UNFI Media Network Terms
These UNFI Media Network Terms (“Terms”) apply to a retailer’s participation in the UNFI Media Network and are effective as of the date you or your company (“Retailer”) execute a sales order, statement of work or other ordering document (“SOW”) referencing these Terms (“Effective Date”) with United Natural Foods, Inc. (collectively with its subsidiaries and affiliates, “UNFI”) and Swiftly Systems, Inc. (“Swiftly”). The Terms are binding upon each entity executing the SOW pursuant to which Retailer will join the UNFI Media Network. Swiftly, UNFI and Retailer may be referred to individually as a “Party” or separately as the “Parties”. The SOW, Terms, Swiftly Privacy Policy and Data Processing Agreement (“DPA”), shall constitute the “Agreement” between the Parties. In the event of a conflict between these Terms, the SOW, Privacy Policy and DPA then the SOW, then these Terms, DPA, and then Privacy Policy shall prevail in such order.
1. Terms and Service Specific Terms. Swiftly will provide Retailer with the digital advertising services selected by the Retailer in the SOW (“Services”). These Terms apply to any Service the Retailer selects. Certain Services selected by the Retailer in the SOW have additional terms that only apply to that particular Service, which are attached to these Terms as Exhibits (“Service Specific Terms”). Service Specific Terms only apply if the Retailer selected that specific Service in the SOW.
2. Term. These Terms shall commence from the effective date of a SOW. The Terms and SOW will remain in effect for a period of one (1) year or such other time period set forth in the SOW (“Initial Term”); provided that the term will automatically renew for successive periods of one (1) year each (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless ninety (90) days’ notice of termination is given by either Party prior to the date of automatic renewal or unless earlier terminated in accordance with the terms of this Agreement.
3. Fees. Any fees to be paid by Retailer for the Services are set forth in the SOW (“Fees”) and are payable by Retailer to UNFI or Swiftly pursuant to an invoice to be issued by UNFI or Swiftly, and if invoiced by UNFI, are payable on Retailer’s current payment terms with UNFI, and if invoiced by Swiftly, are payable thirty (30) days from the invoice date, or as otherwise set forth in the SOW. Fees are payable as set forth in the SOW and may be deducted from the Retailer Revenue Split (defined in the Service Specific Terms).
4. License Grant. Swiftly and, to the extent applicable, UNFI hereby grants to Retailer a non-exclusive, Term-limited, renewable, revocable, non-transferable, limited license (without the right to sublease or sublicense) to access and use the Services (including if applicable to the Services ordered, the “Advertising Platform,” UNFI Media Network, and “Retailer App”, as defined below) (collectively the "Technology"), during the Term, in an operating environment hosted by Swiftly, for Retailer's own internal use. Any rights not expressly granted are expressly reserved by Swiftly and, with respect to the UNFI Media Network as applicable, UNFI.
