Membership Rules of Afinis Interoperability Standards
Effective September 26, 2019
1 Statement of Purpose.
The purposes of Afinis Interoperability Standards (“Afinis”), an emancipated group of Nacha are to: (a) promote a standardized electronic infrastructure and interoperable interface for the transmission of financial and other data among members of the financial services industry and companies that do business with or through the financial services industry; (b) conduct research, including cooperative research with government agencies, to identify, select, and augment standards for technology for such standardized electronic infrastructure and interoperable interface; and (c) promote among such members the acceptance of such standardized electronic infrastructure and interoperable interface.
2.1 The Afinis Interoperability Standards Governing Board.
The Afinis Interoperability Standards Governing Board, the executive body elected by Afinis Interoperability Standards Members, has broad discretion as to carry out projects directly itself according to rules or procedures that it will adopt, or to ask that Afinis Interoperability Standards Members interested in a particular project form a Working Group directed at that project. Similarly, Committees and Members may propose the formation of a Working Group to support the strategic direction of Afinis Interoperability Standards as established by the Governing Board. The Afinis Interoperability Standards Governing Board may, at its discretion, carry out its work with the assistance of employees, consultants, or contractors retained by Afinis Interoperability Standards and reporting to the Afinis Interoperability Standards Governing Board.
2.2 Working Groups.
Each Working Group that is formed will have a Working Group Chair who will be primarily responsible for the administration and organization of the respective Working Group. The Working Group Chair may be a person or a business entity able to provide a person of appropriate qualification. The Working Group will be subject to the oversight and control of the Working Group Chair and Executive Director, in consultation with the Governing Board. The Working Group Chair may recommend that the Governing Board and Nacha retain and oversee such additional employees, consultants, or contractors to carry out the work of the Group as may be reasonable under the circumstances. Any persons or entities retained by Afinis Interoperability Standards to assist the Working Group Chair will be subject to the joint oversight and control of the Working Group Chair and Executive Director, in consultation with the Governing Board.
2.3 Administrative Activities of the Working Group Chair and the Working Group.
In addition to such duties and responsibilities as are given the Working Group Chair by the Afinis Interoperability Standards Governing Board or by other Working Group Members, the duties of the Working Group Chair will include working with the Executive Director to create and make available the books and records of that Working Group including, without limitation: (i) all records relating to the work product of the Group (including, among other things, preliminary, draft, test, or experimental versions of Group deliverables); (ii) all other such books and records as the Working Group Chair may reasonably determine are necessary or as the Governing Board may direct the Working Group Chair to maintain. Except for those portions of the books and records sealed by vote of Afinis Interoperability Standards’ Governing Board, all of the Working Group’s books and records will be available on the secure portal to any Working Group Member or Afinis Interoperability Standards Governing Board member in good standing.
2.4 Joining a Working Group.
To become a Working Group Member a person or entity must, at a minimum: (1) be a member in good standing of Afinis Interoperability Standards; (2) agree to operate as part of the Working Group under the Membership Rules then in force; and (3) meet any other requirements for membership imposed by the Afinis Interoperability Standards Governing Board including, without limitation, additional fees or payments imposed by the Afinis Interoperability Standards Governing Board to ensure that all Working Group Members fairly bear the burdens of the Working Group participation, and that prior financial or in-kind contributions of earlier Members are appropriately recognized.
2.5 Advisory Participants.
From time to time, in order to facilitate assistance from or relationship with organizations that will facilitate the work and goals of Afinis Interoperability Standards, individuals or entities that are not Afinis Interoperability Standards Members may be invited to participate in a Working Group, at the discretion of the Executive Director and Working Group Chair, on terms that may vary from the Membership Rules and such persons or entities will be known as “Advisory Participants”.
3 Membership Removal/Termination.
Any Member may resign at any time upon thirty (30) days' written notice delivered to the Executive Director at Afinis Interoperability Standards’ principal office. Such resignation shall be effective at the end of the thirty (30) day notice period, but shall not relieve the Member from dues for the current membership period. Members will remain responsible for all obligations incurred or accrued by them in connection with the role and position up to the end of the thirty (30) day notice period.
