Terms and Conditions
GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
TOPCON GREAT BRITAIN MEDICAL
Branch of Topcon Europe Medical BV
(hereinafter referred to as "Topcon")
ARTICLE 1 – APPLICABILITY
1.1 These general terms and conditions (the “Terms and Conditions”) are applicable to all offers and agreements of Topcon whereby Topcon delivers the products (including Topcon software) and/or services as specified in the Order (as defined below) (hereinafter “Products” or “Services”) of whatever nature and under whatever name to the purchaser (the “Purchaser”/“you”). For the purposes of these Terms and Conditions, “Order” means Topcon’s quotation (“Quotation”) and the Purchaser’s written acceptance of such quotation.
1.2 Topcon will notify you of any changes to these Terms and Conditions that are required by any applicable laws or regulations or due to any cost price factors outside of its control as stated in Article 3.2 below.
1.3 These Terms and Conditions shall:
(i) apply to and be incorporated into any agreement between Topcon and a Purchaser and
(ii) prevail over:
a) any inconsistent terms and conditions contained in or referred to in an Order, acceptance, correspondence, or elsewhere;
b) any other terms and conditions contained in or referred to in any documentation provided by the Purchaser; and
c) any other terms implied by law, trade custom, practice or course of dealing.
1.4 Except as set out in Articles 1.2 above and 3.2 below, no variation of an Order or these Terms and Conditions shall be binding on the parties unless agreed in writing and signed by both Topcon and a director of the Purchaser.
1.5 In the event the parties agree in writing a specific agreement(s) these Terms and Conditions will still apply. However, in the event of a conflict the provisions in the relevant specific agreement will prevail.
ARTICLE 2 – OFFERS AND CONCLUSION OF AGREEMENT
2.1 All Topcon's offers or quotations are made without any engagement. A Quotation shall only be valid for a period of 30 days from its date of issue.
2.2 The Quotation constitutes an offer by the Purchaser to purchase the Products in accordance with these Terms and Conditions. The Quotation shall only be deemed to be accepted upon the Purchaser’s written acceptance of a Topcon's quotation and at this point an agreement between Topcon and Purchaser shall come into existence. An agreement consists of an Order, these Terms and Conditions and (if applicable) any separate agreement agreed in writing between the parties (the “Agreement”).
2.3 Any samples, drawing or advertising produced by Topcon and any descriptions or illustrations contained in Topcon’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Agreement nor have any contractual force. No Products are warranted suitable for the Purchaser's purpose (whether the purpose is communicated to the Purchaser or not) unless Topcon so certifies in writing to the Purchaser as set out in an Order.
2.4 The Purchaser guarantees the accuracy and completeness of the information provided to Topcon by or on its behalf, on which Topcon bases its offer.
2.5 The signatory signing an Agreement must have sufficient authorization to legally bind the company the signatory works for to an Agreement. If this is not the case, the signatory is personally bound to the Agreement.
ARTICLE 3 – THE PRICES
3.1 Except as agreed otherwise, all prices set out in the Quotation are based on delivery of the Goods being dispatched to the Purchaser from Topcon’s warehouse location being Topcon’s warehouse located at “Essebaan 11, 2908LJ Capelle a/d IJssel (“Netherlands Warehouse”) (“Delivery”);
3.2 Subject to Article 3.3 below, all prices of the Products are exclusive of V.A.T and all associated taxes, costs, charges and expenses, which the Purchaser shall be liable for.
3.3 Topcon shall be liable for any import or export related duty or charges in connection with the supply of the Products from the Netherlands Warehouse (as applicable) to the Purchaser (“Import Duty”). Topcon shall co-ordinate the transportation of the Products on behalf of the Purchaser in accordance with Article 7.4 below.
3.4 In the event changes occur in cost price factors (such as costs of (raw) materials, government measures, freights, exchange rates, and any taxes, except for any Import Duty etc.) which are outside of Topcon’s control, after the formation of the Agreement between Topcon and the Purchaser, Topcon is entitled to increase the price accordingly. Topcon will notify the Purchaser in writing of a price increase. If the Purchaser has not informed Topcon that it wishes to terminate the Agreement within fourteen days after the notice has been sent, the Purchaser will be deemed to have accepted the price increase.
