TERMS AND CONDITIONS (“CONDITIONS”) FOR THE SUPPLY OF GOODS AND/OR SERVICES BY A THIRD PARTY TO THE DELTIC GROUP LIMITED (OR ANY COMPANY IN THE SAME GROUP)
These Conditions apply to any person or organisation that supplies good and/or services to The Deltic Group Limited or any company in the same group (“Deltic”). The Deltic Group Limited has its registered office at Aurora House, Deltic Avenue, Rooksley, Milton Keynes, Buckinghamshire, MK13 8LW and is registered in England with registration number 07870512.
Deltic hereby appoints the Supplier to provide the Goods and/or Services (each as defined below and as are described more fully in the relevant Order).
The Supplier agrees to supply the Goods and/or Services to Deltic at the Locations (as defined below) on the terms of these Conditions.
These Conditions govern the terms of any Order placed by Deltic with the Supplier for Goods and/or Services and these Conditions shall apply throughout the duration of the Contract
1.1 In these Conditions the following expressions will have the meanings shown below unless the context otherwise dictates:
“Business Days” means any day which is not a Saturday, a Sunday or a bank or public holiday in England;
“Conditions” means these terms and conditions for the purchase of Goods and/or Services as set out below and shall include any Service Level Agreements and any Orders made under or pursuant to its terms;
“Confidential Information” means information that is designated as ‘confidential’ or which by its nature is clearly confidential or any information relating to Deltic’s business affairs, finances, products, any Order, or the Goods and/or Services that the Supplier is engaged in delivering or which may be disclosed to the Supplier during the Term including all information and copies (whether authorised or not) of such information irrespective of what form it takes or the medium on which it is stored, recorded or conveyed;
“Contract” means the contract between Deltic and the Supplier for the supply of Goods and/or Services in accordance with these Conditions;
“Control” shall be defined as in section 1124 of the Corporation Tax Act 2010, and the expression “change of Control” shall be construed accordingly;
“Data Protection Schedule” means the schedule to these Conditions with the title: Data Protection Schedule;
“Deliverables” means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
“Disclosing Party” means a party that makes available or releases Confidential Information to the other;
“Effective Date” means the date set out on any Order or, in the absence of such date, the date on which the Contract comes into existence pursuant to clause 2;
“Goods” means the defined items set out in the Order by Deltic to the Supplier;
“Intellectual Property” means all intellectual property of whatever nature, including all:
(a) patents, utility models, trade marks, service marks, registered designs, trade names, business names, domain names and email addresses, unregistered trade marks and service marks, rights in logos and get-up, copyright, database rights, all rights of whatsoever nature in computer software and data, semi-conductor topographies, inventions, know-how, rights in designs;
(b) rights under licences, consents, statutes, orders or otherwise in relation to a right in paragraph (a) of this definition;
(c) rights of the same of similar effect or nature to those in paragraphs (a) and (b) above of this definition anywhere in the world which now or in the future may subsist; and
(d) renewals, reversions or extensions, applications and rights to apply for any of the rights in paragraphs (a), (b) and (c) of this definition;
“Location” means the location(s) owned or operated from time to time by Deltic, where the Supplier will provide the Goods and Services as agreed between the parties;
“New Supplier” means any person or organisation (including Deltic where relevant) which provides the Replacement Services;
“Order” means Deltic’s written instructions, including without limitation, any purchase order, or any other written request made by Deltic to the Supplier setting out the Goods and/or Services that incorporate these Conditions;
“Price” means the price payable by Deltic for the Goods and/or Services set out in any Order or as otherwise agreed in writing between the parties;
“Receiving Party” means the party to whom any Confidential Information is made available;
“Replacement Services” means all or part of the Services (or services substantially similar to all or part of the Services) which are provided by any New Supplier or Deltic following the termination of the Contract;
“Services” means those services provided by the Supplier pursuant to these Conditions set out in more detail in any Order;
“Service Level Agreement” means any document which sets out any Service Levels pursuant to the provision of Services by the Supplier and which may be attached as a schedule to any Order or these Conditions and such Service Level Agreement may be amended from time to time by Deltic;
“Service Levels” means those service levels set out in any Service Level Agreement;
“Supplier” means the person or organisation whose name appears on any Order (as defined above) attached or forming part of the Contract;
“Term” means the term or duration of the Contract as described more fully in any Order, clause 2 or clause 13; and
“TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended from time to time.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions, a reference to the masculine includes the feminine and to the singular includes the plural and vice versa as the context admits or requires.
1.4 In these Conditions, the headings will not affect the construction of these Conditions.
2.1 The Order constitutes an offer by Deltic to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence.
2.3 Notwithstanding clause 2.2, the Contract shall be deemed to have started on the Effective Date.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 OBLIGATIONS OF DELTIC
3.1 In performing its obligations hereunder Deltic shall:
3.1.1 work in line with any contract schedule that may be agreed between the parties;
3.1.2 allow the employees and/or duly authorised contractors of the Supplier, reasonable access on reasonable notice to the Locations to enable them to perform their obligations pursuant to these Conditions;
3.1.3 meet with the Supplier to hold regular reviews including if applicable, an annual review to assess the current status of the arrangements established pursuant to these Conditions; and
3.1.4 provide, where appropriate, the Supplier with all such necessary information and documents as the Supplier may reasonably require or request for the proper performance of its obligations.
3.2 For the avoidance of doubt, Deltic is not required, whether under these Conditions or otherwise, to order or operate a minimum quantity of Goods or to give any minimum commitment of financial value to the Supplier.