5. Retailer Data and Content. The terms of the DPA shall apply to Swiftly’s and Retailer’s collection, storage/security and transfer of Retailer Data related to the Services. Retailer shall obtain all necessary rights and consents to receive, process, store, and/or transmit Retailer Data (defined below) via the Technology before processing or disclosing such Retailer Data for the purposes of performance of the Services set forth on an applicable SOW. Swiftly shall maintain appropriate administrative, physical, and technical safeguards for protection of the security and confidentiality of Retailer Data. Swiftly will process Retailer Data only to provide the applicable Services, to address service or technical problems, at Retailer's request in connection with other Retailer support matters, or as otherwise permitted under these Terms or the DPA. Swiftly may, subject to applicable law, retain and use, subject to the terms of its Privacy Policy and these Terms, the Retailer Data, Retailer Content, and any feedback provided by Retailer to Swiftly or UNFI (as it pertains to the Services), in order to provide the applicable Services including the Technology, and the UNFI Media Network. "Retailer Content" means any design, trademark, creative, or other content provided by Retailer to Swiftly for use on the UNFI Media Network, through the Services or otherwise in connection with the Technology. "Retailer Data" means any Retailer, End User and Consumer data or information provided by Retailer to Swiftly, or collected, input, generated, processed, stored, outputted, or transmitted by the Technology. "Personal Information" shall have the meaning set forth in applicable U.S. data privacy laws (“Privacy Laws”, as may be further defined in the DPA). "Aggregate Data" or “Deidentified Data” means information that (i) relates to a group or category of Consumers, from which the individual Consumer identities have been removed, and that is not linked or reasonably linkable to any Consumer or household; (ii) that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular Consumer, and for which Swiftly: (a) has implemented technical safeguards designed to prevent reidentification of the Consumer to whom the information pertains; (b) has implemented business processes that are specifically designed to prohibit reidentification of the information; (c) has implemented business processes designed to prevent inadvertent release of the information; and (d) makes no attempt to reidentify the information; and (iii) does not constitute Personal Information. Each of UNFI and Swiftly will during the Term and thereafter have the right to use the Aggregate Data and Deidentified Data collected through the Technology, related to the Services, or related to the UNFI Media Network for its business purposes without any restriction to the fullest extent permissible by Privacy Laws. Subject to the terms herein, including the terms of the DPA Retailer hereby grants to Swiftly a worldwide, non-exclusive, non-transferable (except as expressly provided herein), fully-paid license and right to use the Retailer Data to accomplish the foregoing and including the right to perform research and development activities and statistical analysis, develop analytic models in furtherance of the foregoing. Retailer agrees that Swiftly may process Retailer Data and Retailer Content to create an aggregate data set as Aggregate Data or Deidentified Data, which will not include Personal Information, for any purposes permitted under applicable Privacy Laws.
6. Confidential Information. With respect to any non-public confidential information of the discloser (“Confidential Information”), each recipient shall, during and after the Term, (a) not disclose and keep such Confidential Information confidential; (b) use the same degree of care and security for such Confidential Information that such recipient uses for its own Confidential Information, and in no event less than reasonable care; and (c) not use the Confidential Information other than in connection with the performance of this Agreement; provided, however, that, notwithstanding the foregoing, a Recipient may disclose Confidential Information of the discloser in response to a valid court order by a governmental entity, as otherwise required by law or as necessary to establish the rights of such recipient under this Agreement, provided that the recipient must, to the extent permitted by law, provide written notice to the discloser prior to such disclosure in order to provide the discloser with a reasonable opportunity to obtain a protective order or otherwise protect the Confidential Information.
7. Restrictions. Retailer shall not: (a) make the Technology available to anyone other than its authorized internal users who are either employed by or contracted as agents with/by Retailer, and in either case bound by confidentiality restrictions at least as strict as those set forth in these Terms (“End Users”), or to Retailer’s end customers/shoppers (“Consumers”) as contemplated under these Terms and the Service Specific Terms; (b) sell, resell, rent, or lease the Technology to third parties except as allowed under these Terms; (c) knowingly use the Technology to knowingly store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third party privacy rights; (d) intentionally interfere with or disrupt the integrity or performance of the Technology or third party data contained therein; (e) attempt to gain unauthorized access to or interfere with the Technology, Hosting Equipment (defined below) or related systems or networks; (f) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Technology; (g) modify, alter, tamper with, repair or otherwise create derivative works of the Services; (h) decompile, disassemble or reverse engineer the Technology; (i) permit any third party to use the Technology, or use the Technology for purposes of processing the data of any third party; (j) use the Technology in violation of any applicable local, state, national or international law or regulation, including, but not limited to, Privacy Laws and U.S. export laws; or (k) permit or assist any other person or entity to do any of the foregoing. Further, Retailer shall not permit or encourage any End Users or Consumers to attempt to reverse engineer any of Swiftly’s Proprietary Information for any purpose, or transfer any such Proprietary Information accessed via the Technology to any third party. "Proprietary Information" means any and all Swiftly Confidential Information and intellectual property (including without limitation, the Technology). "Hosting Equipment" means the equipment, hardware, operating systems, networks, software, interfaces or other infrastructure components that Swiftly or its third party hosting provider(s) will make available so that the UNFI Media Network is available and accessible by UNFI, Retailer, its End Users and Consumers (if applicable to the specific Services elected by Retailer on a SOW). Retailer will be responsible for its End Users' compliance with these Terms.
