GS1 Australia Subscription Membership and Licence Agreement
Effective June 2023
Note: The Subscription Membership & 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, the applicant, acknowledge that You have read, understood, and agree to be legally bound by these Terms and Conditions, as well as the GS1 Australia Privacy Policy, MyGS1 Portal Terms and Conditions and Terms of Trade. The Subscription Membership & Licence Agreement does not take effect until Your Licence Application has been received and accepted by GS1 Australia Limited (herein after referred to as GS1 Australia and GS1 Australia 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 Australia.
1.2 GS1 Australia 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 Australia notifies You of its acceptance of Your Licence Application and continues for the duration of the current financial year (1st July - 30th June) or until terminated as provided in clause 13.0. It will be renewed annually subject to Your compliance with this Subscription Membership & Licence Agreement including payment of the annual Fee.
3. Fees
3.1 You must pay the Fee to GS1 Australia annually in advance within 30 days of the date of GS1 Australia’s invoice.
3.2 GS1 Australia may, from time to time, increase the Fee by written notice. Publication of the increased Fee on GS1 Australia’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 You agree to provide a declaration as to Your Turnover (using such form as may be specified by GS1 Australia from time to time) upon renewal or as requested by GS1 Australia from time to time from You. You acknowledge that GS1 Australia may obtain Your Turnover information from, or verify Your Turnover information with, third parties in accordance with clause 12.6 and GS1 Australia may, in its sole discretion, use this Turnover information to assess or re- assess the Fees payable by You.
3.4 Where Items bearing GS1 ID Keys allocated to You are already in the supply chain at the time this Subscription Membership & 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 Australia’s invoice in respect of such fee.
3.5 If You are overdue in payment of any amount, GS1 Australia reserves the right to:
a. charge an administration fee (after giving at least 15 days’ notice of such failure in payment) 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 Australia 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); and
b. remove access to the number issuance and management service.
3.6 GS1 Australia reserves the right to charge a fee in relation to bank processing charges imposed on GS1 Australia in respect of payments for this Subscription Membership and Licence agreement.
4. GST and Other Taxes
4.1 All amounts payable under this Subscription Membership & Licence Agreement are exclusive of GST.
4.2 If a party making a supply under this Subscription Membership & Licence Agreement (the ‘Supplier’):
is liable to pay GST on that supply; and
the fee or charge stated in this Subscription Membership & 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 Australia 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 & Licence Agreement.
5.0 Your Obligations
5.1 You must:
a. not at any time during the term of this Subscription Membership & Licence Agreement, or after its termination, do or omit to do anything whereby GS1 Australia’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 and Authorised GS1 Data Carriers, as GS1 Australia may give from time to time. For avoidance of doubt, this means that You must ensure all GS1 ID Keys, Authorised GS1 Data Carriers and related Content comply with the Validation and Allocation Rules as specified in the GS1 Standards whether or not You assigned the GS1 ID Keys to any Items and regardless of whether they are still in circulation or not;
c. comply with the applicable GS1 Australia Terms of Trade and the MyGS1 Portal Terms and Conditions published on the GS1 Australia website; and
d. comply with any regulations, standards or number allocation rules enforced by regulatory bodies that are impacted by Your use of the GS1 ID Keys.
5.2 You must:
a. if You became a subscriber member on or after 10th October 2020, use the Manage My Products service, where the functionality exists, to Assign Your GS1 ID Keys to Your Items and populate required associated Item data, including the provision of Content relating to those Items;
b. if You were a subscriber member prior to 10th October 2020, when available, such date being publicly communicated via the GS1 Australia website, use the Manage My Products service, where the functionality exists, to Assign any new GS1 ID Keys Allocated to You (that is, GS1 ID Keys Allocated to You on or after 10th October 2020) to Your Items and populate required associated Item data, including the provision of Content relating to those Items; and
c. if You became a subscriber member prior to 10th October 2020, when available, such date being publicly communicated via the GS1 Australia website, use the Manage My Products service, where the functionality exists, to Assign any of Your GS1 ID Keys Allocated to You (that is, GS1 ID Keys Allocated to You prior to 10th October 2020) to Your Items and populate required associated Item data, including the provision of Content relating to those Items.
