has notified GTV of issues, then it will communicate its acceptance once such issues are resolved. Retailer 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. Retailer 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), Retailer shall return the display to its original location and reconnect to power as soon as commercially practical. Retailer 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 Retailer TOS or the Retailer Agreement, GTV will bear the risk of loss for the GTV Hardware. However, Retailer is responsible and liable for any loss, damage, or destruction to GTV Hardware caused by the reckless or intentional conduct of Retailer and/or its employees, contractors, and agents.
(iv) Closed/Sold Stores. If, in Retailer’s normal course of business, Retailer closes or sells a store where GTV Hardware is located, it may remove such store(s) from the Retailer Agreement by providing notice to GTV and coordinating with GTV to remove the GTV Hardware in such closed/sold store(s). If Retailer closes or sells multiple stores as part of a merger, acquisition, divestiture, or sale of assets, then (1) Retailer will provide notice to GTV identifying the stores that are subject to the transaction; (2) the Retailer Agreement and these Retailer TOS will continue to apply to the stores of Retailer (or its permitted successor or assignee pursuant to Section 12 (Assignment)), and (3) Retailer will use commercially reasonable efforts to assist GTV in establishing a new agreement with the acquirer.
b. GTV CMS and Retailer Advertising.
(i) GTV CMS License Grant. Subject to Retailer’s compliance with the Retailer Agreement and these Retailer TOS, GTV grants to Retailer 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 Retailer Agreement. GTV grants no rights to Retailer by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in the Retailer Agreement and these Retailer TOS.
(ii) Authorized Users. Retailer 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 Retailer wishes to authorize any third-party contractor to be an Authorized User (for example, an agency that manages Retailer Content on Retailer’s behalf), Retailer must have a written agreement with such third party that obligates the third party to comply with applicable provisions of these Retailer TOS in the contractor’s capacity as an Authorized User for Retailer. Retailer is fully responsible and liable for all acts or omissions by its Authorized Users as if committed by Retailer, and Retailer will not permit any other person or entity to access or use the GTV CMS. Retailer will protect any GTV CMS login credentials from unauthorized use or disclosure.
(iii) Technical Support. GTV will provide Retailer with commercially reasonable technical support in connection with Retailer’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.
(iv) 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”). Retailer may terminate the Retailer 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. Retailer must notify GTV of its intent to terminate the Retailer Agreement pursuant to this section within 60 days after the failure to meet service levels giving rise to this termination right.
(v) Usage Data. GTV may collect aggregate and anonymous data and statistics relating to Retailer’s use of the GTV CMS (specifically excluding any data that identifies Retailer 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.
(vi) GTV CMS License Restrictions. The GTV CMS is licensed, not sold, to Retailer. GTV reserves all rights not expressly granted in these Retailer TOS and the Retailer Agreement. Retailer will not and will not permit or encourage any person or entity (including Retailer’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 Retailer in accordance with these Retailer 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.
(vii) Retailer Share-of-Voice. GTV will allocate a percentage of minimum available playtime for Retailer Content on the GTV-Powered Displays as specified in Exhibit A to these Retailer TOS (the “Retailer Share-of-Voice”). GTV shall prioritize Retailer Advertising to fill the Retailer Share-of-Voice, to the extent Retailer Advertising is available. If there is insufficient Retailer Advertising available to fill the Retailer Share-of-Voice, GTV shall display Retailer Promotions, to the extent available, and Entertainment Content provided by Retailer. GTV may, in its discretion, temporarily increase the Retailer Share-of-Voice for a GTV-Powered Display at times when there is not enough GTV Advertising to fill the time and Retailer has provided sufficient Retailer Promotions and/or Entertainment Content. To the extent that any portion of the Retailer Share-of-Voice is not used by Retailer, GTV shall fill the unused portion with Entertainment Content provided by GTV.
(viii) GTV CMS Modules. The GTV CMS that GTV makes available to Retailer may include some or all of the following modules or features:
(A) Retailer Promotions. GTV will make available to Retailer the GTV CMS module that is used to deliver Retailer Promotions, provided, however, that “Retailer Promotions” expressly exclude: (1) audiovisual content for which a third party provides compensation to Retailer in exchange for the delivery or reporting of ad impressions or plays, which is Retailer Advertising, all of which must be delivered through the GTV CMS module described below in subsection (B); and (2) any promotions of a state lottery, which content shall be provided exclusively by GTV as GTV Advertising under these Retailer TOS.
