Contract General Terms & Conditions
( Section 4 of the Contract )
1. Acceptance of Terms of Service. As a material condition and inducement for Circle H International, Inc., as well as its licensees and/or other assignees and designees (individually and collectively, called Circle H or Company) to provide you (called Client) with certification services (called Services) as specified in this Halal Certification Services Agreement (Sections 1 through 4 inclusive, called, Contract), Client expressly warrants to Company and agrees as follows:
(a) To comply with all terms and conditions of the Contract using best-efforts, and in a diligent, prompt, professional, expeditious and commercially reasonable manner (called Client Performance), including cooperating fully (i) in facilitating and complying with the certification process, and any extensions, renewals, updates or other Changes (as defined below) requested by Company; and (ii) in the submission and provision of the Application, information, samples, materials, assays, analyses, reports, tests, pictures, drawings, layouts, schematics, plant information, registrations and licenses, and other documents, certifications, registrations and details deemed relevant by Company (called Client Submissions), including ensuring that Client submissions are and remain true, correct, current and complete. Except when another date is specified in the Contract or written communication from Company, any Company request for Client Performance, Client Submissions or other action or updates shall be responded to by Client in no more than five (5) business days;
(b) To comply with all applicable local, state, national and international laws, rules, orders, directives, guidance and regulations, including as Company deems such compliance necessary or appropriate (called Laws), and including maintaining current and complete registrations, certifications and licensing for all business activities in all applicable countries and jurisdictions for which certification from Circle H is requested
(c) To rely on Circle H as the sole and exclusive provider and arbiter of all questions, certification and licensing for all Halal standards and lifestyle matters pertaining to Client’s business for which Services with Company have been contracted, including what is permitted and prohibited under Circle H Halal standards and requirements and what is authorized and licensed for Client’s use, promotion and display of the Ⓗ™ brand and related marks and other intellectual property rights (Circle H IP). Any questions or Client inquiries regarding this Contract or any Halal matters must be directed to Circle H and not to any third party whatsoever;
(d) The Contract consists of various “Sections”: All Sections, Company documents, standards, requirements, procedures, conditions and permitted activities and uses these Sections reference, constitute one, integrated binding agreement. Any inconsistency in the words or application of any Contract terms and conditions, including among Contract Sections, shall be resolved by interpretation and application of terms most favorable to Company;
(e) Once Client has followed all Company procedures and complied with all requirements for certification, Client shall be issued a certificate specifying, among other things, the goods or services for which Client has received certification and the license term (called Certificate), as well as a list of permitted Circle H IP usage (called Licensed Uses of Circle H IP). Any and all uses of the Certificate and Licensed Uses of Circle H IP, including via any sales, marketing advertising or other channel, or any medium (including paper, electronic or otherwise), are subject to the terms and conditions set forth in each Certificate and this Contract; and
(f) Client understands and agrees that Circle H may, without prior notice and without liability or obligation toClient or any third party, modify, alter, supplement, update, extend, supersede, replace, renew, discontinue or eliminate (called Change(s)) any and all Company policies, procedures, requirements, certifications and Contract terms at any time, for any good faith reason, in Company’s sole and absolute discretion, including due to Changes in Halal standards requested by religious or governmental authorities, Changes Company deems beneficial to Halal lifestyle, as well as for compliance with all applicable Laws, whether governmental, non-governmental-organization (NGO), judicial, administrative, religious or otherwise. Company shall be deemed to have effectively notified Client of any and all Changes by posting on its Website (www.halalcircleh.com). Client is solely responsible for regularly checking the Website for every notice of Change. Client’s continued use of Services after any posted Change notice constitutes Client’s immediate binding acceptance of each Change.
2. General Description of Services. Services are specified in this Contract, including Company’s certification that Client’s products or services comply with applicable Islamic Shariah Laws as developed and established by Circle H and its Sharia Council for the term specified in Client’s Certificate. Services may also include Company’s good faith efforts, subject to availability of resources and technology, to endeavor to help develop Client’s business, for specified performance-based fees. Client expressly acknowledges and agrees that Company makes no, and Company does not rely upon, any representations, warranties, inducements, assurances, opinions, projections, guarantees or statements relating to the amount, availability or level of success of any efforts by Company, or any outcomes for Client, resulting from any business development endeavors by Company on behalf of Client related to or connected with the Services.
