EMVCo Associates Programme Participation Agreement

EMVCO ASSOCIATES PROGRAMME PARTICIPATION AGREEMENT

(Business Associates and Technical Associates)

Last Updated: 9 July, 2014

This EMVCo Associates Programme Participation Agreement ("Agreement") is a contract between EMVCo, LLC ("EMVCo") and the company or organization ("Participant") on whose behalf you register to participate in the EMVCo Associates Programme as a Business Associate or Technical Associate (as specified in your Associate registration information on the EMVCo website at http://www.emvco.com/Subscriber/signup.aspx ("Site")). You agree to the following Agreement on behalf of Participant. You represent and warrant that you are an authorized representative of Participant with authority to bind Participant to this Agreement. EMVCo and Participant are each referred to as a "Party," and collectively, as the "Parties."

RECITALS

A. EMVCo has developed standards for certain integrated circuit cards, terminals, applications and other products and processes referred to herein as the EMV Specifications (defined below).

B. EMVCo has established the EMVCo Associates Programme so that business associates ("Business Associates") can provide input to and receive information from EMVCo on strategic business and implementation issues, and technical associates ("Technical Associates") can provide input to and receive information from EMVCo on technical and operations issues associated with the EMV Specifications.

C. Participant seeks to participate in the EMVCo Associates Programme as a Business Associate and/or a Technical Associate (each, an "Associate"), as specified in Participant's registration information.

D. To help encourage the adoption of EMVCo’s specifications in the industry, EMVCo requires Associates, their affiliates and (as applicable) certain related entities to grant certain rights to allow for noninfringing implementation of EMVCo’s specifications and use of submissions that Associates provide to EMVCo in writing.

NOW, THEREFORE, in consideration of the mutual covenants of the Parties, each to the other, and of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. Definitions

"Acquisition Event" means a merger, reorganization, stock or asset sale, or similar transaction of Participant or its Affiliate that would result in the Necessary IP of an Acquisition Party to be licensed to EMVCo under Section 4.1(a).

"Acquisition Party" means a Person that is neither an Affiliate of Participant nor a Related Person immediately prior to an Acquisition Event.

"Affiliate" means, with respect to any Person, another Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. The direct or indirect ownership of at least fifty percent (50%) of the voting securities of an entity or of an interest in the assets, profits or earnings of a Person shall be deemed to be constitute "control" of the Person.

"Assertion" means any action, claim, suit or proceeding of any nature for infringement of Intellectual Property with respect to integrated circuit cards, terminals, applications, test tools, systems, services or other items to the extent that they practice the EMV Specifications.

"Benefits" means the benefits and opportunities provided by EMVCo to Business Associates or Technical Associates, as applicable, as Participants in the EMVCo Associates Programme, as such benefits and opportunities may be modified, expanded, or cancelled by EMVCo from time to time.

"Document Under Review" means a Submission or Draft EMV Specifications.

"Draft EMV Specifications" means any and all draft EMV Specifications or draft amendments to such EMV Specifications issued by EMVCo before or during the Term, including any related requirements documents, process documents, guidelines and related materials issued by EMVCo as drafts before or during the Term.

"Eligibility Requirements" means the requirements established by EMVCo for a company or organization to be eligible to be a Business Associate or Technical Associate, as may be modified by EMVCo from time to time.

"EMV Specifications" means any and all specifications, technical bulletins to such specifications, and related requirements documents, process documents, guidelines, and related materials, in each case, that are adopted by EMVCo before or during the Term and are not designated as drafts.

"EMVCo Board of Advisors" means the advisory board established by EMVCo and comprised of payment card issuers and acquirers and other payment card industry stakeholders, to which EMVCo provides guidance and information and/or from which EMVCo receives recommendations, suggestions, requests or input regarding various aspects of the payment card industry and the EMV Specifications.

