Terms and conditions

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  1. Commencement and term:
    1. This Agreement is binding on the Client when it is signed by Clinimed but commences when the Equipment is delivered by CliniMed. If requested by CliniMed the Client must give to CliniMed a written statement in which the Client gives a full description of the Equipment, acknowledges that it has received the Equipment in good working order and condition and acknowledges that the Equipment is satisfactory in all respects for the purpose of this Agreement. If the Client does not give such a statement to CliniMed the Client will be taken to have given those acknowledgements by paying the Upfront Payment. CliniMed is authorised by the Client to complete any blanks in the Schedule including, without limitation, the Commencement Date and particulars of the Equipment.
    2. The term of this Agreement is the Term specified in the Schedule (unless the parties agree another term).
  2. Rental Payments:
    1. The Client must:
      1. pay the first Rental Payment on the Commencement Date and each subsequent Rental Payment as per the Schedule,
      2. pay any other money due under this Agreement on demand;
      3. pay Rental Payment Payments whether or not the Equipment or CliniMed’s title to it is defective or any other circumstance exists (including, without limitation, any breakdown of the Equipment, or the breach of any service or maintenance agreement by any person) which, but for this clause, may affect the Client’s obligation to pay Rental Payment Payments; and
    2. The Client may be asked to pay a late payment fee of $25.00 and/or interest calculated daily at 1.5% per month on any amount which the Client does not pay within 3 days of the due date until paid. Any interest on unpaid amounts will be compounded each Rental Payment period.
  3. Ownership of Equipment
    1. Subject to clause 8, the Equipment remains the property of CliniMed during the term of this Agreement, whether or not affixed to realty and shall not become or deemed to become part of any real property on which it is placed.
    2. CliniMed has not given any rights or expectations, nor made any representations, to the Client regarding the use, operation, performance, delivery, installation or tax treatment of the Equipment by the Client at any time.
  4. Delivery
    1. CliniMed shall, at its cost, arrange for the Equipment to be delivered to, and/or installed at, the Location in good working order and condition. CliniMed assumes the risk of any loss of or damage to the Equipment arising during the delivery or installation not caused or contributed to by the Client.
    2. The Client acknowledges that the Equipment has been delivered to the Location, and that the it has accepted the Equipment for all purposes under the Agreement. The Client confirms that the Equipment conforms with its description in this Agreement, and is satisfactory in all respects. For the avoidance of doubt, the Client further confirms that the Client’s obligation to pay Rental Payments will remain unaffected in any way by the parties’ performance of the service and maintenance agreement.
  5. Client’s Obligations:
      The Client must: –

    1. at its cost keep the Equipment in good working order and condition (reasonable wear and tear excepted),
    2. not adjust the components or open the outer case of the equipment without CliniMed’s prior written consent;
    3. at its cost protect the Equipment from loss or damage;
    4. ensure that CliniMed can, and allow CliniMed to, enter at all times upon land or buildings owned or occupied by the Client to inspect the condition of the Equipment;
    5. promptly notify CliniMed of loss of or damage to the Equipment;
    6. not use or install the Equipment so that it is a fixture;
    7. observe warranties given by the manufacturer or supplier of the Equipment;
    8. give to CliniMed immediately any notice or order received from an authority about the use or condition of the Equipment;
    9. not assign its rights under this Agreement, or purport to dispose of, or give any form of security over, the Equipment without the prior written consent of CliniMed;
    10. give to CliniMed the information it requests about the Equipment;
    11. promptly notify CliniMed of any change of address;
    12. keep the Equipment in its possession at the Location in a suitable place and not remove it or part with possession without CliniMed ‘s prior written consent; and
    13. enter into and maintain the standard service and maintenance agreement (see clause 7.1) provided by CliniMed and comply with the Client’s obligations under it,
    1. CliniMed may do anything which should have been done by the Client under this Agreement but which CliniMed considers has not been done properly. The Client must reimburse CliniMed on demand for any expense which CliniMed reasonably incurs in doing so.
