Last Updated: May 1, 2015
This is a contract for a subscription (“Subscription”) to use the EMVCo subscription service between EMVCo, LLC and the company or organization (“Organization”) on whose behalf you register for or use the Subscription (as specified in your Subscription account registration information on the EMVCo website at www.emvco.com (“Site”)). You agree to the following Subscription Agreement on behalf of your Organization. You represent and warrant that you are an authorized representative of your Organization with authority to bind your Organization to this Subscription Agreement.
EMVCo, LLC (“EMVCo”) reserves the right to modify or replace this Subscription Agreement at any time and in EMVCo’s sole discretion by sending notice of changes to the email and/or mailing address you specify in your Registration Data (defined below). Any changes will be effective ten (10) days after EMVCo’s notice to you of such changes (or such later effective date as may be specified in the notice). EMVCo also will indicate at the top of this Subscription Agreement posted on the Site the date such document was last updated. If your Organization does not agree to the changes, your Organization should cancel your Subscription as provided below. In addition, EMVCo may provide other methods by which your Organization may accept or receive notice of this Subscription Agreement or changes to this Subscription Agreement.
The Subscription enables one or more individual representatives (each, a “Subscriber”) of your Organization to access certain Subscriber Documents (defined below) and other features of the Site and participate in certain user group or vendor meetings or other activities on behalf of your Organization (such Subscriber Documents and other Site features and meetings or other activities, collectively, “Subscriber Services”). Your Organization may register for the Subscription solely for its employees, and not for the benefit of any third party. EMVCo reserves the right to refuse registration for or refuse or limit access to the Subscription to anyone in its sole discretion.
EMVCo offers the following types of Subscriptions:
Your Organization agrees to provide accurate, current and complete information about the Subscriber on any and all registration forms on the Site or in connection with the Subscription (“Registration Data”) and to maintain the security of the Subscriber’s username and password. Your Organization agrees to maintain and promptly update the Registration Data, and any other information provided to EMVCo, to keep it accurate, current and complete. YOUR ORGANIZATION UNDERSTANDS THAT ANY PERSON WITH THE SUBSCRIBER’S USERNAME AND PASSWORD WILL BE ABLE TO ACCESS AND USE THE SUBSCRIBER’S ACCOUNT. YOUR ORGANIZATION ACCEPTS ALL RISKS OF UNAUTHORIZED ACCESS TO AND USE OF THE SUBSCRIBER ACCOUNT BY MEANS OF THE SUBSCRIBER’S USER NAME AND PASSWORD. Your Organization will promptly notify EMVCo if it discovers or otherwise suspects compromise of such user name or password or any other security breaches related to the Site.
3. Use of Subscription Account
Your Organization is fully responsible for the acts and omissions of the Subscriber in connection with the Site and the Subscriber Services. Your Organization’s use of the Subscription is subject to the following conditions: (a) the Subscriber must be a current employee of the Organization at all times during his or her Subscription; (b) in the event the Subscriber’s employment with the Organization is terminated, your Organization shall immediately remove his or her access to the Subscriber account; and (c) employees of your Organization shall not share any Subscription.
4. Fees for Subscription
Your Organization agrees to pay to EMVCo the then-current annual or other periodic fees for the Subscription (“Subscriber Fees”). All Subscriber Fees must be prepaid and are nonrefundable. Except as otherwise stated on the Site, all sales transactions on the Site (including payment of any meeting registration fees and purchase of other Subscription-related services) are governed by EMVCo’s Terms of Sale and are not included in a Subscription.