4 GENERAL OBLIGATIONS OF THE SUPPLIER
4.1 In performing its obligations hereunder the Supplier shall:
4.1.1 provide the Goods and/or Services in a timely manner in accordance with the timescales set out in any Order and time is of the essence in relation to any of those performance dates;
4.1.2 comply with all instructions and/or directions of Deltic;
4.1.3 keep detailed records of all acts and things done by it in relation to the performance of its obligations hereunder and shall, upon request, make such records available to Deltic for inspection and/or copying;
4.1.4 comply with all applicable laws, enactments, orders, regulations, codes of practice and other similar instruments as may be in force or apply from time to time;
4.1.5 obtain and maintain in force all necessary consents, approvals, authorisations, licences and permissions which may be required in order to enable it to perform its obligations;
4.1.6 allow, from time to time, authorised representatives of Deltic to observe and monitor the provision of the Services;
4.1.7 ensure that any of its personnel who attend Deltic’s premises act in accordance with (a) all health and safety regulations, (b) any other security requirements that apply to Deltic’s premises and (c) Deltic’s health and safety and security policies;
4.1.8 comply with the provisions of clause 15 (Intellectual Property) below;
4.1.9 ensure that its personnel observe the obligations of the Supplier set out in clause 16 (Confidentiality) in regard to all Confidential Information belonging to Deltic;
4.1.10 promptly notify Deltic of any circumstance that may materially delay or otherwise affect the Supplier’s ability to provide the Goods or Services;
4.1.11 provide in a timely manner the information and/or materials requested by Deltic from time to time to enable it to monitor the Services provided;
4.1.12 hold all materials, equipment and tools, drawings, specifications and data supplied by Deltic to the Supplier (“Deltic Materials”) in safe custody at its own risk, maintain the Deltic Materials in good condition until returned to Deltic, and not dispose or use the Deltic Materials other than in accordance with Deltic’s written instructions or authorisation;
4.1.13 not do or omit to do anything which may cause Deltic to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Deltic may rely or act on the Services; and
4.1.14 work in accordance with the specific service levels defined in any Service Level Agreement agreed between the parties.
4.2 In addition to the obligations of the Supplier set out in these Conditions, Deltic shall have the right to require the Supplier, immediately on receipt of written notice, to remove any of its employees, subcontractors or agents who have carried out any acts of misconduct, have breached Deltic’s policies from time to time (including, without limitation, in relation to personnel, health and safety or security) or any of the terms of these Conditions.
5 SUPPLY OF GOODS
5.1 In supplying the Goods, the Supplier shall:
5.1.1 ensure that the Goods:
(a) are subject to all appropriate quality control and testing;
(b) shall be safe and of the best available design, of the best quality, material and workmanship and be without fault; and
(c) shall conform in all respects with the Order, any specification set out therein and any Service Levels.
5.1.2 ensure that the Goods are fit for the purpose required (whether or not such purpose was expressly or impliedly drawn to the attention of the Supplier or was apparent by implication from the nature of the Goods) and are free from any defect in tolerance, installation, design, performance, safety, materials and workmanship;
5.1.3 inspect and test the Goods prior to delivery for total compliance with the relevant Order. In assessing the Goods as to their fitness for use, Deltic shall be deemed to have relied upon the Supplier’s skill and judgment in this respect;
5.1.4 comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods;
5.1.5 ensure that all Goods are delivered:
(a) in accordance with any time or date referred to in any Order or, if no such date is specified, within 10 days of the Effective Date and time shall be of the essence in this regard;
(b) to Deltic’s premises at the address specified in the Order or such other location as is set out in the Order or as instructed by Deltic before delivery (“Delivery Location”); and
(c) during Deltic’s normal hours of business on a Business Day, or as instructed by Deltic;
5.1.6 ensure that the design, construction, quality, packaging and labelling of the Goods shall comply in all respects with the relevant requirements of all laws and any requirements, in particular those specified by Deltic; and
5.1.7 complete delivery of the Goods by unloading the Goods at the Delivery Location.
5.2 The Supplier shall not deliver the Goods in instalments without Deltic’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Deltic to the remedies set out in these Conditions.
6 SUPPLY OF SERVICES
6.1 In supplying the Services, the Supplier shall:
6.1.1 from the Effective Date and for the duration of the Contract supply the Services to Deltic in accordance with the terms of the Contract;
6.1.2 provide all Services with the best skill, care and diligence and in accordance with the best standards observed in the industry for similar services;
6.1.3 perform the Services, and provide the Deliverables, in accordance with any quality control or other particular requirements set out in any Order or any Service Level Agreement or as otherwise agreed in writing between the parties;
6.1.4 provide, at its own risk and expense all Deliverables, goods, materials, plant, tools, appliances and equipment (all of best quality and free from defects in workmanship, installation and design) and labour, licences (whether for Intellectual Property or otherwise), transport and handling and all such other things which are necessary for the provision of the Services;
6.1.5 ensure that the Services are performed by personnel who are under the sole direction of the Supplier and who have the necessary skill, experience and expertise to provide the Services;
6.1.6 ensure that all Services (including, without limitation, any installations or removals) are supplied in accordance with any time or date referred to in any Order or agreed contract schedule and time shall be of the essence in this regard;
6.1.7 comply with all applicable regulations or other legal requirements concerning the supply of the Services;
6.1.8 comply at all times with any lawful and/or reasonable instructions given by Deltic (including without limitation any risk assessment prepared or produced by or on behalf of Deltic) in respect of the provision of Goods or Services by the Supplier;
6.1.9 ensure that there is no nudity or audience participation in relation to the provision of events that involve entertainment of a sexual nature;
6.1.10 co-operate with Deltic in all matters relating to the Services.
7 RISK AND TITLE OF GOODS
7.1 The Goods shall at all times remain at the risk of the Supplier where the items are on lease. Where items have been purchased outright by Deltic the risk will transfer to Deltic upon delivery.
7.2 Title and property of the Goods shall continue to vest in the Supplier when the Goods are on lease. Where items have been purchased outright by Deltic title in the goods and property will transfer to Deltic upon delivery.