8. Limited Warranty and Disclaimer. SWIFTLY REPRESENTS THAT THE TECHNOLOGY WILL MATERIALLY CONFORM TO THE SPECIFICATIONS PUBLISHED BY SWIFTLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER UNFI NOR SWIFTLY MAKES OR GIVES ANY REPRESENTATION OR WARRANTY, WHETHER SUCH REPRESENTATION OR WARRANTY BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, TITLE, NON- INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION OR WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE.
9. Limitation of Liability. IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER PARTIES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE TERMS, A SOW, THE DPA OR OTHER AGREEMENT SUBJECT TO THE TERMS OR SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY PARTY'S INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY OBLIGATIONS, IN NO EVENT SHALL ANY PARTY'S (NOR ANY OF ITS AFFILIATED ENTITIES', SHAREHOLDERS', DIRECTORS', OFFICERS', EMPLOYEES' OR REPRESENTATIVES') AGGREGATE LIABILITY, EITHER DIRECT OR INDIRECT, TO ANOTHER PARTY OR ITS AFFILIATED ENTITIES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OR REPRESENTATIVES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY OR TO RETAILER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
10. Indemnification. Swiftly will defend at its expense any suit brought against Retailer, and will pay any settlement Swiftly makes or approves, or any damages sustained by Retailer, insofar as such suit is based on a claim by any third party alleging that (i) the Service infringes such third party's patents, copyrights or trade secret rights (an "Infringement Claim") or (ii) the Services violate any applicable law, including Privacy Laws. If any portion of the Service becomes, or in Swiftly's opinion is likely to become, the subject of a claim of infringement, Swiftly may, at Swiftly's option and expense: (a) procure for Retailer the right to continue using the Service; (b) replace the Service(s) with non-infringing software or services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate these Terms and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Retailer will immediately cease all use of the Services and Technology. Notwithstanding the foregoing, neither UNFI nor Swiftly will have any obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with these Terms including the Service Specific Terms; (ii) any use of the Service in combination with other products, equipment, software or data not supplied by Swiftly (to the extent such claim is a result of such use), or (iii) any Retailer Content (collectively, the "Exclusions" and each, an "Exclusion"). This Section states the sole and exclusive remedy of Retailer and the entire liability of Swiftly, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions. Retailer acknowledges and agrees that UNFI will have no liability or responsibility to Retailer with respect to any Infringement Claim or the operation or provision of the Services. Retailer will defend at its expense any suit brought against Swiftly or UNFI, and will pay any settlement Retailer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to an End User’s use of Services and the Exclusions above or with respect to Retailer's infringement or misappropriation of a third party's intellectual property rights. This Section states the sole and exclusive remedy of Swiftly and UNFI and the entire liability of Retailer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party or parties will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party 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 or parties; and (c) the indemnified party or parties will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11. General.
A. Taxes. As between Retailer and Swiftly, Swiftly is responsible for paying all taxes (if any), associated with the transactions between Swiftly and advertisers (“Advertisers”) in connection with digital advertisements (“Ads”) placed on the Swiftly advertising platform to be provided through the UNFI Media Network (“Advertising Platform”). All payments from Retailer to Swiftly in relation to the Fees shall be treated as inclusive of tax (if applicable) and will not be adjusted.
B. Publicity. The parties agree that all public media releases, public announcements, or public disclosure for general distribution by the Parties relating to the subject matter of this Agreement (other than a general statement that a contractual relationship exists between the relevant Parties and any announcement intended solely for internal distribution or any disclosure required by legal, accounting, or regulatory requirements beyond the reasonable control of the Parties) will be approved in writing (email acceptable) by the Parties prior to its release, including (1) a potential joint case study pre-approved by Retailer in writing (email acceptable) to be performed by the Parties at no cost to Retailer and (2) a one-time press release regarding the Agreement.
C. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws provisions. The Parties hereby consent to exclusive venue and jurisdiction for actions concerning this Agreement in the federal or state courts of Delaware.
D. Dispute Resolution. The Parties agree to attempt in good faith to resolve any controversy, claim, or dispute of any nature whatever arising out of, or relating to, this Agreement, or the breach, termination, enforceability, or validity of this Agreement (a “Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management than the persons who have direct responsibility for the administration of this Agreement. In the event of a failure to resolve a Dispute per the foregoing, all Disputes that may arise under, out of, or in connection with this Agreement, shall be settled in accordance with the then existing rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. THE PARTIES UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
E. Notice. All notices under this Agreement shall 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 shall be sent to the Parties at the following addresses, unless a Party notifies the other Party that notices shall be sent to it at another address. Notices to Retailer shall be sent by mail or email to the most recent address or email address associated with Retailer. Notices to UNFI shall be sent to 313 Iron Horse Way, Providence, Rhode Island 02908, Attn: Legal Department; Email: Legal.Notices@unfi.com. Notices to Swiftly shall be sent to 475 El Camino Real, Suite 308, Millbrae, CA 94030, Attn: Henry Kim, with copy to legal-extended@swiftly.com.
F. Miscellaneous. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. No Party may assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other parties, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Retailer may assign this Agreement to any of its affiliated entities or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other parties. UNFI and Swiftly may similarly assign this Agreement to an affiliate or subsidiary or in event of a change of control. Any attempt to assign in contravention of the requirements in this Section shall be void and ineffective. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of the Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the parties.
Exhibit 1-5: Service Specific Terms
The following Exhibits include additional terms that are specific to the Services listed in such Exhibit. The additional terms are only applicable in the event Retailer elects the applicable Services in an SOW executed by the Parties.
Exhibit 1: Offsite Retail Media
Exhibit 2: AppFactory App and Advanced App
Exhibit 3: WebFactory Website and Advanced Web
Exhibit 4: Retail Media Ads SDK
Exhibit 1: Offsite Retail Media
Offsite Retail Media: Retailer acknowledges and agrees that Swiftly may, in its discretion, purchase and run off-platform advertising (“Offsite Retail Media”) at Swiftly’s expense, including all costs related to placement of Offsite Retail Media, for purposes of driving Consumers to the Retailer’s stores, Retailer App (defined below) or websites if applicable (“Retailer Consumer Acquisition”).
Offsite Advertising Revenue: “Advertising Revenue” shall consist of all amounts paid by Advertisers to Swiftly and/or UNFI for Swiftly’s placement of Ads for purposes of Offsite Retail Media, excluding Retailer Consumer Acquisition. Advertising Revenue does not include any applicable taxes, payment processing fees, credit card fees, bad debt, chargebacks, deductions, reversals, invalid activity, or other refunds to Advertisers. Swiftly and/or UNFI may bill Advertisers based on actions, including but not limited to, the number of valid impressions of Ads displayed, the number of valid clicks or taps performed in connection with the display of Ads, the number or dollar value of valid purchases in connection with the display of Ads, or other valid events performed in connection with the display of Ads.
Offsite Retailer Revenue Split: Retailer shall be entitled to the percentage of the Advertising Revenue identified in the SOW, net of off-platform Ad placement costs, hosting costs, or other costs directly tied to servicing the application (“Retailer Revenue Split”). If elected by Retailer in writing (email acceptable), Fees shall be deducted from each month’s Retailer Revenue Split until such time that the full Fee(s) have been collected by Company. UNFI shall pay Retailer its share of any Retailer Revenue Split within ninety (90) days of Swiftly’s receipt of revenue from the Advertisers which, at UNFI’s election, may be paid to Retailer by credit on Retailer’s UNFI invoice or statement. UNFI or Company, as agreed between them, shall deliver a monthly billing report to the Retailer to accompany each payment to Retailer. This billing report shall detail the Advertising Revenue, participating store count and sufficient details to describe calculation of the Retailer Revenue Split, including, without limitation, all applicable deductions.
