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General Terms and Conditions of Topcon Ireland Medical

 

GENERAL TERMS AND CONDITIONS OF TOPCON IRELAND MEDICAL  acting in the name of TOPCON EUROPE MEDICAL B.V.
(hereinafter referred to as "Topcon")

 

Update November 2020

 

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 products (including Topcon  Software)  and/or  services  (hereinafter “Products” or “Services”) of whatever nature and under whatever  name  to  the  purchaser  (the “Purchaser”/“you”)

1.2  If you do not agree to the Terms and Conditions, you should not buy any Products or Services, with  Topcon. Topcon is entitled to make changes to the Terms and Conditions, or the policies and conditions that govern the use of the Products and/ or Services at any time. Topcon encourages you to review the Terms and Conditions periodically for any updates or changes. Possible general conditions of the Purchaser are herewith explicitly rejected.

1.3 If these Terms and Conditions are contrary to  -  or incompatible   with   -   the   provisions   in   the   specific agreement(s)  agreed  with Topcon  and  Purchaser, the provisions in the relevant specific agreement will prevail. Possible arrangements deviating from these Terms and Conditions will not  be enforceable, unless Topcon has agreed  in  writing  to  such  deviations.  With  respect  to future  agreements, Purchaser will not be able to derive any rights from any possible deviations in the past.

 

ARTICLE 2 - OFFERS AND CONCLUSION OF AGREEMENT

2.1 All Topcon's offers or quotations are made  without any engagement. An agreement between  Topcon and Purchaser  will  be  validly  entered  into  and  become binding, upon Topcon's confirmation, in writing or through e-mail, of the Purchaser's order, or upon execution of the order by Topcon. These Terms & Conditions will form an integral part of the agreement between Purchaser and Topcon upon formation of such agreement.

2.2  Purchaser guarantees the accuracy and completeness of the information provided  to Topcon by or on its behalf, on which Topcon bases its offer.

2.3  The signatory signing a purchase or other agreement with Topcon (must) have sufficient authorization to legally bind the company the signatory works for to a purchase agreement.  If  this  is  not  the  case,  the  signatory  is personally bound to the purchase agreement.

 

ARTICLE 3 - THE PRICES

3.1 Except as agreed otherwise, all prices are based on delivery FCA Capelle aan den IJssel (The  Netherlands) Incoterms® 2020 and are excluding V.A.T., import and export duties and any other taxes and impositions.

3.2 In the event changes occur in cost price factors (such as  costs  of  (raw)  materials,  government   measures, freights, exchange rates, taxes etc.) after the formation of an agreement between Topcon and  Purchaser, Topcon is entitled to stipulate that the  price will be increased accordingly. Topcon will notify Purchaser in writing of a price increase. If Purchaser has not informed  Topcon that it wishes to terminate the agreement within fourteen days after the notice has been sent, Purchaser will be deemed to have accepted the price increase.

 

ARTICLE 4 – DELIVERY

4.1 The dates quoted for delivery indicate the anticipated delivery time which Topcon will try to meet. Such quoted dates are estimates only and no fatal period The anticipated delivery time is based on applicable  labor conditions at the time of conclusion as well as 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 said  labor  conditions  or  because  timely  ordered  (raw materials or parts of) products are not delivered in time or as  a  result  of  other  circumstances  which  are  not  for Topcon's risk or account,  including those mentioned in Article 14.4 of these Terms and Conditions, Topcon may extend the delivery time with a reasonable period. Should delivery  then still not be made, the Purchaser must  put Topcon in default by a written warning.

4.2 Unless  agreed  otherwise,  all  products  and  spare parts will be delivered FCA Capelle aan den IJssel (The Netherlands) Incoterms® 2020 (the “Delivery”).

4.3 Unless agreed otherwise Topcon will coordinate  the transportation of the Products. In this case, any shipment or   transport   agreements   shall   be    made   at   the Purchaser's     expense,     following     the     Purchaser's instructions, in which case, all taxes, expenses, or other costs,  such  as  but  not  limited  to  transport  costs  and insurance   costs   generated   can   be   charged   to   the Purchaser’s   account.   In   such   event   and   for   legal purpose, Topcon shall act as Purchaser’s agent. Topcon will  make reasonable commercial efforts to ensure that the  Products  are  delivered  in  compliance  with   the estimate delivery date. Topcon will not be responsible for a  delivery  made  after  the   estimate  delivery  date.  If Topcon carries out the  transportation, the Products will be   delivered    FCA    Capelle   aan   den   IJssel   (The Netherlands) Incoterms® 2020 and the risks pertaining to the  Products  will  be  passed  on  to   the  Purchaser accordingly.