"Intellectual Property" means (i) copyrights and copyright applications, including any renewals, in either the United States or any other country; (ii) trademarks, service marks, trade names and applications or registrations for any of the foregoing in the United States or any other country; (iii) trade secrets or any data or information which provides value or a competitive advantage to its holder by not being publicly known; (iv) Patents; and (v) all other intellectual property rights and the rights or forms of protection of a similar nature or having equivalent or similar effect to any of these rights which may subsist anywhere in the world (whether or not any of these rights is registered and including, without limitation, applications for registration of, and rights to apply for, any such rights).

"Involved Participant Shareholder" means, if Participant is a corporation, partnership or joint venture (or other incorporated or unincorporated entity owned by other Persons) that is privately held, a Person who, directly or indirectly, is (i) a shareholder, partner or other equity owner of Participant, other than an Affiliate, and (ii) involved in the EMVCo Associates Programme through Participant’s participation in the EMVCo Associates Programme (such as, by way of example, by attending EMVCo Associates Programme meetings, sending Submissions to EMVCo, or directing Participant’s activities in the EMVCo Associates Programme, whether or not as a delegate or other authorized representative of Participant). By way of example, if Participant is a privately held corporation, then Involved Participant Shareholder excludes shareholders who have no involvement in EMVCo Associates Programme-related activities. It is possible for a Participant to have both Involved Participant Shareholders and Participant Members.

"Necessary Intellectual Property" means any Patent that would be necessarily infringed by an entity implementing the mandatory or optional requirements of the EMV Specifications. A Patent is "necessarily infringed" only where there is no commercially reasonable non-infringing alternative for implementing the mandatory or optional requirements of the EMV Specifications. Necessary Intellectual Property does not include: (i) any claims of a Patent that are not necessarily infringed even if contained in the same Patent including claims that are necessarily infringed; (ii) a Patent that would be infringed only by enabling technologies that may be necessary to make or use any product, process or portion thereof that complies with the EMV Specifications, but are not themselves expressly set forth in the EMV Specifications; or (iii) a Patent that would be infringed only by the implementation of technology not developed under the auspices of EMVCo or contributed to EMVCo, which is merely incorporated by reference into the EMV Specifications.

"Necessary Document IP" means, with respect to a Document Under Review, any Patent of Participant and its Affiliates and Related Persons that would be Necessary Intellectual Property if the Document Under Review is incorporated into or otherwise adopted as EMV Specifications.

"Participant Member" means, if Participant is a nonprofit organization, membership organization or trade or industry association (or a similar alliance, group, initiative, or organization), a Person who, directly or indirectly, is (i) a member, associate or similar participant of the Participant, other than an Affiliate and (ii) involved in the EMVCo Associates Programme through Participant’s participation in the EMVCo Associates Programme (such as, by way of example, by attending EMVCo Associates Programme meetings, sending Submissions to EMVCo, or directing Participant’s activities in the EMVCo Associates Programme, whether or not as a delegate or other authorized representative of Participant). By way of example, if Participant is a member-based association that represents an industry, then Participant Member excludes any of such organization's members who have no involvement in EMVCo Associates Programme-related activities as well as non-members whose interests the Participant also claims to represent. It is possible for a Participant to have both Participant Members and Involved Participant Shareholders.

"Participant Representative" means a Person, other than an Affiliate, who participates in the EMVCo Associates Programme as a delegate or other authorized representative of Participant.

"Participation Fee" means the fees established by EMVCo which Business Associates or Technical Associates, as applicable, are obligated to pay to EMVCo to participate in the EMVCo Associates Programme, as such fees may be revised by EMVCo from time to time.

"Participation Requirements" means the obligations established by EMVCo that Business Associates or Technical Associates, as applicable, are required to fulfill as participants in the EMVCo Associates Programme, as such obligations may be modified, expanded, or cancelled by EMVCo from time to time.

"Patent" means patents, patent applications, continuations, divisionals, reexaminations, reissues, continuations-in-part, and foreign equivalents of the foregoing, in the United States or any other country.

"Patent Call" means a written notice issued by EMVCo to Participant (i) stating EMVCo’s intent to consider a Submission of Participant for incorporation into Draft EMV Specifications and/or to adopt Draft EMV Specifications as EMV Specifications and (ii) requesting Participant’s submission of a completed Patent Response Form regarding such Document Under Review.