3. General Conditions for Certification and Use.
(a) Client must make available competent, qualified, cooperative employees and contractors to implement, comply with and maintain the certification process and all Contract requirements;
(b) Client recognizes and agrees that Company, at all times, is and remains the sole, exclusive, rightful and final (i) owner of all Circle H documents, procedures, certifications, licenses and intellectual property, including Licensed Circle H IP, and (ii) authority, exercised in its sole and absolute good faith discretion, for rendering all decisions on Client’s compliance with this Contract and certification and licensing status, related to its Services, including for granting, maintaining, renewing, extending, reducing, suspending, restricting, withdrawing, Changing and/or terminating certification or Services or the Contract, and/or for any remedial plans that Company may elect to require be implemented by Client for reinstatement to good standing (called Company Authority). Any certification or approval granted to Client is non-exclusive and strictly limited to the place, time, activities and business entity expressly stated, described and authorized. No rights or authority in Client shall be implied or inferred, and Client is expressly prohibited from assigning or delegating the use or benefits of any Certificate;
(c) Client recognizes and agrees that Company may assign or delegate any of the Services to third parties to perform on behalf of, or in substitution for, Company.
(d) Upon Company’s determination that (i) the Contract has been breached by or on behalf of Client in any way, including due to failure in Client Performance, Client Submissions or other material Client Contract action or inaction, including failure to make payment, or any unethical, illegal or other activities Company or its advisors believes to be inconsistent with the Circle H mission, practices, Halal lifestyle or standards, any religious or governmental related Laws, or otherwise adverse to Company’s business, or (ii) the Halal business, regulatory, trade or commercial environment has Changed, such that continued certification of Client shall materially adversely affect Company’s business, reputation or goodwill; or (iii) there has occurred a case of Force Majeur or other situation beyond Company’s control; then in any such circumstance Company may immediately exercise Company Authority, up to and including termination of any Certificate and/or this Contract. Client’s sole remedy for finding any exercise of Company Authority unacceptable is to terminate the objectionable licensing and cease using those Services, including related Certificates and Licensed Circle H IP, and pay and forfeit all related Fees still owing or paid for the current year;
(e) No product ingredients, components, specifications or standards, which are the basis of an approved Certificate, can be Changed by Client without prior Circle H approval, with applicable requisite Change in requirements and payment of Client Change Fees, as applicable;
(f) Client Performance shall include full cooperation in arranging for Company access, inspection, examination, audit, evaluation, surveillance, observation, documentation, measurement, photography and recording of all Client locations, plants, equipment and personnel (including employees and contractors) deemed necessary or appropriate by Company to (i) perform or fulfill Services or (ii) ensure Client’s compliance with the Contract or Certificate(s). Any and all such Company actions can be random, spot arranged and occur at any time, without notice, during business hours. Company will endeavor, but is not obligated, to provide five (5) business days’ prior notice for scheduled meetings or audits;
(g) Client Performance also includes Client’s keeping a record of, reporting to and sharing with Company, all complaints known to Client relating to compliance with Services, Client’s Contract or Certificate(s), or Client’s business practices (called Material Complaints), and take all appropriate action, including as Company may deem necessary or appropriate, with respect to such Material Complaints and any deficiencies found in products or services that affect certification compliance. Further, Client shall cooperate fully to investigate any complaints against Client, in any way related to Services, Client’s Contract or Certificate, or Client’s business practices;
