(1) GS1 UK LTD, a not for profit association, incorporated under the laws of England and Wales under company registration number 01256140, whose registered office is at Hasilwood House, Bishopsgate, London, EC2N 4AW (“GS1 UK”); and
(2) means the Customer whose details are set out in the Order Form (“Customer”).
1.1 in this Agreement the following words and expressions shall have the following meaning:
|ADR Notice||has the meaning in clause 19.1.3;|
|Acceptance||shall have the meaning in clause 2.4;|
|Business Day||means a day of the week except Saturday, Sunday or a public holiday in England and Wales;|
|CEDR||has the meaning in clause 19.1.3;|
|Commencement Date||shall have the meaning in clause 2.5;|
|Company Administrator||means a user of TrueSource who has full access to Items and subscriptions and who can edit company information;|
|Customer Content||means data imputed into TrueSource by or on behalf of a Customer;|
|Data Protection Legislation||the General Data Protection Regulations (Regulation (EU) 2016/679) as updated from time to time, and all applicable laws and regulations relating to the processing of personal data and privacy, including the Data Protection Act 2018 and where applicable the guidance and codes of practice issued by the Information Commissioner;|
|Dispute Notice||has the meaning in clause 19.2.1;|
|Data Recipient||means a company who receives information regarding Items which have been published via the GDSN by a Customer, or who may subscribe to an Item;|
|Developments||has the meaning in clause 11.2;|
|Dispute||has the meaning in clause 19.1;|
|Editor(s)||means a user of TrueSource who has full access to Items and subscriptions;|
|GDSN||means the Global Data Synchronisation Network;|
|Group||means in relation to a company, that company, any subsidiary and any holding company, together with any subsidiary of that holding company. Each company in the group is a member of the Group;|
|GTIN||means a Global Trade Item Number;|
|Fees||means the fees (including the Initial Fee and Renewal Fees) set out in the Order Form for Services;|
|Initial Fee||means the fees for the Services from the Commencement Date to the Renewal Date as set out in the Order Form;|
|Intellectual Property Rights||means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;|
|Item||means information uploaded in relation to a product including a description, the relevant GTIN, the target market and the unit descriptor by a User on behalf of a Customer and listed in TrueSource;|
|Licence||a non-exclusive, non-transferable, revocable licence to use and access TrueSource for business purposes in accordance with the Agreement during the Licence Term;|
|Licence Term||shall have the meaning in clause 3.3;|
1.2.1 Clause headings shall not affect the interpretation of this Agreement;
1.2.2 references to any legislation shall include any statutory or other re-enactment or modification thereof (whether before or after the date of this Agreement);
1.2.3 where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders;
1.2.4 references to Parties include references to their respective successors in title, permitted assigns and novatees;
1.2.5 references to a person includes companies or other bodies corporate as well as individuals, partnerships and all types of firms, associations and unincorporated bodies;
1.2.6 a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.7 any obligation on a Party not to do something includes an obligation not to allow that thing to be done;
1.2.8 a reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
2.1 In the event of any inconsistency between the Agreement and the Order Form, the following order of precedence shall apply (1) Agreement, and (2) Order Form.
2.2 To apply for the Services, the Customer must complete an Order Form, together with providing GS1 UK with any additional information it may require in respect of the Services, as applicable or requested.
2.3 GS1 UK is not obliged to accept all Order Forms, and reserves the right (prior to the collection of payment) not to provide the Services to the Customer for any reason.
2.4 Once an Order Form has been submitted by the Customer and GS1 UK have confirmed acceptance of such Order Form by email to the Customer (“Acceptance”), GS1 UK shall request payment of the Initial Fee.
2.5 Access to the Services shall commence within two Business Days of Acceptance (“Commencement Date”).
2.6 Where the Customer fails to provide sufficient information to GS1 UK to complete the Services, this may result in the Customer not receiving the Services. GS1 UK will not be responsible for any loss the Customer suffers as a result of this.
2.7 Where the Customer completes an Order Form requesting the Services, the Order Form shall be deemed received on the day of submission.
2.8 To access the Services the Customer will be required to ensure:
2.8.1 it has access to the internet to enable it to access TrueSource;
2.8.2 it sets up at least one log-in account which will be password protected;
2.8.3 it follows the reasonable instructions of GS1 UK in relation to configuration and set up; and
2.8.4 it has the systems necessary to enable access to TrueSource as communicated form GS1 UK from time to time.