8.1 Without prejudice to any other right or remedy which Deltic may have (including those which are implied by statute or common law), if any of the Goods are not supplied, or if the Services are not carried out in accordance with, or if the Supplier fails to comply with, any of the terms of these Conditions, Deltic shall be entitled to avail itself of any one or more of the following remedies at its discretion:
8.1.1 in respect of Goods only to:
(a) reject the Goods (in whole or part);
(b) require the Supplier, at the Supplier’s expense, either to remedy any defect or to supply replacement Goods;
(c) refuse to accept any further deliveries of the Goods, without any liability to the Supplier;
(d) require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods; or
8.1.2 in respect of Services only to:
(a) require the Supplier, at the Supplier’s expense, to remedy any issues with the Services (or breach of any Service Levels where applicable) within ten (10) days of notification;
(b) require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided; or
8.1.3 in respect of Goods and/or Services to:
(a) recover from the Supplier any costs incurred by Deltic in obtaining substitute goods and/or services from a third party;
(b) refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) claim such damages for any costs, losses or expenses as may have been sustained in consequence of the Supplier’s breaches of these Conditions; or
(d) terminate the Contract either in whole or in part with immediate effect by giving written notice to the Supplier.
8.2 If the Supplier:
8.2.1 delivers less than 95% of the quantity of Goods ordered, Deltic may reject the Goods; or
8.2.2 delivers more than 105% of the quantity of Goods ordered, Deltic may at its sole discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Deltic accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
8.3 If the Goods are not delivered by the applicable date, Deltic may, at its option, claim or deduct 10% of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 125% of the total price of the Goods. If Deltic exercises its rights under this clause 8.3, it shall not be entitled to any of the remedies set out in clause 8.1 in respect of the Goods’ late delivery.
9.1 The Supplier shall indemnify and keep Deltic indemnified in full against all liabilities, damages, injury, losses, costs and expenses (including legal and other professional fees and expenses) suffered, awarded against or incurred or paid by Deltic as a result of or in connection with:
9.1.1 any breach by the Supplier of clause 5.1.1;
9.1.2 any breach by the Supplier of clause 6.1.2;
9.1.3 any claim made against Deltic for liability, loss, damage, injury, cost or expense suffered or incurred by any of Deltic’s employees, agents or subcontractors to the extent that such liability, loss, damage, injury, cost or expense was caused by, related to or had arisen from the breach of the Contract or negligent performance or failure or delay in performance of the terms of the Contract by the Supplier;
9.1.4 any damage caused to Deltic’s property or property under Deltic’s custody, control or responsibility as a result of any act or omission of the Supplier, its employees, agents or contractors;
9.1.5 any claim made against Deltic for actual or alleged infringement of a third party’s Intellectual Property arising out of, or in connection with, the manufacture,supplyor use of the Goods, or receipt, use or supply of the Services and/or Deliverables (excluding Deltic Materials);
9.1.6 any claim made against Deltic by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in theGoods, as delivered, or the Deliverables;
9.1.7 any other claim made against Deltic by a third party arising out of or in connection with thesupplyof the Goods, as delivered, or the Services; and
9.1.8 any breach by the Supplier of clause 17 (Data Protection), clause 19 (Anti-bribery) and clause 20 (Modern Slavery).
9.2 In addition, the Supplier will be solely responsible for the provision of the Goods and/or Services that are the subject of these Conditions and accordingly, the Supplier agrees to fully indemnify Deltic against any and all liabilities that arise from or are connected with the provision of the Goods and/or Services in any way whatsoever. It is acknowledged that nothing in these Conditions is intended to, or can, affect the rights of any third party to bring a claim against either Deltic or the Supplier in accordance with the legal entitlement of that third party in accordance with 11.1.
10 LIMITATION OF LIABILITY
10.1 The following provisions set out the entire financial liability of Deltic to the Supplier (including any liability for the acts or omissions of its employees, agents and/or sub-contractors) in respect of:
10.1.1 any breach of these Conditions; and
10.1.2 any representation, statement or tortious act or omission (including negligence) arising out of or in connection with these Conditions.
10.2 Nothing in these Conditions excludes or limits the liability of either party for:
10.2.1 death or personal injury resulting from negligence;
10.2.2 fraud or fraudulent misrepresentation; or
10.2.3 any other liability which cannot be excluded or limited as a matter of law.
10.3 Subject to clauses 10.1 and 10.2, Deltic shall not be liable for any of the following matters that may be suffered or incurred by the Supplier:
10.3.1 loss of profits;
10.3.2 loss of business;
10.3.3 depletion of goodwill or similar losses;
10.3.4 loss of anticipated savings;
10.3.5 loss or corruption of data or information; or
10.3.6 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
10.4 Deltic’s total liability to the Supplier in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of under these Conditions in any period of twelve (12) months shall not exceed the amount of the fees paid by Deltic to the Supplier during such twelve (12) month period.
11.1 Unless Deltic has indicated otherwise, during the Term and for a period of 6 years after termination of the Contract, the Supplier shall effect and maintain in force with a reputable insurance company the following insurance policies:
11.1.1 Public and Product Liability Insurance Policy in respect of loss or injury to persons or damage to tangible property, including an indemnity to principals clause, with not less than five million pounds sterling (£5,000,000) per claim; and
11.1.2 such other insurance as may be required by law (including employer’s liability up to £10,000,000).
11.2 Unless Deltic has indicated otherwise, the Supplier shall procure that its suppliers of goods and services for anything supplied to Deltic by the Supplier shall effect and maintain in force with a reputable insurance company the following insurance policies:
11.2.1 Public and Product Liability Insurance Policy in respect of loss or injury to persons or damage to tangible property, including an indemnity to principals clause, with not less than five million pounds sterling (£5,000,000) per claim; and
11.2.2 such other insurance as may be required by law (including employer’s liability up to £10,000,000).