(h) In any and all circumstances, except as expressly otherwise provided by Company in writing to Client, Company Fees are non-refundable;
(i) Client’s use and enjoyment of each Circle H Certificate and Licensed Circle H IP shall be strictly consistent with the scope of the Certificate and this Contract;
(j) Client shall not use Company property, Client’s Certificate or any Licensed Circle H IP in any manner that could be deemed inconsistent with Circle H Halal standards, or in any way offensive, disreputable, misleading, unauthorized or controversial in any location, medium or channel of business;
(k) Copies of all Client Certificates must be complete and reproduced in their entirety;
(l) Except as otherwise expressly authorized in writing by Company, all usage of or references to Circle H, certification, authority or Licensed Circle H IP, by or on behalf of Client, in product or services displays, printing,signage, media, press releases, documents, brochures, advertising, sales, promotion or marketing materials, Website or other communication (called Certification Usage), shall be submitted in advance to Company for review and approval, both in initial use and any subsequent use that involves any Change;
(m) Client shall promptly and without delay inform Company of any Changes in its products, services, processes,practices, supplier, financial or other business-related conditions that may affect its ability to continue to conform or comply with its Certificate or this Contract;
(n) Upon expiration, suspension, non-renewal, Change or other temporary or permanent impairment of Client’s Certificate and related Licensed Circle H IP, Client must,at Client’s sole cost and expense, immediately stop, cease, desist, withdraw, recall and destroy any and all Certification Usage, including on products and in plants, stores and any media as directed by Company, except for products already distributed in the marketplace that were compliant with the Contract when distributed and/or as otherwise expressly permitted or required by Company in writing; and
(o) Compliance with Company branding, and marks usage requirements includes suitability to packaging, clarity and legibility of marking and printing, conformity of sizing, colors, shape and typesetting and other compliance with Company specifications. Client shall not alter, translate into other languages or tamper with original copies or photocopies of the Certificate, Company reports or documents, or Licensed Circle H IP or other intellectual property of Company.
4. Fee-Based Services. Client agrees to punctually and timely pay all Company fees, costs, expenses and charges (called Fees), without offset, deduction or the taking of any credit. All Fees shall be paid for each specified Service, including as set forth in Section 3 – Schedule of Fees. If the timing of any Fees is not expressly set forth in the Schedule of Fees, Client shall make payment promptly within five (5) business days of invoicing by Company. Failure to make any timely payment shall subject Client to the exercise of Company Authority, up to and including suspending, revoking and/or terminating (i) certification, (ii) good standing, (iii) Client’s Certification Usage and/or (iv) the Contract altogether. Further, during the course of Company’s performance of Services, Client at all times remains responsible for all Fees incurred, whether or not specified on the Schedule of Fees, including for late payment; any and all audits; any third-party fees and expenses, including for laboratory testing; expense reimbursement for booked travel, meals and lodging deemed necessary or appropriate by Company; any third party expenses incurred; and any delays, re-scheduling, re-booking or other Changes to schedules caused by or on behalf of Client; and all such Fees at Company’s published reimbursement rates set forth on Company’s Website, regardless of the outcome of any Application, audit, inspection or other Company action, or whether any Certificate is ultimately issued or suffers a status Change, up to and including termination.Additional to Circle H’s exercise of Company Authority for Client’s failure to pay or perform any term or condition of this Contract, Client is subject to late Fees of 5% for each late payment. Further, any unpaid invoice(s) over 30 days late may be referred by Company for collection to an attorney or collections agency and Client’s sole cost and expense. All currency references in this Contract are made in U.S. dollars.
