Confidential Information means
(a) any and all information being clearly designated, labelled or marked as confidential;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of a party;
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of a party; and (c) any information or analysis derived from any information regarded as confidential pursuant to (a) or (b).
Deliverables means all data and materials (in any form or media) developed or supplied by or on behalf of the Supplier in the course of providing the Services.Goods means the goods set out in the Specification and the Order.
Insolvency Event means in respect of either party:
(a) Winding Up: other than for the purposes of a bona fide reconstruction or amalgamation having no impact on the fulfilment of the relevant party's obligations under this Agreement, the passing of a members' or creditors' voluntary winding up resolution or a court of competent jurisdiction making an order for it to be wound up or dissolved, or that party being otherwise dissolved; or
(b) Administration, Liquidation, Receivership or Administrative Receivership: the appointment of a receiver, liquidator, administrative receiver or administrator (or similar or equivalent officer) or the passing of any resolution for the appointment of such person; or
(c) Encumbrancer: an encumbrancer taking possession of or selling the whole or any part of the entity's undertaking, assets, rights or revenue; or
(d) Payment of Debts: that party being unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or any cessation of business or any proceedings analogous or substantially equivalent to the foregoing.Intellectual Property Rights means intellectual property rights of any kind whether registered or unregistered and including all applications and rights to apply for and be granted such rights.
Losses means all damages, losses, liabilities, claims, actions, costs, expenses (including reasonable fees and disbursements for legal or professional services), proceedings, judgments, consensual settlements, penalties, fines, demands, interest and charges whether arising under statute, contract or at common law.
Order means Yodel's purchase order attached to these Terms for the supply of Goods and/or Services.
Services means the services, including without limitation any Deliverables, to be provided by the Supplier under this Agreement as set out in the Specification and the Order.Specification means the specification and description for the Goods and Services set out in the Order.
Terms means these terms and conditions (including any document referred to in them).Yodel Group means Yodel, any subsidiary or any immediate holding company from time to time of Yodel, and any subsidiary from time to time of such immediate holding company of Yodel (in each case reference to a holding company or a subsidiary meaning a holding company or subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 as at the date of this Agreement).
Unless the context otherwise requires, a reference to a statute, statutory provision or subordinate legislation is a reference to such statute or statutory provision as amended or re-enacted.
2. BASIS OF AGREEMENT
2.1 The Order is placed on these Terms (the Order and the Terms together constituting the "Agreement")
2.2 These Terms are incorporated in every Order and shall apply to the exclusion of any other terms and conditions which the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Yodel shall have no obligation to order any, or any minimum quantities of, Goods and/or Services.
2.4 This Agreement is entered into on a non-exclusive basis.
3. SUPPLY, DELIVERY AND SHIPMENT OF GOODS
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with the Order, their description and the Specification;
3.1.2 be of satisfactory quality and fit for purpose (within the meaning of the Sale of Goods Act 1979) and be free from defects in design, materials and workmanship;
3.1.3 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
3.1.4 be accompanied by a delivery note containing the date of the Order, the relevant purchase order number, the type and quantity of the Goods (including the code number of the Goods where applicable), special storage instructions (if any) and any other information as Yodel may reasonably require.
3.2 The Supplier shall deliver the Goods on the date and to the location specified in the Order during normal business hours (or to any other location as instructed by Yodel before delivery) ("Delivery Location")
3.3 The Supplier shall not deliver the Goods in instalments without Yodel's prior written consent.
3.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
3.5 Risk in the Goods shall pass to Yodel on completion of delivery in accordance with this Agreement.
3.6 Title in the Goods shall pass to Yodel on the earlier of completion of delivery in accordance with this Agreement and payment in full by Yodel for the Goods.
4. SUPPLY OF SERVICES
4.1 The Supplier shall provide the Services to Yodel in accordance with the terms of this Agreement.
4.2 The Supplier shall meet any performance dates for the Services specified in the Specification and/or the Order or notified to the Supplier by Yodel.
