Terms and Conditions
A.The Supplier has created and is the exclusive owner of certain recipes, cookbooks, and
photos, video and other media content related thereto (the “Content”) and desire to provide such Content,
on a non-exclusive basis, to Chef Vivant
B.Chef Vivant desires to distribute such Content to members of the ChefVivant.com
community through the web site located at www.chefvivant.com (the “Site”) and the Chef Vivant App(s)
(the “App(s)”) available at third party Application stores (e.g., Apple Store, Google Play Store, Amazon
Appstore, etc.), pursuant to the terms and conditions set forth in this Agreement.
C.This Agreement is in addition to the “Terms and Conditions” applicable to the Site and
incorporated herein by this reference. In the event of any inconsistency between this Agreement and the
Terms and Conditions, the terms of this Agreement shall govern.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and
agreements provided for herein, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
This Agreement is a binding legal agreement between the Supplier and Chef Vivant, the operator
of the online service at the Site and developer of the App(s). The Supplier hereby appoints Chef Vivant
as its agent for distribution of the Content created or otherwise owned by the Supplier in accordance with
the terms and conditions of this Agreement. The Supplier shall make the Content available to Chef
Vivant for broad access by: (a) following the “Upload” procedures and policies identified on the Site, or
(b) delivering the Content to Chef Vivant pursuant to procedures mutually agreed to by the Parties. Each
upload or other delivery of Content by the Supplier to Chef Vivant shall be governed by the terms and
conditions of this Agreement.
2. PROVISION OF CONTENT.
The Supplier shall provide Content to Chef Vivant using the upload procedures and policies of
the Site and/or such other procedures and policies as the Parties may mutually agree. Chef Vivant, in its
sole discretion, shall determine which of such Content is suitable for posting on the Site, accessible
through the App or other means of distribution, and which supplied Content will be considered “nonexclusive”
Content. Only the Content considered suitable by Chef Vivant will be considered accepted for
the purposes with which such Content can be used pursuant to the applicable provisions of this
Agreement. In addition to the terms of this Agreement, both Parties agree that the Content requirements
for any uploads are subject to the policies and procedures outlined throughout the Site. Any violation of
the rules stated in the Site by the Supplier in connection with any uploads will be considered to be a
breach of this Agreement.
3. GRANT OF AUTHORITY.
The Supplier hereby appoints Chef Vivant as the Supplier’s non-exclusive agent and distributor
to distribute the Content to third parties within the jurisdictions of Chef Vivant’s business. For all
Content, the Supplier shall designate such Content as “non-exclusive” (subject to acceptance as such by
Chef Vivant pursuant to the terms of this Agreement), and Supplier grants Chef Vivant: (a) the nonexclusive
right to use, reproduce, distribute, redistribute, sublicense, publish, republish, download, post,
transmit, package, repackage, produce and sell printed or created by other technology copies of, or
publicly perform or display the Content: (i) through the Site; (ii) the App(s), or (iii) through other venues
owned or operated by Chef Vivant or its affiliates from time to time; and (b) the exclusive right to post,
reproduce, modify, display, make derivative works or otherwise use any Content for their own business
purposes relating to the promotion of the Site, the App(s), the Content and Chef Vivant’s distribution
programs, and expand the market for the sale or licensing of the Content (including, without limitation,
the use of the Content and the Supplier’s registered and unregistered trademarks for marketing, sales and
promotional efforts whether on the Site or through third parties). The Supplier agrees that Chef Vivant
shall have right to design marketing literature for the Content, at its own expense, and the Supplier agrees
to cooperate in that regard. No compensation shall be due to the Supplier for use of the Content for such
Chef Vivant hereby agrees that all rights, including title, trademark and copyright, in and to the
Content will be retained by the Supplier, and no title, trademark or copyright is transferred or granted in
any way to Chef Vivant or any third party except as provided in this Agreement and license agreements
which Chef Vivant is authorized to enter into on the Supplier’s behalf.
