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Online Platform Service Agreement

Version date: 18 January 2016

THIS AGREEMENT is made

BETWEEN

BITEUNITE LIMITED, a company incorporated under the laws of Hong Kong whose registered office is situate at 2/F, 7 St. Francis Street, Wanchai, Hong Kong (“BiteUnite”);

and

You, by registering with us as a member, agree and accept to be bound by the terms and conditions of this Online Platform Service Agreement. You will be referred as “Party B” herein this Agreement.

Whereas:

  1. BiteUnite is a company carrying on its business as an online platform providing referral services through which the participating chefs or purveyors will be able to connected with customers who directly engage the services by the chefs or purveyors in respect to food and beverages preparation, cooking classes, culinary tours, guests experience, personal and alternative culinary experience and any services incidental thereto (“Online Platform”)
  2. Party B is a chef or purveyor who wishes to use the Online Platform to sell his/her services in connection to cooking, food preparation, personal and alternative culinary experences to the customers.
  3. This Agreement sets out the matters agreed between the parties in relation to the arrangements, obligations, terms and conditions of this Cooperation.

NOW IT IS HEREBY AGREED as follows:

  1. FORM OF SERVICE
    1. BiteUnite operates an online website aiming to provide an online platform (“Online Platform”) to the chefs to advertise their tailor-made services. Such Online Platform Service shall include but not limited to provision of advertisement, arrangement of delivery of food, photo shooting and so on. BiteUnite also operates as a payment gateway service to the customers (“Payment Service”). The Online Platform and Payment Service are collectively referred as “BiteUnite Service”, which must be collectively subscribed.
    2. Party B will make good use of the Online Platform to sell, promote, and arrange for Party B Service to be rendered to the customers who use the Online Platform to subscribe or request for Party B Service.
    3. Party B hereby agrees to engage BiteUnite, and BiteUnite agrees to provide its BiteUnite Service to Party B. BiteUnite agrees to remit the fees from the customers to Party B in accordance with Clause 3 of this Agreement.
  2. TERM

    This Agreement shall commence on the date of this Agreement and shall continue in full force and be in effect unless and until terminated in accordance with this Agreement (the “Term”).

  3. COMMISSION
    1. All orders placed by the customers shall be collected by BiteUnite through its Payment Service.
    2. Party B agrees that BiteUnite shall reserve an administrative fee up to 15% based on each payment of the customer(s) made to the chef or purveyor (the “Administrative Fee”).
    3. Upon each successful order placed by the customer through the Online Platform Service, BiteUnite shall remit the total fees received by the customres per each order after deduction of the Administrative Fee to Party B.
    4. BiteUnite shall also additionally charge Party B for the BiteUnite Service as follows:
      1. additional delivery costs ranging from HK$60 or above depending on the delivery location;
  4. PERFORMANCE AND OBLIGATIONS

    In consideration of the use of BiteUnite Service, Party B warrants and undertakes to perform the following:

    1. Provision of Information of the Cuisine:
      1. Party B shall use its best endeavour to provide information including costs, ingredients, name, cooking method(s) in connection to Party B Service that is and will be displayed through the Online Platform;
      2. Party B shall also provide clear photos in connection to the Party B Service to be displayed through the Online Platform to BiteUnite;
      3. At the request of BiteUnite, all other information that is necessary for the display, promote, or use through the Online Platform shall be provided.
    2. Marketing and Promotional Activities

      Party B shall, its best endeavour, provide assistance to BiteUnite in all marketing and promotional activities to be conduct through its Online Platform or any business associated or incidental thereto. The marketing and promotional activities shall include, but without limitation to printing BiteUnite’s promotional leaflets may use the photos or materials provided by Party B.