5. Confidentiality; Non-Circumvention. Each party agrees, during the Contract term and continuing until the later of (i) three (3) years after Contract termination or (ii) as to intellectual property, for the term such property is deemed protected by all applicable Laws, as follows: (a) To protect the other party’s Confidential Information and not in any manner disclose Confidential Information to any third party, nor use Confidential Information except solely to perform under this Contract, unless (i) with the disclosing party’s prior written consent or as required by Law, or (ii) only to third parties who need to know Confidential Information to assist the receiving party in Contract performance, if they are informed by receiving party of and agree to be bound by a confidentiality agreement consistent with this Paragraph 5 prior to receipt. If receiving party becomes legally compelled to disclose Confidential Information, it shall provide prompt notice so disclosing party may seek a protective order or other remedy. If disclosing party remedy is not available, receiving party shall furnish only that portion deemed legally required by receiving party’s legal counsel and attempt to assure that disclosed information will be treated confidentially. Confidential Information means any information connected or related to disclosing party or its business, in whatever medium or form of delivery or however obtained, including intellectual property, trade secrets, processes, know-how, and customer/client lists and relationships (including as each such element is related to any disclosing party products, services, sales, marketing, operations, business development, sources, contact information, technology, codes, materials presentations, models and plans). Confidential Information retains its status without necessity of any notice or marking; however, Confidential Information shall not include information which: when disclosed is generally publicly available other than as resulting from breach of this Contract; was obtained by receiving party from a third party with no confi-dentiality obligation to disclosing party; is lawfully and demonstrably known to receiving party prior to its disclosure; is expressly permitted in writing by the disclosing party; or is permitted elsewhere in this Contract. On any Contract termination or when disclosing party otherwise demands, receiving party shall return to disclosing party (or when disclosing party requires destroy) all Confidential Information, including all documents, contact information, software and other written or physical materials; provided, however, that receiving party at all times may retain Confidential Materials for compliance purposes, including with any Laws, tax, security and document retention/destruction practices;
(b) Not to directly or indirectly solicit, induce, or attempt to persuade, any Company employee, contractor, prospect or actual customer/client, vendor, supplier, or anyone else who is discussing or doing business with Company, or the agent or representative of any of them, regardless of geographic location, to do business or work with or for Client;
(c) Not to circumvent, avoid, bypass, obviate or interfere with, the other party’s interests in any prospective client and/or other business relationships, any products or services, or any fees, commissions or other remuneration;
(d) Any password, registration or username assigned by Company to Client shall be deemed Confidential Information and shall not be transferred or shared with any third party except as expressly permitted in this Paragraph 5. Client agrees to help protect and guard such Confidential Information and to notify Company of any compromise or breach; and
(e) Notwithstanding anything in this Contract, Company at all times is authorized to publicize, discuss and share information (including on its Website) regarding the existence, general terms and status of its relationship with Client and performance of Services, including all Client Certificates, authenticity, good standing, permitted and prohibited uses of Licensed Circle H IP, Client’s licensing and certification compliance, any co-branding, marketing or other initiatives of the parties and any action taken by or against Client, up to and including suspension, revocation and/or termination; and also at any time as is necessary or appropriate for Company to demonstrate awareness or of all the ingredients, equipment and processes related to Halal certification or to comply with all applicable Laws. No such information shall be considered Confidential Information. The parties each acknowledges and agrees that: breach of this Paragraph 5 shall cause irreparable harm to the other party, for which money damages would be inadequate; accordingly, a party is entitled to seek injunctive relief without posting security or bond; and these terms are reasonable in space and time given the characteristics and nature of the industry and each party’s business.
6. Term and Termination. The Contract “Term” shall commence on the “Effective Date” set forth in Section 1 (Cover Page) of a fully executed Contract and continue until expiration of the last applicable Certificate of each certified product or service, as specified in Section 2 (Scope of Services), unless sooner terminated as follows:
(a) by Company or Client, pursuant to terms expressly set forth in this Contract; or
(b) as to the subject matter of each Certificate, by its expiration without timely renewal.To avoid any misunderstanding, the Contract at all times remains in full force and effect so long as any Services or Certificate has not expired or been terminated. Further, all rights and remedies of a party, including for breach of Client Performance, Client Submissions and Client payment obligations, as well as Confidential Information obligations, survive termination of the Contract.
7. Certain Liabilities and Limitations.
(a) Client shall reimburse Company in its entirety for any and all liabilities, damages, losses, costs, expenses and fees, including attorney’s fees and expenses, costs of collection, preparation for legal action and court costs, incurred by Company in relation to or connection with this Contract, including any failure by Client to pay, or perform any term or condition of this Contract.
(b) Client shall indemnify, defend and hold harmless Company and Company’s operating divisions, affiliates and subsidiaries, and the officers, director, employees, shareholders, contractors and agents of each of them (together with Company, called Company Entities) from any and all liabilities, losses, damages or injuries to person or property related to (i) Client’s breach of performance of this Contract, (ii) Client’s use or misuse of Certificates and intellectual property of third parties or of Company, including Licensed Circle H IP, (iii) non-negligent performance of Services by any Company Entities.
