This EMVCo License Agreement (“Agreement”) is a contract between EMVCo, LLC (“EMVCo”) and the company or organization on whose behalf you register on the emvco.com website (“Site”) to obtain a license to use Licensed Mark (as defined below) under this Agreement (as specified in your registration information submitted on the Site) (“Licensee”). You agree to the following Agreement on behalf of Licensee. You represent and warrant that you are an authorized representative of Licensee with authority to bind Licensee to this Agreement. EMVCo and Licensee are each referred to as a “Party” and collectively as the “Parties.”
EMVCo may amend this Agreement from time to time upon sixty (60) days’ prior written notice to Licensee. If Licensee does not agree to such an amendment, Licensee must terminate this Agreement and cease use of the Licensed Mark before such amendment becomes effective. Licensee’s failure to terminate this Agreement before such amendment becomes effective, or Licensee’s continued use of the Licensed Mark after such amendment becomes effective, will constitute Licensee’s acceptance of such amendment.
A. EMVCo owns or has rights in the mark set forth in Schedule 1 (“Licensed Mark”).
B.Licensee owns or operates certain EMV chip-enabled payment card acceptance devices that are able to accept and process contact transactions of EMV chip payment cards inserted into such devices (such as chip-enabled automated teller machines or point-of-sale terminals) and desires to display the Licensed Mark on such devices in order to highlight to consumers that the devices are enabled to accept and process contact transactions of such EMV chip payment cards.
C.EMVCo desires to make the Licensed Mark freely available for use by Licensee on EMV chip-enabled devices in the manner described in this Agreement.
NOW, THEREFORE, the Parties agree as follows:
“Authorized Purpose” means the purpose set forth in Schedule 1 for which each Licensed Mark may be used by Licensee under this Agreement, as each such purpose may be amended or updated by EMVCo from time to time in accordance with Section 3.
“Authorized Sublicensee” means an affiliate of Licensee or other third party that manufactures, configures or customizes an Enabled Terminal for Licensee.
“EMV Chip-Enabled” means that a card acceptance device both (a) accepts the physical insertion of and reads (via contact) chip-based payment cards that are compliant with the EMV Specifications issued by EMVCo, and (b) is configured and fully enabled to process EMV chip transactions with such cards.
“Enabled Terminal” means a card acceptance device owned or operated by Licensee that is EMV Chip-Enabled, which may include, by way of example, an automated teller machine that accepts deposits and/or dispenses cash, a point-of-sale terminal that initiates payment card transaction authorizations, and other devices as may be specified in the Reproduction Standards.
“Licensed Mark” has the meaning set forth in the Recitals.
“Reproduction Standards” means EMVCo’s reproduction standards and specifications for use of the Licensed Mark, the current version of which is available on the Site, as such standards and specifications may be amended or updated by EMVCo from time to time in accordance with Section 3.
“Site” means the Internet website of EMVCo, currently located at www.emvco.com.
2.1 Grant of License
Subject to the terms and conditions of this Agreement, EMVCo hereby grants to Licensee a nonexclusive, royalty-free, nontransferable license to use the Licensed Mark during the term of this Agreement on Enabled Terminals for the Authorized Purpose in accordance with the Reproduction Standards (“License”).
2.2 Right to Sublicense
Licensee may sublicense the rights granted to Licensee in the License to an Authorized Sublicensee pursuant to a written sublicense agreement in which:
(a) the Authorized Sublicensee agrees to be subject to and comply with this Agreement and that EMVCo may enforce its rights under this Agreement directly against such Authorized Sublicensee in the event of the Authorized Sublicensee’s breach of this Agreement;
(b) further sublicensing by the Authorized Sublicensee is prohibited; and
(c) the sublicense does not exceed the scope of the license granted to Licensee under this Agreement.
Licensee will ensure that its Authorized Sublicensees comply with the terms of this Agreement. Promptly upon EMVCo’s request, Licensee will provide a list identifying all Authorized Sublicensees to which Licensee has granted a sublicense under this Section. Licensee will provide to EMVCo such additional information about such sublicenses as EMVCo may reasonably request in connection with maintaining or enforcing EMVCo’s rights in the Licensed Mark or under this Agreement. Licensee and any Authorized Sublicensees will not use the Licensed Mark in any manner or for any purpose other than as set forth in the foregoing license.
2.3 Termination of License
If an Enabled Terminal ceases to be EMV Chip-Enabled, the License will terminate automatically, without notice, with respect to such Enabled Terminal. Further, EMVCo may terminate the License with respect to one or more jurisdictions or Enabled Terminals upon fourteen (14) days’ prior written notice to Licensee in the event EMVCo believes the use of the Licensed Mark in such jurisdictions or on such Enabled Terminals, or EMVCo’s licensing of such use under this Agreement, may (a) infringe the intellectual property rights of a third party, (b) violate applicable law, or (c) otherwise subject EMVCo, Licensee, an Authorized Sublicensee or a third party to liability; provided that, notwithstanding such notice period, Licensee will continue to be fully responsible for all liability that may arise from the use of the Licensed Mark.