"Patent Response Form" means a form provided by EMVCo to Participant in which Participant may (i) disclose either Necessary Document IP or Necessary IP of an Acquisition Party and (ii) except with respect to Submissions, elect not to grant the license in Section 4.1(a) with respect to some or all Necessary Document IP or Necessary IP of an Acquisition Party, as described in Section 4.1(a).

"Person" means a natural person, partnership, corporation, association or other legal entity.

"Policy and Procedures Document" means the most recent version of the EMVCo Associates Programme Policy and Procedures document, including all amendments as adopted by EMVCo from time to time and made available on the Site. The current version of the Policy and Procedures Document is available on the Site.

"Related Person" means an Involved Participant Shareholder, Participant Member or Participant Representative.

"Submission" means any idea, method, concept, invention, suggestion, design, technology, information, process, formula, software, technique, document, text, drawing, data, know how, or other item or material which is provided during the Term by or on behalf of Participant, an Affiliate of Participant, or a Related Person of Participant to EMVCo in written form regarding the EMV Specifications, the Draft EMV Specifications, other documents and materials of EMVCo, any EMVCo-related technologies and approval processes, or other offerings of EMVCo or its members. For the avoidance of doubt, oral communications alone, including in any meetings, conference calls, or other live forums, are excluded from the definition of "Submissions."

2. Participation

2.1 Registration

Registration on the Site is required for participation in the EMVCo Associates Programme as a Business Associate, Technical Associate or both. Participant shall provide accurate, current and complete information about Participant on any and all registration forms on the Site or otherwise in connection with the EMVCo Associates Programme ("Registration Data"). Further, Participant shall maintain and promptly update the Registration Data to keep it accurate, current and complete.

2.2 Eligibility Requirements

Participant represents and warrants that at all times throughout the Term, Participant satisfies and will satisfy all then-current Eligibility Requirements applicable to Participant as a Business Associate or as a Technical Associate. The Eligibility Requirements are described in the Policy and Procedures Document, and may be amended by EMVCo at any time in its sole discretion by giving written notice to Participant, which notice may be given by posting the revised version of the Policy and Procedures Document on the Site and/or by other means.

2.3 Participation Requirements; Participant Fee At all times throughout the Term, Participant will fulfill all then-current Participation Requirements applicable to Participant as a Business Associate, a Technical Associate or both. The Participation Requirements are described in the Policy and Procedures Document, and may be amended by EMVCo at any time in its sole discretion by written notice to Participant, which notice may be given by posting the revised version of the Policy and Procedures Document on the Site and/or by other means. Participant will pay promptly all applicable Participant Fees in accordance with the payment terms set forth in the Policy and Procedures Document. The Participation Fee and payment terms for Business Associates and Technical Associates are described in the Policy and Procedures Document, and (subject to Participant’s rights under Section 3.2(e)) may be amended by EMVCo at any time in EMVCo's sole discretion by written notice to Participant, which notice may be given by posting the revised version of the Policy and Procedures Document on the Site and/or by other means, with such changes to the Participant Fee or payment terms effective upon the commencement of the next Renewal Term following such notice.

2.4 Benefits

Subject to Participant's ongoing satisfaction of the Eligibility Requirements and fulfillment of the Participation Requirements (including payment of the Participation Fee), EMVCo will make available to Participant the then-current Benefits applicable to Participant as a Business Associate, Technical Associate or both. The Benefits as of the date of this Agreement are described in the Policy and Procedures Document, and may be amended by EMVCo at any time in its sole discretion by giving written notice to Participant, which notice may be given by posting the revised version of the Policy and Procedures Document on the Site and/or by other means.

2.5 Policy and Procedures

Participant's execution of this Agreement constitutes its approval and acceptance of the terms and conditions of the Policy and Procedures Document, and Participant will comply with such terms and conditions in the Policy and Procedures Document, as they may be amended by EMVCo at any time in its sole discretion by written notice to Participant, which notice may be given by posting the revised version of the Policy and Procedures Document on the Site and/or by other means.