  6. Insurance
      The Client must: –

    1. keep the Equipment insured to the extent it is insurable with insurers approved by CliniMed in the names of the Client and CliniMed for their respective rights and interests, for its full insurable value against fire, the other usual risks against which a prudent owner or hirer would insure, and any other risks reasonably specified by CliniMed;
    2. maintain with insurers approved by CliniMed public risk insurance in respect of the Equipment;
    3. deposit with CliniMed at its request copies of all insurance policies and certificates of insurance in connection with the Equipment;
    4. pay each insurance premium on or before the due date and, upon request from CliniMed, produce receipts for the payment;
    5. not do or permit anything which prejudices any insurance; and
    6. not, without the consent of CliniMed:
      1. insure the Equipment in the name of the Client alone; or
      2. vary, cancel or allow to lapse insurance in connection with the Equipment;
    7. immediately rectify anything which might prejudice any insurance and reinstate the insurance if it lapses; and
    8. notify CliniMed immediately when an event occurs which gives rise or might give rise to a claim under a policy of insurance required by this clause.
    1. The Client must not, without the consent of CliniMed, enforce, conduct, settle or compromise claims under any policy of insurance required by this clause whether or not that policy also covers other property. CliniMed is entitled to the proceeds of an insurance policy in connection with the Equipment and may apply it in its discretion either towards replacement or reinstatement of the Equipment or towards satisfaction of the Client’s obligations under this Agreement.
      The Client is not obliged to observe an obligation under this clause if CliniMed notifies the Client that CliniMed has taken out insurance to its satisfaction for the purpose of this Agreement in respect of that obligation.
  1. Maintenance and call-out
    1. As part of its maintenance and service agreement CliniMed shall provide a free service to the Equipment after 6 months have elapsed from the delivery date.
    2. In the event that CliniMed responds to a call-out by the Client for a fault with the Equipment and it is determined that the fault is due to operator error or damage to the Equipment caused by the Client, CliniMed will charge a call-out fee of $75 plus any costs incurred to restore the Equipment to good working order and condition in which it can be rented out again.
  2. Early Termination
    1. Subject to clause 8.2, this Agreement may not be terminated prior to the expiry of the Term.
    2. The Client may terminate the Agreement at any time after the first 12 weeks of the Term by:
      1. returning the Equipment to CliniMed in good order and condition to CliniMed’s place of business; and
      2. paying to CliniMed the Early Termination Amount.
  3. Purchase option
    1. At any time up to 14 days before the end of the Term, the Client may give CliniMed notice that at the end of the Term the Client wishes to purchase the Equipment. Provided the Client has paid all amounts owing to CliniMed under this Agreement, CliniMed shall transfer full title to the Equipment
  4. Default
    1. An event of default occurs if:
    1. the Client does not pay on time any money payable under this Agreement;
    2. the client fails to maintain insurance of the Equipment,
    3. any present or future monetary obligation of the Client is not satisfied on time or at the end of its period of grace or becomes prematurely payable;
    4. distress is levied or a judgment, order or security is enforced, or becomes enforceable against any property of the Client;
    5. a representation or warranty made by the Client in connection with this Agreement is found to be incorrect or misleading;
    6. the Client stops payment, ceases to carry on its business or a material part of it, or threatens to do either of those things except to reconstruct or amalgamate on terms approved by CliniMed;
    7. an order is made or an effective resolution passed for the winding up of the Client, a meeting is called to consider a resolution to dissolve the Client, a meeting is called to place the Client under administration or a person is appointed to investigate the Client, the Client proposes or enters into a reconstruction or any other arrangement with all or any class of its creditors, or the Client is unable to pay its debts when they fall due;
    8. a receiver or a receiver and manager is appointed in respect of any part of the property of the Client;
    9. there is a change in the Client’s ownership or control; or
    10. the Client does not observe any other obligation under this Agreement.
  5. Termination by CliniMed
    1. The occurrence of a default event in paragraphs (a) to (h) in clause 10 is a breach of a fundamental condition of this Agreement (“fundamental default event”).
    2. The Client undertakes to notify CliniMed of the occurrence of a fundamental default event as soon as possible.
    3. If a fundamental default event occurs, and is not promptly remedied. the Client will be deemed to have repudiated the Agreement, and CliniMed will be entitled to terminate the Agreement by written notice to the Client and/or by any act of repossession.
    4. Upon such termination , clause 8.2 applies and the Client must also pay CliniMed, immediately on demand, the Early Termination Amount plus all other amounts owed by the Client under this Agreement. CliniMed’s rights under this clause do not affect any other right or remedy of CliniMed under this Agreement.
  6. Exclusion of Warranties
    1. All express and implied terms, conditions and warranties which otherwise might apply to or arise out of this Agreement are negatived except as provided in this Agreement and, if the Equipment is subject to them, except as provided in any law which cannot lawfully be excluded or modified by mutual Agreement including the ACL, and any other comparable legislation which contains various provisions, including implied terms, conditions and warranties, that operate to protect hirers of Equipment in various circumstances).
