Unless otherwise specified, these Terms and Conditions of Sale (“Terms”) apply to the supply by Topcon Healthcare Solutions Australia Pty Limited (“Topcon”) in Australia and New Zealand of Products (including hardware, software, services and/or support) to you (as the Customer) under a Contract.
Definitions and Interpretation:
For the purposes of this Agreement, the terms and rules below shall have the meanings as defined below:
Adverse Event means an occurrence involving a medical device that meets the following criteria: (i) death of a patient, healthcare provider, user or other person; or (ii) a serious injury or serious deterioration to a patient, healthcare provider, user or other person, including: (a) life-threatening illness or injury; (ii) permanent damage to a body structure; or (c) a conditions necessitating medical or surgical intervention to prevent permanent impairment of a body function or permanent damage to a body structure;
Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a party;
Business Day means a day that is not a Saturday, Sunday or public holiday in Australia, and for deliveries of Products, at the place of delivery;
Contract means a contract for sale as referred to in clause 3.7;
Customer means the person or legal entity identified in Topcon’s Quotation or Invoice;
Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms;
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (as amended);
High Risk Activities means use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, medical life support, mass and air traffic control, weapons systems, life-support machines or any other application in which the failure of the Products could lead directly to death, personal injury or severe physical or property damage;
Insolvency Event means circumstances in which Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Topcon; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation;
Installation Fee means the amount, if any, chargeable by Topcon in consideration for installation and configuration of the Products;
Order means a purchase order for Products which has been accepted by Topcon but excluding any terms or conditions printed on or referred to in Customer’s purchase orders or other documentation unless expressly agreed to in writing by Topcon;
Order Confirmation means formal acknowledgement of the Product ordered by the Customer, sent by Topcon;
Products means the products and/or services specified in the Order Confirmation, and may include Topcon-branded products, non Topcon-branded products and service and support supplied or sold by Topcon to the Customer from time to time;
Product Technical Complaint means any report (written, electronic or verbal communication) about a potential or alleged failure of a Product in its quality (including the identify, durability, efficacy or safety) or suspect counterfeit;
Quotation means any quotation that remains valid for thirty (30) days and includes only the Products;
Term means the period of time during which Topcon shall provide the Products to the Customer, as selected by the Customer on the Quotation;
Terms means these terms and conditions of sale;
Topcon means Topcon Healthcare Solutions Australia Pty Limited and its Affiliates;
Topcon-branded means Products that are marked with the Topcon brand;
Orders and Quotations:
All Quotations will be provided in writing and subject to clause 3.2, are valid for thirty (30) days from the date of the Quotation.
Topcon may withdraw any Quotation at any time before receiving the Customer’s confirmed order.
All orders for Products must be placed in the manner and form required by Topcon.
Topcon may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to the Customer.
All orders will be subject to acceptance by Topcon, which may decline an order or accept an order in whole or part in its absolute discretion. The Customer acknowledges that acceptance of an order by Topcon will not imply that Topcon will accept any future order(s) placed by the Customer.
Once accepted by Topcon, an Order may not be cancelled by the Customer except with the express consent of Topcon.
Upon the acceptance of each Order by Topcon, a separate contract of sale will arise (“Contract”). Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the extent of the inconsistency.
For the avoidance of doubt no terms or conditions of the Customer, including any terms or conditions printed on or referred to in the Customer’s offer to purchase or order will be binding on Topcon or have any legal effect unless expressly agreed to in writing by Topcon.
Price and Payment:
The price for the Products is specified in the Contract. Unless the Contract states otherwise, Topcon may alter the Price at any time prior to acceptance of an order without prior notice.
The Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price. Topcon will provide the Customer with a tax invoice as required by law.
Unless the Contract states otherwise, the Customer must pay the Price for Products supplied to it within 30 days of the date of the invoice for such Products.
The Customer must not withhold payment or make any deduction from the invoiced price or any other amount owing to Topcon without Topcon’s prior written consent.
Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
Topcon may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
Topcon may charge interest on any overdue monies at the rate which is 10.5% above the amounts which are more than thirty (30) days overdue. Credit cards are accepted but surcharges may apply.
Topcon will be entitled to recover from the Customer all legal and other costs incurred by Topcon arising from the Customer’s default in payment and the collection of any overdue monies.
Any timeframes quoted by Topcon for delivery of the Products are estimates only. Topcon will use its reasonable endeavours to supply the Products in the quantities specified in the relevant Contract.
Topcon will not be liable for any loss suffered by the Customer arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities.
Topcon is entitled to refuse to deliver the Products to the Customer if there are any outstanding monies owing to
Delivery of the Products will be made in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by
The Customer agrees to accept delivery of the Products at any time between 9.00am to 5.00pm on a Business Day.
If Topcon fails to deliver some or all of the Products pursuant to a Contract, the Customer will not be entitled to cancel that the Contract or any other order, Contract or delivery. Topcon will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Topcon within ten (10) Business Days after receipt by the Customer of the Products at the delivery destination.
If Topcon supplies the Products pre-packed and labelled, the Customer must not sell, supply or otherwise deal with the Products unless the packaging and labelling remains intact, and the Customer must not alter, remove, conceal or tamper with any batch numbers or other means of identification used in relation to the Products.
If the Customer does not, or indicates to Topcon that it will not, take or accept delivery, then the Products will be deemed to have been delivered when Topcon was willing to deliver them.
Topcon reserves the right to deliver the Products by instalments. Each instalment may be invoiced separately and will be deemed to be a separate contract under the same provisions as the main Contract.
Topcon may suspend or cancel delivery of the Products if Topcon reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from the Customer to Topcon remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Topcon’s
Any pallets, pallets or containers used for the delivery, storage or display of the Products are not included in the Price unless otherwise specified and will remain the property of their owner.
The Customer must promptly return or exchange the pallets and containers in its possession on the day of delivery (unless otherwise agreed with Topcon) or reimburse Topcon the cost of replacement or repair of lost or damaged pallets or containers.
Topcon may charge a deposit to the Customer for a pallet or container which will be credited in full if the pallet or container is returned to Topcon within three (3) months of dispatch and is in good order and condition.
Provision of Services on Customer’s Premises:
Where Topcon performs Services on the Customer’s premises, the Customer is responsible for:
Giving safe access to Topcon personnel, including, but not limited to, employees, agents and contractors;
Ensuring that all consents and permissions required to perform the Services are in place;
Providing facilities such as power and lighting necessary to perform the Services;
Ensuring that the premises are free from health and safety hazards; and
The death or personal injury to Topcon personnel or loss of Topcon property, personnel and subcontractors whilst on the Customer’s premises except where caused by the negligence of Topcon’s subcontractors.
Risk and Title:
Legal and beneficial ownership in the Products will not pass to the Customer until the Customer has paid in full the Price for those Products.
Risk of loss of or damage to the Products will remain with Topcon only until the first of the passing of title to the Products to the Customer, or delivery of the Products by Topcon to the Customer in accordance with clause Thereafter risk of damage to, or loss or deterioration of, the Products from any cause whatsoever passes to the Customer.
Until all outstanding monies have been paid to Topcon for Products delivered to the Customer:
The Customer must separately store those Products in such a way that makes it clear that they are the property of Topcon;
In the event of a default (specified in clause 16), Topcon or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by the Customer to search for and remove any of those Products without in any way being liable to the Customer, and may dispose of or retain such Products as Topcon sees fit without being required to give notice or account to the If the Products or any of them are wholly or partially attached to or incorporated in any other product, Topcon may (when practical) disconnect them in any way necessary to remove the Products; and
All costs and expenses incurred by Topcon as a result of taking action in accordance with clause 8.3(b), together with transportation and storage charges, must be paid by the Customer to Topcon on demand.