ARTICLE 4 – PRODUCT WARRANTY AND SUPPORT SERVICES
4.1. Specific Warranty Periods. Topcon provides specific warranty periods for each category of Products (the “Specific Warranty Period”), as follows:
a. Topcon Products: Topcon warrants the Topcon Products to be free from defects in workmanship and materials for a period of 24 months as from Delivery, provided the Topcon Products were handled with utmost care and proper maintenance.
b. Non-Topcon Products and Accessories: Unless specified otherwise in writing, Topcon warrants the Non-Topcon Products and Accessories to be free from defects in workmanship and materials for a period of 12 months as from Delivery, provided the Non-Topcon Products and Accessories were handled with utmost care and proper maintenance.
c. Third Party Components: Topcon warrants the Third Party Components to be free from defects in workmanship and materials for the same period and under the same warranty conditions as have been provided to Topcon by the respective third party, provided that the Third Party Components were handled with utmost care and proper maintenance and application procedures were followed. The applicable warranty period and conditions shall be provided to Purchaser on request.
d. Parts: Topcon warrants Parts to be free from defects in workmanship and materials for a period of 90 days as from Delivery, provided that the Parts were handled with utmost care and proper maintenance.
4.2. No Implied Warranty. Topcon expressly disclaims any (implied) warranty of merchantability or fitness for a particular purpose for all Products. In no event any compensation shall be due by Topcon to Purchaser for damages, losses, liabilities, costs and/or expenses arising from the non-conformity, failure or malfunctioning of the Products.
4.3. No Warranty. No warranty period shall be applicable in case the Purchaser has (i) processed, repaired, abused, misused or modified the Products, or (ii) allowed third parties to use, process, repair, abuse or modify the Products, or (iii) delivered the Products to third parties, or (iv) has not used the Products in accordance with maintenance and application procedures provided to it by Topcon, or (v) fails to meet any of its other obligations towards Topcon. In case any of the aforementioned events has occurred, Topcon shall not be obliged to repair any Product, or to reimburse the purchase price of the relevant Product to Purchaser.
ARTICLE 5 – COMPUTER EQUIPMENT
5.1 If special tests, installation or tests on sites are required, an extra charge may be made by Topcon. Computer software products sold by Topcon are, unless otherwise specified, designed to be used solely on the relevant associated hardware.
5.2 Unless otherwise specified in writing by Topcon in a Quotation, the loading of other manufacturer’s software products alongside any Topcon software or hardware product is entirely at the Purchaser’s own risk, and Topcon shall not be responsible for any subsequent failure of either the software or the computer hardware. In the event of a hard drive failure, Topcon will make reasonable efforts to retrieve data, but cannot be held responsible for its loss, or any subsequent liability. Customers are strongly advised to protect computer data by regular back up routines.
ARTICLE 6 - INSTALLATION
In case, Topcon provide Purchaser with any site based services including but not limited to installation, commissioning, training, site assessment activities (together “On-Site Services”), Purchaser shall commit that Topcon’s employees (and/or subcontractors’ employees acting on Topcon’s behalf) (hereinafter the “Workers”) shall not be exposed to risks to their health or safety under the meaning of the Applicable Law. Purchaser commit to take all necessary precautions to ensure the health and safety of Workers which includes providing the site free from recognized hazards that may cause harm and consistent with and in compliance with Applicable Laws and local Regulations. Should the Workers be of the opinion that the site does not comply to such health and safety conditions, the Workers shall remain entitled not to proceed with the On-Site Services without Topcon to be found liable in any way and Topcon shall be able to charge Purchaser any cost incurred (including but not limited to travel costs).
ARTICLE 7 – DELIVERY and DAMAGE OR LOSS IN TRANSIT
7.1 The dates quoted for delivery in the Quotation indicate the anticipated delivery time which Topcon will try to meet. Such quoted dates are not of the essence. The anticipated delivery time is based on timely delivery of (raw materials or parts of) products by third parties to Topcon. In the event deliveries are delayed as a result of a change in the Quotation, because timely ordered products are not delivered in time or as a result of other circumstances which are not within Topcon’s reasonable control including those mentioned in Article 15.7 of these Terms and Conditions, Topcon may extend the delivery time by a reasonable period. Should delivery then still not be made, the Purchaser shall promptly notify Topcon and the provisions of Article 15.6 will apply.
