1.1. These Terms attach to and are in all respects applicable to the use of the ACM Website and Marketplace by any User, Visitor, or Subscriber. The use of the word “any” herein means and must be understood to mean any User, Visitor, or Subscriber of any nature whatsoever (whether a natural person or a juristic person), or any other person without limitation who accesses and or utilises and or derives benefit (in the widest sense) from the Website or the Marketplace.
1.2. Before you are provided with full access to the Marketplace, you will be required to click on the “I/We accept” button, and in doing so you acknowledge that you have read these Terms; that you have received all advice that you might require in respect of these Terms and their legal effect; and that you are fully acquainted with and fully understand these Terms. To the extent necessary, electronic acceptance of these Terms (in any form) constitutes signature in law.
1.3. The acceptance by you of these Terms will create a legally binding agreement between you and ACM. All provisions of these Terms will be legally binding on you and enforceable by ACM regardless of their location in this document or the heading to the clause in which they are located.
1.4. These Terms, once accepted by you, will create a legally binding contract between you and ACM regardless of where you are physically or digitally situated in the world, and from where or the manner in which you have accessed or will access the Website and/or the Marketplace.
2.1. In these written Terms, unless the context clearly indicates a contrary intention, the following words will have the following meanings, cognate expressions will have corresponding meanings, and defined words are expressed by means of the capitalization of the first letter/s of the defined word, words, phrase, or phrases:
2.1.1. “ACM” - African Cocoa Marketplace, Inc.; furthermore, the use of the terms “we”, “us”, or “our” in these Terms will be deemed to be a reference to ACM.
2.1.2. “ACM’s Business” - the business, which is ordinarily and continuously conducted by ACM, whether by means of and through the medium of the Website, the Marketplace, or otherwise, and which primarily, but not exclusively, comprises the rendering of the Services (whether all of the Services, or part of the Services are rendered).
2.1.3. “Aggregator” - any Person who purchases any Cocoa or Commodity from two or more separate Producers, regardless of the amount of Cocoa or Commodity so purchased, and regardless of the manner of purchase; same includes co-operatives, buying groups, exporters, and local traders.
2.1.4. “Agreement”- the agreement which eventuates and becomes legally binding between you and ACM upon the acceptance by you of these Terms in the manner envisaged in clause 1.2 above.
2.1.5. “Cocoa” - cocoa beans in any form or any derivative thereof including cocoa beans (whether whole, broken, raw, or roasted); cocoa shells, husks, skins, and cocoa waste; cocoa paste, nibs, and liquor (whether or not defatted); cocoa butter, fat, oil, and powder (whether containing added sugar or other sweetening matter or not); and chocolate and other food preparations containing cocoa, including confectionery, beverages and finished cocoa based products; and any future derivates or applications of cocoa developed in the industry.
2.1.6. “Commodity” - any agricultural commodity of any nature whatsoever and without limitation.
2.1.7. “Marketplace”- ACM’s digital trading Marketplace which is operated on and by means of the Website, and through and by means of which ACM offers a curated digital catalog of vetted African Cocoa sellers; by means of the Marketplace, Purchasers are able to search any African region, country, Cocoa product or type, in order to locate Sellers that meet their needs.
2.1.8. “Parties” - ACM, and/or the User and/or one or more of them as the context may indicate, and “Party” has a correlative meaning.
2.1.9. “Person” - any natural or juristic person of any nature whatsoever, and wheresoever in the world situated.
2.1.10. “Producer” - any person who produces any Cocoa or any Commodity, whether by means of a primary agricultural process such as planting and harvesting, or any secondary agricultural or technological process.
2.1.11. “Purchaser” - any Person who, using the Website or the Marketplace, or any of the Services, or who was introduced to a Seller by the Website, the Marketplace, or any of the Services, and who wishes to, intends to, or actually does purchase Cocoa or a Commodity from a Seller.
2.1.12. “Sale” - any sale, howsoever concluded, in terms of which a Purchaser purchases Cocoa or Commodity from a Producer or Aggregator.
2.1.13. “Seller”- any Producer or any Aggregator, or any combination of Producer/s and or Aggregator/s, who has or have agreed with ACM to make their Cocoa or Commodities available for sale to Purchasers via or on the Website, the Marketplace, or as part of the Services.
