Membership Subscription & License Agreement
Note: The Membership Subscription & License Agreement sets out the terms and conditions relating to your use of GS1 Standards. You acknowledge that you have read, understood, and agree to be legally bound by these Terms and Conditions.
1. Membership and Grant of License
1.1 You are hereby accepted as, and your License Application constitutes an application to be, a subscriber member of GS1 Kenya.
1.2 GS1 Kenya grants you a non-exclusive and non-transferable license to use the GS1 systems solely for the authorized uses.
The License and these terms and conditions come into effect on the date which GS1 Kenya notifies you of its acceptance of your License Application and continues for the duration of anniversary or until terminated as provided in clause 10.0. It will be renewed annually subject to your compliance with this Membership Subscription & License Agreement.
1.3 Membership fee is payable in advance at every anniversary when you became a member or upon receipt of invoice from GS1 Kenya.
1.4 GS1 Kenya may from time to time, increase the Fee by written notice without further reference or consultation with you.
1.5 All payments should be paid through bank account or M-pesa.
1.6 If you are overdue in payment of any amount, GS1 Kenya reserves the right to:
- Deny access to membership services.
- GS1 Kenya reserves the right to charge a fee in relation to bank processing charges imposed on GS1 Kenya in respect of payments for this Membership Subscription and License agreement.
4. VAT and Other Taxes
1.7 All amounts payable under this Membership Subscription & License Agreement are exclusive of VAT.
1.8 You must pay all other taxes imposed in Kenya in respect of this Membership Subscription & License Agreement.
5. Member’s Obligations
1.9 You should:
- Not at any time during the term of this Membership Subscription & License Agreement, or after its termination, do or omit to do anything whereby GS1 Kenya’s goodwill or business may be prejudicially affected or brought into disrepute;
- Comply with the standards set out in the guidelines and such other directions in relation to use of the GS1 Standards as GS1 Kenya may give from time to time.
- Comply with the applicable GS1 Kenya Online Portal Terms and Conditions published on the GS1 Kenya website; and
- Comply with any regulations, standards or number allocation rules enforced by regulatory bodies that are impacted by your use of the GS1 Standards.
1.10 To assist in authentication of GS1 Standards still in circulation you:
- Must on request, provide to GS1 Kenya with details of all GS1 barcodes allocated.
- Recognize GS1 Kenya’s right to authenticate GS1 barcodes, whether still in circulation or not.
6. GS1 Kenya’s Obligations
1.11 GS1 Kenya represents and warrants that the license it provides will not infringe intellectual property rights of any third parties.
1.12 GS1 Kenya will comply with its obligations set out in the terms and conditions of this Membership Subscription and License agreement.
1.13GS1 Kenya liability is to protect the data provided and shall not pass to a third party without your consent as per Data Protection Act of Kenya, 2019.
1.14 GS1 Kenya will accept all data provided by you as true, accurate, complete and lawful. GS1 Kenya shall not be liable to any discrepancies, omissions or commissions.
7. Regulatory Requirements for Medical Devices
1.15 You understand that GS1 Kenya is a Member Organization of GS1 Global Office 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.
1.16 You understand that when You use a GS1 ID Key such as a GTIN to identify an Item that may be characterized as a medical device under the laws of the country where such product is marketed (‘Medical Device’), the following rules shall apply:
- Upon making your License Application, you must inform GS1 Kenya if GS1 ID Key will be used to identify a Medical Device and in which country the related product will be marketed;
- You are, and shall at all times remain, responsible for the information about the Medical Device provided by you to GS1 Kenya and for compliance with any applicable regulatory obligations and shall ensure any information providedto GS1 Kenya is accurate and up to date at all times;
- GS1 Kenya may monitor correct implementation of the GS1 Standards by you;
- In the event GS1 Kenya identifies a UDI Deficiency, GS1 Kenya 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’);
- GS1 Kenya 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 Kenya may contact you again and seek to amicably resolve the UDI Deficiency;
- 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 Global Office, working with GS1 Kenya, 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
- You acknowledge and agree that GS1 Kenya must, in the context of its regulatory obligations, share certain information with the relevant regulators either directly or via GS1 Global Office, 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 Kenya nor GS1 Global Office may be held liable for any direct or indirect consequences, losses or damages resulting from GS1 Kenya and/or GS1 Global Office providing such information to a regulator.
8. Intellectual Property
1.17 GS1 Standards can only be used as authorized;
1.18 GS1 standards assigned or allocated to you cannot be re-assigned/re-allocated to another company/party.
1.19 You are not permitted to modify/copy 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.
1.20 You must not assign (or otherwise apply or use) any of your GS1 Standards outside the original assignation.
1.21 You recognize GS1 Kenya’s title to the GS1 Standards 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 Kenya’s rights in regard to GS1 Standards.
1.22 You irrevocably consent to GS1 Kenya 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 GS1 Global Office and other GS1 Member Organization services such as, but not limited to, services provided within the GS1 Registry Platform.
9. Third Party Service Provider’s obligations
1.23 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.
