Terms and Conditions of Supply
Terms and Conditions of Supply
Terms and Conditions of Supply - Topcon Europe Medical B.V.
Last Update January 2024
Article 1. Scope, Applicability
1.1 These Terms and Conditions of Supply (hereinafter the “Terms and Conditions”) apply to all requests, quotations, offers, assignments, orders, order confirmations, agreements and other contractual documentation relating to the supply of Products or the provision of Services by the Supplier for Topcon Europe Medical BV or its branches and subsidiaries (hereinafter “Topcon”).
1.2 Any exceptions to these Terms and Conditions must be explicitly agreed upon in writing. The remaining provisions shall remain in full force and effect.
1.3 Any general terms of business of the Supplier, however framed, with contrary effect are hereby rejected.
Article 2. Purchase, Acceptance, Purchase Orders
2.1 Quotations/offers/order confirmations issued by the Supplier are irrevocable, free of charge and shall remain valid until accepted or rejected by Topcon.
2.2 The Supplier shall ensure that offers and/or quotations contain at least the following information, if applicable:
- name and address of the Supplier;
- name and address of Topcon;
- article number of Topcon;
- clear description of the Products and/or Services to be supplied;
- quantity of Products and/or Services to be supplied;
- binding delivery date;
- discounts;
- unit price excl. VAT, VAT to be paid in euros, name, address and VAT identification number of any third-party tax representative;
- Supplier code, Supplier bank account number, delivery date and packing slip number, Supplier item, series and possibly lot number.
2.3 Any change in prices, discounts and/or delivery dates must be clearly indicated in the respective offer, quotation or other document.
2.4 Topcon may request changes in the Order by issuing a written notice (“Change Request”) to the Supplier, which shall not be unreasonably withheld by the Supplier. The Supplier shall immediately (no later than three (3) business days after receipt of the Change Request) notify Topcon concerning any proposed change to the delivery date, price or any other terms on the Order in response to the Change Request, together with supporting documents. No change proposed by the Supplier shall become effective unless agreed in writing by Topcon.
2.5 A contract of sale shall only be concluded between Topcon and the Supplier if Topcon has explicitly sent a purchase order to that effect and the Supplier has confirmed the order in writing via a purchase order confirmation. The Supplier must send a written purchase order confirmation within 3 working days after receipt of the written purchase order from Topcon. After expiration of such term, the order shall be deemed to have been accepted by the Supplier.
2.6 Oral orders shall not be binding on Topcon, unless the oral order has been confirmed in writing by Topcon.
2.7 All costs for drawing up a quotation/offer shall be borne by the Supplier.
2.8 If Topcon has authorised certain (contact) persons within its organisation to execute the purchase concluded with the Supplier, Products and services can and may only be ordered by these appointed persons. If an order is placed by an unauthorised person, the order shall not be binding and Topcon may cancel the order at any time free of charge.
2.9 The relationship between Topcon and the Supplier is non-exclusive. Topcon shall not be under any obligation to purchase Products and/or Services from the Supplier and reserves the right at all times to purchase similar or identical Products and/or Services from any third parties.
Article 3. Prices
3.1 Unless expressly agreed otherwise in writing, prices shall be indicated in euros and exclusive of VAT, but shall include all (other) taxes, levies, duties, costs and packaging.
3.2 Prices shall be fixed and shall remain valid for a minimum of 12 months from the Quotation date (the “Term”) and, unless the agreement explicitly states otherwise, shall be automatically extended by 12 months. This shall not apply to parts and/or stock of Products with an item number.
3.3 Price increases during the Term will not be honoured. Any price increase shall require the prior written approval of Topcon and must be communicated in writing at least 3 months before the end of the Term. If Topcon is forced to reduce its prices as a result of market developments, Topcon and the Supplier shall enter into negotiations concerning a corresponding reduction in delivery prices. The Supplier shall not charge Topcon any higher prices or grant us any less favourable terms than those used for other comparable customers.
Article 4. Delivery of Products and transfer of risk.
4.1 Delivery of Products must take place in the manner and at the time specified in this Terms and Conditions. Delivery from the EU shall occur DDP (Topcon Warehouse Netherlands) Incoterms 2020. Delivery from outside the EU shall occur DAP (Topcon Warehouse Netherlands) Incoterms 2020. Until risk is transferred, the Products shall be covered by the Supplier’s insurance.
4.2 Agreed delivery dates are binding. In the event of any failure to comply with an agreed term for a (partial) delivery, the Supplier shall be deemed to be in default. The Supplier shall report any imminent delay in delivery in writing to Topcon as soon as possible within no more than 3 days. This notification shall be without prejudice to any consequences and liability in connection with this delay. Statutory interest pursuant to Section 119a of Book 6 of the Dutch Civil Code (CC) shall be payable without any requirement for a further notice of default by the Supplier to Topcon.