During and after the term of this Agreement, Licensee and its Authorized Sublicensees will not do any of the following:
(a) use the Licensed Mark on a terminal or other device at any time that the terminal or other device is not EMV Chip-Enabled;
(b) use the Licensed Mark in any manner or in any jurisdiction that may result in a third party claim against Licensee, an Authorized Sublicensee, or EMVCo;
(c) challenge or take any other action that could have the effect of invalidating or diluting EMVCo’s trademark or other rights in the Licensed Mark or any registration or registration application for the Licensed Mark;
(d) register or attempt to register the Licensed Mark;
(e) register, attempt to register, or use in connection with EMV technology any mark, name, logo, design or other designation which may be confusingly similar to or may dilute the distinctiveness of the Licensed Mark (including, by way of example, use of the Licensed Mark or a confusingly similar mark as part of Licensee’s or an Authorized Sublicensee’s own company, organization, product or service name or mark);
(f) use or permit others to use the Licensed Mark or any confusingly similar mark or design in any manner, except as expressly permitted under this Agreement;
(g) impair or destroy the value of the Licensed Mark or the goodwill of business associated with the Licensed Mark,
(h) distort, alter or modify the Licensed Mark (including, by way of example, by combining the Licensed Mark with other designs, images, words, letters, symbols or marks); or
(i) otherwise fail to comply with the Reproduction Standards.
3. Changes to Authorized Uses and Reproduction Standards
EMVCo may modify or replace the Authorized Uses or Reproduction Standards at any time by giving written notice to Licensee, which notice may be given by email, posting the revised version of the Authorized Uses or Reproduction Standards on the Site, and/or other means. Such changes will become effective thirty (30) days after the date such notice is sent to Licensee or posted on the Site (or upon such later date as may be specified in the notice).
4. Quality and Compliance
Upon reasonable notice from EMVCo, Licensee will cooperate as reasonably requested by EMVCo to demonstrate that Licensee and its Authorized Sublicensees are using the Licensed Mark in accordance with this Agreement. If Licensee or an Authorized Sublicensee learns of any potential infringement of EMVCo’s rights in the Licensed Mark or any misuse of the Licensed Mark, Licensee or the Authorized Sublicensee will promptly notify EMVCo in writing. EMVCo will have the exclusive right to protect and enforce its rights in the Licensed Mark, including without limitation, sending infringement notices and bringing infringement actions. If requested by EMVCo to do so, Licensee and the Authorized Sublicensees will reasonably cooperate with and assist EMVCo, at EMVCo’s expense (except for Licensee’s costs in ensuring its Authorized Sublicensees’ proper use of the Licensed Mark, which will be Licensee’s responsibility), regarding any such actions, including, in the case of any infringement or similar action, joining or intervening in the action as a party, if necessary. Licensee and its Authorized Sublicensees will not institute any suit or take any other action against a third party alleging misuse or unauthorized use of the Licensed Mark, use of marks confusingly similar to the Licensed Mark, or other matters concerning the Licensed Mark.
5. Third Party Rules
Licensee’s and its Authorized Sublicensees’ use of the Licensed Mark is subject to the rules, requirements, and other terms and conditions set forth by any payment system, interbank network, payment processor, or other third party that are applicable to Enabled Terminals (“Third Party Rules”). This agreement does not supersede any such Third Party Rules or authorize any use of the Licensed Mark on Enabled Terminals in violation of such Third Party Rules.
6. Intellectual Property Rights
Except for the limited rights granted in this Agreement, EMVCo reserves all right, title and interest in and to the Licensed Mark. All goodwill arising out of Licensee’s and its Authorized Sublicensees’ use of the Licensed Mark will inure solely to the benefit of EMVCo. Licensee, at EMVCo’s cost (except for Licensee’s costs in ensuring its Authorized Sublicensees’ proper use of the Licensed Mark, which will be Licensee’s responsibility), will cooperate with EMVCo as reasonably necessary to protect any of EMVCo’s rights in the Licensed Mark and to facilitate EMVCo’s registration and maintenance of the registrations of Licensed Mark in any jurisdictions in which the Licensed Mark is used by Licensee in connection with Enabled Terminals, and such cooperation will include but not be limited to executing all documents reasonably required by EMVCo and supplying EMVCo with samples of use and other materials reasonably required by EMVCo.