A Member may be removed for cause only after reasonable notice and opportunity to be heard before the body proposing to remove him. A Member may be removed for cause if such Member (i) materially violates these Membership Rules, or documented procedures or resolutions adopted by the Afinis Interoperability Standards Governing Board from time to time; fails materially to observe Afinis Interoperability Standards’ rules, Afinis Interoperability Standards’ Code of Conduct, or materially breaches any agreement with Afinis, and (ii) such violation, failure or breach remains uncured thirty (30) days after the Member receives notice thereof, and (iii) the Afinis Interoperability Standards Governing Board does not act to retain such Member despite such violation, failure or breach. A Member who is removed shall forfeit any dues or special assessments paid during membership, and may not apply for re- election to membership until all arrears in such dues or assessments, or other monetary obligations to Afinis Interoperability Standards, are paid in full. Sections 6, 7, 8, and 10 of these Rules will survive the withdrawal or expulsion of a Member and remain in full force and effect. In addition, Section 5 will survive the withdrawal or expulsion of a Member, but it will survive only with regard to rights, licenses, or contributions that vested or were made by a Member during their term of membership prior to their withdrawal or expulsion.
4.1 Membership Fees.
Members shall pay annual dues or fees to cover a one-year term from the date of admission to membership. A Schedule of Membership Fees shall be published that defines one or more sub-classes of Voting Members and one or more sub-classes of Non-Voting Members. The Schedule of Membership Fees is determined by Nacha in consultation with the Afinis Interoperability Standards Governing Board. Nacha may also take whatever action it deems necessary with respect to any Member that is delinquent in paying the required dues for a period of ninety days, including revocation of privileges of or termination of membership.
The Afinis Interoperability Standards Governing Board may require Members participating in Afinis Interoperability Standards to contribute additional funds by a majority vote of the Afinis Interoperability Standards Governing Board at any ordinarily scheduled meeting, provided, however, that any requirement to pay additional funds will be effective no sooner than sixty (60) days after such vote, and such vote will be without prejudice to Member’s right of withdrawal pursuant to Section 3 above.
4.2 In-Kind Contributions.
The Afinis Interoperability Standards Governing Board may establish a procedure for the acceptance of in-kind resource contributions as credit against any additional required payments by Members provided, however, that the system established for receiving in-kind contributions and awarding credits therefore provides all Members the opportunity to make in-kind contributions and is based upon consistent and consistently applied rates for crediting in-kind contributions based upon the nature of the contribution (e.g., person/hours, software, data) and not on the identity of the Member.
4.3 Voting Member Rights and Responsibilities.
A Voting Member is entitled to one vote at any and all meetings of the membership. They can be represented by one or more participants to any Working Group, and are entitled to one vote for any item balloted upon by a Working Group. A Voting Member can offer one candidate to the membership for election to the Afinis Interoperability Standards Governing Board. They can, at the invitation of the Afinis Standards Governance Committee or the Afinis Interoperability Standards Governing Board, provide a representative to the Afinis Standards Governance Committee. A Voting Member must agree to be bound by the Charter and Membership Rules.
4.4 Non-Voting Member Rights and Responsibilities.
A Non-Voting Member may participate in any meeting of the Members, including general meetings and Working Groups but may not vote on any balloted items. Participation in Working Groups may be limited as to number of representatives or number of Working Groups as determined by the Afinis Interoperability Standards Governing Board. A Non-Voting member must agree to be bound by the Charter and Membership Rules. Non-Voting members may not be elected to the Afinis Interoperability Standards Governing Board.
4.5 Converting Membership.
A Voting Member may convert their membership to a Non-Voting member only at the time of their membership renewal.