4.3 If the Supplier is in default, Topcon shall be entitled to cancel the purchase order and to purchase Products or Services from another supplier to cover its needs if such purchases are expedient in the circumstances to prevent the threat of consequential losses. Any additional costs that Topcon incurs as a result of this must be paid by the Supplier.
4.4 If Delivery is not made in a timely manner, Topcon shall be entitled to cancel the order. Compensation may be claimed at Topcon’s sole discretion unless the Supplier is not responsible for the delay.
4.5 Unless agreed otherwise in writing, the Supplier is not entitled to make partial deliveries. If the execution of partial deliveries has been agreed in writing, for the purposes of these Terms and Conditions delivery also includes partial delivery.
4.6 Delivery of more or less than the ordered quantity will only be accepted if this has been expressly agreed by Topcon in writing.
4.7 Delivery also includes the delivery of associated devices and all associated documents. The Products may be received during business hours or product-reception times specified by Topcon.
4.8 Delivery shall be completed at the time when the Products have been signed for approval in writing by or on behalf of Topcon. Such signature shall not affect the right to reject the delivered Products on the basis of Article 6 of the Terms and Conditions. Furthermore, the Supplier cannot infer any rights from the signature referred to in the first sentence of this Article.
4.9 The Supplier is authorised to suspend its delivery obligation in the event that Topcon fails to fulfil (any of) its obligations.
4.10 The Supplier hereby waives all rights and powers accruing to it on the basis of the right of retention or the right of recovery.
Article 5. Provision of services and maintenance
5.1 Services must be provided in the manner and at the time specified in the Terms and Conditions and in accordance with the applicable safety regulations.
5.2 The Supplier shall be deemed to be in default in the event that it fails to comply with any agreed term for the provision of services.
5.3 The provision of services shall be completed when Topcon confirms in writing that the services provided have been performed or approved.
5.4 The Supplier shall be responsible for and shall manage the devices, personnel and/or third parties to be used for the services to be performed.
Article 6. Inspection of Products
6.1 Topcon is at all times authorised and entitled to subject the Products to be delivered or supplied to an inspection. The Supplier is obliged to fully cooperate with this.
6.2 If the Products are defective or otherwise not in conformity with the requirements of the order, Topcon may, by written notice to the Supplier: (i) require the repair or replacement of the rejected Products at the Supplier’s expense; or (ii) accept such Products, subject to a reasonable reduction in the price; or (iii) cancel the order; or (iv) reject the Products.
6.3 In the event of rejection, Topcon shall inform the Supplier in writing. Topcon shall store the rejected Products at the cost and risk of the Supplier. If the Supplier does not exchange the Products within a period of 1 (one) week, Topcon shall return the Products and shall be entitled to claim all additional costs.
6.4 The Supplier cannot infer any rights based on the results of the inspection or investigation referred to in Article 6.1, or from the failure to perform any such inspection or investigation.
6.5 Topcon shall not at any time be bound by any deadline set by the Supplier within which Topcon must submit a complaint.
Article 7. Ownership and Risk
7.1 Ownership of and risk relating to the Products shall transfer from the Supplier to Topcon at the time of delivery, unless otherwise agreed or when Products are rejected during or after delivery.
7.2 The Supplier warrants that the unencumbered ownership of Products will be established.
7.3 The Supplier hereby waives all rights and powers accruing to it on the basis of the right of retention or the right to recovery.
Article 8. Packaging and Shipping
8.1 The Supplier shall package the Products at its own expense, having due regard to the requirements of these Terms and Conditions and in a manner appropriate for the Products and in accordance with any applicable regulations. The Supplier is responsible for using appropriate packaging material.
8.2 Each shipment must be accompanied by a packing slip containing all relevant information for the rapid storage of the items and/or Products.
8.3 Return shipment of (loaned) packaging shall occur at the cost and risk of the Supplier to a destination specified by the Supplier.
Article 9. Payment
9.1 Payment shall be made within a payment term of 60 days, provided that the Products delivered or the services provided have been approved and following receipt of all associated documentation, including the correctly addressed and complete invoice. Delays caused by incorrect invoices shall not adversely affect the agreed prices and/or discount terms.
9.2 Invoices must contain the following information, if applicable: name and address of the Supplier, name and address of Topcon, purchase order and item number, clear description of the Products and/or services to be delivered, quantity of Products to be delivered and/or services, unit price excl. VAT, VAT amount to be paid in euros, name, address and VAT identification number of any third-party tax representative, VAT identification number of the Supplier, Supplier code, bank account number of the Supplier, delivery date and a packing slip number.
