Terms and Conditions

PRODUCT HIRE TERMS AND CONDITIONS

These Conditions are the terms and conditions under which Medifab hires Products to the Distributor. These Conditions prevail over any additional or inconsistent conditions specified by the Distributor, or appearing in any purchase order from the Distributor, and no variation to these Conditions will be binding on Medifab, unless specifically accepted by Medifab in writing.

  1. DEFINITIONS
    1. For the purposes of these Conditions, the following terms have the following meanings:

Conditions means these product hire terms and conditions;

Distributor means the authorised Medifab dealer or distributor, or customer for Medifab products, who is the hirer of the Products, as named or identified in the Hire Details;

End User means the person who will use the Products being hired by Medifab to the Distributor;

Fees means:

  • the hire fees payable by the Distributor to Medifab for the hire of the Products; and
  • any other charges payable by the Distributor to Medifab that relate to the hire of the Products,

as set out in the Hire Details or as otherwise agreed by the parties in writing;

GST means goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Hire Agreement means the agreement between Medifab and the Distributor for the hire by the Distributor of the Products, consisting of the Hire Details and these Conditions;

Hire Details means the details of hire of the Products agreed by the parties, including a description and schedule of the Products, the hire periods and applicable hire fees, and any special conditions regarding the hire of the Products, being:

  • as specified by Medifab via its online product hire system in response to a booking request by the Distributor and then accepted by the Distributor (e.g. by an online “click to accept” by the Distributor or similar, or by payment of the applicable Fees); or
  • as otherwise agreed by the parties in writing;

Hire Term means the period of hire of the Products by the Distributor from Medifab, as specified in clause 3.1;

Medifab means Medifab Australia Pty Ltd & Medifab Global Limited Limited Partnership (ABN 81 932 627 310);

Normal Wear and Tear means the natural and gradual deterioration of the Products over time due to ordinary and reasonable use. It excludes any damage resulting from misuse, negligence, accidents, or failure to properly maintain the Products;

PPSA means the Personal Property Securities Act 2009 (Cth) (including any amendments to that legislation);

Products means the products described in the Hire Details; and

Start Date means the start date specified in the Hire Details. If no such start date is specified in the Hire Term, the Start Date will be the date the Hire Details are agreed by the parties.