1.24 Without limiting any other provision of these terms and conditions and unless otherwise specified by GS1 Kenya in writing, you are solely responsible for:
- Obtaining necessary authority from your customers to act on their behalf and providing evidence of such authority to GS1 Kenya on request;
- Obtaining all necessary licenses from your customers in relation to Your use of their Content;
- 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);
- Complying with all applicable laws in relation to your use of your customer’s content.
1.26 You acknowledge that GS1 Kenya 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 Kenya 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).
1.27 You acknowledge that your access to, or use of, your customer’s content may be suspended, without liability to GS1 Kenya, at any time:
- By Your customer for any reason; or
- By GS1 Kenya for any reason including, without limitation, if all third parties for whom You act have been suspended or terminated.
1.28GS1 Kenya will attempt to notify You of any such suspension but will not be liable to You if it does not do so.
1.29 You agree to indemnify and keep indemnified GS1 Kenya against all claims, suits, losses, damages or costs suffered or incurred by GS1 Kenya as a result of your conduct, use of the GS1 Standards or 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 Kenya’s negligence or willful misconduct).
1.30 You agree to indemnify and keep indemnified GS1 Kenya, GS1 Global Office and any other GS1 Member Organization 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.
1.31 In the event that you, the licensee, elect to terminate this Membership Subscription & License Agreement for any reason, a request for termination must be advised on a standard GS1 Kenya Termination of Membership Subscription Notification Form. Non-payment of Membership Subscription fees is not recognized as a request to terminate.
1.32In the event of breach these terms and conditions, GS1 Kenya reserves the right to terminate your membership.
1.33 Termination of this Membership Subscription & License Agreement does not relieve either GS1 Kenya or you from liability arising from any prior breach of the terms of this Membership Subscription & License Agreement.
12. Consequences of Termination
1.34 On termination of this Membership Subscription & License agreement, your rights under this agreement terminate and you must:
- Immediately cease assigning the GS1 Standards
- Return the assigned company prefix back to GS1 Kenya,
- Pay to GS1 Kenya all amounts due to GS1 Kenya under this Membership Subscription & License Agreement at the termination date.
1.35 You or a nominated member of your staff, are required to attend an initial basic training session to familiarize yourself with the GS1 system.
1.36 All notices in connection with this Membership Subscription & License Agreement:
- Must be in writing; and
- Take effect from the time they are received unless a later time is specified.
1.37 Notices for you will be sent to the address specified on your License Application (or such other address as you may notify GS1 Kenya of from time to time).
1.38 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.
15. General Provisions
1.39 This terms and conditions supersedes all previous membership terms and conditions.
These meanings apply to this Membership Subscription and License Agreement unless the contrary intention appears:
- ‘Additional Products and Services’ means all products and services provided by GS1 Kenya other than the GS1 system, including, without limitation, all training, testing, consultancy and data synchronization services.
- ‘Allocation’ or ‘Allocate’ means the process by which GS1 Standards are issued and/or registered by GS1 Kenya to You or, in the case of Transferred GS1 Standards, to the Transferor.
- ‘Assignation’ or ‘Assign’ means the process by which You, or GS1 Kenya, assign or relate the GS1 Standards, 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 Standards, the Transferor or GS1 Kenya, assigned or related the GS1 Standards to each of Your Items (including, without limitation, data related to that Item and the GS1 ID Key Type).
- ‘Content’means the text, images, data (including associated weblinks) and other material relating to Items provided by You to GS1 Kenya.
- ‘Fee’ means the fee for Membership Subscription payable annually by You to GS1 Kenya specified in the License Application
- ‘GS1 Kenya’ means GS1 Kenya Limited, a company limited by guarantee.
- ‘GS1 Company Prefix’ means a unique string of digits assigned to You by a GS1 Member Organization to be used to issue GS1 Identification keys.
- ‘GS1 Global Office’ means GS1 association international sans but lucratif, a company incorporated in Belgium.
- ‘GS1 Member Organizations’ means members of GS1 Global Office and which includes GS1 Kenya and ‘GS1 Member Organization’ has a corresponding meaning.
- 'GS1 Registry Platform' means a registry of keys and associated data that includes components including but not limited to infrastructure, global data dictionary, GS1 license 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 Kenya or GS1 Global Office from time to time) and includes, without limitation, the following (as may be implemented, amended or replaced from time to time).
‘GS1 system’ means:
- The system of issuing or allocating GS1 Standards and Barcode Symbols in accordance with the GS1 Master Kenyan License;
- The system of issuing or allocating Electronic Product Codes; and
- Electronic business messaging systems, but expressly excludes all Additional Products and Services.
- ‘Item’ means a trade item, process, service, shipment, asset, entity, location or other objects.
- ‘License’ means the license granted by GS1 Kenya to You to use the GS1 Standards under clause 1.0 of this Membership Subscription & License Agreement.
- ‘License Application’ means the application whereby You applied to be allocated GS1 Standards to which this Membership Subscription & License Agreement relates.
- ‘Membership Subscription &LicenseAgreement’ means this Membership Subscription & License Agreement.
- ‘Third Party Service Provider’ means a party authorized by You to apply for or manage GS1 Standards and to manage the provision and sharing of Content for the purposes of this Agreement.