(B) Retailer Advertising. If the Parties have agreed that Retailer will provide Retailer Advertising to be managed by the GTV CMS, then GTV will make available the GTV CMS module that is used to deliver Retailer Advertising.
(1) The intention of both Parties is for Retailer to sell Retailer Advertising only to third-party vendors whose products are sold in Retailer’s stores (the “Retailer Vendors”). Retailer will not market or sell Retailer Advertising to any other third parties and will refer any other potential advertising buyers (other than Retailer Vendors) to GTV’s sales team. State lotteries are sold by GTV’s sales team and are not considered Retailer Vendors under these Retailer TOS.
(2) Retailer may elect to fill up to 100% of the Retailer Share-of-Voice with Retailer Advertising. Retailer is solely responsible for ensuring it has sufficient inventory for any Retailer Advertising.
(3) Retailer agrees that it will market and sell Retailer Advertising at a rate of no less than $12.00 CPM (cost per thousand impressions), or as mutually agreed to by the Parties in writing.
(4) GTV’s sole obligation with regard to Retailer Advertising is limited to delivery on the GTV-Powered Displays. As between Retailer and GTV, Retailer is solely responsible and liable to Retailer Vendors, including but not limited to all interactions and collections.
(5) GTV charges an ad serving fee for Retailer Advertising equal to 25% of the gross revenue derived by Retailer from all Retailer Advertising (the “Ad Serving Fees”). Ad Serving Fees are calculated monthly for Retailer Advertising delivered in that month, and are invoiced and paid in accordance with Section 6.b.
(C) Entertainment Content. If the Parties have agreed that Retailer will provide Entertainment Content to be managed by the GTV CMS, then GTV will make available the GTV CMS module that is used to deliver Entertainment Content provided by Retailer. Retailer may also opt out of Entertainment Content provided by GTV if desired.
(ix) Retailer Programmatic Advertising. In addition, the Parties may agree to facilitate the delivery of Retailer Advertising via a third-party programmatic demand-side platform that is integrated with GTV’s ad inventory (a “DSP”)—for example, The Trade Desk (“Retailer Programmatic Advertising”). All revenues received by GTV for Retailer Programmatic Advertising are excluded from the Advertising Royalty calculation under Section‎ 6.a. Retailer Programmatic Advertising will use the playtime reserved for GTV Advertising and is subject to real-time inventory availability and price-based bidding prioritization. If the Parties have agreed to facilitate Retailer Programmatic Advertising via a DSP, then:
(A) GTV will create and maintain a deal token (the “Deal Token”) that is linked to Retailer’s account on the DSP and permits the delivery of Retailer Programmatic Advertising at discounted rates. Initially, the Deal Token will be priced $3.00 per thousand impressions (CPM). Within 5 days of the end of each calendar quarter, Retailer will provide GTV with the average gross selling price of Retailer Programmatic Advertising for that quarter (gross sales divided by impressions served) and the Deal Token will be re-priced to the higher of (1) 25% of the average gross sales price or (2) $3.00 CPM. All pricing in this section represents the net amount received by GTV. The price paid by Retailer on the DSP will include any applicable third-party fees (e.g. DSP/SSP).
(B) All planning, delivery, invoicing, and payment for Retailer Programmatic Advertising will be managed by Retailer through the DSP and any relevant supply-side partners under the terms and conditions of agreements that exist between Retailer and the DSP provider, and GTV and the DSP provider and/or supply-side partners. GTV has no obligations to Retailer with respect to the Retailer Programmatic Advertising other than to provide Retailer (via the DSP) with the Deal Token and to update the Deal Token’s CPM rate on a quarterly basis.