5. Copyright and Limited License to Subscriber Documents
All email messages sent by EMVCo to your Organization (including to the Subscriber), the Site and all materials on the Site, including without limitation any EMVCo and third party logos and all specifications, requirements and other documents, videos, text, graphics, pictures, information and other content (collectively, “Site Materials”), are the proprietary property of EMVCo or its licensors. Your Organization is granted a limited, nonexclusive license (without the right to sublicense) to download and reproduce the Site Material documents that are specifically made available on the Site only to subscribers (“Subscriber Documents”), provided that (i) any copyright notices on each page of Subscriber Document reproductions are reproduced in full, (ii) your Organization agrees to comply with all such notices, and (iii) Individual Subscribers may not share copies of Subscriber Documents except to other Individual Subscribers (if any) within your Organization. Such license is subject to this Subscription Agreement and excludes: (a) any resale of the Subscriber Documents; (b) any distribution, public performance or public display of any Subscriber Documents, (c) modifying or otherwise making any derivative uses of the Subscriber Documents; (d) use of any data mining, robots or similar data gathering or extraction, automated account registration, or account utilization methods; or (e) downloading (other than the page caching) of any portion of the Subscriber Documents (except as provided above) or any information contained therein. Notwithstanding the foregoing, the Subscriber Documents may be subject to a separate agreement you may have with EMVCo or to supplemental terms and conditions that are included in or accompany Subscriber Documents, in which case you agree that such separate agreement or supplemental terms and conditions will apply to your use of the Subscriber Documents. The foregoing license will terminate upon the termination of this Subscription Agreement. Any use of the Subscriber Documents other than as specifically authorized herein (or in such separate agreement or supplemental terms and conditions) is strictly prohibited and will terminate the foregoing license.
During the term of this Subscription Agreement and perpetually thereafter, your Organization will protect any Subscriber Documents and Submissions (defined below) relating to Subscriber Documents from any unauthorized use, disclosure, copying, dissemination or distribution. Without limitation of the foregoing, your Organization will: (a) if you are an Individual Subscriber, make the Subscriber Documents available only to yourself and to other Individual Subscribers of your Organization, and not to any other employees of your Organization; (b) subject to the foregoing clause (a), make the Subscriber Documents and such Submissions available only to those of your Organization’s employees who have a need to know the same, who have been informed that the Subscriber Documents and such Submissions are subject to this Subscription Agreement, and who have agreed or are otherwise obligated to comply with this Subscription Agreement; (b) not disclose the Subscriber Documents or such Submissions to any third party; (c) print or copy the Subscriber Documents or such Submissions only as reasonably required for use by your Organization’s employees; (d) not deliver, distribute, display, demonstrate or otherwise make available the Subscriber Documents or such Submissions to any third party except as provided in clause (a) above; and (e) not remove or obliterate markings (if any) on Subscriber Documents indicating their proprietary or confidential nature. Notwithstanding the foregoing, your Organization may disclose or produce Subscriber Documents or such Submissions if and to the extent required by any discovery request, subpoena, court order or governmental action, provided that your Organization 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. Your Organization will promptly destroy all copies of Subscriber Documents or such Submissions upon the earlier of EMVCo’s request or when they are no longer needed. Upon EMVCo’s request, your Organization 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.
As used in this Subscription Agreement, the term “Submissions” means any idea, method, concept, invention, suggestion, design, technology, information, process, formula, software, technique, drawings, data, know how, or other item or material which is provided by your Organization (including the Subscriber or any other employee, agent or representative of your Organization) to EMVCo regarding the Site, Site Materials (including without limitation any EMV® Specifications (defined below)), other documents and materials of EMVCo, any EMVCo-related technologies and approval processes, or other offerings of EMVCo or its affiliates (collectively, “EMVCo Materials”) in the form of email, through a web form on the Site, or through other written communications between your Organization and EMVCo (including in user group or vendor meetings and other forums). Except as otherwise may be set forth in a separate meeting participation or submissions agreement that your Organization may enter with EMVCo, the following terms shall apply to your Organization’s Submissions. Your Organization agrees to grant, and hereby grants, to EMVCo a perpetual, worldwide, nonexclusive, royalty-free, fully sublicensable and irrevocable license to all intellectual property and proprietary rights in any Submissions to (a) make, have made, use, sell, offer for sale, and import integrated circuit cards, terminals, applications, test tools, systems, services and other items that practice, in whole or in part, the EMV® Specifications, and (b) use, reproduce, distribute, prepare derivative works of, publicly perform or display, and otherwise fully exploit any Submissions and any intellectual property and proprietary rights therein. Further, your Organization agrees to waive and forego asserting any moral rights it may have in the Submissions. By submitting a Submission to EMVCo, your Organization represents and warrants that it has authority to provide such Submission to EMVCo and grant the rights to the Submission granted herein, and that doing so does not and will not constitute the infringement or misappropriation of the trade secrets or other confidential information of any third party. Your Organization agrees to execute such documents and otherwise provide such reasonable assistance, and to cause its affiliates to execute and provide such assistance, as is necessary to give full force and effect to this paragraph. As used herein, “EMV® Specifications” means any and all existing and future specifications developed or issued by or on behalf of EMVCo, all technical bulletins to such specifications, and any related requirements documents, process documents, guidelines, and related materials. EMV® Specifications are included in the definition of Site Materials.