9.3 Payment by Topcon shall not constitute a waiver of rights or claims in any way.
9.4 In the event that the incorrect Products are delivered, Topcon shall be entitled to withhold a proportion of the payment until the order has been completed correctly. Any payments made shall not be construed as acknowledgement that the Products are compliant with the contract.
9.5 Topcon is at all times authorised to set off any claims of the Supplier against Topcon and/or companies affiliated with it against any claims that Topcon has against the Supplier for whatever reason.
Article 10. Warranty
10.1 The Supplier warrants that the Products and/or services to be delivered comply with the Terms and Conditions. This warranty includes at least the following:
- The Products have the properties that have been promised;
- The Products are new and free of defects and rights of third parties;
- The Products and/or services are suitable for the purpose for which the order was placed;
- The Products comply with legal requirements, technical standards and all applicable laws and regulations;
- The Products do not infringe any patent, published patent application, or other intellectual property rights of any third party.
- The Products are provided with the correct data and instructions that are necessary for safe use;
- The Products are provided with all documentation requested by Topcon
10.2 In the event that any defect in the Products or any other breach of the terms set forth in the order is identified within twenty-four (24) months of delivery, the Supplier shall, at its own cost and responsibility, promptly repeat the services, or repair or replace any non-compliant Products in accordance with Topcon’s instructions. Topcon’s inspection or acceptance of any Products or payment for them shall not be deemed to release the Supplier from its obligations under these warranties.
Article 11. Quality Assurance and Regulatory Aspects
11.1 The Supplier shall comply with quality standards as specified for suppliers according to Topcon’s Quality Manual in its latest released version and shall conduct a proper quality control with regard to all manufacturing and delivery process of the Products in order to ensure compliance with acceptable quality levels as defined in Topcon’s QA Policy in its latest released version. Upon request by Topcon, Supplier shall submit to Topcon appropriate documentation proving that such quality assurance system works sufficiently (including, but not limited to quality management system certificates issued by accredited third parties, procedures, test protocols, test report). For further information concerning the Quality Manual or QA Policy, please contact: [email protected].
11.2 The Supplier undertakes to comply with the applicable regulatory requirements and to provide objective evidence of compliance upon Topcon’s request.
Article 12. Confidentiality
12.1 Each Party shall treat as and keep in strict confidence any and all technical or business information disclosed by the other Party in connection with the order, including, without limitation, designs, processes, drawings, specifications, reports, equipment, tools and patterns (“Confidential Information”), and shall not, without prior written consent of the other Party, disclose or divulge any Information to any third party, and may use them only in performance of the order. The recipient of the Confidential Information shall return all Confidential Information and any copies thereof to the disclosing party or otherwise dispose thereof as may be directed and approved by the disclosing party, and shall, if requested by disclosing party, certify such return or deletion.
12.2 The recipient is obliged to impose the duty of confidentiality concerning information and documentation supplied as referred to in Article 12.1 on employees or third parties engaged by the Supplier for the performance of the Terms and Conditions.
12.3 The recipient may only publicise this business relationship with the prior written approval of disclosing party.
12.4 The order may not be transferred to a third party without the prior written approval of the disclosing party. Should this nonetheless occur, the recipient shall be entitled to cancel the order and claim compensation.
Article 13. Intellectual property
13.1 Any intellectual property rights applicable to Products supplied and/or services provided by the Supplier, including the associated documents, that the Supplier can prove already existed prior the Purchase shall lie with the Supplier.
13.2 The Supplier warrants that the use (including resale) of the Products and/or services supplied will not infringe any intellectual property rights or other third party rights.
13.3 The Supplier shall indemnify Topcon against all third party claims arising as a result of any infringement of the rights referred to in Article 13.2 of these Terms and Conditions. The Supplier shall compensate Topcon for all resulting damage.
13.4 Unless otherwise agreed by Topcon and the Supplier, any and all inventions, improvements, developments, work and discoveries newly conceived, discovered, created or first embodied in a tangible work product by the Supplier or a subcontractor in relation to the Products produced by them according to Topcon’s designs or specifications shall be the sole property of Topcon. The Supplier hereby assigns in full to Topcon all such inventions, improvements, developments and discoveries, and all intellectual property rights therein. The Supplier hereby grants to Topcon a non-exclusive, royalty-free, worldwide, irrevocable and perpetual license to use the Supplier’s intellectual property (if any), in order to give Topcon the full benefit of any Products incorporating any such Supplier intellectual property.
13.5 If the Supplier provides information in connection with the supply of Products and/or the provision of services to and/or the performance of work for Topcon, this data shall be regarded as Confidential Information as referred to in Article 12.1 and the Supplier undertakes to treat it in the strictest confidence.