2.9 Access to the Services enables a Customer to:
2.9.1 create, edit, validate and publish Items via the GDSN; and
2.9.2 receive and read subscriptions by Data Recipients to Items the Customer has published.
3.1 Other than Customer Content which includes information licenced to the Customer by GS1 UK, the Customer shall own Intellectual Property Rights in the Customer Content it uploads to TrueSource.
3.2 Subject to clause 3.1, all Intellectual Property Rights contained in TrueSource including but not limited to improvements, shall be owned by GS1 UK. The Customer hereby agrees to execute all documents, make all application and give all assistance to GS1 UK required to ensure that the Intellectual Property Rights referred to in this clause 3.2 vest in GS1 UK.
3.3 Subject to the payment of Fees, GS1 UK shall grant the Customer (and its authorised Users) the Licence from the Commencement Date until the Renewal Date. Thereafter, the Customer shall be entitled to request an extension of the Licence for subsequent 12 month periods on an annual basis by paying the Renewal Fees. Where accepted by GS1 UK the licence shall continue for any renewed period (unless otherwise terminated in accordance with the Agreement) (“Licence Term”). GS1 UK reserves the right to reject any request for an extension at its discretion.
3.4 Upon the expiration of the Licence Term, the Customer shall not be entitled to use the Licence and will need to submit a new Order Form for use of the Services.
3.5 The Customer hereby grants GS1 UK a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferrable licence (with the right to sub-licence) to use Customer Content for the purpose of providing the Services and for any other business purpose required.
4.1 In relation to TrueSource, GS1 UK:
4.1.1 reserves the right to suspend access to TrueSource for maintenance or where required by law;
4.1.2 reserves the right to amend, update, add to or vary content not including Customer Content (unless the Customer provides their express consent) contained within TrueSource;
4.1.3 makes no warranties or representations as to the accuracy of the information provided through TrueSource, in particular Customer Content;
4.1.4 cannot guarantee that TrueSource will be bug or virus free, and it is the responsibility of the Customer to ensure that they have sufficient anti-virus protection in place;
4.1.5 will not be responsible for any loss suffered as a result of data which is incorrectly uploaded to TrueSource.
4.2 TrueSource should only be accessed by those Users authorised to act on behalf of the Customer only.
4.3 Upon commencement of the Services and prior to having access to TrueSource, the Customer will be required to appoint at least one Company Administrator, and will need to ensure that the Editor(s) and Viewer(s) are registered accordingly.
4.4 To register a User, the Company Administrator must ensure that the User is:
4.4.1 over the age of 18;
4.4.2 an employee, consultant or officer of the Customer; and
4.4.3 only accesses the Customer Account acting as agent, employees or a consultant of the Customer.
4.5 Where a User ceases to comply with the provisions in clause 4.4, the Customer shall immediately terminate that relevant individual’s access to TrueSource.
4.6 Upon request, the Customer shall provide GS1 UK with an up to date list of all current Users within five (5) Business Days from the date of the request.
4.7 Where a User accesses TrueSource on behalf of the Customer, the Customer shall procure that it and any individual accessing TrueSource shall:
4.7.1 be responsible for all use of the Services accessed through that password;
4.7.2 prevent any unauthorised third party from using or accessing the password;
4.7.3 take reasonable and proportionate security measure to keep the password secure and safe;
4.7.4 immediately change the password and notify GS1 UK as soon as the Customer becomes aware of, or suspect that the password has become known to an unauthorised third party;
4.7.5 keep all information accessed confidential and not disclose this to any third party;
4.7.6 ensure that appropriate and up-to-date virus protection program is used on any device which it uses to access TrueSource.
5. Obligations on the customer
5.1 A User will ensure that the information (including personal data) it uploads to TrueSource is accurate and up to date.
5.2 Where exporting data through TrueSource, the Customer will ensure it has the necessary programs (and required licences) to export such information.
5.3 The Customer shall ensure that at all times it has accepted and abides by the Terms of Participation Agreement, and shall indemnify the GS1 UK for any loss it suffers as a result of a Customer’s failure to adhere to its obligations under this this clause 5.3.
