“TOM” is a short term used to Identify the company The Oven Market.
“Chef” means a party that supplies food and beverages to TOM
“End User” means any person or entity that has made a request for food and beverage delivery service through TOM App
“Logistic Provider” means third party logistic service provider appointed by TOM to deliver food orders supplied by Chef to End Users
“Territory” means United Arab Emirates.
“TOM App” means The Oven Market mobile application that enables the End User to use Logistic Provider’s services to order food and beverage supplied by Chef;
The Services is limited to:
i. referring End User to the Chef;
ii. accepting orders and payments from End User, according to the method set by TOM;
iii. coordinating pickup and delivery of orders; and
iv. passing the payment and order from the End User to the Chef according to the method set by TOM, taking into account the agreed Service Fee to TOM.
TOM may carry out changes to Services, or suspend the Services, without notice.
3. TOM’S OBLIGATIONS
i. TOM shall present on the TOM App the range of food & beverage products offered by the Chef.
ii. Whenever an order is received by TOM, TOM will communicate the order details to the Chef for food and/or beverage preparation. A Logistic Provider will collect the prepared order as a take-away order for delivery to the End User. Depending on the payment method of End User, Logistic Provider will collect from the End User the total order amount and delivery charges (as applicable).
iii. In order to maintain its reputation for quality and high standard of service, TOM reserves the right to terminate the relationship with the Chef if the Chef repeatedly receives bad reviews, complaints of failure to fulfill delivery order.
iv. TOM shall pay the Chef every Thursday the proceeds, less commissions from all transactions and other amounts due to TOM, from the immediately preceding week.
v. TOM shall provide marketing materials to be used on social media platforms and marketing purposes.
4. CHEF’S OBLIGATIONS
i. The Chef shall provide TOM with all information necessary to present its offering. This includes the menu, products, logo, images, prices, and Chef’s profile.
ii. The Chef must provide the necessary license and tax registration number, if available.
iii. Relevant changes are to be communicated to TOM immediately. The Chef is required to verify the information published by TOM and immediately point out any mistakes or inaccuracies. The Chef shall immediately notify TOM should there be price changes. For avoidance of doubt, the Chef’s menu, products, logo, images, prices, and its company identity may be published on TOM App and other media means (including but not limited to twitter, Facebook and Google AdWords campaign).
iv. The Chef guarantees that information published on TOM App relating to its offering satisfies all legal requirements, and in particular satisfies information requirements for End User protection. TOM is not required to publish the Chef’s offering on TOM App before all relevant information has been received.
v. The Chef guarantees that the information provided by it does not violate any third party’s Intellectual Property Rights.
vi. The Chef will process orders with all reasonable care and as soon as they are submitted by the End User. The Chef is required to keep its advertised food and beverage products available to the best of its ability.
vii. The Chef guarantees that the food and beverages prepared and sold to End Users, are in good quality and safe for consumption. In the event any food or beverages are spoiled, defected, broken, or which results in food poisoning, allergies or other effect that will harm or disappointed by End User, Chef will be personally responsible and/or legally liable for such incident, both material and immaterial, and release TOM from any claim related to such matter.
viii. The Chef is obligated to notify TOM in no later than 5 minutes if it is unable to fulfill an order, so that TOM can notify the End User immediately.
ix. The Chef agrees to adhere to the range of products and prices as provided to TOM and as described on the TOM App.
x. The Chef guarantees that the food and beverages offered are of high quality and their storage, production and preparation comply with all relevant retail, restaurant and food safety regulations. If any violations are found by the relevant authorities, the Chef must notify TOM immediately.
xi. The Chef guarantees that it possesses all licenses required by prevailing laws and regulations and that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to its business operations.
xii. The Chef guarantees to take great care to keep up-to-date its range of products, prices and associated terms and conditions.
xiii. The Chef acknowledge and agree that Logistic Provider may batch several orders for trip efficiencies (where applicable).
xiv. The Chef should obtain Occupational Health Card from local authority to indulge with professional cooking activity.
xv. The Chef must prepare the menu and go live on the TOM app within maximum 7 days upon signing the contract.