2.6 Changes to Programme

Participant acknowledges and agrees that the existence, structure, organization, composition, eligibility and participation requirements, benefits, fees and all other aspects of the Business Associates, Technical Associates and EMVCo Board of Advisors will be determined at EMVCo's sole discretion and are subject to change at any time. Without limiting the foregoing, nothing in this Agreement shall be construed as a guarantee that Participant will have a seat on the Board of Advisors, and EMVCo may revoke Participant's seat on the Board of Advisors at any time and for any reason EMVCo may deem reasonable, such as to limit the total size of Board of Advisors, make adjustments to effect geographic or industry diversity, or otherwise.

2.7 Disclosure of Participation

During the Term, EMVCo may use Participant’s name and logo on EMVCo’s website and other public-facing materials for purposes of identifying participants in the EMVCo Associates Programme. If Participant provides a particular logo to be used by EMVCo, then EMVCo will use only such logo. Any other use of the Participant’s name or logo in connection with the EMVCo Associates Programme is subject to Participant’s prior written approval. EMVCo may also disclose contact details of Participant’s representative(s) registered with EMVCo to other Associates, including without limitation within the Associates section of the EMVCo website. Participant may use EMVCo’s name and logo on Participant’s website and other public-facing materials for purposes of indicating that Participant is participating in the EMVCo Associates Programme. If EMVCo provides a particular logo to be used by Participant, then Participant will use only such logo. Any other use of the EMVCo’s name or logo in connection with the EMVCo Associates Programme is subject to EMVCo’s prior written approval. Without limiting the foregoing, Participant may not use the EMVCo name or logo in combination with any statements or in any other manner suggesting or implying that EMVCo endorses or prefers Participant, or that any product or service of Participant has been tested or approved.

3. Term and Termination

3.1 Term

The initial term of this Agreement will commence on the date Participant registers for the EMVCo Associates Programme and will terminate upon the end (i.e., December 31) of the same calendar year ("Initial Term"). Thereafter, this Agreement will automatically renew for successive calendar year terms unless either Party gives notice of nonrenewal to the other Party at least thirty (30) days before the end of the then-current term (each, a "Renewal Term," and the Initial Term and all Renewal Terms, collectively, the "Term").

3.2 Termination

This Agreement may be terminated as follows:

(a) by either Party, at any time and without cause, effective upon thirty (30) days' prior written notice to the other Party, provided that in the case of EMVCo's termination without cause, Participant will be entitled to a prorated refund of the Participation Fee paid by Participant (i.e., for the period of time commencing on the effective date of termination through the remainder of the then-current year), and in the case of Participant's termination without cause, Participant will not be entitled to any refund of any Participation Fee;

(b) by either Party for breach of any covenant, representation or warranty of the other Party under this Agreement, effective upon thirty (30) days' prior written notice to such other Party, provided the breaching Party has not cured the breach before the effective date of termination, and provided further that in the case of Participant's termination of the Agreement for EMVCo's breach, Participant will be entitled to a prorated refund of the Participation Fee paid by Participant (i.e., for the period of time commencing on the date of Participant’s notice of termination through the remainder of the then-current year);

(c) by either Party if the other Party (i) becomes insolvent or unable to pay its debts as they become due, (ii) becomes a debtor in bankruptcy proceedings, (iii) operates under a receivership or makes an assignment for the benefit of its creditors, or (iv) institutes proceedings for its winding-up, liquidation or dissolution or otherwise generally ceases to do business;

(d) by EMVCo, at any time effective immediately upon written notice to Participant, in the event Participant fails to satisfy the Eligibility Requirements; provided that in the case of termination under this paragraph (d) due to a failure to satisfy a change in the Eligibility Requirements, Participant will be entitled to a prorated refund of the Participation Fee paid by Participant (i.e., for the period of time commencing on the effective date of termination through the remainder of the then-current year); or

(e) by Participant, effective upon ten (10) days' prior written notice to EMVCo, in the event that EMVCo (i) changes the Eligibility Requirements or Participation Requirements, Participant is unable or unwilling to comply with such changes, and Participant's written notice of termination is received by EMVCo within thirty (30) days after such changes, (ii) makes a material reduction in the Benefits otherwise available to Participant, and Participant's written notice of termination is received by EMVCo within thirty (30) days after such reduction, or (iii) makes a change to the Policy and Procedures Document that has a material adverse impact on Participant, and Participant’s written notice of termination is received by EMVCo within thirty (30) days after such change; provided that in the case of termination under this paragraph (e), Participant will be entitled to a prorated refund of the Participation Fee paid by Participant (i.e., for the period of time commencing on the effective date of the changes or reduction through the remainder of the then-current year).