4. INTELLECTUAL PROPERTY MATTERS.
The Supplier hereby acknowledges that Chef Vivant prohibits
and forbids the upload to the Site
or other delivery to Chef Vivant of any Content or other material that violates or infringes on any patent,
trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or
proprietary rights of any third party. Upon uploading or other delivery of the Content, the Supplier
confirms and warrants that he, she or it owns all proprietary rights, including title, trademark and
copyright, in and to the Content with full power to grant the rights contemplated to be provided in this
Agreement in such Content, and that, with respect to any exclusive Content, you are not making any of
such exclusive Content available to or through any other distributor, website or other marketing,
distribution, sale or licensing venue of any kind not specifically permitted herein or otherwise consented
to by Chef Vivant in writing. In addition, to the extent that any Content contains images of people or
property, the Supplier represents and warrants that he, she or it has obtained a valid and binding release
from all required parties to permit the use of such Content as contemplated in this Agreement.
The Supplier hereby acknowledges and agrees that neither Chef Vivant nor any of its directors,
officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect,
consequential or incidental, arising out of the use of, or the inability to use any Content.
Chef Vivant will not compensate the Supplier, in any manner for provided content.
The Supplier hereby acknowledges and agrees that he, she or it will be responsible for each and
every access or use of the Site, if any, including any and all uploads or other actions, that occur in
conjunction with the Supplier’s member name and password, and that Chef Vivant is authorized to accept
any such member name and password as conclusive evidence that the Supplier wishes to upload Content
or perform other actions pursuant to this Agreement. Chef Vivant shall have no liability or responsibility
to monitor the provision of Content under the Supplier’s member name and password at the Site, if any.
7. SITE MANAGEMENT.
Chef Vivant has policies and processes which must be adhered to prior to the Content being
posted on the Site, the App(s) or otherwise being provided, however, that Chef Vivant does not and
cannot review all Content uploaded to the Site and is not responsible for the content, quality, or
consequences of the Supplier uploading such Content. Notwithstanding the foregoing, Chef Vivant
reserves the right to delete, move, refuse to accept or edit any communication or Content that it may
determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary
rights of others, any of its policies or is otherwise unacceptable in its discretion, and the Supplier hereby
agrees to forfeit any royalties payable in respect of such Content by Chef Vivant. Chef Vivant shall have
the right, but not the obligation, to correct any errors or omissions in any Content, as it may determine in
its sole discretion. The Supplier hereby acknowledges and agrees that any screening of Content
performed by Chef Vivant to determine acceptable Content is done as a courtesy only.
The Supplier hereby acknowledges that the Content he, she or it provides pursuant to this
Agreement that becomes Content of the Site may be distributed to members of the Site or owners of the
App(s) with the intention that they will adhere to the Terms and Conditions of the Site and/or App(s), as
applicable. Where Chef Vivant becomes aware of the breach of the Terms and Conditions of the Site by
an end-user of the Content, Chef Vivant shall take steps in accordance with its usual business practices to
request that the offending party refrain from its prohibited use of such Content. Chef Vivant will use
commercially reasonable efforts to further assist in the protection of the Supplier’s intellectual property
rights, at your request and expense. Notwithstanding the foregoing, given the prevalence of royalty-free
content in the electronic recipe business, Chef Vivant cannot take responsibility for the compliance by
purchasers and licensees of the Terms and Conditions of the Site. Accordingly, the Supplier hereby
acknowledges and agrees to the possibility of the Content being used in a manner that is not contemplated
in this Agreement and/or the Terms and Conditions of the Site and/or the App(s), and the Supplier agrees
that notwithstanding any rights he, she or it may have to pursue the licensees of such Content at law, Chef
Vivant shall have no liability to the Supplier or any person claiming through the Supplier for any breach
by a licensee of the terms of any agreement respecting the accepted Content.