Until title to the Products passes to the Customer, the Customer acknowledges and agrees:
that the Products supplied and not resold are held by it as a bailee for Topcon;
the Customer may resell the Products without the right of the Customer to bind Topcon to any liability to any third party (whether contractual or otherwise);
Topcon warrants that all Products manufactured by Topcon or a Topcon Affiliate and supplied to the Customer will, subject to this clause 9, comply with Topcon’s specifications for those Products (or if no such specifications exist, will be free of defects in materials and manufacture), until the end of the registered shelf life of such Product, or if there is no registered shelf life, until the date falling twelve (12) months from the date of delivery of the Products by Topcon to the Customer (the “Warranty Period”).
If a Product does not comply with the warranty set out in clause 9.1 and the Customer notifies Topcon in writing of the defect during the Warranty Period within ten (10) Business Days of the defect coming to its notice, Topcon will, at its option, either repair, exchange the Product for a new Product, or refund the Price paid for the Product.
When a refund is given pursuant to clause 9.2, the Product for which the refund is provided must, at Topcon’s option, be destroyed or returned to Topcon by Customer, at the Customer’s expense, and if returned becomes the property of Topcon.
The warranty in clause 9.1 does not apply:
as a result of any acts or omissions by any person other than Topcon or any external cause;
if the defect is due to the Product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval;
to a Product that has been modified without the written permission of Topcon; or
if the Product has not been stored or transported in accordance with Topcon’s recommendations.
The benefit of the warranty in clause 9.1 is personal to Customer and is not assignable without the prior written consent of Topcon.
Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51, 52 and 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Topcon’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Topcon under these Terms, are excluded and the rights set out in this clause 9 are the sole and exclusive remedies of the Customer with respect to defective Products.
This warranty does not apply to any appearance of the supplied Products nor to any supplied Productsthe exterior to which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been modified or altered in design or construction. In addition, the warranty coverage does not apply to defects caused by the supplied Products being subjected to the following; unauthorised modifications or connections, unauthorised opening or repair, repair by use of unauthorised parts, accident, force majeure, or other acts beyond the reasonable control of Topcon.
This warranty does not cover death or injury to persons resulting from any cause other than proven negligence of Topcon, its employees or representatives.
In order to enforce the rights under this warranty, the Customer must provide proof of purchase to Topcon proof of purchase must state the date of the purchase, provide a description of the Products and the price paid for the
A claim made by a Customer should be made in writing to Topcon along with the proof of purchase. The costs of transportation of the Products will be borne by the If the claim is valid Topcon will reimburse the Customer for the costs of transportation of the Products.
The Customer must inspect the Products as soon as is reasonably practicable after delivery.
Credits sought for returned Products are at Topcon’s discretion. Where accepted, Topcon may charge a reasonable administration fee in respect of all returned Products. For the avoidance of doubt, no Products for which the shelf life has expired will be accepted for return.
Products, in respect of which a credit is sought and approved by Topcon, must be returned to Topcon’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of Topcon’s supplying invoice.
Orders once placed and accepted can be cancelled only with Topcon’s prior written consent and upon terms that will save Topcon from loss. In the event that the Customer cancels any order subsequent to despatch by Topcon to the Customer (regardless of whether or not the order(s) has/have been delivered to the Customer) the Company will credit the Customer for the Products on return in saleable condition of the items ordered provided such returns are within seven (7) days of despatch. Freight charges will not be credited.
The Customer agrees that, in the event of a product cancellation and prior to installation completion, Customer may be subject to a pro-rata installation fee as determined in the quotation and as specified by Topcon.
Assistance and Materials Supplied by Topcon:
Subject to obligations imposed on Topcon by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Topcon in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Topcon and without intention that Customer should rely thereon.
Any material supplied by Topcon for advertising and display is issued to the Customer for use in its own business and is not intended for circulation or distribution to the public. Such material will remain the property of Topcon, must be returned by the Customer to Topcon upon request and must not be modified without Topcon’s prior consent.