  5. VERIFICATION BY BITEUNITE

    BiteUnite’s employees or representatives may attend Party B’s event or try Party B’s dishes or services and if BiteUnite’s employees enjoy their experiences at the event, the dishes or services, BiteUnite may display a logo namely “BiteUnit Verified” next to the name of the Party B on its profile page as “BiteUnite Verified Chef” (“Verification”) via the Online Platform. However, by displaying such Verification shall not mean that BiteUnite has any duty to promote, control, monitor Party B and/or services and/or events provided or organized to the customers.   BiteUnite neither makes any warranty, representation or assertion with respect of Party B’s skills or services which are regarded as or to be regarded as competent or satisfactory nor acknowledging or agreeing to discharge or waive of any obligations or liabilities that Party B shall comply with under this Agreement.

  6. REPRESENTATIONS, WARRINITIES AND UNDERTAKINGS BY PARTY B
    1. Party B represents, warrants and undertakes that:
      1. Party B has maintained or shall maintain a valid license for B to render Party B Service to customers at all time;
      2. Party B has complied with all applicable requirements or regulations in force for Party B Service including but not limited to food preparation and use of ingredients;
      3. Party B has not infringed any third party’s rights or use of such the intellectual property including but without limitation to any service marks, designs, copyrights and patent would infringe any third party’s intellectual property rights; and
      4. There is no action or claim made by any third party against Party B in connection to Party B Service.
    2. Party B warrants and undertakes to:
      1. only use the Online Platform provided by the BiteUnite for the sole purpose of uploading the dishes or beverages including detailed information of the cooked meals, recipes, cooking classes and private dinning services that are prepared by Party B;
      2. upload materials including but not limited to pictures or descriptions to the dishes or beverages considered as appropriate in the reasonable opinion of BiteUnite;
      3. inform BiteUnite promptly of any inability to render Party B Service;
      4. maintain all applicable valid licenses in full including but not limited to all licenses regulating the preparation or sale of food and beverages to any third party. Such licenses may include but not limited to food factory licence, frozen confection factory licence and so on;
      5. maintain a valid insurance policy adequately covering all the third parties’ injuries and work related injury for its employees and any additional insurance as required by BiteUnite;
      6. seek for BiteUnite’s prior written approval in connection to all marketing or promotional activities using part of or whole of, directly or indirectly any service marks, designs, pictures that belong to BiteUnite;
      7. to perform Party B Service with due care and skills;
      8. to maintain the highest standard of hygiene requirements and comply with all the applicable laws regulating the same;
      9. comply with all the applicable laws for the provision of the Party B Service or sale of any products, if any;
      10. observe and perform all its obligations as set out in this Agreement including but not limited to the duty of confidentiality and non-solicitation and non-competition;
      11. return to BiteUnite all materials or information or destroy such materials in the direction of BiteUnite once this Agreement is terminated;
      12. not to do any acts or conducts that may or would bring BiteUnite into disrepute, potentially or actually;
      13. not to infringe any third parties intellectual property rights including but not limited to the copyrights, trademarks, service marks, designs at all times;
      14. not to request the customers to pay additional charges without BiteUnite’s knowledge or consent;
      15. not to do any acts or cause anyone to do any acts to deceive BiteUnite including but not limited to inflating any costs or fees for the Party B Service without knowledge of BiteUnite;
      16. not to set up another name similar to the BiteUnite, whether personally or through any third parties including but not limited to Party B’s family members and relatives without prior written consent from BiteUnite;