3.3 Effect of Termination

Upon termination of this Agreement for any reason, Participant will no longer receive any Benefits. Sections 3.2, 3.3 and 4 through 7 will survive termination or expiration of the term of this Agreement.

4. Intellectual Property

4.1 License Grant

(a) License to Implement Specifications. Participant agrees to grant, and hereby grants, to EMVCo a perpetual, worldwide, nonexclusive, royalty-free and irrevocable license to all current and future Necessary Intellectual Property of Participant and its Affiliates and Related Persons in the EMV Specifications to make, have made, use, sell, offer for sale, and import integrated circuit cards, terminals, applications, test tools, systems, services and other items to the extent that they practice the EMV Specifications, including the right to sublicense such rights (through multiple levels) to implementers of the EMV Specifications. However, the foregoing license is subject to the following:

(i) From time to time, EMVCo may issue Patent Calls. Within forty-five (45) days after EMVCo’s receipt of a Submission or issuance of draft EMV Specifications, or within forty-five (45) days after EMVCo’s issuance of a Patent Call (if any) regarding such Document Under Review, whichever is later (“Response Deadline”), Participant may (in its discretion) submit a completed Patent Response Form to EMVCo, signed by an authorized representative of Participant, that discloses Necessary Document IP regarding such Document Under Review. In a Patent Response Form regarding Draft EMV Specifications, Participant may elect not to grant the license in this Section 4.1(a) with respect to some or all Necessary Document IP (“Refused IP”). If a complete Patent Response Form specifies the Refused IP, explains why the Refused IP is Necessary Document IP (providing information as reasonably necessary for EMVCo to identify the relevant portions of the EMV Specifications), and is received by EMVCo by the Response Deadline, then such Refused IP will be excluded from the license in this Section 4.1(a) when the Draft EMV Specifications are adopted by EMVCo as EMV Specifications. However, if Participant delivers a Patent Response Form to EMVCo by the Response Deadline that does not meet the requirements of the preceding sentence, then EMVCo will notify Participant of such deficiency and provide Participant with an opportunity to correct such deficiency through the re-submission of a Patent Response Form within thirty (30) days of such notification. If Participant re-submits a corrected Patent Response Form within such thirty (30) day period that does meet such requirements, then the Refused IP specified in the corrected Patent Response Form will be excluded from the license in this Section 4.1(a); otherwise, EMVCo will notify Participant of the continued deficiency, and the Refused IP specified in Participant’s original or re-submitted Patent Response Form will not be excluded from the license in this Section 4.1(a).

(ii) If Participant gives notice of termination of this Agreement without cause under Section 3.2(a) within thirty (30) days after EMVCo adopts a new EMV Specification or change to an existing EMV Specification, and this Agreement is terminated thirty (30) days thereafter in accordance with Section 3.2(a), then the term “EMV Specifications” (solely as used in this Section 4.1(a)) will not include such new EMV Specification or change to an existing EMV Specification. For clarity, notwithstanding any such termination of this Agreement by Participant, the term “EMV Specifications” as used in Section 4.1(b) and elsewhere in this Agreement may include Participant’s Submissions made in accordance with Section 4.1(b).