 

ARTICLE 5 – PAYMENT

5.1 Payment is to be made on the agreed date and in the currency indicated by Topcon. In case no  specific date for payment has been agreed upon, payment has to be made within thirty days net after the invoice date.

5.2 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).

5.3 If Purchaser fails to meet his (payment) obligations, Topcon shall be entitled to refuse any further deliveries of Products and/or Services unless  full payment is offered in cash or satisfactory security for the payment has been offered.  Topcon’s  right  to  refuse  further  deliveries  of Products  and/or  Services shall be notwithstanding any other  rights of Topcon to claim immediate fulfilment of any (payment) obligations and irrespective whether  any due amounts have already been invoiced or not.

5.4 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.

5.5 Payments by Purchaser shall be deemed to  have been made first to settle accrued interest,  and judicial and  extra  judicial  costs,  and  thereafter  they  shall  be charged  to  the  oldest  debt,  irrespective  of  indications made by Purchaser.

5.6 Objections to an invoice must be made prior to  the payment date of the invoice.

 

ARTICLE 6 - RESERVATION OF TITLE

6.1  All roducts supplied shall remain Topcon's property until the purchase price for the relevant  products has been paid in full.

6.2  In case Purchaser fails to fulfill any of its (payment) obligations,  Topcon  has  the  right,  without  prior  notice being required, to take back the Products or to not deliver the Service (anymore). Purchaser is obliged to return the Products to Topcon upon Topcon's first request. Purchaser will enable Topcon to take back the Products. All costs involved shall be for Purchaser's account. Purchaser  herewith  authorizes  Topcon  irrevocably  to enter those premises of Purchaser where the Products have been stored.

6.3          As  long  as  Purchaser  has  not  fulfilled   all   its (payment)   obligations,   Purchaser   is   not   entitled   to pledge, encumber in any other way or dispose in whole or in part any of the Products, other than in the normal course of business. Upon  Topcon's request, 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.

6.4 Purchaser shall notify Topcon immediately upon the occurrence of the following events:

a. if  Purchaser  becomes  aware  of  the  fact  that  third parties exercise rights to the Products;

b. if Purchaser applies or any of his creditors apply for an   adjudication   in   bankruptcy   or   a    (preliminary) suspension of payments with regard to Purchaser;

c.  if  Purchaser  is  declared  bankrupt  or   granted   a (preliminary) suspension of payments;

d.  an  attachment  is  made  or  execution  levied  on  a substantial part of Purchaser's assets and, in the event of a conservatory attachment, which is not released or discharged within thirty (30) days;

e.  any  change  occurs  in  the  effective  control  over Purchaser, or if Purchaser is involved in or subject to a merger, split-off or split-up;

f.  if 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;

g.  if Purchaser applies for debt relief under the (Natural Persons) Debt Relief Act; and

h.  Purchaser 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.

i.   any event occurs, or proceeding is taken, with respect to the Purchase in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Article 6.4.

 

ARTICLE 7 – SECURITY

7.1   In  case  Topcon  has  good  reason  to  believe  that Purchaser    will   not    strictly    fulfill    its    (contractual) obligations  towards  Topcon,  Purchaser  is  obliged,  at Topcon's first request, to provide satisfactory security in the form requested by Topcon.

7.2   As  long  as  Purchaser  does  not  fulfill  any  of  its obligations as set forth in Article 7.1 of these Terms and Conditions,   Topcon   has   the   right   to   suspend   the fulfillment  of  its obligations  towards  Purchaser  without any form of compensation being due to Purchaser.

7.3   In case Purchaser fails to  comply with  Topcon's request as mentioned in Article 7.1 of these Terms and Conditions within 14 days after having received a written notification,  all  obligations  of  Purchaser  shall  become due and payable.

 

ARTICLE 8 – WARRANTY

Topcon warrants the Products to be free from defects in materials and workmanship for the period as specified and  disclosed  with  or  on  each  product  supplied  by Topcon. The applicable specific Product Warranty is provided upon purchase and/or request of the Purchaser. (the “Topcon’s Service Policy Documentation”). Any implied terms are stated to be excluded to the fullest extent possible in accordance with applicable law.

