THIRD PARTY LICENCE AGREEMENT IN RELATION TO CPACE SPECIFICATIONS
Welcome to European Card Payment Cooperation SC/CV, abbreviated “ECPC (“Licensor”). By accessing or using the ECPC website (“Site“) or any Site Materials, whether or not you obtained them via the Site, you agree to the following Licence Agreement on behalf of yourself individually and the company or organization for which you are using the Site or Site Materials (“Organization”). If you do not agree to the following Licence Agreement, do not use the Site Materials.
- Licensor is the owner of common specifications both for existing services (such as card specifications) and for the launch of innovative services (such as Mobile HCE), including reference documents, as set forth in Schedule 1 (the “CPACE Specifications“).
- Licensee wishes to obtain a licence to use the CPACE Specifications in order to develop card and mobile payment applications (the “CPACE Project“) and Licensor is willing to grant a licence to Licensee for the realisation of the CPACE Project, subject to the terms and conditions of this licence agreement (the “Agreement“).
It is agreed as follows:
1 Grant of licence
1.1 Subject to the terms and conditions of this Agreement, Licensor hereby, with effect from the Effective Date grants to Licensee a personal, non-transferable and non-exclusive licence to use the latest version of the CPACE Specifications available on the date of signature of this Agreement, and all underlying intellectual property rights therein, as well as all augmentations, modifications or improvements made thereto (“Improvement“) by the Licensor, for the development, manufacture, marketing and use of card, mobile and any other type of payment applications related to the CPACE Project in the entire world (the “Territory”), for the entire duration of the underlying intellectual property rights in the CPACE Specifications. For the avoidance of doubts, such licence to use the CPACE Specifications does not authorize the Licensee to bring any Improvement to the CPACE Specifications. For the purposes of this Agreement, “intellectual property rights” means, without limitation, present and future copyrights, neighboring rights, works of authorship, rights in software, algorithms, database rights, trade secrets, know-how, applications for registration, and the right to apply for registration, for any of the above rights and all other intellectual, industrial and/or other property rights and equivalent or similar forms of protection existing anywhere in the world.
1.2 Licensee shall have no right to sublicense to a third party or any of its associated companies the licences granted to it under this Agreement.
2 Licensee obligations
In addition to its obligations set out elsewhere in this Agreement, Licensee shall during the term of this Agreement following receipt of the CPACE Specifications from Licensor:
2.1 not do, cause or authorize to be done which will or may impair, damage or be detrimental to the reputation or goodwill associated with Licensor or the CPACE Project;
2.2 submit all proposed advertising copy and all other proposed promotional or marketing materials regarding the CPACE Specifications to Licensor for its written approval prior to publication
and not proceed with publication without such approval having first been obtained; and
2.3 indemnify Licensor from and against any and all claims, demands, losses, damages, liabilities and expenses (including legal expenses) which Licensor may suffer or incur as a result of or in connection with the breach of any term of this Agreement, negligence, fraud, willful default or breach of statutory duty, of or by the Licensee, its employees, agents or contractors.
3 No restrictions on Licensor
For the avoidance of doubt, Licensor shall notably be entitled, during the term of this Agreement:
- to exploit directly or indirectly the CPACE Specifications in the Territory;
- to develop and exploit new versions of the CPACE Specifications in the Territory; and
- to grant others the right to do so.
4 Disclosure and use of the CPACE Specifications
4.1 To the extent that Licensor has not already disclosed the CPACE Specifications to Licensee, Licensor shall thirty (30) days after the Effective Date, disclose to Licensee the CPACE Specifications and to this end shall provide Licensee with copies of all documentary records which record or otherwise relate to the CPACE Specifications and which are sufficient and are necessary to enable Licensee to fully exploit the licences under this Agreement.
4.2 Licensee acknowledges that the copyright in any documentation supplied by Licensor hereunder as part of the CPACE Specifications, and all copies thereof, shall belong to and remain vested in Licensor. Licensee shall be permitted to make only such copies of the CPACE Specifications and documentation as are necessary for Licensee’s exercise of the rights and licences granted to it under this Agreement. All proprietary notices incorporated in or affixed to the CPACE Specifications or other Licensor proprietary elements shall be duplicated by Licensee on all authorized copies, as applicable, and shall not be altered, removed or obliterated.
