This agreement (the “Agreement”) sets out the terms and conditions for your (or the entity you represent) limited right to use the Trademarks (as “Trademarks” is defined below). By accepting and entering into the present Agreement with the Cocoa Horizons Foundation (hereafter the “Foundation”) you (hereafter “You” or the “Actor”) agree, for and on behalf of yourself and the entity you represent (in which case you represent to have full legal authority to bind such entity for the purposes of the present Agreement), to the terms and conditions set out below.
The Foundation and the Actor are hereafter also referred to collectively as “Parties” and individually as a “Party”.
A. The Barry Callebaut Group of companies (“Barry Callebaut”) and the Foundation run a joint program aimed to enhance the market adoption of sustainably grown cocoa (the “Program”). In doing so, Barry Callebaut, amongst other things, sells cocoa-based products and chocolate that fulfill the requirements set out in the Program. Such products are traded under the label, logo and the registered trademark ‘Cocoa Horizons’ (the “Trademarks”) and are hereinafter referred to as the ‘Cocoa Horizons’ products, respectively to ‘Cocoa Horizons’ ingredients.
B. he Actor is a buyer of ‘Callebaut’ branded products, which, without further actions of the Actor, unrestrictedly and automatically fulfill the requirements set out in the Program and as such constitute as ‘Cocoa Horizons’ products, respectively ‘Cocoa Horizons’ ingredients.
C. Consequently, in each case solely with respect to its finished products that have been produced entirely using ‘Cocoa Horizons’ products, respectively ‘Cocoa Horizons’ ingredients (the “Products”), Actor shall be granted the right to represent itself as contributor to, and participant of, the Program on terms and conditions set out herein.
Now therefore, the Parties agree as follows:
1. This Agreement sets out the general terms for the Actor’s limited right to use the Trademarks.
2. The Actor is granted the right to communicate in verbal and written form its participation in the Program, to publish its commitment to the principles of sustainability embedded in the nature of the Foundation and to call itself “Participant” of the Program. Publication on webpages, marketing materials, sales prospectus and the like shall only be allowed to the extent the Actor’s use, consumption or sale of Products constitutes a significant part of its overall activities / turnover.
3. As a consequence of being a Participant in the Program, and as long as this Agreement is in force, the Actor is granted a worldwide, non-exclusive, non-transferable, revocable and paid-up right to use the Trademarks to the extent that this use is conceptually linked to the Products and therefore to the Program. The Actor hence is entitled to benefit from the value of the Foundation’s reputation in the field of cocoa sustainability activities, subject to, and in accordance with, the terms of this Agreement and the conditions described in the following sections.
4. The Actor’s rights and obligations in connection with being a Participant shall include the right to call itself ‘Participant’ strictly in connection with the Products and the obligation to be fully transparent with (i) the volumes of ‘Cocoa Horizons’ products sourced directly from Barry Callebaut and/or indirectly via a Cocoa Horizons customer and (ii) the volumes of Products bearing/claiming the Trademarks sold. The Actor shall notably refrain from selling/claiming more Products bearing the Trademarks than ‘Cocoa Horizons’ ingredients actually bought and paid for. Should for any reason the sold volume exceed the bought volume, the Actor shall rectify this immediately by buying the relevant quantity of extra volume and not declaring it as such when reselling.
5. The Actor acknowledges and accepts that ‘Cocoa Horizons’ products are delivered to Cocoa Horizons customers applying a mass balance methodology. The Actor acknowledges and accepts that a mass balance methodology is applied on ‘Callebaut’ branded products.
6. The Foundation and/or their appointed surveyors or auditors shall be entitled to perform an audit of the Actor to ensure compliance with the terms of this Agreement, in particular in relation to the correct and appropriate use of the Trademarks; to this extent, the Foundation shall inter alia be entitled to conduct a sample traceability analysis and the Actor agrees to show the theoretical flow of incoming ‘Cocoa Horizons’ ingredients and outgoing finished Products. Audits can be performed at any time upon reasonable prior written notice.
7. The Actor’s rights and obligations in connection with the use of the Trademarks include:
- The Actor’s right to use the Trademarks is strictly limited and restricted to Actor’s finished goods which have been produced entirely using ‘Cocoa Horizons’ products, respectively ‘Cocoa Horizons’ ingredients as raw materials. The Actor shall not use the Trademarks for or in connection with goods which have been produced by using any raw materials other than ‘Cocoa Horizons’ products.
- The Actor acknowledges and agrees that the Trademarks and any and all of its derivatives shall at all times be and remain the exclusive and absolute property of the Foundation. The Actor shall honor and refrain from using or referring to the Trademarks unless being entitled to do so under the terms of this Agreement; the Actor shall refrain from any actions in connection with the Trademarks, which might reasonably be expected to have an adverse impact on Barry Callebaut’s and/or the Foundation’s reputation.
- The Actor shall strictly comply with all applicable laws and regulations when using the Trademarks.
- The Actor shall have the right but not the obligation to use the Trademarks on goods made from or related to ‘Cocoa Horizons’ products.
- The Actor has read, understood and accepted the Foundation’s Trademarks guidelines (as can be found here)
- The Foundation’s Trademarks guidelines form an integral part of this Agreement. The Actor is not allowed to use the Trademarks in deviation from the guidelines.
8. The Actor shall refrain from claiming any of the Foundation’s activities as effectively its own. The Actor may communicate its support of, or contribution to, these activities.
9. Failure of the Actor to comply with the terms of this Agreement may result in the Foundation unilaterally, with immediate effect, terminating this Agreement. In such event, upon the Foundation’s notice of termination, the rights granted herein to use the Trademarks shall immediately and without further actions be revoked and lapse. As of such moment, the Actor shall not be authorized to use or refer to the Trademarks in any way any longer and shall immediately cease to use any promotional materials or communications with respect to the Foundation and/or the Program.
10. Each Party shall be liable for its own costs, fees and expenses arising from, or in connection with, this Agreement. The Actor warrants not to hold the Foundation liable for any cost or losses it might suffer from the participation in the Program as set out in this Agreement.
11. The termination of this Agreement shall not prejudice any right of action or remedy which may have accrued to either party. Under no circumstances shall the fact that the Foundation does not react to Actor’s non-compliance with the terms and conditions set forth herein be construed as a waiver of the Foundation’s right.
12. The formation, construction, performance and validity of this Agreement or of any term thereof will be governed by the laws of Switzerland (excluding its conflict of law rules and excluding any international treaties)
13. Any dispute arising out of or in connection with this Agreement shall be resolved amicably and in good faith negotiations. In the event of an insurmountable dispute out of or in connection with this Agreement, including any question regarding its validity or termination, the competent courts of Zurich, Switzerland, shall have exclusive jurisdiction over such dispute. At the Foundation’s sole discretion, claims may also be brought forward by the Foundation against the Actor at the registered seat of the Actor. Such courts shall then have competence likewise.
14. This Agreement shall economically retroactively be effective as of the initial purchase of ‘Cocoa Horizons’ products by the Actor (the “Effective Date”). This Agreement shall continue to stay in force for the entire duration of Actor’s direct or indirect procurement of ‘Cocoa Horizons’ products as set out in this Agreement, unless terminated by either party giving three (3) months’ written notice to the other party or unless earlier terminated by the Foundation for cause. In any event, this Agreement shall expire and terminate in the absence of any purchase by the Actor of ‘Cocoa Horizons’ products within 12 months from the initial purchase.
15. This Agreement may be electronically signed and/or accepted and it is agreed that such electronic signature are the same as hand-written signatures for purposes of validity, enforceability and admissibility.