5.3 You must, in using the Manage My Products service, comply with the following:
a. maintain the Assignation of each and every one of Your GS1 ID Keys to the Item (including, for the avoidance of doubt, data related to the Item and the GS1 ID Key Type originally Assigned (whether by You or any Transferor) to that GS1 ID Key;
b. ensure that the Item data (including any Content) for each of Your GS1 ID Keys is accurate;
c. ensure that any Assignation of GS1 ID Keys to Items by You that was not Assigned through the Manage My Products service (“Manual Assignations”) is uploaded by You into the Manage My Products service in a timely manner;
d. check that all details of Manual Assignations so uploaded are accurate in every case;
e. not Assign any GS1 ID Keys to Items through the Manage My Products service until You have uploaded all outstanding Manual Assignations into the Manage My Products service;
f. provide to GS1 Australia, in the form so specified in GS1 Australia’s application for Transferred GS1 ID Keys as notified from time to time, full and complete details of the Assignation for each and every one of the Transferred GS1 ID Keys, to be uploaded by GS1 Australia into the Manage My Products service;
g. check that all details of Assignations of Transferred ID Keys so uploaded are accurate in every case; and
h. not Assign any Transferred GS1 ID Keys to any Items until You have checked that all details of Assignations of Transferred GS1 ID Keys have been uploaded by GS1 Australia into the Manage My Products service and that they are accurate.
5.4 You acknowledge and agree that a failure by You to comply with Your obligations in clause 5.3 may result in consequences to You and third parties including, without limitation:
instances of Your GS1 ID Keys being Assigned to more than one Item;
the inability to register Your GS1 ID Keys as part of the GS1 system and to share Your GS1 ID Keys with trading partners;
the unavailability to You of all or certain functionality of the Manage My Products service; and
the requirement (including the requirement of Your trading partners) for You to recall or take back Items, Assign new GS1 ID Keys to affected Items, to relabel or repackage affected Items, and to undergo further testing of GS1 ID Keys and other related costs, expenses and liabilities.
GS1 Australia excludes all liability (whether arising in negligence, breach of contract or otherwise at law) in connection with any loss, damage, cost, expense or liability suffered or incurred by You arising from or in connection with Your failure to so comply with Your obligations in clause 5.3 including, without limitation, as a result of any or all of the consequences referred to above.
5.5 Without limiting any other provision of these terms and conditions and unless otherwise specified by GS1 Australia expressly in writing, You are solely responsible for providing, reviewing, checking, maintaining and updating all Content in relation to Your Items and You represent and warrant that:
a. all Content in relation to Your Items:
i. originates from, is authorised, or is approved by You;
ii. complies with all applicable laws;
iii. is correct, accurate, complete or suitable for the intended purpose and that any inaccurate, incomplete, or out-of-date Content will be updated or otherwise removed by You as soon as practicable;
iv. does not infringe GS1 Australia’s or any third party’s intellectual property rights;
v. is not defamatory, harassing, or obscene;
vi. is not illegal, fraudulent, misleading, or deceptive or likely to mislead or deceive persons assessing or viewing the Content;
vii. does not contain any virus, trojan, worm, or similar deleterious programs; and
viii. meets all the requirements in the GS1 Standards (or requirements for Content specified in the GS1 Standards); and
b. You have obtained all necessary licences from third parties in relation to Your Content including, without limitation, all waivers and consents necessary from authors of the Content which enables GS1 Australia to attribute or not attribute authorship to the Content in its sole discretion and perform such acts in relation to the Content (even if they result in derogatory treatment of the Material) as contemplated by these terms and conditions without infringing any Moral Rights.
5.6 GS1 Australia may, at any time, without any liability to You, remove any Content which it reasonably regards as likely to be in, or cause a, breach of these terms and conditions (including, without limitation, any warranty in clause 5.5 or any other provision of these terms and conditions) by You.
5.7 You represent and warrant to GS1 Australia that You own, or are entitled to use, all intellectual property rights in Your Content and that You have the right to grant GS1 Australia the licence referred to in clause 5.8. Where Your Content contains any material in which any third party has intellectual property rights, You warrant to GS1 Australia that You have the right to grant GS1 Australia the licence referred to in clause 5.8 or You must procure a licence from that third party to GS1 Australia in substantially the same terms.
5.8 You grant to GS1 Australia a non-exclusive, perpetual, worldwide, irrevocable and royalty free licence (with a right to sub-license GS1 International and other GS1 Member Organisations) to use, reproduce and adapt Your Content for the purposes of providing the GS1 system and otherwise complying with its obligations under these terms and conditions.