5.4 Throughout the term of this Agreement the Customer shall:
5.4.1 not make any derogatory comments about GS1 UK or act in a manner which might be perceived as damaging to GS1 UK’s reputation and goodwill or which may bring GS1 UK’s reputation into disrepute or harm;
5.4.2 not copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the any content provide through the Services or TrueSource;
5.4.3 not knowingly transmit or cause to be transmitted through the Services any electronic material (including viruses) which may or shall cause detriment or harm in any degree to any computer service of GS1 UK or any other person whatsoever;
5.4.4 not remove or alter any copyright notices, watermarks, restrictions and signs provide through the Services which indicate proprietary rights of GS1 UK;
5.4.5 not falsely state or otherwise misrepresent its affiliation with any person or entity, or falsely express or imply that GS1 UK endorses the Customer, its products or any statement it make;
5.4.6 not violate GS1 UK’s rights or the rights any third party;
5.4.7 comply with all applicable laws;
5.4.8 only use the Services and TrueSource for lawful purposes.
5.5 Where GS1 UK is providing the Customer with Services, the Customer shall:
5.5.1 co-operate with GS1 UK as reasonably required by GS1 UK;
5.5.2 provide all information requested by GS1 UK (including but not limited to data, security access information and configuration information) and ensure such information it uploads to Location Manager (including Customer Content) is true, accurate, up to date (at all times) and not misleading, and in a timely manner and notify GS1 UK of any changes to such information within a reasonable time;
5.5.3 comply with any reasonable instructions, rules or guidelines provided by GS1 UK (from time to time);
5.5.4 provide all information requested by GS1 UK (including but not limited to data, security access information and configuration information);
5.6 The Customer agrees to indemnify GS1 UK against any loss it suffers or claims brought by third parties based on the non-compliance by a Customer of clause 5.5.
5.7 The Customer acknowledges and accepts that information uploaded by other Customers (including Customer Content) may contain errors or be out of date. The Customer agrees to take its own due diligence to verify the accuracy of the information it accesses through Location Manager.
5.8 The Customer warrants that:
5.8.1 it has obtained all consents and permissions required under all applicable Data Protection Legislation of any personal information of an individual whose information it provides to GS1 UK;
5.8.2 it has full capacity and authority to enter into and perform this Agreement;
5.8.3 this Agreement will be executed by a duly authorised representative of the Customer; and
5.8.4 there are no actions, suits or proceedings or regulatory investigations pending or, to the Customer’s knowledge, threatened against or affecting the Customer before any court or administrative body or arbitration tribunal that might affect the ability of the Customer to meet and carry out its obligations under this Agreement.
5.9 The Customer Acknowledges that:
5.9.1 GS1 UK does not make any guarantee that TrueSource will be available at all times or that it will be error free or un-interrupted. GS1 UK will not be responsible for delays, delivery failures or any other loss or damage resulting from the transfer of data. The Customer acknowledges that the Services may be subject to limitations, delays or other problems.
5.9.2 it is the Customers obligation to identify from Data Recipients and trading partners the information they require to complete the Items.
5.9.3 once Items are published through TrueSource, the Customer is aware that this will be published via the GDSN and will be made available to those third parties who are Data Recipients and who have subscribed to receive such information. GS1 UK will not be liable for any loss suffered by the Customer where Items are published by the Customer and made publically available.
6.1 GS1 UK reserve the right, by providing reasonable notice to the Customer to audit the Customer’s use of Services. The Customer agrees to permit GS1 UK access to all relevant documents, premise, records, personnel, systems and software necessary to enable GS1 UK to exercise its rights under this clause 6.1
6.2 GS1 UK reserves the right, by providing reasonable notice to request that information in relation to the Customer’s use of the Services is provided within a reasonable time frame.
7.1 The Customer agrees to pay the Fees set out in the Order Form.
7.2 Where the Customer renews the Licence in accordance with clause 3.3, it shall be obliged to pay the Fees set out in the original Order Form for the renewed period (“Renewal Fees”). GS1 UK will generate an invoice upon the commencement of the renewed term.
7.3 All Fees shall be payable within 30 days from the date of the invoice.
7.4 GS1 UK reserves the right to amend the Fees in the event that the Customer publishes over 250 unique GTINs.
7.5 Payment of an invoice shall be made in full and cleared funds in pounds sterling to a bank account nominated by GS1 UK and time for payment on an invoice shall be of the essence.
7.6 All amounts payable by the Customer are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Agreement the Customer shall pay to GS1 UK such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.7 If following receipt of an invoice the Customer (acting reasonably and in good faith) provides GS1 UK with notice that there is a dispute in relation to the invoice then the Customer shall where the dispute relates to part of an invoice, pay the undisputed part of the invoice (together with any other undisputed outstanding invoices) in accordance with this Agreement.