      17. be fully responsible for all losses or damages suffered by the customers in the event of failure to perform the services satisfactorily, including but without limitation to delay and unsatisfactorily performance; and
      18. hold BiteUnite harmless against all losses and damages arising out of or in connection to Party B Service and undertake to indemnify and keep indemnified BiteUnite against all losses, damages, costs and expenses of whatsoever nature which may be suffered or incurred by reason of any default on Party B under this Agreement or arising out of or in connection to Party B Service.
  7. INTELLECTUAL PROPERTY
    1. Grant of the license
      1. BiteUnite hereby grants to Party B a non-exclusive license to use BiteUnite’s intellectual properties including but not limited to service marks, trade name, copyrights or other commercial designation, domain name whether or not registered (collectively referred as “BiteUnite IP Rights”). This non-exclusive license includes the authorization to make use of BiteUnite IP Rights to promote Party B Service.
      2. Party B hereby agrees to grant to BiteUnite a non-exclusive, royalty-free, perpetual license to use all Party B’s service marks, trade names, commercial designation, domain names or other proprietary rights that are essential to the Online Platform, whether or not registered (collectively referred as “Party B IP Rights”).
    2. Ownership of the works conducted by BiteUnite
      1. BiteUnite may also provide Party B with professional photo-shooting service (“Photo Shoot”) in order to enhance the attractiveness of Party B Service to customers. Party B accepts and agrees that all the photos under the Photo Shoot are the proprietary property of BiteUnite in which BiteUnite shall have the unfettered title and interest.
      2. Party B shall comply with all instructions and guidelines issued by BiteUnite with respect to use of BiteUnite Trademarks, including but without limitation how BiteUnite Trademarks are to be displayed on or affixed to the delivery packages, business card or website of Party B if any.
      3. No sub-license of BiteUnite IP Rights is permitted, unless with the prior written consent from BiteUnite. If such sub-license is permitted hereunder, Party B shall warrant that such sub-license shall be subject to all terms and conditions that are applicable to Party B under this Agreement relating to the sublicensed rights.
    3. Enforcement of intellectual property
      1. Party B further undertakes that it shall during the term of this Agreement and at first request of BiteUnite to take all necessary action for the protection of the BiteUnite Trademarks. In case of any infringement or suspected infringement by a third party, BiteUnite shall in its sole discretion determine what legal action shall be taken in respect of such matter.
      2. In the event of any claim or litigation by a third party against Party B, alleging that the use of the BiteUnite IP Rights infringes any right of such party, Party B shall promptly give notice of such claim or litigation to BiteUnite and BiteUnite shall assume responsibility therefore and control all handling, defence or settlement thereof.
  8. CONFIDENTIALITY
    1. Party B shall use its best efforts to keep confidential any information or arrangement in connection to this Agreement and BiteUnite Service and shall not disclose to the any third party such information or arrangement except with the written consent of BiteUnite during the course of this Agreement or at any time thereafter.
    2. Party B shall also use its best efforts to procure that its employees, officers, and agents of the parties observe the aforesaid duty of confidentiality.
    3. This clause shall survive for a further period of 1 year from the date of termination date.
  9. NON-SOLICITATION AND NON-COMPETITION
    1. During the Term of this Agreement and for a further period of 1 year after any termination of this Agreement, Party B will not, without the prior written consent of BiteUnite, either directly or indirectly, on its own behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any customers of or persons engaged or employed by BiteUnite
    2. Party B is restricted from providing services or through any persons or entities to any customers who are BiteUnite’s or Business Alliance’s customers for a period of 1 year from the date of the termination of this Agreement.
  10. WARRANTIES