5.9 To assist in authentication of GS1 ID Keys still in circulation, You:
a. must, on request, provide to GS1 Australia details of all GS1 ID Keys Allocated to You that have been Assigned by You, or for or on behalf of You, or, in the case of Transferred GS1 ID Keys, assigned by a Transferor, or for or on behalf of a Transferor;
b. must, on request, provide to GS1 Australia details of all GS1 ID Keys, (whether or not Allocated to You) and Authorised GS1 Data Carriers that You have processed; and
c. recognise GS1 Australia’s right to authenticate GS1 ID Keys, whether still in circulation or not, through checking with GS1 International and GS1 International services, relevant regulatory bodies, and/or any services provided by third parties, through the sharing of basic data and Content with or by access to those services.
5.10 You represent and warrant to GS1 Australia that Your Licence Application is true, accurate and complete, in every particular.
6.0 GS1’s Obligations
6.1 GS1 represents and warrants that the licence provided by GS1 will not infringe intellectual property rights of any third parties.
6.2 GS1 will comply with its obligations set out in the terms and conditions of this Subscription Membership and Licence agreement.
7.0 Use of GS1 ID Keys and Authorised GS1 Data Carriers and other Intellectual Property
7.1 You:
a. may use only GS1 ID Keys for the Authorised Uses;
b. must not Assign or Allocate (or otherwise apply or use in any way) GS1 ID Keys Allocated by GS1 Australia, GS1 International and other GS1 Member Organisations to any other person (Issued Company) in respect of an Item or thing to identify, track or trace any Item or thing other than that Issued Company’s Item or thing;
c. must not apply or 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 Assign the GS1 ID Keys Allocated to You in respect of Your Items;
e. must not alter any GS1 ID Keys in any way;
f. must not Assign (or otherwise apply or use) any of Your GS1 ID Keys outside the scope of the original Assignation (whether by You or a Transferor) for that GS1 ID Key;
g. recognise GS1 Australia’s title to the GS1 ID Keys, 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 Australia’s rights in regard to GS1 ID Keys, Authorised GS1 Data Carriers and the GS1 system or related intellectual property;
h. must only Assign GS1 ID Keys in accordance with Your Membership Subscription Type as follows:
i. If Your Membership Subscription Type is “Individual Barcode Numbers (GTINs)” then You are restricted to Assigning GS1 ID Keys Allocated to You as single numbers (whether issued as a single number or a block of single numbers) for use as GTINs regardless of currency of number;
ii. If Your Membership Subscription Type is “Full” then You are restricted to Assigning GS1 ID Keys from the GS1 Company Prefix(es) allocated to You as well as any individual GS1 ID Keys otherwise uniquely Allocated to You by GS1 Australia;
iii. If Your Membership Subscription Type is “Global Location Number” then You are restricted to Assigning GS1 ID Keys Allocated to You as single numbers (whether issued as a single number or a block of single numbers) for use as GLNs regardless of currency of number;
iv. If Your Membership Subscription Type is “Individual Hospital” then You are restricted to Assigning GS1 ID Keys from the GS1 Company Prefix(es) allocated to You as well as any individual GS1 ID Keys otherwise uniquely allocated to You; or
v. If Your Membership Subscription Type is “Service Only” then You are not able to Assign GS1 ID Keys Allocated to You to any Item or for use as any GS1 ID Key Type;
i. For all Membership Subscription Types other than “Service Only”, You are able to apply to license, with payment of appropriate fees, additional GS1 ID Keys Allocated to You by GS1 Australia as single numbers or a block of single numbers for use as GTINs or GLNs in the manner provided for in the relevant application;
j. In the case of upgrading or downgrading Membership Subscription Types, or transferring GS1 ID Keys across Membership Subscription Types, any GS1 ID Key so transferred must be only used as the original GS1 ID Type and as originally Assigned (whether by You or a Transferor);
k. must not permit or procure anyone else to Assign or Allocate (or otherwise apply the GS1 ID Keys or Electronic Product Codes (if applicable Allocated to You to anything (other than to Items being trade items manufactured by or for You under contract);
l. must ensure that the Items bear all proprietary notices that GS1 Australia may require from time to time;
m. except in relation to validly Transferred GS1 ID Keys, must not sell, transfer, or assign (or attempt to sell, transfer or assign) the GS1 ID Keys Allocated to You by GS1 Australia; and
n. irrevocably consent to GS1 Australia using and sharing Content about Your Items as part of the GS1 system, sharing Content about Your Items with data recipients participating in the GS1 system, sharing Content about Your Items with regulatory bodies on request, and sharing Content about Your Items with other GS1 Australia, GS1 International and other GS1 Member Organisation services such as, but not limited to, services provided within the GS1 Registry Platform and GEPIR which are shared with data recipients participating in the GS1 system. For the avoidance of doubt, if You provide any URL or other Content about Your Items, You irrevocably consent to GS1 Australia providing that URL or other Content to members of the public generally using mobile applications or other devices such as, but not limited to, those that interface with GS1’s Digital Link service. If You are an individual or sole trader You have the right to be de-identified upon request.