5 Licence fee
The licence is granted free of charge to the Licensee.
6.1 If during the term of this Agreement, Licensor devise, discover or acquire any rights in any Improvement it shall as soon as is reasonably practicable:
- a) disclose to Licensee the nature and means of making use of the Improvement, except to the extent that or for as long as:
- Licensor is precluded from doing so by law or any obligation owed by a third party; or
- the disclosure of the Improvement, or its use by Licensee would prejudice Licensor’s right to obtain patent protection for it; and
- b) grant to Licensee a right to use the Improvement in the Territory while this Agreement remains in force on the terms already agreed in respect of the CPACE Specifications.
6.2The Licensee does not acquire any right to develop any Improvement or right based on the CPACE Specifications under this Agreement. .
6.3 Information provided by Licensor under clause 6.1 above, shall, in particular, be subject to the provisions of clause 7.
7.1 For the purposes of this Agreement, “Confidential Information” means, in relation to any Party, information (whether in written, electronic or oral form) belonging or relating to that Party or its business, affairs, activities, products or services, including without limitation, in the case of Licensor, the CPACE Specifications, and any other information of a confidential nature concerning the CPACE Specifications, which information is proprietary and confidential to the disclosing Party.
7.2 Each of the Parties understands and acknowledges that, whether in the course of performance of this Agreement or otherwise, it will receive or become aware of Confidential Information of the other Party.
7.3 Each of the Parties undertakes to:
- maintain and procure the maintenance of the confidentiality of the other Party’s Confidential Information at all times;
- to keep and procure the keeping of all Confidential Information belonging to the other Party secure and protected against theft, damage, loss or unauthorised access; and
- not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other Party, directly or indirectly, to use or authorise or permit the use of any of the other Party’s Confidential Information other than as necessary for the sole purpose of the performance of its rights and obligations hereunder, or to disclose, exploit, copy or modify any of the other Party’s Confidential Information, or authorise or permit any third party to do the same.
7.4 Each of the Parties undertakes to protect the other Party’s Confidential Information in the same manner it protects the confidentiality of similar information and data of its own (and at all times exercising at least a reasonable degree of care) and to disclose the other Party’s Confidential Information only to those of its employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such employees, agents and contractors are made aware of and agree in writing to observe the obligations contained in this clause 7.
7.5 Each Party shall indemnify the other Party from and against any and all loss or damage incurred by the other as a result of any breach by the indemnifying Party or its employees, agents or contractors, of any of its or their obligations under this clause 7.
7.6 Each Party shall immediately upon becoming aware of the same give notice to the other Party of any unauthorised disclosure, misuse, theft or other loss of Confidential Information of the other Party, whether inadvertent or otherwise.
7.7 The obligations imposed by this clause 7 shall survive the expiry or termination of this Agreement for a period of ten (10) years (without prejudice to the continuing protection of trade secrets, as long as these are protected under applicable laws) but shall not apply to any Confidential Information to the extent to which such Confidential Information:
- at the time it is received is in the public domain;
- subsequently comes into the public domain through no fault of the recipient, its employees, agents or contractors;
- is lawfully received by the recipient from a third party on an unrestricted basis (unless received in pursuance of its obligations under, or in connection with, this Agreement);
- is already known to the recipient before receipt from the discloser; or
- is independently developed by the recipient, its employees, agents or contractors, which independent development can be shown by written evidence.
7.8 Nothing in this clause 7 shall prohibit or restrict either Party from disclosing any Confidential Information to the extent to which the same is required to be disclosed by law, regulation or pursuant to an order of a competent authority, or to a professional adviser of the recipient, provided the recipient provides the discloser with reasonable written notice prior to any such disclosure, and in the case of disclosure to a professional adviser of the recipient, such professional adviser undertakes in writing to be bound by obligations of confidentiality of at least as high a standard as those imposed on the recipient under this clause 7.
8 Representations and Warranties
8.1 Licensee warrants that it has full power and authority to carry out the actions contemplated under this Agreement and that its entry into and performance under the terms of this Agreement will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.
8.2 Licensee warrants that it shall during the term of this Agreement comply with all applicable laws, regulations, regulatory requirements and codes of practice in carrying out its obligations under this Agreement and in all matters relating hereto, and shall not knowingly do anything or procure or permit anything to be done which might cause or otherwise result in a breach by the other Party of the same.