4.3 In providing the Services, the Supplier shall:
4.3.1 co-operate with Yodel and its representatives in all matters relating to the Services, and comply with all reasonable instructions of Yodel;
4.3.2 perform the Services in accordance with good industry practice;
4.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them;
4.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose made known to the Supplier by Yodel;
4.3.5 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Yodel, will be free from defects in workmanship, installation and design;
4.3.6 observe all health and safety rules and regulations and any other security requirements that apply at any of Yodel's premises;
4.3.7 hold all materials, equipment and tools, drawings, specifications and data supplied by Yodel to the Supplier ("Customer Materials") in safe custody at its own risk, maintain the Customer Materials in good condition until returned to Yodel, and not dispose or use the Customer Materials other than in accordance with Yodel's written instructions or authorisation;
4.3.8 not do or omit to do anything which may cause Yodel to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business; and
4.3.9 ensure that all written information provided to Yodel in relation to the Services is accurate and complete in all material respects.
5. YODEL REMEDIES
5.1 If the Supplier fails to deliver the Goods and/or perform the Services by the delivery and / or performance date (as applicable), or if the Supplier delivers the Goods or performs the Services in a manner that does not comply with the undertakings set out in clauses 3 or 4 (as the case may be), Yodel shall, at the Supplier's risk and expense and without limiting its other rights or remedies, have one or more of the following rights:
5.1.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier;
5.1.2 to require the Supplier to repair or replace the rejected Goods;
5.1.3 to require the Supplier to re-perform the Services;
5.1.4 to cancel any other Order for Goods and/or Services which has already been placed;
5.1.5 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make; and
5.1.6 to require the Supplier to provide a full refund of the price of any Goods and/or Services which do not comply with the undertakings set out in clauses 3 or 4 (if paid).
5.2 The terms of this Agreement shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6. YODEL'S OBLIGATIONS
6.1 Yodel shall:
6.1.1 provide the Supplier with reasonable access at reasonable times to Yodel's premises for the purposes of delivering the Goods and providing the Services; and
6.1.2 provide such information as the Supplier may reasonably request for the provision of the Services and Yodel considers reasonably necessary for the purpose of providing the Services.
7. CHARGES AND PAYMENT
7.1 The charges for the Goods and the Services shall be as set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the supply of the Goods and Services and shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the supply of the Goods and Services.
7.2 The Supplier shall invoice Yodel on or at any time after completion of delivery of the Goods, or completion of the Services (as the case may be). Each invoice shall include such supporting information required by Yodel to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.3 In consideration of the supply of Goods and/or Services by the Supplier, Yodel shall pay the invoiced amounts within sixty (60) days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
7.4 All amounts payable by Yodel under this Agreement are exclusive of amounts in respect of VAT which Yodel shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier.
7.5 If a party fails to make any payment due to the other party under this Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England's base rate from time to time. The parties acknowledge that this will be a substantial remedy for the purposes of the Late Payment of Commercial Debts Regulations 2013.
7.6 Yodel may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to Yodel (or to any member of the Yodel Group) whether under this Agreement or otherwise against any liability of Yodel (or any member of the Yodel Group) to the Supplier whether under this Agreement or otherwise (whether either liability is present or future, actual or contingent, liquidated or unliquidated, disputed or undisputed).
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In respect of the Goods and any Deliverables, the Supplier warrants that it has full clear and unencumbered title to all such items, and that (i) at the date of delivery of such items to Yodel, it will have full and unrestricted rights to sell and transfer all such items to Yodel; and (ii) Yodel will enjoy quiet possession of such items.
8.2 The Supplier assigns to Yodel, including by present assignment of future rights, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Deliverables.
8.3 The Supplier warrants to Yodel that the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (including the Deliverables) will not infringe the Intellectual Property Rights of any third party.