  7. Client’s Representations
    1. The Client warrants that:
    1. the Equipment is to be used only for business purposes;
    2. it has, or, prior to or upon delivery of the Equipment it will have, thoroughly examined the Equipment and satisfied itself as to its condition, quality and suitability for its purposes;
    3. the Equipment complies with its description in this Agreement;
    4. it has relied solely on its own skill and judgment in choosing the Equipment; and
    5. it has not made known to CliniMed or any other corporation or person any particular purpose for which the Equipment is being acquired.
  8. Expenses
    1. The Client must pay or reimburse CliniMed on demand for CliniMed’s costs, charges and expenses in enforcing and doing anything in connection with this Agreement including, without limitation, legal costs and expenses on a full indemnity basis..
  9. Taxes
    1. The Client must pay or reimburse CliniMed on demand for all stamp duties taxes and charges which are payable in connection with this Agreement, including, without limitation (a) the amount of any Goods and services tax or like-tax (“GST”) payable under A New Tax System (Goods & Services Tax) Act 1999 (or any similar tax law of the Commonwealth or any State or Territory) on any supply by CliniMed under or in connection with this Agreement; and (b) otherwise in respect of CliniMed’s purchase of the Equipment, or a payment, receipt or other transaction contemplated by this Agreement.
  10. Indemnities
    1. The Client indemnifies CliniMed against all actions, claims (including claims for breach of intellectual property rights), liabilities (including liability for any death or damage to property), losses costs or damages arising out of (a) the purchase, possession, condition, operation or use of the Equipment (not otherwise caused by CliniMed), or (b) this Agreement terminating early for any reason.
  11. PPSA
    1. The Client must, at its cost, do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which CliniMed reasonably request and consider necessary for the purposes of:
      1. ensuring that each PPS Security Interest provided by this Agreement is enforceable, attached, perfected and otherwise effective;
      2. enabling CliniMed to apply for any registration, or give any notification, in connection with each such PPS Security Interest so that that PPS Security Interest has the priority required by CliniMed; or
      3. enabling CliniMed to exercise rights in connection with each such PPS Security Interest.
    2. The Client acknowledge that CliniMed may register one or more financing statements in relation to any PPS Security Interest provided for by this Agreement. If permitted by the PPSA, the Client waives its right to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.
    3. If the Client holds any PPS Security Interests and if failure by the Client to perfect such PPS Security Interests would materially adversely affect CliniMed’s business or any PPS Security Interest provided for by this Agreement, the Client agree to implement, maintain and comply in all material respects with, procedures for the perfection of those PPS Security Interests. These procedures must include procedures designed to ensure that the Client take all steps under the PPSA to continuously perfect any such PPS Security Interest including all steps necessary:
      1. for CliniMed to obtain the highest ranking priority possible in respect of the PPS Security Interests; and
      2. to reduce as far as possible the risk of a third party acquiring an interest free of the PPS Security Interest provided for by this Agreement.
    4. To the extent that Chapter 4 of the PPSA would otherwise apply, CliniMed and the Client agree that the following provisions of the PPSA do not apply:
        1. to the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and
        2. in addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137.

      If section 115(1) of the PPSA does not allow section 125 of the PPSA to be excluded, the Client agree that at any time after any PPS Security Interest provided for by this Agreement has become enforceable, CliniMed may delay disposing of, or taking action to retain, the whole or part of the collateral to the extent permitted by law.

    5. The Client:
      1. declares that it has provided CliniMed with the serial numbers that CliniMed would require to make an effective registration (with the priority required by CliniMed) against Serial Numbered Property (if any) in accordance with the PPSA;
      2. must notify CliniMed immediately in writing if a new or different serial number is allocated to any Serial Numbered Property; and
      3. must not change or remove the serial number of any Serial Numbered Property after the Client have disclosed the number to CliniMed.
    6. The Client agree not to change its name without first giving CliniMed 30 days’ notice in writing of the Client proposed new name.
    7. Unless agreed to by CliniMed in writing, the Client acknowledges that CliniMed has not agreed to subordinate any PPS Security Interest provided for by this Agreement in favour of any third party.
    8. Neither the Client nor CliniMed may disclose information of the kind referred to in section 275(1) of the PPSA and CliniMed are not required to respond to a request for information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies.
    9. For the purposes of this Agreement, terms defined in the PPSA have the same meaning in this Agreement.
  12. Occupational health and safety
    1. The Client acknowledge that during the term of this Agreement the Client (and not CliniMed) will have sole possession and control of the Equipment.