5. OWNERSHIP AND RIGHTS
i. Each party warrants that it is the legal licensee of all Intellectual Property Rights used under this Agreement and free from any infringement or violation of any third party ownership or intellectual property rights and no other party will claim to have the same ownership of such Intellectual Property Rights.
ii. Each party warrants that it will not use any other party’s trademark for any marketing activities, including but not limited to promotional activities without prior written consent from the other party and unless it is conducted based on this Agreement.
iii. Use of shared images must be legally permitted and accompanied by proper credit to rightful owner.
iv. The Chef hereby gives TOM the rights to use its Intellectual Property Rights upon signing this Agreement.
6. REPRESENTATIONS AND WARRANTIES
Either party warrants that each party has entered into this Agreement in full reliance of the following representations and warranties:
i. Each party has the capacity and power to enter into and perform and comply with the each parties obligation under this Agreement;
ii. This Agreement is a valid and binding obligation and enforceable against each party in accordance with the terms hereof;
iii. Each party’s execution of and/or performance of or compliance with its obligations under this Agreement do not and will not violate (i) any laws to which each party is subject or (ii) any agreement to which each party is a party or which is binding on each party or each party’s assets;
iv. Each party is not in default of any agreement to which each party is bound which may materially and adversely affect each party financial condition or each party ability to perform any obligations under this Agreement nor are there any actions, proceedings, claims, investigations, litigation or arbitration pending or threatened against each party which may have a similar or analogous effect; and
v. Each party complies and owns all mandatory licenses under each party applicable law in its applicable jurisdiction and each person who represents and binds each party to this Agreement is authorized to represent and to bind each party.
vi. Either party warrants that the representations and warranties in this section shall continue to be true for so long as this Agreement subsists, and each party will bear the risk respectively and legally be processed if in the event the representation and warranties stated herein are proven to be incorrect or untrue.
7. TERMINATION AND SUSPENSION
i. TOM may terminate this Agreement in the event of a material breach, where such breach is not cured within two (2) days’ notice thereof by the non-breaching party.
ii. At any time, TOM may, without notice immediately terminate this Agreement or temporarily suspend the Services, if:
a. TOM suspects that there is any unlawful, illegal and/or fraudulent act committed by Chef and/or its employees or agents;
b. Chef repeatedly receives bad reviews from End Users or complaints of failure to fulfil meals orders; or
c. Chef is in violation of any food safety or other regulations relating to restaurants and/or meals.
iii. At any time, either party may, upon giving written notice to the other party, immediately terminate this Agreement, if the other party terminates or suspends its business, enters into bankruptcy or insolvency proceedings or other analogous proceedings, or becomes subject to any law, regulation or restriction which prevents such other party performing its obligations under this Agreement.
iv. The termination of this Agreement shall not relieve or limit each of the parties from its obligations, responsibilities and liabilities accruing prior to such termination.
i. The Chef agrees to defend, indemnify (and keep indemnified) and hold harmless TOM, its assets (application, etc) subsidiaries, affiliates, agents, directors, officers, employees and/or assignees, harmless from and against any claims, damages, costs, judgments, losses or expenses (including reasonable attorneys’ fees), arising in relation to matters outside TOM’s control, including but not limited to the quality of food and beverage and services provided by the Chef, as well as the meal preparation safety or hygiene. The Chef further indemnifies TOM from third party claim resulting from any violation of laws and regulations by the Chef.
ii. Notwithstanding any other provision herein, it is agreed that neither party shall be liable to the other party for any loss of profit, goodwill, business opportunity, and anticipated savings or for any indirect or consequential loss or damage suffered or flowing from either party.
iii. TOM cannot guarantee that its Services will be free from any malfunctions, but will exercise all reasonable endeavour to resolve any such case.
i. Each party shall keep confidential and shall not disclose to any person or use directly or indirectly for its own or any other person’s benefit (other than for the due performance by it of its obligations under this Agreement), any Confidential Information disclosed, made available or otherwise provided to the receiving party by or on behalf of the disclosing party. This clause shall not apply to any Confidential Information which at the time it is disclosed, made available or otherwise provided by the disclosing party, is in the public domain and shall cease to apply to any information which subsequently becomes publicly available otherwise than as a consequence of any breach by the receiving party.