 

ARTICLE 9 - OBLIGATIONS PURCHASER

9.1   Purchaser is responsible for his own equipment and software to obtain access to the internet.

9.2   In order to ensure the quality and the integrity of the systems  and  technical  infrastructure  of  the   Products and/or Services required for the provision of services, Purchaser will ensure that:

a.  only  authorized  and  capable  persons  shall  have access to the systems of Topcon;

b.  Purchaser is not misusing and or acting in breach of the  law  and/or  regulations  by  using  the  system  of Topcon;

c.  Purchaser has sufficient rights to meet its obligations arising from the agreements entered into with Topcon, if any;

d.  Purchaser  shall  comply  with  any   confidentiality obligations regarding any confidential information;

e.  Purchaser shall comply with any data  protection obligations under applicable data protection and privacy legislation;

f.   the systems, consisting also of the software to which Purchaser is connected to the system of Topcon, are free of defects and/or viruses, which can or may cause damages to the system of Topcon.

9.3  Purchaser shall cooperate and comply with any and all  mandates   and/or  instructions   by   the   competent national authorities and/or Topcon relating to recall of any Topcon products. Topcon will reimburse the Purchaser   for   costs   reasonably   made   directly   in connection with any recall procedures, except where the conduct of the Purchaser, and to the extent applicable, its employees, its contractors and/or any other person(s) engaged by the Purchaser has given rise to the recall of any Topcon products.

 

ARTICLE 10 – SECURITY TRADE AND EXPORT CONTROL

10.1 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.

10.2   Prior to any transfer of Topcon products to a  third party, Purchaser will ensure that:

a.  the transfer will not infringe any embargo imposed by the European Union, by the United States of  America and/or by the United Nations;

b.  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

c.   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.

10.3 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.

10.4  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.

10.5  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 11 - LIMITATION OF LIABILITY

11.1 This Article 11 applies to any liability on the part of Topcon, regardless of the legal basis of such liability. Topcon shall never be liable for damages,  losses and  costs  incurred  or  to  be  incurred  as  a  result  of untimely deliveries or deliveries made in part.

11.2 For  any  other  damages,  losses  and  costs  than those mentioned in Article 11.2 and notwithstanding the provisions of Article 8 of these Terms and Conditions, Topcon shall only be liable for damages which are accountable to wilful misconduct n the part of Topcon, its employees and non-employees.

11.3 In the event the Topcon is liable, Topcon shall only be  liable  for  damages,  losses,  liabilities,  costs  and/or expenses directly  resulting  from  the  wilful  misconduct  or gross  negligence  of  Topcon,  provided,  however,  that Topcon  shall  in  no  event  be  liable  for  any  indirect damages, loss of anticipated profits, loss of contracts, incurred losses, loss of savings and incurred expenses or other (consequential) damage.

11.4  Topcon shall in no circumstances be liable for any indirect  damages,  loss  of  earnings,  loss  of  contracts, losses,   missed   savings,   incurred   costs   or   other (consequential) damages. Topcon furthermore shall not be liable for damages where the amount of the damages exceeds the amount paid out to Topcon (and for which reasonable cover is provided) under their commercial liability insurance. If and to the extent that the incurred damage is not covered by a business liability insurance, but Topcon is liable on the basis of this Article 11, such liability is in any case limited to financial damage, which is the direct result of the acts or omissions of Topcon and such liability shall in any event be limited to the purchase price of the products which have caused the damages in question.

11.5  Topcon,  as  well  as  its  employees  and   non- employees for whose acts Topcon might be held liable by law are each entitled to invoke any and all defenses, whether granted contractually or by law to Topcon, or the relevant  employees  or  non-employees,  which  Topcon may have in order to defend itself against any liability. The Purchaser is liable for and shall indemnify and hold harmless  Topcon  (and  its  respective,  employees, officers, directors, agents, and counsel) from and against any and all claims, demands, suits, damages, losses, liabilities,  costs  and/or  expenses  (including  attorney’s fees and court or arbitration costs) of third parties which arise out of or are related to the willful misconduct or gross negligence on the part of Purchaser, its group companies and/or its and their respective employees, agents and/or commissionaires. Purchaser is liable for and shall indemnify and hold harmless Topcon (and its respective, employees, officers, directors, agents, and counsel) from and against any and all claims, demands, suits, damages, losses, liabilities, costs and/or expenses (including attorney’s fees and court or arbitration costs) incurred or to be incurred by Topcon (and its respective, employees, officers, directors, agents, and counsel) resulting   from   a   breach   by   Purchaser,   its   group companies and/or its and their respective employees, agents and/or commissionaires, of any of its and their (contractual) obligations towards Topcon, except in the event  such  claims,  demands,  suits,  damages,  losses,liabilities, costs and/or expenses are due to willful misconduct or gross negligence on the part of Topcon.