7.2 Acceptance of delivery of the Products by the Purchaser or his agent will be conclusive evidence that the Products have been examined and found to be complete, in good condition and fit for any purpose for which they may be required.
Topcon is responsible for the good condition of the Products up to the point when risk in the Products is transferred to the Purchaser in accordance with Article 7.4 below. All Products leave Topcon in perfect working order and condition unless otherwise advised by Topcon and agreed with the Purchaser. Once Products have been handed to the carriers, the responsibility for damage or loss is limited to that which the carriers will accept. Products should be signed for as "unexamined" and if Products are found to be damaged the carriers should be notified in writing within 3 days from receipt of the Products.
7.3 Unless agreed otherwise between the parties in writing, the transfer of risk in the Products (and any spare parts or other goods that Topcon has supplied) shall pass to the Purchaser at the time of dispatch of the Products from the Netherlands Warehouse to the Purchaser’s address.
7.4 Delivery of the Products shall be deemed to be complete when Topcon make the Products available to the Purchaser when the Products are unloaded at the Purchaser’s office address.
7.5 Unless agreed otherwise in writing by the parties, Topcon will coordinate the transportation of the Products on behalf of Purchaser. Topcon shall be liable for all transportation related costs and insurance in connection with the Delivery of the Products up to the point at which the Products have received clearance from the UK Border Agency. From such point in time onwards, the Purchaser shall be solely responsible for any transport and insurance related costs in respect of the Products. Accordingly , any shipment or transport agreements made following the above points shall be made at the Purchaser's expense, , in which case, all taxes, expenses, or other costs, such as but not limited to transport costs and insurance costs generated shall be charged to the Purchaser’s account and in such event and for legal purposes, Topcon shall act as the Purchaser’s agent. Topcon will make reasonable commercial efforts to ensure that the Products are delivered in compliance with the estimated delivery date. Topcon will not be responsible for a delivery made after the estimated delivery date..
ARTICLE 8 – PAYMENT
8.1. Payment is to be made by the Purchaser on the date and in the currency set out in the applicable Quotation. In case no specific date for payment has been agreed upon, payment has to be made within thirty days net after the invoice date.
8.2. In case Purchaser fails to meet his payment obligations in time, Topcon shall be entitled immediately and without any written notice being required, to charge, in addition to legal interest, an interest of 1,5% per month over the from time to time outstanding amount(s).
8.3. Without prejudice to any other right or remedy, Topcon reserves the right to set off any amount at any time owing to it by the Purchaser against any amount payable by it to the Purchaser under the Agreement. All costs resulting from Purchaser's failure to meet his (payment) obligations shall be for Purchaser's account. These costs include judicial as well as extra judicial costs, including fees of (legal) advisors.
8.4. Objections to an invoice must be made in writing by the Purchaser prior to the payment date of the invoice.
ARTICLE 9 – RESERVATION OF TITLE
9.1 Title to the Products shall not pass to the Purchaser until, the later of:
i. Topcon having received payment in full for the Products (together with any spare parts or other goods that Topcon has supplied to the Purchaser); or; or
ii. on Installation of the Products.
9.2 In the event that an invoice remains unpaid no less than 30 days after the invoice fell due, Topcon shall have the right to withhold or cease Delivery of the Products and/or Services. Furthermore, upon giving to the Purchaser five days’ written notice, Topcon shall have the right to take possession of the Products. The Purchaser shall allow Topcon access to its premises, within business hours, for the sole purpose of Topcon taking repossession of the Products. All costs involved shall be for the Purchaser's account. The Purchaser authorises Topcon to enter those premises of the Purchaser where the Products have been stored.
9.3 Until such time that title in the Products has transferred to the Purchaser in accordance with Article 9.1 above, a, the Purchaser is not entitled to pledge, encumber in any other way or dispose in whole or in part any of the Products. Upon Topcon's request, the Purchaser shall immediately pledge any claims it may have now or will have in the future on third parties with respect to the Products, to Topcon.