11.3 On Deltic’s written request, the Supplier shall promptly provide Deltic with a certificate signed by the Supplier’s insurer (or any of its suppliers’ insurers as the case may be) confirming that the Supplier (or any of its suppliers) is insured in accordance with this Condition.
12.1 The Price for the Goods and/or Services will be as stated in the Order or as otherwise agreed in writing by the parties and shall be inclusive of any costs of packaging, insurance and carriage of Goods (where relevant to Goods). No extra charges shall be effective unless agreed by the parties in writing.
12.2 The Supplier acknowledges and agrees to use its skill and expertise to ensure that any Goods and/or Services supplied under these Conditions and any Order are at all times competitively priced and represent good value to Deltic.
12.3 Subject to the receipt of a correct invoice accurately reflecting the Price, Deltic shall make payment for the Goods and/or Services in pounds sterling within 60 (sixty) days of the date on which the invoice is received by Deltic, but time for payment shall not be of the essence under these Conditions.
12.4 There will be a separate invoice for each individual Order placed or in accordance with any agreed contract schedule.
12.5 In respect of the Goods, the Supplier shall invoice Deltic on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Deltic on completion of the Services. Each invoice shall include such supporting information required by Deltic to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. Invoices shall be sent to Deltic’s registered office and shall be inclusive of VAT unless otherwise stated in the Order.
12.6 Each invoice must quote Deltic’s Order number; Deltic will not accept invoices that do not quote this number unless the Supplier can demonstrate that it has acted in accordance with the instructions of a duly authorised representative of Deltic.
12.7 Without prejudice to any other right or remedy that it may have, if Deltic fails to pay the Supplier on the due date, the Supplier may charge interest on such sum from the due date for payment at the annual rate of 1% (one per cent) above the base rate of the Bank of England from time to time in force from the date the monies first become due until the outstanding invoice is paid.
12.8 All sums payable to the Supplier under these Conditions shall become due immediately on its termination where there are no disputes outstanding. In the event that the circumstances under clause 8.1 come into effect and the Contract is terminated, the Supplier shall only be entitled to payment for any undisputed outstanding invoices for the Goods supplied and Services completed as at date of the termination. This clause is without prejudice to any right to claim for interest under the law, or any other such rights or remedies available to Deltic under these Conditions.
13 TERM AND TERMINATION
13.1 The Contract will be deemed to have started on the Effective Date and, unless otherwise specified in the Order, continues until terminated by Deltic giving to the Supplier not less than 1 month’s written notice.
13.2 In addition, without prejudice to any other rights it may have (to include, without limitation, accrued rights to date of termination) Deltic may with immediate effect terminate the Contract (in whole or in part) and/or any Orders in existence under it, on written notice if the Supplier:
13.2.1 commits a material breach of any of its obligations under these Conditions or, if the material breach is capable of remedy, if the Supplier has failed to remedy such material breach within fourteen (14) days of receipt of notice in writing to do so;
13.2.2 makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation of reconstruction); or an encumbrancer takes possession, or a receiver or administrative receiver is appointed of any of the property or assets of the Supplier; or the Supplier ceases, or threatens to cease, to carry on business; or Deltic reasonably apprehends that any of the events mentioned above may occur in relation to the Supplier and notifies the Supplier accordingly; or
13.2.3 if there is a change of Control of the Supplier.
13.3 Termination, for the avoidance of doubt, of these Conditions for whatever reason shall be without prejudice to the rights and remedies of either party which may have accrued on or before the date of termination.
13.4 Upon termination of these Conditions, any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination (or expiry) of the Contract shall remain in full force and effect and, for the avoidance of doubt, clauses 8 (Remedies), 9 (Indemnity), 10 (Limitation of Liability), 14 (Handover Co-operation), 15 (Intellectual Property), 16 (Confidentiality), 17 (Data Protection), 19 (Anti-Bribery) and 20 to 30 shall continue to apply after termination of the Contract.
14 HANDOVER CO-OPERATION
14.1 Without prejudice to clauses 13.2.3 (Termination on Change of Control) or 21 (Assignment), during any period of notice in relation to the termination of the Contract (or, in the event that these Conditions shall terminate by expiry, during the last three (3) months of the Term of the Contract) (the “Notice Period”) the Supplier shall, if required by Deltic (at Deltic’s sole discretion), fully co-operate in the transfer of the responsibility for the provision of the Services or services similar to the Services (the “Transfer”) to any New Supplier (or Deltic as the case may be) who provides Replacement Services under arrangements to be notified to the Supplier by Deltic. For the avoidance of doubt, full co-operation will include the Supplier’s compliance with any obligations arising under the TUPE Regulations.
14.2 Any Transfer shall be arranged between Deltic and the Supplier so as to reduce to a minimum any interruption in the Services (or services similar to the Services), and therefore maintain Deltic’s business continuity.
14.3 Any Transfer of responsibility for any Goods, Services or facilities made available to the Supplier shall be the subject of a mutually agreed inventory between the interested parties at the time of the Transfer. Any special equipment which has been purchased by Deltic for use by the Supplier which has been paid for by Deltic shall remain the property of Deltic and shall immediately be handed over to the New Supplier (or Deltic as the case may be).
14.4 During the Notice Period, the Supplier shall transfer all Deliverables, files, records, documents, plans, drawings, for all Services provided or generated under the Contract, to Deltic or any person designated by Deltic.