2.1.14. “Services” - all and any services that may from time to time be rendered by ACM relative to any aspect of Cocoa or the Cocoa industry, or relative to any Commodity, which services include but are not limited to:
2.1.14.1. the application of a metrics developed by ACM which describes, grades, certifies, and or markets Producers and or Cocoa and or Commodities, so as to provide Purchasers and Aggregators with relevant, researched, and detailed information and reports about Producers and or Cocoa and or Commodities, and whether or not the data produced by the metrics is available on the Marketplace, the Website, or otherwise;
2.1.14.2. services in terms of which ACM acts as a broker which facilitates the sale of Cocoa and or Commodities between Producers and or Aggregators (as sellers) and Purchasers, which services mean and include (without in any way limiting the terms “broker” and “facilitates”), sourcing Cocoa or Commodities for Purchasers, sourcing Purchasers for sellers of Cocoa or Commodities, negotiations for the sale and purchase of Cocoa or Commodities, the conclusion of such sales in any capacity, and assistance in the implementation of such sales in any manner whatsoever; whilst such sales and brokerage activities will primarily take place on the Marketplace and or on the Website, they may take place by other means and methods;
2.1.14.3. consultancy services; and/or
2.1.14.4. marketing and branding services generally, whether relative to a Producer, an Aggregator, Cocoa, a Commodity, or a Purchaser.
2.1.15. “Subscriber” - any Person who agrees to gain access to the Marketplace, and or make use of the Services on a subscription basis; for purposes hereof subscription means the payment of a recurring fee (at any interval) for access to the Website and or the Marketplace, regardless as to whether any of the Services is taken up, used, paid for, or requested; furthermore, the use of the terms “you”, “your”, or “yours” in these Terms will be deemed - depending on the context in which they are used - to be a reference to any Subscriber.
2.1.16. “Terms” - these written Sale Agreement, as may be amended from time to time by ACM.
2.1.17. “User” - any Subscriber or Visitor; furthermore, the use of the terms “you”, “your”, or “yours” in these Terms will be deemed - depending on the context in which they are used - to be a reference to any User. A User includes but is not limited to any Producer, Aggregator, Seller, or Purchaser.
2.1.18. “Visitor” - any person who visits the Website with a view to obtaining information in general about ACM or ACM’s business, and without necessarily becoming a Subscriber; furthermore, the use of the terms “you”, “your”, or “yours” in these Terms will be deemed - depending on the context in which they are used - to be a reference to any Visitor.
2.1.19. “Website” - the website designed, built, and operated by ACM for purposes of marketing and conducting the Business.
2.1.20. “Parties” - ACM, and/or the User and/or one or more of them as the context may indicate, and “Party” has a correlative meaning.
2.2. Furthermore, the following shall apply in the interpretation of these Terms and this Agreement:
2.2.1. Headings of clauses have been inserted for convenience only and shall not be used for purposes of nor assist in or affect its interpretation.
2.2.2. Unless the context clearly indicates a contrary intention, an expression which denotes any gender includes the other genders, a natural person includes a legal person and vice versa, and the singular includes the plural and vice versa.
2.2.3. Should any provision in a definition be a substantive provision conferring rights or imposing obligations on either Party, then effect shall be given to that provision as if it were a substantive provision in the body of this Agreement.
2.2.4. Any reference to an enactment, regulation, rule or by-law is to that enactment, regulation, rule or by-law as at the Signature Date, and as amended or replaced from time to time.
2.2.5. This Agreement shall be governed by the laws of England.
2.2.6. Any reference to months or years shall be a reference to named months or calendar years, as the case may be.
2.2.7. Any reference in this Agreement to days shall be a reference to consecutive calendar days. In the calculation of any time period referred to in this Agreement, the first day shall be excluded and the last day shall be included in the calculation.
2.2.8. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s.
2.2.9. The expiration or termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding the fact that the clauses themselves do not expressly provide this.
2.2.10. In its interpretation, the contra proferentem rule of construction shall not apply (this Agreement being the product of negotiations between the Parties), nor shall this Agreement be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
2.2.11. Expressions defined in this Part B shall bear the same meanings in any other part of these Terms.
2.2.12. If a term is defined within the context of a particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
2.3. Nothing in this Agreement whatsoever contained must or may be construed as creating a partnership, employment, or agency relationship between ACM and any User.