11.6  The  provisions  of  this  Article  11  do  not  affect product liability based on mandatory provisions of Irish law.

 

ARTICLE 12 – INDEMNIFICATION

Upon request by Topcon, you agree to defend, indemnify and hold harmless Topcon and its subsidiaries, affiliates, officers,  agents,  co-branders  or  other  partners  and employees from all liabilities, claims and expenses, including reasonable attorneys’ fees, made by any third party  due  to  or  arising  out  of  your  violation  of  these Terms and Conditions or your violation of any rights of another party.

 

ARTICLE 13 - NO WAIVER

The failure of Topcon to enforce any provisions of these Terms and Conditions or respond to a breach by you or other parties shall not in any way constitute a waiver of Topcon’s right to enforce subsequently any provisions of these Terms and Conditions or to act with respect to similar breaches.

 

ARTICLE 14 - NON – PERFORMANCE

14.1  In case Purchaser fails to comply with any  of its obligations under the agreement(s) and/or any or more of the events described in Article 6.4 sub (ii) – (viii) of these Terms and Conditions occur, Topcon shall be entitled to terminate the agreement(s) forthwith in whole or in part or rescind or suspend the (further) performance of its obligations under the agreement(s) and to take back the products, all such without prejudice to Topcon's right to compensation of any losses or damages it has incurred as a result thereof and any other rights it may have, and without any compensation being due by Topcon.

14.2  In   case   Topcon   terminates   or   rescinds   the agreement(s) in accordance with  Article 14.1 of these Terms and  Conditions,  without  prejudice  to  any  other rights Topcon may have, any and all claims Topcon may have vis-à-vis Purchaser shall become immediately due and payable and Topcon shall be entitled to suspend the further performance of any agreement(s) immediately.

14.3  In   case   Topcon   cannot   properly   perform   its obligations in whole or in part,  whether temporarily or permanently, as a result of circumstances which are not at  Topcon's  risk,  including  those  circumstances mentioned in Article 14.4 of these Terms and Conditions, Topcon has a right to rescind the agreement(s) with Purchaser.

14.4  Circumstances which are in no event at  Topcon's risk are: conduct (with the exception of willful misconduct and gross negligence) of persons which Topcon engages for the performance of its obligations towards Purchaser; unsuitability  of   products  which  Topcon  uses  for  the performance   of   its   obligations   towards    Purchaser; exercise by a third party vis-à-vis  Purchaser of one or more rights in respect of failure of Purchaser to perform its obligations under an agreement with such third party for the delivery of the products; governmental regulations or   orders  which  prohibit  or  restrict  the  use   of   the delivered products or the products to be delivered; strike or lock-out; illness of personnel; transportation problems; limitations/prohibitions of in- and/or export; non- or untimely performance by Topcon's suppliers; disruption in the production process of the products; nature-/nuclear disasters; war, danger of war; negligence of Topcon except for willfulness or gross negligence, and other circumstances which are beyond Topcon's reasonable control.

 

ARTICLE 15 - INTELLECTUAL PROPERTY RIGHTS

15.1 For the purpose of these Terms and Conditions, "IP Rights" means any patents, trademarks, service marks, trade names, trademark registrations, designs, business names, copyrights,  Software (meaning software used in connection  with  or  embodied  in  the  Products  and/or Services, which is 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 embodied in the products or any other materials provided by Topcon. 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. Topcon reserves the right to modify the IP Rights at any time.

15.2 Topcon hereby grants to the Purchaser a revocable, royalty-free,  non-exclusive  right  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 and/or Services purchased by Purchaser from Topcon, to the extent permitted by these Terms and Conditions and/or an additional supply 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.

15.3  Purchaser shall use the IP Rights in  accordance with  the usage guidelines 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. Upon request of Topcon, Purchaser  shall  provide  Topcon  with  a  sample  of  all product packaging and advertising that makes use of the IP Rights for purposes of permitting Topcon to verify that Purchaser’s use of  the IP Rights is consistent with the usage guidelines or other written instructions provided by Topcon with the products.

