These Grocery TV Terms of Service for Members of Wholesalers (the “Member TOS”) govern the provision of GTV Services (as defined below) by Clerk Retail, Inc. DBA Grocery TV (“GTV”) to a member of a wholesaler group who has entered into a Member Agreement (as defined below) with GTV for the provision of such services (“Member”). GTV and Member 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 Member to view and manage Member Content on the GTV-Powered Displays. “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 Member Displays with a GTV Media Player installed.
h. “GTV Services” means the services made available by GTV and ordered by Member pursuant to the Member Agreement and these Terms of Service.
i. “Member Agreement” means the written agreement that is executed by Member and GTV as a result of the Wholesaler Agreement pursuant to which Member has ordered the GTV Services specified in that agreement, subject to these Member TOS.
j. “Member Content” means all videos and/or images provided by Member via the GTV CMS.
k. “Member Displays” means all digital displays owned by Member.
l. “Wholesaler” means the entity identified on the Member Agreement that supplies grocery products and services on a wholesale basis to Member and other members of such Wholesaler’s organization or buying group.
m. “Wholesaler Agreement” means that certain agreement between GTV and Wholesaler pursuant to which, among other obligations, Wholesaler markets and promotes GTV Services to its members (including Member).
2. Ordering GTV Services; Member Agreement. GTV will provide the GTV Services that GTV and Member have agreed to in a Member Agreement, subject to these Member TOS. The list of GTV Services available from GTV and their descriptions as of the date of these Member TOS are set forth in Exhibit A to these Member TOS, but the Parties are only obligated as to those GTV Services specified in a Member Agreement executed by the Parties. The Parties may add new GTV Services at any time by executing a new Member Agreement. Each Member Agreement is subject to these Member TOS. In the event of a conflict between the terms of any Member Agreement and these Member TOS, these Member TOS control except to the extent the Member Agreement reflects an express intent to override one or more specific terms of these Member 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 Member or any third party for any interruptions to or unavailability of the GTV Services.
3. Responsibilities of GTV and Member.
a. Hardware.
(i) GTV Hardware. GTV will provide such GTV Hardware at the times and places set forth in the Member 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) Member Responsibilities. Upon installation of GTV Hardware by GTV or its authorized personnel, Member will promptly inspect such installation and notify GTV of any issues with the safety, placement, or operation of the GTV Hardware. Member will promptly communicate its acceptance of the installation if no such issues are present, or, if Member has notified GTV of issues, then it will communicate its acceptance once such issues are resolved. Member 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. Member 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), Member shall return the display to its original location and reconnect to power as soon as commercially practical. Member 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 Member TOS or the Member Agreement, GTV will bear the risk of loss for the GTV Hardware. However, Member is responsible and liable for any loss, damage, or destruction to GTV Hardware caused by the reckless or intentional conduct of Member and/or its employees, contractors, and agents.
(iv) Closed/Sold Stores. If, in Member’s normal course of business, Member closes or sells a store where GTV Hardware is located, it may remove such store(s) from the scope of the Member Agreement by providing notice to GTV and coordinating with GTV to remove the GTV Hardware in such closed/sold store(s). If Member closes or sells multiple stores as part of a merger, acquisition, divestiture, or sale of assets, then (1) Member will provide notice to GTV identifying the stores that are subject to the transaction; (2) the Member Agreement and these Member TOS will continue to apply to the stores of Member (or its permitted successor or assignee pursuant to Section 12 (Assignment)), and (3) Member will require that any third party who acquires multiple of Member’s stores enter into an agreement with GTV that is substantially similar to the Member Agreement for the stores acquired by the third party.
b. Software.
(i) Member Content. GTV will provide Member with access to the GTV CMS and allocate a percentage of minimum available playtime for Member Content on the GTV-Powered Displays as specified in Exhibit A (the “Member Share-of-Voice”). Member Content shall only be used to run unpaid content. To the extent that any portion of the Member Share-of-Voice is unutilized by Member, GTV shall fill the unutilized portion with GTV Entertainment Content.