    Each party warrants to the other that:

    1. it has the requisite authority and right to enter into this Agreement and to perform its obligations hereunder;
    2. its signatory of this Agreement has been fully authorised to sign the same for and on its behalf ;and
    3. entry into this Agreement will not cause such party to violate any statute, bylaw, regulation or any other restriction imposed by law.
  11. TERMINATION
    1. Termination by either party

      This Agreement shall continue in force from the date hereof until earlier termination as hereinafter provided. In the event that one party wishes to terminate this Agreement (the “Terminating Party”), the Terminating Party shall serve a not less than [     ] months’ written notice to the other party.

    2. Immediate termination:

      In the event of any of the following circumstances, BiteUnite is entitled to terminate this Agreement forthwith without any prior notice to Party B:

      1. If Party B has committed a breach of any of its obligations under this Agreement including but not limited to unreasonable delay or dissatisfactory performance of Party B Service, duty of confidentiality, non-solicitation and so on;
      2. If Party B is in breach of any laws including but not limited to all applicable laws governing the sales of goods or services and anti-corruption laws;
      3. If Party B does not maintain any license in full force or such licence is revoked by the issuing authorities;
      4. if Party B (being a company) goes into liquidation, becomes insolvent, has a receiver appointed in respect of all or any part of its assets or undertaking or is unable to pay its debts when due (except for the purposes of amalgamation or reconstruction in such manner that the new company agrees to be bound by the obligations of the other party under this Agreement); or
      5. if Party B ceases its business.
  12. INDEMNITY AND LIABILITY
    1. Party B shall fully indemnify BiteUnite, its employee(s) and agent(s) from and against all losses which they may suffer and all actions, demands, claims, and costs which may be made against it arising out of Party B or its employee(s), or its agent(s) breach of this Agreement, negligence, omission, defaults, misconduct, unless such losses, actions, demands, claims or costs are attributable to the negligence of BiteUnite.
    2. BiteUnite shall not be liable for any liabilities incurred arising from or in connection with the Party B Service and information provided by Party B including but not limited to the descriptions of the food, the use of the agreed ingredients with the customers, whether incurred before or after the execution of this Agreement. Notwithstanding the provisions of this Agreement, BiteUnite shall not be liable to Party B for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation or indemnity or contribution whatsoever as a result of any representation, implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement (whether caused by the negligence of BiteUnite, its employees or agents or otherwise) which arise out of or in connection with Party B Service, representations and warranties.
  13. NO PARTNERSHIP OR AGENCY

    Nothing in this Agreement shall have the effect of constituting either party as an agent of the other, and neither is authorized to make any representation nor incur any obligation of any kind on behalf of the other party, nor to bind the other party in any way. This Agreement shall not be construed as creating any employer-employee relationship nor does any partnership or agency agreement between the parties.

  14. ASSIGNMENT

    Neither party shall have the right to assign, divest or otherwise delegate or purport to transfer any of its rights and obligations under this Agreement without the prior written consent of the other party.

  15. WAIVER

    No failure or delay by either party in exercising any right, power or privilege to which it is entitled shall operate as a waiver nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise. For the avoidance of doubt, any waiver of any breach of the Agreement by either party shall not be construed as a waiver of any subsequent breaches of that same or any other provision.

  16. SEVERABILITY

    If, at any time, any one or more of the provisions in this Agreement is or are deemed to be invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions of this Agreement shall not be affected.

  17. ENTIRE AGREEMENT

    All agreements and obligations herein contained shall be in substitution for and shall supersede all and any previous agreements or understandings, oral or written, between the parties with respect to the subject matter hereof.

  18. FORCE MAJEURE
    1. A party will notify the other immediately if it is affected by Force Majeure. Force Majeure means any circumstances not foreseeable at the date of this Agreement and not within the reasonable control of the party in question including, without limitation, industrial action, destruction of premises or equipment, governmental action, civil disorder or war, fire, earthquake or other natural disaster.
    2. A party shall not be deemed to be in breach of this Agreement, or otherwise liable to the other party for any non-performance, or delay in performance, of any of its obligations of this Agreement, if the same is attributable to a Force Majeure and it has informed the other party thereof. In such case, the time for performance by the affected party of its obligations shall be postponed.
  19. AMENDMENT

    Any amendment to this Agreement shall be in writing and signed by the parties. Any variation of this Agreement, if not signed by the parties, shall be void and unenforceable.

  20. NOTICES
    1. Any notice or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent (by registered post or facsimile transmission) to the other party at its address referred to in preamble of this Agreement.
    2. Any notice or other information served pursuant to 18.1 shall be deemed to have been served when delivered by hand at the time of delivery and, when sent through the post, [3] days after the date of posting and, when sent by facsimile, on the date of transmission.
  21. MISCELLANEOUS
    1. Schedules: All schedules to this Agreement constitute integral parts of this Agreement.
    2. Headings: The headings inserted in this Agreement are for convenience only and shall not affect the construction of this Agreement.
    3. Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the Hong Kong SAR. Any legal action or proceeding between BiteUnite and Party B for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a court of competent jurisdiction in the Hong Kong SAR.

IN WITNESS WHEREOF, the parties have duly executed this agreement on the day and year first above written.

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