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Online Platform Service Agreement

THIS ONLINE PLATFORM SERVICE AGREEMENT (this "Agreement") is entered into as of _____, 201_ (the "Effective Date"), by and between BiteUnite of USA LLC, a California limited liability company ("BiteUnite"), and _____________________________[an individual] OR [a _________ [entity type] _______________________, with address at _______________ ("You" or "Chef")

  1. BiteUnite is a company engaged in running an online platform providing referral services ("Online Platform") through which the participating chefs or caterers will be able to connect with customers who directly engage the chef’s or caterer’s services for food and beverages preparation, cooking classes, culinary adventures, gustatory experiences, personal and alternative culinary experience and any services incidental thereto (the "Chef Services");
  2. Chef is a chef or caterer who wishes to use the Online Platform to sell his/her services in connection with cooking, food preparation, personal and alternative culinary experiences to the customers.
  3. This Agreement, together with the Kitchen License Terms of Use ("Kitchen License") executed by Chef contemporaneously herewith, sets out the matters agreed between the parties in relation to the arrangements, obligations, terms and conditions of this Agreement.


    1. BiteUnite will make available for use by Chef the Online Platform to advertise the Chef Services. The functionality of the Online Platform shall include provision of advertisement, arrangement of delivery of food, photo shooting and other services as determined by BiteUnite from time to time the ("Online Platform Services"). The Online Platform also operates as a payment gateway service to the customers ("Platform Service"). The Online Platform and Payment Service are collectively referred to as ("BiteUnite Service") .
    2. Chef will use the Online Platform to sell, promote, and arrange for Chef Services to be rendered to the customers who use the Online Platform to subscribe or request for Chef Services. The Chef’s Services shall be regulated by the Kitchen House Rules and the Kitchen License, which are incorporated herein by this reference.
    3. Chef hereby engages BiteUnite, and BiteUnite agrees to provide BiteUnite Service to Chef. BiteUnite agrees to remit the fees from the customers to Chef in accordance with Clause 3 of this Agreement.
  2. TERM

    This Agreement shall commence on the Effective Date and shall continue in full force and effect for an indefinite period of time (the "Term") unless and until terminated in accordance with this Agreement.
    1. All orders placed by the customers shall be collected by BiteUnite through its Payment Service.
    2. Chef agrees that BiteUnite shall retain an administrative fee based on each payment of the customer(s) made to the Chef (the "Administrative Fee") as set forth in Schedule 1 attached hereto.
    3. Upon each successful order placed by the customer through the Online Platform Service, BiteUnite shall remit the total fees received from the customer per each order, after deduction of the Administrative Fee, to Chef (the "Chef’s Fees"). BiteUnite shall remit the Chef’s Fees to Chef within [_____] days from the date of [the event]. BiteUnite may set off any sums due to Chef against any sums that Chef owes to BiteUnite.

    In consideration for the use of BiteUnite Service, Chef warrants and undertakes to do the following:

    1. Provision of Information of the Cuisine:
      1. Chef shall use its best efforts to provide information including name, ingredients, cooking method(s), recipes, and costs in connection with Chef Service to be displayed through the Online Platform;
      2. Chef shall also provide clear photos in connection with the Chef Service to be displayed through the Online Platform to BiteUnite;
      3. At the request of BiteUnite, Chef shall provide all other information that BiteUnite may reasonably request for the display, promotion, or use through the Online Platform.
    2. Marketing and Promotional Activities

      Chef shall use its best efforts to provide assistance to BiteUnite in all marketing and promotional activities pertaining to the Chef’s Services to be conducted through its Online Platform or any business associated or incidental thereto. The marketing and promotional activities shall include without limitation making available to BiteUnite photos or materials provided by Chef for BiteUnite printing of promotional leaflets or posting on its website and social media.