(ii) License Grant. Subject to Member’s compliance with the Member Agreement and these member TOS, GTV grants to Member 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 Member Agreement. GTV grants no rights to Member by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in the Member Agreement and these Member TOS.
(iii) Authorized Users. Member 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 Member wishes to authorize any third-party contractor to be an Authorized User (for example, Wholesaler or an agency that manages Member Content on Member’s behalf), Member must have a written agreement with such third party that obligates the third party to comply with applicable provisions of these Member TOS in the contractor’s capacity as an Authorized User for Member. Member is fully responsible and liable for all acts or omissions by its Authorized Users as if committed by Member, and Member will not permit any other person or entity to access or use the GTV CMS. Member will protect any GTV CMS login credentials from unauthorized use or disclosure. By default, Member designates Wholesaler (and its permitted users) to be an Authorized User to upload Member Content on Member’s behalf. Member may opt out of this default designation by submitting a written request to GTV. In addition, if Member has an agreement with Design House, Inc. (or any successor entity) to supply digital circulars, Member designates that entity to be an Authorized User to upload the digital circulars as Member Content on behalf of Member.
(iv) Technical Support. GTV will provide Member with commercially reasonable technical support in connection with Member’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) Usage Data. GTV may collect aggregate and anonymous data and statistics relating to Member’s use of the GTV CMS (specifically excluding any data that identifies Member 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) License Restrictions. The GTV CMS is licensed, not sold, to Member. GTV reserves all rights not expressly granted in these Member TOS or the Member Agreement. Member will not and will not permit or encourage any person or entity (including Wholesaler or Member’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 Member in accordance with these Member 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 Member’s compliance with these Member TOS and the Member Agreement, GTV grants to Member a limited, non-exclusive, nontransferable (except pursuant to Section 12), non-sublicensable right to display Advertising provided by GTV on applicable GTV-Powered Displays in Member’s stores during the term of the applicable Member Agreement. GTV grants no rights to Member by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in these Member TOS and the applicable Member Agreement.
(ii) License Restrictions. The Advertising is owned by the creators or providers of such Advertising, and GTV provides it under these Member 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 Member. GTV reserves all rights not expressly granted in these Member TOS. Member 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 Member in accordance with these Member 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% Member 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. Member acknowledges that Advertising is represented to advertisers as a premium placement and, as such, Member 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 Member’s stores.
(vi) Optional Sales Data. GTV may on occasion request product sales data to run specific Advertising. Member, 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 a Member Agreement by GTV and Member, GTV will work with Member to coordinate installation and provisioning at each of Member’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 Member.
5. Term and Termination.
a. These Member TOS are effective as to Member on the date that GTV and Member have executed a Member Agreement, and they remain in effect for as long as any Member Agreement is in effect.
b. Either Party may terminate a Member Agreement for cause if the other Party has substantially breached a material provision of the Member Agreement or these Member 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 Member Agreement, all terms of these Member TOS that naturally should survive such expiration or termination do survive, including without limitation Sections 1, 3.b(vi), 3.c(ii), 5-13 and 16-22.
6. Royalties and Fees; Invoicing and Payments.
a. Royalties. GTV will pay Member a royalty for Advertising sold by GTV and displayed in such Member’s stores, in an amount and as calculated as set forth the applicable Member Agreement (the “Advertising Royalty”). GTV shall remit the Advertising Royalty quarterly via ACH transfer within 30 days of the end of each calendar quarter. In compliance with state laws, GTV does not pay any royalties for Advertising related to products containing alcohol, and the benefit to Member in such cases is limited to sales lift of the advertised products. Upon execution of a Member Agreement, Member shall provide to GTV a current copy of IRS Form W-9 and ACH payment information. Any and all payments by GTV to Member shall be withheld until such W-9 and ACH payment information is provided.
