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.

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.

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 business purposes. 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.

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.

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.

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.

The Supplier hereby represents and warrants as follows: (i) 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; (ii) 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; (iii) 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 (iv) 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 above.

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.

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 the App(s). 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, 8, 9, 10, 13 and 14 of this Agreement and all limitations of liability hereunder shall survive termination of this Agreement and continue in full force and effect.

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.

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.

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. (b) Notices. 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. (c) Severability. 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. (f) Waiver. 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. (g) Amendments. 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.