(iii) Within ninety (90) days after an Acquisition Event (“Acquisition Notice Deadline”), Participant may (in its discretion) submit a completed Patent Response Form to EMVCo, signed by an authorized representative of Participant, that discloses Necessary IP of an Acquisition Party. In such Patent Response Form, Participant may elect not to grant the license in this Section 4.1(a) with respect to some or all such Necessary IP of an Acquisition Party (“Excluded IP”). If a complete Patent Response Form specifies the Excluded IP, explains why the Excluded IP is Necessary IP (providing information as reasonably necessary for EMVCo to identify the relevant portions of the EMV Specifications), and is received by EMVCo by the Acquisition Notice Deadline, then such Excluded IP will be excluded from the license in this Section 4.1(a). However, if Participant delivers a Patent Response Form to EMVCo by the Acquisition Notice Deadline that does not meet the requirements of the preceding sentence, then EMVCo will notify Participant of such deficiency and provide Participant with an opportunity to correct such deficiency through the re-submission of a Patent Response Form within thirty (30) days of such notification. If Participant re-submits a corrected Patent Response Form within such thirty (30) day period that does meet such requirements, then the Excluded IP specified in the corrected Patent Response Form will be excluded from the license in this Section 4.1(a); otherwise, EMVCo will notify Participant of the continued deficiency (“Excluded IP Notice”), and the Excluded IP specified in Participant’s original or re-submitted Patent Response Form will not be excluded from the license in this Section 4.1(a).

(iv) If Participant gives notice of termination of this Agreement without cause under Section 3.2(a) within ninety (90) days after an Acquisition Event (or, if Plaintiff attempts to exclude Excluded IP but receives an Excluded IP Notice, then within thirty (30) days after receipt of the Excluded IP Notice), and this Agreement is terminated thirty (30) days thereafter in accordance with Section 3.2(a), then the license in this Section 4.1(a) will not include Necessary IP of an Acquisition Party.

(v) If a third party (“Plaintiff”) brings an Assertion against Participant or any of its Affiliates or Related Persons, or against any of their respective customers regarding products or services of Participant or its Affiliates or Related Persons, then Participant may notify Plaintiff, with a copy provided to EMVCo, of Participant’s intent to terminate any sublicense received by Plaintiff or its Affiliates directly or indirectly from EMVCo pursuant to this Section 4.1(a) (“Plaintiff Sublicense”). If Plaintiff fails to withdraw or dismiss with prejudice the Assertion within fourteen (14) days after receipt of Participant’s notice, then the Plaintiff Sublicense and EMVCo’s right to grant a Plaintiff Sublicense will terminate. For clarity, termination of the Plaintiff Sublicense will not affect any other sublicenses that EMVCo grants in accordance with this Section 4.1(a) to Persons other than Plaintiff or its Affiliates, and EMVCo will have no obligation to notify Plaintiff or take any other action to effect or confirm the termination of the Plaintiff Sublicense. Upon or after the dismissal or termination of the Plaintiff’s Assertion with prejudice, EMVCo may reinstate the Plaintiff Sublicense.

(b) License to Submissions. Participant agrees to grant, and hereby grants, to EMVCo a perpetual, worldwide, nonexclusive, royalty-free and irrevocable license to (i) all current and future Necessary Intellectual Property of Participant and its Affiliates and Related Persons in each Submission to make, have made, use, sell, offer for sale, and import integrated circuit cards, terminals, applications, test tools, systems, services and other items to the extent that they practice the EMV Specifications, including the right to sublicense such rights (through multiple levels) to implementers of the EMV Specifications, and (ii) all Intellectual Property of Participant and its Affiliates and Related Persons in each Submission to reproduce, distribute, prepare derivative works of, publicly perform and publicly display the Submission, including the right to sublicense such rights (through multiple levels) to any third party. Further, Participant and its Affiliates and Related Persons agree to waive and forego asserting any moral rights they may have in the Submissions.