(c) Client and Company are not responsible to each other, and each hereby waives and releases the other from, indirect, incidental, special, or consequential damages or lost profits, including for goodwill and other intangible losses. Further, each party hereby waives jury trial.
(d) If any third-party claims a fee, commission or other compensation in connection with, through or under a party to this Contract, such party shall be solely responsible for such claim and indemnify, defend and hold the other party harmless from and against any such claim, and all directly related liabilities, losses, costs, expenses and fees, including reasonable attorney’s and other legal fees and expenses and court costs related thereto.
(e) Notwithstanding anything in this Contract, the maximum liability of Company or any Company Entities for any damages, losses, costs, expenses and fees suffered by Client arising in connection with or related to this Contract is in all cases and cumulatively limited to no more than three (3) months of the previous years’ Fees (or if not available, then Fees scheduled for the next three (3) months). Further, Client must bring any such claim against within six (6) months of when it arises or such claim shall be deemed unconditionally, automatically and irrevocably forfeited, waived and released
8. Company’s Proprietary Rights.
(a) Use of Company’s intellectual property, or misuse of Licensed Circle H IP, without Company’s prior written consent is strictly prohibited and may constitute trademark and copyright infringement and unfair competition in violation of Laws.
(b) The entire contents of Company websites including the Application, information, texts, designs, graphics, interfaces and code, and the selection and arrangement thereof, is protected by United States and international copyright Laws and is Company’s exclusive property. Client is prohibited from (i) reproducing, modifying, distributing or republishing materials contained on the Website (either directly or by linking) without Company’s prior written consent, and (ii) altering or removing any trademark, copyright or other notice from copies of content. Client may, however, download material from the site (one machine readable copy and one print copy per page) for personal use only, subject to Company’s reservation of all rights in and title to all material so downloaded. All trademarks, service marks, trade names, trade dress and logos appearing on the Website are Company property. Any unauthorized or prohibited use may subject Client to civil liability or criminal prosecution, or both, under applicable Laws.
(c) Client shall at all times strictly comply with all Company requirements for the use of Licensed Circle H IP, Certification Usage or other Company intellectual property, including complying and agreeing with the following:
• By using Company’s “marks”, including trademarks, copyrights and services marks, graphic symbols, logos, and icons, in whole or in part, Client acknowledges Company’s sole ownership thereof and agrees not to interfere with any of Company’s rights, including challenging any Company use, registration of, or application to register such marks, alone or in combination with other words, anywhere in the world, nor to harm, misuse, or bring into disrepute any of Company’s marks.
• Company shall not (i) use, display or register, in whole or in part, any Company marks including graphic symbols, logos, icons, or a confusingly similar mark, as part of an entity name, trade name, product name, or service name, except as expressly permitted in writing by Company; (ii) use Company marks or a confusingly similar mark, on or in connection with websites, products, packaging, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Company; (iii) alter any Company marks in any manner; (iv) use any of Company’s marks in a disparaging, disreputable or misleading manner or link Client’s website to Company’s websites if Client’s site is obscene, pornographic, disparaging, defamatory, or libelous to Company or to any Company Entities; (v) use Company’s marks in a manner implying Company’s affiliation with or endorsement, sponsorship, or support of any Client product or service or present misleading information about Company’s services and products.
• Any goodwill derived from using any part of Company’s marks automatically and exclusively inures solely to the benefit of, and belongs to, Company.
• Company Certificates and marks (i) must only be used and displayed for specified products or services and approved terms, and via mediums and addresses (physical and digital), expressly authorized by the granted Certificate; (ii) cannot be transferred to successors in title, new owners or other organizations; and (iii) cannot be used in conjunction with any other logos or images or any other words that may adversely affect or undermine Company’s credibility, reputation or goodwill, including images of animals, alcohol, risqué clad models or deities.
• Company is entitled to make random inspections and checks of Client products and services, and Client Documentation, both in the market and in-house, as and when Company deems necessary or appropriate to ensure compliance with Licensed Circle H IP, Certification Usage or other Company intellectual property.
