Article 1 – acceptance of the T&C’s
These General Conditions are exclusively applicable to the negotiation, drawing up and execution of a Work Order and the provision of the Services (being all activities performed by MMD as defined in the Work Order), including to any documents exchanged by MMD in preparation or execution of the Services, such as but not limited to the MMD technical specifications, with the exclusion of all other (possibly from Client’s origination) terms and conditions.
It is explicitly understood that (1) the non-reaction by MMD regarding any general or specific conditions communicated by Client can never be regarded as an acceptance thereof by MMD; (2) if and as far the General Conditions do not apply or do not exhaustively apply to any given matter, Client’s general or specific conditions shall in no event fulfil a supplementary function.
Article 2 – Orders
By placing a Work Order to MMD, it implies acceptance by the client of these General Conditions.
No changes or amendments can be made to an accepted Work Order, unless they were accepted in writing by MMD, in which case the price referred to in the Work Order may be adapted by MMD.
If Client rescinds any accepted Work Order or cancels a Service referred to in the Work Order, it shall be required to pay the price for the ordered Services as stated in the Work Order.
By way of derogation to the above, in case of cancellation of a Service by the Client before MMD has ordered the production of the material supports (e.g., before going to print), MMD may (but is not compelled) to reschedule the campaign in the current year, taking into account the allocated budget.
Article 3 – Price, billing and Payment
Prices are exclusive of VAT or any taxes which need to be charged to Client based on mandatory law. Price quotes or indications in any document provided by MMD are estimates, indicative and non-binding.
Prices referred to in the Work Order are fixed and based on the information communicated by Client in relation to the modalities of the specific Services that were requested.
Invoicing will take place in accordance with the following invoicing procedure: (1) MMD shall send the invoice to the e-mail or postal address provided by Client prior to the provision of the Services. (2) The invoice shall include the invoice date, the project name, and a short description of the Services.
If the Client requires to change an order reference in the invoices (e.g., company to be invoiced), he shall request MMD so in the Work Order and in any case before the invoicing.
The invoice will be issued on the name and address of the person who requested the Work Order. If, as an exception to the foregoing, due to exceptional circumstances, the Client requesting the Work Order asks to issue the invoice on the name of another person, the Client requesting the Work Order shall remain jointly and severally liable for the payment of the Services included in this Work Order and administrative costs may be charged to the Client requesting the Work Order and/or the person invoiced by MMD at the rate of €520 per action change. These fees may be invoiced periodically for several Work Orders if necessary. The person requesting the Work Order shall act as a guarantor under the provision of article 1120 of the Belgian Civil Code for the acceptance of these Terms and Conditions by the person invoiced.
Unless detailed otherwise in the Work Order, Client shall pay all invoices within thirty (30) calendar days following the date of the invoice and in any case prior to the provision of the Services. In case non- payment at the due date of the invoice, and, after having been provided with a one-time payment reminder that did not result in full payment within the deadline set out in such reminder, interests for late payment at the legal interest rate (as determined by the Act of 2 August 2002) will be automatically due without prior notice on the due amount as from the due payment date until the date of full payment, as well as a conventional compensation of 10% with a minimum of €50.
The payments are always used to settle the oldest outstanding debts first, including the expired interests.
MMD has the right to set-off any due amounts by Client against any payment obligations it has towards Client.
Article 4 - Obligations MMD
MMD shall use its best efforts to deliver the agreed Services according to the provisions of these General Conditions. Client acknowledges and agrees that MMD is not making a representation or warranty in respect of the Services and disclaims any implied warranty, including any warranties of quality, accuracy, completeness, or fitness for a particular purpose even if MMD has been made aware of such purpose, as far as allowed by applicable law. Client acknowledges that MMD is not acting as an advisor to Client and that MMD does not render advice to Client.
MMD is at any time entitled to refuse to provide Services or suspend the delivery of the Services, in the event of technical objections or objections against the content, nature, purpose, quality or form of the Services requested by Client, all such at the sole and reasonable discretion of MMD. In such event, Parties shall use their best efforts to reschedule the Services to another date as far as possible, without that such refusal or suspension could give rise to any liability of MMD.
Article 5 – General obligations Client
Parties agree that depending on the specific Services ordered, particular obligations might apply, which shall be listed in the applicable technical specifications.
Client agrees that it shall at all times take into account and comply with these technical specifications and comply with the requirements of any other document provided by MMD or any third party appointed by MMD in relation to the provision of the Services.
Client is solely responsible for any encountered delay in the provision of the Services as well as any additional expenses due to the non-compliance with these General Conditions, the technical specifications or any other documents communicated in writing by MMD in relation with the provision Services.