    1. Chef represents, warrants and undertakes that:
      1. Chef has obtained and shall maintain in effect any license that may be required under applicable law for Chef to render Chef Service to customers at all time;
      2. Chef has complied with all applicable requirements or regulations in force with respect to the Chef Service, including but not limited to Food Safety Manager Certification;
      3. Chef shall cause any members of his or her team using the BiteUnite Kitchen to obtain the Food Handler Card;
      4. Chef has not infringed any third party’s intellectual property rights including without limitation with respect to any service marks, designs, copyrights and patent and other intellectual property rights;
      5. Chef is not bound by the terms of any agreement with any third party that restrict the Chef from rendering the Chef’s Service. The Chef does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by him in confidence prior to the date the Chef’s Service is rendered. The Chef shall indemnify and hold harmless BiteUnite from any dispute or judgment arising out of any agreement contemplated in this Section (e).
      6. There is no action or claim made by any third party against Chef in connection with Chef Service; and
      7. The Chef has reviewed, understands and accepts the terms of the Kitchen License and the Kitchen House Rules ("House Rules", and, together with the Kitchen License, collectively, the "Ancillary Agreements"), attached hereto as Exhibit A, and is executing the Ancillary Documents contemporaneously with this Agreement.
    2. Chef warrants and undertakes to:
      1. only use the Online Platform provided by the BiteUnite for the sole purpose of uploading the images and information pertaining to the dishes or beverages by Chef, including detailed information of the cooked meals, recipes, cooking classes and hosted dinning services that are prepared by Chef;
      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 Chef Service;
      4. maintain all applicable valid licenses in full force including but not limited to all licenses regulating the preparation or sale of food and beverages to any third party. In particular, it will be the Chef’s sole responsibility to ascertain which licenses and permits are required from time to time, including without limitation any City of San Francisco Business Registration;
      5. maintain a valid insurance policy adequately covering all third parties’ injuries and work related injury for its team members and any additional insurance as required by BiteUnite;
      6. seek for BiteUnite’s prior written approval before using in its marketing or promotional activities, in whole or in part, directly or indirectly any service marks, designs, pictures, logos, articles, and other materials that belong to BiteUnite;
      7. perform Chef Service with due care and skills;
      8. 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 Chef Service or the sale of products, if any;
      10. observe and perform all its obligations as set out in this Agreement and in the Ancillary Documents, 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 at the request of BiteUnite once this Agreement is terminated;
      12. not to do any acts or conducts that could results in material, reputational or financial harm to BiteUnite or its affiliates, nor defame, disparage or denigrate the name or reputation of BiteUnite;
      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, it being understood that spontaneous tipping is permitted;
      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 Chef Service without knowledge of BiteUnite;
      16. not to use any commercial name or trademark similar to BiteUnite’s, whether personally or through any third parties including but not limited to Chef’s family members and relatives without prior written consent from BiteUnite; and
      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.
    1. Grant of the license
      1. BiteUnite hereby grants to Chef a non-exclusive, limited, revocable, not assignable, not sublicenseable license to use BiteUnite’s trademarks, service marks, trade names or other commercial designation, and domain name whether or not registered (collectively referred as "BiteUnite IP Rights") solely in connection with the Chef’s promotion of Chef Services.
      2. Chef hereby agrees to grant to BiteUnite a non-exclusive, royalty-free, perpetual license to use all Chef’s service marks, trade names, commercial designation, domain names or other proprietary rights pertaining to the Chef’s Service for use on the Online Platform, whether or not registered (collectively referred as "Chef IP Rights").
    2. Ownership of works carried out by BiteUnite
      1. BiteUnite may provide Chef with professional photo-shooting service ("Photo Shoot") in order to enhance the attractiveness of Chef Service to customers. Chef accepts and agrees that all the photos under the Photo Shoot are the property of BiteUnite in which BiteUnite shall have full title and interest.
      2. Chef shall comply with all instructions and guidelines issued by BiteUnite with respect to use of BiteUnite IP Rights, including without limitation the BiteUnite Trademarks listed in Schedule 2, including without limitation how BiteUnite Trademarks are to be displayed on or affixed to the delivery packages, business card or website of Chef if applicable.
      3. Chef shall not sub-license BiteUnite IP Rights or BiteUnite Trademark, except with the prior written consent from BiteUnite. If such sub-license is permitted hereunder, Chef shall warrant that such sub-license shall be subject to all terms and conditions that are applicable to Chef under this Agreement relating to the sublicensed rights.
    3. Enforcement of intellectual property
      1. Chef further undertakes that it shall during the term of this Agreement and at request of BiteUnite take all reasonable action for the protection of the BiteUnite IP Rights. 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 Chef, alleging that the use of the BiteUnite IP Rights infringes any right of such party, Chef 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.
    1. Chef shall keep confidential any information or arrangement in connection with this Agreement and BiteUnite Service and shall not disclose to 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. Chef shall not use such confidential information except for the performance of this Agreement.
    2. Chef shall cause its employees, officers, and agents of the parties to observe the aforesaid duty of confidentiality.
    3. This clause shall survive for a further period of 1 year from the date of termination of this Agreement.
    1. During the Term of this Agreement and for a further period of 1 year after any termination of this Agreement, Chef 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. Chef 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.
    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 authorized to sign the same for and on its behalf; and
    3. enter into this Agreement will not cause such party to violate any statute, bylaw, regulation or any other restriction imposed by law or by contract.
    1. Termination by either party