7.8 GS1 UK reserves the right to charge an additional fee for collecting payment from a non-UK bank account.
7.9 All amounts due under the Agreement by the Customer shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.1 Each Party shall maintain the confidentiality of the other Party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other Party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under the Agreement.
8.2 Each Party undertakes to disclose the other Party’s Confidential Information only to those of its officers, employees, agents, contractors and professional advisers or to other members of the Group of companies to which it belongs and their officers, employees, agents, contractors and professional advisers to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under the Agreement and to procure that such persons are made aware of and are bound by obligations of confidentiality.
8.3 Each Party shall give notice to the other of any unauthorised misuse, disclosure, theft or other loss of the other Party’s Confidential Information immediately upon becoming aware of the same.
8.4 The provisions of this clause 8 shall not apply to Confidential Information which:
8.4.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
8.4.2 is lawfully received from a third party free of any obligation of confidence at the time of its disclosure;
8.4.3 is demonstrably independently developed by the recipient, its officers, employees, agents or contractors;
8.4.4 is required by law, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, as far as is reasonably and lawfully practicable the recipient notifies the disclosing Party and, at the disclosing Party’s request and cost, assists the disclosing Party in opposing any such disclosure.
9. Use of data
9.1 Any Customer Content will be considered non-confidential and non-proprietary and the Customer consents to GS1 UK making available to third parties, data relating to the Customer, including Customer Content subject always to the provisions of Data Protection Legislation.
10. Personal data
10.1 GS1 UK and the Customer may each be a Data Controller and/or a Data Processor of personal data.
10.2 Without limiting this clause 10, both Parties will comply with all applicable Data Protection Legislation and otherwise protect personal data and will not use, disclose, or transfer across borders personal data throughout the duration of the Agreement.
10.3 Each Party shall ensure that personal data it holds is kept secure and in an encrypted form, and shall use all reasonable security practices and systems applicable to the use of personal data to prevent, and take prompt and proper remedial action against, unauthorised access, copying modification, storage, reproduction, display or distribution of personal data. Each Party shall take reasonable precautions to preserve the integrity of any personal data processed by it and to prevent any corruption or loss of such personal data.
10.4 Where a Party is a Data Controller and it is providing information to the other Party for the purpose of processing in accordance with the terms of this Agreement, it shall warrant that:
10.4.1 It has the right to license the processing of personal data;
10.4.2 as far as it is aware, the processing of personal data will not infringe the Intellectual Property Rights of any third party;
10.4.3 it is entitled to process (or have processed by a Data Processor on its behalf as Data Controller) personal data and such use will comply with all Data Protection Legislation;
10.4.4 all data subjects relating to personal data have given their valid written consent and, where required under Data Protection Legislation, their explicit consent to the transfer of their personal data;
10.4.5 all personal data is necessary, accurate and up-to-date; and
10.4.6 it has valid registrations as required under Data Protection Legislation and shall maintain these for the duration of this Agreement.
10.6 Where a Party is a Data Processor, it shall:
10.6.1 be entitled to share such personal data with those of its agents, contractors, or companies within its Group which need to access or process the information to enable the other Party to discharge its obligations under the Agreement, and in the case of GS1 UK, to enable it to deliver the Services;
10.6.2 process the personal data only on behalf of the Data Controller, only for the purposes of performing this its obligations under the Agreement and only in accordance with instructions received from the Data Controller from time to time;
10.6.3 not otherwise modify, amend or alter the contents of the personal data or disclose or permit the disclosure of any of the personal data to any third party unless specifically authorised in writing by the Data Controller;
10.6.4 having regard to the state of technological development and the cost of implementing any measures, take appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data;
10.6.5 take reasonable steps to ensure the reliability of any of the processing Party’s personnel who have access to the personal data;
10.6.6 ensure that only those of the processing Party’s personnel (or those of any Customer of the Group of companies to which the Processing Party belongs) who need to have access to the personal data are granted access to such data and only for the purposes of the performance of the Agreement and all of the Processing Party’s Personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations set out in this clause 10;
10.6.9 provide the Data Controller with full co-operation and assistance in relation to any complaint, security breach or request made in respect of any personal data.
