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GS1 AUSTRALIA LICENCE AGREEMENT

Terms and conditions

NOTE: This Subscription Membership and Licence Agreement sets out the terms and conditions relating to Your use of GS1 Identification (ID) Keys and Barcode Symbols and other Authorised GS1 Data Carriers. You acknowledge that You have read, understood and agree to be legally bound by them. This Subscription Membership and Licence Agreement does not take effect until Your Licence Application has been received and accepted by GS1 Australia Limited (hereinafter referred to as GS1) and GS1 has notified You of such acceptance.

1. Membership and Grant of Licence

1.1 You are hereby accepted as, and Your Licence Application constitutes an application to be, a subscriber member of GS1.

1.2 GS1 grants You a non-exclusive non-transferable licence to use the GS1 System solely for the Authorised Uses.

2. Term

The Licence and these terms and conditions come into effect for You on the date on which GS1 notifies You of its acceptance of Your Licence Application and continues for the duration of the current financial year (1 July - 30th June) or until terminated as provided in clause 11. It may be renewed annually subject to Your compliance with this Subscription Membership and Licence Agreement including payment of the annual Fee.

3. Fees

3.1 You must pay the Fee to GS1 annually in advance within 30 days of the date of GS1’s invoice.

3.2 GS1 may, from time to time, increase the Fee by written notice. Publication of the increased Fee on GS1's website shall constitute written notice of such increase. Your continued use of the GS1 System after such notice shall constitute acceptance of such increase.

3.3 Where Items bearing GS1 ID Keys issued and/or registered to You are already in the supply chain at the time this Subscription Membership and Licence Agreement is terminated, notwithstanding such termination, You will remain liable for a fee equivalent to the then current Fee on a pro-rata basis for the period that those Items continue to be in the supply chain beyond any annual period for which a Fee has already been paid. You must pay such pro-rata fee within 30 days of the date of GS1’s invoice in respect of such fee.

3.4 If You are overdue in payment of any amount, GS1 may charge an administration fee for any overdue amount at the rate of fifty Australian dollars ($50.00) (exclusive of GST) plus all costs and expenses incurred by its mercantile agents in respect of anything instituted or being considered against You as a liquidated sum (which You hereby acknowledge is a genuine pre-estimate of the costs of GS1 in collecting such amount), together with interest calculated at a rate equivalent to two percent (2%) higher than the rate for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic) from (and including) the date the payment was due until (but excluding) the date it is received in full (together with administration fees and interest).

3.5 GS1 reserves the right to charge a fee in relation to bank processing charges imposed on GS1 in respect of payments for this agreement.

4. GST and other taxes

4.1 All amounts payable under this Subscription Membership and Licence Agreement are exclusive of GST.

4.2 If a party making a supply under this Subscription Membership and Licence Agreement (the ‘Supplier’):

• (a) is liable to pay GST on that supply; and
• (b) the fee or charge stated in this Subscription Membership and Licence Agreement for that supply does not expressly include GST,

then the party receiving the supply must pay the Supplier an additional amount equal to the consideration payable for the supply multiplied by the prevailing GST rate.

4.3 GS1 will issue a tax invoice to You for the Fee.

4.4 You must pay all other taxes imposed in Australia in respect of this Subscription Membership and Licence Agreement.

5. Your obligations

5.1 You must:

• (a) not at any time during the term of this Subscription Membership and Licence Agreement, or after its termination, do or omit to do anything whereby GS1’s goodwill, trade or business may be prejudicially affected or brought into disrepute;
• (b) comply with the standards set out in the GS1 manuals/guidelines and such other directions in relation to use of the GS1 ID Keys, Electronic Product Codes and Authorised GS1 Data Carriers as GS1 may give from time to time.

5.2 To assist in authentication of GS1 ID Keys and Electronic Product Codes still in circulation, You must, on request, provide to GS1 details of:

• (a) all GS1 ID Keys and Electronic Product Codes issued and/or registered to You that have been applied by You, or for or on behalf of You, in the previous twelve months; and
• (b) all GS1 ID Keys, Electronic Product Codes (whether or not issued and/or registered to You) and Authorised GS1 Data Carriers that You have processed in the previous twelve months.

