Brand Creator
Cali Kitchens, Inc., operating under the name "VyBlee", owns and operates a unique platform that matches brand creators with kitchen operators, and makes possible the production of food by kitchen operators using the brand creators' brands ("VyBlee Marketplace"). The VyBlee Marketplace includes various trademarks, service marks, logos, emblems, menus, recipes, brands, concepts, license rights, training, operating procedures, and other know-how unique to brands licensed by VyBlee. The VyBlee Marketplace allows brand creators and kitchen operators to earn fees from the sale of products using the VyBlee Marketplace.
This User Agreement contains the terms and conditions that apply to your participating in the VyBlee Marketplace as a brand creator ("Brand Creator"). As used herein, "we", "us", or "VyBlee" means Cali Kitchens, Inc. (and any affiliated entities), and "you" means the Brand Creator.
You hereby grant to VyBlee an unconditional, exclusive, perpetual, worldwide license (the "License") to use your brand ("Brand") which you have uploaded to the VyBlee Marketplace only subject to the terms and conditions of this Agreement. The Brand is intended to be used to brand and sell food products chosen by you on the VyBlee Marketplace ("Branded Products").
3.1 The VyBlee Marketplace will provide you with options for food products to be made and sold under the Brand. You will choose the food products that you wish to be Branded Products. It is expected that you will, in your own economic interest, promote and market the Branded Products through your own social media and other outlets. VyBlee will have no obligation to promote or market the Branded Products.
3.2 We will be responsible for all aspects of the VyBlee Marketplace, including setting prices for Branded Products, providing kitchen operators with packaging that depicts the Brand, payment of fees to and collection of revenue from third party delivery vendors, and more generally the relationships with third party kitchen operators and delivery vendors. We will pay your License Fee (as defined in this Agreement) from the revenue collected, pursuant to the terms of this Agreement.
3.3 When promoting, advertising, or marketing the Branded Products, you may not violate or infringe upon the rights of any third party or any term of this Agreement including use of any material that portrays in any way violence, hate, or discrimination toward any persons or groups. You shall be solely responsible for any promotion, advertisement, or other marketing content produced or distributed by you.
4.1 You shall be entitled to a license fee ("License Fee") of 15% of the total accumulated gross revenue from sales of any Branded Product on the VyBlee Marketplace during the Term ("Gross Revenue"). Gross Revenue does not include the amount of any applicable sales tax imposed by any federal, state, municipal or other governmental authority if such taxes are stated separately when the customer is charged and VyBlee pays such amounts as and when due to the appropriate taxing authority. Gross Revenue also does not include the amount of any documented refunds, chargebacks, credits and allowances given to customers.
4.2 The License Fee will be calculated on each transaction using the Brand.
4.3 VyBlee will provide the Brand Creator each month with a detailed statement of account.
4.4 You acknowledge that no promises have been made by us concerning the amount that you can earn using the VyBlee Marketplace or otherwise under this Agreement.
5.1 During the Term, you agree to not use the Brand to make or sell food products of the same or substantially similar type as the Branded Products.
5.2 During the Term, we may use the Brand only in performance of this Agreement and for marketing purposes on the VyBlee website or VyBlee social media accounts. Any other use of the Brand by VyBlee will require the express written consent of the Brand Creator.
5.3 You agree to not make any statements, representations, or to otherwise communicate directly or indirectly in any manner in a way that disparages VyBlee, the VyBlee Marketplace, or any party using the VyBlee Marketplace.
6.1 We shall have no liability for claims made by you arising from the operation of the VyBlee Marketplace.
6.2 VyBlee makes no warranty expressed or implied regarding the fitness of the VyBlee Marketplace for a particular purpose or that the VyBlee Marketplace will be suitable or appropriate for the Brand.
6.3 You make no warranty expressed or implied regarding the fitness of the Brand for a particular purpose or that the Brand will be suitable or appropriate for the specific requirements of VyBlee.
6.4 Your liability for any claim relating to this Agreement shall be limited to the License Fee received under this Agreement. You will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by VyBlee arising out of the use of the Brand, except in cases of gross negligence, willful misconduct, or fraud.