c. Third Party Retailer Advertising. In addition, the Parties may agree to facilitate the delivery of advertising on GTV-Powered Displays that is sold on behalf of Retailer by Retailer’s affiliates, trade/marketing groups and/or wholesaler groups in which Retailer participates or of which Retailer is a member, or any of such entities’ affiliates (“Third-Party Retailer Advertising”). The terms relating to Third-Party Retailer Advertising, including any licenses, fees or other financial arrangements, and other terms and conditions, are subject to separate agreements that Retailer and GTV enter into with each such third party. For avoidance of doubt, all revenues received by GTV for Third-Party Retailer Advertising are excluded from the Advertising Royalty calculation under Section 6.a. Third-Party Retailer Advertising will be delivered by GTV using playtime reserved for Retailer Share-of-Voice, or programmatically via a DSP using playtime reserved for GTV Advertising.
d. GTV Advertising.
(i) License Grant. Subject to Retailer’s compliance with these Retailer TOS and the Retailer Agreement, GTV grants to Retailer a limited, non-exclusive, non-transferable (except pursuant to Section 12), non-sublicensable right to display GTV Advertising on applicable GTV-Powered Displays in its stores during the term of the Retailer Agreement. GTV grants no rights to Retailer by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in the Retailer Agreement and these Retailer TOS.
(ii) License Restrictions. The GTV Advertising is owned by the creators or providers of such GTV Advertising, and GTV provides it under these Retailer TOS as a sublicense subject to any applicable terms or conditions imposed by such creators or providers. The GTV Advertising is sublicensed, not sold, by GTV to Retailer. GTV reserves all rights not expressly granted in these Retailer TOS. Retailer 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 GTV Advertising; (b) sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease, or loan any portion of the GTV Advertising to any other person or entity, or otherwise allow any person or entity to use, copy, publish, display, or perform the GTV Advertising for any purpose other than to display the GTV Advertising for the benefit of Retailer in accordance with these Retailer TOS; or (c) display, perform, publish, or otherwise use the GTV 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) GTV Advertising Inventory. For GTV Services with less than 100% Retailer Share-of-Voice, GTV shall utilize the remaining playtime on the GTV-Powered Displays to display GTV Advertising.
(iv) Content Guidelines. GTV will review all GTV Advertising to ensure compliance with the GTV Content Guidelines, which can be found at https://grocerytv.com/legal/content-guidelines/.
(v) Premium Placement. Retailer acknowledges that GTV Advertising is represented to advertisers as a premium placement and, as such, Retailer (a) agrees not to place, or allow any third party to place, any third-party advertising on digital screens (other than Retailer Advertising on GTV-Powered Displays) 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 provide advertisements through digital out-of-home supply-side platforms (including but not limited to Vistar, Place Exchange, and Hivestack) on digital screens in Retailer’s stores.
(vi) Optional Sales Data. GTV may on occasion request product sales data to run specific GTV Advertising. Retailer, 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).
e. Restrictions. Each Party agrees that it will not: (i) engage in any deceptive, misleading or unethical practices that are or might be detrimental to the other Party or its products or services (including without limitation any disparagement of the other Party or its products or services or any false or misleading representations with regard to the other Party or its products, or services); or (ii) publish or use, or cooperate in the publication or use of, any misleading or deceptive advertising material. In addition, Retailer agrees that it will not make any representations, warranties, or guarantees to any third party with respect to the nature, specifications, features, or capabilities of advertising on GTV-Powered Displays or GTV’s products or services that are inconsistent with the applicable representations made by GTV in the Retailer Agreement or these Retailer TOS.
4. Implementation. Upon execution of a Retailer Agreement, GTV will work with Retailer to coordinate installation and provisioning at each of Retailer’s stores listed in the Retailer Agreement 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 Retailer.
5. Term and Termination.
a. These Retailer TOS are effective as to Retailer on the date that Retailer and GTV have executed a Retailer Agreement, and they remain in effect for as long as any Retailer Agreement is in effect.
b. Either Party may terminate a Retailer Agreement for cause if the other Party has substantially breached a material provision of the Retailer Agreement or these Retailer 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 a Retailer Agreement, all terms of these Retailer TOS that naturally should survive such expiration or termination do survive, including without limitation Sections 1, 3.b(v), 3.b(vi), 3.d(ii), 3.e, 5.c, 6 (with respect to amounts due and payable after expiration or termination), 7-13 and 16-22.