9.4 The Purchaser shall notify Topcon immediately upon the occurrence of the following events:
(i) if the Purchaser becomes aware of the fact that third parties exercise rights to the Products;
(ii) if the Purchaser applies or any of his creditors apply for an adjudication in bankruptcy or a suspension of payments with regard to the Purchaser;
(iii) if the Purchaser is declared bankrupt or granted a (preliminary) suspension of payments;
(iv) an attachment is made or execution levied on a substantial part of the Purchaser's assets and, in the event of a conservatory attachment, which is not released or discharged within thirty (30) days;
(v) any change occurs in the effective control over the Purchaser, or if the Purchaser is involved in or subject to a merger, split-off or split-up;
(vi) if the Purchaser becomes involved in negotiations with one or more of its creditors or takes any step with a view to the general readjustment or rescheduling of its indebtedness;
(vii) if the Purchaser applies for debt relief; and
(viii) the Purchaser dies or is dissolved or its business is transferred in whole or in part, liquidated, wound up, discontinued or relocated abroad or a decision is taken in this respect.
ARTICLE 10 – WARRANTIES
10.1 Topcon warrants that:
(i) the Services (if any) shall be provided with reasonable care and skill; and
(ii) no third-party rights shall be infringed by the Purchaser’s use of the Products and/or Services.
10.2 To the fullest extent permitted by law, any warranties, conditions and other terms implied by statute or common law are excluded from the Agreement, except as expressly provided in the Agreement.
ARTICLE 11 – PURCHASER OBLIGATIONS
11.1 The Purchaser will ensure that:
(i) the Purchaser has all necessary rights and consents to meet its obligations arising from the Agreement entered into with Topcon, if any;
(ii) any Purchaser owned or licensed software which is connected to a Topcon System, are free of defects and/or viruses, which can or may cause damage to a Topcon System.
11.2 The Purchaser shall comply with all applicable laws and cooperate and comply with any and all mandates and/or instructions issued by applicable national authorities and/or Topcon relating to the recall of any Topcon Products.
11.3. All transactions that are considered to be business to business will involve the transfer of the producers' responsibilities, as defined in the Waste Electrical and Electronic Equipment Regulations 2013; the Purchaser agrees to provide for the cost of financing file collection, treatment, recovery and environmentally sound disposal of the item(s) purchased.
ARTICLE 12 – EXPORT CONTROL
12.1 Following Delivery of the Products, the Purchaser may only export, re-export, sell, transmit, transfer, or otherwise make available, directly or indirectly, any Topcon product received from or owned by Topcon, including any hardware, software and/or technology as well as any corresponding documentation, if and when such complies with any and all applicable national and international (re-)export control laws, rules and regulations. Purchaser will determine and fulfill any and all export and re-export license requirements to export and/or reexport the relevant Topcon products, obtain any export or re-export license or other official authorization, and carry out any customs formalities for the export or re-export of the relevant Topcon products.
12.2 Prior to any transfer of Topcon products to a third party, Purchaser will ensure that:
(i) the transfer will not infringe any embargo imposed by the European Union, by the United States of America and/or by the United Nations;
(ii) the Topcon products to be transferred are not intended for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless required authorization is provided; and
(iii) the regulations of all applicable Sanctioned Party Lists of the European Union and the United States of America concerning the trading with entities, persons and organizations listed therein, are considered and followed.
12.3 Purchaser represents and covenants that it shall not export, re-export, sell, transmit, transfer, or otherwise make available, directly or indirectly, any Topcon product received from or owned by Topcon, including any hardware, software and/or technology, as well as any corresponding documentation, to a particular person or entity, if Purchaser has reason to believe that such person or entity will transfer or sell the Topcon products in violation of this Article 10.
12.4 If required to conduct export control checks, Purchaser shall provide Topcon with all information pertaining to the recipient of the Topcon products, the destination and the intended use of the Topcon products, as well as any applicable export control restrictions.
12.5 Topcon shall not be liable for, and Purchaser shall indemnify and hold Topcon harmless for and against, any damages, losses, liabilities, costs and expenses (including advisor’s fees) incurred or to be incurred as a result of any non-compliance by Purchaser with this Article 10 and/or any applicable export control regulations.
ARTICLE 13 – LIMITATION OF LIABILITY
13.1 Subject to Article 13.3, Topcon shall not in any circumstances have any liability for any losses or damages which may be suffered by the Purchaser, whether the same are suffered directly or indirectly or are immediate or consequential, which fall within any of the following categories:
(i) loss of sales or business;
(ii) loss of profits;
(iii) loss of agreements or contracts;
(iv) loss of or damage to goodwill;
(v) loss or corruption of data, information or software
(vi) loss of business opportunity and management time; and
(vii) any other indirect or consequential loss.