13.6 The Parties undertake to notify each other without delay concerning any risks of violation or alleged violation that may come to their attention and to give each other the opportunity to defend themselves against such claims
Article 14. Data Protection
The parties shall comply with applicable data protection legislation including but not limited to the General Data Protection Regulation (EU) 2016/679 (GDPR) and any national implementing laws, regulations and secondary legislation, in each case as amended, supplemented or replaced from time to time. If any personal data are to be processed under these Terms and Conditions, the Parties shall conclude a mutually acceptable Data Processing Agreement in accordance with Article 28 of the GDPR.
Article 15. Liability
15.1 Any shortcoming in the fulfilment of the Supplier's obligations shall entitle Topcon to require the Supplier to fully or partially remedy the shortcoming and/or the consequences thereof at the cost and risk of the Supplier.
15.2 The Supplier shall be liable for all damage suffered by Topcon as a result of any shortcoming in the fulfilment of the Supplier's obligations and/or as a result of the acts or omissions of the Supplier or its personnel or third party appointees.
15.3 Without prejudice to the provisions of Article 13.3, the Supplier shall indemnify Topcon, its affiliates, and each of its and their directors, officers and employees, agents, contractors, distributors and customers against any and all claims from third parties in connection with the purchase concluded between Topcon and the Supplier as well as all claims, counterclaims, demands, actions, allegations, causes of action, suits or proceedings whatsoever (“Claims”), and any and all damages, liabilities, losses, payments, obligations, costs and expenses (including, without limitation, lawyers’ fees and costs), incurred as a result of or in relation to; (i) any patent, trademark, copyright, trade secret or other intellectual property infringement claim relating to the Products; (ii) personal injury, death or damage to property in any way arising out of or caused by the Products; or (iii) any breach of any provision of these Terms and Conditions. Such indemnification by the Supplier above shall not be deemed to prohibit or restrict Topcon from seeking injunctive relief or enforcing any other rights or remedies it may have.
15.4 The Supplier shall, at its own cost, maintain adequate insurance (including, but not limited to, product liability and general liability insurance). Upon request by Topcon, the Supplier shall furnish Topcon copies of certificates as evidence of said insurance. This insurance obligation shall also extend to equipment involved in any way in the performance of the obligations under these Terms and Conditions.
Article 16. Force Majeure
Force majeure shall be understood within the meaning of Section 75 of Book 6 of the Dutch Civil Code. Neither Topcon nor the Supplier shall be liable to the other party for any default on or delay in the performance of its obligations, if caused by an event beyond its reasonable control, including but not limited to fire, flood, earthquake or acts of God, war, terrorism, riots, civil disorder, rebellions, insurrections, strikes, labour disputes, epidemics or pandemics, provided that the affected party gives prompt written notice of any such inability to perform to the other party. In the event of a force majeure occurrence affecting one party, performance of the Terms and Conditions shall be suspended in whole or in part for the duration of the force majeure occurrences, without the parties being obliged to pay any compensation. If such force majeure occurrence prevents the Supplier from performance for a continuous period of more than thirty (30) business days, Topcon may cancel the Order without having to pay any damages.
Article 17. Termination
17.1 In the event that the Supplier is in breach of these Terms and Conditions or the order or in the event of Supplier’s bankruptcy, insolvency or liquidation, or the appointment of a receiver, Topcon shall have the right, without prejudice to its other rights and remedies, to cancel any Order with immediate effect, either entirely or in part upon written notice to the Supplier.
17.2 All claims that Topcon may have or acquire against the Supplier in the cases referred to above in Article 17 shall become immediately due and payable in full.
17.3 The Supplier commits to Topcon to continuing to service the Products both during the warranty period and thereafter until the Products have reached their end-of-life under the conditions agreed in these Terms and Conditions.
Article 18. Severability
18.1 The invalidity or unenforceability of any provision of these Terms and Conditions shall not affect the validity or unenforceability of the other provisions of these Terms and Conditions, which shall remain in full force and effect to the fullest extent permitted by law.
18.2 If and insofar as any provision of the Terms and Conditions should be invalid or, under the given circumstances, unacceptable according to standards of reasonableness and fairness, a provision shall apply between the parties that corresponds as closely as possible to the original provision.
Article 19. No Waiver
The failure by either Party to enforce at any time any article or part thereof under these Terms and Conditions, or the failure to require timely performance by the other Party of any article or part thereof, shall in no way constitute a present or future waiver of the said article or part thereof, nor in any way affect the ability of either Party to enforce these Terms and Conditions.
Article 20. Governing law and dispute resolution
These Terms and Conditions shall be exclusively governed by and construed in accordance with the laws of the Netherlands. The Vienna Convention on Contracts for the International Sale of Goods (1980) shall not apply. Any dispute or controversy relating to these Terms and Conditions shall be definitively and exclusively resolved by the courts of Rotterdam, the Netherlands.