5.3 You represent and warrant to GS1 that Your Licence Application is true, accurate and complete, in every particular.

6. Use of GS1 ID Keys, Electronic Product Codes and Authorised GS1 Data Carriers and
other Intellectual Property

6.1 You:

• (a) may use only GS1 ID Keys and Electronic Product Codes (if applicable) for the Authorised Uses;
• (b) must not apply any GS1 ID Keys or Electronic Product Codes issued and/or registered by GS1 to any other person (Issued Company) in respect of an Item to identify, track or trace any Item or thing other than that Issued Company's Item;
• (c) must not use any numbers that copy (in whole or in part) any numbers comprised in the GS1 System or that are similar in appearance so as to confuse, or to be likely to confuse, persons that the numbers are associated with in any way the GS1 System;
• (d) must only apply the GS1 ID Keys or Electronic Product Codes (if applicable) issued and/or registered to You in respect of Your Items;
• (e) must not alter any GS1 ID Keys or Electronic Product Codes (if applicable) in any way;
• (f) recognise GS1’s title to the GS1 ID Keys, Electronic Product Codes, Authorised GS1 Data Carriers and the GS1 System and related intellectual property and must not at any time do, assist any other person to do, or allow to be done, any act or thing which may in any way invalidate, challenge, contest or impair GS1’s rights in regards to GS1 ID Keys, Electronic Product Codes, Authorised GS1 Data Carriers and the GS1 System or related intellectual property;
• (g) must not permit or procure anyone else to apply the GS1 ID Keys or Electronic Product Codes (if applicable) issued and/or registered to You to any thing (other than to Items being trade items manufactured for You under contract);
• (h) must ensure that the Products bear all proprietary notices that GS1 may require from time to time;
• (i) must not sell, transfer or assign (or attempt to sell, transfer or assign) the GS1 ID Keys or Electronic Product Codes (if applicable) issued and/or registered to You by GS1.

7. Use of trademarks for marketing/promotion

With GS1’s prior written consent, You may use the GS1 Trade Marks for marketing and promotion of the Products. You must ensure that the Trade Marks are reproduced only in accordance with the manner, form and other guidelines specified to You by GS1 from time to time.

8. Indemnity

You agree to indemnify GS1 against all claims, suits, losses, damages or costs suffered or incurred by GS1 as a result of Your conduct, Your use of the GS1 ID Keys, Electronic Product Codes or Authorised GS1 Data Carriers, or any breach of these terms and conditions (including, without limitation, any representation or warranty) by You (except to the extent caused by GS1’s negligence or wilful misconduct).

9. Limitation of liability

9.1 To the maximum extent permitted by law:

• (a) all terms, conditions and warranties which would otherwise be implied into this contract are excluded; and
• (b) where any implied term may not be excluded, GS1 limits the liability for breach of that term to the resupply or payment of the cost of resupply of the relevant services.

9.2 To the full extent permitted by law, GS1 excludes all liability (whether arising in negligence, breach of contract or breach of any law) in connection with this Subscription Membership and Licence Agreement for any indirect or consequential loss or damage, including lost profits and revenue.

9.3 To the full extent permitted by law, GS1’s total liability to You for loss or damage of any kind arising out of this Subscription Membership and Licence Agreement which is not excluded by clause 9.2 is limited, for any and all claims, to the total Fee paid during the 12 month period prior to the relevant liability accruing.

10. Privacy and confidentiality

10.1 GS1’s commitment to privacy is set out in the ‘Privacy Statement’. You acknowledge that You have read and understood the Privacy Statement and consent to the collection, use and disclosure of personal information in accordance with the Privacy Statement.