14.5 The Supplier shall be responsible for ensuring that any computerised filing, recording, documenting, planning and drawing software systems and any other material utilised under these Conditions is transferred free of any charges to Deltic or any person designated by Deltic to facilitate a smooth hand-over of the Services (or services similar to the Services) and the Supplier shall provide to Deltic and or the New Supplier an irrevocable royalty free licence in respect of any Intellectual Property as may be contained in the same and as and when requested by Deltic execute without charge all such documents as may be necessary to facilitate the grant of such licence to Deltic and or such incoming supplier.
15 INTELLECTUAL PROPERTY
15.1 Intellectual Property owned by the Supplier at the Effective Date shall continue to vest in and remain the sole property of the Supplier. Intellectual Property owned by Deltic at the Effective Date shall continue to vest in and remain the sole property of Deltic. Intellectual Property created by or on behalf of either party in respect of the Contract or Order at any time after the Effective Date shall be owned by Deltic.
15.2 The Supplier shall ensure that any Intellectual Property arising out of or relating to work done by all personnel performing the Services will vest or will be caused to vest in Deltic and that such personnel will have no title, right or interest whether legal or beneficial in any such Intellectual Property.
16.1 Each party agrees to treat as secret and confidential and shall not at any time or for any reason, disclose or permit to be disclosed to any person or persons or otherwise make use of or permit to be made use of, any Confidential Information without the prior written consent of the other.
16.2 The Receiving Party may disclose Confidential Information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party and shall ensure that such employees, agents or sub-contractors are subject to the same obligations of confidentiality as bind the Receiving Party.
16.3 The obligation of confidentiality referred to in this clause 16, shall not apply to any information which:
16.3.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to the receipt of such Confidential Information or other information by the Receiving Party;
16.3.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party; or
16.3.3 the Receiving Party is required to disclose the Confidential Information by law or applicable regulation.
16.4 In the absence of any prior written consent from Deltic to the contrary, the Supplier warrants that it shall permanently destroy the original, and all copies of any Confidential Information which it obtains either directly or indirectly during the course of business in relation to these Conditions.
17 DATA PROTECTION
17.1 In this clause 17:
17.1.1 “Personal Data” means any and all personal data which is processed by the Supplier in connection with the provision of the Goods and/or Services to Deltic;
17.1.2 “data controller”, “data subject”, “personal data” and “processing” shall bear the respective meanings given to them in the Data Protection Act 2018 and the GDPR or such other legislation that amends, supersedes or replaces it from time to time, whether or not such legislation is in force at the date of this Agreement (and “process” shall be construed accordingly);
17.1.3 “Data Protection Laws” means the Data Protection Act 2018, and the General Data Protection Regulation 2016/679 (“GDPR”) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom of Great Britain and Northern Ireland from the European Union, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations which may be in force from time to time relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
17.2 The Data Protection Schedule shall apply where the Supplier is processing Personal Data on Deltic’s behalf.
17.3 The Supplier shall, and shall procure that its employees, agents and sub-contractors shall:
17.3.1 implement, and at all times during the Contract maintain, appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and accidental loss or damage and observing all requirements of the Data Protection Laws;
17.3.2 comply with its obligations under any applicable Data Protection Law, and shall not, by act or omission, put Deltic in breach of, or jeopardise any registration under, any such Data Protection Law;
17.3.3 promptly and fully notify Deltic in writing of any notices received by the Supplier relating to the processing of any Personal Data, including subject access requests, complaints and/or correspondence from any regulatory body and provide such information and assistance as Deltic may reasonably require in relation to such notice (at no cost to Deltic);
17.3.4 promptly and fully notify Deltic in writing if the Supplier suspects or becomes aware of any actual, threatened or potential breach of security of Personal Data; and
17.3.5 if and to the extent that the Supplier collects and passes Personal Data to Deltic pursuant to the Contract, obtain appropriate consent from all data subjects to whom it relates, to pass their personal data to Deltic for the purposes for which Deltic intend to use it.
18.1 Deltic reserves the right to benchmark the ongoing competitiveness of the supply of Goods and Services delivered by the Supplier throughout the term of these Conditions. In conducting any benchmarking, the parties agree that comparisons shall be made with similar goods and services.
18.2 If the benchmarking shows that the Supplier’s price or the commercial arrangement at that time is uncompetitive, Deltic shall share the findings with the Supplier and the parties shall meet as soon as reasonably practicable thereafter with a view to agreeing a new pricing structure.
19.1 The Supplier, (which for purposes of this clause 19.1 shall include all of the Supplier’s employees, agents, representatives, affiliates and any person who performs Services on behalf of the Supplier) agrees with Deltic that it will not, in connection with the Goods and/or Services to be supplied under the Contract, bribe, or attempt to bribe (which shall include without limitation, any offer of any form of payment, gift or other form of inducement, reward or advantage (whether of money or anything of value)) Deltic, any public or government officials or employees, public international organisations, political parties, or private individuals or other entities (“Relevant Party”).
19.2 The Supplier represents and warrants to Deltic that it has not, prior to the Effective Date, bribed or attempted to bribe any Relevant Party in order to secure any business from Deltic whether in connection with the Contract or otherwise.
19.3 The Supplier acknowledges and agrees on behalf of all of the Supplier’s employees, agents, representatives, affiliates and any person who performs services on behalf of the Supplier, that it is familiar with and will abide by the anti-bribery and anti-money laundering laws in all the countries in which it is incorporated or established and in which it does business.
19.4 The Supplier agrees that it will not take or knowingly permit any action to be taken that would cause Deltic to be in violation of any applicable anti-bribery or anti-money laundering laws.
19.5 The Supplier agrees that its books, records and all accounts shall accurately reflect any and all payments in respect of transactions of the Supplier whether under the Contract or otherwise, and Deltic (and Deltic’s authorised representatives) shall have the right to inspect and audit the Supplier’s books, records and accounts at any time on prior written notice.
