Subscription Terms & Conditions

· the Fees payable by the Client;

· the nature, complexity and type of advice being sought by the Client.

· Exceptions: if any of the circumstances in item 4.2 applies to that request.

· Any Uncontrollable Circumstance applies at the time; and

· That Uncontrollable Circumstance reasonably prevents HY from providing the Services.

In relation to increases which are (in aggregate) no more than 5% in a calendar year:

· The consent of the Client to the increase is not required.

· The increase takes effect immediately after HY has communicated the increase to the Client, in writing.

In relation to all other increases not described above:

· The written agreement of the Client to the increase is required.

· The increase shall not take effect until that agreement of the Client has been given.

All such rights of the parties (whether arising in law, equity or otherwise) are waived to the fullest extent permitted by Law.

· In connection with a Subscription
· Whether arising in tort, contract or otherwise
· Regardless of which of them is the debtor or creditor

Exceptions: to the extent otherwise:

· Clearly indicated in these T&Cs (e.g. in any licence); or

· Agreed in writing between the Client and HY.

· Non-exclusive

· Royalty free

· Permitted use: only for lawful activities and for purposes which are genuinely connected with HY meeting its obligations in connection with a Subscription held by the Client.

· Right of HY to sublicense or assign the benefit of this licence

– It may do so (without requiring the Client’s consent) to its genuine direct and indirect subcontractors for use for the above purposes.

– Any other sub-licence or any assignment requires the prior written consent of the Client, at its discretion.

· Any background Intellectual Property of HY (and/or its third party contractors, licensors or the like) on which that Arising Intellectual Property depends.

· If relevant Intellectual Property belongs to HY’s third party contractors, licensors or the like: HY shall use reasonable endeavours at its own cost to obtain a licence on these terms from that person.

· Otherwise: immediately on the creation, development (or the like) of the relevant Arising Intellectual Property.

· Solely to allow the Client and its Affiliates to properly enjoy the benefit of the Services.

· This includes uses sufficiently connected with genuine research, teaching and/or inclusion in academic publications, but only where relevant to the genuine activities of the licensee.

· For unlawful activities; and/or

· For any activities which (on a reasonable view) compete with HY according to its business activities at the time when the arising Intellectual Property was created, developed or the like; and/or

· For activities which bring (or which create an unreasonable risk of bringing) significant, unjustified and unfavourable publicity to HY and/or its Affiliates; and/or

· For activities which damage the goodwill attaching to the licensed Intellectual Property.

If the Client’s Affiliate uses that Intellectual Property in breach of the above, the onus shall lie with the Client to prove that use was not done with assistance of the Client, or under the Client’s instructions.

· It is outside HY’s reasonable control; and

· It genuinely prevents HY from carrying out its obligations in relation to the Subscription.

· To the Client; and

· In writing where reasonably possible.

· To any person with rights under the Subscription

· For failing to carry out any of its obligations in connection with the Subscription

· To the extent HY’s failure to carry out that obligation is caused by the relevant Uncontrollable Circumstance.

· The relevant Services have been suspended due to any Uncontrollable Circumstance for more than 60 continuous days.

· The Services are still suspended at the time the notice described in item 20.2 is given.

See section 20 for details.

· But only to the extent the Fees have been uniquely determined by HY for the purposes of the Subscription (e.g. they are not set by the Client, they are not publicly-available etc.).

· Exception: as a result of any breach of a duty of confidentiality owed by the Recipient under these T&Cs.

· Exception: where the Recipient knows or has reasonable grounds to suspect that the third party is in breach of confidentiality obligations owed to the Discloser and/or its Affiliate.

· 3 years from the date on which HY ceases to be obliged to provide any Services whatsoever under these T&Cs; or

· Such longer period required by Law in relation to that piece of Confidential Information.

· Must keep that Confidential Information strictly in confidence, and

· Must not disclose it or make it available to third parties.

· Without limiting the above, the Recipient must not use that Confidential Information to conduct any venture (whether for profit or otherwise) independently of the Discloser.

· To a reasonable standard of security.

· In any case, not to a lower standard of security the Recipient uses to store its own information of comparable confidentiality.

· If any Personnel of the Recipient or those of its Affiliate or (if the Recipient is HY) any subcontractor directly or indirectly appointed by the Recipient does anything in breach of the rest of this item 11.6, the onus shall lie with the Recipient to prove it was not done at the direction of, or with the assistance of the Recipient.

· The Recipient’s genuine existing or prospective Personnel, advisers, contractors, consultants, agents, insurers, funders, shareholders or other investors, or purchasers of the business of, and/or shares in, the Recipient, auditors and banks.

· Any public body authorised to review these T&Cs, the Client is a public body.