3.1. ACM will at all times conduct the Business, operate the Website and the Marketplace, and render the Services in accordance with the highest ethical standards. By ethical standards we mean that we will conduct the Business and render the Services in accordance with the following:
3.1.1. Transparency in our dealings with Subscribers, Visitors, Producers, Aggregators, and Purchasers.
3.1.2. The collection and retention of only that data and information which is necessary for the operation of the Marketplace.
3.1.3. An insistence on Confidentiality and Non-disclosure between all Users.
3.2. In order to render the Services, and in order further to operate the Marketplace, improve the digital Marketplace experience, and generally to render an excellent service, ACM will collect limited information from Users. It is important that we explain the nature and extent of our information collection to you. Similarly, by agreeing to these Terms, any User agrees to our collection, storage, and use of the limited information explained in this Part B.
3.3. As is clear from Part A of these Terms, a considerable part of ACM’s Business comprises the collection of information, data, and in some instances documentation from Sellers (be they Producers or Aggregators). Much of the information regarding the Sellers might or will be available on the Website, or the Marketplace. In many instances, Producers or Aggregators can be Persons who are economically, socially, and/or politically vulnerable or who are otherwise operating under disadvantageous circumstances. For these reasons, ACM has as one of its core values and operational requirements the meaningful and extensive protection of information which has been given to it by Producers or Aggregators.
3.4. ACM will always act in accordance with the highest ethical standards when dealing with information entrusted to it; similarly, ACM requires all Users (be they Visitors or Subscribers) to agree to treat information provided by Sellers as confidential and to adhere to the same standards of ethical information use to which ACM holds itself.
3.5. Accordingly, this Part B of the Terms comprises a set of rules, rights, and obligations comprising Data Privacy and Marketplace Rules and Standards. By agreeing to these Terms, you agree to be bound by the provisions of this Part B of the Terms.
4.1. The information that we collect from Users, comprises the following:
4.1.1. Name, email address, and phone number of any User.
4.1.2. Where a User is a corporate entity, then the company name, company registration number, and business address.
4.1.3. In the case of Subscribers, subscription and billing information (including, where appliable, information processed via third party providers).
4.2. Insofar as business and transactional information is concerned, we will collect, store, and handle the following:
4.2.1. Information relating to Cocoa and Commodity sourcing, selling, and/or purchasing activities.
4.2.2. Requests for verification reports, trade facilitation services, or optional assurance services.
4.2.3. Documents voluntarily submitted to ACM in accordance with its Services.
4.2.4. Any other information reasonably necessary or required in order for ACM to provide the Services.
4.3. In respect of Marketplace Usage Information, we will collect, store, and handle the following:
4.3.1. Pages viewed and features used.
4.3.2. Searches conducted.
4.3.3. Seller profiles viewed.
4.3.4. Requests, clicks, and other interactions,
4.3.5. Date, time and duration of visits.
4.4. The aforesaid information helps us to understand how the Marketplace is used and how it can be improved.
4.5. By agreeing to these Terms, you agree and consent to the limited data and information collection and usage outlined above.
5.1. Users acknowledge that personal data may be processed and stored in jurisdictions outside their country of residence, including the United States of America, and that ACM will take reasonable steps to ensure that such processing is conducted in accordance with applicable data protection laws.
5.2. Users have the right, subject to the applicable law, to request access to their personal data held by ACM, to request the correction of inaccurate data, and to request the deletion or restriction of processing of their personal data. Requests may be made by contacting ACM at the e-mail address as may be published on the Website from time to time. Where processing is based on consent, Users may withdraw such consent at any time, provided that such withdrawal shall not affect the lawfulness of processing carried out prior thereto.
5.3. For purposes of applicable data protection laws, including UK GDPR and EU GDPR (where applicable), ACM is the data controller in respect of the personal data collected and processed in terms of this Agreement.