19.6 If the Supplier discovers that it has or may have violated any of the provisions in this clause 19, the Supplier shall immediately notify Deltic and cooperate with any investigations by Deltic into such matters.
19.7 Without prejudice to the generality of clauses 19.1 to 19.6 inclusive, the Supplier covenants with Deltic to establish and at all times maintain and implement such anti-bribery policies and procedures as may be required to ensure that it prevents bribery or attempted bribery taking place on the Supplier’s behalf.
19.8 The Supplier agrees that in addition to Deltic’s termination rights set out elsewhere in the Contract, Deltic may immediately terminate the Contract in the event of a breach of this clause 19 by the Supplier.
19.9 Without prejudice to Deltic’s rights to be indemnified elsewhere under the Contract, Deltic shall not be required to make any payments to the Supplier that might otherwise be due from Deltic if such payments are related to a transaction in connection with which the Supplier has breached this clause 19.
20 MODERN SLAVERY
20.1 The Supplier agrees to comply with Deltic’s supplier code of conduct as amended from time to time.
20.2 The Supplier agrees to put in place policies and procedures to minimise the risks of modern slavery or human trafficking in Deltic’s supply chain, and to comply fully with any modern slavery, human trafficking or similar laws applicable to the Supplier.
21.1 The Supplier shall not assign, mortgage, charge, declare a trust over, transfer, sub-contract, delegate or in any other manner hand over to any third party the benefit and/or burden of the Contract without Deltic’s prior written consent.
21.2 Deltic may assign, novate or subcontract the Contract or any part of it to any third party.
22.1 If either party delays enforcing, or fails to enforce, their rights under these Conditions (including under any Order) it shall not affect their rights to do so at a later date.
22.2 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
23.1 Any notice or other document to be given under these Conditions shall be in writing and shall be deemed to have been duly given if sent by or delivered by:
23.1.1 first class post;
23.1.2 registered post;
to a party at its registered office for such party or such other address as a party may from time to time designate by written notice to the other.
23.2 Any notice or other document shall be deemed to have been received by the addressee two Business Days following the date of despatch of the notice or other document or, if sent by hand, the time at which the notice is left at the proper address. To prove the giving of a notice or other document it shall be sufficient to show that it was despatched.
23.3 Any notice served on Deltic shall be addressed for the attention of the Company Secretary.
24.1 The Supplier shall not advertise or make reference to its relationship with Deltic except by means of advertising material first approved in writing by Deltic.
25 DISPUTE RESOLUTION AND ESCALATION PROCEDURE
25.1 Any disputes arising in connection with the Contract that cannot be resolved will be referred to the finance directors of each party. If a dispute cannot be resolved within 10 Business Days of such referral then it shall be referred to the respective Chief Executive Officers (the “CEOs”) of Deltic and the Supplier. Should the CEO’s not be able to resolve the matter within 30 Business Days’ of such referral, the matter may be referred to the Centre for Dispute Resolution (“CEDR”). If the matter is referred to the CEDR, all negotiations connected with the dispute will be conducted in confidence and without prejudice to the rights of the parties in any further proceedings and if the parties reach agreement on the resolution of the dispute the agreement will be put in writing and once signed by the parties will be binding on them. The costs of any use of CEDR shall be borne equally between the parties. Should the CEDR not resolve the dispute to the satisfaction of both parties within 90 days of the dispute arising, then either party shall be entitled to resolve the matter through litigation.
25.2 This clause 25 is without prejudice to either party’s rights or remedies provided by law, under these Conditions or otherwise including the right to seek injunctive relief or otherwise commence legal proceedings at any time.
26.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. 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 the Contract.
27 FORCE MAJEURE
27.1 The Supplier shall not be liable for any failure in the performance of any of its obligations under these Conditions if such failure results from circumstances which could not have been reasonably foreseen and which are beyond the Supplier’s reasonable control, being acts of God, government actions, war within the United Kingdom, national emergency, riot, civil commotion, fire, explosion, flood or epidemic. Deltic reserves the right, at its sole option, to:
27.1.1 defer the date of delivery;
27.1.2 terminate the Contract or cancel the Order; or
27.1.3 reduce the volume of the Goods ordered.
28 THIRD PARTIES
28.1 A person who is not a party to the Contract shall not have any rights under or in connection with it under the Contracts (Right of Third Parties) Act 1999 or otherwise.
29.1 These Conditions shall not be amended, modified, varied or supplemented except as agreed in writing signed by duly authorised representatives of both parties.
30 GOVERNING LAW
30.1 These Conditions shall be governed and construed and have effect in all respects in accordance with the law of England and Wales.
30.2 The courts of England shall have exclusive jurisdiction over any proceedings arising out of or in connection with these Conditions.
31 NO PARTNERSHIP OR AGENCY
31.1 Nothing in the Contract is intended to, or shall operate to create a partnership between the parties or to authorise either party to act as an agent for the other.
DATA PROTECTION SCHEDULE
1.1 The following definitions and rules of interpretation apply in this Schedule.
“Authorised Person” means the persons specified in the Order as amended from time to time in accordance with this Schedule
“Business Purpose” has the meaning given to it in the Order
“Data” means the Data supplied by Deltic to the Processor pursuant to the Services. This can include personal data and any other data or information, in whatever form
“Privacy and Data Protection Requirements” means the Data Protection Act 2018 (“DPA”), and the General Data Protection Regulation 2016/679 (“GDPR”) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom of Great Britain and Northern Ireland from the European Union, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations which may be in force from time to time relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction
“Processor” means the Supplier
“Processor System” means any information technology system or systems owned or operated by the Processor to which Data is delivered or on which the Services are performed in accordance with this Schedule
“Security Breach” means (a) any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed and (b) which may include any breach relating to the Data which is likely to be sufficiently serious or substantial to justify notification to the Information Commissioner or other relevant supervisory authority in accordance with the Privacy and Data Protection Requirements or sufficiently serious or substantial to give rise to a material risk of litigation by third parties affected by the breach or a security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed
“Security Feature” means any security feature, including any key, PIN, password, token or smartcard
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 “Data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” shall bear the meanings given to those terms respectively in the DPA and the GDPR.