8.0 Third Party Service Provider’s obligations
8.1 This clause 8.0 applies to You only if You are a Third Party Service Provider acting on behalf of a licensed user of the GS1 system (“Your Customer”).
8.2 Without limiting any other provision of these terms and conditions and unless otherwise specified by GS1 Australia in writing, You are solely responsible for:
a. obtaining necessary authority from Your Customers to act on their behalf and providing evidence of such authority to GS1 Australia on request;
b. obtaining all necessary licences from Your Customers in relation to Your use of their Content;
c. complying with all Your Customers’ obligations under these terms and conditions in respect of their use of the GS1 system and provision of their Content when acting on Your Customers’ behalf (as if any reference to You and Your Content in these terms and conditions were a reference to Your Customers and Your Customers’ Content); and
d. complying with all applicable laws in relation to Your use of Your Customer’s Content.
8.3 You acknowledge that GS1 Australia is not party to any transaction between You, Your Customers or otherwise in relation to Your use of Your Customer’s Content and that GS1 Australia has no responsibility:
for ensuring the correctness, accuracy, completeness, or suitability for intended purpose of any Content; or
with respect to any transaction itself (including any claim or dispute relating to that transaction).
8.4 You acknowledge that Your access to, or use of, Your Customer’s Content may be suspended, without liability to GS1 Australia, at any time:
a. by Your Customer for any reason; or
b. by GS1 Australia for any reason including, without limitation, if all third parties for whom You act have been suspended or terminated.
GS1 Australia will attempt to notify You of any such suspension but will not be liable to You if it does not do so.
9.0 Use of Trademarks for Marketing/Promotion
With GS1 Australia’s prior written consent, You may use the GS1 Australia Trademarks for marketing and promotion of the Items. You must ensure that the Trademarks are reproduced only in accordance with the manner, form and other guidelines specified to You by GS1 Australia from time to time.
10.0 Indemnity
10.1 You agree to indemnify and keep indemnified GS1 Australia against all claims, suits, losses, damages or costs suffered or incurred by GS1 Australia as a result of Your conduct, Your use of the GS1 ID Keys or Authorised GS1 Australia Data Carriers, or any breach of these terms and conditions by You (including, without limitation, any representation or warranty by You (except to the extent caused by GS1 Australia’s negligence or wilful misconduct).
10.2 You agree to indemnify and keep indemnified GS1 Australia, GS1 International and any other GS1 Member Organisation from any claims, suits, losses, damages or costs suffered or incurred by them (including reasonable legal fees and costs) arising from or in connection with any action, claim, demand or proceeding by a third party relating to, resulting from or arising out of any allegation that use, publication or distribution of Your Content infringes any intellectual property rights of any person, any contravention or alleged contravention of applicable laws by You or otherwise any allegation that any Content has been provided in breach of any representations or warranties in these terms and conditions.
11.0 Limitation of Liability
11.1 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 Australia limits the liability for breach of that term to the resupply or payment of the cost of resupply of the relevant services.
11.2 To the fullest extent permitted by law, GS1 Australia excludes all liability (whether arising in negligence, breach of contract or breach of any law) in connection with this Subscription Membership & Licence Agreement for any indirect or consequential loss or damage, including lost profits and revenue.