6.1. In this section of Part B of these Terms, the definitions set out in Part A will similarly apply.
6.2. These further definitions will apply in this section of Part B:
6.2.1. “Confidential Information” - without exception, all and any details and or information relating in any way whatsoever to:
6.2.1.1. Producers, including but not limited to Cocoa and product details, pricing, sourcing methods, production capabilities, staffing and family details, financial details, proprietary trade information, and any data shared by any Producer;
6.2.1.2. Aggregators, including but not limited to sourcing needs, purchasing strategies, proprietary trade information, and any data shared by any Aggregator;
6.2.1.3. ACM, the Business, the Services, and the Marketplace;
6.2.2. “Disclosing Party” - any Party who during the rendering of the Services, and or the utilisation of the Website and or the Marketplace, makes Confidential Information available to the Receiving Party in any manner or form.
6.2.3. “Receiving Party” - any Party who during the rendering of the Services, and or the utilisation of the Website and or the Marketplace, receives Confidential Information from the Disclosing Party in any manner or form.
6.3. In being or becoming a User, Visitor, or Subscriber (or a recipient of any of the Services), you may be or become a Disclosing Party or a Receiving Party.
6.4. As a Receiving Party in terms of this Agreement, you irrevocably warrant and undertake in favour of any Disclosing Party, that you will not at any time:
6.4.1. disclose Confidential Information to any person who is not a Disclosing Party, except to your employees, affiliates and advisers to the extent necessary for the performance and receipt of the Services (“Authorised Recipients”), provided that you as a Receiving Party: (a) inform each Authorised Recipient of the confidential nature of the Confidential Information and the restrictions imposed by this Agreement; (b) use all reasonable endeavours to cause your respective Authorised Recipients to comply with the restrictions imposed by this Agreement (as if they were named in its place); and (c) remain responsible for any breach by any such Authorised Recipient ;or
6.4.2. use or exploit any Confidential Information, either on its own or for or together with any third party; without the prior written consent of the Disclosing Party. Such consent may be withheld for any reason whatsoever, and the Disclosing Party will not be required to give reasons for refusing to provide its consent. In providing its consent, the Disclosing Party may attach to such consent any conditions that it sees fit, and the Receiving Party, in disclosing Confidential Information, will comply with such conditions.
6.5. Nothing in these Terms whatsoever contained shall confer any rights of ownership, use, or license on the Receiving Party of any nature whatsoever in relation to any Confidential Information, save as expressly agreed otherwise by ACM.
6.6. As a Receiving Party you know and understand that any Confidential Information belongs to the Disclosing Party (and or ACM) alone, that such intellectual property is central and or important to the Disclosing Party’s business, and that no Confidential Information may be used by the Receiving Party or any third party without the prior written consent of the owner thereof. Any unauthorized dissemination or use of any Confidential Information may cause damage to the owner thereof and is unlawful.
6.7. The obligations created in terms of this Agreement shall endure indefinitely, unless expressly otherwise agreed by ACM.
6.8. If you or your officers, employees, agents or advisers become required pursuant to any law, court order, or the rules of any securities authority or other regulatory body to disclose any Confidential Information, you shall to the extent permissible and reasonably practicable, within a reasonable time, give written notice of that fact to ACM so that it or the Disclosing Party may seek an appropriate remedy to prevent disclosure or waive compliance with the provisions of this Agreement preventing disclosure. You shall fully cooperate with ACM if it elects to challenge the validity of the requirement to disclose.
6.9. All Confidential Information shall remain the property of the Disclosing Party and or ACM (as the case may be). If ACM or the Disclosing Party so requests, you shall as soon as reasonably practicable:
6.9.1. return to ACM all Confidential Information in tangible form;
6.9.2. destroy all other records of Confidential Information (including any copies held on computer or information storage system) provided that this obligation shall not apply to computer records held in archive or back-up systems of that party and which cannot be destroyed without incurring unreasonable effort. Any Confidential Information held in such systems shall continue to be held subject to the terms of this Agreement.
6.10. The Receiving Party must protect all Confidential Information with at least the same level of care it uses to protect its own sensitive information, but no less than a reasonable standard of care. Confidential Information must be stored and handled in such a way as to prevent unauthorized disclosure, dissemination, or loss thereof. Each Party will take adequate and complete steps to ensure that all its representatives, employees, agents and advisers, partners, shareholders, directors, who might receive Confidential Information is similarly bound by the warranties and undertakings set out in this Agreement.