6.5 Subject to paragraph 6.6 of this Agreement, VyBlee's liability for any claim relating to this Agreement shall be limited to the Gross Revenue received by VyBlee relating to the use of the Brand. We will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by you arising out of the use of the Brand, except in cases of gross negligence, willful misconduct, or fraud.
6.6 VyBlee shall indemnify, defend and hold you harmless agents against any and all judgments, damages, liabilities, costs and losses of any kind (including, without limitation, reasonable attorneys' and experts' fees and expenses) as a result of any claim, action or proceeding brought by a third party arising from (i) VyBlee's use of the Brand in a manner that is not in accordance with the terms of this Agreement or (ii) any product liability or personal injury claims or any similar claim related to products sold through the VyBlee Marketplace.
6.7 You shall indemnify, defend and hold harmless VyBlee and its affiliates, officers and directors, employees and agents against any and all judgments, damages, liabilities, costs and losses of any kind (including, without limitation, reasonable attorneys' and experts' fees and expenses) as a result of any claim, action or proceeding brought by a third party arising from your use of the Brand in a manner that is not in accordance with the terms of this Agreement.
You warrant and represent that:
The term of this Agreement will begin on Acceptance and will continue until it is terminated as provided in this Agreement.
9.1 This Agreement may be terminated immediately by you and the License forfeited if VyBlee fails to comply with any of the terms of this Agreement or is in breach of this Agreement, subject to VyBlee's right to cure any default within 15 days of written notice from you.
9.2 This Agreement may be terminated immediately by VyBlee if: (a) your Brand or use of the VyBlee Marketplace involves or relates to material, however presented, that is offensive, objectionable, or otherwise inappropriate in the discretion of VyBlee, for example materials that are knowingly false and/or defamatory, abusive, vulgar or hateful; (b) you have violated the terms of this Agreement; (c) you create risk or possible legal exposure for VyBlee; (d) you have engaged in unlawful conduct.
9.3 Either Party may terminate this Agreement 30 days after providing written notice of termination to the other Party.
9.4 Effect of Termination; Data Retention Upon termination for any reason, the License will be forfeited and your account with VyBlee will be closed. VyBlee will retain your account data for a period of one-year from closure.
We make no express or implied warranties or representations with respect to the VyBlee Marketplace or any products sold through it (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the VyBlee Marketplace will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors; however, we will make commercially reasonable efforts to correct errors or interruptions promptly.
You agree to submit to the jurisdiction of the courts of the State of California for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. You further agree this Agreement will be enforced or construed according to the laws of the State of California.
11.1 Submission of your application to the VyBlee Marketplace constitutes your acceptance of the terms set out in this Agreement. We may accept or reject any application and notify you of your acceptance or rejection. We may accept or reject any Application in our sole discretion. If your application is not accepted, you may reapply at any time.
11.2 YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. NOTHING HEREIN SHALL OBLIGATE VYBLEE TO PROVIDE YOU ANY EXCLUSIVE RIGHTS OR BENEFITS, AND YOU UNDERSTAND THAT THIS AGREEMENT IS MADE ON AN EXPRESSLY NON-EXCLUSIVE BASIS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE VYBLEE MARKETPLACE AND ARE NOT RELYING ON ANY REPRESENTATIONS, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
12.1 We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our website. We will also make commercially reasonable efforts to notify you of such changes prior to or upon implementation; provided, however, that VyBlee is not responsible for your failure to receive notice of changes, and you agree to review these terms periodically to ensure that you are familiar with the most recent version of such terms, policies and operating procedures. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE VYBLEE MARKETPLACE FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12.2 This Agreement does not create or imply any relationship in agency or partnership between the Parties.
12.3 Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
12.4 If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
12.5 This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
12.6 This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon your successors and assigns.
12.7 The Parties acknowledge to one another that no promise, inducement or agreement not contained herein has been made to either of them in connection with this Agreement.
All notices to VyBlee under this Agreement shall be made by mail/courier delivery and electronic mail to the following address:
Mailing address: 6800 Owensmouth Avenue, Suite 350, Canoga Park, California 92303
Email address: support@vyblee.com
All notices to you under this Agreement shall be made by mail/courier delivery and electronic mail to the addresses provided by you when creating your profile on the VyBlee Marketplace.
The failure of VyBlee to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by VyBlee.