Services are considered to be delivered to the satisfaction of Client if no complaint has been issued by Client in writing in a delay of fifteen (15) calendar days starting from the beginning of each Campaign specified in the Work Order and in any case during the campaign itself.
Client guarantees that (a) it and anyone acting on its behalf will fully comply with any applicable laws, regulations, permits and other rules related to the (reception) of the Services, including but not limited to all applicable privacy and advertisement laws, rules and regulations, (b) that, if necessary, it will have obtained any required permits, licenses, consents, and approvals before receiving any Services and (c) that any information, material or data provided by Client or anyone on Client’s behalf for or in relation to the Services, is accurate and complete, and does not infringe any law, rule, regulation, permit, license or other right.
Any use, processing or approval of information or materials by MMD for the purposes of the Services does limit any guarantee of Client as specified in the General Conditions.
Article 6 – Exclusivity of MMD
At any time, Client undertakes not to advertise in the stores operated under one of the banners belonging to Delhaize Le Lion/De Leeuw SCA (namely Delhaize, AD Delhaize, Proxy Delhaize, Shop & Go Delhaize, Fresh atelier Delhaize, etc) without the express prior written agreement of MMD or Delhaize Le Lion/De Leeuw SCA. MMD shall be entitled to invoice the advertisements communicated by the Client in breach of this commitment at the rate applicable for its equivalent Services, without prejudice to full compensation for its actual damage, including possible costs for the removal of advertising material.
Article 7 – Data Protection
MMD (and/or its affiliated companies) acts as data controller of the customer personal data collected in the frame of the carte plus loyalty program (“customer data”). MMD undertakes to comply with any data protection, privacy, or similar laws, including the General Data Protection Regulation n°2016/679, which are applicable to any customer data processed in connection with the Services. MMD shall not transfer to Client and Client shall not access and/or process any customer data in the context of the provision of the Services. Client will only receive aggregated and anonymous data. Should the Client have access and/or process customer data, then the Parties agree to conclude a Data Processing Agreement beforehand.
Article 8 - Intellectual Property
The pre-existing intellectual property rights with respect to the information, materials, or products provided by Client as part of the Services under a Work Order will remain with Client or its licensors. The pre-existing intellectual property rights specific to information, reports, studies, objects, concepts, flow charts, diagrams, discoveries, analyses, evaluations, recommendations, and other material of any nature, which are made, conceived or written by MMD (with or without input by Client) and provided to Client in connection with the execution of a Work Order shall remain with MMD or its licensors.
If Client delivers artwork to MMD within the scope of the Services of a Work Order, Client shall grant MMD a limited, non-exclusive, non-transferable right to use the related intellectual property rights for the necessary period of such use, as determined in the relevant Work Order, in so far as necessary for MMD’s provision of the Services. In this respect, Client also explicitly authorizes MMD (without limit in time) to use the visual results of the Services defined in a Work Order(s) (such as but not limited to stopper, wobbler, banners, e-mail, etc.) and the trademark(s) (brand name and/or logo) of the brand(s) that were the subject of such Work Order(s) in future discussions with other clients as an example from the past.
In so far as necessary for Client’s use of the Services in accordance with the provisions of the Work Order and the General Conditions, MMD grants Client a limited, non-exclusive, non-transferable right to use the intellectual property rights vested in the Services for the necessary period of such use, as determined in the Work Order.
Client indemnifies MMD for and against all third-party claims which relate to the use by MMD of information, materials or products provided by Client, including the use of intellectual property rights owned by Client or its licensor.
Article 9 – Liability
Parties guarantee that they shall comply with the terms of these General Conditions and that they shall be responsible for their respective breaches thereof.
The contractual obligations of MMD involve only a commitment to make its best efforts without guaranteeing a particular result, and it can only be held liable for her intentional breach.
In no event shall the liability of MMD extend beyond compensation of the invoice value of the ordered Services as indicated in the Work Order. MMD cannot be held liable for indirect damages, including but not limited to loss of profits or loss of revenues.
Parties shall bear all responsibility for their subcontractors. The fact that a Party entrusts all or part of its obligations to any third party does not absolve its liability towards the other Party.
Any defective execution of the Services can only give rise to any liability of MMD after a written notice of default given by the Client and upon expiration of the remediation period of at least 72 working hours provided herein.
Article 10 - Confidentiality
A Party is bound, on behalf of itself, its employees, and its subcontractors by an obligation of strict confidentiality regarding the Confidential Information (any information including but not limited to business, technical, financial, commercial, operational, administrative, marketing, economic, legal and other information, data, documents and materials transferred by one Party to the other) and shall not use the Confidential Information for any other purpose than the provision/reception of the Services.