A Non-Voting member may convert to a Voting Member at any time by paying the associated dues and fees as described in the Schedule of Membership Fees in effect at the time and by accepting the Membership Rules and Charter in effect at the time. The date of such a conversion shall be used as the anniversary date for subsequent renewals and membership fee due dates
5 Intellectual Property Rights.
(a) Grant of License to Members and Members’ Affiliates. To the extent Afinis Interoperability Standards develops in connection with the Afinis API Products or IFX/BMS Standard a specification, testing environment, software code or communications protocol, or a document specifying certain software protocols, methods, procedures and functions for use in interactive financial exchange across software platforms and environments, together with all software and non-software materials necessary to maintain, modify, and improve the same (collectively, as applicable, a "Specification” or “Standard"), such Specification or Standard will be provided to each Member and Member's Affiliate (and to the extent determined by the Board, Non-Members) under the terms of the following licenses:
- for software or other code artifacts or code components of the Standard or Specification, the Apache License Version 2.0 license: https://www.apache.org/licenses/LICENSE-2.0
- for non-software artifacts or components of the Standard or Specification, the Creative Commons Attribution 4.0 (CC BY 4.0) license: https://creativecommons.org/licenses/by/4.0/legalcode
(b) Contributions by Members or Members’ Affiliate(s).
- General. The term “contribution” means any original work of authorship, including any modifications or additions to an existing work, and including any source code, object code, patch, tool, sample, graphic, specification, manual, or any other material that is intentionally submitted by a Member or a Member’s Affiliate for inclusion in, or documentation of, any Standard or Specification. For purposes of the foregoing definition, the term “submitted” means any form of electronic, verbal, or written communication shared with or sent to Afinis or its representatives for purposes of discussing and creating or improving a Standard or Specification, but excluding any communication that is conspicuously marked or otherwise designated orally or in writing by the contributor as “Not a Contribution;” provided that (i) a designation of “Not a Contribution” shall be made as soon as possible and in no event later than the earlier of (a) the date when a relevant Standard or Specification is made available for testing or (b) 30 days after the relevant Standard or Specification is distributed to the Member or the Member’s Affiliate for examination, and (ii) in order to be effective hereunder, an oral designation of “Not a Contribution” must be reaffirmed in writing, including by email, within thirty (30) calendar days of such designation.
- Assignment and Grant of Copyright License to Afinis. With respect to any worldwide copyrights, or copyright applications and registrations, in the contribution of a Member or a Member’s Affiliate (each, an “assignor”):
- The assignor hereby assigns to Afinis ownership, i.e., all rights, title, and interest, in the contribution; provided, however, that to the extent that such assignment is or becomes or is deemed invalid, ineffective or unenforceable, the assignor hereby grants to Afinis a perpetual, irrevocable, non-exclusive, worldwide, no-charge, royalty-free, unrestricted license to exercise all rights under those copyrights, including to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the contribution and such derivative works.
- The assignor agrees to not assert any moral rights in the contribution against Afinis or its licensees or transferees;
- The assignor agrees that Afinis may register a copyright in the contribution and exercise all ownership rights associated with it; and
- The assignor agrees that Afinis does not have any duty to consult with, obtain the consent of, pay or render an accounting to the assignor for any use or distribution of the contribution.
- Grant of Patent License to Afinis. In connection with a contribution, with respect to any patents owned by a Member or Member’s Affiliate, or that a Member or Member’s Affiliate can license without payment to any third party, the Member or Member’s Affiliate, as applicable, hereby grants to Afinis a perpetual, irrevocable, non-exclusive, worldwide, no-charge, royalty-free license to make, have made, use, sell, offer to sell, import, and otherwise transfer the contribution, in whole or in part, where such license applies only to those patent claims licensable by the Member or Member’s Affiliate that are necessarily infringed by the contribution, alone or in combination with or included in any product, work or materials arising out of the Specification or Standard to which the contribution was submitted.
- Other Rights. Each party reserves all rights not expressly granted in this Section 5. No additional licenses or rights are granted by implication, exhaustion, estoppel or otherwise.