6. Royalties and Fees; Invoicing and Payments.
a. GTV AdvertisingRoyalties.
(i) If the Retailer Agreement specifies GTV Services for which GTV pays royalties for GTV Advertising, GTV will pay Retailer a royalty for GTV Advertising excluding any advertising that is related to products containing alcohol (in compliance with state laws; the benefit to Retailer for such GTV Advertising is limited to sales lift of the advertised products) (“Royalty-Bearing Advertising”). The royalty rate for Royalty-Bearing Advertising is equal to 17% of the gross revenues collected by GTV for Royalty-Bearing Advertising delivered on the GTV-Powered Displays in each of Retailer’s stores (the “Advertising Royalty”). For avoidance of doubt, an Advertising Royalty is earned 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.
(ii) If the Retailer Agreement specifies a minimum Advertising Royalty (including, for example, a Minimum Annual Guarantee), then this subsection (ii) applies. If no such minimum is specified in the Retailer Agreement, then this subsection (ii) does not apply.
(A) After each calendar quarter, GTV shall calculate for that quarter: (1) the total Advertising Royalty calculated for Retailer for that quarter, (2) a prorated minimum payment for that quarter based on the current stores and GTV Services in operation (the “Quarterly Minimum Payment”), and (3) the difference between the Advertising Royalty and the Quarterly Minimum Payment (the “Royalty Difference”). 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/GTV Service. Retailer’s right to receive a Quarterly Minimum Payment is subject to Retailer’s compliance with its obligations under the Retailer Agreement and these Retailer TOS, including without limitation Retailer’s obligations under Section 3 to facilitate GTV’s delivery of GTV Advertising. If Retailer fails to fulfill its obligations for any given 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 Retailer was in compliance with its obligations in the given store. For avoidance of doubt, such proration would apply only to the calculation of the Minimum Quarterly Payment and Retailer would continue to receive Advertising Royalties for all stores.
(B) If the quarterly Advertising Royalty is less than or equal to the Quarterly Minimum Payment, then GTV shall: (1) pay Retailer the Quarterly Minimum Payment, and (2) add the Royalty Difference to a running total of payment advances that will apply toward future quarters’ royalty calculations as described below (“Payment Advance”). To the extent that there is any outstanding Payment Advance upon expiration or termination of the Retailer Agreement, such Payment Advance will continue to be deducted from future Advertising Royalty payments until all Payment Advances have been fully recovered by GTV, and Retailer shall not owe any amounts to GTV for Payment Advances that cannot be recovered.
(C) If the quarterly Advertising Royalty is greater than the Quarterly Minimum Payment, then:
(1) if there is no outstanding Payment Advance, GTV shall pay Retailer an amount equal to the quarterly Advertising Royalty;
(2) if the outstanding Payment Advance is less than or equal to the Royalty Difference, the Payment Advance is drawn down to $0, and GTV shall pay Retailer an amount equal to the quarterly Advertising Royalty minus the outstanding Payment Advance; or
(3) if the outstanding Payment Advance is greater than the Royalty Difference, GTV shall pay Retailer the Quarterly Minimum Payment, and shall reduce the Payment Advance by the amount of the Royalty Difference.
(iii) GTV shall calculate and remit any payments due under this section on a quarterly basis via ACH transfer within 30 days of the end of each calendar quarter. Upon execution of a Retailer Agreement, Retailer shall provide to GTV a current copy of IRS Form W-9 and ACH payment information. Any and all payments by GTV to Retailer shall be withheld until such W-9 and ACH payment information is provided.
b. Fees and Payments for GTV Services.
(i) If the Retailer Agreement specifies GTV Services for which GTV charges fees, GTV will invoice Retailer the estimated annual fee for the GTV Service at the beginning of each year of the term of the Retailer Agreement based on the then-current number of GTV-Powered Displays with an installed GTV Media Player. GTV will track actual fees for GTV Services monthly based on the number of installed GTV Media Players on the last day of each month. At the end of each year of the term of the Retailer Agreement, if the actual fees accrued for that year are less than the total amounts invoiced for that year, GTV will issue a corrective payment to Retailer. If the accrued fees for that year were more than the total amounts previously invoiced, GTV will invoice for, and Retailer will pay, the difference.