4.2 Confirmation of Rights Granted on Behalf of Affiliates and Related Persons

Notwithstanding Section 4.1, if Participant does not have sufficient rights to grant the licenses or waiver in Section 4.1 on behalf of its Affiliates or Related Persons, Participant shall cause such Affiliates or Related Persons to either (a) confirm to EMVCo in writing, signed by authorized representatives of such Affiliates or Related Persons, the licenses and waiver granted to EMVCo in Section 4.1, or (b) enter into a written agreement with EMVCo, signed by authorized representative of such Affiliates or Related Persons, granting licenses and a waiver to EMVCo consistent with the terms of Section 4.1; however, if Participant is unable to cause any of its Affiliates to perform the actions in the foregoing clause (a) or (b), despite Participant’s control of such Affiliates, such failure will not constitute a breach of this Agreement as long as Participant notifies EMVCo in writing of the identity of such Affiliates and continues to exercise reasonable efforts to cause such Affiliates to perform the actions in clause (a) or (b). Such written confirmation or agreement shall be in a form reasonably required by EMVCo.

4.3 EMVCo’s use of Submissions

Participant acknowledges and agrees that EMVCo has no obligation to incorporate any Submissions in the EMV Specifications or otherwise use any Submissions. Participant may not withdraw any Submission once made.

4.4 Further Assurances

Participant agrees to execute such documents and otherwise provide such reasonable assistance, and to cause its Affiliates and Related Persons to do the same, as is necessary to give full force and effect to the rights granted to EMVCo under this Section 4.

4.5 Participant Representations and Warranties

Participant represents and warrants that:

(i) all Submissions are either original to Participant or Participant has the rights to disclose the Submissions and to grant the rights in and to such Submissions and the licenses under Sections 4.1 and 4.2 that are granted herein on behalf of Participant and its Affiliates and Related Persons; and

(ii) it has the authority to bind its Affiliates and Related Persons to the obligations under this Section 4, subject to Section 4.2(b).

5. Confidentiality

5.1 Definition

"Confidential Information" means all trade secrets or other information of EMVCo or third parties that is not generally available to the public, whether of a technical, business or other nature, that is disclosed to Participant in connection Participant's participation in the EMVCo Associates Programme, whether in written or oral form, including any document, diskette, tape, writing or other tangible item that contains any Confidential Information, whether in printed, handwritten, coded, magnetic or other form and whether delivered by EMVCo or a third party or made by Participant. Confidential Information includes EMVCo's ownership structures or governing documents, EMVCo's books and records, submissions by other Associates and third parties, and information relating to EMVCo's technology, software, products, standards (including the EMV Specifications), services, designs, methodologies, business plans, finances, marketing plans, members, vendors, customers, prospects or other affairs. Confidential Information of EMVCo also includes any information that has been made available to Participant by EMVCo members or third parties or any of their agents in connection with this Agreement. Confidential Information does not include any information that: (a) is or was acquired by Participant from a third party and is unrelated to this Agreement; (b) is independently developed by Participant without reliance upon or use of any of the Confidential Information; or (c) is or has become generally publicly available through no fault or action of Participant or misconduct of a third party.

5.2 Use and Disclosure by Participant

During the Term and perpetually thereafter, Participant will use Confidential Information solely for purposes of its participation in the EMVCo Associates Programme, and will protect any Confidential Information from any unauthorized use, disclosure, copying, dissemination or distribution. Without limitation of the foregoing, Participant will: (a) make the Confidential Information available only to those of Participant's employees, agents and representatives who have a need to know the same, who have been informed that the Confidential Information is subject to this Agreement, and who have agreed or are otherwise obligated to comply with confidentiality obligations at least as protective as in this Agreement; (b) not disclose the Confidential Information to any other third party; (c) print or copy the Confidential Information only as reasonably required for use by Participant's employees, agents and representatives; (d) not deliver, distribute, display, demonstrate or otherwise make available the Confidential Information to any third party except as provided in clause (a) above; and (e) not remove or obliterate markings (if any) on Confidential Information indicating its proprietary or confidential nature. Notwithstanding the foregoing, Participant may disclose or produce Confidential Information if and to the extent required by any subpoena, court order or other governmental action, provided that Participant gives EMVCo reasonable advance notice of the same so as to afford EMVCo a reasonable opportunity to appear, object and obtain a protective order or other appropriate relief regarding such disclosure. Participant will promptly destroy all copies of Confidential Information upon the earlier of EMVCo's request or when they are no longer needed. Upon EMVCo's request, Participant will certify in writing its destruction of the same. In the event of any breach of this section, EMVCo may suffer irreparable harm and have no adequate remedy at law. In such event or the threat of any such event, EMVCo will be entitled (in addition to any and all other remedies) to injunctive relief, specific performance and other equitable remedies without proof of monetary damages or the inadequacy of other remedies, and without necessity of posting a bond or other security.