8.3 Licensor represents and warrants that it is entitled to grant Licensee the rights to use the CPACE Specifications under the Agreement. Notwithstanding anything to the contrary in this Agreement and/or in the CPACE Specifications, Licensor makes no representations or warranties with respect to intellectual property rights of any third parties in or in relation to the CPACE Specifications. In particular, it is Licensee’s responsibility to determine whether any use and/or implementation of the CPACE Specifications may infringe any third party intellectual property rights and/or may be subject to export control regulations.
8.4 The CPACE specifications are provided on an “as is” basis” “with all faults” known and unknown. To the maximum extent permitted by applicable law, the Licensor makes no warranties, express or implied, with respect to the CPACE Specifications or other matters under this Agreement and expressly disclaims any implied warranties of merchantability, fitness for particular purpose and non-infringement.
9.1 Liability remains with each of the Parties, including compliance with applicable laws and regulations.
9.2 In no event will Licensor be liable for any incidental, indirect, special, consequential or punitive damage (including, but not limited to, any damage for loss of business, loss of profit, lost data, business interruption or other losses) arising out of or related to the CPACE Specifications or other matters under this Agreement, including but not limited to the use or the inability to use the CPACE Specifications, even if advised of the possibility of such damages. Licensor’s aggregate maximum liability to Licensee arising out or relating to this Agreement, including but not limited to the use or the inability to use the CPACE Specifications, shall in no event exceed a sum equal to the total amounts actually paid (if any) by Licensee to Licensor under this Agreement in the twelve (12) months immediately preceding the date on which the claim arose. The existence of more than one claim will not enlarge or extend this limit.
10 Intellectual Property Rights and Infringement
10.1 Licensee acknowledges Licensor’s ownership of and/or right to license the CPACE Specifications, and acknowledges that its use of the same pursuant to this Agreement shall not give Licensee any right, title or interest in or to the same, save the right to use the same as expressly permitted by this Agreement.
10.2 Licensee shall forthwith give written notice to Licensor of any of the following which shall come to its notice:
- any infringement or threatened infringement of, or any challenge to, any of the intellectual property rights vested in the CPACE Specifications;
- any inadvertent disclosure or unauthorised use of the CPACE Specifications; or
- any allegation made by a third party that the exercise by the Licensee of any of the rights granted to it under this Agreement, in the manner and for the purposes contemplated by this Agreement, infringes any rights belonging to that third party.
10.3 Licensor shall take such action as it thinks fit but shall not be obliged to institute or defend any action in respect of such infringement or other matters as aforesaid, provided that such obligation shall not apply where, in Licensor’s reasonable opinion, formed in good faith and having regard to the interests of Licensee and all other relevant circumstances, the infringement or other matter(s) as aforesaid do(es) not materially adversely affect Licensee’s exercise of the rights and licences granted to it hereunder. If Licensor, in its sole discretion, takes action in respect of the same, Licensee acknowledges that Licensor shall be solely responsible for the conduct of such action, including its prosecution, defence or settlement, and Licensee shall make no admission as to liability and shall not agree to any settlement or compromise of any action, and shall give Licensor all such assistance as Licensor may reasonably require in connection therewith.
10.4 Should Licensor decide not to institute or defend any such legal action of which it is advised by a Licensee pursuant to clause 10.2, it shall so notify Licensee in which event Licensee shall be entitled, at its sole cost, to institute or defend such action as it thinks fit. Licensor shall at Licensee’s expense give Licensee all such assistance as Licensee may reasonably require in connection with such action and Licensee shall keep Licensor informed of any progress in respect of the same and shall not make any admission as to liability or agree to any settlement or compromise of any action without Licensor’s prior written consent not to be unreasonably withheld or delayed.
10.5 Licensor shall have no obligation or liability under this clause 10 to the extent that any (alleged) infringement arises from:
- any Improvement, or any modifications made to the CPACE Specifications in question, otherwise than by Licensor; or
- the use of or dealing with the CPACE Specifications in question other than as directed or approved by Licensor in writing or otherwise in any manner or for any purpose not contemplated under this Agreement; or
- any information or materials provided by Licensee to Licensor; or
- any breach of the terms of this Agreement, or any negligent, wilful or fraudulent act or omission, of or by Licensee, their respective employees, agents or contractors; or
- Licensee’s failure to use the most recent version of the CPACE Specifications made available to Licensee or to integrate modifications issued by Licensor; or
- the use of the CPACE Specifications in combination with any element and/or material not provided by Licensor where such infringement would not have occurred but for the combination.