(ii) If Retailer sells Retailer Advertising, GTV will invoice Retailer for the applicable Ad Serving Fees on a monthly basis.
(iii) Retailer will pay amounts invoiced by GTV within thirty (30) days of the invoice date. All payments are non-refundable, with no right to set off, discount, or otherwise reduce any amounts due to GTV under the Retailer Agreement, these Retailer TOS, or otherwise. Amounts that remain unpaid more than five (5) days after the due date are subject to a finance charge of the lesser of (A) 1.5% per month, or (B) the maximum interest permitted by law, on any outstanding balance. In addition, Retailer shall reimburse GTV for all reasonable costs and expenses incurred (including attorneys’ fees) in collecting any late payments or interest.
c. Taxes. The fees and other amounts charged by GTV and royalties or other amounts paid by GTV under the Retailer Agreement and/or these Retailer TOS 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 Retailer’s responsibility. However, Retailer has no responsibility for taxes based on GTV’s net income. If GTV invoices Retailer for any Taxes in connection with an invoice for products and services, Retailer will pay such amounts on or before the due date of the invoice. Unless included as a line item on an invoice, Retailer is responsible for determining and paying all Taxes. If any applicable law requires Retailer to withhold amounts from any payments to GTV, then Retailer 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 the Retailer Agreement and/or these Retailer TOS shall create any employer-employee relationship, partnership, joint venture, or agency between the Parties. Except as expressly set forth in these Retailer 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 Retailer 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 GTV Advertising or Entertainment Content provided by GTV, the applicable creator or author owns all right, title, and interest in and to such GTV Advertising or Entertainment Content, including all copyright and other intellectual property rights in and to it.
b. Subject only to the licenses expressly granted in these Retailer TOS, Retailer either owns the sole and exclusive right, title, and interest in and to, or represents and warrants that it has all necessary and sufficient rights in and to the following to the extent that Retailer provides any of the following in connection with the Retailer Agreement and these Retailer TOS: trademarks, trade names, and logos; the Retailer Content and any other images, audio, video, or other content or materials; all intellectual property and/or proprietary rights in and to the foregoing (collectively, the “Retailer IP”). Retailer 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 Retailer Agreement to use, copy, display, modify, adapt, create derivative works of, and publicly perform the Retailer 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 Retailer includes non-public information and data provided by Retailer 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 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 the Retailer Agreement and these Retailer TOS (in which case the Receiving Party is responsible and liable for such personnel’s compliance with these Retailer TOS). 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 the Retailer Agreement and/or these Retailer TOS. 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 Retailer, its parents, subsidiaries, and affiliates, and each of their respective directors, officers, employees, and agents (collectively, the “Retailer Indemnified Parties”) alleging that the GTV Services (expressly excluding any GTV Advertising) infringe, violate, or misappropriate the third party’s patent, copyright, or other intellectual property or proprietary right. GTV will indemnify the Retailer 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 Retailer 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 Retailer.
c. Additional Retailer Indemnification. In addition, Retailer 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 Retailer, its employees, contractors, and customers; and/or (ii) any Claim asserted by a third party against any GTV Indemnified Party alleging that any Retailer Content infringes, violates, or misappropriates the third party’s patent, copyright, or other intellectual property or proprietary right. Retailer 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 Retailer expressly represent and warrant that (a) each, respectively, has the full right and authority to enter into, execute, and perform its obligations under the Retailer Agreement and these Retailer TOS, (b) it will comply with all applicable laws and regulations in connection with its performance of the Retailer Agreement and these Retailer 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 Retailer Agreement and these Retailer TOS.
EXCEPT AS EXPRESSLY STATED IN THESE RETAILER TOS, NEITHER GTV NOR RETAILER 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 RETAILER OR ANY THIRD PARTY.
