Commercial terms and conditions
Article 1 – Acceptance of the Agreement
1. This Agreement is 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.
2. 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 Agreement does not apply or does not exhaustively apply to any given matter, Client’s general or specific conditions shall in no event fulfil a supplementary function.
Article 2 – Term and termination
1. The Agreement will enter into effect on [STARTING DATE] for an indefinite duration.
2. Each Party has the right to terminate the Agreement at any time for convenience provided that a notice period of 6 months is respected. The notice shall be communicated by registered letter and e-mail to the other Party.
3. A Party has the right to terminate the Agreement with immediate effect and without prior judicial proceedings for the reasons indicated hereafter. Such termination shall be communicated by registered letter and by email to the other Party. It shall have immediate effect as of the day of sending of the registered letter and email. Causes for termination with immediate effect shall include:
Breach by the other Party of any of its obligations under the Agreement that is not remedied within 30 calendar days after written notification hereof;
Breach of the other Party of any of its obligations under the Agreement that cannot be remedied;
Bankruptcy, application for protection under the Act of 31 January 2009 on the continuity of enterprises, insolvency or dissolution of assets of the other Party.
Article 3 – Orders
No changes or amendments can be made to a signed 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 signed Work Order, it shall be required to pay the price for the ordered Services as stated in the Work Order.
Article 4 – Price, billing and Payment
1. 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.
2. 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.
3. Invoicing will take place in accordance with the following invoicing procedure: (1) MMD shall send the invoice in PDF 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.
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 EUR.
The payments are always used to settle the oldest outstanding debts first, including the expired interests.
4. MMD has the right to set-off any due amounts by Client against any payment obligations it has towards Client.
Article 5 – Obligations MMD
1. MMD shall use its best efforts to deliver the agreed Services according to the provisions of this Agreement. 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.
2. 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 6 – General obligations Client
1. 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.
2. 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 this Agreement, the technical specifications or any other documents communicated in writing by MMD in relation with the provision Services.
3. Services are considered to be delivered to the satisfaction of Client if no complaint has been issued by Client in writing within fifteen (15) calendar days starting from the end date of the Services.
4. 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 Agreement.
5. Client is aware that all marketing actions organised in Delhaize stores need to be formally approved by MMD or Delhaize, and it shall refrain from organising such actions with any other non-approved third party. If such would occur, MMD or Delhaize shall have the right to remove such materials from the Delhaize stores, disclaiming any responsibility or liability in that regard.
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
1. The intellectual property rights with respect to the information, materials, or products provided by Client will remain with Client or its licensors. The 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) in connection with the execution of a Work Order shall remain with MMD or its licensors.
2. If Client delivers artwork to MMD, 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 so far as necessary for Client’s use of the Services in accordance with the provisions of the Work Order and the Agreement, 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.
3. 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
1. Parties guarantee that they shall comply with the terms of this Agreement and that they shall be responsible for their respective breaches thereof.
2. 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.
3. 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.
4. If Client would become aware that Services are not executed as agreed upon in the Work Order, it shall notify MMD thereof. Subsequently, MMD shall have 48 hours as from notification to rectify such situation. If rectified within this time period, such event cannot give rise to any liability of MMD.
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
1. This Agreement is 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.
2. If any of the provisions of this Agreement, or part of these provisions, is found to be invalid, or if an explicit derogation to one or more provisions was granted, this shall have no effect on the validity and the application of the remaining provisions or on the remaining part thereof.
3. Nothing in this Agreement 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.
4. No delay, neglect or forbearance on the part of either Party in enforcing against the other any term of condition of the Agreement shall be, or deemed to be, a waiver or in any way prejudice any right of that Party under the Agreement.