Article 11 - Force Majeure
A Party will not be liable to the other for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control including, without limitation, actions of the government, fires, floods, strikes, civil disturbances or terrorism or power, communications, satellite, or network failures. The Party so affected shall as soon as practicable give notice to the other Party which suspends the contractual obligations, for a reasonable period of time. If the delay or failures continues for at least three months, the non-delaying or non-failing Party will be entitled to rescind the affected Work Order(s).
Article 12 -Services and Independence
MMD is an independent contractor and shall act in a professional manner in accordance with best industry practice, using best efforts to meet reasonable standards of skill and care.
Article 13 - Compliance with law
Each Party ensures that it and anyone on its behalf fully complies with any applicable laws, regulations, permits and other rules applicable to the Work Order and the Services.
Article 14 – Miscellaneous
These General Conditions are governed by Belgian law. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments shall not apply. Any and all disputes in connection with and/or resulting from the Services shall exclusively be brought before the Brussels Courts.
If any of these General Conditions, or part of these Conditions, is found to be invalid, or if an explicit derogation to one or more Conditions was granted, this shall have no effect on the validity and the application of the remaining Conditions or on the remaining part thereof.
Nothing in these General Conditions shall be deemed to create a partnership, joint venture, or agency relationship between Client and MMD or to be deemed to authorize either Party to create or undertake any liabilities or obligations on behalf of or in the name of the other.
No delay, neglect, or forbearance on the part of either Party in enforcing against the other any term of condition of the General Conditions shall be, or deemed to be, a waiver or in any way prejudice any right of that Party under the General Conditions.
Article 15 - Specific Conditions Enlight+
Article 15.1 – Scope
15.1.1. MMD offers suppliers of Delhaize Le Lion/De Leeuw SCA (“Delhaize”) the option to subscribe to the Enlight+ service (the “Enlight+ Service”). The Enlight+ Service consists of access to an online platform of MMD (the “Enlight+ platform”) that provides sales data reports about the performance of the participating supplier’s products sold in the stores operated under one of the banners belonging to Delhaize.
15.1.2. This article 15 only applies to the provision of the Enlight+ Service. The specific conditions of this article 15 (hereafter the “Specific Conditions Enlight+”) are entirely part of these General Conditions and apply in addition to the other articles of the General Conditions and the applicable Work Order(s). In accordance with article 5 of the General Conditions, the participating supplier of Delhaize, in its capacity of client for the Enlight+ Service (hereafter the “Client” for the purpose of this article 15), will comply with the requirements of these Specific Conditions Enlight+ when making use of the Enlight+ Service. The placement of a Work Order by the Client to MMD also implies acceptance of the Specific Conditions Enlight+.
Article 15.2 – The Enlight+ Service
15.2.1. The Enlight+ Service gives the Client access to the Enlight+ platform which offers the Client access to several sales reports about the Client’s products. Prior to the signing of the Work Order, the Client has been informed on the types of reports available on the Enlight+ platform (the “Reports”).
15.2.2. Except where provided differently in the Enlight+ platform or in the Reports themselves, the Reports are based on (i) transactional data (ia) of all stores that are owned by Delhaize, (ib) of all e-commerce sales realised via Delhaize.be and (ic) of stores that are not owned by Delhaize (franchises or others) which have explicitly agreed to transfer sales data of their stores to Delhaize for the purposes of the Enlight+ Service, and on (ii) shopper insight data based on purchases of products by customers using the Delhaize loyalty card (currently marketed as “SuperPlus Card”) only.
The relevant parts of the Enlight+ platform or the Reports themselves will mention the sales periods concerned, and whether data is provided on a rolling basis or otherwise.
15.2.3. MMD is entitled to make changes to the content of the Reports at any time, without however making changes that are material or that are to the detriment of the Client.
15.2.4. MMD may add additional reports and/or additional options or functionalities to the Enlight+ platform, which may come at an additional charge if the Client opts to make use thereof.
15.2.5. Access to the Enlight+ platform as part of the Enlight+ Services is temporary, non-exclusive, personal, and non-transferable.
Article 15.3 – Duration – Termination of the Enlight+ Service
15.3.1. Except if and to the extent provided differently in the relevant Work Order, the Enlight+ Services will be provided for periods of one calendar year (1st January until 31st December). For the first year, the period starts as from the day of communication of the Work Order by the Client until December 31st of that year. The duration of the Enlight+ Services will be extended for successive one calendar year periods, except if a Party terminates the Enlight+ Services by 30 September of the running calendar year at the latest, in which case the Enlight+ Services will be stopped on December 31st, end of the day. However, MMD may at any time stop the provision of the Enlight+ Service if it stops providing the Enlight+ Service as such to all suppliers of Delhaize.