10.2 You must always keep confidential and secure and not use or disclose any information of GS1’s that is identified as, or would reasonably be expected to be, proprietary, confidential or commercially sensitive except as permitted by this Subscription Membership and Licence Agreement. You must only disclose that information:

• (a) to the extent necessary to perform Your obligations under this Subscription Membership and Licence Agreement and on a ‘need-to-know’ basis only;
• (b) if GS1 authorises it in writing; or
• (c) as required by law.

11. Termination

11.1 GS1 may terminate this Subscription Membership and Licence Agreement immediately by giving notice if:

• (a) You fail to pay any Fee by its due date;
• (b) You commit a breach of Your obligations under this Subscription Membership and Licence Agreement;
• (c) You are declared bankrupt, go into liquidation, have a receiver or other controller appointed, or (being a company) are wound up otherwise than for the purpose of a reconstruction; or
• (d) the GS1 Master Australian Licence is terminated or GS1 otherwise ceases to hold the necessary licence rights to issue GS1 ID Keys or Electronic Product Codes in Australia.

11.2 Either GS1 or You may terminate this Subscription Membership and Licence Agreement in any other circumstances by giving six months written notice to the other party.

11.3 Termination of this Subscription Membership and Licence Agreement does not relieve either GS1 or You from liability arising from any prior breach of the terms of this Subscription Membership and Licence Agreement.

12. Consequences of termination

12.1 On termination of this Subscription Membership and Licence Agreement, Your rights under this License Agreement terminate and You must

• (a) immediately cease applying the GS1 ID Keys, Electronic Product Codes (if applicable) and Authorised GS1 Data Carriers to any of Your Items from the termination date; and
• (b) within 7 days, pay to GS1 all amounts due to GS1 under this Subscription Membership and Licence Agreement at the termination date.

12.2 You are not entitled to any rebate or refund of the Fee or any other fees or charges paid under this Subscription Membership and Licence Agreement, unless this Agreement expressly states otherwise.

12.3 The termination or breach of this Subscription Membership and Licence Agreement does not affect those provisions, which by their nature survive termination, including clause 3.3, 3.4, 3.5, 8, 9, 10, 15 and 16.

12.4 On termination or breach of this Subscription Membership and Licence Agreement for any reason (including, without limit, the non payment of fees payable hereunder) You expressly authorise and allow GS1 to make reasonable enquiries with third parties (including, without limit, retailers) to ascertain whether You are acting in breach of this Subscription Membership and Licence Agreement and, in particular, clause 12.1 hereof.

13. Training

You shall be required to attend an initial training session to familiarise Yourself with the GS1 System. You shall be required to attend this session within 12 months. You may at the discretion of GS1 be required to pay a reasonable charge.

14. Electronic Product Codes

If You wish for this Subscription Membership and Licence Agreement to include use of Electronic Product Codes as part of the GS1 System, You must make an election to that effect on the Licence Application or by written notice to GS1 Australia in a form approved by GS1 for that purpose.

15. Notices

15.1 All notices and other communications in connection with this Subscription Membership and Licence Agreement:

• (a) must be in writing; and
• (b) take effect from the time they are received unless a later time is specified.

15.2 If sent by registered post, notices and other communications are taken to be received the day after posting (or seven days after posting if sent to or from a place outside Australia).

15.3 If sent by facsimile, notices and other communications are taken to be received at the time shown in the facsimile transmission report as the time that the whole facsimile was sent.

15.4 Notices for You will be sent to the address specified on Your Licence Application (or such other address as You may notify GS1 of from time to time). Notices for GS1 must be sent to the Chief Executive Officer of GS1 at GS1’s address as notified to You from time to time.

16. General provisions

16.1 This Subscription Membership and Licence Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

16.2 This Subscription Membership and Licence Agreement is governed by the law in force in the State of Victoria. Each party submits to the non-exclusive jurisdiction of the courts of that place.

16.3 A provision of this Subscription Membership and Licence Agreement or a right created under it may not be waived except in writing, signed by the party giving the waiver.