  1. AGREEMENT TO HIRE
    1. Medifab agrees to hire the Products to the Distributor, and the Distributor agrees to hire the Products from Medifab, for the Hire Term on the terms and conditions set out in the Hire Agreement.
  2. HIRE TERM
    1. The Hire Term will begin on the Start Date and will continue until termination or expiry in accordance with clause 12.
  3. HIRER ONLY
    1. The Distributor will not own the Products. The Distributor will have no interest in the Products except as a hirer under the Hire Agreement.
    2. As a hirer of the Products, the Distributor will be entitled during the Hire Term to possession of the Products as a bailee, in accordance with the Hire Agreement. As bailee, the Distributor may quietly possess and use the Products without interference from Medifab, provided that the Distributor continues to comply with the Distributor’s obligations under the Hire Agreement.
  4. DISTRIBUTOR’S RESPONSIBILITIES
    1. The Distributor will be responsible for paying all costs and expenses associated with the delivery, setup, adjustment, fitting and use of the Products, except to the extent that Medifab has expressly agreed in the Hire Agreement to be responsible for such costs and expenses.
    2. The Distributor must during the Hire Term:
      • ensure that any Product supplied to an End User is in good working order as supplied by Medifab;
      • only supply a Product to an End User on the basis of a determination by an appropriately trained therapist or other medical professional that the Product is appropriate for the needs of the End User;
      • maintain the Products in good working order and condition (Normal Wear and Tear excepted), and follow any instructions for servicing or maintaining the Products that have been notified by Medifab to the Distributor in writing;
      • only use the Products for the purpose for which they were designed and for which they are commonly supplied;
      • ensure that the Products are properly set up, adjusted and fitted to the End User by appropriately qualified and trained persons, and in accordance with any setup, adjustment and fitting instructions provided with the Products;
      • ensure that the End User or their caregivers are properly instructed in the use, features, operation and care of the Products;
      • not sell, assign, transfer or otherwise dispose of any of the Products without Medifab’s prior written consent, except to the extent expressly permitted under clause 6;
      • not return the Products before the end of any minimum or fixed term period of the Hire Term, except where the Distributor is required under the Hire Agreement to do so or where Medifab has otherwise consented to such return in writing;
      • not alter any identifying markings on the Products;
      • not modify, disassemble, or make any alteration or addition or modification to the Products, without Medifab’s prior written consent, except as necessary to properly set up, adjust and fit any Product to an End User or as necessary to properly maintain and service the Products in accordance with instructions or guidelines provided by Medifab. All alterations, additions or modifications to the Products will be regarded as forming part of the Products and will become Medifab’s property;
      • not allow any person to access or use the Products, other than the Distributor’s employees, contractors or agents or as expressly permitted under clause 6, except as approved by Medifab in writing;
      • not without Medifab’s written consent use or install the Products in any manner that would lead to the Products becoming a fixture or an accession to any property; and
      • do all other things that Medifab may reasonably require to protect Medifab’s interest in the Products, including, without limitation, by providing information and executing documents.
    3. If the Distributor fails to comply with any of the Distributor’s obligations under the Hire Agreement, Medifab reserves the right to take such actions as Medifab reasonably determines are necessary to protect Medifab’s interests in the Products or to secure the Distributor’s performance under the Hire Agreement, and Medifab will have no liability to the Distributor for any loss arising as a result of such actions.
  5. SUB-HIRING OF PRODUCTS
    1. The Distributor may not sub-hire the Products to any person, except as expressly permitted under this clause 6.
    2. The Distributor may sub-hire a Product to any person who is the End User of the Product, or who is a parent or caregiver or other person or organisation acting on behalf of that End User. The Distributor must enter into a formal written sub-hire agreement with any such sub-hirer before providing the Product under that sub-hire agreement. Each such sub-hire agreement:
      • must specify that the sub-hirer does not acquire any ownership interest in the relevant Product; and
      • must be capable of being terminated by the Distributor with effect from the date of termination or expiry of the Hire Term for any reason.
    3. The Distributor must provide to Medifab upon request such information as Medifab may reasonably request regarding any Product sub-hire agreement entered into by the Distributor, including the name and contact details of the applicable sub-hirers, and details of the applicable Products.
    4. The Distributor will be liable to Medifab under this Hire Agreement for all acts and omissions of any sub-hirer or End User of any Product, as if such acts or omissions were the Distributor’s own.
  6. LOSS AND INSURANCE
    1. The Distributor is responsible for any loss of or damage to the Products during the Hire Term. This includes any loss or damage caused by way of fire, flood, excessive heat or moisture, theft, vandalism, or physical damage.
    2. The Distributor must maintain at its own cost appropriate insurance against loss or damage to the Products for all foreseeable risks, for an amount not less than the full replacement value of the Products.
    3. The Distributor must also during the Hire Term maintain insurance coverage in respect of public liability, professional indemnity, property damage and product liability in amounts and against risks that are normal for businesses similar to that of the Distributor and on terms and at levels that are acceptable to Medifab.
    4. The Distributor must provide Medifab with an accurate and up to date certificate of all insurances required to be obtained by the Distributor under the Hire Agreement, at any time reasonably requested by Medifab.
    5. The Distributor must:
      • not do or allow anything to be done that may adversely affect any insurance coverage over the Products;
      • promptly notify Medifab in writing if any Products are lost, stolen, or damaged, or if any circumstances arise that may entitle a claim to be made under any insurance policy in relation to the Products;
      • pay to Medifab any insurance proceeds the Distributor receives in relation to the Products, and Medifab may (at Medifab’s discretion) apply those proceeds to the repair or replacement of the Products or to reduce the Distributor’s liability to Medifab; and
      • reasonably co-operate with Medifab and any insurer of the Products with regard to any insurance claim for loss of or damage to the Products.
  7. RISK, TITLE AND PPSA
    1. Risk in the Products passes to the Distributor upon delivery of the Products to the Distributor, and will remain with the Distributor until the Products have been returned to Medifab or its nominated agent.
    2. Title to the Products will remain with Medifab at all times.
    3. Unless otherwise defined in the Hire Agreement, in this clause 8, capitalised terms used have the meanings given to them in the PPSA, and all references to sections are to those in the PPSA.
    4. The Distributor grants to Medifab a Security Interest in all Products, as security for Medifab’s legal title in the Products. Medifab may register a Financing Statement at the Personal Property Securities Register (Register) to perfect Medifab’s Security Interest in the Products.
    5. The Distributor must:
      • do all things reasonably requested by Medifab, and provide Medifab immediately on request all information required by Medifab, to enable Medifab to register a Financing Statement over the Products; and
      • do all things necessary to enable the perfection, re-perfection or maintenance of perfection of any such Financing Statement.
    6. The Distributor must not authorise, grant or create any lien, mortgage, charge, encumbrance or other security interest over any of the Products in favour of any third party. The Distributor will not agree to allow any person to file a Financing Statement over the Products without Medifab’s prior consent. The Distributor must notify Medifab immediately if the Distributor becomes aware of any person taking steps to file a Financing Statement against any of the Products.
  8. FEES
    1. In consideration for the hire of the Products, the Distributor will pay to Medifab the Fees, in the amounts and in the manner set out in the Hire Details. Unless otherwise specified in the Hire Details, the Distributor must pay all Fees in advance.
    2. Notwithstanding any termination or expiry of the Hire Term, the Distributor’s obligation to pay Fees will continue for any period from the date of termination or expiry of the Hire Term until the date the applicable Products have been returned to Medifab. The Fees for any such post-termination or expiration period will be calculated on a daily basis by reference to the Fees payable during the Hire Term.
    3. All Fees due to Medifab:
      • are exclusive of any GST which, where applicable, will be payable by the Distributor to Medifab;
      • will be paid in Australian dollars, to the credit of a bank account to be designated in writing by Medifab, or by way of credit card payment to Medifab or to a third party payment service provider approved by Medifab; and  
      • will be paid in full by the due date for payment, without set-off or deduction of any kind, failing which:
        • Medifab may charge interest on the outstanding amount at an annual rate equivalent to the standard interest rate charged by Medifab’s bankers for commercial overdrafts, plus 3%. Interest will be calculated on a daily basis from the due date until the date of actual payment;
        • the Distributor will reimburse Medifab for all costs and expenses Medifab incurs in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, legal and attorney costs (on a solicitor and own client basis), court costs, and debt collection costs; and
        • Medifab may suspend the performance of any or all of Medifab’s obligations under the Hire Agreement until such failure to pay has been rectified.
    4. CONFIDENTIALITY AND PRIVACY
      1. Each party will maintain as secret and confidential at all times all information about the other party or the other party’s business affairs (Confidential Information). Neither party may use or disclose the Confidential Information of the other party, except as required to comply with its obligations and to exercise or enforce its rights under the Hire Agreement. These obligations of confidentiality will not apply to Confidential Information that:
        • was, before the recipient party’s receipt from the disclosing party, in the recipient party’s possession;
        • is independently acquired or developed by the recipient party;
        • is subsequently disclosed to the recipient party by a third party who has not derived it from the disclosing party;
        • is or becomes generally available to the public through no act or default of the recipient party; or
        • is required to be disclosed by law.
      2. If the Distributor provides Medifab with any data or information about any third party in the course of Medifab’s relationship with the Distributor, then:
        • Medifab will be entitled to collect, use, disclose and hold such personal information to the extent necessary to comply with Medifab’s obligations and to exercise or enforce Medifab’s rights under the Hire Agreement; and
        • the Distributor warrants to Medifab that the Distributor has obtained all necessary consents and authorisations from that third party under applicable privacy laws (including the Privacy Act 1988) to enable Medifab to collect, use, disclose and hold such date or information to the extent necessary to comply with Medifab’s obligations and to exercise or enforce Medifab’s rights under the Hire Agreement.
    5. LIABILITY
      1. The Distributor must notify Medifab in writing without delay in the event of any defects in the Products.
      2. In the event of any Product defect during the Hire Term that results in that Product not operating substantially in accordance with Medifab’s standard specifications for that Product, Medifab will (at Medifab’s election) upon being notified of the defect in writing:
        • repair or replace the Product; or
        • if Medifab is unable to repair or replace the Product, terminate the Hire Term in respect of the defective Product. In such event, the Hire Term will remain in effect in respect of all non-defective Products. If Medifab terminates the Hire Term in these circumstances, Medifab will provide the Distributor with a credit or refund of any Fees paid by the Distributor for the relevant Product for any period of the Hire Term after the date of termination,