12. Assignment. Neither Party may assign its rights or delegate its obligations under the Retailer Agreement and/or these Retailer 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 Retailer Agreement and these Retailer 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 Retailer 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 Retailer Agreement and these Retailer 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 RETAILER AGREEMENT, THESE RETAILER TOS, AND/OR THE TRANSACTIONS CONTEMPLATED BY THE RETAILER AGREEMENT AND THESE RETAILER 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 RETAILER AGREEMENT AND/OR THESE RETAILER TOS SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES NOT EXCEEDING AN AMOUNT EQUAL TO THE FEES PAID BY RETAILER TO GTV DURING THE 12 MONTHS LEADING UP TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, GTV SHALL HAVE NO LIABILITY OF ANY KIND TO RETAILER 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 RETAILER AGREEMENT AND THESE RETAILER TOS, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY).
14. Insurance. During the term of the Retailer 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. Retailer hereby consents to GTV’s use of Retailer’s name and marks to refer publicly to Retailer as a customer of GTV and to accurately describe the relationship of GTV and Retailer in marketing materials (including press releases, website and social media). Any other use of Retailer name or marks requires Retailer’s prior consent.
16. Notices. All notices under the Retailer Agreement and/or these Retailer 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 Retailer must be sent to Retailer at the contact information provided in the Retailer Agreement. Either Party may update such contact information for notices via written notice in compliance with this Section.
Grocery TV
Attn: Legal Dept
1211 E 4th St Ste 240
Austin, TX 78702
legal@grocerytv.com
17. Governing Law; Venue. The laws of the State of Delaware govern the Retailer Agreement, these Retailer 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 Retailer Agreement or these Retailer 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 Retailer Agreement or these Retailer 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 Retailer Agreement or these Retailer 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 Retailer Agreement and/or these Retailer 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 Retailer Agreement or these Retailer 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 Retailer Agreement and these Retailer 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 Retailer Agreement may only be modified or amended by mutual written agreement signed by the authorized representatives of the Parties. GTV may modify these Retailer TOS at any time in its sole discretion upon notification by GTV of any such change (which may be via the GTV CMS), provided, however, that (a) any change to fees for GTV Services reflected in the Retailer Agreement will require mutual written agreement of GTV and Retailer, and (b) any change to the calculation of the Advertising Royalty in Section 6.a(i) of these Retailer TOS will not become effective for Retailer until the beginning of the next renewal term of the Retailer Agreement.
EXHIBIT A
List of Available Grocery TV Services
FULLY-MONETIZED SERVICES
All Fully Monetized Services are provided at no cost to Retailer, and are entirely supported by GTV 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 Retailer 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 Retailer Displays located in the store entrance areas. The Entrance Service may be configured with utility fixtures depending on the needs and eligibility of Retailer’s stores. Retailer 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 Retailer 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 Retailer. GTV will provide GTV Media Players which control the GTV-Powered Displays via an HDMI connection. Retailer 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, Retailer 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. Retailer 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 Retailer and require a Non-Monetized Service election if the GTV-Powered Display is not adequately monetizable, in GTV’s sole opinion.
Partially-Monetized Service: Retailer Share-of-Voice for the Partially-Monetized Service is 80%, and the remaining 20% is reserved for GTV Advertising which discounts the service cost to Retailer and generates Advertising Royalties. Most common use cases are departmental marketing screens (e.g. produce, deli).
Non-Monetized Service: Retailer Share-of-Voice for the Non-Monetized Service is 100%. There is no GTV 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 Retailer wishes GTV to procure, install, and/or provide any maintenance or support of any hardware not owned by GTV (such as Retailer Displays), GTV and Retailer must execute a separate agreement for those services.
Installation and Provisioning: GTV will send field technicians to each of Retailer’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 Retailer detailing the issue observed with hardware not owned by GTV (such as Retailer Displays) and make any relevant recommendations.
| GTV Service | Fully-Monetized | Partially-Monetized | Non-Monetized |
|---|---|---|---|
| Retailer Share-of-Voice | 50% | 80% | 100% |
| CMS + Media Player ($/screen/month) | $0 | $12.50 | $25.00 |
| On-Site Installation + Servicing ($/screen/month) | $0 | $0 | $0 |
| Party Responsible for Displays | GTV | Retailer | Retailer |
| Advertising Royalties | Yes | Yes | No |