16.4 GS1 may vary the terms and conditions of this Subscription Membership and Licence Agreement at any time by providing not less than one (1) month's written notice to You. Publication of amended terms and conditions of this Subscription Membership and Licence Agreement on GS1's website shall constitute written notice to You. Any such variation notified by GS1 takes effect immediately after such notice period (unless a later date is specified in the notice). If You do not accept the variation to the terms and conditions, You may terminate this Agreement by written notice to GS1 at any time prior to such variation taking effect. Your continued use of the GS1 System after such notice shall constitute acceptance of these amended terms and conditions.

16.5 You must not assign, transfer or sublicense Your rights or obligations under the Licence or this Subscription Membership and Licence Agreement generally.

16.6 We may offer Additional Products and Services, for which we may charge You additional fees and charges (in addition to Fee) and which will be subject to separate terms and conditions.

16.7 If any provision of this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation it must be read down so that is valid and enforceable (or, if it cannot be so read down, severed) so that the validity and enforceability of the remaining provisions are not affected.

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17. Definitions

These meanings apply to this Agreement unless the contrary intention appears:

• 'Additional Products and Services' means all products and services provided by GS1 other than the GS1 System, including, without limitation, all training, testing, consultancy and data synchronisation services (such as GS1net).
• 'Authorised GS1 Data Carriers' means data carriers designed to carry the GS1 ID Keys and other attribute information in a machine readable form and includes two dimensional and three dimensional Barcode Symbols and radio frequency identification (RFID) tags.
• 'Authorised Uses' means use in Your ordinary business operations in connection with the identification, tracking and tracing of Items at any point in the supply chain.
• 'Barcode Symbols' means the GS1 data carriers designed to carry the GS1 ID Keys and other attribute information in a machine readable form.
• 'Electronic Product Codes' means, in respect of a subscriber member of GS1, the specific range of electronic product codes issued and/or registered to that member by GS1 in accordance with the GS1 Master Australian Licence and any additional related information issued to that member by GS1 in accordance with the EPCglobal standards.
• 'Fee' means the fee for subscription membership payable annually by You to GS1 specified in the Licence Application (as varied from time to time according to clause 3.2).
• 'GS1' means GS1 Australia Limited ABN 67 005 529 920, a company limited by guarantee.
• 'GS1 International' means GS1 association international sans but lucratif, a company incorporated in Belgium.
• 'GS1 Master Australian Licence' means the exclusive licence granted GS1 International to GS1 to issue GS1 ID Keys and Electronic Product Codes in Australia.
• 'GS1 Identification (ID) Keys' or 'GS1 ID Keys' means, in respect of a subscriber member of GS1, the GS1 Company Prefix and associated range of identification numbers that are issued and/or registered to that member by GS1 in accordance with the GS1 Master Australian Licence and any additional related information issued to that member by GS1 in accordance with the GS1 System's technical standards.
• 'GS1 System' means: (a) the system of issuing GS1 ID Keys and Barcode Symbols in accordance with the GS1 Master Australian Licence; (b) if You have made an election in accordance with clause 14 of this Subscription Membership and Licence Agreement, the system of issuing Electronic Product Codes; and (c) electronic business messaging systems, but expressly excludes all Additional Products and Services.
• 'GST' means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
• 'Item' means a trade item, process, service, shipment, asset, entity or location.
• 'Licence' means the licence granted by GS1 to You to use the GS1 ID Keys and (if applicable) Electronic Product Codes under clause 1 of this Subscription Membership and Licence Agreement.
• 'Licence Application' means the application whereby You applied to be issued and/or registered for GS1 ID Keys and (if applicable) Electronic Product Codes and to which this Subscription Membership and Licence Agreement relates.
• 'Subscription Membership and Licence Agreement' means this Subscription Membership and Licence Agreement.
• 'Trade Marks' means the trademarks associated with GS1 and/or the GS1 System.
• 'You' means the individual, company, corporation or other legal entity named in the Licence Application. 'Your' has a corresponding meaning.