subject always to clause 11.3.

  1. Medifab will not be required to repair or replace any defective Product where the defect is the result of:
    • physical damage to the Product after delivery by Medifab or Medifab’s agents;
    • the Distributor’s negligence or the negligence of any person who uses the Product;
    • any failure to set up, adjust, fit, use, service, maintain or operate the Product in accordance with the instructions provided with the Product; or
    • the Distributor’s failure to comply with these Conditions.
  2. The Distributor must not attempt to repair any defect in the Products, except as authorised by Medifab in writing to do so.
  3. If any Product defect is the result of any of the things listed in clause 11.3, or if the Distributor breaches clause 11.4, Medifab may (without limiting Medifab’s other rights and remedies):
    • terminate the Hire Term in respect of that Product with immediate effect; or
    • elect to repair or replace the Product, and charge the Distributor for the cost of any such repair or replacement.
  4. If any Product is returned to Medifab for the purposes of repair or replacement, Medifab may elect to provide the Distributor with a temporary replacement product (Temporary Product). If Medifab provides the Distributor with any Temporary Product:
    • Medifab will use reasonable endeavours to ensure that the Temporary Product provides the same or similar functions and features as the original Product;
    • the Distributor must return the Temporary Product to Medifab once the defective Product has been repaired or replaced; and
    • the applicable terms and conditions of the Hire Agreement will apply to the Distributor’s use, set up, fitting, maintenance and servicing of the Temporary Product as if it were the original Product.
  5. This clause 11 sets out Medifab’s sole obligation and the Distributor’s sole remedy in relation to any defective Products. Medifab does not make any warranties or representations about the Products or their operation, and all warranties regarding the Products that may be implied by law are expressly excluded to the fullest extent permitted.
  6. In particular, Medifab gives no warranties or representations that any Product will meet the needs of any End User. It is the responsibility of the Distributor to ensure that a Product is only supplied to an End User on the basis of a determination by an appropriately trained therapist or other medical professional that the Product is appropriate for the needs of that End User.
  7. The Distributor will defend, indemnify, and hold harmless Medifab and its officers, employees, contractors, agents, and affiliates from and against any and all liabilities, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by them (including costs on a solicitor and own client basis), arising out of or resulting from:
    • any claim by any third party alleging that any Product was not appropriate for the needs of an End User;
    • any failure by the Distributor or its agents to properly set up, adjust or fit any Product to any End User in accordance with the Hire Agreement; or
    • any breach by the Distributor of the Hire Agreement.
  8. In no event will Medifab be liable (whether in contract, tort, negligence or in any other way) to the Distributor for:
    • loss of revenue or profit, loss of business, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
    • loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,