Exhibit 2: AppFactory App and Advanced App (“App Services”)
Mobile Application: Each application developed by Swiftly for Retailer as part of the App Services (“Retailer App”) will connect to the Advertising Platform to be deployed through the UNFI Media Network for placement of Ads targeted at Retailer’s Consumers that access the Advertising Platform through one or more Retailer Apps, each as more specifically described in the SOW. Swiftly may automatically update the Retailer Apps without prior notice to Retailer (for example, for bug fixes). Retailer shall provide a point of contact to Swiftly and UNFI and Retailer will maintain current contact information for such person.
Mobile Advertising Revenue. “Advertising Revenue” shall consist of all amounts paid by advertisers (“Advertisers”) to Swiftly and/or UNFI for Swiftly’s placement of Ads on the UNFI Media Network (including the Retailer App) excluding Retailer Consumer Acquisition. Advertising Revenue does not include any applicable taxes, payment processing fees, credit card fees, bad debt, chargebacks, deductions, reversals, invalid activity, or other refunds to Advertisers. Swiftly and/or UNFI may bill Advertisers based on actions, including but not limited to, the number of valid impressions of Ads displayed on the Retailer App(s), the number of valid clicks or taps performed in connection with the display of Ads on the Retailer App(s), the number or dollar value of valid purchases in connection with the display of Ads on the Retailer App(s), or other valid events performed in connection with the display of Ads on the Retailer App(s).
Mobile Retailer Revenue Split. Retailer shall be entitled to the percentage of the Advertising Revenue identified in the SOW, net of Ad placement costs, hosting costs, or other costs directly tied to servicing the application (“Retailer Revenue Split”). If elected by Retailer in writing (email acceptable), Fees shall be deducted from each month’s Retailer Revenue Split until such time that the full Fee(s) have been collected by Swiftly. UNFI shall pay Retailer its share of any Retailer Revenue Split within thirty (30) days of Swiftly’s receipt of revenue from the Advertisers. UNFI or Swiftly, as agreed between them, shall deliver a monthly billing report to the Retailer to accompany each payment to Retailer. This billing report shall detail the Advertising Revenue, participating store count and sufficient details to describe calculation of the Retailer Revenue Split, including, without limitation, all applicable deductions.
Private Label Advertisements. Retailer may choose to allocate a portion of Ads to self-promotion of its private label products, categories, or total store promotions on the Advertising Platform, and neither Retailer nor Swiftly is compensated by a third party in connection with such Ads (“Private Label”). Such Private Label advertisements are excluded from Advertising Revenue. Swiftly will facilitate Retailer’s placement of Private Label Advertisements under the development of time and materials services hereunder. Retailer agrees that no more than 10% of the Advertising Platform ad capacity (not to exceed one banner ad on the deals carousal) shall be reserved for Private Label advertisements during the Term. Additionally, any open inventory on the homepage and category and product pages (“Run of Site Inventory”) will be made available for Retailer’s Private Label or category/store level promotions at a lower trafficked priority from Swiftly sourced content. Run of Site Inventory means that the advertisement can appear in an eligible retail media open placement that is not already spoken for, such as a category header, footer, search results or menu page placement. This Private Label content will also be subject to Swiftly’s exclusivity rules and cannot run in “Closed Households” and “Closed Categories.” Swiftly will make the Closed Households and Closed Categories lists accessible to Retailer at any time for reference. Closed Categories and Closed Households are applicable to on-platform advertising, and they allow for a category or household exclusive campaign run by a specific brand for a premium. Retailer will use best efforts to provide fresh, engaging content for its Private Label Advertisements and Swiftly will work with Retailer to revise or replace non-performing Private Label Advertisements.
Advertising Exclusivity. Retailer acknowledges and agrees that Swiftly and UNFI shall, collectively, be the exclusive provider during the Term for Retailer’s mobile applications related to offering its Consumers digital advertisements, loyalty, coupons or deals for consumption by Consumers.