15.4  The Purchaser shall refrain from (i)  challenging Topcon's, or the relevant third party’s  interest in the IP Rights, or the validity thereof, (ii) obtaining any right, title or interest in or to the IP Rights and (iii) modifying, adapting, translating, making derivative works or, decompiling, disassembling or otherwise reverse- engineering the IP Rights or any portion thereof except where such restriction is prohibited under applicable law without possibility of contractual waiver. Purchaser shall at all times recognize, respect, and protect Topcon’s right to full ownership in, or the license to use, any and all of the IP Rights. The Purchaser shall not apply for and/or register any of the IP Rights or any symbols that include or are similar to any of the IP Rights.

15.5   Purchaser may 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.

15.6 Topcon reserves the right to modify the IP Rights or substitute alternative marks for any or all of the IP Rights at any time.

15.7  Purchaser may not use any trademarks,  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.

15.8  Purchaser acknowledges and agrees that, in  case any license to use any IP Rights granted to Topcon by  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 16 - CONFIDENTIALITY

16.1  “Confidential Information” means any and all non- public    information    disclosed    by    one    party    (the “Disclosing Party”) to the other party  (the “Receiving Party”) in  any form or medium,  whether oral, written, graphical or electronic, pursuant to the agreement, that is designated    confidential   or   proprietary,   or   that   a reasonable person should understand is  confidential or proprietary. Confidential Information  includes, but is not limited to: the terms of the agreement, information related to either party’s technology, whether or not patentable or copyrightable,    products,    know-how,    trade    secrets, specifications,   business   plans,   pricing    information, promotional and marketing activities, finances and other business  affairs,  Topcon  products  and  anything  else created or developed  by Topcon in connection with the agreement and the Products and/or Services. Purchaser will not  remove or destroy any proprietary markings or restrictive  legends  placed  upon  or  contained  in   the Products, Service and/or related materials.

16.2  The Receiving Party will not use the  Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under the agreement, and by Topcon to improve the Products and/or the Service (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the  Receiving  Party  may  disclose  Confidential Information to its partners, officers, directors, employees, contractors,  affiliates,  agents,  advisors,  or representatives who need access to such Confidential Information  for  the  Purpose  and  who  are  subject  to written confidentiality obligations at least as stringent as the obligations set forth in this article 16. Each party accepts responsibility for the actions of its partners, officers, directors, employees, contractors, affiliates, agents, advisors and representatives, and will protect the other   party’s   Confidential   Information   in   the   same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder  and   will  cooperate   with   any   reasonable request of the Disclosing Party in enforcing its rights.

16.3  Confidential    Information    does    not     include information which: (i) is known by the  Receiving Party prior to receipt from the Disclosing Party, without any obligation of confidentiality; (ii) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) lawfully becomes publicly known or otherwise publicly available, except through a breach of the agreement; or (iv) is independently developed by the Receiving   Party   without   use   of   or   access   to   the Disclosing  Party’s  Confidential  Information.  The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process  or  government  regulation,  but  only  after  it notifies the Disclosing party (if legally permissible) to enable the Disclosing party to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.

 

ARTICLE 17 - DATA PROTECTION AND SECURITY

17.1 Topcon as a controller. Each party acts  as an independent controller of any personal data it processes in connection with the Products or Services, whether or not obtained from the other party. Purchaser shall at all times  comply  with  any  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”). Purchaser shall (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 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.

17.2   Topcon as a processor. Under specific circumstances Topcon may and shall  process Personal Data  only  as  a data processor acting  on  behalf  of Purchaser  in  order to  perform  its  obligations  under  a specific agreement .

a.  In  connection  with  the  sale  of  a  Product  and provision of the Service, Topcon may, from time to time, collect, maintain, process and use Purchaser‘s company name, User’s name, address, email address, credit card information, login credentials (user name, password), IP address and related information. Should Topcon process additional personal data, parties will enter into a Data Processing Agreement.

b. The  parties  agree that the Purchaser’s complete and final instructions are set out in this Terms and Conditions. Processing outside the scope of  these  instructions  (if  any)  will  require  prior  written agreement   between  Purchaser and Topcon with additional instructions for  processing.

c. 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.