      This Agreement shall continue in force and effect from the Effective Date for an indefinite period of time unless earlier terminated as hereinafter provided. In the event that one party wishes to terminate this Agreement (the "Terminating Party"), the Terminating Party shall serve at least one (1) month 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 upon simple notice to Chef:
      1. If Chef has committed a breach of any of its obligations under this Agreement including but not limited to unreasonable delay or dissatisfactory performance of Chef Service, breach of confidentiality, and non-solicitation;
      2. If Chef is in breach of any laws and regulations including but not limited to those governing the sale of goods or services and anti-corruption laws;
      3. If Chef does not maintain any license in full force or such licence is revoked by the issuing authorities;
      4. if Chef becomes insolvent or bankrupt, 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, or, if a legal entity, goes into liquidation (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 Chef ceases its business.
    1. Chef ("Indemnitor") shall defend, indemnify and hold harmless BiteUnite and its directors, officers, affiliates, agents, shareholders and employees (collectively, "Indemnitees") from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or related to Chef Service, Chef’s negligence, willful misconduct or breach of this Agreement, unless such losses, actions, demands, claims or costs are attributable to the negligence of BiteUnite. Chef shall not enter into any settlement without Indemnitee’s prior written consent.
    2. Limitation of Liability. Neither Party shall be liable for special, consequential, indirect, punitive, exemplary or incidental damages or other indirect costs, fees, or charges of any kind arising from any claims hereunder, including without limitation, lost profits or business or loss of data, even if such Party has been advised of the possibility of such loss or damages.
    3. BiteUnite disclaims any liabilities incurred arising from or in connection with the Chef Service and information provided by Chef including but not limited to the quality or descriptions of the food, the use of the ingredients disclosed to the customers, whether incurred before or after the execution of this Agreement, including without limitation the use of any undisclosed allergens. Notwithstanding any provisions of this Agreement to the contrary, BiteUnite shall not be liable to Chef 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, arising out of, or in connection with this Agreement and the Ancillary Documents (whether caused by the negligence of BiteUnite, its employees or agents or otherwise) which arise out of or in connection with Chef Service, representations and warranties.
    1. Adding and Managing Events. Chef may add an event through the Online Platform and describe the event Chef would like to make available for diners, as set out in the relevant event details for each event. At a minimum, the event details ("Event Details") for an event must include the following: minimum number of attendees, and availability of the event; all applicable charges inclusive of any Taxes; permitted and prohibited uses of the Space and any restrictions resulting from Applicable Laws including but not limited to planning/zoning laws or restrictions and covenants, conditions and restrictions applicable to any event; the disposition of any personal property left in the Space by a diner; and any additional special rules, terms or conditions with which a diner must comply. Chef may not use the Services to make any event available for sale, residential use or lodging purposes, or for criminal or illegal activities. By adding an event, Chef represents and warrants the following:
    2. all information provided in connection with the Event Details is accurate, truthful, current, and complete;
    3. the applicable event is fully insured for the purposes set out in the Event Details, and has been and will continue at all applicable times to be properly maintained and free of all safety hazards;
    4. Chef’s addition of the Event Details and any licensing of the kitchen to a Guest do not and will not violate any agreements Chef has with third parties, any Applicable Laws, or any other third party rights;
    5. Chef is, and will continue at all times while using the Services to be, compliant with all Applicable Laws, Tax requirements, and any other rules, regulations, and agreements that may apply to the event included in the Event Details (including applicable insurance policies and approved planning use).
      The cancellation of a confirmed Booking by a Chef requires intensive logistical support and can affect the high standard of service by which BiteUnite’s marketplace operates. As such, in the event of any cancellation of a confirmed Booking by a Chef, BiteUnite shall be entitled in its discretion to impose liquidated damages of $____ per guest registered at the cancelled event on the Chef’s account, as well as publishing an automated review indicating a cancelled Booking, and suspending or terminating the Chef’s account. A cancellation of a confirmed Booking by a Chef must be made with at least seven (7) calendar days’ written notice. Failure to give such notice will entiel BiteUnite to charge the Chef the applicable Service Fee and Processing Fee. In addition, if any Chef cancels more than one Confirmed Booking, BiteUnite may, in its sole discretion, withhold future Payouts to a Chef to make up for any losses incurred as a result of Chef’s initial cancellation. These losses may include but are not limited to, the additional costs required to complete a new Booking for a Guest that has been displaced by a Chef’s cancellation.
      In certain circumstances, BiteUnite may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed Booking and to issue a refund to a Guest for part or all of the amounts charged to the Guest. Except in case of emergencies, BiteUnite will give at least 7 calendar days’ notice before the event date. You hereby agree that BiteUnite and the relevant Guests or Chef will not have any liability for any such cancellation or refund made by BiteUnite.
    3. GENERAL
      BiteUnite reserves the right to make adjustments to its cancellation and refund policy from time to time in accordance with the notice provisions for changes set out in this Agreement.