13.2 Subject to Article 13.3 Topcon’s total liability to the Purchaser for any and all losses arising under or in connection with the Agreement, whether in contract, tort (including negligence) breach of statutory duty or otherwise shall not exceed the total price for the Products and/or Services.
13.3 Nothing in this Agreement limits or excludes any liability of either party, which cannot legally be limited or excluded, including but not limited to liability for:
(i) death or personal injury caused by negligence;
(ii) breach of the terms implied by section 12 of the Sales of Goods Act 1979 (title and quiet possession)
(iii) fraud; and
(iv) fraudulent misrepresentation.
ARTICLE 14 – NO WAIVER
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.
ARTICLE 15 – SUSPENSION AND TERMINATION
15.1 In the event of the occurrence of one or more of the events described in Article 9.4(ii) to 9.4(viii) of these Terms and Conditions, Topcon shall be entitled to terminate the Agreement in whole or in part or suspend the (further) performance of its obligations under the Agreement and to take back the Products, all such without prejudice to Topcon's right to compensation for any losses or damages it has incurred as a result thereof and any other rights it may have.
15.2 Without prejudice to any other rights or remedies to which Topcon may be entitled, Topcon may terminate the Agreement in whole or in part without liability to the Purchaser if:
(i) the Purchaser commits a material breach of any term of this Agreement (which, if capable of remedy, is not remedied within 14 business days); and
(ii) the Purchaser fails to pay any amount due under the Agreement within 30 days of the due date for payment.
15.3 Termination of the Agreement shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement that existed at or before the date of termination.
15.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15.5 In the event that Topcon suspends or terminates the Agreement in accordance with Articles 15.1 or 15.2 of these Terms and Conditions, all payments due to Topcon for the provision of Products and/or Services that have been performed in whole or in part shall, without prejudice to any other rights Topcon may have in law or under the terms of this Agreement, become immediately due and payable.
15.6 In the event that Topcon cannot properly perform its obligations in whole or in part, whether temporarily or permanently, as a result of circumstances which are outside of Topcon’s control as set out in Article 15.7 of these Terms and Conditions (a “Force Majeure Event”), Topcon has a right to terminate the Agreement with the Purchaser if the Force Majeure Event persists for more than 14 days.
15.7 A Force Majeure Event includes any circumstance not within Topcon's reasonable control including, without limitation:
(i) acts of God, flood, drought, earthquake or other natural disaster;
(ii) epidemic or pandemic;
(iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(iv) nuclear, chemical or biological contamination or sonic boom;
(v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent;
(vi) collapse of buildings, fire, explosion or accident;
(vii) any labour or trade dispute, strikes, industrial action or lockouts;
(viii) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this Article); and
(ix) interruption or failure of a utility service.
15.8 Unless terminated earlier in accordance with the terms of this Article 15, an Agreement shall expire at the end of the Product warranty as specified in Article 4 unless stated otherwise in an Order or separate agreement.
ARTICLE 16 – INTELLECTUAL PROPERTY RIGHTS
16.1 For the purpose of these Terms and Conditions, "IP Rights" means any patents, trade marks, service marks, trade names, trade mark registrations, designs, business names, copyrights, Software (meaning software used in connection with or embedded in the Products and/or Services, which are owned by, licensed to or otherwise used by Topcon, or any of its group companies, including any and all documentation and/or materials thereto), database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered, owned by or licensed by any third party to Topcon or any of its group companies and relating to or embedded in the Products or any other materials provided by Topcon.
16.2 The Purchaser hereby acknowledges that the IP Rights are and shall remain the property of Topcon, any of its group companies or the relevant third parties from which Topcon or its group companies has received a license to use the IP Rights.