8. Disclosure and Use of Subscription Account and Related Information
Although it is not EMVCo’s preference to provide governmental authorities with access to Subscriber information, your Organization acknowledges that EMVCo may be required to do so from time to time. As such, your Organization authorizes EMVCo to deliver or furnish any information about the Subscription (including usage information and Registration Data), access to the Subscription account (including any data stored in such account), and such other information in connection with your Organization’s use of the Subscription, to such governmental authorities as may order or demand the same, with or without notice to your Organization.
Your Organization will defend and indemnify EMVCo, its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents (“EMVCo Parties”), from and against all claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to your Organization’s use of, or inability to use, the Subscription, any Subscriber Services, or Subscriber Documents.
THE SUBSCRIPTION AND ALL SUBSCRIBER SERVICES AND SITE MATERIALS (INCLUDING SUBSCRIBER DOCUMENTS AND EMV® SPECIFICATIONS) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. EMVCO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AS TO THE SUBSCRIPTION, SUBSCRIBER SERVICES AND SITE MATERIALS.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY OF THE EMVCO PARTIES BE LIABLE TO YOUR ORGANIZATION OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS), WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SUBSCRIPTION, SUBSCRIBER SERVICES (INCLUDING IN CONNECTION WITH ANY USER GROUP OR VENDOR MEETINGS), OR ANY SITE MATERIALS, EVEN IF AN EMVCO PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EMVCO PARTIES (WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE SUBSCRIPTION, SUBSCRIBER SERVICES, OR ANY SITE MATERIALS (INCLUDING SUBSCRIBER DOCUMENTS AND EMV® SPECIFICATIONS) EXCEED THE AMOUNT YOUR ORGANIZATION PAID FOR SUBSCRIBER FEES THE DURING THE YEAR BEFORE THE CAUSE OF ACTION AROSE.
12. Applicable Law and Venue
This Subscription Agreement and your Organization’s use of the Subscription, Subscriber Services and the Site Materials shall be governed by and construed in accordance with the laws of the State of Delaware without resort to its conflict of law provisions. Your Organization agrees that any action at law or in equity arising out of or relating to the Subscription, Subscriber Services and the Site Materials or this Subscription Agreement shall be filed only in the state or federal courts located in Delaware, and your Organization hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of or relating to the same.
13. Term and Termination; Subscription Cancellation; Modification of Subscriber Services
14. Export Laws; Use by U.S. Government
The Site Materials, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Your Organization agrees to comply strictly with all such regulations and acknowledges that your Organization has the responsibility to obtain licenses to export, re-export, or import the Site Materials. The Site Materials may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders.
Use, duplication or disclosure by the United States government is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software Clauses in DFARS 252.227-7013(c) (1) (ii) and FAR 52.227-19(a) through (d) as applicable.
15. Assignment of Subscription Agreement; Transfer of Subscriptions
This Subscription Agreement may not be assigned by your Organization without the prior written approval of EMVCo. Your Organization may transfer the Subscription from one Individual Subscriber or Company Subscriber (as applicable) to another employee of the Organization at any time, provided that your Organization furnishes to EMVCo all applicable Registration Data for the new Subscriber immediately upon such transfer. EMVCo may freely assign this Subscription Agreement.
If you have any questions about EMVCo or Subscriptions, please contact us by submitting a Public Comment (for non-subscribers) at http://www.emvco.com/PublicComments.aspx or a Query (for subscribers) at http://www.emvco.com/subscriber/QueryAdd.aspx.