· Any person to whom the Recipient wishes to make a genuine novation and/or assignment of any part of these T&Cs.

· Relevant third parties engaged for the purpose of resolving disputes under section 28.

These disclosures are subject to item 11.8.

· These disclosures are subject to item 11.9.

· Strictly on a ‘need to know’ basis.

· But only if requested to do so by the Discloser, acting reasonably and proportionately in the circumstances.

· With sufficient detail and accuracy and

· Promptly on becoming aware of the obligation to make the compelled disclosure.

· The Discloser must reimburse the Recipient for the Recipient’s reasonable and sufficiently evidenced costs in providing that assistance.

· With the written permission of the Client (not to be unreasonably withheld where HY has reasonable safeguards in place).

· As reasonably necessary to provide the Services.

· As reasonably necessary to enable HY or the Client to comply with the Law.

· Which is relevant to its (or its subcontractor’s) compliance with those measures, including manuals, procedures, protocols, and training.

· Communicate the matter to the Representative of the Client in 5 Business Days from receiving the communication (or such earlier deadline required by Law, if any).

· Provide the Client with reasonable cooperation in relation to the response of the Client. This is subject to the Client reimbursing HY for its reasonable and sufficiently evidenced costs in providing that cooperation.

· In doing so, HY must give the Client copies of the relevant request, complaint or other communication.

· HY must do so by relevant deadlines according to relevant Law.

· Legitimately connected with the relevant Services; and/or

· To enable HY and/or its subcontractors to meet their respective obligations under the Law according to such processing.

· HY’s obligations under this item 12.10 are subject to the Client paying HY a reasonable additional administration fee if requested in writing by HY.

· All other such warranties and representations shall be excluded to the fullest extent permitted by Law.

– By any individual to whom any part of the relevant Client Personal Data relates

– But only to the extent that individual alleges that he/she did not give necessary consents to allow his/her personal data to be processed by HY in the manner and for purposes required in connection with the Services.

· HY and its subcontractors have no right or interest in relation to the Client Personal Data except as indicated in these T&Cs.

· This applies even if HY is no longer providing the Services under the Subscription.

· The reason: HY has only been given an opportunity to tailor the advice for the specific needs of the Client.

· This applies regardless of whether those Fees had accrued or been paid at the time the liability first arose.

· By any person other than HY or a person acting on HY’s behalf; and

· Without HY’s clear written consent.

· Unlawfully except to the extent HY has expressly advised (or it can be reasonably inferred that it has advised) that such use is lawful; and/or

· In a manner that is materially inconsistent with any advice or guidance given by or on behalf of HY at any time; and/or

· In a manner that a reasonable person would not expect it to be used or relied upon.

· A party shall be regarded as having deliberately acted or failed to act where that act as done (or failed to be done) where there is reasonable evidence that the act was done (or not done) under the instruction of that party’s Representative and/or any other member of its senior management.

· Regardless of whether the liability arises in tort, contract, under statute or otherwise.

· Any cap on X’s liability is to be aggregated between

– The liability X owes to the other party; and

– The liability X owes any third party in connection with a relevant Subscription.

· Are partly caused by the fault of Y and/or anyone acting on Y’s behalf (whether in tort, contract, under statute or otherwise); and

· Are partly due to other factors (including X’s own acts and failures to act),

Then the liability of Y to X for compensation or the like shall be reduced fairly and proportionately to reflect the extent to which Y’s act or failure to act contributed to causing X’s losses.

The minimum amount of notice to be given (unless the parties otherwise agree in writing):

If the Client terminates: 6 months’ notice.

If HY terminates: 1 month’s notice.

· Strictly according to section 30.

· If a Cancellation Default Event applies to the other party: the notice must set out in reasonable detail the relevant Cancellation Default Event.

· On a reasonable view, that Material Breach is not capable of being remedied by HY.

· HY is in Material Breach of the terms of the Subscription.

· On a reasonable view the Material Breach is capable of being remedied by HY.

· For as long as HY has still not remedied the Material Breach

– To the reasonable satisfaction of the Client

– At HY’s own cost

– More than 30 days after the Client has requested HY to do so

– The Client must have issued its request by notice given strictly according to section 30.

· The Client shall not unreasonably refuse consent to a written request by HY to an extension of the above deadline if there are delays to HY remedying the Material Breach which are significantly due to factors outside the reasonable control of HY.

· Exception: in relation to a genuine solvent reconstruction where

– The replacement entity agrees in writing to become legally bound to the obligations of HY under the Subscription.

– The replacement entity accepts in writing liability for the liabilities of HY in connection with the Subscription.