16.3 Topcon grants to the Purchaser a revocable, royalty-free, non-transferable, non-exclusive right for the term of the Agreement to use the IP Rights, under the conditions that (i) such is permitted under the license conditions Topcon has agreed upon with third parties, (ii) such third party license validly exists, and/or (iii) Topcon is entitled to these third party IP Rights (the “IP Rights License”). The IP Rights License is granted to Purchaser solely in connection with the normal use by Purchaser of the Products purchased by Purchaser from Topcon, to the extent permitted by these Terms and Conditions and/or any additional agreement between Topcon and Purchaser. Purchaser may not sub-license any rights under the IP Rights License to any other party without obtaining the prior written consent of Topcon. Topcon reserves the right to amend the terms and content of the IP Rights License at any time and shall notify the Purchaser of any such amendments.
16.4 Purchaser shall use the IP Rights only in accordance with the usage guidelines (including any user license agreement if any) or other written instructions provided by Topcon with the Products. Any use of the IP Rights by Purchaser will indicate that Topcon is the owner or licensee of the IP Rights. All uses of the IP Rights and all goodwill associated therewith will inure solely to the benefit of Topcon.
16.5 Purchaser shall not infringe any of the IP Rights associated with the manufacturing, design, branding and packaging of any of Topcon’s Products purchased by the Purchaser or advertised by Topcon, nor introduce any modifications to the Products supplied by Topcon, unless the nature of the delivered Product dictates otherwise nor shall Purchase be entitled to register any domain name including the Topcon IP Rights.
16.5 No Reverse Engineering. Purchaser shall not decompile, disassemble, reverse engineer or otherwise attempt to discern any intellectual property, component or software contained in the Equipment or technology provided by Topcon.
16.7 Topcon reserves the right to modify the IP Rights or substitute alternative marks for any or all of the IP Rights at any time and shall notify the Purchaser of any such amendments.
16.8 Purchaser may not use any trade marks, service marks, trade names, and trademark registrations in connection with the Products and/or Services (other than the IP Rights) without the prior written consent of Topcon, which consent may be given or withheld by Topcon at its sole discretion.
16.9 Purchaser acknowledges and agrees that, in case any license to use any IP Rights granted to Topcon by a third party shall terminate or cease to exist for whatever reason, such termination may result in the (immediate) termination of the IP Rights License granted by Topcon to Purchaser. Topcon shall not be liable for any damages, losses, liabilities, costs and expenses (including advisor’s fees) incurred or to be incurred by Purchaser as a result of any termination of the IP Rights License.
ARTICLE 17 – CONFIDENTIALITY
17.1 Each party acknowledges that during the course of the Agreement it may have access to confidential information relating to the other party (the “Confidential Information”). The party receiving such Confidential Information (the “Recipient Party”) shall not except in the proper course of its duties, either during the Agreement or any time thereafter, use or disclose to any third party (and shall use reasonable endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to any use or disclosure authorised by the party disclosing the Confidential Information (the “Disclosing Party”) or as required by law, or any information, which is already in, or comes into, the public domain otherwise than through the unauthorised disclosure of the Recipient Party.
17.2 Neither party shall issue any media releases, public announcements or public disclosures relating to the Agreement or its subject matter, including promotional or marketing material, without the prior written approval of the other party.
ARTICLE 18 – DATA PROTECTION AND SECURITY
18.1 Topcon as a data controller. To the extent that each party acts as an independent data controller of any personal data it processes in connection with the Products or Services, whether or not obtained from the other party, each party shall at all times comply with its applicable obligations under the General Data Protection Regulation (EU 2016/679) and any other relevant data protection laws and regulations, each as amended, superseded, replaced or supplemented from time to time (the “Privacy Laws”) and the terms ‘personal data’, ‘personal data breach’, ‘process/processing’, ‘sub-processor’, ‘data controller’ and ‘data processor’ take their meaning from the Privacy Laws.
18.2 The Purchaser shall (when acting as data processor) (i) take appropriate technical and organizational security measures to protect the confidentiality of the personal data provided by Topcon; (ii) inform Topcon, on Topcon’s request, about the technical and organizational security measures taken in respect to the foregoing; (iii) notify Topcon of any personal data breach affecting personal data provided to you by Topcon without undue delay, and in any event within 48 hours of discovering such breach; and (iv) provide Topcon with such assistance or information it requests in order to respond to either (a) rightful requests or complaints made by data subjects; or (b) any enquiry or investigation by a supervisory authority. In the event that Topcon acts as a data controller and Purchaser as a data processor, Topcon and Purchaser will agree upon the necessary data processing agreement.