11.3 To the fullest extent permitted by law, GS1 Australia’s total liability to You for loss or damage of any kind arising out of this Subscription Membership & Licence Agreement which is not excluded by clause 11.2 is limited, for any and all claims, to the total Fee paid during the 12 month period prior to the relevant liability accruing.
11.4 You acknowledge that you are solely liable for the Content provided to GS1 Australia pursuant to these terms and conditions. To the fullest extent permitted by law, You are solely liable for loss or damage of any kind (including, without limitation, actual, direct, consequential, indirect, incidental, or punitive loss or damages, even if advised of the possibility of such loss or damage) relating to or arising out of any third party’s use of the Content provided by You.
12.0 Privacy and Confidentiality
12.1 GS1 Australia’s commitment to privacy is set out in the ‘Privacy Statement’ (available at www.gs1au.org). 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.
12.2 If You are an individual or sole trader company, You can request that Your personal information is to be kept private wherever possible, such notice being given through the mechanism provided in this Subscription Membership and Licence Agreement or through advice delivered in writing.
12.3 You acknowledge that, whilst individuals may unsubscribe from certain communications, one (1) individual must be nominated at all times to receive communications from GS1 Australia in relation to Your subscription membership (including, without limitation, GS1 Australia’s newsletter to subscriber members).
12.4 Both parties must always keep confidential and secure and not use or disclose any information of the other party that is identified as, or would reasonably be expected to be, proprietary, confidential or commercially sensitive except as permitted by this Subscription Membership & Licence Agreement. Each party must only disclose that information:
a. to the extent necessary to perform their obligations under this Subscription Membership & Licence Agreement and on a ‘need-to- know’ basis only;
b. if the other party authorises it in writing; or
c. as required by law.
12.5 You agree that GS1 Australia may make any inquiries it deems necessary to investigate Your creditworthiness including undertaking inquiries with financial institutions, credit reporting agencies, any personal credit and/ or consumer credit information providers (“Sources”). You authorise the Sources to disclose any information concerning Your creditworthiness in its possession to GS1 Australia. You agree that GS1 Australia may disclose any information in its possession concerning Your credit worthiness to the Sources (including, without limitation, information as to whether You are in default of payment of any Fees).
12.6 You agree that GS1 Australia may make inquiries of third parties (including the Sources) to obtain Your Turnover to determine the Fees applicable to You and to verify any Turnover information provided by You and otherwise Your compliance with this Subscription Membership and Licence Agreement.
13.0 Termination
13.1 In the event that You, the licensee, elect to terminate this Subscription Membership & Licence Agreement for any reason, a request for termination must be advised on a standard GS1 Australia Termination of Subscription Membership & Service Notification Form, or copy thereof, signed by an authorised representative of your organisation. Non-payment of subscription membership fees is not recognised as a proper request to terminate.
13.2 In its discretion, GS1 Australia may terminate this Subscription Membership & Licence Agreement immediately by giving notice if:
You fail to pay any Fee by its due date;
You commit a breach of Your obligations under this Subscription Membership & Licence Agreement;
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
the GS1 Master Australian Licence is terminated or GS1 Australia otherwise ceases to hold the necessary licence rights to allocate GS1 ID Keys or Electronic Product Codes in Australia.
13.3 In any other circumstances:
a. GS1 Australia may terminate this Subscription Membership & Licence Agreement by giving six months written notice to You;
b. You may terminate this Subscription Membership & Licence Agreement by giving one month written notice to GS1 Australia on a standard GS1 Australia Termination of Subscription Membership & Service Notification Form, or copy thereof, signed by an authorised representative of your organisation.
13.4 Termination of this Subscription Membership & Licence Agreement does not relieve either GS1 Australia or You from liability arising from any prior breach of the terms of this Subscription Membership & Licence Agreement. For the avoidance of doubt, termination does not relieve you from your obligations regarding payment of any outstanding fees for this subscription membership and licence.
14.0 Consequences of Termination
14.1 On termination of this Subscription Membership & Licence Agreement, Your rights under this Agreement terminate and You must:
a. immediately cease assigning 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 Australia all amounts due to GS1 Australia under this Subscription Membership & Licence Agreement at the termination date.
14.2 You are not entitled to any rebate or refund of the Fee or any other fees or charges paid under this Subscription Membership & Licence agreement, unless this Agreement expressly states otherwise.