ii. The receiving party may disclose Confidential Information to:
a. its directors and employees to the extent that their duties will require them to have access to such Confidential Information, provided that the Receiving Party shall instruct such directors and employees to treat such Confidential Information as confidential and not use such Confidential Information for any purpose other than the proper discharge by them of their duties; and
b. its external auditors, lawyers and professional advisers, and the Receiving Party shall ensure that the persons to whom such disclosure is made are contractually bound by the provisions of this clause by the incorporation of corresponding provisions of confidentiality in their employment and other applicable contracts.
iii. These confidentiality obligations shall endure, even after the expiry or termination of this Agreement, with limit 3 (three) months after the expiry of this Agreement and/or until the Confidential Information enters the public domain.
10. FORCE MAJEURE
i. Both parties are released from responsibility to all obligations and delay of work as consequence of Force Majeure. Force Majeure is defined as any extraordinary circumstances which is an unforeseeable, inevitable event and/or beyond reasonable control of the parties including but not limited to epidemic or pandemic (except the epidemic/pandemic of Corona Virus Disease 2019 (Covid-19), natural disaster, war, rebellion, aggression, sabotage, riot of mass, and existence of governmental regulations in monetary affairs which directly influence performance of this Agreement.
ii. If one of the party has delayed or prevented from performing its obligations hereunder as a result of an event of Force Majeure, it shall promptly notify the other party in writing as soon as possible after the occurrence of such an event of Force Majeure.
iii. If the Party, who is suffering, does not or neglects to notify the other party hence all lost, risks and consequences which may arise shall be the burden and responsibility of the party who suffered from such Force Majeure.
iv. If the event of Force Majeure continues for a period exceeding 60 (sixty days) calendar days and both parties had negotiated in good faith and did not settle on a suitable resolution, then either party shall be entitled to terminate this Agreement by written notice to the other party hereto.
11. LOGISTIC PROVIDER AS INDEPENDENT CONTRACTOR
i. The third-party agreement which stipulates that Logistic Provider agrees to provide food delivery service which food was ordered to the Chef by the End User, shall constitute as an independent agreement between the End-User and the Logistic Provider which is not an employee or agent of TOM.
ii. TOM does not provide any transportation services and shall not be held responsible whatsoever for any Logistic Provider’s action, negligence, failure, lateness, or rejection to provide transportation service, specifically retail and/or food delivery service from Chef to the End User.
iii. TOM may not and shall not guarantee the safety, reliability, compatibility, or capability of the Logistic Provider during the deliverance of his/her obligation in delivering the food or beverages from Chef to the End-User. Therefore, the Chef hereby, hold TOM harmless and discharge TOM from any and all responsibility, claim, cause, or damage which occurs from such delivery service.
i. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, inducements or conditions, expressed, or implied, oral or written, except which stated in the attachment.
ii. The invalidity or unenforceability for any reason of any part of this Agreement shall not prejudice or affect the validity or enforceability of the remainder of this Agreement.
iii. If further lawful performance of this Agreement or any part of it shall be made impossible by the final judgment or final order of any court of competent jurisdiction, commission or government agency or similar authority having jurisdiction over either party, the parties shall forthwith use their reasonable endeavors to agree amendments to this Agreement so as to comply with such judgment or order.
iv. TOM reserves the right to modify or amend the general terms and conditions without the Chef’s consent. However, TOM shall notify such changes through email and the Chef has the chance to object within 2 weeks as of the receipt of such notification of changes.
v. Any terms and conditions of the Chef are not part of this Agreement unless TOM expressly agrees to adhere to them in writing.
vi. TOM may assign all or any part of this Agreement or its rights, interest or obligations at any time to any of its affiliates which can sufficiently execute the obligations under this Agreement.
vii. All notices, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and delivered personally, sent by email or registered post.
viii. This Agreement is governed and construed under the laws of United Arab Emirates.
ix. Any dispute arising out of, from the implementation or interpretation of this Agreement that cannot be amicably settled shall be subject to the exclusive jurisdiction of the Dubai courts.