8.4 The Supplier shall indemnify and keep Yodel indemnified against all Losses suffered or incurred by Yodel, its representatives and any member of the Yodel Group, as a result of or in connection with any claim made against Yodel, its representatives or any member of the Yodel Group, for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services.
9.1 The Supplier shall indemnify and keep Yodel indemnified against all Losses suffered or incurred by Yodel, its representatives and any member of the Yodel Group, as a result of or in connection with:
9.1.1 death or personal injury resulting from the negligence of the Supplier or its representatives;
9.1.2 damage to real or personal property caused by the Supplier or its representatives;
9.1.3 the fraud and/or wilful misconduct or wilful default of the Supplier or its representatives; and
9.1.4 any negligent act or omission or breach of this Agreement by the Supplier or its representatives.
10.1 The Supplier shall maintain in force, with a reputable insurance company, appropriate insurance (acting in accordance with best industry practice) to cover the liabilities that may arise under or in connection with this Agreement.
11. CONFIDENTIALITY AND ANNOUNCEMENTS
11.1 Each party shall (i) keep all Confidential Information of the other party strictly confidential; and (ii) use such Confidential Information solely in connection with the performance of this Agreement and not otherwise or for the benefit of any third party.
11.2 The provisions of clause 11.1 will not apply to any Confidential Information which is required to be disclosed pursuant to law, any governmental or regulatory authority or by a court of competent jurisdiction but then only to the extent of such required disclosure and provided (to the extent it is legally permitted to do so) the relevant party agrees the nature and extent of any disclosure in advance with the other party.
11.3 Notwithstanding clause 11.1, a party shall be permitted to disclose Confidential Information to its personnel or to its professional advisors and, in the case of Yodel, to the Yodel Group, on a need to know basis for the performance of its obligations or receipt of benefits under this Agreement provided always that it procures that such representatives (or Yodel Group members, as the case may be) comply with the obligations set out in this clause 11 as though they were a party to this Agreement.
11.4 On the termination or expiry of this Agreement each party shall promptly return all Confidential Information of the other party.
11.5 Each party agrees that damages may not be an adequate remedy for any breach of this clause 11 and that the other party will be entitled, without prejudice to its other rights, to seek injunctive and other equitable remedies in the event of any breach of this clause 11.
11.6 Neither party will make any announcement or publicity statement relating to the other party, any dispute between the parties, this Agreement or its subject matter without the other party's prior written consent (except as required by law or by any legal or regulatory authority).
11.7 Each party will indemnify the other party (including, in the case of Yodel, each member of the Yodel Group), against all Losses suffered or incurred as a result of or in connection with any breach by that party or anyone acting on behalf of that party of this clause 11.
11.8 The obligations in this clause shall continue for a period of 5 years following termination.
12. TERM & TERMINATION
12.1 This Agreement shall commence on the date set out in the Order (or such other date as Yodel may agree in writing) and will continue for the period set out in the Order or, if no such period is stated, then until the completion of the supply of the Goods and / or Services in conformance with the requirements of this Agreement.
12.2 Without limiting its other rights or remedies, Yodel may terminate this Agreement with immediate effect and without liability in respect of such termination by giving written notice to the Supplier if:12.2.1 the Supplier commits a breach of any of clauses 8 (Intellectual Property Rights), 10 (Insurance), 11 (Confidentiality and Announcements), or 16.11 (Compliance with Code of Conduct);
12.2.2 an Insolvency Event occurs in relation to the Supplier; or
12.2.3 there is a change of control of the Supplier (within the meaning of section 1124 of the Corporation Tax Act 2010 as at the date of this Agreement).
12.3 Termination of this Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
12.4 Clauses which expressly or by implication survive termination of this Agreement shall continue in full force and effect including without limitation clauses 8, 9, 11, 16.2, 16.6, 16.9, 16.13.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of this Agreement for any reason, the Supplier shall immediately deliver to Yodel all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then Yodel may enter the Supplier's premises and take possession of them. The Supplier shall pay Yodel's reasonable costs and expenses incurred in enforcing this clause 13.1.