14.3 On termination of this Subscription Membership and Licence Agreement, GS1 Australia has the right to reallocate the GS1 ID Keys and Electronic Product Codes to GS1 Australia or another organisation in accordance with the GS1 Allocation Rules.
14.4 Notwithstanding termination of this Subscription Membership and Licence Agreement, GS1 Australia may retain the Content provided by You pursuant to these terms and conditions and the licence granted under clause 5.8 of these terms and conditions shall survive termination. Any Content so retained will be marked in the GS1 system as no longer updated. You may, at any time, request in writing to GS1 Australia that the Content be no longer so shown, save that You acknowledge that the Content will be retained (but not displayed) in the GS1 system for data integrity and archival purposes.
14.5 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, 5.0, 10.0, 11.0, 12.0, 14.0, 18.0 and 19.0.
14.6 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 Australia to make reasonable enquiries with third parties (including, without limit, retailers) to ascertain whether You are acting in breach of this Agreement and, in particular, clause 14.1 hereof.
15.0 Regulatory Requirements for Medical Products
15.1 You understand that GS1 Australia is a GS1 Member Organisation of GS1 International which has been accredited by certain regulatory agencies as an issuer of UDIs and in that capacity both are subject to certain regulatory obligation such as, but not limited to, reporting of companies that use the GS1 Standards for unique identification of medical devices.
15.2 You understand that when You use a GS1 ID Key such as a GTIN to identify an Item that may be characterised as a medical device under the laws of the country where such product is marketed (‘Medical Device’), the following rules shall apply:
a. upon making Your Licence Application, You must inform GS1 Australia if a GS1 ID Key will be used to identify a Medical Device and in which country the related product will be marketed;
b. You are, and shall at all times remain, responsible for the information about the Medical Device provided by You to GS1 Australia and for compliance with any applicable regulatory obligations and shall ensure any information provided to GS1 Australia is accurate and up to date at all times;
c. GS1 Australia may monitor correct implementation of the GS1 Standards by You;
d. In the event GS1 Australia identifies a UDI Deficiency, GS1 Australia may inform You in writing (addressed to Your usual contact person) of such UDI Deficiency, suggesting a way to correct the UDI Deficiency and requiring You to correct such UDI Deficiency within 90 calendar days from the date of the notification (the ‘UDI Correction Period’);
e. GS1 Australia may monitor whether You have corrected a UDI Deficiency within the UDI Correction Period. Failing such correction, at the latest eight (8) calendar days after expiry of the UDI Correction Period, GS1 Australia may contact You again and seek to amicably resolve the UDI Deficiency;
f. If the UDI Deficiency is not corrected within an additional period of 90 days from the expiry of the UDI Correction Period and pertains to a repeated and/or deliberate misuse of the GS1 Standards related to UDI, GS1 International, working with GS1 Australia, may inform the relevant regulator and modify the use (including suspension and revocation) of the GS1 ID Key for UDI implementation in the relevant jurisdiction, as a follow-up action taken in cooperation with the relevant regulator; and
g. You acknowledge and agree that GS1 Australia must, in the context of its regulatory obligations, share certain information with the relevant regulators either directly or via GS1 International, including without limitation the fact that You use GS1 ID Keys to identify Medical Devices marketed in the regulator’s country, the GS1 ID Key, the name of Your company, as well as any identified and uncorrected UDI Deficiencies. You understand that neither GS1 Australia nor GS1 International may be held liable for any direct or indirect consequences, losses or damages resulting from GS1 Australia and/or GS1 International providing such information to a regulator.
16.0 Training
16.1 You, or an appropriate member of Your staff, are required to attend an initial basic training session to familiarise Yourself with the GS1 system, such training can be delivered face to face, via virtual webinars or by online self-paced learning at GS1 Australia’s discretion. If the initial basic training is attended within 12 months of the date the subscription membership was granted then it will be provided free of charge for one participant.
You may elect to attend other training courses and sessions, attendance at which may attract fees and charges.
17.0 Notices
17.1 All notices and other communications in connection with this Subscription Membership & Licence Agreement:
a. must be in writing; and
b. take effect from the time they are received unless a later time is specified.
17.2 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).
17.3 Notices and other communications sent by email are taken to be received at the time shown in the email transmission report at the time that the whole communication was sent.
17.4 Notices for You will be sent to the address specified on Your Licence Application (or such other address as You may notify GS1 Australia of from time to time).