Exhibit 3: AppFactory Website and Advanced Web (“Web Services”)
Web Advertising Revenue. “Advertising Revenue” shall consist of all amounts paid by advertisers (“Advertisers”) to Swiftly and/or UNFI for Swiftly’s placement of Ads through the UNFI Media Network on the Retailer Websites excluding Retailer Consumer Acquisition. Advertising Revenue does not include any applicable taxes, payment processing fees, credit card fees, bad debt, chargebacks, deductions, reversals, invalid activity, or other refunds to Advertisers. Swiftly and/or UNFI may bill Advertisers based on actions, including but not limited to, the number of valid impressions of Ads displayed on the Retailer Websites, the number of valid clicks or taps performed in connection with the display of Ads on the Retailer Websites, the number or dollar value of valid purchases in connection with the display of Ads on the Retailer Websites, or other valid events performed in connection with the display of Ads on the Retailer Websites.
Web Retailer Revenue Split. Retailer shall be entitled to the percentage of the Advertising Revenue identified in the SOW, net of Ad placement costs, hosting costs, or other costs directly tied to servicing the Websites (“Retailer Revenue Split”). If elected by Retailer in writing (email acceptable), Fees shall be deducted from each month’s Retailer Revenue Split until such time that the full Fee(s) have been collected by Swiftly. UNFI shall pay Retailer its share of any Retailer Revenue Split within thirty (30) days of Swiftly’s receipt of revenue from the Advertisers. UNFI or Swiftly, as agreed between them, shall deliver a monthly billing report to the Retailer to accompany each payment to Retailer. This billing report shall detail the Advertising Revenue, participating store count and sufficient details to describe calculation of the Retailer Revenue Split, including, without limitation, all applicable deductions.
Private Label Advertisements. Retailer may choose to allocate a portion of Ads to self-promotion of its private label products, categories, or total store promotions on the Advertising Platform, and neither Retailer nor Swiftly is compensated by a third party in connection with such Ads (“Private Label”). Such Private Label advertisements are excluded from Advertising Revenue. Swiftly will facilitate Retailer’s placement of Private Label Advertisements under the development of time and materials services hereunder. Retailer agrees that no more than 10% of the Advertising Platform ad capacity (not to exceed one banner ad on the deals carousal) shall be reserved for Private Label advertisements during the Term. Additionally, any open Run of Site Inventory will be made available for Retailer’s Private Label or category/store level promotions at a lower trafficked priority from Swiftly sourced content. Run of Site Inventory means that the advertisement can appear in an eligible retail media open placement that is not already spoken for, such as a category header, footer, search results or menu page placement. This Private Label content will also be subject to Swiftly’s exclusivity rules and cannot run in “Closed Households” and “Closed Categories.” Swiftly will make the Closed Households and Closed Categories lists accessible to Retailer at any time for reference. Closed Categories and Closed Households are applicable to on-platform advertising, and they allow for a category or household exclusive campaign run by a specific brand for a premium. Retailer will use best efforts to provide fresh, engaging content for its Private Label Advertisements and Swiftly will work with Retailer to revise or replace non-performing Private Label Advertisements.
Advertising Exclusivity. Retailer acknowledges and agrees that Swiftly and UNFI shall, collectively, be the exclusive provider during the Term for Retailer’s websites that are built or hosted by Swiftly pursuant to a SOW subject to the Terms and these additional terms (“Retailer Website(s)”) related to offering its Consumers digital advertisements, loyalty, coupons or deals for consumption by Consumers.
