GS1 Data Excellence, INC. TERMS OF PARTICIPATION AGREEMENT FOR NON U.S TRADING PARTNERS
This GS1 Data Excellence, Inc. Terms of Participation Agreement (“Participation Agreement”) is made and entered into between GS1 Data Excellence, Inc., a Delaware not-for-profit corporation (“GS1 Data Excellence”), and the person(s) or entity(ies) which are identified as a Trading Partner hereunder.
1 . Definitions. The parties have agreed on the following definitions to apply to this Participation Agreement.
"Data Pool(s)" means those persons or entities that have executed a Global Registry Access and
License Agreement (“GRALA”) with GS1 Data Excellence , by which they have access to use the GDSN and the GS1 Global RegistryTM on behalf of subscribing customers. A list of certified data pools can be found on the GDSN website at www.gs1.org.
"Global Data Synchronization Network" or "GDSN" means a network of interoperable Data Pools and the GS1 Global RegistryTM that enables data synchronization per the GS1 System Standards.
“GDSN Data” means any and all Trading Partner data or information exchanged within or through the GDSN and/or registered in the GS1 Global Registry including but not limited to Trading Partner Proprietary Information.
“GDSN Participant(s)” means any Data Pool(s) and/or Trading Partner(s) as defined herein.
"GS1 Global Registry TM" means a global registry for item and party master data which is accessible to
Data Pools certified as being compliant within the GS1 System Standards.
“GS1 System Standards” means an integrated global standards system that provides for accurate identification and communication of information regarding products, assets, services and locations.
“Non GDSN Member” means any third person, party or entity which is neither a Trading Partner nor
Data Pool as defined herein.
“Source Trading Partner” means the owner of GDSN Data.
“Trading Partner(s)” shall mean the manufacturer, supplier, wholesaler, distributor, retailer or other member of global supply and demand chain which has agreed to and indicated its written acceptance to the Participation Agreement, pursuant to which Trading Partner is entitled to participate in the GDSN, subject to Trading Partner’s selected Data Pool’s compliance with its obligations to GS1 Data Excellence.
"Trading Partner Proprietary Information" means any and all information relating to Trading Partner's products, product formulations, pricing, cost data, methods, processes, designs, secrets, techniques, capabilities, permissions, instructions, specifications, requirements, orders, shipments, business or project descriptive materials, marketing information, customer information and any other information owned by, or to which Trading Partner has the lawful right to use, and employed by Trading Partner for the purpose of facilitating Trading Partner’s participation in the GDSN, which is not otherwise in the public domain and which is treated as confidential by Trading Partner.
2 . Subscription to GDSN. Upon written acceptance of the terms and conditions of this attachment and upon Company’s selected Data Pool’s payment of the applicable Data Pool fee to GS1 Data Excellence, Trading Partner shall be deemed to have been granted by GS1 GDSN a subscription for the right to participate in the GDSN and, in furtherance thereof, to utilize the GS1 Global RegistryTM. Trading Partner acknowledges that Trading Partner is not obtaining any license or ownership to the GS1 Global RegistryTM or to any proprietary technology, processes, concepts or other proprietary intellectual property or confidential information of GS1 Data Excellence pertaining to the GDSN or to the GS1 Global RegistryTM. Trading Partner’s rights are limited to participation in the GDSN in accordance with the terms and conditions stated herein. Trading Partner may register certain attributes in the GS1 Global Registry TM, including, without limitation, (i) the Global Trade Item
Number® ("GTIN®"), (ii) the Global Location Number (GLN) of the data source, (iii) the target market country code, (iv) the target market subdivision code, (v) the catalogue item classification, (vi) the GLN of the source Data Pool, (vii) the registry catalogue item state and (viii) the item status; however, Trading Partner acknowledges and understands that the registration, publication, subscription and synchronization functions of the GS1 Global RegistryTM are to be performed by Trading Partner’s selected Data Pool(s).
3 . Conditions to Subscription. Trading Partner acknowledges and agrees that its failure to comply with any of the following material covenants, conditions and obligations, or any of the other terms and conditions contained in this attachment , shall constitute a breach hereof and shall be grounds for the immediate termination by GS1 Data Excellence of Trading Partner’s participation in the GDSN.
A. Access and Participation in GS1 Global Registry/GDSN. Trading Partner shall participate in the GDSN and obtain access to the GS1 Global Registry TM through one Data Pool which has complied with all applicable GS1
GDSN certification requirements. However, based on a Trading Partner’s business needs, a Trading Partner may join more than one Data Pool to obtain access to the GS1 Global RegistryTM and GDSN. If Trading Partner undertakes to become a Data Pool, it must separately execute a Global Registry Access and License Agreement with GS1 Data Excellence.
B. GDSN Data. All GDSN Data must comply with GS1 System Standards, either directly or through third party data alignment via a GDSN Data Pool.