- Representations and Warranties. The Member represents and warrants as follows: (i) it is legally entitled to grant the above licenses on its own behalf and on behalf of any Member Affiliates, if applicable; (ii) the contribution is the original creation of the Member or any Member Affiliates, if applicable, as to which the Member can legally grant the rights set out herein; and (iii) the individual making the contribution either for himself or herself, or on behalf of the Member or the Member’s Affiliate, as appropriate, is so authorized and any necessary permissions were obtained from third parties (including an employer). Except as to warranties expressly made elsewhere in Section 5, the contributions made by the Member or the Member’s Affiliate are made on an “AS IS” basis and without any warranties of any kind.
(c) Third party materials. In the event a Member or the Member’s Affiliate submits in connection with a Specification or Standard software or non-software materials that are not original works of authorship of the Member or the Member’s Affiliate, or are original works of authorship of the Member or the Member’s Affiliate but are designated as “Not a Contribution,” the Member or the Member’s Affiliate, as applicable, shall specifically identify all such materials and list or otherwise provide copies of all licenses applicable to such materials, including open source software licenses.
(d) Each member covenants not to assert copyrights against Afinis Interoperability Standards, Nacha, other Members or third parties based upon the making, use, sale, reproduction, distribution, disclosure, display, and transmission, of the Specification or Standard or portions thereof, absent violations of the terms of this Section 5.
(e) Afinis Interoperability Standards may publish documents to promote its objectives and purposes. Employees of Members or Members’ Affiliates may be cited as coauthors when appropriate and by permission of the Member and Afinis Interoperability Standards.
(f) Any Member whose membership has terminated or expired shall forfeit thereby all interests in any and all funds, property, rights and interests of Afinis and Nacha, other than any license(s) for intellectual property incorporated within all versions of the Specifications or Standards published during the term of membership.
(g) Afinis shall adopt and implement contribution and intellectual property rights policies for Non-Members, including Advisory Participants that include terms substantially similar to the terms of this Section 5 (Intellectual Property).
6 Public Announcements.
Neither Afinis Interoperability Standards nor any Member will use, or permit to be used, the name of Afinis, Member as such, or the other party or of other Working Group Members in any public announcement, press release, advertisement or publication without first obtaining the consent of the other entity or person whose name they seek to use. Notwithstanding the above, Afinis Interoperability Standards may use Member’s name to indicate that Member is a Member or to describe in general terms the nature of Afinis Interoperability Standards and/or the nature and character of the activities of Afinis Interoperability Standards, the Afinis Interoperability Standards Governing Board, or any Working Group. Similarly, Member may refer to Afinis Interoperability Standards to the extent necessary to disclose to others its involvement in Afinis Interoperability Standards and to accurately discuss the nature of its involvement.
Unless Afinis Interoperability Standards has entered into an express written agreement to the contrary with the approval of Member, information and materials provided by Member to Afinis Interoperability Standards or other Members of Afinis Interoperability Standards as such will be deemed to be non-confidential and may be used for any purpose or disclosed to third parties. Member will abide by all confidentiality rules, policies, procedures and agreements adopted or entered into by Afinis Interoperability Standards in writing and with Member’s prior written consent.
8 Code of Conduct.
Member understands that both as an individual and as an organization, all must subscribe to a Code of Conduct, knowing that Afinis Interoperability Standards reserves the right to disassociate itself from any organization or person that in its opinion, fails to abide by the following:
- Adhere to the spirit as well as the letter of all applicable regulations and laws
- Avoid even the appearance of professional misconduct or criminal offense
- Conduct all activities and business in a manner that does not adversely impact Afinis or its standards or initiatives
- Remain current on financial obligations to Afinis Interoperability Standards
- Work together to promote the purposes of Afinis Interoperability Standards in a professional and businesslike manner