• No Company certified product shall be described, labelled, packaged or presented in any medium, which refers to or is suggestive (directly or indirectly) of any other product with which it might be confused; or in such a manner as to lead a purchaser or consumer to suppose that such product is connected with the other product.• All Company certified products and services must comply with all applicable Laws, including any required labelling, such as for allergens, use of dairy machines for manufacturing and similar disclosures and warnings.
9. Choice of Law and Forum. Choice of Law and Forum. The formation, construction and interpretation of this Contract shall be controlled by the laws of the State of Florida, giving no effect to choice-of-law provisions. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Contract. Any dispute relating to this agreement shall be subject to the exclusive jurisdiction and service of process requirements of the state and federal courts in Palm Beach County, Florida, USA, and Client agrees to submit to the personal and exclusive jurisdiction of these courts.
10. No Waiver. No failure or delay by any party to this Contract in exercising any right, power or privilege hereunder shall operate as a waiver or relinquishment thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
11. Severability. If any provision of this Contract is determined to be invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, the remaining Contract provisions shall remain in full force and effect to the maximum extent permitted by Law and the parties hereby to the same extent waive any provision of Law that renders any provision hereof prohibited or unenforceable in any respect.
12. Independent Counsel. Client acknowledges, declares and agrees it (i) has carefully read and reviewed the entire contents of the Contract and understands and agrees with its terms, (ii) has had the opportunity to obtain advice from legal and other advisors and professionals, and (iii) is relying solely upon its own judgment, belief and knowledge, and has not relied upon or been influenced, to any extent whatsoever in executing the same, by any representations or statements made by any other party or representative thereof.
13. Notices. Any notice or communication required or permitted to be given under this Contract shall be in writing and be deemed to have been duly served (a) within three (3) days of when received or refused by personal delivery, registered or certified mail, or courier, postage prepaid, if receipt is confirmed, or (b) when received and acknowledged via email; in each case at each party’s respective addresses and emails set forth in Section 1 (or such other addresses and emails as may be designated by a party pursuant to this Notice provision). If Client has not provided Company with accurate information or fails to keep notice information current, Company shall not be liable for any failure to notify Client.
14. Binding Agreement. This Contract is entered into and signed by a legally authorized representative of each party and is binding on each of the parties and its successors and assigns. Client cannot assign or delegate any portion or aspect of this agreement and any attempt to do so is void from inception.
15. Other Important Contract Interpretations and Terms.
(a) This Contract has been fully negotiated by the parties. The drafter of any part of this agreement shall not be penalized in any interpretation;
(b) This Contract constitutes the entire understanding of the parties and supersedes all prior agreements with respect to its specific subject matter. All modifications and amendments must be in writing signed by both parties, referring to this Contract; (c) Use of terms like include, including and similar terms shall mean "including but not limited to;"
(d) Will and shall mean the same thing;
(e) Use of words like herein, hereunder and similar words mean and refer to the entire Contract;
(f) Use of words such as and or or shall be interpreted to mean “and/or” in each case where such interpretation is beneficial to Company;
(g) All remedies under this Contract, at law or equity are cumulative and can be pursued concurrently or separately;
(h) Any and all acts, omissions, conduct and decisions of Company or any Company Entities, or any third parties Company assignees or delegatees, in connection with this Contract, under all circumstances shall be deemed held to a performance standard of good faith, sole and absolute discretion;
(i) Use of words or phrases such as, terms, provisions, or terms and conditions, or similar words or phrases means "terms, provisions, conditions, warranties, representations, agreements and covenants;"
(j) Each provision clearly intended to survive termination of this Contract shall be deemed to survive, whether or not a survival reference is expressly attached to it;
(k) Headings are for convenience only;
(l) Single words include the plural and vice versa;
(m) any inconsistency in or between this Contract and another agreement shall be resolved in the manner most favorable to Company; and (n) This Contract may be executed in counterparts and by electronic or PDF signature, each of which shall be deemed to be one and the same, original instrument.