6.11. Notwithstanding the aforesaid, the obligations imposed on Users and Purchasers in terms hereof shall not prevent a Purchaser from using information provided to it by ACM and or a Seller for their own sourcing or transparency purposes which comprises:
6.11.1. specifications relating to the Cocoa or Commodity purchased by the Purchaser such as farm of origin, Cocoa type, and manner of production;
6.11.2. information about the Seller to the extent that such information may legally be disclosed; and or
6.11.3. information which is required by the Purchaser for marketing the Cocoa (or derivative product/s) so purchased, and in which event the Purchaser warrants and undertakes in favor of ACM that such information will be used for marketing and sourcing transparency purposes only.
6.12. Confidential information may not be extracted, scraped, aggregated, reverse engineered, used to train algorithms or artificial intelligence systems, or incorporated into any database, analytics tool, or competing product or service, whether for commercial or internal purposes, without ACM’s prior written consent.
7.1. In using the Website or the Marketplace, and in agreeing to be bound by these Terms, you warrant and undertake in favour of ACM that you will not at any time attempt to or actually contact, approach, or seek to communicate with any Producer or Aggregator except via ACM, and without the prior and express consent of ACM, which consent may not be unreasonably withheld.
7.2. This non-circumvention undertaking will not however apply under circumstances where ACM has brokered a sale transaction in respect of Cocoa or a Commodity (which sale transaction has been concluded and become unconditional in all respects), and where communication is required between a Seller and a Purchaser in order to ensure delivery of the product concerned.
7.3. You acknowledge further that once you have been introduced to a Seller by ACM or via the Marketplace, that this undertaking will endure indefinitely.
7.4. You acknowledge further that any breach by you of this non-circumvention undertaking can and in all probability will cause harm and damage to ACM, which damages and loss may be legally recoverable from you by ACM.
7.5. Any breach of your undertaking to refrain from liaising with Sellers without ACM’s consent will entitle us, in our absolute discretion, to cease rendering any further Services to you.
8.1. The Website, the Marketplace, and all components of same are exclusively owned by ACM and comprise ACM’s exclusive intellectual property. ACM has unequivocally asserted and continues to assert its ownership and intellectual property rights in respect of same.
8.2. No part of the Website, the Marketplace, or any component thereof may be utilised, reproduced, copied, transferred to any other Person or replicated by any Person in any way without ACM’s prior written consent, which consent may be withheld for any reason whatsoever.
9.1. ACM may suspend or terminate your access to the Website, Marketplace or Services with immediate effect if you breach these Terms.
9.2. Such termination shall be without prejudice to any rights or remedies available to ACM, including the right to seek injunctive relief or damages. No refund shall be due in respect of any subscription fees paid where termination results from a breach.
10. On becoming a Subscriber, Visitor, or Purchaser you warrant and undertake in favour of ACM that, apart from the non-circumvention undertaking referred to and given in Part B above, you are aware that ACM acts a broker or agent connecting Sellers and Purchasers, and that such brokerage or agency services form part of the Services, and the Business.
11. Accordingly, if as a Purchaser you are introduced to a Seller, and or become aware that a Seller has Cocoa or Commodities for sale, and acting upon such knowledge you conclude an agreement for sale with such a Seller, and or purchase Cocoa or Commodities from such a Seller, then by agreeing to these Terms you undertake to be and are liable to ACM for its commission in respect of such sale.
12. Such commission structure will be as set out in the terms and conditions applicable to your subscription to the Marketplace.
13. Such commission will be due and payable by you to ACM on demand and against the rendering by ACM to you of an invoice for its commission.
14. You acknowledge further that once you have been introduced to a Seller by ACM or via the Marketplace, that ACM’s entitlement to commission will endure indefinitely and in respect of all future purchases made by you from the Seller concerned.
15. Unless expressly agreed otherwise, ACM does not act as seller or purchaser of any Cocoa or Commodity, does not take ownership of or title to any goods, and is not a party to any sale agreement concluded between a Seller and a Purchaser (save to the extent that any such agreement provides that ACM is entitled to commission on any sale). Alls sales are concluded between the relevant Seller and Purchaser, who remain solely responsible for the negotiation, conclusion, performance, delivery, payment, quality, and regulatory compliance of such sale.
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