– The replacement entity (and/or any third party guarantor it wishes to propose at the time) has at least equivalent financial standing as that which HY had at the date of these T&Cs.

– The replacement entity has the same underlying majority controlling ownership as HY.

· If the Client gives that notice 30 days or less after that proposal, the proposed amendment shall not apply to the Subscription during the relevant notice period.

· The parties agree that this consideration is sufficient.

· Exception: any continuing obligations to do so under these T&Cs in relation to any existing instructions.

· Exception: any continuing obligations to do so under these T&Cs in relation to any existing instructions.

· Which are connected with the Subscription; and

· Which occurred on or before the date on which the circumstances described in item 25.1 first arose.

· These are excluded from the terms of the relevant Subscription.

· That party’s liability in relation to any of these is excluded.

· Any partnership between the parties.

· Any relationship of principal and agent authorising one party to do anything (e.g. incur liabilities or obligations, make statements) on behalf of the other party (unless clearly indicated or reasonably implied in these T&Cs).

· Any employment relationship (or the like) between a party and/or its Affiliates and the Personnel of the other party and/or that other party’s separate contractors and/or Affiliates.

· The Disputing Parties shall bear their own costs in doing so.

· To novate the terms of that Subscription
· That party must not do so without the prior written consent of the other party.

· That consent must not be unreasonably withheld,

· Communications described in these T&Cs as ‘notices’.

· Other communications described in these T&Cs as being subject to this section 30.

The formalities in this section 30 are not required in relation to other communications between the parties in relation to a particular Subscription.

· This does not prevent use of e-mail for less formal communications between the parties.

· It is in writing.

· It is clearly indicated to be a waiver of the relevant right or power.

· It is properly authorised by that party.

· A waiver of that right or power on one occasion does not (except to the extent otherwise indicated in that waiver) in itself constitute a waiver of the same right or power on a later occasion, and does not affect any other right or power.

· Such removal or alteration shall be to the minimum extent necessary to allow the provision to be held to be valid and enforceable, having regard to the purpose of the relevant provision.

· The remaining provisions shall remain in full force and effect.

· For this purpose, a person (‘X’) will be regarded as having control over another person (‘Y’) if X alone (and without being subject to the further direction of any other person) directly or indirectly possesses the power (whether by the direct or indirect holding of voting shares or otherwise) to direct the management and policies of Y on all matters.

· In relation to the Client: each event or circumstance described in section 22.

· Any statute, regulation or other subordinate legislation.

· Any directive or other European instrument (to the extent it is binding on the party)

· Any treaty

· Any judgement, rule of common law or equity

· Any order of a competent court, tribunal, arbitrator or the like of any of these

· Any permit, permission (e.g. planning permission) consent, licence, statutory agreement and authorisation (or the like of any of these) required by Law and affecting the relevant person and its activities in connection with the Subscription from time to time.

· Any guidance or the like issued by authorised government bodies (whether legally binding or not)

· Anything else imposed by any governmental body (in its capacity as such) having a legally binding effect on the respective activities of any party in connection with the Subscription from time to time.

· Exception: to the extent any of these are capped or excluded in these T&Cs.

· Which has significant (and not trivial) consequences for the Client.

· Any individual genuinely appointed or otherwise engaged by that firm or other organisation as an officer, employee, worker, consultant, trustee, governor, member of any partnership, agent, intern, seconded person, volunteer, adviser or contractor (or the like of any of these).

· In relation to HY: any individual genuinely appointed or otherwise engaged in any of the capacities described above by a subcontractor which is directly or indirectly appointed by HY in connection with the Subscription. This includes any such subcontractor which is a human being operating as a sole trader.

· Where the relevant individual is absent from time to time: any other individual deputising for him/her, as decided by the relevant party.

· Where the position is vacant from time to time: the Escalated Person of the relevant.

· Cross-references these T&Cs.

· When agreed by the Client and HY, evidences the relevant Subscription between them.

As amended from time to time according to section 24 of these T&Cs.

It includes reference to that party’s successors in title and permitted assignees.

· Where consent, approval, permission or the like of a person is to be at that person’s discretion, that person

– Shall not be obliged to respond to a request for it; and

– Shall not be obliged to give reasons for its decision (including any decision not to respond); and

– Excludes (to the fullest extent permitted by Law) that person’s liability to any person for any reason given for that decision (including any decision not to respond).

· It does not include communication by telephone text messages or communication via a social media site (or the like of any of these).

· Use of the abbreviation ‘etc.’ at the end of a list to illustrate a particular concept does not limit that concept in any way.

· Reference to the singular includes the plural and vice versa

· Reference to any particular type of body, firm or other entity includes reference to any other type of body, firm or other entity.