b. Fees for GTV Services: Payments by Wholesaler. If the Member Agreement specifies GTV Services for which GTV charges fees, then during the term of the Wholesaler Agreement, GTV will invoice Wholesaler on a monthly basis for the GTV Services provided to Member based on the number of installed GTV Media Players on the last day of each month, and GTV will attempt to collect such amounts from Wholesaler to the extent the Wholesaler Agreement obligates Wholesaler to pay such amounts on behalf of Member.
c. Fees for GTV Services: Payments by Member.
i. After the term of the Wholesaler Agreement (whether by expiration, termination, or Wholesaler’s dissolution or otherwise ceasing operations) and/or if GTV is unsuccessful in its efforts to collect amounts due under the Member Agreement from Wholesaler for any reason, then GTV will invoice Member directly for all amounts due under the Member Agreement, and Member agrees to remit payments of all such amounts as set forth below.
ii. If Member becomes obligated to pay fees for services under these Member TOS and/or the Member Agreement, Member will pay all such fees annually in advance. GTV will invoice, and Member will pay, the estimated fee for the GTV Service at the beginning of each year of the term of the applicable Member Agreement based on the then-current number of GTV-Powered Displays with an installed GTV Media Player. The first such payment will be pro-rated to cover the remainder of the then-current contract year of the applicable Member Agreement, and subsequent payments will cover subsequent years of the term of the applicable Member Agreement. 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 Member 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 Member. If the accrued fees for that year were more than the total amounts previously invoiced, GTV will invoice for, and Member will pay, the difference.
iii. If Member becomes obligated to pay any amount due under a Member Agreement and/or these Member TOS, Member 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 these Member TOS, the Member Agreement, 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, Member shall reimburse GTV for all reasonable costs and expenses incurred (including attorneys’ fees) in collecting any late payments or interest.
d. Taxes. The fees and other amounts charged by GTV and royalties or other amounts paid by GTV under these Member TOS and/or the Member 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 Member’s responsibility. However, Member has no responsibility for taxes based on GTV’s net income. If GTV invoices Member for any Taxes in connection with an invoice for products and services, Member will pay such amounts on or before the due date of the invoice. Unless included as a line item on an invoice, Member is responsible for determining and paying all Taxes. If any applicable law requires Member to withhold amounts from any payments to GTV, then Member 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 Member TOS and/or any Member Agreement shall create any employer-employee relationship, partnership, joint venture, or agency between the Parties. Except as expressly set forth in these Member 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 Member 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 Member TOS, Member owns sole and exclusive right, title, and interest in and to its names, logos, and copyrights, any images, audio, video, or other content or materials provided by Member (including all Member Content) and any and all intellectual property rights therein (the “Member IP”). Member 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 Member Agreement to use, copy, display, and publicly perform the Member 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 Member includes non-public information and data provided by Member 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 Member TOS and/or the Member Agreement (in which case the Receiving Party is responsible and liable for such personnel’s compliance with these Member TOS), and (ii) such disclosure is by GTV to Wholesaler for purposes of fulfilling obligations to Member (in which case Member authorizes GTV to disclose Member Confidential Information to Wholesaler subject to the confidentiality and other terms of the Wholesaler Agreement). 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 Member TOS or the Member 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 Member, its parents, subsidiaries, and affiliates, and each of their respective directors, officers, employees, and agents (collectively, the “Member 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 Member 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 Member 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 Member.
c. Additional Member Indemnification. In addition, Member 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 Member, its employees, contractors, and customers; and/or (ii) any Claim asserted by a third party against any GTV Indemnified Party alleging that the Member Content infringes, violates, or misappropriates the third party’s patent, copyright, or other intellectual property or proprietary right. Member 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 Member expressly represent and warrant that (a) each, respectively, has the full right and authority to enter into, execute, and perform its obligations under the Member Agreement (including these Member TOS), (b) it will comply with all applicable laws and regulations in connection with its performance of the Member Agreement and these Member 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 Member Agreement and these Member TOS.