10.6.7 not transfer personal data outside the European Economic Area without the prior written consent of the Data Controller;
10.6.8 notify the Data Controller if it receives or becomes aware of:
10.6.8.1 a request from a Data Subject to have access to that person’s personal data; or
10.6.8.2 a complaint or request relating to the data controller obligations under the Data Protection Legislation; or
10.6.8.3 a security breach; or
10.6.8.4 any other communication relating directly or indirectly to the processing of any personal data in connection with the Agreement;
11. Intellectual property rights
11.1 Any notes, messages, e-mails, postings, letters, ideas, suggestions, concepts, feedback or other written materials which a Customer submit or communicate to GS1 UK in relation to the Services (“Developments”) shall be the sole and exclusive property of GS1 UK and the Customer hereby assigns to GS1 UK, with full title guarantee by way of present assignment of future rights and free from all third party rights, all such Intellectual Property Rights contained in any Developments.
11.2 Where a third party alleges that the Customer Content and/or the Services infringes their rights (“Third Party Infringement”), the Customer must:
11.2.1 immediately inform GS1 UK in writing of such claim;
11.2.2 make no admission or settlements without GS1 UK’s prior written consent;
11.2.3 provide all necessary assistance and information that GS1 UK may require; and
11.2.4 allow GS1 UK complete control over the litigation and settlement of any claim.
12.1 In the event that the Customer wishes to cancel the Licence, it can do so at any point by providing GS1 UK at least 1 months’ notice in writing.
12.2 Where the Licence is cancelled in accordance with clause 12.1, no refund to any Fees paid or payable at the point of cancellation will be made.
13.1 GS1 UK reserves the right to suspend the Services, where:
13.1.1 GS1 UK considers in its sole discretion that the Customer has committed a breach of the Agreement;
13.1.2 GS1 UK is required to suspend the Services in accordance with law at GS1 UK’s sole discretion;
13.1.3 the acts and omissions of the Customer have or may damage the goodwill and/or reputation of GS1 UK;
13.1.4 at GS1 UK’s sole discretion, the Customer has not used the Services in accordance with the Agreement;
13.1.5 scheduled or unscheduled maintenance is required (as determined by GS1 UK);
13.1.6 there is an attack or sever issue which affects TrueSource;
13.1.7 the Customer has failed to pay the Fees;
13.1.8 GS1 UK reasonably believes that there has been, or could be, an incident of unauthorised access to TrueSource, through the Customer’s account.
14.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
14.1.1 the other Party (being a company) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986;
14.1.2 the other Party (being a company) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
14.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
14.1.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company);
14.1.5 the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
14.1.6 a person becomes entitled to appoint a receiver over the assets of the other Party (being a company) or a receiver is appointed over the assets of the other Party;
14.1.7 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s (being a company) assets and such attachment or process is not discharged within 14 days;
14.1.8 the other Party (being an individual) is the subject of a bankruptcy petition, application or order;
14.1.9 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.1.1 to Clause 14.1.8 (inclusive); or
14.1.10 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.2 Without affecting any other right or remedy available to it, GS1 UK may terminate this Agreement with immediate effect by giving written notice to the Customer if:
14.2.1 where a company, there is a change of control of the Customer within the meaning of section 1124 of the Corporation Tax Act 2010;
14.2.2 the Customer fails to pay any Fees in accordance with this Agreement;
14.2.3 GS1 UK ceases to hold the necessary license rights to provide the Services;
14.2.4 the Customer commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
14.2.5 the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
14.3 Either Party may terminate this Agreement on giving not less than one months’ written notice to the other.
15. Consequences on termination
15.1 Upon termination of this Agreement:
15.1.1 access to the Services and all data provided shall immediately cease;
15.1.2 all documents and equipment provided to the Customer by GS1 UK shall be returned to GS1 UK;
15.1.3 the Licence shall immediately terminate;
15.1.4 all outstanding Fees shall become immediately payable;
15.1.5 information uploaded into TrueSource and made available through the GDSN shall cease to be accessible by third parties; and
15.1.6 GS1 UK shall permanently and securely delete all information uploaded into TrueSource.
15.2 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breaches of this Agreement which existed at or before the date of termination.
15.3 Clauses 7,8,10,11,15,16,17,18,19,20,27,29 and 30 shall continue in force after the termination of the Agreement.
16. Limitation of liability
16.1 Nothing in this Agreement shall limit either Party’s liability for:
16.1.1 death or personal injury caused by its negligence; or
16.1.2 fraud; or
16.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
16.1.4 any other liability which cannot be excluded or limited under English law.