2. DATA PROCESSING
2.1 The Processor shall process the Data for the Business Purpose only and in compliance with Deltic’s documented instructions from time to time.
2.2 The parties agree that the subject matter, duration, nature and purpose of processing, the type of Data and the categories of data subject are set out in the Order.
2.3 The Processor shall not act on any instruction given by Deltic referred to in clause 1 unless they are:
2.3.1 in writing; and
2.3.2 given by an Authorised Person.
2.4 The Processor shall perform the Services in accordance with the Privacy and Data Protection Requirements.
3.1 The Processor shall keep at its normal place of business detailed, accurate and up-to-date records relating to the processing of the Data by the Processor and to the measures taken under clause 2.1, including the permissioning and control of the Data, and books of account (“Records”).
3.2 The Processor shall permit Deltic and its third-party representatives, on reasonable notice, but without notice in case of any reasonably suspected breach of any of the Processor’s obligations under this Schedule, to:
3.2.1 gain access to, and take copies of, the Records and any other information held at the Processor’s premises; and
3.2.2 inspect all Records, documents and electronic data and the Processor System and facilities and equipment,
for the purpose of auditing the Processor’s compliance with its obligations under this Schedule.
3.3 The Processor shall give all necessary assistance to the conduct of such audits during the Term.
4. SECURITY AND PASSWORDS
4.1 The Processor shall ensure that the Data is kept secure by using the Security Features and in an encrypted form, and shall use all reasonable security practices and systems applicable to the use of the Data, including those set out in the Order and/or elsewhere in the Contract, to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data.
4.2 If the Processor:
4.2.1 becomes aware of any unauthorised or unlawful processing of any Data or that any Data is lost or destroyed or has become damaged, corrupted or unusable;
4.2.2 becomes aware of an actual, potential or threatened Security Breach relating to the Data; or
4.2.3 learns or suspects that any Security Feature has been revealed to or obtained by any unauthorised person,
(each a “Security Event”)
then the Processor shall, at its own expense, within 24 hours of becoming aware of the Security Event or any breach relating to the Data, notify Deltic and shall supply Deltic with a sufficient amount of information to allow Deltic to submit a report to its national supervisory authority as required by Article 33 of the GDPR (Notification of a personal data breach to the supervisory authority) and, if necessary, to notify the affected data subjects in accordance with Article 34 of the GDPR (Communication of a personal data security breach to the data subject). Where Deltic requires further support and information from the Processor regarding a data security breach, the Processor will comply with its obligations in clause 5.2.6 as soon as possible and in good time before the end of the 72 hour reporting period and/or the time period in which the Processor intends to notify the affected data subjects.
4.3 The Processor shall, at its own expense, fully co-operate with Deltic to remedy the issue as soon as reasonably practicable.
4.4 The Processor shall use its best endeavours, and take reasonable precautions, to preserve the integrity of any Data processed by it and to prevent any corruption or loss of such Data.
4.5 The parties shall agree a back-up procedure that shall require them to back-up Data and in any event the Processor shall make a back-up copy of the Data every week and record the copy on media from which the Data can be reloaded in the event of any corruption or loss of the Data.
4.6 The Processor shall not make a report to its national supervisory authority regarding a data security breach pertaining to the Data without Deltic’s prior written authorisation.
5. PROCESSOR’S OBLIGATIONS
5.1 The Processor shall:
5.1.1 only make copies of the Data to the extent reasonably necessary for the Business Purpose (which, for clarity, includes back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing of the Data);
5.1.2 not extract, re-utilise, use, exploit, redistribute, re-disseminate, copy or store the Data other than as strictly necessary for the Business Purpose;
5.1.3 not do anything that may materially damage the reputation of Deltic; and
5.1.4 take reasonable steps to ensure the reliability of all its employees who have access to the Data.
5.2 For the purposes of Article 28 of the GDPR (Processor) the Processor agrees, warrants and represents that:
5.2.1 it shall not engage another processor without the prior specific or general written authorisation of Deltic;
5.2.2 all persons authorised to process the Data have entered into a binding contractual agreement with the Processor to ensure that the Data remains confidential at all times;
5.2.3 it shall, taking into account the nature of the processing, assist Deltic by taking appropriate technical and organisational measures, in so far as this is possible, for the fulfilment of Deltic’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR;
5.2.4 it shall assist Deltic in ensuring compliance with the obligations pursuant to Articles 32 (Security of processing) to Article 36 (Prior consultation) of the GDPR taking into account the nature of processing and the information available to the Processor;
5.2.5 at the option of Deltic, it shall delete or return all of the Data to Deltic after the end of the Term, and shall delete existing copies unless any provision of the Privacy and Data Protection Requirements requires storage of the Data; and
5.2.6 it shall make available to Deltic all information necessary to demonstrate compliance with the obligations laid down in this clause 5 and allow for and contribute to audits, including inspections, conducted by Deltic or another auditor mandated by Deltic.
6. RIGHTS OF THE DATA SUBJECT
6.1 The Processor shall notify Deltic within 48 hours if it receives a request from a data subject or the data subject’s representative or adviser for access to the data subject’s Data.
6.2 The Processor shall provide Deltic with full co-operation and assistance in relation to any request made by a data subject to have access to that person’s Data.
6.3 The Processor shall not disclose the Data to any data subject or to a third party other than at the request of Deltic or as provided for in this Schedule.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Processor acknowledges that:
7.1.1 all Intellectual Property Rights in the Data are and will remain the property of Deltic or its licensors, as the case may be; and
7.1.2 it shall have no rights in or to the Data other than the right to use it for the Business Purpose in accordance with this Schedule.