8. CONFIDENTIAL INFORMATION.
The Supplier hereby acknowledges that the Confidential Information (defined below) which the
Supplier obtains as a result of entering into this Agreement, the use of the Site and the provision of the
Content constitutes valuable, confidential, proprietary information of Chef Vivant and its licensors, and
agrees that during the term of this Agreement and thereafter the Supplier shall not, without the express
prior written consent of Chef Vivant, use or disclose to any other person any such Confidential
Information, except as specifically authorized under this Agreement or required by law or a legal process.
For the purposes of this Agreement, “Confidential Information” means any and all data, information,
documents, software or materials relating to the business and management of Chef Vivant, its members,
affiliates, licensors or licensees, that is designated as confidential or which should reasonably be
considered confidential, including but not limited to: business models and operations, processes, products,
designs, pricing, promotions, business plans, business opportunities, alliances, content, graphics,
documentation, finances, research, development, know-how, trade-secrets, training materials, personnel,
identities or personal information of any kind pertaining to members, clients, methodologies, Site content,
or App(s) content belonging to others and other intellectual property.
The Supplier hereby acknowledges and agrees that he, she or it shall take reasonable measures to
protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.
Without limited the foregoing, the Supplier shall take at least those measures that it takes to protect his,
her or its own most highly confidential information and shall ensure that his, her, or its employees and
agents who have access to the Confidential Information shall comply with the provisions of this
Agreement. All documents and other tangible objects containing or representing Confidential
Information which have been disclosed to the Supplier, and all copies thereof that are in the possession of
the Supplier, shall be and remain the property of Chef Vivant and shall be promptly returned to Chef
Vivant upon termination of this Agreement or upon the written request of Chef Vivant.
9. REPRESENTATIONS AND WARRANTIES.
The Supplier hereby represents and warrants as follows:
The Supplier has the legal capacity and authority to enter into this Agreement, is the sole
and exclusive owner of the Content, has the right to grant all of the distribution rights contemplated to be
provided under this Agreement, and has not granted any rights to the Content or any other intellectual
property or technology that would conflict with this Agreement;
No portion of the Content as delivered to Chef Vivant from time to time, contains any
disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the
manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other
mechanism or device that may be used to modify, delete, damage or disable the Site, the App(s) or the
Content or any other hardware or computer system, or which would otherwise render inaccessible or
impair the use of the Content or the Site or App(s) in any way;
The Content will include all necessary information to enable its effective marketing on
the Site and the App(s), which information will be complete and accurate, and will not include false,
misleading or inapplicable metadata intended to, or which has the effect of, influencing search results
applicable to such Content; and
The Content delivered to Chef Vivant by the Supplier represents original creations or
expressions owned by you, and no such Content infringes any copyright, trademark, right of privacy or
right of publicity or other proprietary right of any third party.
The Supplier agrees to indemnify, defend and hold Chef Vivant and its affiliates, and their
respective directors, officers, employees, shareholders, agents and licensees of the Content (collectively,
the “Chef Vivant Parties”) harmless from and against any and all claims, liability, losses, costs and
expenses (including reasonable attorneys fees and costs) incurred by any Chef Vivant Party as a result of
or in connection with: (i) any use or alleged use of the Site or the App(s) or the provision of the Content
under the Supplier’s member name by any person, whether or not authorized by you; (ii) or resulting from
any communication made or Content uploaded under the Supplier’s member name at the Site or otherwise
delivered to Chef Vivant; (iii) any breach by the Supplier of this Agreement; or (iv) any claim threatened
or asserted against any Chef Vivant Party to the extent such claim is based upon a contention that any of
the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks,
right of privacy, right of publicity or other intellectual or other property rights of any third party. Chef
Vivant reserves the right, at the Supplier’s sole expense, to assume the exclusive defense and control of
any matter otherwise subject to indemnification by you, and in such case, the Supplier agrees to cooperate
with Chef Vivant’s defense of such claim.