C. Standards and Policies. Trading Partner shall comply with all standards and policies adopted and/or implemented by GS1 Data Excellence from time to time governing the GDSN and the GS1 Global RegistryTM, including, but not limited to, access and service level standards, acceptable use policies, developmental and technical functionality, certification and marketing, educational and training policies and standards. Trading
Partner acknowledges that GS1 D a t a E x c e l l e n c e reserves the right to amend and modify such standards and policies and may introduce modifications, changes, enhancements, new versions and new releases to all or part of the GDSN from time to time. GS1 D a t a Ex c e lle n c e agrees that each policy and standard will be published and will be made available to Trading Partner’s Data Pool at least 120 days prior to the effective date, and further acknowledges that such amendment, modification, changes, etc. shall become effective as against such Trading Partner on the effective date thereof. Trading Partner agrees that in the event of any ambiguity, inconsistency or other question of interpretation concerning any standards or policies adopted by GS1
Data Excellence, the determination of the GS1 Data Excellence Board of Directors shall be conclusive and binding.
D. Participation Agreement. Trading Partner acknowledges that GS1 Data Excellence reserves the right to amend, modify or change this Participation Agreement from time to time. GS1 Data Excellence agrees that the amended, modified or changed Participation Agreement shall be made available to Trading Partner’s Data Pool at least 120 days prior to the effective date for submission to Trading Partner, and Trading Partner agrees that the amended, modified or changed Participation Agreement shall become effective as against such Trading Partner on the effective date thereof, shall operate as written acceptance by the Trading Partner as of the effective date thereof and shall supersede and replace all prior Participation Agreements between GS1 Data Excellence and Trading Partner.
E. Fees. GS1 D a t a E x c e l l e n c e does not charge the Trading Partner a separate subscription fee to participate in the GDSN. GS1 D a t a Ex c e lle n c e collects its annual fees from the Data Pool directly, which annual payment allows the Data Pool to provide coverage to all of its Trading Partners to participate in the GDSN. The Trading Partner’s selected Data Pool retains the discretion to charge its Trading Partners and allocate its costs across its Trading Partners as it deems necessary.
F. Help Desk. Trading Partner acknowledges and agrees that GS1 D a t a E x c e l l e n c e shall not be responsible for providing help desk support or any other support or resource services to Trading Partner and that help desk support resources and services shall be provided exclusively by or on behalf of Trading Partner’s Data Pool.
G. Disclosure of GDSN Data.
(a) Trading Partner acknowledges that it shall not disclose, disseminate, provide or make available the GDSN Data of a Source Trading Partner to a Non GDSN Member without the Source Trading Partner’s prior written consent. (b) A Trading Partner shall not represent itself as a GDSN certified data pool, a GDSN certified data source or the like in the absence of its execution of an active GRALA with GS1 Data Excellence.
H. Trading Partner Information Security.
(a) GS1 Data Excellence, shall during the term of this Agreement, provide security for Trading Partner’s Proprietary Information within the GDSN at least at levels and in the manner in which GS1 Data Excellence secures its own proprietary information, but in no event less than a reasonable degree of care.
(b) GS1 Data Excellence hereby acknowledges that the Trading Partner Proprietary Information shall at all times remain the sole property of Trading Partner. GS1 Data Excellence agrees that it will not disclose, disseminate, provide, or make available any Trading Partner Proprietary Information in any form to any person without Trading Partner’s prior written consent, except to those persons whose access is necessary to facilitate Trading Partner’s Participation in the GDSN.
(c) Notwithstanding the foregoing, nothing herein shall prevent GS1 Data Excellence from disclosing Trading Partner’s Proprietary Information upon GS1 D a t a E x c e l l e n c e establishing that the Trading Partner Proprietary Information: (i) has been published or has become part of the public domain other than by acts or omissions of GS1 Data Excellence, its employees, agents or contractors; (ii) was lawfully in the possession of GS1
Data Excellence at the time of disclosure to it and was not acquired by GS1 Data Excellence directly or indirectly from Trading Partner; (iii) was received after disclosure to GS1 D a t a E x c e l l e n c e by a third party who had a lawful right to disclose such information to GS1 D a t a E x c e l l e n c e ; or (iv) was independently developed by
GS1 Data Excellence without knowledge or use of the Trading Partner Proprietary Information.
(d) GS1 D a t a E x c e l l e n c e hereby agrees to indemnify and hold Trading Partner harmless from and against any claims made against Trading Partner which arise as a result of a breach by GS1 Data Excellence of the terms of this Paragraph 3H.
I. DISCLAIMER OF W ARRANTIES. TRADING PARTNER ACKNOW LEDGES AND AGREES THAT GS1
Data Excellence MAKES NO REPRESENTATIONS OR W ARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, AND ANY SUCH REPRESENTATIONS OR W ARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE OF OR PARTICIPATION IN THE GDSN OR THE GS1 GLOBAL REGISTRYTM OR ANY COMPONENT THEREOF OR ANY INFORMATION OR DATA DERIVED THEREFROM.
J. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN PARAGRAPH 3H ABOVE, GS1 GDSN SHALL NOT BE LIABLE FOR ANY DAMAGES W HATSOEVER, CONSEQUENTIAL, INDIRECT, INCIDENTAL PUNITIVE OR OTHERW ISE THAT MAY ARISE FROM THE TRADING PARTNER’S PARTICIPATION IN THE GDSN OR THE USE OF THE GS1 GLOBAL REGISTRYTM BY TRADING PARTNER OR FOR ANY FAILURE OR REFUSAL BY GS1 GDSN TO GRANT TRADING PARTNER ACCESS TO THE GDSN OR GS1 GLOBAL REGISTRYTM BASED ON A BREACH BY THE TRADING PARTNER’S SELECTED DATA POOL OF ITS OBLIGATIONS TO GS1.
K. Term; Termination. The term of this Participation Agreement shall commence on the day of Trading Partner’s written acceptance of the terms and conditions herein, and unless sooner terminated, superseded or replaced in accordance with the terms hereunder, shall continue in effect for a period of one year there from (the “Initial Term.”) This Participation Agreement shall renew automatically at the end of the Initial Term (each being a “Renewal Term”) subject to Trading Partner’s selected Data Pool being in good standing with regard to GS1 Data Excellence and continued compliance by the Trading Partner of all the terms and conditions herein. Notwithstanding the above, either party may terminate this Participation Agreement (i) immediately, if the other party breaches any material provision of this Participation Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach from the non-breaching party or (ii) during the Initial Term or the Renewal Term by providing 60 days prior written notice to the other party.
L. Law. The terms in this Participation Agreement shall be governed by and construed in accordance with the laws of the Country, Nation, Republic or Union agreed upon between Trading Partner and the Data Pool which is applicable to claims or disputes arising under the agreement between the Data Pool and its Trading Partner for data pool services or data synchronization services. If Trading Partner has a registered business office in the United States, then the terms in this Participation Agreement shall be governed by and construed by the laws of State of Delaware without regard to the principles of conflict of laws. M. Notices. All notices required to be given hereunder shall be in writing and shall be deemed delivered (i) when delivered by hand, (ii) one business day after being given to a nationally or internationally recognized overnight carrier, (iii) when sent by confirmed facsimile with a copy sent by other means as permitted in this section, or (iv) six days after deposit in the United States mail by registered or certified mail, return receipt requested, and fourteen days after deposit in international mail.
Not ice to GS1 Data Excellence shall be given to :
GS1 Global Office GS1 Legal Counsel Blue Tower
326 Avenue Louise, Bte 10
B-1050 Brussels Belgium
cc: Malcolm Bowden, President, GS1 Global Solutions
President, GS1 Data Excellence, Inc. at above address
N. Survival of Clauses. GS1 Data Excellence and Trading Partner acknowledge and agree that those Paragraphs of this Participation Agreement which by their terms must survive the expiration or termination of this Participation Agreement shall survive the expiration or termination of this Participation Agreement.
O. Entire Agreement. This Participation Agreement sets forth the entire understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained.
P. Publicity. Neither party will use the other party’s name or trademarks in any advertising, sales promotion or publicity matters without the other party’s written consent.
Q. Assignment. This Participation Agreement shall inure to the benefit of, and be binding upon and enforceable by, the parties hereto and their respective successors and permitted assigns. Trading Partner shall not assign its rights or obligations under this Participation Agreement in whole or in part without the prior written consent of GS1 Data Excellence, which consent shall be in GS1 Data Excellence’s reasonable discretion; provided, however, that Trading Partner may assign any of its rights and obligations hereunder without the
consent of GS1 Data Excellence (but with prior notice) (i) to any existing or newly formed wholly-owned subsidiary of Trading Partner or (ii) to any entity that acquires all or substantially all of the stock or assets of Trading Partner.
GS1 Data Excellence may assign its rights or obligations under this Participation Agreement without the consent of Trading Partner. GS1 Data Excellence shall provide written notice to Trading Partner of any such assignment.
4 . Terms of GDSN Subscription. Trading Partner acknowledges and agrees that, as a condition to its participation in the GDSN and utilization of the GS1 Global RegistryTM, it shall be obligated to comply with the terms and conditions as set forth in this Participation Agreement, as such terms may be amended, modified or changed from time to time. Furthermore, Trading Partner acknowledges and agrees that GS1 Data Excellence is, and is intended to be, a third party beneficiary to this Participation Agreement, and shall be entitled to (i) enforce any rights granted to GS1 Data Excellence by the Participation Agreement directly against Trading Partner, (ii) seek damages directly against Trading Partner for any breaches by Trading Partner of the obligations set forth in the Participation Agreement or (iii) terminate Trading Partner's participation in the GDSN and utilization of the GS1 Global Registry TM to the extent Trading Partner breaches any of the terms and conditions herein.