17.5 Notices for GS1 Australia must be sent to Customer Service at GS1 Australia’s address as notified to You from time to time.
17.6 It is Your responsibility to ensure that notices sent to You by email are able to be received by the intended recipient, i.e., are not blocked, bounced or sent to offline folders.
18.0 General Provisions
18.1 This Subscription Membership & 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.
18.2This Subscription Membership & 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.
18.3 A provision of this Subscription Membership & Licence Agreement or a right created under it may not be waived except in writing, signed by the party giving the waiver.
18.4 GS1 Australia may vary the terms and conditions of this Subscription Membership & 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 & Licence Agreement on GS1 Australia’s website shall constitute written notice to You. Any such variation notified by GS1 Australia 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 Australia 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.
18.5 You must not assign, transfer, or sublicense Your rights or obligations under the Licence or this Subscription Membership & Licence Agreement generally without the prior written consent of GS1 Australia. GS1 Australia may require, as a condition to its consent to any transfer of Your rights under the Licence, the provision to GS1 Australia of a completed and signed transfer form in respect of the transfer of rights, in such form as may be required by GS1 Australia from time to time.
18.6 GS1 Australia may offer Additional Products and Services, for which we may charge You additional fees and charges (in addition to the Fee) and which will be subject to separate terms and conditions.
18.7 If any provision of this Subscription Membership and Licence 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.
19.0 Definitions
These meanings apply to this Subscription Membership and Licence Agreement unless the contrary intention appears:
‘Additional Products and Services’ means all products and services provided by GS1 Australia other than the GS1 system, including, without limitation, all training, testing, consultancy and data synchronisation services (such as the National Product Catalogue [‘NPC’] or SmartMedia).
‘Allocation’ or ‘Allocate’ means the process by which GS1 ID Keys are issued and/or registered by GS1 Australia to You or, in the case of Transferred GS1 ID Keys, to the Transferor.
‘Assignation’ or ‘Assign’ means the process by which You, or GS1 Australia, assign or relate the GS1 ID Keys, which are Allocated to You, to each of Your Items (including, without limitation, data related to that Item and the GS1 ID Key Type) or, in the case of Transferred GS1 ID Keys, the Transferor or GS1 Australia, assigned or related the GS1 ID Keys to each of Your Items (including, without limitation, data related to that Item and the GS1 ID Key Type).
‘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 in accordance with the terms and conditions of this Subscription Membership and Licence Agreement.
‘Barcode Symbols’ means the GS1 Data Carriers designed to carry the GS1 ID Keys and other attribute information in a machine readable form.
‘Content’ means the text, images, data (including associated weblinks) and other material relating to Items provided by You to GS1 Australia.
‘Fee’ means the fee for subscription membership payable annually by You to GS1 Australia specified in the Licence Application (as varied from time to time according to clause 3.2) and available on the GS1 Australia website.
‘GS1 Australia’ means GS1 Australia Limited ABN 67 005 529 920, a company limited by guarantee.
‘GS1 Company Prefix’ means a unique string of digits assigned to You by a GS1 Member Organisation to be used to issue GS1 identification keys. GS1 Company Prefixes starting with a zero (‘0’) become U.P.C. Company Prefixes by removing the leading zero.
‘GS1 International’ means GS1 association international sans but lucratif, a company incorporated in Belgium.
‘GS1 Master Australian Licence’ means the exclusive licence granted by GS1 International to GS1 Australia to allocate GS1 ID Keys in Australia.
‘GS1 Member Organisations’ means members of GS1 International and which includes GS1 Australia and ‘GS1 Member Organisation’ has a corresponding meaning.
‘GS1 Identification (ID Keys’ or ‘GS1 ID Keys’ or ‘GS1 Numbers’ means, in respect of a subscriber member of GS1 Australia, the GS1 Company Prefix and associated range of GS1 Identification numbers, and individual keys Assigned by GS1 Australia that are licensed to that subscriber member by GS1 Australia in accordance with the GS1 Master Australian Licence and any additional related information issued to that subscriber member by GS1 Australia in accordance with the GS1 Standards, regardless of how they are encoded in data carriers.
‘GS1 ID Key Type’ means the type of GS1 ID Keys issued by GS1 Australia in accordance with the GS1 Master Australian Licence, including, without limitation, GTINs and GLNs.