9 Warranties, Indemnity and Limited Liability.
9.1 General Warranties and Representations.
Each Member represents and warrants that: (i) it has the authority and right to become a Member of Afinis Interoperability Standards, the Afinis Interoperability Standards Governing Board or those Working Groups that a Member chooses to join, to enter into this Agreement, and to perform all of its obligations under these Rules; (ii) Member’s participation in and contributions to Afinis Interoperability Standards will not breach any contractual obligations, breach any duties to other Members or third parties; (iii) Member is not aware of any written claims, whether alleged or pending, of any third party asserting that Member’s participation and contributions to Afinis Interoperability Standards will infringe the proprietary rights of any third party; and (iv) Member is a qualified to carry out all tasks that it agrees to perform as a Member of Afinis Interoperability Standards. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8.1, ALL MATERIALS, INFORMATION, DATA, OR TECHNOLOGY PROVIDED BY ANY PARTY HERETO IS PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.
9.2 Warranties and Representations of Voting Members.
If Member is a Voting Member, then Member additionally represents and warrants that it is not an Affiliate of any other Voting Member. If Member is a Voting Member and becomes an Affiliate of another Voting Member, then Member will provide prompt written notice to Afinis Interoperability Standards of its Affiliate relationship with the other Voting Member and will not exercise any voting powers within Afinis Interoperability Standards in any capacity until Member and its Affiliate have provided a written agreement to Afinis Interoperability Standards signed by Member and its Affiliate indicating that Member or its Affiliate will resign as Voting Member. An "Affiliate" will mean any company that, directly or indirectly, Owns, is Owned by, or is under common Ownership with, a Member. “Ownership," "Owned" or "Own" will mean ownership of, or owning at least twenty percent (20%) of the outstanding shares of an entity.
Unless a Member claiming the benefits of this Section 8.3 has agreed in writing to the contrary, each Member (the "Indemnifying Member") will defend, indemnify, and hold Afinis Interoperability Standards and all other Members harmless from all claims, causes, or allegations (whether threatened or pending), costs, charges, and fees (including reasonable attorneys’ fees), losses, damages, or liabilities finally awarded by a court or settlement agreed to by the Indemnifying Member, arising from or relating to: (i) the breach by the Indemnifying Member of the express warranties or representations provided by the Indemnifying Member in this Agreement; or, (ii) the Indemnifying Member’s use outside of Afinis Interoperability Standards of any materials, information, proprietary rights, or technology developed in connection with or provided to the Indemnifying Member through their participation in Afinis Interoperability Standards. An Indemnifying Member will have no liability under this section unless the Indemnifying Member is given the right to conduct and control the defense or settlement of such claim, action, or proceeding.
9.4 Limitations on Liability.
Neither Afinis Interoperability Standards nor any Member will be liable to each other or any other Member for indirect, incidental, or consequential damages (including, without limitation, lost profits, lost revenues, loss of data, or loss of anticipated savings), even if such party is or has been informed of the possibility of such damage, loss or injury.
10 Anti-Trust Guidelines.
Member will strictly follow the Afinis Interoperability Standards Anti-trust Policy attached as Exhibit A to these Rules, as amended from time to time by Afinis Interoperability Standards. Member and Afinis Interoperability Standards will cooperate in the preparation and filing of all notices, registrations and other governmental filings deemed by Afinis Interoperability Standards to be appropriate under the circumstances, and will cooperate with any request for review or any investigation initiated by any governmental agency or body.
11 General Provisions.
11.1 Modification; Compliance with Laws.
These Rules may be modified by the Afinis Interoperability Standards Governing Board in consultation with Nacha, provided, however, that: (i) no modification will have any retroactive effect; (ii) any modification will not be effective until at least sixty (60) days after notice of such modification has been sent to Members; and (iii) any modification will be without prejudice to any Member’s ability to withdraw pursuant to section 3 above. While acting as a Member of Afinis Interoperability Standards, Member agrees to comply with all applicable statutes, laws, and regulations, including those relating to export control.