The Supplier agrees that Chef Vivant shall have the right to determine whether and to what extent
to proceed against a licensee or other third party (an “Infringer”) for any violation of the Terms and
Conditions of the Site or the App(s), other license agreement or alleged infringement of other rights of the
Supplier. The Supplier hereby releases Chef Vivant from any and all claims the Supplier might have,
either directly or indirectly, arising out of or in connection with a determination by Chef Vivant to
proceed or not to proceed against any Infringer in any instance. The Parties hereby agree that any
monetary recovery received as a result of any legal or enforcement action taken against any such
Infringer, to the extent such monies are intended to compensate the parties for lost licensing fees or
statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery
(including, without limitation, reasonable attorney and experts’ fees and costs) incurred by or on behalf of
the parties in connection with such action, be divided between the Supplier and Chef Vivant pursuant to
the provisions of Section 5
11. TERM AND TERMINATION.
Either Party can immediately terminate this Agreement if the other Party: (a) liquidates all or
substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise
ceases to do business in a material way, or (b) makes an assignment for the benefit of creditors, or (c) files
a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its
property and such receiver or trustee is appointed, or commences, or has commenced against it, a
proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or
statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or
(d) is adjudicated insolvent or bankrupt, or (e) is in breach of this Agreement and such breach has not
been cured within ten (10) business days of receipt of written notice of such breach. In addition, Chef
Vivant may immediately terminate this Agreement, if, in the reasonable opinion of Chef Vivant, any
material misrepresentation has been made as to the capacity, identity or copyright ownership of the
Content by the Supplier.
12. EFFECT OF TERMINATION.
Upon the termination of this Agreement by either Party, the grant of authority given to Chef
Vivant hereunder shall cease as of the effective date of such termination with respect to the relevant
Content subject to the following conditions: (a) Chef Vivant shall remove the Content from the Site and
the App(s) within thirty (30) days of the termination of this Agreement; (b) notwithstanding termination,
Chef Vivant shall have the right to continue distributing the Content until it is removed from the Site and
Termination of this Agreement shall operate without prejudice to Chef Vivant’s rights, defenses
and limitations of liability provided under this Agreement or the Terms and Conditions applicable to the
Site and the App(s), which rights, defenses and limitations of liability shall survive termination of this
Agreement. In addition, Sections 7
of this Agreement and all limitations of liability
hereunder shall survive termination of this Agreement and continue in full force and effect.
13. DISCLAIMER OF WARRANTIES.
THE SITE AND THE APP(S), INCLUDING ANY CONTENT CONTAINED THEREIN, IS
PROVIDED BY CHEF VIVANT “AS IS” WITHOUT REPRESENTATION, WARRANTY OR
CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
CHEF VIVANT DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE APP(S) OR THE
CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL
BE UNINTERRUPTED OR ERROR FREE. CHEF VIVANT DOES NOT REPRESENT OR
WARRANT THAT THE SITE, THE APP(S) OR ANY CONTENT AVAILABLE FOR
DOWNLOADING THROUGH THE SITE OR THE APP(S) OR OTHERWISE WILL BE FREE OF
VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
14. LIMITATION OF LIABILITY.
THE SUPPLIER UNDERSTANDS AND ASSUMES ALL RESPONSIBILITY AND RISK OF
ANY KIND WHEN USING THE SITE, THE APP(S) AND/OR ANY SERVICES OF THE SITE OR
THE APP(S). IN NO EVENT SHALL CHEF VIVANT OR ANY OF ITS DIRECTORS, OFFICERS,
EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY
CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT
OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON,
ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR
ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF CHEF VIVANT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON
CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS OR OTHERWISE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CHEF VIVANT’S
TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF
THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE, THE APP(S) OR THE
CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED
BY CHEF VIVANT FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT
IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE
LIABILITY OF CHEF VIVANT OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
15. APPLICABLE LAW; DISPUTE RESOLUTION.
The Site and the App(s) are controlled, operated and administered by Chef Vivant from within the
County of San Diego, California. The Site and the App(s) can be accessed from all states in the United
States, as well as from other countries around the world. As each of these jurisdictions has laws that may
differ from those of the County of San Diego, California, the Supplier acknowledges and agrees that this
Agreement will be governed under the laws of California and the federal laws of the United States
applicable therein (without reference to conflicts of laws principles). The Supplier hereby irrevocably
submits to the exclusive jurisdiction of the Courts of the County of San Diego, California with respect to
the subject matter of this Agreement.