8. DATA PROTECTION WARRANTIES
8.1 Each party warrants to the other that it will process the Data in compliance with the Privacy and Data Protection Requirements.
8.2 Without prejudice to clause 2, the Processor warrants and represents that:
8.2.1 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, it will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including as appropriate:
188.8.131.52 the pseudonymisation and encryption of the Data;
184.108.40.206 the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and Services;
220.127.116.11 the ability to restore the availability and access to the Data in a timely manner in the event of a physical or technical incident; and
18.104.22.168 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
8.2.2 the Services shall:
22.214.171.124 be performed in accordance with all applicable laws and regulations in force from time to time;
126.96.36.199 conform to any specification or description provided by Deltic;
8.2.3 it will discharge its obligations under this Schedule with all due skill, care and diligence;
8.2.4 it will have in place procedures to ensure that any third party that it has authorised to have access to the Data, including any processor, respects and maintains the confidentiality and security of the Data;
8.2.5 it has the legal authority to give the warranties and fulfil the undertakings set out in this Schedule on the part of the Processor;
8.2.6 it has financial resources sufficient to fulfil its responsibilities under this Schedule;
8.2.7 it has the full capacity and authority and all necessary permissions, licences and consents necessary to enter into, and perform its obligations under, this Schedule;
8.2.8 access to or use of the Data in accordance with this Schedule will not infringe any Intellectual Property Rights of any third party or any applicable rules of any competent authority;
8.2.9 it will use its best efforts to prevent the Services from being infected with any Virus; and
8.2.10 it shall not transfer the Data outside the European Economic Area without the prior written consent of Deltic.
8.3 Except as expressly stated in this Schedule, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
9. DIVISION OF RISK
9.1 Neither party excludes or limits liability to the other party for:
9.1.1 fraud or fraudulent misrepresentation;
9.1.2 death or personal injury caused by negligence;
9.1.3 a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
9.1.4 any claims, liabilities, costs, expenses, damages or losses suffered or incurred in relation to the indemnity in clause 2; or
9.1.5 any matter for which it would be unlawful for the parties to exclude liability.
9.2 The Processor shall indemnify Deltic against all claims, liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Deltic arising out of or in connection with the processing of the Data under this Schedule and the Contract (“Claims”). For clarity, Claims shall include any claim or action claiming that the provision, receipt or use of the Data (wholly or in part) infringes any Intellectual Property Right of a third party.
10. EFFECT OF TERMINATION
10.1 Any provision of this Schedule that expressly or by implication is intended to come into or continue in force on or after termination of this Schedule shall remain in full force and effect.
10.2 On any termination of the Contract for any reason or expiry of the Term the Processor shall:
10.2.1 unless notified otherwise by Deltic or required by law, immediately cease all processing of the Data;
10.2.2 as soon as reasonably practicable return or destroy (as directed in writing by Deltic) all Data, information, software, and other materials provided to it by Deltic in connection with this Schedule including all materials containing or based on Deltic Confidential Information delivered up to the date of termination;
10.2.3 if Deltic elects for destruction rather than return of the materials under clause 2.1, the Processor shall as soon as reasonably practicable ensure that all Data is deleted from the Processor System; and
10.2.4 if Deltic elects for return rather than destruction of the materials under clause 2.1 and the Processor receives, no later than 28 days after the effective date of the termination or expiry of this Schedule, a written request for the delivery to Deltic of the most recent back-up of the Data, the Processor shall use reasonable commercial efforts to fulfil such request within 7 days of its receipt. If Deltic makes no such election within that 28-day period, the Processor may destroy or otherwise dispose of any of the Data in its possession.
10.3 The Processor shall provide written confirmation of compliance with clause 2.3 or clause 10.2.4 (as the case may be) in the form of a letter signed by the Processor’s authorised representative no later than 14 days after termination of this Schedule.
10.4 If the Processor is required by any law, regulation, or government or regulatory body to retain any documents or materials that it would otherwise be required to return or destroy under clause 2, it shall notify Deltic in writing of that retention, giving details of the documents or materials that it must retain.
11.1 The Processor may not sub-contract the performance of any obligation to which it is subject pursuant to this Schedule without acting in accordance with the provisions of this clause 11.
11.2 The Processor shall notify Deltic of the identity of any proposed sub-contractor and provide written evidence that the proposed sub-contractor is capable of complying with all the obligations of the Processor set out in this Schedule following which Deltic shall either approve or reject the appointment of such sub-contractor.
11.3 If Deltic rejects such appointment under clause 2, the Processor shall not sub-contract any of its obligations under this Schedule to such proposed sub-contractor. If Deltic approves the appointment of such sub-contractor under that clause, then before such appointment takes effect, the Processor shall enter into and maintain for the duration of such appointment a written agreement, a copy of which shall be provided to Deltic before it is entered into, with such sub-contractor on terms that are the same as those set out in this Schedule save that such agreement shall prohibit the sub-contractor from sub-contracting its obligations under such sub-contractor agreement to any third party.
11.4 The Processor shall be responsible for any acts, defaults, or negligent acts of any sub-contractor appointed pursuant to this clause 11, its employees and agents in the execution of the Services or any part thereof as if they were the acts, defaults or neglects of the Processor. Any sub-contracting permitted by Deltic shall not relieve the Processor from its obligations under this Schedule.
11.5 The Processor shall procure that the agreement with a sub-contractor appointed pursuant to this clause 11 shall terminate automatically on termination of this Schedule.
11.6 The Processor shall ensure that the same data protection obligations as set out in clauses 2, 5 and 8 shall be imposed upon that other processor and any other sub-processor which may be appointed.