MMD MMD Terms and Conditions (“General Conditions”)

MMD Terms and Conditions (“General Conditions”)

Article 1 – acceptance of the T&C’s

These General Conditions are exclusively applicable to the negotiation, drawing up and execution of any work order “Work Order”) and the provision of the services (being all services as defined in the Work Order) (“Services”) by Points Plus Punten SA/NV, with registered address at 1730 Asse, Chaussée de Bruxelles 347, Belgium (“MMD”), with/to any client of MMD (“Client”), 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.

Client and MMD are herein altogether referred to as “Parties” or individually/separately “Party”.

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 with 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.

The Client can only reject a Work Order in case of manifest errors in the Work Order committed or caused by MMD. Except when the Client explicitly rejects a Work Order in writing within forty-eight (48) hours from the date of the sending thereof, the Client will be deemed to have accepted the Work Order. Upon acceptance, the Work Order shall become binding between MMD and the Client. MMD has the right to revoke any order by the Client at any time and for any reason before sending a Work Order.

If Client cancels any accepted Work Order or cancels a Service referred to in the Work Order, it shall be required to pay the price for the cancelled Service(s).

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), it 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 with the details of another legal entity, 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.

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 of 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/fixed damage of 10% with a minimum of €50.

MMD has the right to set-off any due amounts by Client against any payment it owes to the Client. The Client agrees not to compensate or allow for the compensation of any amount due by it (or by any entity pursuant to article 6.1) under an invoice from MMD with an amount owed to it by Delhaize Le Lion/De Leeuw SA/NV (“Delhaize”). Delhaize and MMD are two separate entities.

Article 4 - Obligations MMD

MMD shall deliver the Services according to the provisions of these General Conditions and the Work Order(s) and on the basis of the reasonable instructions and the materials provided by Client.  

MMD represents and warrants that the Services will be (i) free from all visible defects; (ii) free from any securities (‘zekerheden/sûretés’) and will not infringe any rights of third parties, in particular (but not limited to) intellectual property rights, to the extent Services are not rendered based on the instructions/requests of Client; (iii) safe and without risk to persons using the Services; and (iv) of a satisfactory quality and/or workmanship. Subsections (i) to (iii) will not apply to the extent the Services are provided on the basis of reasonable instructions and/or materials provided by the Client, in which case MMD only warrants to deliver the (respective part of the) Services in conformity with these instructions or materials.

Client acknowledges and agrees that MMD is not making any explicit representation or warranty in respect of the Services other than the ones provided in the General Conditions. MMD 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.

Advise and recommendations will never form part of the Services and are therefore given by MMD to Client without any guarantee.

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 ‘technical’ 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 applicable document (provided by MMD or any third-party appointed by MMD) in relation to the provision of the Services.

Client will submit to MMD within the term specified in the technical specification or otherwise communicated to the Client (i) all information or instructions asked for by MMD; and (ii) all (reasonable) instructions/briefings, (creative) materials and all other information it can submit, which is necessary to enable the successful delivery of the Services.

Services are considered to be delivered to the satisfaction of Client if no complaint has been issued by Client to MMD in writing during the Services, with a maximum delay of fifteen (15) calendar days starting from the beginning of each Service specified in the Work Order.

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.

Article 6 – Data Protection

MMD (and/or its affiliated companies) acts as joint data controller, together with Delhaize Le Lion/De Leeuw SA/NV, of the customer personal data collected in the framework of the SuperPlus 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 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 7 - 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 royalty-free, non-exclusive, non-transferable, worldwide right to use the related intellectual property rights  in so far as necessary for MMD’s provision of the Services and all future 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 further determined in the Work Order.

Client will indemnify 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(s). MMD will indemnify Client for and against all third-party claims which relate to its use of intellectual property rights owned by MMD or its licensor(s).

Article 8 – Liability

In no event shall the aggregate liability of MMD in relation to Services rendered pursuant to a Work Order extend beyond the price (excl. VAT) mentioned in that Work Order. MMD and the Client cannot be held liable for indirect damages, including but not limited to loss of profits or loss of revenues.

Client is solely responsible for any encountered delay in the provision of the Services as well as any additional expenses due to its non-compliance with these General Conditions, the technical specifications or any other applicable documents communicated in writing by MMD in relation with the provision Services.

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 9 - Confidentiality

Parties are bound, on behalf of themselves, their employees, and their subcontractors by an obligation of strict confidentiality regarding the Confidential Information and shall not use the Confidential Information for any other purpose than the provision/reception of the Services, unless required by applicable law(s). “Confidential Information” means any information, shared by the disclosing Party, orally or in writing, with the other receiving Party, that is clearly marked as confidential or which can reasonably be regarded by the Parties as being confidential, including but not limited to business, technical, financial, commercial, operational, administrative, marketing, economic, legal and other information, data or documents. Moreover, the content and the existence of this Agreement are also considered to be Confidential Information.