5.3 Disclosure by EMVCo

During the Term and thereafter, EMVCo will have no obligation of confidentiality with respect to Participant's participation in the EMVCo Associates Programme, including any comments, presentations, Submissions or otherwise, made by Participant pursuant to the terms of this Agreement. EMVCo will only be under obligations of confidentiality as to any such items if it executes a separate agreement requiring that such information be treated as confidential.

6. Disclaimer; Limitation on Liability

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EMV SPECIFICATIONS, SUBMISSIONS, EMVCO ASSOCIATES PROGRAMME, OR OTHER MATTERS UNDER THIS AGREEMENT, AND BOTH PARTIES EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF SECTION 5 OR PARTICIPANT'S REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED AN AMOUNT EQUAL TO THE PARTICIPATION FEE PAID BY PARTICIPANT TO EMVCO UNDER THIS AGREEMENT. FURTHER, EMVCO SHALL HAVE NO LIABILITY OF ANY NATURE FOR ANY TERMINATION OF THIS AGREEMENT OTHER THAN TO REFUND THE PRORATED PORTION OF THE PARTICIPATION FEE AS DESCRIBED IN SECTION 3.2.

7. General Provisions

7.1 Entire Agreement; Amendments and Waiver

This Agreement constitutes the entire agreement and understanding between EMVCo and Participant, and supersedes all prior written and oral agreements between the Parties regarding the subject matter described herein. Except as otherwise set forth herein, no modification or waiver of this Agreement shall be binding unless it is in writing and agreed to by both Parties , which may include, without limitation, agreement by email or through other writings. No delay or failure of EMVCo to exercise any right or remedy shall operate as a waiver thereof.

7.2 Relationship of Parties

Nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the Parties. Neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Each Party is an independent contractor to the other.

7.3 Assignment

Participant may not assign or transfer this Agreement, in whole or in part, without EMVCo's prior written consent. Any attempted assignment without such consent shall be void. Subject to the foregoing restriction on assignment, this Agreement will be binding on the Parties and their respective successors and assigns.

7.4 Notices

Except for notices which may be given by posting a revised version of the Policy and Procedures Document to the Site, as provided elsewhere in this Agreement, all notices, requests, demands and other communications hereunder will be in writing and will be deemed to have been duly given: (a) on the day received, if delivered to such party by electronic means (including facsimile transmission), by express courier, or by hand; or (b) on the date five (5) business days after mailing if mailed by registered or certified mail. All notices to Participant will be sent to the address specified in Participant's Registration Data. All notices to EMVCo will be sent to the following address or such other address as EMVCo may specify specifically to Participant in writing:

EMVCo, LLC

c/o Visa Holdings Inc.

901 Metro Center Boulevard

Foster City, California 94404

U.S.A.

Attn: Legal Department

Fax: +1-650-362-2334

Email: emvcolegal@emvco.com

7.5 Severability

If any provision of this Agreement or portion thereof should be declared invalid for any reason, the invalid provision or portion thereof shall be deemed omitted and the remaining terms shall nevertheless be carried into effect.

7.6 Attorneys' Fees

In the event of a dispute between the Parties regarding the enforcement or interpretation of any terms of this Agreement, the non-prevailing Party shall pay the reasonable costs and attorneys' fees of the prevailing Party, including the reasonable costs and attorneys' fees incurred in the appeal of any final or interlocutory judgment.

7.7 Governing Law; Jurisdiction

This Agreement will be interpreted, construed and enforced in accordance with the laws of the State of Delaware without regard to its choice of law principles to the contrary. Each party hereby irrevocably consents to the jurisdiction and venue of any state or federal court located in Delaware with regard to any legal or equitable action or proceeding relating to this Agreement.