Post-Market Surveillance and Recalls:
The Customer agrees to provide to Topcon written reports of all Adverse Events and Product Technical Complaints regarding Products and services relevant to Products that come to the Customer’s attention within one (1) business day of becoming aware of such events/complaints to [email protected]
The Customer agrees that, unless otherwise required by law or applicable regulatory authority, Topcon shall be solely responsible for determining if any Product recall or removal from sale should occur. The Customer agrees to co-operate to the fullest extent possible to diminish any risk to the public from an Adverse Event or Product Technical Complaint.
Limitation of Liability:
Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.
Subject to clause 1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Topcon to the Customer under such implied terms, conditions or warranties is limited, at the option of Topcon, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
Except as expressly provided in these Terms, to the extent permitted by law, Topcon will have no liability to the Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
Topcon will not accept responsibility for damage resulting from Customer misuse, tampering, unauthorized modification, improper transportation or storage, or accident. Topcon shall not be liable for incidental or consequential damages arising from the sale or use of any goods supplied by Topcon. Such damages include, but are not limited to, costs of removal and reinstallation of goods costs of testing, loss of goodwill, or loss of use.
If the Customer gives instructions to Topcon with respect to the manufacture, packaging, sale or supply of the Products, the Customer warrants to Topcon that adherence by Topcon to any such instructions will not infringe the intellectual property rights of any other person.
The Customer releases and indemnifies Topcon, its Affiliates, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
If an Insolvency Event occurs in relation to the Customer any other event occurs which gives Topcon reasonable grounds for doubting the credit of the Customer, Topcon may by notice to the Customer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by the
Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
These Terms and the provisions of all Contracts are confidential and must not be disclosed by the Customer to any third party without Topcon’s prior written consent unless such disclosure is required by law.
The restrictions contained within this clause 18 do not apply to any of these Terms or provisions of Contracts that Topcon has itself placed in the public domain.
Topcon’s collection and use of your personal information may for purposes including:
to process and administer your dealings as a customer;
to provide you with the Products and services you have requested and assisting you with further relevant information including Product related information; and
to administer the transactions contemplated by the Terms.
Topcon will generally:
use personal Information provided to it for the purposes relating to the terms of this agreement;
not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by the terms of this Agreement, or the Customer consents to such a disclosure or such disclosure is required to do so by law.
The Customer therefore authorises Topcon to disclose Customer’s personal information to third party contractors and service providers that assist Topcon operate its business and assist Topcon fulfil the terms of this agreement such as contractors and service providers involved in services including but not limited to the processing of orders, order fulfilment and the collection of outstanding debts.
By entering into this agreement Customer:
acknowledges that Topcon is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by Topcon entities located outside of Australia such as in the USA, Japan, and Finland, and as such the Customer consents to the overseas transfer of its Personal Information, its employees, consultants and agents provided by the Customer to Topcon.
The Customer warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.
Nothing in these Terms constitutes a transfer of any intellectual property rights. The Customer acknowledges and agrees that, as between the Customer and Topcon, Topcon owns all intellectual property rights in the Property. The Customer must obtain prior written approval from Topcon for any use by the Customer of Topcon trademarks or brand.
Customer must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
In these Terms and any Contract, unless the contrary intention appears:
a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
a reference to dollars is to Australian Dollars;
the word “including” and similar expressions are not words of limitation;
a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
Any notice in connection with these Terms or any Contract will be deemed to have been duly given when made in writing and delivered or sent by post or email to the party to whom such notice is intended to be given, at the address of that party in the Contract or to such other address as may from time to time be notified in writing to the other party.
If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
Any failure by Topcon to insist upon strict performance by the Customer of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Topcon in relation to the provision.
The Customer must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Topcon.
Topcon may vary these Terms at any time by notice in writing to the Customer. The Customer may not vary these Terms unless it is agreed in writing.
These Terms and Contracts are governed by the laws of South Australia, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of South Australia, Australia.
These Terms (together with the Contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.