Notwithstanding the confidentiality obligations imposed in this article 9, the receiving Party shall be authorized to disclose Confidential Information at the order of any competent court of law or competent official regulatory authority, provided that (i) such disclosure is covered by protective measures which reasonably protect the interests of the disclosing Party; and (ii) the receiving Party has given prompt written notice to the disclosing Party before such disclosure occurs sufficiently in time to allow the Disclosing Party to prevent such disclosure through appropriate legal means.

The receiving Party shall, at its own initiative, return to the disclosing Party (or, at the disclosing Party’s request, destroy) all Confidential Information immediately when the continued possession of such Confidential Information is no longer required for the provision/reception of the Services nor otherwise required under applicable law(s), and confirm in writing promptly when it has complied with this obligation.

Article 10 - 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 force majeure, meaning any unforeseen event which is beyond the reasonable control of the Parties or any unforeseeable occurrence the consequences of which may not reasonably be avoided and which prevents performance of a Work order and/or the Agreement, in whole or in part, by either Party (“Force Majeure”). Instances of Force Majeure on the part of MMD could be, without limitation: e.g. delisting of products by Delhaize or any of the stores operated under any of its banners; absence of availability of a product/products because of a third-party due to other reasons than delisting; deterioration, disappearance or withdrawal of in-store marketing materials through no intervention of MMD; announced or unannounced strikes; acts of war or terrorism, civil or military disturbances; nuclear or natural catastrophes or acts of God; interruptions, loss or malfunctions of utilities or communication infrastructure; and binding government measures. 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 11 -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 12 - 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 13 – 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.

MMD has entered into agreements with most of the stores operated under one of the banners of Delhaize (namely Delhaize, AD Delhaize, Proxy Delhaize, Shop & Go Delhaize, Fresh atelier Delhaize, etc), which precludes them from allowing to display or displaying any form of advertisement, e.g. totems, stickers, stoppers, etc., which has not been authorised by MMD. Client is therefore sufficiently informed that it may not in any way advertise in the same stores, unless it has obtained the express prior written agreement of MMD and Delhaize. If no prior written agreement has been obtained, MMD shall be entitled to (i) invoice the advertisements published/displayed by the Client at the rate applicable for its equivalent Services, without prejudice to full compensation for its actual damage, including costs for the removal of advertising material; and (ii) to suspend all advantages (e.g. discounts or other advantages) granted to the Client.

If any term of the General Conditions, or part of these General 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.

Articles 7, 2nd paragraph and 13, 2nd paragraph of the General Conditions remain applicable even after termination of all Services. Article 9 remains applicable until 5 years after the termination of the Services. Those provisions necessary for the interpretation or enforcement of the aforementioned articles, shall also survive termination.

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 14 - Specific Conditions Enlight+

Article 14.1 – Scope

14.1.1.     MMD offers suppliers of Delhaize Le Lion/De Leeuw SA/NV (“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. 

14.1.2.     This article 14 only applies to the provision of the Enlight+ Service.  The specific conditions of this article 14 (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 14), 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 14.2 – The Enlight+ Service

14.2.1.     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”).  

14.2.2.     Except where provided differently on 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 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.

14.2.3.     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.

14.2.4.     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.

14.2.5.     Access to the Enlight+ platform as part of the Enlight+ Services is temporary, non-exclusive, personal, and non-transferable.

Article 14.3 – Duration – Termination of the Enlight+ Service

14.3.1.     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.

14.3.2.     If the Client cancels 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 14.4 – Price & invoicing of the Enlight+ Services

14.4.1.     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 14.3 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 14.3 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.

14.4.2.     The Enlight+ Services will be invoiced per calendar year. The invoice will be submitted upon reception by MMD of the accepted Work Order.

Article 14.5 – User access – Terms of Use

14.5.1.     By accessing and/or using Enlight+ platform, the user that is given access to the Enlight+ platform by the Client (a “User”) is considered to have accepted the terms of use of the Enlight+ Service (the “Terms of Use”), which are sent to User prior to first accessing the Enlight+ platform, and will at that time be provided with the applicable privacy notice.

14.5.2.     The applicable Terms of Use are those in effect at the time the User registers with the Enlight+ platform or upon any acceptance of new Terms of Use. All changes to the Terms of Use will be published on the Enlight+ platform. These changes will only be enforced as of the next calendar year. Should the changes to the Terms of Use be deemed inacceptable, Client can terminate the Enlight+ Services provided it does so before 1 December of the current calendar year, in which case the Enlight+ Services will be stopped on December 31st of the same year, end of the day. The changes must be accepted by the User in view of the continued use of the Enlight+ Service.

14.5.3.     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 14.6 – Specific obligations of the Client – Technical Requirements

14.6.1.     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.

14.6.2.     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.

14.6.3.     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. 

14.6.4.     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.

14.6.5.     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. 

Article 14.7 – Liability regarding the Enlight+ Service

14.7.1.     In addition to the provisions regarding liability in article 8 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 Client’s use of the Enlight+ platform;

•    damages as a result of 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 14.8 – Miscellaneous

14.8.1.     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.