14. FORCE MAJEURE
14.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure directly results from an event beyond its reasonable control.
14.2 If such an event prevents, hinders or delays the Supplier's performance of its obligations for a continuous period of more than one calendar month, Yodel may terminate this Agreement immediately and without liability in respect of such termination by giving written notice to the Supplier.
15.1 The parties do not believe that the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") will apply on the commencement, termination or partial termination of the Services and it is the responsibility of the Supplier to manage its resources such that a TUPE transfer will not occur.
15.2 The Supplier will indemnify Yodel and, where appropriate, any new supplier engaged on termination or partial termination of this Agreement to provide services similar to the Services (a "New Supplier") in full for and against all claims, costs, expenses or other liabilities whatsoever and howsoever arising incurred or suffered by Yodel and/or any New Supplier including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to anything done or omitted to be done (including any alleged failure to inform and consult with employees or representatives of employees) by the Supplier, Yodel or the New Supplier in respect of any employee who is or was (or is alleged to be) engaged by the Supplier (or any sub-contractor of the Supplier) in respect of the Services whether before or after the commencement of this Agreement.
16.1 Consents and Licences
The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits, and complies with all applicable laws and regulations, that it needs to carry out its obligations under this Agreement in respect of the Goods and the Services.
The Supplier shall maintain complete and up to date records and documentation in connection with its obligations under this Agreement. The Supplier shall allow Yodel to inspect such records and documentation at all reasonable times on request.
16.3 Cumulative Rights and Remedies
Except as expressly provided under this Agreement, the rights and remedies contained in this Agreement are cumulative and not exclusive of any other rights or remedies provided by law or otherwise.
16.4 Assignment and other dealings
(a) Yodel may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of Yodel.
(c) Any subcontracting shall not relieve the Supplier of its obligations under this Agreement and any act or omission of any subcontractor shall be deemed to be the act or omission of the Supplier.
Any notice given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office and shall be sent by a certified or registered mail delivery service. A notice shall be deemed to have been received at the time that the relevant delivery receipt is signed.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
A waiver of any right or remedy under this Agreement or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.8 No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.9 Third party rights
(a) The parties acknowledge and agree that Yodel enters into this Agreement on its own behalf and on behalf of all other members of the Yodel Group, and accordingly:
(i) any member of the Yodel Group shall be entitled to receive the benefit of this Agreement as if it were a party to this Agreement, provided always that members of the Yodel Group may only receive the benefit of this Agreement at the discretion of and in accordance with the directions of Yodel;
(ii) Yodel may enforce the terms of this Agreement on behalf of any member of the Yodel Group and any Loss of such member of the Yodel Group shall be deemed to be Losses of Yodel and shall be deemed to be recoverable by Yodel (and shall not be treated as being indirect, special or consequential by reason only of the fact that it has been suffered by a member of the Yodel Group and not by Yodel directly);
(iii) the Supplier shall not at any time raise any objection to the exercise of any rights by Yodel or any member of the Yodel Group in accordance with 16.9 (a) (i) and 16.9 (a) (ii); and
(iv) for the avoidance of doubt, nothing in this clause 17.9 (a) shall permit Yodel to double recover the same Losses.
(b) Subject to clause 16.9 (a), a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
(c) The parties to this Agreement may vary, terminate or rescind this Agreement without the consent of any other member of the Yodel Group.
Except as set out in this Agreement, no variation of this Agreement shall be effective unless it is agreed in writing and signed by a director of each of the parties.
16.11 Compliance with Code of Conduct
The Supplier shall comply with Yodel's codes of conduct as issued or made available from time to time.
16.12 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements in relation to the Goods and the Services.
16.13 Governing law & jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales and shall be governed by, and construed in accordance with the law of England and Wales.