10.6 The provisions of this clause 10 state Licensor’s entire liability to Licensee in respect of any claim of infringement of any intellectual property right belonging to a third party.
11 Term and Termination
11.1 This Agreement will take effect on the Effective Date and is concluded for the entire duration of the intellectual property rights embodied in the CPACE Specifications.
11.2 Either Party may terminate this Agreement for convenience by giving three years prior and written notice to the other Party.
11.3 Either Party may terminate this Agreement and any of the licences granted hereunder at any time forthwith by written notice to the other Party if the other Party:
- is in material breach of any of its obligations under this Agreement which is not remediable, or if remediable, has not been remedied within thirty (30) days of written notice requiring it to be remedied; or
- ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), or any equivalent or similar action or proceeding is taken or suffered in any jurisdiction.
11.4 Without limitation to clause 11.3, Licensor may terminate this Agreement or any of the licences granted hereunder at any time forthwith by written notice to Licensee if Licensee challenges or disputes the validity or ownership of, or takes any step inconsistent with, any of the CPACE Specifications.
11.5 Upon termination of this Agreement for any reason other than a termination under clause 11.3 or 11.4, the Licensee will keep a right to use the CPACE Specifications at the same conditions as set out under this Agreement for the entire duration of the intellectual property rights embodied in the CPACE Specifications, but only in the version “as is” at the time of termination. The Licensee will have no rights on any Improvements after termination of the Agreement.
11.6 The termination of this Agreement for any reason shall not give either Party the right to claim any compensation, indemnity or reimbursement whatsoever from the other by reason of such termination, but termination shall be without prejudice to any rights or remedies available to, or any obligations or liabilities accrued to, either Party at the effective date of termination.
12 Force Majeure
Neither Party shall be liable for any delay in performing or for failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any cause or circumstance whatsoever beyond its reasonable control (“Force Majeure Event“), provided the same arises without the fault or negligence of such Party, and the affected Party notifies the other within two (2) working days of becoming aware of the same of such Force Majeure Event and the manner and extent to which its obligations are likely to be prevented or delayed. If any Force Majeure Event occurs, the date(s) for performance of the obligation(s) affected shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any event of force majeure continues for a period of or exceeding two (2) months, the non-affected Party shall have the right to terminate this Agreement forthwith on written notice to the affected Party. Without limitation to the foregoing, each Party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
13 General Conditions
13.1 Formalities: The Parties must do all such acts and execute all such documents as necessary to give effect to this Agreement.
13.2 Own costs: Each Party shall bear its own costs in relation to the drafting and execution of this Agreement.
13.3 Assignment: The Licensee will not assign, transfer, pledge or make other disposition of the present Agreement or any part thereof or of any of their rights, claims or obligations under the present Agreement, including inter alia transfers of a generality or branch of activity in accordance with the Belgian Company Code, except with the prior written approval of the Licensor.
13.4 Non-waiver: Any waiver by a Party of a breach of a provision of this Agreement will not operate or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. Any waiver must be in writing and signed by the Party against whom enforcement is sought.
13.5 Modification: This Agreement may only be changed, modified, amended or supplemented by written agreement of the Parties.
13.6 Entire Agreement: This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
13.7 Counterparts: This Agreement may be signed in counterparts, in the number of originals stated hereinafter on the signature page. When taken together, the counterparts signed by all Parties shall constitute one and the same instrument.
14 Governing Law and Settlement of Disputes
14.1 This Agreement is governed by the laws of Belgium.
14.2 In the event of a dispute, controversy or claim arising out of or relating to this Agreement or to any agreement(s) concluded pursuant to this Agreement the Parties shall use their best efforts to promptly settle such dispute through direct negotiation.
14.3 If the dispute cannot be settled amicably within sixty (60) days, it shall be finally settled, under the Rules of Arbitration of the CEPANI as applicable at the time when the arbitral proceedings are initiated, by three (3) arbitrators appointed in accordance with the said rules. English shall be the language used in the arbitral proceedings, the arbitral tribunal seat shall be in Brussels (Belgium). The Parties shall accept the arbitral award as final.