Licensee will indemnify, defend and hold harmless EMVCo and its affiliates (including EMVCo’s members), and each of their officers, directors, employees and agents (collectively, the “EMVCo Parties”), from and against all claims, damages, costs, losses, liabilities and expenses (including reasonable attorneys’ fees) incurred in connection with any third party suit, claim, or action arising out of or related to (a) Enabled Terminals or (b) breach of this Agreement by Licensee (including any Authorized Sublicensee), except to the extent arising from the EMVCo Parties’ negligence, willful misconduct, or breach of this Agreement. Licensee will not settle any indemnified claim without EMVCo’s prior written consent, which will not be unreasonably withheld or delayed.
THE LICENSED MARK IS PROVIDED ON AN “AS IS,” “WHERE IS” BASIS, “WITH ALL FAULTS” KNOWN AND UNKNOWN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMVCO DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE LICENSED MARK OR OTHER MATTERS UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
LICENSEE ASSUMES FULL RESPONSIBILITY TO VERIFY THAT ITS USE OF THE LICENSED MARK (WHETHER OR NOT IN ACCORDANCE WITH THIS AGREEMENT) COMPLIES WITH APPLICABLE LAW AND DOES NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitation of Liability
IN NO EVENT WILL ANY OF THE EMVCO PARTIES 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 LICENSEE OR AN AUTHORIZED SUBLICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EMVCO PARTIES’ AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED TEN UNITED STATES DOLLARS ($10.00). WITHOUT LIMITING THE FOREGOING, EMVCO WILL HAVE NO LIABILITY OF ANY NATURE FOR ANY TERMINATION OF THIS AGREEMENT OR OF THE LICENSE.
10. Term and Termination
The term of this Agreement will continue until terminated in accordance with this Agreement.
10.2 Termination without Cause
Licensee may terminate this Agreement without cause upon seven (7) days’ prior written notice of termination to EMVCo. EMVCo may terminate this Agreement without cause upon six (6) months’ prior written notice of termination to Licensee.
10.3 Termination for Cause
EMVCo may terminate this Agreement for cause upon fourteen (14) days’ prior written notice to Licensee of a breach of this Agreement involving the misuse or unauthorized use of the Licensed Mark by Licensee or any Authorized Sublicensee, provided such breach is not reasonably cured within such fourteen (14) day period; provided that, notwithstanding such notice period, Licensee will continue to be fully responsible for all liability that may arise from the use of the Licensed Mark. Further, either Party may terminate this Agreement for cause (a) upon thirty (30) days’ prior written notice to the other Party of a material breach of this Agreement by Licensee or any Authorized Sublicensee, provided such breach is not reasonably cured within such thirty (30) day period; or (b) immediately upon written notice to the other Party if such 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.
Upon termination of this Agreement for any reason (a) the License and all sublicenses granted pursuant to this Agreement will terminate and (b) Sections 2.4, 6, 7, 8, 9, 10 and 11 will survive.
11. General Provisions
11.1 Entire Agreement; Amendments and Waiver
This Agreement constitutes the entire agreement and understanding between EMVCo and Licensee, and supersedes all prior written and oral agreements between the Parties regarding the subject matter described herein. EMVCo may amend this Agreement from time to time, and such amendments will be binding on Licensee, as set forth in the introduction to this Agreement. Otherwise, no modification or waiver of this Agreement shall be binding on EMVCo unless it is in writing and agreed to by EMVCo. No delay or failure of EMVCo to exercise any right or remedy shall operate as a waiver thereof.
11.2 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.
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.
Except as otherwise permitted in this Agreement, any notices required or permitted by this Agreement will be in writing and will be delivered as follows, with notice deemed given as indicated: (i) by electronic mail, (ii) by personal delivery when delivered personally, (iii) by overnight courier upon written verification of receipt, (iv) by certified or registered mail, return receipt requested, upon verification of receipt, or (v) by a facsimile transmission with electronic confirmation of receipt. All notices to Licensee will be sent using the contact information specified in Licensee’s registration information. All notices to EMVCo will be sent using the following contact information (or such other contact information as EMVCo may specify to Participant in writing):
c/o Visa Holdings Inc.
901 Metro Center Boulevard
Foster City, California 94404
Attn: Legal Department
If any provision of this Agreement or portion thereof should be declared invalid for any reason, the invalid provision or portion thereof will be deemed omitted and the remaining terms will nevertheless be carried into effect.
11.6 Governing Law; Jurisdiction
This Agreement will be interpreted, construed and enforced in accordance with the laws of the State of Delaware, USA, 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.
11.7 EMVCo’s Remedies
Licensee acknowledges that its failure to comply with the terms of this Agreement may result in immediate and irreparable damage to EMVCo. Therefore, in the event of Licensee’s breach or threatened breach of this Agreement, EMVCo may seek equitable relief by way of temporary and permanent injunction and such other further relief as any court with jurisdiction may deem just and proper, in addition to any other rights and remedies to which EMVCo may be entitled under this Agreement, by law, in equity or otherwise.
11.8 Attorneys’ Fees
In the event of a dispute between the Parties arising under this Agreement, the non-prevailing Party will 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.