The Supplier hereby consents to service of any required notice or process upon him, her or it by
registered mail or overnight courier with proof of delivery notice, addressed to the address or contact
information provided by you in the preamble above. The Supplier hereby agrees to waive any right he,
she or it may have to a trial by jury or to commence or participate in any class action against Chef Vivant
related to the Site, the App(s), the Content, this Agreement or any agreements contemplated hereby, to the
fullest extent allowable by applicable law.
Any and all disputes arising out of, under or in connection with this Agreement, including
without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in
the County of San Diego, California, in accordance with the then current rules of practice and procedure
for arbitration of commercial disputes of Judicial Arbitration & Mediation Services, Inc. (“JAMS”) or a
successor organization if JAMS is no longer in operation.
This Agreement has been negotiated at arm’s length and between persons sophisticated and
knowledgeable in the matters dealt with in this Agreement. In addition, each Party has been represented
by experienced and knowledgeable legal counsel. Accordingly, any rule of law or legal decision that
would require interpretation of any ambiguities in this Agreement against the Party that has drafted it is
not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to affect the purpose of the parties and this Agreement.
(a) Further Documents and Acts.
From time to time during the term of this Agreement, each
Party shall take, or cause to be taken, all reasonable actions and shall execute and deliver such documents
as may be reasonably requested by the other Party to carry out the purpose and intent of this Agreement.
All notices or other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, recognized courier, or fax or email to the addresses set forth in the
preamble above. All such notices and communications shall be deemed to have been duly given: (i) when
delivered by hand, if personally delivered; (ii) the scheduled day of delivery if sent by nationally
recognized courier (e.g., UPS or FEDEX); or (iii) on the date of transmittal, if transmitted electronically
by fax or email prior to 5:00 p.m. on a business day or otherwise on the next business day, provided
receipt of such transmission shall be confirmed by follow-up notice sent within twenty-four (24) hours by
another method authorized above or by depositing such notice in the mail, postage pre-paid. Any Party
may from time to time, by written notice to the other, designate a different address which shall be
substituted for that specified above.
In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected, it being intended that all other
rights and privileges shall be enforceable to the fullest extent permitted by law.
(d) Attorneys’ Fees.
In any action or proceeding brought to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing
Party shall be entitled to recover reasonable costs for actual attorneys’ fees, travel expenses, and all other
litigation costs and amounts payable to expert witnesses (collectively, “Costs”) in addition to any other
available remedy as limited by the terms of this Agreement. In addition to the Costs recoverable under
the preceding sentence, the parties agree that the prevailing Party shall be entitled to recover Costs
incurred in connection with the enforcement of a judgment arising from such action.
(e) Entire Agreement.
This Agreement is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. This Agreement
supersedes any and all prior restrictions, promises, representations, warranties, agreements,
understandings and undertakings between the parties with respect to such subject matter and there are no
restrictions, promises, representations, warranties, agreements, understandings or undertakings with
respect to such subject matter other than those set forth or referred to herein.
No delay on the part of any Party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party hereto
of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege
hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except that any term of this Agreement may be amended by
a writing signed by the parties, and the observance of any such term may be waived (either generally or in
a particular instance and either retroactively or prospectively) by a writing signed by the Party against
whom such waiver is to be asserted.
(h) Successors and Assigns.
This Agreement is personal to you and is binding upon your
heirs, executors and legal representatives, as the case may be, and is not assignable by you without Chef
Vivant’s prior written consent. Chef Vivant may assign this Agreement without your consent to any other
party so long as such party agrees to be bound by its terms.
(i) No Third Party Beneficiaries.
Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, other than the parties hereto and their respective
successors and assigns, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provisions herein contained, this Agreement and any conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns, and for the benefit of no other person.
(j) Captions and Headings.
The captions and headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the meaning hereof.