Insertion Order – Grocery TV Displays
Terms and Conditions
1. Payment.
A. Invoices. UNFI, at its election, will either (i) invoice Advertiser for the fees set forth in the IO (“Fees”), and Advertiser shall pay UNFI all Fees within thirty (30) days from the date of invoice; or (ii) deduct the Fees Advertiser is obligated to pay UNFI from the amounts UNFI owes Advertiser under any purchase order between the parties. Each party shall be solely liable for the payment of any and all taxes in connection with the performance of their obligations under the IO.
B. Advertiser Obligations. If UNFI’s performance of any of its obligations under the IO is prevented or delayed by any act or omission by Advertiser or failure by Advertiser to perform any relevant obligation (“Default”): (i) UNFI shall, without limiting its other rights or remedies, have the right to suspend performance until Advertiser remedies the Default and to rely on the Default to relieve it from the performance of any of its obligations to the extent the Default prevents or delays UNFI’s performance of any of its obligations; (ii) UNFI shall not be liable for any costs or losses sustained or incurred by Advertiser arising directly or indirectly from UNFI’s failure or delay to perform any of its obligations; and (iii) UNFI may elect to deduct the Fees from the Advertiser or invoice Advertiser for the Fees and any costs or losses sustained or incurred by UNFI arising directly or indirectly from the Default, and Advertiser shall be obligated to pay pursuant to Section (1)(A).
C. Cancellation and Amendment. In the event that Advertiser cancels, UNFI may elect to charge Advertiser the Fees and Advertiser shall be obligated to pay such Fees pursuant to Section 1(A). In the event of any amendment to the IO by Advertiser (as agreed between the parties), Advertiser shall reimburse UNFI pursuant to Section 1(A) for any third party costs, charges or expenses incurred to which UNFI is committed as a result of the amendment.
2. Advertiser Creative.
Advertiser shall provide the promotional and marketing materials to UNFI to be displayed on GTV Screens (“Advertiser Content”), and UNFI shall provide the Advertiser Content to GTV for placement on the GTV Screens. Advertiser owns all right, title and interest in and to any (1) Advertiser Content and (2) any of Advertiser’s trademarks, service marks and trade names used in connection with the Advertiser Content (“Advertiser Marks”). Advertiser may elect to share certain Advertiser Content and Advertiser Marks with UNFI in order to have UNFI and/or its service providers create the advertising content for the GTV Screens, which is a service that will be set forth in the IO. Advertiser grants UNFI a non-exclusive, royalty-free, worldwide right and license to use, reproduce and display all Advertiser Content and Advertiser Marks for the purpose of performing UNFI’s obligations under the IO and to sublicense the foregoing rights to GTV in connection with the IO. Notwithstanding the foregoing, nothing herein shall prevent or impair any right to use the Advertiser Content and Advertiser Marks to the extent such use is allowable without a license under applicable laws and regulations (e.g., fair use).
3. Reporting.
GTV will provide UNFI reporting on the plays and impressions of the Campaigns on the GTV Screens, which UNFI will provide Advertiser.
4. Representations and Warranties.
Each party represents and warrants to the other party that: (1) it has full power and authority to execute and deliver the IO and to perform its obligations under the IO without any further ratification or approval; (2) the IO constitutes the legal, valid, and binding obligations of such party; (3) it has the right, power, and authority to grant the rights and licenses under the IO free and clear of any claims, liens, or encumbrances; and (4) it has all rights, property rights, and all permits and licenses required of such party and necessary to fulfill its performance obligations under the IO.
5. Indemnification; Warranty Disclaimer; Limitation of Liability
A. Indemnification. Advertiser shall defend, indemnify and hold UNFI and its officers, directors, employees and agents (collectively, the “indemnified parties”), harmless from and against any claims, damages, losses, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Damages”) incurred by an indemnified party arising from or related to Advertiser’s right to provide the Advertiser Content and Advertiser Marks under the IO or any claim for misappropriation, violation or infringement of third-party intellectual property rights arising out of or relating to the Advertiser Content and Advertiser Marks. The indemnified party shall provide Advertiser with reasonable notice of any claim for which it intends to seek indemnification; provided, however, that failure to provide such notice shall not limit Advertiser’s obligations hereunder. Advertiser shall assume, at its sole cost and expense, the defense of such claim through counsel reasonably acceptable to the indemnified party, except that the indemnified party may at its option and sole expense be represented by separate counsel. Advertiser will have sole control of the defense or settlement of any claim or suit, subject to final approval of any settlement by the indemnified party.
B. WARRANTY DISCLAIMER. THE SERVICES PROVIDED BY UNFI DESCRIBED HEREIN ARE PROVIDED ON AN “AS IS” BASIS. UNFI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THE CAMPAIGNS AND ADVERTISING EFFORTS SHALL MEET ADVERTISER’S REQUIREMENTS OR HAVE ANY IMPACT ON ADVERTISER’S SALES; AND (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND REGULATIONS, UNFI DISCLAIMS ANY AND ALL SUCH WARRANTIES.
C. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS, OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF, OR HAVING TO DO WITH, THE IO, WHETHER THOSE DAMAGES ARE ACTIONABLE UNDER CONTRACT, TORT, STATUTE, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNFI’S TOTAL AGGREGATE LIABILITY TO ADVERTISER ARISING OUT OF, OR HAVING TO DO WITH, THE IO, WHETHER THAT LIABILITY IS ACTIONABLE UNDER CONTRACT, TORT, STATUTE, OR OTHERWISE, SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE AMOUNT OF FEES PAID BY ADVERTISER TO UNFI IN THE TWELVE (12) MONTHS PRECEEDING THE CLAIM.
6. General.
The IO and all matters arising out of or relating to it shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Invalidity or unenforceability of any provision in the IO will not affect the validity or enforceability of the other provisions. Any waiver or failure to enforce any provision of the IO on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All notices must be in writing and shall be sent by (1) United States certified mail, return receipt requested, or (2) delivery on the next business day with a nationally-recognized express courier, or (3) email if a confirmation notice is also sent by one of the other methods of delivery. Notices shall be deemed given as of the date such notice is postmarked, if sent by certified mail, or is placed with an express courier, if sent by express courier, or is delivered, if emailed. Notices to Advertiser shall be sent by mail or email to the most recent address or email address associated with Advertiser. Notices shall be sent to UNFI at United Natural Foods, Inc.,15 Park Row West – 3rd Floor, Providence, RI 02903, Attn: Legal Department, email: Legal.Notices@unfi.com.