'GS1 Registry Platform' means a registry of keys and associated data that includes components including but not limited to infrastructure, global data dictionary, GS1 licence registry, GS1 key registry, data in services, and data out services.
‘GS1 Standards’ means any and all standards, guidelines and rules relating to the GS1 system (as may be implemented, amended or replaced by GS1 Australia or GS1 International from time to time) and includes, without limitation, the following (as may be implemented, amended or replaced from time to time):
a. the GS1 General Specifications, and in particular Section 4 of this document, and referenced management standards, available at https://www.gs1.org/barcodes-epcrfid-id-keys/gs1-general-specifications;
b. the GDSN Standards, available at https://www.gs1.org/standards/gdsn/current-standard;
c. all other standards, guidelines, rules specified https://www.gs1.org/docs/Detailed_Log_website_posting.pdf;
d. all implementation guidelines, technical specifications and other information relating to the foregoing published from time to time on GS1 International’s website at www.gs1.org; and all implementation guidelines, technical specifications and other information relating to the foregoing published from time to time on GS1 Australia’s website.
‘GS1 system’ means:
a. the system of issuing or allocating GS1 ID Keys and Barcode Symbols in accordance with the GS1 Master Australian Licence;
b. the system of issuing or allocating 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, location or other objects.
‘Licence’ means the licence granted by GS1 Australia to You to use the GS1 ID Keys under clause 1.0 of this Subscription Membership & Licence Agreement.
‘Licence Application’ means the application whereby You applied to be allocated GS1 ID Keys to which this Subscription Membership & Licence Agreement relates.
‘Manage My Products’ service means the key issuance and management service for You to view, manage and issue GS1 ID Keys available through the MyGS1 Portal;
‘Membership Subscription Type’ means the type of membership subscription that You have subscribed to either initially when joining or by upgrade or downgrade during the term of the subscription. The Membership Subscription Type determines how many GS1 ID Keys and GS1 ID Key Types that are able to be allocated to You and that You can Assign to Your Items.
‘Moral Rights’ means moral rights under the Copyright Act 1968 (Cth) or other analogous rights arising under any laws that exist or that may come to exist, anywhere in the world.
‘MyGS1 Portal’ means the MyGS1 member portal as made available online to You by GS1 Australia.
‘MyGS1 Portal Terms and Conditions’ means the terms and conditions for use of the MyGS1 Portal.
‘Subscription Membership & Licence Agreement’ means this Subscription Membership & Licence Agreement.
‘Terms of Trade’ means the GS1 Australia Terms of Trade, available at GS1 Australia Terms of Trade.
‘Third Party Service Provider’ means a party authorised by You to apply for or manage GS1 ID Keys and to manage the provision and sharing of Content for the purposes of this Agreement.
‘Trademarks’ means the trademarks associated with GS1 Australia and/or the GS1 system.
‘Transfer’ means the process by which GS1 ID Keys that were issued to a Transferor are transferred by, and with the formal written approval of, GS1 Australia to You.
‘Transferor’ means the person(to whom GS1 ID Keys had previously been Allocated by GS1 Australia.
‘Turnover’ means the Australian based revenue, for a twelve month period, of your organisation including all related subsidiary entities in which you have a majority interest, regardless of the number of products or objects utilising the GS1 system.
‘UDI Deficiency’ means a misconstruction of the UDI, a mismatch between the name of the company holding the license for the GS1 ID Key and the company using the GS1 ID Key or any other inaccurate, incomplete or outdated information related to the UDI.
‘Unique Device Identifier’ or ‘UDI” means a GS1 ID Key such as a GTIN used for unique identification of a medical device.
'Validation and Allocation Rules' means the GS1 Standards relating to validation and assignation of GS1 ID Keys (as may be implemented, amended or replaced by GS1 Australia or GS1 International from time to time) and includes, without limitation:
a. Section 4 of the GS1 General Specifications, and referenced management standards, available at https://www.gs1.org/barcodes-epcrfid-id-keys/gs1-general-specifications
b. all implementation guidelines, technical specifications, and other information available at https://www.gs1.org/1/gtinrules//en/; and
c. all implementation guidelines, technical specifications and other information relating to the foregoing published from time to time on GS1 Australia’s website.
‘You’ means the individual, company, corporation, or other legal entity named in the Licence Application. ‘Your’ has a corresponding meaning.