arising directly or indirectly in relation to the Distributor’s hire of the Products or under these Conditions, even if Medifab had been advised of the possibility of such loss, damage, cost or expense, and even if such loss, damage, cost or expense was reasonably foreseeable by Medifab.

  1. In no event will Medifab’s total liability under any claim of whatever nature arising directly or indirectly in relation to the Distributor’s hire of the Products or under these Conditions exceed the Fees paid by the Distributor for the specific Products to which the relevant claim relates in the 12 month period before such liability first arose.
  2. None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any liability that cannot be excluded or limited under the Australian Consumer Law, or under any other applicable law.

and in such event, the Hire Term will remain in effect in respect of the remaining Products.

  1. Medifab may terminate the Hire Term with immediate effect by written notice to the Distributor if:
    • the Distributor breaches any of the Distributor’s obligations under the Hire Agreement or under any other product hire agreement entered into between the parties;
    • Medifab reasonably believes that a material adverse change has occurred in the Distributor’s business or financial position that is likely to affect the Distributor’s ability to meet the Distributor’s obligations under the Hire Agreement; or
    • the Distributor ceases or threatens to cease to carry on the Distributor’s business or operations, is declared or becomes bankrupt or insolvent, enters into administration, liquidation or receivership, is the subject of an order or resolution for liquidation, is unable to pay its debts as they fall due, enters into a general assignment of the Distributor’s indebtedness or a scheme of arrangement or composition with the Distributor’s creditors, or takes or suffers any similar action in consequence of debt.
  2. Upon expiration or termination of the Hire Term for any reason whatsoever:
    • the Distributor must immediately return to Medifab the applicable Products at the cost of the Distributor, and do such other things as Medifab may reasonably request to assist Medifab with securing the return of the Products. If Medifab has specified any procedures for the return of the Products, including the manner in which any Products must be packaged or freighted, the Distributor must follow all such procedures at its own cost;
    • if the Distributor does not comply with clause 12.6(a), or Medifab reasonably determines that the Distributor is unwilling or unable to comply with clause 12.6(a), Medifab or Medifab’s agents may enter any locations the Distributor owns, occupies, possesses or controls to recover or attempt to recover the Products. The Distributor irrevocably licenses Medifab and Medifab’s agents to enter such locations to recover the Products without incurring liability for any loss the Distributor or any person claiming through the Distributor suffers as a result of any action taken by Medifab or Medifab’s agents under this clause 12.6(b);
    • if any returned Product is damaged, heavily soiled or in a state of disrepair (except for Normal Wear and Tear or as a result of defects Medifab is responsible for under clause 11.2), the Distributor must reimburse Medifab for all cleaning, disinfection, repair or replacement costs incurred by Medifab as a result;
    • the Distributor will remain liable to pay to Medifab all outstanding Fees, and all costs reasonably incurred by Medifab in recovering, repossessing or attempting to repossess, any Products;
    • the provisions of clauses 10, 11, 12.6, 13 and any other clauses intended to survive termination or expiration, will remain in full force and effect; and
    • subject to this clause 12.6, and except for any rights and remedies of the parties that have accrued before termination or expiration, including for any prior breach of the Hire Agreement, neither party will be under any further obligation to the other party.
  3. If Medifab terminates the Hire Term under any of clauses 11.5(a) or 12.5 before the end of any fixed period of the Hire Term, Medifab may recover from the Distributor, as a genuine pre-estimate of Medifab’s loss, all future Fees that would have been paid had the Hire Term continued to the end of that fixed period, and the Distributor will pay such amount in one lump sum within seven days following the date of termination.