    2. For the purposes of enabling CliniMed to comply with our obligations under any applicable occupational health & safety law (“Occupational Health & Safety Law”), the Client undertakes, before taking possession, using or dealing with the Equipment, to:
      1. obtain all available information concerning health and safety about the Equipment from CliniMed and obtaining any information, data or certificates provided or kept in accordance with the Occupational Health & Safety Law; and
      2. ensure that the Equipment is inspected and tested in accordance with the requirements set out in the Occupational Health & Safety Law and that the Client obtains written notification of any faults detected in respect of the Equipment and (if applicable) receive written notification that the Equipment is not to be used until the faults are rectified,
      3. before the date upon which any Equipment is returned or repossessed, to:
        1. do all things necessary to ascertain whether or not the Equipment is suitable only for use as scrap or for spare parts; and
        2. provide to CliniMed upon demand any information required to be obtained or collected by the Client pursuant to paragraphs (i) and (ii) of this sub-paragraph (b).
    3. All information collected or obtained by the Client pursuant to paragraph (b) of this clause will be deemed to have been provided by CliniMed to the Client at the time of collecting or obtaining such information.
    4. The Client indemnify CliniMed against any loss or liability arising from the Client failure to comply with the Client obligations under this clause.
  13. Miscellaneous
    1. Every provision of this Agreement is independent of every other provision. Any provision which would otherwise be prohibited or unenforceable in any jurisdiction is, to the extent of the prohibition or unenforceable deemed removed without invalidating, so far as possible, the remaining provisions.
    2. Time is of the essence with respect to the performance of the client’s obligations under this Agreement.
    3. This Agreement is governed by the law in force in the place of the Location. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place and courts of appeal from them.
    4. CliniMed may assign, encumber or otherwise deal with its rights under this Agreement in any way (subject to the rights of the Client under this Agreement).
    5. Any notice to be given by CliniMed to the Client must be sent by prepaid post addressed to the Client at the last known place of business of the Client and shall be deemed to have been received on the second day following posting.
    6. The Client shall promptly executes and deliver to CliniMed (and any assignee) such further documents and take such further action as CliniMed may require in order to more effectively carry out the intent and purpose of this Agreement (and any assignment by CliniMed of its rights under this Agreement) and to protect the interest of CliniMed (or any assignee) in the Equipment.
  14. Dictionary and Interpretation
    1. Dictionary
      In this Agreement, unless the context otherwise requires:

      1. ACL means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
      2. Agreement means the Agreement formed by the Schedule and these Terms & Conditions.
      3. Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales;
      4. CliniMed means CliniMed Aesthetics Pty Ltd, and where the context permits, includes any of its related bodies corporate;
      5. Client means the customer referred to in the Schedule
      6. Commencement Date means the commencement date specified in the Schedule;
      7. Early Termination Amount means, as at the date of termination of this Agreement:
        1. any amounts then due but unpaid under this Agreement; plus
        2. a total of 8 (eight) weeks’ Rental Payment Payments.
      8. Equipment means the goods (“device”) described in the Schedule and includes any part of them;
      9. GST means goods and services tax levied under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related legislation;
      10. PPS Security Interest means a security interest under the PPSA in respect of the Equipment;
      11. PPSA means the Personal Property Securities Act 2009 (Cth);
      12. Rental Payment means each periodic payment referred to in the Schedule;
      13. Security Interest means a PPS Security Interest, any other mortgage, pledge, lien or charge; or any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property in respect of the Goods;
      14. Schedule means the fort page of this Agreement captioned “Schedule 1”;
      15. Serial Numbered Property means any Goods which may or must be described by serial number in a registration under the PPSA; and
      16. Term or “term” wherever used means the Term of this Agreement referred to in the Schedule.
    2. Interpretation
      1. person includes any body corporate, association, authority and any other body or entity;
      2. if any party comprises more than one person, those persons’ obligations are joint and several;
      3. a reference to a party includes a reference to that party’s legal personal representatives, successors and permitted assigns;
      4. Unless the context otherwise requires: (a) words denoting the singular include the plural and visa versa and words denoting one gender include each gender; (b) references to a person include a corporation and visa versa; (c) headings are for convenience only and do not affect the interpretation of this Agreement; (d) a reference to a party includes its successors and permitted assigns; and (e) a reference to the Equipment include es any parts or accessories from time to time attached to or forming part of the Equipment, whether in addition to or in replacement of any part of the Equipment.