The rights, privileges, duties and obligations of Membership in Afinis Interoperability Standards may not be assigned without the prior written permission of Afinis Interoperability Standards. Notwithstanding the above, Afinis Interoperability Standards or Member may assign its Membership without consent in connection with the merger, acquisition or re-organization of Member, or in connection with the sale of all or substantially all of the party’s assets to a single purchaser.
11.3 Choice of Law and Venue.
This construction and application of these Rules will be governed by the laws of the State of Delaware, without regard to its conflicts of laws principles. All litigation arising from or relating to these Rules will be filed in a court of competent jurisdiction in Wilmington, Delaware. The parties consent to the jurisdiction of such courts over them, stipulate to the convenience and fairness of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts based upon the alleged inconvenience or unfairness of proceeding in such courts. Should Member file an action in a court outside of Wilmington, Delaware in breach of this Section 10.3, Member will pay all parties named in the action all costs and fees (including reasonable attorneys' fees) incurred in connection with the action prior to the transfer and re-filing of action in Wilmington, Delaware.
11.4 Independent Contractors.
Afinis Interoperability Standards and each Member are and will remain independent contractors with respect to all activities carried out pursuant to these Rules. No party will be authorized to, nor will it hold itself out as have the ability to, enter into commitments or obligations on behalf of another party. No employee of a party will be considered an employee or agent of any other party for any purpose.
AFINIS INTEROPERABILITY STANDARDS
It is the unqualified policy of Afinis Interoperability Standards and all of its operating Committees and Working Groups to conduct their operation in strict compliance with the antitrust laws of the United States. In all Afinis Interoperability Standards activities, each Member, as well as Afinis Interoperability Standards staff, shall be responsible for following Afinis Interoperability Standards’ policy of strict compliance with the antitrust laws. Afinis Interoperability Standards Officers, Directors, Committee and Working Group Chairs, and the Executive Director shall ensure that this policy is known and adhered to in the course of activities pursued under their leadership.
Afinis Interoperability Standards’ antitrust policy prohibits any discussions which constitute or imply an agreement or understanding concerning: (1) prices, discounts or terms or conditions of sale of products or services; (2) profits or profit margins or cost data; (3) market shares, sales territories or markets; (4) allocation of customers or territories; (5) selection, rejection or termination of customers or suppliers; (6) restricting the territory or markets in which a company may sell or resell products or services; (7) restricting the customers to whom a company may sell products or services; or (8) any matter which is inconsistent with the proposition that each member of Afinis Interoperability Standards must exercise its independent business judgment in pricing its services or products, dealing with its customers and suppliers and choosing the markets in which it will compete.
The antitrust laws are complicated and often unclear. If any Member is concerned about being in a “gray area,” the Member should consult with the Afinis Interoperability Standards staff. If the conversation among competitors at an Afinis Interoperability Standards meeting turns to antitrust-sensitive issues, participants should discontinue the conversation until legal advice is sought.
The U.S. Supreme Court has found that an association can be held liable for the statements or actions in antitrust-sensitive areas by volunteer leaders who claim to speak for the association, even if they are not authorized to speak in that area. Therefore, those in positions of responsibility for Afinis Interoperability Standards must be especially cautious.
To assist Afinis Interoperability Standards staff, Officers, Directors, and Committee and Working Group Chairs in recognizing situations that may give the appearance of an antitrust concern, Afinis Interoperability Standards staff shall provide copies of Afinis Interoperability Standards’ Antitrust Compliance Policy to each such Person. In addition, Afinis Interoperability Standards’ antitrust statement shall be either referenced at the start of each meeting where Afinis Interoperability Standards business will be discussed and noted in the minutes of the meeting, or this statement will be included in the meeting materials.
Any violation of this policy will be brought to the attention of the Afinis Interoperability Standards Governing Board, and the Governing Board will deal with it in a timely and appropriate manner. The Afinis Interoperability Standards Governing Board will consult with legal counsel when questions arise as to the manner in which antitrust laws may apply to Afinis Interoperability Standards activities