16.2 Subject to clause 16.1, GS1 UK shall have no liability in contract, tort, negligence, breach of statutory duty or otherwise for any loss of profit, loss of sales, loss of business opportunity, loss of goodwill or reputation, third party claims, pure economic loss or for any indirect or consequential loss or damage.
16.3 Subject to clauses 16.1 and 16.2, the liability of GS1 UK in connection with the Services and this Agreement to the Customer whether in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed an amount, in aggregate, equal to 150% of the Fees that are paid by the Customer for the Services in the 12 months preceding the claim.
16.4 GS1 UK shall not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside GS1 UK’s control including failure by the Qualifying Customer to comply with any of its obligations hereunder.
16.5 The Customer acknowledges that the Services may enable or assist the Customer to access the content or, correspond with, and purchase products or services from, third parties and that it does so solely at its own risk. GS1 UK make no representation or warranty and shall have no liability whatsoever in relation to the content or use of, or correspondence with, any such third party content, or any such transactions completed and ant contract entered into by the Customer with any third party.
17.1 GS1 UK shall be entitled to use the Customer’s trading name and branding to notify potential Customers about whom it provides Services to.
18. Anti-bribery and modern slavery
18.1 The Customer warrants and undertakes to GS1 UK that:
18.1.1 it will comply with applicable laws relating to taxation, exchange controls, customs matters, bribery, corruption, competition law, money laundering, trade sanctions, financial sanctions and criminal matters and anti-slavery and human trafficking from time to time in force, including but not limited to the Modern Slavery Act 2015;
18.1.2 it will not engage in any activity, practice or conduct which could contravene the Bribery Act 2010 if such activity, practice, or conduct had been carried out in the UK, or which could cause GS1 UK to contravene the Bribery Act 2010 or any activity, practice or conduct that would constitute an offence under sections 1, 2 and 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK, or which could cause GS1 UK to contravene the Modern Slavery Act 2015;
18.1.3 it has in place and will maintain adequate procedures to prevent any act of bribery being committed by it, to avoid the commission of an offence by GS1 UK under the Bribery Act 2010 and to ensure compliance with any local or internationally applicable laws relating to bribery and corruption and will maintain adequate policies and procedures to prevent slavery and human trafficking being committed by it, to avoid the commission of an offence by the Lead Partner under the Modern Slavery Act 2015 and to ensure compliance with any local or internationally applicable laws relating to slavery and human trafficking; and
18.1.4 during the term of this Agreement, it will comply with any anti-bribery and anti-slavery and human trafficking policies, procedures or guidelines which GS1 UK may provide from time to time.
18.2 If GS1 UK suspects a breach of clause 18.1 it will have the right to suspend any Services provided under this Agreement by providing written notice to the Customer.
19. Dispute resolution
19.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then, the parties shall follow the procedure set out in this clause:
19.1.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, a representative from each of GS1 UK and the Customer shall attempt in good faith to resolve the Dispute;
19.1.2 if the Parties are for any reason unable to resolve the Dispute in accordance with clause 19.1.1 within thirty (30) days of the Dispute Notice, the Dispute shall be referred to representatives of GS1 UK and the Customer at board director level; and
19.1.3 if the Parties are still for any reason unable to resolve the Dispute within thirty (30) days of it being referred to board director level, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure (“CEDR”). Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (“ADR notice”) to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start no later than thirty (30) days after the date of the ADR notice.
19.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 30 which clause shall apply at all times.
20. Entire agreement
20.1 This Agreement (including all documents referred to in this Agreement) constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21. Third party rights
21.1 A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
22.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
23.1 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
24.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Assignment and other dealings
25.1 Subject to clauses 25.2 and 25.3, neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other Party.
25.2 GS1 UK shall be entitled to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other Party to another member of its Group.
25.3 GS1 UK shall be entitled to sub-contract any of its obligations under this to any other company, without requiring the consent of the Customer.
26. No partnership or agency
26.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
26.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
27.1 All notices and other communications, shall be made in writing to the Party’s registered address.
27.2 Any such notice or other communication will be deemed delivered: (i) 48 hours after being sent in electronic form; (ii) when so delivered personally; or (iii) if sent by facsimile transmission on the next following Business Day in the country in which it is received, or the next Business Day after sending by post within UK or five (5) Business Days after sending by post to a location outside UK.
27. Rights and remedies
28.1 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
29. Governing law
29.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
30.1 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.