15.3.2. If the Client rescinds any accepted Work Order or cancels the Enlight+ Service, it shall be required to pay the price for the ordered Enlight+ Service as stated in the Work Order, and the possible derogation referred to in article 2 of these General Conditions does not apply.
Article 15.4 – Price & invoicing of the Enlight+ Services
15.4.1. The price for the Enlight+ Services (“Fee”) will be determined in the Work Order and is only valid for the current calendar year. The tacit renewal provided in article 15.3 above, is without prejudice to MMD’s right to apply another Fee for the next year. During negotiations with the Client, the continuity of the Enlight+ Services after 31 December can never be considered as an acceptance to apply the same tariff during the next year. Notwithstanding the tacit renewal provided in article 15.3 above, if Parties fail to find an agreement on the Fee by 31 December of the running calendar year, each Party will at any time past that date be entitled to terminate the Enlight+ Services with a one-month notice.
15.4.2. The Enlight+ Services will be invoiced per calendar year. The invoice will be submitted upon reception by MMD of the accepted Work Order.
15.5.3. First time access to the Enlight+ platform is only granted via invitation of MMD to the Client’s user administrator. The Client’s user administrator can grant rights of access to other User(s).
Article 15.6 – Specific obligations of the Client – Technical Requirements
15.6.1. Access to the Enlight+ platform may not be possible if an unsuitable browser is used. Users that try to access the Enlight+ platform with an unsuitable browser will be automatically notified thereof. Moreover, access to the Enlight+ platform by a certain User (other than the Client’s user administrator) will no longer be possible if that User has not logged in to the Enlight+ platform for a consecutive period of 60 days.
15.6.2. MMD cannot provide any guarantee that the Enlight+ platform will always be accessible, or that there will not be any interruptions in or malfunctions of the Enlight+ platform. Data provided by MMD on the Enlight+ platform is provided “as is”, without any warranty of any kind. Therefore, MMD cannot be held liable for the functioning of and the information provided on the Enlight+ platform, except as stated otherwise in these Specific Conditions Enlight+, the other articles of these General Conditions and the Work Order.
15.6.3. MMD is entitled to issue instructions in connection with the use of the Enlight+ platform, based on operational, quality, security, and other considerations. The Client undertakes to follow any such instruction, in the absence of which the continued use of the Enlight+ Service may not be possible.
The Client undertakes to use only suitable, functioning equipment to connect to the Enlight+ platform.
15.6.4. MMD cannot guarantee the security of any information transmitted via the Enlight+ platform. The Client is responsible for: (i) installing appropriate anti-virus software, firewalls etc. on the device the Client uses to connect to the Enlight+ platform, (ii) securing access to the Enlight+ Platform by using strong passwords and making sure that these passwords and logins are kept secure and not shared with third parties.
15.6.5. The Enlight+ Service is considered to be delivered to the satisfaction of the Client if no complaint has been issued by Client in writing within a delay of fifteen (15) calendar days, including, with respect to a specific Report, within a delay of fifteen (15) calendar days starting from the data of the receipt of the specific Report or part thereof.
15.6.6. The Client has sole responsibility to ensure that the Enlight+ platform and the information available through it is not used (by the Client, its Users or anyone else to whom the Client would give access to such information) in any manner or for any purpose that could be deemed to be inconsistent with the requirements of all applicable laws and regulations, including but not limited to competition laws.
Article 15.7 – Liability regarding the Enlight+ Service
15.7.1. In addition to the provisions regarding liability in article 9 of these General Conditions, the Parties explicitly agree that MMD cannot be held responsible for:
• any damages or losses, including loss of data, that may arise in connection with or as a result of the use of the Enlight+ platform;
• any downtime (including for planned or unplanned maintenance) or problems with access to the Enlight+ platform, including indirect and consequential damages or losses, loss of profit, loss of data, etc. as a result thereof;
• the content of data transmitted by the Client and its Users;
• any issues or damages incurred relating to the administration of User accounts.
Article 15.8 – Miscellaneous
15.8.1. In case of contradiction between a provision of these Specific Conditions Enlight+, the other articles of these General Conditions and the applicable Work Order(s), the provision of the applicable Work Order(s) will prevail over the others, and the provisions of the Specific Conditions Enlight+ will prevail over the provisions of the other articles of the General Conditions.