18.3 Topcon as a processor. Under specific circumstances Topcon may and shall process the personal data set out in these Terms and Conditions for the purposes set out therein, as a data processor acting on behalf of the Purchaser in order to perform its obligations under an Order or other specific agreement.
(i) In connection with the sale of a Product and provision of the Services, Topcon may, from time to time, collect, maintain, process and use Purchaser’s company name, user name, address, email address, debit/credit card information, IP address and related information.
(ii) Topcon will process Purchaser personal data in accordance with the terms of the Agreement and its Privacy Policies (https://topconhealthcare.eu/en_UK/privacy-policy). Processing outside the scope set out in these Terms and Conditions will require prior written agreement between Purchaser and Topcon with additional instructions for processing. In the event of a conflict between the terms of this Terms and Conditions and the Privacy Policies, the terms of these Terms and Conditions will prevail.
(iii) Topcon has implemented and will maintain and follow appropriate technical and organizational measures intended to protect personal data against accidental, unauthorized or unlawful access, disclosure, damage, alteration, loss, or destruction. Notwithstanding the above, Purchaser is responsible for its secure use of the Products and Services, including protecting and securing of personal data.
(iv) Topcon may transfer Purchaser personal data to its affiliated entities in connection with the performance of its obligations under the Agreement. For a list of Topcon locations, please see company locations listed at www.topcon.co.jp.en/about/group/.
(v) Purchaser expressly acknowledges that personal data may be transferred to Topcon affiliated entities in the European Union, United States and Japan, and the Purchaser authorizes Topcon to transfer personal data to and process it in the European Union, United States, and Japan based on one of the adequacy safeguards for cross-border transfers of personal data (if applicable) as provided under the Privacy Laws. Topcon warrants that each of its affiliated entities have in place measures to ensure an adequate level of protection with respect to the privacy rights of individuals, as required by Privacy Laws.
(vi) Purchaser represents and warrants that it has the authority to provide the personal data to Topcon for processing as contemplated by these Terms and Conditions. If any applicable law requires a data subject to receive notice of or to provide consent to the processing and/or transfer of his/her personal data, Purchaser will provide such notice and obtain such consent from the applicable data subjects.
(vii) Topcon will abide by applicable Privacy Laws pertaining to any relevant individual’s exercise of his or her rights to access, correct, or object to the processing of personal data.
(viii) Purchaser consents to Topcon engaging third party sub-processors to process the personal data for the permitted purposes provided that: (i) Topcon maintains an up-to-date list of its sub-processors which is available upon request; (ii) Topcon imposes data protection terms on any sub-processor it appoints that require it to protect the personal data to the standard required by applicable Privacy Laws; and (iii) Topcon remains liable for any breach of this Article that is caused by an act, error or omission of its sub-processor.
(ix) Purchaser will only provide Topcon with the personal data necessary for Topcon to perform its obligations under the Agreement.
(x) Following termination or expiry of the term of the Agreement, Topcon will, where required by applicable Privacy Laws and at the option of the Purchaser, return to Purchaser or securely delete all personal data processed in connection with this Agreement. This requirement shall not apply to the extent that Topcon is required by applicable law to retain some or all of the personal data, or to personal data, in which event Topcon shall securely isolate and protect from any further processing except to the extent required by such law.
ARTICLE 19 – SEVERANCE
If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Contract shall not be affected.
ARTICLE 20 – ASSIGNMENT
20.1 Topcon may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.
20.2 The Purchaser may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of Topcon.
ARTICLE 21 – THIRD PARTY RIGHTS
No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
ARTICLE 22 - VARIATION
Any variation of this Agreement only has effect if it is in writing and signed by Topcon and the Purchaser (or their respective authorised representatives).
ARTICLE 23 – NOTICES
All notices required to be served under this Agreement shall be in writing and may be served by personal delivery, facsimile or email or by first class post on the parties at their registered office. Notices shall be deemed to have been served at the time of delivery if served by personal delivery, on the next working day after transmission of an email if sent by email and within two (2) business days after posting if sent by first class post.
ARTICLE 24 – GOVERNING LAW AND JURISDICTION
The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim arising out of, or in connection with the Agreement, its subject matter or formation. The provisions of the Vienna Convention on the International Sale of Goods (1980) shall not apply to the legal relationship between Topcon and the Purchaser.