Exhibit 4: Retail Media Ads SDK
Retail Media Ads SDK Advertising Revenue. “Advertising Revenue” shall consist of all amounts paid by Advertisers to Swiftly and/or UNFI for Swiftly’s placement of Ads through the UNFI Media Network via the Swiftly Retail Media Ads SDK excluding Retailer Consumer Acquisition. Advertising Revenue does not include any applicable taxes, payment processing fees, credit card fees, bad debt, chargebacks, deductions, reversals, invalid activity, or other refunds to Advertisers. Swiftly and/or UNFI may bill Advertisers based on actions, including but not limited to, the number of valid impressions of Ads placed via the Swiftly Retail Media Ads SDK, the number of valid clicks or taps performed in connection with the display of Ads via the Swiftly Retail Media Ads SDK, the number or dollar value of valid purchases in connection with the display of Ads on the Retailer Websites and Retailer Apps, or other valid events performed in connection with the display of Ads via the Swiftly Retail Media Ads SDK.
Retail Media Ads SDK Retailer Revenue Split. Retailer shall be entitled to the percentage of the Advertising Revenue identified in the SOW, net of Ad placement costs, hosting costs, or other costs directly tied to placement of Ads via the Swiftly Retail Media Ads SDK (“Retailer Revenue Split”). If elected by Retailer in writing (email acceptable), Fees shall be deducted from each month’s Retailer Revenue Split until such time that the full Fee(s) have been collected by Swiftly. UNFI shall pay Retailer its share of any Retailer Revenue Split within thirty (30) days of Swiftly’s receipt of revenue from the Advertisers. UNFI or Swiftly, as agreed between them, shall deliver a monthly billing report to the Retailer to accompany each payment to Retailer. This billing report shall detail the Advertising Revenue, participating store count and sufficient details to describe calculation of the Retailer Revenue Split, including, without limitation, all applicable deductions.
Private Label Advertisements. Retailer may choose to allocate a portion of Ads to self-promotion of its private label products, categories, or total store promotions on the Advertising Platform, and neither Retailer nor Swiftly is compensated by a third party in connection with such Ads (“Private Label”). Such Private Label advertisements are excluded from Advertising Revenue. Swiftly will facilitate Retailer’s placement of Private Label Advertisements under the development of time and materials services hereunder. Retailer agrees that no more than 10% of the Advertising Platform ad capacity (not to exceed one banner ad on the deals carousal) shall be reserved for Private Label advertisements during the Term. Additionally, any open Run of Site Inventory will be made available for Retailer’s Private Label or category/store level promotions at a lower trafficked priority from Swiftly sourced content. Run of Site Inventory means that the advertisement can appear in an eligible retail media open placement that is not already spoken for, such as a category header, footer, search results or menu page placement. This Private Label content will also be subject to Swiftly’s exclusivity rules and cannot run in “Closed Households” and “Closed Categories.” Swiftly will make the Closed Households and Closed Categories lists accessible to Retailer at any time for reference. Closed Categories and Closed Households are applicable to on-platform advertising, and they allow for a category or household exclusive campaign run by a specific brand for a premium. Retailer will use best efforts to provide fresh, engaging content for its Private Label Advertisements and Swiftly will work with Retailer to revise or replace non-performing Private Label Advertisements.
Advertising Exclusivity. Retailer acknowledges and agrees that Swiftly and UNFI shall, collectively, be the exclusive provider during the Term for Retailer’s Retail Media Ads that are hosted by Swiftly pursuant to an SOW subject to the Terms and these additional terms related to offering its Consumers Ads utilizing the Advertising Platform via Retail Media Ads SDK.
Exhibit 5: Alcohol Cashback
Alcohol Rebates Laws/Regulations: In order to comply with applicable alcohol and tobacco sales/advertising laws, including Cal. Bus. & Prof. Code Section 25503(f)-(h), related to advertising of the sale of alcohol and tobacco (“Alcohol Rebates Advertising”), advertising revenue paid by Advertisers to Swiftly for placement of Ads related to alcoholic beverage and tobacco products regulated as such by the Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau shall not be shared with, paid, or credited to, Retailer.
Alcohol Rebates Advertising Exclusivity: Retailer agrees that Swiftly shall be the sole and exclusive provider of digital Alcohol Rebates Advertising sold to third parties during the Term. This exclusivity is limited to retail media network executions and does not pertain to Retailer’s own internal advertising initiatives.