EXCEPT AS EXPRESSLY STATED IN THESE MEMBER TOS, NEITHER GTV NOR MEMBER 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 MEMBER, WHOLESALER, OR ANY THIRD PARTY.
12. Assignment. Neither Party may assign its rights or delegate its obligations under the Member Agreement and/or these Member 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 Member Agreement and these Member 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 Member 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 Member Agreement and these Member 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 MEMBER AGREEMENT, THESE MEMBER TOS, AND/OR THE TRANSACTIONS CONTEMPLATED BY THE MEMBER AGREEMENT AND/OR THESE MEMBER 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 MEMBER AGREEMENT AND THESE MEMBER TOS SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES NOT EXCEEDING AN AMOUNT EQUAL TO THE FEES PAID BY MEMBER OR BY WHOLESALER ON BEHALF OF MEMBER 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 MEMBER 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 MEMBER AGREEMENT AND THESE MEMBER TOS, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY). IN NO EVENT SHALL GTV HAVE ANY LIABILITY TO MEMBER ARISING FROM OR RELATING TO THE PERFORMANCE OF OR FAILURE TO PERFORM THE WHOLESALER AGREEMENT. GTV’S EXCLUSIVE LIABILITY IN CONNECTION THE WHOLESALER AGREEMENT IS TO WHOLESALER, SUBJECT TO THE TERMS OF THE WHOLESALER AGREEMENT.
14. Insurance. During the term of the Member 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. Member hereby consents to GTV’s use of Member’s name and marks to refer publicly to Member as a customer of GTV and to accurately describe the relationship of GTV and Member in marketing materials (including press releases, website and social media). Any other use of Member’s name or marks requires Member’s prior consent.
16. Notices. All notices under the Member Agreement or these Member 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 Member must be sent to Member at the contact information provided in the Member 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 Member Agreement, these Member 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 Member Agreement and/or these Member 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 Member Agreement or these Member 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 Member Agreement or these Member 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 Member Agreement and/or these Member 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 Member Agreement and/or these Member 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 Member Agreement and these Member 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 Member Agreement may only be modified or amended by mutual written agreement signed by the authorized representatives of the Parties. GTV may modify these Member TOS at any time in its sole discretion. GTV will notify Member of any such change (which may be via the GTV CMS), provided, however, that any change to the Advertising Royalty or the fees for GTV Services, as described in the Member Agreement, require: (a) written agreement of Wholesaler and GTV during the term of the Wholesaler Agreement, or (b) written agreement of Member and GTV after the term of the Wholesaler Agreement.
EXHIBIT A
List of Available Grocery TV Services
FULLY-MONETIZED SERVICES
All Fully Monetized Services are provided at no cost to Member 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 Member 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 Member Displays located in the store entrance areas. The Entrance Service may be configured with utility fixtures depending on the needs and eligibility of Member’s stores. Member 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 Member 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 Member. GTV will provide GTV Media Players which control the GTV-Powered Displays via an HDMI connection. Member 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, Member 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. Member 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 Member and require a Non-Monetized Service election if the GTV-Powered Display is not adequately monetizable, in GTV’s sole opinion.
Partially-Monetized Service: Member Share-of-Voice for the Partially-Monetized Service is 80%, and the remaining 20% is reserved for Advertising which discounts the service cost to Member and generates Advertising Royalties. Most common use cases are departmental marketing screens (e.g. produce, deli).
Non-Monetized Service: Member 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 Member wishes GTV to procure, install, and/or provide any maintenance or support of any hardware not owned by GTV (such as Member Displays), GTV and Member must execute a separate agreement for those services.
Installation and Provisioning: GTV will send field technicians to each of Member’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 Member detailing the issue observed with hardware not owned by GTV (such as Member Displays) and make any relevant recommendations.