d.  If Topcon becomes aware of any unlawful access to any Personal Data stored on Topcon equipment or in a Topcon facility,  or unauthorized access   to   such equipment or facilities resulting in loss, disclosure, or alteration  of  Personal  Data  relating  to  the  Purchaser (each a “Data Breach”), Topcon will (1) promptly notify Purchaser of the Data Breach (provided that such notification may be delayed as required by a law enforcement agency); (2) take reasonable steps to address any Data Breach and prevent any further Data Breach; and (3) at Purchaser's request and cost, take commercially reasonable steps to assist Purchaser in complying with its obligations under Applicable Privacy Laws pertaining to responding to a Data Breach.

e.  Notification(s) of Data Breach will be delivered to one or more of Purchaser’s administrators by any means Topcon selects including via email. It is Purchaser’s sole responsibility  to  ensure  Purchaser’s    administrators maintain    accurate    contact     information.    Topcon’s obligation to report or  respond to a Data Breach under this Article s  not an acknowledgement by Topcon of any   fault   or  liability.  Purchaser  must  notify   Topcon promptly about any possible misuse of  its accounts or authentication credentials or any Data Breach related to the contract.

f.  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   found   at https://www.topcon-medical.eu/eu/#selectCountry . Purchaser expressly acknowledges that Personal Data may be transferred to the United States and/or Japan, and Purchaser authorizes Topcon (where applicable) to transfer Personal Data to and process it in the United States or any other country as set forth above, which may not have the same level of data protection as the country from which the Personal Data originated. Based on  one  of  the  safeguards  as  provided  under  Privacy Laws, Topcon warrants that these sub-processors have adopted the same level of protection as Topcon.

g. 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.

h. 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. Notwithstanding the foregoing, unless otherwise required by Applicable Privacy Laws, Topcon will  promptly  notify  Purchaser  if  Topcon  receives  a request from a data subject to have access to Personal Data  or  any  other  complaint  or  request  relating  to Purchaser’s obligations under Applicable Privacy Laws.

i.  Topcon will provide reasonable assistance to Purchaser to facilitate Purchaser’s ability to respond to such request or  complaint  (including,  without  limitation,  by  allowing data subjects to have access to their Personal Data if such access is required by the applicable data protection laws,  and  where  the  Personal  Data  is  not  already available to the Purchaser).

j. Purchaser  consents  to  Topcon  engaging  third party sub-processors to process  the Personal Data for the permitted purpose 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 Data to the standard required by Applicable Privacy Laws; and (iii)  Topcon remains liable for any breach of this Section that is caused by an act, error or omission of its  sub-processor.  Purchaser  may  object  to  Topcon's appointment or replacement  of a sub-processor prior to its appointment or replacement, provided such objection is   based   on   reasonable   grounds   relating   to   data protection. In such event, Topcon will either not appoint or replace the sub-processor or, if this  is  not possible, Purchaser  may  suspend  or  terminate  the  agreement (without prejudice to any fees incurred by Purchaser prior to suspension or termination).

k.  If Topcon believes or becomes aware  that its processing of Personal Data is likely to  result in a high risk to the data protection  rights  and freedoms of data subjects,   it    shall    inform   Purchaser   and   provide reasonable cooperation to Purchaser (at  Purchaser's expense) in connection with any  data protection impact assessment  that  may   be  required  under  Applicable Privacy Laws.

l. Purchaser  only will provide Topcon with the Personal  Data  necessary  for Topcon to perform  its obligations under the agreement.

m.  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.  This  requirement  shall  not apply to the extent that Topcon is required by applicable law to retain some or all of the Personal Data, in which event Topcon shall securely isolate and protect from any further processing except to the extent required by such law.

n. I there is new guidance or a  change  in the Applicable Privacy Laws that  renders all or part of the Subscription illegal, Topcon may notify Purchaser of such modifications to this Section 17 as it reasonably deems necessary in light of such  new guidance or change in Applicable Privacy Laws. If the Purchaser does not wish to accept the new terms in this Section 17, the Purchaser may terminate the agreement within 15 days of the date such notice is given.

 

ARTICLE 18 - APPLICABLE LAW; COMPETENT COURT

18.1  Irish law shall be applicable to all legal relationships between you and Topcon. 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.
18.2    All disputes arising under or in connection with (the performance of) any agreement between you and Topcon as well as any disputes regarding these Terms and Conditions shall be brought exclusively before the competent court in Dublin, Ireland.