    In the event of inaccurate representations or mismanagement of the Online Platform or in connection with the BiteUnite Services or in connection with Food Events held by Chefs through the use of BiteUnite's Site and Services, BiteUnite may decide, in its sole discretion, to credit Chef with a refund for the Reservation Amount paid or part thereof and charge the Host with this amount . No action of BiteUnite may be construed as accepting any liability other than as mentioned herein.


    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.


    Chef 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 BiteUnite.


    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.


    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.


    This Agreement, together with the Ancillary Documents, sets forth the entire understanding between the parties with respect to the subject matter hereof and thereof, and supersedes any and all previous agreements or understandings, oral or written, between the parties with respect to the subject matter hereof and thereof.

    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 under 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 until the Force Majeure ceases.

    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.

    1. Any notice or other information required or authorized by this Agreement to be given by either party to the other may be given by hand or sent (by registered mail or electronic transmission) to the other party at its address referred to in the preamble of this Agreement.
    2. Any notice or other information served pursuant to 19.1 shall be deemed to have been served when delivered by hand at the time of delivery and, when sent through the mail, three (3) days after the date of posting and, when sent by electronic transmission, on the date of transmission.
    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 California. Any legal action or proceeding between BiteUnite and Chef for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a court of competent jurisdiction in San Francisco, California.
    4. Attorneys’ Fees and Expenses. Each party to this Agreement shall be responsible for all costs and expenses that it incurs with respect to the negotiation, execution, delivery, and performance of this Agreement. If any action, suit, or other proceeding is instituted concerning or arising out of this Agreement or any transaction contemplated under this Agreement, the prevailing party shall recover all of such party’s costs and attorneys’ fees incurred in each such action, suit, or other proceeding, including any and all appeals or petitions from such action, suit, or other proceeding.
  • IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

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